“Woman catches her shoe in groove in pavement at Tewksbury, Mass. gas station; she falls, is injured. Woman: The station had a duty to warn me of the danger, perhaps by painting the grooves (which are mandated by state law to contain spills) brightly. First Circuit: There is no such duty. But here’s a Judge Selya vocab quiz for your trouble: pellucid, behoof, animadversions, and rescript.” [John Kenneth Ross, Short Circuit on Potvin v. Speedway LLC]
- Organized efforts mount to blockade, shut down, and ban oil and gas infrastructure [David Roberts/Vox; Kevon Paynter] My two cents on Baltimore’s ban on new or expanded crude oil terminals, which follows moves against fuel infrastructure in Oakland and Portland [Free State Notes] Massachusetts judge approves “necessity defense” raised by protesters who blocked work on pipeline [Erin Mundahl, Inside Sources]
- Related: calls to ban hydrocarbon (even gas) utility generation stir backlash among some Democrats [Amy Harder, Axios] And not illogically given the distributional effects [Ronald Bailey, Reason]
- “$18 Billion Prize,” new stage play about Chevron/Ecuador case by Phelim McAleer and Jonathan Leaf, ruffles some Bay Area feathers [Daniel Kennard, National Review]
- Questions about curious study of GMO safety [Dan Vergano, BuzzFeed]
- “Creative Regulators and Environmental Protection,” Federalist Society panel video with C. Boyden Gray, Adam White, Robert Glicksman, Nathan Richardson, Caroline Cecot;
- Europe optimizes its train system for passengers, while U.S. optimizes its for freight. Which is the greener choice? [Coyote]
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?
The litigation campaign had previously recruited several California cities and New York City, and now three local governments in Colorado, the City of Boulder, Boulder County, and San Miguel County, are joining in demanding recoupment of moneys spent because of climate change. I’m quoted in Michael Sandoval’s account in Western Wire:
Walter Olson, a Senior Fellow at the Cato Institute, told Western Wire that besides pushing for settlement, an additional objective is implementing new regulation via the courts, rather than legislation or administrative rulemaking….
The multi-state, multi-pronged approach is key, Olson said, given the differences between states on everything from recovery to discovery procedures.
“The strategy in these cases is typically to recruit as many plaintiffs as possible, with an emphasis on actions in different states. States have, e.g., different consumer laws to sue under that may allow different theories of recovery, or different procedures each of which may place the defendants at some particular kind of disadvantage,” Olson said….
“Typically the government plaintiffs are offered a deal of ‘no fee unless successful,’ just as in the ads on late-night TV,” Olson said….
Olson said that the approach in Colorado may be slightly different, given the reaction to the lawsuits filed in California and New York City that have been viewed simply as money-grabs.
“The first wave of these climate suits have gotten a reputation in the press as organized by law firms seeking contingency fees who intend to run the actions for maximum cash payout,” Olson said. “Involving EarthRights and a community like Boulder could be an effort to change this image by introducing more of an idealistic non-profit tone and maybe a suggestion that the goal isn’t just to squeeze money out in a settlement and then return to business as usual, which is basically what happened with the tobacco settlement,” he concluded.
I also mention that speculative litigation of this sort is made vastly easier by our lack of a loser-pays rule.
A very different view — and one with which, needless to say, I disagree — from the Niskanen Center, which is participating in the suits.
- Bay Area, L.A., and D.C. area should take an affordable housing lesson from cities that build: “Houston, Dallas, and NYC: America’s Great 3-Way Housing Supply Race.” [Scott Beyer]
- All things bright and beautiful/All creatures great and small/All things wise and wonderful/The Commerce Clause reaches ’em all [John-Michael Seibler, Heritage, on Supreme Court’s denial of certiorari in Tenth Circuit decision upholding as constitutional federal rules requiring owners to preserve Utah prairie dog habitat on private land; earlier on PETPO v. U.S. Fish & Wildlife Service here, here, and here] Photo: Wikimedia Commons;
- WSJ editorial takes dim view of Louisiana coastal erosion suit against oil firms, earlier here, here, here, here, here, and here;
- “You’re Not a Progressive If You’re Also a NIMBY” [Robert Gammon, East Bay Express] “Density Is How the Working Poor Outbid the Rich for Urban Land” [Nolan Gray, Market Urbanism] “The absence of gentrification causes displacement” [Michael Lewyn, same]
- “Let’s Make America a Mineral Superpower” [Stephen Moore and Ned Mamula, Bakersfield.com/Cato]
- Backing off from a bad law: Washington, D.C. considers ending tenant purchase rights for single-family homes [Carolyn Gallaher, Greater Greater Washington]
- Wearing two hats: mayor of Imperial Beach, Calif. suing oil companies is also with an environmentalist group [Ben Wolfgang, Washington Times] “Cross Examination Is Going To Be Brutal” given local officials’ earlier statements [Karen Kidd, Forbes, citing Richard Epstein]
- Municipalities’ suits ignore important goal of California law “that emissions should be reduced, not simply shifted out of state due to high costs and burdensome regulations” [Dorothy Rothrock (CMTA), Sacramento Bee]
- Washington Legal Foundation webinar on public nuisance suits with Richard Faulk of Davis Wright Tremaine LLP and Neil Merkl of Kelley Drye & Warren LLP;
- “Schwarzenegger to Sue Big Oil for ‘First Degree Murder’” [Edward Isaac-Dovere, Politico]
- “What is a non-mood-affiliated way to get up to speed on climate change issues?” [Tyler Cowen and commenters; brief Cowen explainer on mood affiliation]
- “Whether it is lawsuits against opioid manufacturers or lawsuits against oil companies, public policy should be crafted in the statehouse, not the courthouse.” [David Yates, Southeast Texas Record]
- “Lolita the killer whale has lived at Miami Seaquarium since 1970. Do the conditions of her confinement, including sharing her tank with dolphins that engage in inappropriate sexual behavior, amount to ‘harm’ and ‘harassment’ in violation of federal statute? The Eleventh Circuit says no.” [John Ross, Short Circuit, on PETA v. Miami Seaquarium]
- California suit about Prop 65 warnings on coffee grinds on [Sara Randazzo/WSJ, Pierre Lemieux/EconLog, earlier]
- NYC mayor De Blasio, who recently filed long-shot suit, says he hopes to “bring death knell to fossil fuel industry” [John Breslin, Legal NewsLine] “People don’t need to smoke cigarettes, but they have needed energy for many decades,” one of many reasons suing Big Oil is different from suing Big Tobacco [Amy Harder, Axios]
- Squirrel rescue saga: “I begged and pleaded for a few more weeks, but was essentially told I needed to release him even though it was the middle of winter.” [Christine Clarridge, Seattle Times]
- Aluminum smelter vs. orchards: a historic instance of nuisance litigation working well as a regulatory method? [Douglas Kysar, SSRN]
- “Privatizing Federal Grazing Lands” [Chris Edwards, Cato]
- Current Louisiana governor has brought back parishes’ coastal-erosion suits against oil companies [Erin Mundahl, Inside Sources]
- Roundup saga: EPA says glyphosate not likely to be carcinogenic to people [Tom Polansek, Reuters, earlier]
- “Can Land Uninhabitable by an Endangered Species Nonetheless Be ‘Critical Habitat’ Under the Endangered Species Act?” Supreme Court grants cert in Weyerhaeuser v. U.S. Fish and Wildlife Service [Jonathan Adler]
- “Oakland Would Pay 23.5% Of Recovery From Its Global Warming Lawsuit To Private Lawyers” [John O’Brien, Legal Newsline; more, John Burnett, Washington Examiner]
- Does this mean casually picking a feather up off the ground will no longer merit prison time? Department of Interior announces new interpretation of migratory bird law meant to bring sense to “incidental take” issue;
- For elephant conservation, sustainable use based on property rights might lead to better results than trade bans [Branden Jung, Wisconsin Law Review/SSRN]
— Virus X (@robertnlee) January 3, 2018
Until this week, Oregon and New Jersey were the only two states to ban self-serve gas stations. Oregon just ended its ban as to rural counties, despite warnings from defenders of the old law that ordinary motorists might not be up to the task of handling pumps without causing fiery infernos or spills. [Brian Manzullo, Detroit Free Press]
As for New Jersey’s ban, Paul Mulshine wrote a column three years ago exploring its unlovely origins. He explains the oft-remarked New Jersey paradox — the state beats its neighbors on gas price even though all pumps are full-service — by noting that the Garden State has had (until recently) a relatively low gas tax and is located amid refineries and import operations, helping keep transport costs down. More: R.J. Lehmann, 2015.