The Nuisance Claim
Introduction
For centuries, the law of public nuisances has provided a mechanism for courts to act when a community suffers a harm. Today, this time worn cause of action is being called on to address an increasingly modern problem: environmental harms.
Environmental groups are turning to litigation to seek remedies when they believe that pollution controls are inadequate or that environmental regulations have not been followed. On September 21, 2026, the Sierra Club and Public Citizen filed a Clean Air Act lawsuit against the operators of two data-center campuses in Texas, alleging that industrial-scale generators and other power equipment were constructed without required preconstruction permits. The defense has disputed the allegations.¹
While the Clean Air Act lawsuit addresses a federal regulatory framework, it reflects a broader phenomenon: litigation can be a useful tool for communities when they believe that a government's regulatory system is inadequate to controlling a type of environmental harm.
A litigation strategy, however, raises an important question: When regulation is inadequate, how far should private law extend to fill the void?
An Old Cause of Action for a New Problem
The doctrine of public nuisances predates modern regulatory governance. At common law, a public nuisance generally took the form of an unreasonable interference with a right held by the public at large or a substantial share of the public, such as the right to travel on a navigable river or the right to have safe passage on a public road.²
Governments traditionally brought nuisance actions, because a harm to a single possessor could create a harm for all members of the public. While the doctrine was never intended to apply to modern problems, its malleability has allowed it to fill a niche.
Legislation and agencies, by comparison, are not always able to respond as swiftly. Courts can provide a forum for redress when legislatures and administrators cannot promptly act. Still courts are being asked to make a choice that reflects an important institutional tension.
Regulation or Litigation?
There is certainly regulation concerning environmental harms. Congress enacted the Clean Air Act, which contains a comprehensive scheme of federal statutory law concerning air pollution.³ It also created a citizen suit provision to allow private actors to enforce some elements of that law.⁴
Why is it necessary to have a cause of action in nuisance law?
The reason turns on the plaintiff and what it wished to accomplish. A citizen-suit plaintiff could be brought in a particular statutory law to police a specific requirement.
A tort plaintiff could be tasked with determining whether a defendant's activities are an unreasonable interference with public rights and what remedy is appropriate. In short, statutes create standards for the conduct of entire classes of persons; a cause of action in tort empowers courts and judges to take a more active role in specifying standards of behavior. The advantages of this approach reflect both the adaptability of a tort cause of action as well as the risks.
The Supreme Court’s Answer
The Supreme Court grappled with this dilemma recently in American Electric Power Co. v. Connecticut . States and private organizations brought lawsuits against power companies under federal common-law public nuisance claims, seeking the imposition of emissions controls to address the alleged harms of climate change.⁵
The Court held that the Clean Air Act preempted the federal common-law public nuisance claims, because Congress had directed that the Environmental Protection Agency regulate greenhouse gas emissions.⁶
This was an important policy choice, but one that reflected an institutional boundary: When Congress has directed that an agency regulate a particular class of environmental harms, federal courts should not be in the business of creating a parallel federal regulatory scheme through their interpretation of the common law.
While the Court resolved the issue for federal common law nuisance claims, it left open the possibility for state-law nuisance claims to proceed, because there was a policy choice for the federal courts to make concerning the preemption of state law.⁶
The Climate Problem
Now the Court faces one of the most complicated problems associated with state-law nuisance claims: climate change.
In Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County , the County and the City of Boulder filed various state-law claims against a number of fossil fuel companies, including public-nuisance, private-nuisance, trespass, unjust enrichment, and civil-conspiracy claims.⁷
The Colorado Supreme Court permitted these claims to proceed on their merits, declining to dismiss them at the pleading stage on the basis of federal preemption.⁸ The U.S. Court of Appeals may soon provide a broader analysis, as the U.S. Supreme Court has agreed to hear the case and will conduct oral argument on October 5, 2026.⁹
This litigation presents a particularly thorny problem of scope. Climate change is a global phenomenon, but the law of torts is a local law. If the emissions from a given company are a factor in climate change, and a state court is asked to decide a lawsuit concerning the company's conduct, is the state's common law up to the task?
The Causation Dilemma
It is impossible to speak of climate change tort litigation without addressing the causation dilemma. In traditional nuisance litigation, causation is not particularly difficult. If a factory contaminates a river with its discharges, the fact that the river then flows downstream is enough to harm downstream landowners.
In assessing causation in a climate change context, a court could very well be asked to make more specific findings. Climate change is caused by greenhouse gases, but the quantity of greenhouse gases emanating from a particular facility could be minuscule in comparison to total greenhouse-gas emissions. Atmospheric pollution is cumulative; wind patterns may change the course of pollutants from one region to another. Goods produced by a factory may end up in the possession of a consumer, the effects of whose conduct may then inflict an environmental harm.
Modern advances in scientific methodology will often help to address a causation dilemma. In discussing a potential common law tort claim involving antibiotic-resistant bacteria, Harvard Law Review's Naomi Jennings discusses a potential technique involving the role that genetic sequencing might play in determining whether certain strains of bacteria may be traced back to a given agricultural facility.¹⁰
Remedies and Regulation
It is possible to address the causation problem. Suppose a court finds that a defendant's conduct has contributed to an environmental harm.
What remedy should the court provide? A traditional nuisance plaintiff could recover at least the cost of an injunction against the continued operation of a factory. If a court were to find that a particular defendant's conduct has contributed to climate change, what remedy might it choose? Should the court order the defendant to change its ways? To pay a damages award or costs of remedying a climate problem? To adopt a particular standard of conduct?
Each remedy resembles a form of regulation. And that brings us back to an institutional dilemma that is foundational to the state of litigation concerning environmental torts today.
A Question of Policy
The fundamental dilemma of environmental tort litigation today is a dilemma of policy, and one that touches on the separation of powers. Courts are meant to adjudicate, not legislate.
Agencies have been formed to adopt regulatory policies at the level of entire industries, while still considering the impact on the economy and on firms in a particular industry.
While legislatures may not always have the resources at their disposal to craft complex, multi-faceted statutory schemes, they have been entrusted with the power to direct agencies and to create and enforce laws that apply to everyone.
There is an alternate rationale for private litigation: enforcement. Even governmental agencies have enforcement responsibilities; they must assess what practices are in violation of a given statute, and then enforce that statute against persons who have violated it. The government cannot track down every person who has violated a criminal statute. Statutes are written at a level of generality to apply to entire classes of persons and activities, rather than to individual persons and their conduct.
The existence of agencies and laws, however, cannot erase the importance of enforcement litigation in private hands. There may be budget constraints or limitations on staff. A statute might fail to incorporate a particular harm altogether, or a technology might rapidly evolve to create a new type of harm before a legislative response can occur.
Thus while a regulatory response may provide a primary remedy for an environmental harm, complementary private enforcement litigation may still be needed to secure compliance.
Congress has understood this, as reflected in its decision to create a citizen-suit provision under the Clean Air Act.⁴ Private litigants are authorized to enforce certain aspects of a statute, precisely because it is understood that enforcement by government alone may be inadequate.
There must be limits, however, lest litigation encroach into the domain of legislation. A litigant may seek enforcement of a standard that already exists. The constitutional concern arises when a civilly-liable defendant is being used as a vehicle to create an entirely new standard.
Why It Matters
Why does it matter if a climate change-related nuisance claim falls under the category of a state tort action or a federal regulation?
It should matter, because we do not generally want a multiplicity of standards. Suppose that one statute provides standards for protecting a resource and another statute provides different standards for protecting that same resource. Suppose that one court allows a remedy for a certain type of environmental harm and another court provides an entirely different remedy for that same type of harm. Each form of environmental damage litigation raises its own unique issues.
It may be tempting to think a suit brought under the Clean Air Act or another federal statute will succeed automatically, or that any suit brought under a state law will necessarily fail. This is not correct.
A court may find that a provision of a statute conflicts with a state law. In the Supreme Court's recent American Electric Power Co. v. Connecticut decision, the Court found that the Clean Air Act preempted federal common law nuisance claims, but left the door open for state common law claims to proceed.⁶
As modern society becomes more and more complex from a regulatory perspective, courts will grapple with the limits of adjudication, and the separation of powers between agencies, legislatures, and courts with respect to environmental tort law. This Article examines these issues through the lens of one particular issue in current environmental litigation: public nuisance. The Article also considers the question of the constitutional boundaries of such suits.
Conclusion
Public nuisance is a successful doctrine of law, precisely because it is so flexible. It has been able to adapt to a range of problems, from the traditional issues that a landowner faces when another person's land use interferes with the use of one's land, to modern issues of regulation.
It can be a powerful remedy, but it is a remedy that requires careful application.
While public nuisance allows courts to step in when the statutory scheme may not have provided an adequate remedy, it is important that the remedy not encroach on the lawmaking functions of other branches of government. The issues presented by current environmental litigation will be grappled with in the coming months and years, as the U.S. Supreme Court faces this important separation of power concern for the first time.
Shayna Greene, "Green Groups Launch Clean Air Suit Against Texas Data Centers," Bloomberg Law, Sept. 21, 2026. The lawsuit was brought by the Sierra Club and Public Citizen against Vantage Data Centers and VoltaGrid LLC, the operators of two Texas data-center campuses, on the ground that they constructed the facilities using industrial-scale diesel generators and a gas-fired power plant without the required pre construction permits. The defense has disputed the allegations.
Restatement (Second) of Torts § 821B (1979).
Clean Air Act, 42 U.S.C. §§ 7401-7671q.
42 U.S.C. § 7604.
American Electric Power Co. v. Connecticut , 564 U.S. 410, 415-18 (2011).
Id. at 424-29.
County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 25-170 (U.S.).
County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., 2025 CO 21.
U.S. Supreme Court, Docket No. 25-170.
Naomi Jennings, "Treating Superbugs With Litigation: Antibiotic-Resistant Bacteria From Animal Agriculture As a Public Nuisance," Harv. L. Rev. Forum ( 2026).
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