ARTICLE
The Judicial Carbon Tax: Reconstructing Public Nuisance and Climate Change
Jonathan Zasloff* 
55 UCLA L. Rev. 1827

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Abstract

This Article seeks to reconstruct the public nuisance climate change cases Connecticut v. AEP and California v. General Motors to show that, while hardly perfect, nuisance litigation could form a reasonable basis for climate change regulation, at least as much as some of the other imperfect alternatives so far proposed. This nuisance system has promise because, as outlined here, it essentially becomes a carbon tax—precisely the policy instrument that many economists say is the best form of regulation but is routinely dismissed as politically unfeasible. The difference is that it is judicially, not legislatively, imposed. I do not claim that the nuisance system is superior to legislation, but rather that it is a reasonable substitute in the absence of political action. More hopefully, I suggest it might provide a basis for getting the political process to respond to the climate crisis. Put another way, we might look at public nuisance litigation as a useful support for political progress. Common law judicial activism, then, does not undermine the democratic process but rather enhances it.


* Professor of Law and Associate Director of the Richard S. Ziman Center for Real Estate, UCLA School of Law. J.D., Yale Law School; Ph.D., Harvard University.

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