The ancient common tort of public nuisance is all the rage these days. Its resurgence is particularly notable in climate change and environmental litigation, where it seems to be the “tort of choice” for plaintiffs seeking breathtakingly broad relief from global warming and trans-border pollution. Traditionally limited to local concerns, the tort now aspires to planetary dimensions. Its expanding scope has now attracted the attention of the United States Supreme Court in American Electric Power v. Connecticut, which will be argued this Spring. Read More »
Only recently, the ancient tort of public nuisance was “down” and in the process of being “counted out” when its expansion was rejected by the highest courts of New Jersey, Rhode Island, Missouri and Ohio.1 Within the past year, however, it was remarkably resuscitated by federal courts that approved it as a vehicle for redressing climate change and interstate pollution. Read More »
In a major disappointment for the plaintiffs’ bar, the 5th circuit court of appeals has granted a re hearing en banc in Comer v. Murphy Oil, et al.
The entire complement of the court’s judges granted rehearing to review an earlier decision by a three-judge panel that reversed the dismissal of Comer, a major climate change lawsuit arising from Hurricane Katrina. The court has not set a date for oral arguments. Read More »
This “guidance” document impacts all businesses subject to SEC jurisdiction. It is sweeping, expansive and, unfortunately, fails to set realistic limits on the scope of its requirements. As a result, all regulated entities, and their officers and directors are placed in difficult circumstances. They now have a heavy burden of compliance and disclosure, and they face a risk of SEC enforcement, as well as civil and criminal liability if the disclosures prove inadequate or misleading. Read More »
It should come as no surprise that the next application of nuisance law would be climate change litigation. Read More »
Recently, the U.S. District Court for the Northern District of California offered a ruling in Native Village of Kivalina, Alaska v. ExxonMobil Corp., et al., that is in stark contrast to the recent "public nuisance" ruling by the Second Circuit Court of Appeals on utility emissions.
Contrary to the sweeping and unprecedented ruling of the 2nd Circuit in State of Connecticut v. American Electric Power Co. Inc., 05-5104-cv (2d Cir., Sept. 21, 2009), the Kivalina court wisely recognized that global climate change allegations cannot support federal question jurisdiction.
Rather than trivializing the suit as an 'ordinary tort case,' the District Court found that the matter could not be resolved without considering the truly global nature of the issue - and the lack of any ascertainable standards to determine its resolution. Unlike the Second Circuit, the court saw major distinctions between ordinary pollution cases and planet-wide climate claims, and was not willing to indulge its creativity to invent liability criteria on a planetary scale. Read More »
A reader of my last two entries describing articles on nuisance suits and global warming has suggested that one of the articles does not sufficiently respect the dangers of global warming on the merits of existing scientific evidence. On one basic level, the response to this suggestion is easy: whatever one thinks about the dangers of global warming, the point of my entries was to note that the judicial branch is not the appropriate forum to address the issue, as the case law to date has held. On another level, however, the suggestion is useful because it highlights one reason why these court cases nevertheless keep getting filed: because people frustrated with the responses from the governmental branches that are appropriate and equipped to address broad policy issues, i.e. Congress and the Executive Branch, start looking elsewhere. The more critical someone thinks a policy problem is, the more likely they are to resort to any avenue for help, including the courts. Read More »
Superficially, tort law and climate change seem perfectly matched. Current cases seek to strike a "balance" reminiscent of earlier product liability cases, claiming that, as between the "victims" of climate change and the major emitters of greenhouse gases, the emission sources should bear the costs of climate change. Allegedly, the sources are in a better position to absorb such costs and, unless liability is assessed, there is no incentive for the sources to discontinue their harmful emissions. Read More »
My last blog entry summarized a recent law review article about climate change nuisance suits. The article's point of view rejected litigation as the appropriate mechanism to address public policy concerns and to dispute policy decisions by the other branches of government. Language from a professor's summary of his recent article on the same subject, favoring such suits, confirms that not only the effect, but the goal, of such suits is to challenge the policy decisions of the other branches. Read More »
The latest edition of Ecology Law Quarterly (ELQ) has a short but useful discussion of public nuisance global warming suits: "Global Warming Tort Litigation: The Real 'Public Nuisance'."
The article, written by two of the defense lawyers in the California nuisance suit against automakers (which the district court dismissed, and is now pending before the Ninth Circuit), summarizes the five nuisance cases filed to date, then discusses why the public nuisance litigation model doesn't fit. Read More »