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85 Tul. L. Rev. 215 (2010-2011)

handle is hein.journals/tulr85 and id is 217 raw text is: Breathing Life into the Dead Zone: Can the Federal Common Law of Nuisance Be Used To Control Nonpoint Source Water Pollution? Endre Szalay* This Comment posits the argument that the federal common law of nuisance could be used to contnal agncultural nonpoint souce water pollution that causes the envirnmental problem known as the GulfofMexico 'DeadZone Theprimary obstacle to such a suit is that the United States Supmme Cou i two cases dealig with inteistate wtIerpollution frm point sources, has held that the Clean Water Act entrely displaced the need for the federal common law ofnsance to abate intersate taterpollution. Howvve, the United States Court ofAppeals for the Second Cirwth rcent decision i Connecticut v. American Electric Power Co., a case dealing with the use of the federalcommon Jaw ofnuisance to contre greenhouse gas emissions that contibute to climate change, has arguably refined the standard for fedeal displacemen4 requinng that the statute actually regulate the nuisance at issue. Wile the Clean Water Act actually rgulates point source pollution, it falls to actually regulate nonpoint source pollution, thus leaving open the possibility that Louisiana or affected citizens could brng a clam under the federal common law ofnisance against states and agncultual idusties that do not control the nonpoint source pollution that causes the Dead Zone. I. INTRODUCTION......................................216 II. THE DEAD ZONE ....................................219 i. THE FEDERAL COMMON LAW OF NUISANCE AND FEDERAL DISPLACEMENT ........................... ................221 A. Development of the Federal Common Law of Nusance................... .............222 B. FederalDisplacementDoctr6ie-The Death Knell for the Federal Common Law?....... ................224 IV THE STANDARD FOR DISPLACEMENT OF FEDERAL COMMON LAW IN THE TWENTY-FIRST CENTURY ....... .....227 A. What Is the Standard for Displacement: Field vs. Conflict Theory...........................227 B. Connecticut v. American Electric Power Co.....................231 C Implications ofConnecticut. ........... ..............234 * @ 2010 Endre Szalay. J.D. candidate 2011, Tulane University School of Law; B.S. 2002, University of Pittsburgh. I owe much to the inspiration and guidance of Professor Oliver Houck and the love and support of my family, Margaret Szalay, Ferenc Szalay, Shandor Szalay, and Lea Disston. Special thanks goes to the very capable staff of the Tulane LawReviewfor making this Comment the best it can be. 215

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