Dickens, Kafka, and environmental law

Continuing our literary turn, Seth Jaffe's recent "Jarndyce v. Jarndyce Has Nothing On Comer v. Murphy Oil: The Fifth Circuit Court of Appeals Affirms Dismissal", on the "Law and the Environment" blog, discusses the bizarre story--Kafkaesque (more here) as well as Dickensian--of Comer v. Murphy Oil, a suit against greenhouse gas emitters brought by victims of Hurricane Katrina in US federal court.

The plaintiffs won an appeal against dismissal of their case by the trial court, only to have their win vacated in favor of a full-court rehearing that never took place, due to recusal of half the judges of the court. Despite the lack of a quorum to rehear the appeal, the decision to vacate the earlier decision in favor of a rehearing was left standing. The result was that while the plaintiffs won on appeal, this win had no legal force. They were left with only the trial court dismissal of their suit, with no way to appeal.

The plaintiffs' loss in Comer seems to be part of a broader trend noted by R. Trent Taylor's "The Obsolescence of Environmental Common Law", published recently in Ecology Law Currents. Federal courts have recently been dismissing lawsuits brought by environmental plaintiffs based on common law causes of action (such as nuisance), ruling that the common law has been displaced or preempted by federal regulation of the environmental issues in question. Taylor argues that environmental common law, which he calls "one of the oldest and most utilized areas of our legal system", "now faces one of its gravest threats and its very survival is at stake". This larger story has Kafkaesque dimensions as well, as environmental plaintiffs, who can get no relief from the weak or non-existent regulation supposedly occupying the field, are told by courts that these regulations are responsible for extinguishing the venerable common law rights they would have otherwise enjoyed. (Might plaintiffs have "regulatory takings" claims for the expropriation of these rights protected under background common law rules?)

Beyond the literary and legal interest in these developments, they should be of interest to students of legal and environmental history, as we may be witnessing a sea change in the history of environmental law, with one major branch of the law (nuisance and related torts) virtually disappearing in a major jurisdiction. Historical research might also play a more active role here. Environmental private law (anchored in the Anglo-American tradition in the common law) and public environmental regulation (statute law in that tradition) have existed side by side for hundreds of years, often interacting in interesting ways (see, for instance, Noga Morag-Levine's work), but never extinguishing one another. Maybe historians of legal regulation and environmental common law can contribute to the shaping of the law of preemption and displacement in American courts.