- Bayer seen as likely to get new trial on punitive-damages side of glyphosate/Roundup loss [Jim Christie and Ludwig Burger, Reuters, earlier]
- Supreme Court declines to review California judgment finding that long-ago advertising of lead paint created public nuisance for which makers are now financially liable [Greg Stohr/Bloomberg, Donald Kochan/Federalist Society, John Sammon/NorCal Record]
- When if ever can you get into federal court with your takings claim? Oral argument in the Knick v. Township of Scott case [Miriam Seifter/SCOTUSBlog, Gideon Kanner, Robert Thomas/Inverse Condemnation first, second, third, fourth posts]
- “Stop trying to get workers out of their cars” [Robert Poole, Jr./Reason]
- “U.S. Supreme Court Refuses to Halt Teenagers’ Climate Lawsuit” [Greg Stohr/Bloomberg] “The European Court of Justice has recently ruled that ten private citizens, from Portugal, Germany, France, Italy, Romania, Kenya, Sweden and Fiji can sue the European Union for negligence in its inaction on climate change.” [Theodore Dalrymple, Law and Liberty]
- “Trump’s EPA is having a hard time in federal court” [Jonathan Adler]
- Auto fuel economy standards: “The indirect CAFE program costs the economy at least six times as much as a carbon tax that reduces emissions equivalently.” [Peter Van Doren and Randal O’Toole, Cato]
- Whether grounded in official discretion or legislation, cash exactions levied on land development should still need to meet constitutional standards [Ilya Shapiro and Reilly Stephens on Cato Institute certiorari amicus brief in Dabbs v. Anne Arundel County]
- A stumbling block for Boulder: “With Two High-Profile Losses, When Do Climate Plaintiffs Start Worrying About Sanctions?” [Daniel Fisher; John O’Brien (views of former Colorado AG Gale Norton and current Colorado AG Cynthia Coffman); Adam Morey, New York Post] Issue isn’t whether climate change should be addressed, but what the Constitution and prudence tell us about whose job that is [Donald Kochan, L.A. Times] And a Federalist Society podcast with Kochan on municipal climate lawsuits;
- “Contract Dispute Cracks the ‘Thin Green Line’ Activists Are Drawing to Stop U.S. Fossil Fuel Exports” [Greg Herbers, Washington Legal Foundation, earlier]
- Neigh-ligence: latest effort to get courts to create standing for non-human plaintiffs is suit on behalf of neglected horse [Karin Brulliard, Washington Post/SFGate, earlier on animal rights]
- EPA announces intention to make regulatory science more transparent by making scientific work on which it relies open to public. Pressure groups erupt with outrage [Adam J. White, City Journal]
- End of the road at last for Steven Donziger, impresario of Chevron/Ecuador litigation? [Joe Nocera, Bloomberg]
- Building expensive housing improves housing availability at every income level [Sonja Trauss, Market Urbanism Report]
- “Ms. Durst did what any law-abiding citizen would do: She demolished the structure and tossed the twigs, moss and shells into the woods…. The fairy house wasn’t up to code.” [Ellen Byron, WSJ, courtesy Regulatory Transparency Project]
- Last month’s judicial rejection of NYC climate suit came after plenty of foreshadowing [Daniel Fisher (“persuasive authorities” were two overturned court decisions); New York Daily News and New York Post editorials]
- Ban on smoking in public housing reflects truism that unless you own property, your home isn’t really your castle [Shane Ferro, Above the Law]
- Obama-era Waters of the U.S. regulations are a power grab asserting EPA control over farmers’ ditches, seasonal moist depressions, and watering holes; one federal court has now reinstated the rules, but the issue is headed to SCOTUS and Congress in any case ought to kill them [Jonathan Adler; Ariel Wittenberg, E&E News; earlier]
- “San Francisco Bans Straws, Cocktail Swords” [Christian Britschgi; more (funny memes proliferate)]
- Sharper distinction between legal treatment of “threatened” and “endangered” species would help species recovery efforts and line up with Congress’s intent [Jonathan Wood, PERC Reports]
- “It’s really interesting to me that the conversation around vegetarianism and the environment is so strongly centered on an assumption that every place in the world is on the limited land/surplus water plan.” [Sarah Taber Twitter thread]
- New podcast from Cato’s Libertarianism.org on eminent domain and civil forfeiture, with Tess Terrible and Trevor Burrus. More/background at Cato Daily Podcast;
- “OMG cellphone cancer coverup” piece in Guardian’s Observer “strewn with rudimentary errors and dubious inferences” [David Robert Grimes; David Gorski, Science-Based Medicine corrects piece by same authors, Mark Hertsgaard and Mark Dowie, that ran in The Nation]
- Oh, that pro bono: despite talk of donated time, trial lawyers stand to gain 20% of proceeds should Boulder climate suit reach payday [John O’Brien, Legal NewsLine, earlier]
“Judge John F. Keenan of United States District Court for the Southern District of New York wrote that climate change must be addressed by the executive branch and Congress, not by the courts. While climate change ‘is a fact of life,’ Judge Keenan wrote, ‘the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.'” Not only was Mayor De Blasio’s widely publicized suit pre-empted by the Clean Air Act, but demands for transnational change are the province of U.S. foreign policy rather than courts [John Schwartz, New York Times] Less than a month ago federal judge William Alsup threw out climate suits by San Francisco and Oakland. Suits of this sort, based on theories of public nuisance law, “have generally been considered long shots.”
I wish some people who ought to know better would stop trying to dress up this sort of legal action as somehow in the historical mainstream of Hayekian common law vindication of private rights. It isn’t, not by a long stretch. It’s an exercise in attempted legislation through the courts.
- California state agency in charge of Prop 65 enforcement seeks to effectively reverse judge’s recent ruling and exempt naturally occurring acrylamide levels in coffee from need for warning [Cal Biz Lit] Prop 65 listing mechanism requires listing of substances designated by a strictly private organization, spot the problem with that [WLF brief in Monsanto Co. v. Office of Environmental Health Hazard Assessment]
- Yes, those proposals to ban plastic straws are a test run for broader plastic prohibitions [Christian Britschgi, Honolulu Star-Advertiser] Impact on disabled users, for whom metal, bamboo, and paper substitutes often don’t work as well [Allison Shoemaker, The Takeout] Surprising facts about fishing nets [Adam Minter, Bloomberg, earlier]
- “A closely watched climate case is dismissed; Will the others survive?” [Daniel Fisher on dismissal of San Francisco, Oakland cases] Rhode Island files first state lawsuit, cheered by mass tort veteran Sen. Sheldon Whitehouse (D-R.I.) [Spencer Walrath/Energy in Depth, Mike Bastasch/Daily Caller]
- Meanwhile back in Colorado: Denver Post, Gale Norton, other voices criticize Boulder, other municipal climate suits [Rebecca Simons, Energy in Depth, earlier here and here]
- Waters of the United States: time to repeal and replace this unconstitutional rule [Jonathan Wood, The Hill, earlier on WOTUS]
- “What you’re talking about is law enforcement for hire”: at least nine state AG offices “are looking to hire privately funded lawyers to work on environmental litigation through a foundation founded by” nationally ambitious billionaire and former NYC mayor Michael Bloomberg [Mike Bastasch]
“A federal court in California dismissed climate change lawsuits by the cities of San Francisco and Oakland against five oil companies, saying the complaints required foreign and domestic policy decisions that were outside its purview.” [Reuters; opinion in Oakland v. BP] Judge William Alsup of the federal district court in San Francisco had gathered extensive evidence before granting the defendants’ motion to dismiss for failure to state a claim.
Andrew Grossman has a thread (courtesy ThreadReaderApp) quoting high points from the ruling, including the “breathtaking” scope of plaintiffs’ theory (“It would reach the sale of fossil fuels anywhere in the world”), the circumstance that all of us, as distinct from some defendant class only, have benefited from the use of energy, the suitability of the problem for a legislative or international solution rather than judicial invention of new law, and the flagship status of the case (The San Francisco and Oakland suits were the most high-profile so far, and Judge Alsup is well known and respected).
More: Tristan R. Brown, Real Clear Energy; Federalist Society written debate on climate change as mass tort, with Dan Lungren, Donald Kochan, Pat Parenteau, and Rick Faulk; earlier here, here, here, here, here, here, and generally]
“New York City’s attempt to hold five of the world’s biggest oil companies responsible for damage from global warming didn’t seem to impress a judge during oral arguments Wednesday to determine if a lawsuit can proceed.” Judge John F. Keenan grilled the city about its standing to sue, its own investments in the energy sector, and its attempt to dress up an already-lost challenge to emissions as a not-yet-tried challenge to sales of products resulting in emissions.
“Aren’t the plaintiffs using the product?” Keenan asked. “Does the city have clean hands?”
“Yes, the city uses fossil fuels,” [plaintiff’s attorney Matthew] Pava responded.
In a recent Cato Daily Podcast with Caleb Brown, Cato adjunct scholar Andrew Grossman of Baker & Hostetler discusses the “legally aggressive” new round of climate change litigation, in which municipalities in California and Colorado, as well as New York City, have sued energy producers and distributors seeking to recover damages over the release of carbon dioxide into the atmosphere.
As Grossman notes, the idea of suing over the role of carbon emissions in climate change has by this point been tried many times. The most obvious approach would be to sue large industrial emitters of carbon, which is what some state governments did in one of the most prominent cases, filed against electric utilities. In its 2011 AEP v. Connecticut decision, however, the Supreme Court ruled that such outputs were regulated comprehensively and exclusively at the federal level through enactments like the Clean Air Act, and were not subject to an additional level of state regulation through public nuisance claims. Suits on other theories, such as Comer v. Murphy Oilfrom the Fifth Circuit and the Kivalina case in the Northern District of California, have been launched “to enormous bombast and press attention and they have all bombed out…. Those cases were the low-hanging fruit. Those were the more obvious legal theories if you were going to try to bring this kind of case,” he says.
Now the question is whether litigants can accomplish an end run by instead attacking upstream, pre-emissions activity, specifically the extraction and distribution of fossil fuels destined to be burned. Ambitiously, some of the new suits attempt to apply state common law to activities occurring around the world – to the doings of worldwide corporations such as Royal Dutch-Shell, for example, and to oil production from places like the coast of Norway and its subsequent use by European motorists. Needless to say, many of these processes are comprehensively regulated by the laws of the European Union and its member countries. Doctrinally, then, the new efforts get into even deeper water (so to speak) than strictly domestic claims. From the podcast:
If a court in California is going to go around telling Norway what to do, well, gosh, Norway may not really like that. And what do you do in that instance? It’s not apparent to me how this works. How does the court figure out what Norway’s regulations are and what Norway is doing about this? Who’s going to tell them? I don’t know. What if Norway disagrees with whatever it is that the court decides needs to be done in this case? Does Norway complain to the court? Do they send an ambassador to file a brief or something? I don’t know. This has never happened before. And what if Norway decides that they don’t like whatever it is the court is doing and they’re going to impose, say, reciprocal trade tariffs, or something like that, against the United States on the basis of one of these rulings? Does the court hold them in contempt?
- “Critical habitat” where a species doesn’t live and can’t survive is subject of pending SCOTUS case [Ilya Shapiro and Meggan DeWitt on Cato brief in Weyerhaeuser v. U.S. Fish & Wildlife Service]
- “Lawsuits are a costly — and misguided — approach to fixing climate change” [Josiah Neeley and William Murray on Colorado municipal suits, earlier here, etc.] More about EarthRights International, group assisting that effort [Spencer Walrath, Energy In Depth]
- Unintentional take of migratory fowl: “Interior Department Axes Flighty Bird Regs” [Joshua Hardman, Economics 21]
- Swirling islands of plastics in ocean may have a composition different than you expect [David Mastio, USA Today]
- So mysterious when housing prices escalate: “Every New House In California Will Now Have To Have Solar Panels” [Jim Dalrymple II/BuzzFeed, Amel Ahmed/KQED]
- “The Ecuador Saga Continues: Steven Donziger now owes Chevron more than $800,000” [Michael Krauss, earlier]