Posts Tagged ‘climate change’

“That huge opioid verdict? Watch out — the energy industry is next”

Can the lawful sale of products be retrospectively declared a “public nuisance” and tagged with enormous damages, based on theories that the products caused harm after being used by third parties not in court? Before such theories succeeded in an Oklahoma courtroom against Johnson & Johnson over its promotion of opioid painkillers, they had been unsuccessfully deployed against the makers of guns used in crime, while another set of recent lawsuits attempts to deploy them in hopes of making the sellers of fossil fuels pay for the harms of climate change. Scott Keller, Houston Chronicle/Texans for Lawsuit Reform:

Public nuisance claims traditionally have been limited to conduct interfering with truly public rights. For example, courts for decades have recognized public nuisance claims brought by governments to remove impediments from their public highways or waterways. Even then, courts generally did not recognize such claims where a legislature or administrative agency had already regulated an industry. After all, if the political branches of government regulated an industry, then they were telling courts what did and did not qualify as an unlawful “nuisance.”

But a series of recent lawsuits wants courts to ignore these limits on public nuisance claims and obliterate entire industries. These lawsuits seek to massively expand what counts as a public right, and they want courts to destroy companies that are already complying with existing regulations.

Similarly: “’A loss on the public nuisance theory in the Oklahoma opioid public nuisance theory would have been a potentially devastating state court precedent for the climate change public nuisance cases now pending in state courts,’ said Richard Lazarus, a professor of environmental law at Harvard.” [Dino Grandoni, Washington Post]

Which raises a question: when trial lawyers were pitching Oklahoma politicos on the large sums to be gained by pursuing strained public nuisance theories against opioid makers, do you think they mentioned that the theories if embraced might work to shut down the locally popular oil and gas business?

Sanders: I’d prosecute oil and gas executives over climate change

Vermont senator and presidential Bernie Sanders cites no criminal law that the executives violated, but he wouldn’t be the first champion of collectivism for whom the conviction was settled on first and the law found afterward. More: William Allison, Energy in Depth (in which I take issue with retroactive application of criminal law, and notions of “conspiracy” that do not make clear which underlying laws were involved).

Liability roundup

  • “TriMet faulted Laing for failing to heed warning signs … and earbuds playing loud music. Laing’s attorneys argued it couldn’t be determined what volume the music was playing at at the time of impact.” [Aimee Green, Oregonian; $15 million jury verdict for woman who dashed in front of train reduced to $682,800]
  • “When Are Athletes Liable for Injuries They Cause?” [Eugene Volokh on Nixon v. Clay, Utah Supreme Court]
  • Former Alabama Sen. Luther Strange has written a law review article on local government abuse of public nuisance law in industrywide litigation [Stephen McConnell, Drug and Device Law] “California’s disturbing lead paint ruling is going interstate. Magistrate cites it in opioid MDL to support tribal nuisance claims under Montana law” [Daniel D. Fisher on Blackfeet Tribe v. Amerisource] Federal judge should have said no to Rhode Island climate change/public nuisance suit [Michael Krauss, Forbes]
  • “Will New York law change veterinary malpractice?” [Christopher J. Allen, Veterinary News]
  • Supreme Court’s 5-4 ruling on class action counterclaim removal in Home Depot U.S.A. v. Jackson leaves Congress to fix what Judge Paul Niemeyer called a loophole in the Class Action Fairness Act [Diane Flannery, Trent Taylor & Drew Gann, McGuireWoods, Federalist Society teleforum with Ted Frank]
  • In Missouri, logjam for liability reform breaks at last as Gov. Mike Parson signs four pieces of legislation into law [Daily Star Journal (Warrensburg, Mo.); Beck on forum-shopping measure]

Energy and climate roundup

Now you’re (not) cooking with gas

A New York utility says the politically arranged blockage of a pipeline project may mean an end to new gas hookups for residential and commercial customers [Bernadette Hogan and Ben Feuerherd, New York Post]

A demand for “no new fossil fuel infrastructure” seems to be rapidly emerging from the green wing of world politics (Seattle, IEA, Vermont, Maryland, New York, earlier), making clear that its objection is not to a particular pipeline or fracking project or oilfield development or export terminal but to any and all of them, period.

I wonder whether the demand, if taken seriously, would also entail disallowing new gasoline stations.

More/related: strangling the New York power grid [Robert Bryce, Crain’s New York Business]

Environment roundup

  • “Whaling jobs were well-paying and glamorous by Soviet standards.” The story behind “arguably one of the greatest environmental crimes of the 20th century.” [Charles Homans, Pacific Standard]
  • Laying groundwork for high-stakes lawsuits against agriculture and livestock industries over CO2 emissions [Daniel Walters, SSRN via Twitter]
  • Laws banning plastic straws sometimes forget interests of disabled [Palo Alto Daily Post]
  • Oregon ban on gold placer stream mining, California law giving state first refusal right in federal land sales are two places high court might want to clarify boundary of federal and state land authority [Jonathan Wood, Federalist Society]
  • “The Troubled History of Cancer Risk Assessment: The Linear-No-Threshold paradigm, which asserts there are no safe exposure levels, is the product of flawed and corrupted science.” [Edward J. Calabrese, Cato Regulation magazine]
  • Why the vultures of Spain tend to avoid crossing over into Portugal [Bruno Martin thread on Twitter]

Climate change and energy roundup

Virginia lawmakers say no to Bloomberg embeds in AG’s office

I wrote in October about “a low-profile program in which a nonprofit backed by former New York City Mayor Michael Bloomberg places lawyers in state attorney generals’ offices, paying their keep, on the condition that they pursue environmental causes.” Now the Virginia legislature has approved a provision apparently aimed at heading off the practice in that state, the relevant provision reading: “The sole source of compensation paid to employees of the Office of the Attorney General for performing legal services on behalf of the Commonwealth shall be from the appropriations provided under this act.” Chris Horner of the Competitive Enterprise Institute has campaigned against the practice. [Todd Shepherd, Free Beacon; Charmaine Little, Legal NewsLine]

Environment roundup

  • The high cost of feel-good laws: why bans on disposable plastic grocery bags are bad for the environment [Greg Rosalsky, NPR “Planet Money”] Not a good move for public health either [Hans Bader on New York’s second-in-the-nation statewide ban, following California] Enjoy your tepid pad thai: Maryland lawmakers move to ban polystyrene (Styrofoam) cups and containers for ready-to-go food [Michelle Santiago Cortés, Refinery 21]
  • A future President who declared a national emergency over climate change might unlock some far-reaching powers [Jackie Flynn Mogenson, Mother Jones]
  • “Waking the Litigation Monster: The Misuse of Public Nuisance,” 48-page report on attempts to legislate by means of novel public nuisance suits [Joshua Payne and Jess Nix, U.S. Chamber Institute for Legal Reform]
  • Dim and dimmer: the Washington Post “argues that the policy of imposing energy efficiency standards on lightbulbs ‘has no downside.'” [Peter Van Doren, Cato; earlier] “Appliance Standards Are Expensive, And Regressive Too” [Susan Dudley, Forbes, earlier here, here, etc.]
  • Supreme Court “should clarify that courts should consider a property’s prospective economic value when evaluating the just compensation due from regulatory takings” [Ilya Shapiro and Nathan Harvey on Cato amicus in Love Field terminal gate case]
  • The “most expensive and least effective environmental law” of all: ideas for fixing NEPA, the National Environmental Policy Act of 1970, which mandates environmental impact statements [Mark Rutzick, Federalist Society]