Publication Date



Historically, the federal common law of nuisance has
provided a means to regulate interstate pollution. With
the passing of legislative acts such as the Clean Water Act
and the Clean Air Act, however, traditional federal
nuisance lawsuits were displaced. The continued viability
of the federal common law of nuisance to regulate
pollution, specifically greenhouse gases, was brought to
the forefront of American jurisprudence in American
Electric Power Co. v. Connecticut. There, the Supreme
Court held that the Clean Air Act and the EPA actions the
Act authorizes displace any federal common law right to
seek abatement of greenhouse gases-reversing the Second
This Note analyzes the divergent analysis used by the
Second Circuit and the Supreme Court in the
displacement of the federal common law and discusses the

potential disasters of the Second Circuit displacement
standard. This Note then seeks to discuss the effects of the
Supreme Court decision on pending greenhouse gas
litigation under federal common law and calls for further
legislative action in the area of greenhouse gas regulation.