UC Santa Cruz

The Clean Air Act and Clean Water Act are major environmental statutes that aim to control air and water pollution using federal standards and state implementation programs. Although these laws have succeeded in reducing some forms of pollution, they have not been effective against two types of environmental harm: greenhouse gases, resulting from fossil fuel use, and nitrogen runoff, resulting from agricultural fertilizer use. Greenhouse gases lead to climate change, and nitrogen runoff can lead to nitrate contamination of drinking water, hypoxia in surface water bodies, and harmful algal blooms. States, cities, counties, and others affected by climate change have recently filed lawsuits against fossil fuel manufacturers that do not allege Clean Air Act violations, instead framing the issues primarily in tort law terms. A case study of this set of lawsuits reveals shared features that inform a possible approach to the nitrogen runoff problem, and common challenges that may arise while using this model. The scientific and legal issues arising from nitrogen runoff bear substantial similarities to those that arose in the climate change lawsuits. Using the model presented by the climate change suits, municipal drinking water utilities and others affected by nitrogen runoff may be able to sue fertilizer manufacturers, framing their cases in tort law terms rather than alleging Clean Water Act violations.