Posts Tagged ‘public nuisance’

Environment roundup

“Judge Throws Out New York Climate Lawsuit”

“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.

Climate change litigation roundup

  • 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]

September 23 roundup

Megan McArdle: “Lead paint verdict sets dangerous precedent”

The Bloomberg View columnist discusses the new ruling by a California state judge that companies that once made lead paint, and their successors, owe a billion dollars plus to California counties and cities over marketing of lead paint as long ago as the 1920s and earlier. I’m quoted:

As Walter Olson of the Cato Institute noted to me in an e-mail, “Many of the key business decisions being sued over took place closer to Abraham Lincoln’s time than to our own, and if the companies had gone to twenty leading lawyers of the day and asked, `could this ever lead to nuisance liability under such-and-such facts’ would have been told `of course not.'” Can you really sue a company for doing something that was well within the law? Or, as in one case, a company that bought a company that did something that was well within the law? As Olson points out, “when ConAgra bought Beatrice Foods, most business observers never even realized there was the tiny sliver of a paint company in there among the household food brands, but that one little sliver of successor liability could far exceed the then-value of all the rest.”

More from @Popehat on Twitter: “My wrongful death suit against Mongolia for Genghis Khan’s crimes against my ancestors moves forward!”

“Is Big Caffeine the Next Target?”

Tim Sandefur asks this only half-facetiously as he reviews mass torts. Of course, as a must-read comment letter to FASB (via the indispensable Beck/Herrmann) submitted by six pharmaceutical companies notes, “A mass tort occurs when the plaintiffs’ bar decides to invest in it.”

“Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation”

Those interested in the issue of the growing abuse of “public nuisance” as a cause of action can do little better than to read the law review article by Gardere Wynne Sewell LLP partners Richard O. Faulk and John S. Gray at 2007 Mich. St. L. Rev. 941, cited by the Rhode Island Supreme Court four times in its unanimous opinion rejecting public nuisance theory as a means to sue lead paint manufacturers (via Androvett).