The Supreme Court’s decision in AEP v. Connecticut, as well as litigation involving the threat posed by Asian Carp, reflect an emerging trend of testing the federal judiciary’s willingness to expand the federal common law to include claims for interstate environmental threats. There is an assumption, including by the Supreme Court, that a federal common law for public nuisance exists, and that the pressing question is whether to expand that common law. This article challenges that assumption. The article illustrates that the widely shared view about the persistence of a federal common law for interstate pollution overlooks the Supreme Court’s formulation of its original jurisdiction. The article briefly explores the evolution of the jurisprudential basis for the common law, how the common law and custom became inextricably tied to eighteenth and nineteenth century enlightenment principles, and how those ideas shaped the growth of and demise of a general federal common law. The Article then examines how and why the interstate pollution cases reflect the Court’s struggle with the scope of its constitutionally assigned original jurisdiction to decide disputes between states on the basis of law and equity, not on the basis of any federal common law theory. The final part of the Article explores considerations animating any meaningful dialogue about whether to employ a federal common law for harms such as interstate pollution.
Expanding the Federal Common Law?: From Nomos & Physis and Beyond,
96 Marq. L. Rev. 517
Available at: https://scholarship.law.marquette.edu/mulr/vol96/iss2/5