Eskimo Village Loses Global Warming Suit - FindLaw.com 

We have recently seen decisions from the Second Circuit and Fifth Circuit courts reversing district court dismissals of climate change suits.  Most observers believed that the once on the ropes Public Nuisance/Climate change actions were once again revived and that we would soon be seeing a tsunami of climate change cases filed in district courts.  Read More »

Environmental Law Update - Bracewell & Guiliani, LLP

On October 16, the U.S. Court of Appeals for the Fifth Circuit revived a climate change lawsuit against corporate defendants in the energy and chemical sectors. The plaintiffs allege that greenhouse gases emitted by the defendants' operations were responsible for the property damage caused by Hurricane Katrina.

The Fifth Circuit disagreed with the district court's finding that global warming was a issue best addressed by the legislative and executive branches of government. In reaching its conclusion the Court apparently ignored the "political question doctrine," established by the Supreme Court in Baker v. Carr, 369 U.S. 186 (1962), which holds that courts should defer to the legislative and executive branches in certain circumstances. In the analysis of this doctrine the court ignored some of the 5 elements laid out by the Baker court and held that only one element in the disjunctive rule applied. 

All of this comes on heels of the Second Circuit's reversal of a lower court's dismissal of a public nuisance suit alleging that emissions from a coal fired electric plant were partly responsible for global warming in Connecticut v. American Electric Power Co. Inc.   Read More »

 The Return of Public Nuisance - NuisanceLaw.com

Last Monday The United States Court of Appeals for the Second Circuit reversed the dismissal of a public nuisance claim filed by various public and private entities against operators of coal fired electric plants in Connecticut v. American Electric Power Co. Inc. In making the decision the court concluded that the claims did not involve "political questions" that were better suited for the legislature to address. 

Despite the fact that the case concerns international and national global warming issues, the court characterized the case as "ordinary tort case" with the action arising from emmissions from local plants. In addition, the court applied reduced standing requirements and ignored that fact there is statutory regulation already in place for power plants.  Read More »

A second wind for public nuisance law? - PointofLaw.com 

Walter Olson, a Senior Fellow at the Manhattan Institute Center for Legal Policy, poses the question of whether or not the advancement of North Carolina's public nuisance suit against the Tennessee Valley Authority (TVA) signals a second wind for state AGs pressing public nuisance claims in place of product liability claims.  As has been witnessed in Rhode Island and, more recently, Ohio, state AGs attempting to circumvent the standard remedy of product liability by pressing public nuisance claims have found themselves well outside the scope of the public nuisance legal theory.  Olson wonders whether or not North Carolina's claim will breathe new life into the public nuisance as a product liability remedy debate.   Read More »

Sherwin-Williams Files Complaint Over Stolen Documents - courthousenews.com

Jones Day, counsel for Sherwin Williams, has filed a complaint in Ohio's Cuyahoga County Common Pleas Court alleging that Motley Rice, counsel for Rhode Island in the infamous Public Nuisance suit, illegally obtained documents containing Sherwin William's sensitive and privileged information.   Read More »

State Court Docket Watch - The Federalist Society for Law and Public Policy Studies

The Federalist Society has published a special issue of the State Court Docket Watch, a semi annual examination of state court litigation. The focus of the most recent issue is Lead Paint Litigation; primarily the Public Nuisance lawsuits brought in Rhode Island and Ohio, as well as the pending lead paint litigation in California.  Read More »

The Mouse that Roars!  Rhode Island High Court Rejects Expansion of Public Nuisance - (PDF) Washington Legal Foundation

This is a must read for anyone, clerk, justice or lawyer defending or presiding over attempts to expand the definition of public nuisance law.  The Rhode Island Supreme Court justices got it right.

Regulation through Litigation - Point of Law.com

Walter Olson writing in Point of Law in 2005 shows us the seeds that were sown, which are the sources of The Wilderness and its encroachment on legal civilization.

The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort - Washington Law Blog

Authored June 13, 2006 by Victor E. Schwartz and Phil Goldberg, this article gives a detailed history of public nuisance law and how it is being misused today.  It cites several cases including lead paint, MTBE and others, why public nuisance tort theory was used instead of products liability theory, and why this is inappropriate, including the inability to show proximate cause. In discussing MTBE, the authors state:  "In implementing the program, the EPA set levels for when MTBE contamination is considered harmful and focused 'on the need to minimize leaks from underground storage tanks.' Thus, the plaintiff would have to establish that the defendant acted outside this regulatory framework in order to pursue a public nuisance action."  Read More »

California Supreme Court Agrees to Hear Contingent Fee Public Nuisance Issue - Mass Tort Defense Blog

Sean P. Wajert of Dechert LLP provides a background discussion of the contingency fee issue in light of the California Supreme Court recently granting review of County of Santa Clara v. Superior Court (Atlantic Richfield), No. S163681 (Cal. S.Ct.) and also following the recent Rhode Island Supreme Court public nuisance law decision, State of Rhode Island v. Lead Industries Association, Inc., No. 2004-63-M.P. (R.I. July 1, 2008).  Read More »