This Comment posits the argument that the federal common law of nuisance could be used to control agricultural nonpoint source water pollution that causes the environmental problem known as the Gulf of Mexico “Dead Zone.” The primary obstacle to such a suit is that the United States Supreme Court, in two cases dealing with interstate water pollution from point sources, has held that the Clean Water Act entirely displaced the need for the federal common law of nuisance to abate interstate water pollution. However, the United States Court of Appeals for the Second Circuit’s recent decision in Connecticut v. American Electric Power Co., a case dealing with the use of the federal common law of nuisance to control greenhouse gas emissions that contribute to climate change, has arguably refined the standard for federal displacement, requiring that the statute “actually regulate” the nuisance at issue. While the Clean Water Act actually regulates point source pollution, it fails to actually regulate nonpoint source pollution, thus leaving open the possibility that Louisiana or affected citizens could bring a claim under the federal common law of nuisance against states and agricultural industries that do not control the nonpoint source pollution that causes the Dead Zone.

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