A Second Circuit panel, reversing the district court judge, says a suit against utilities can go forward characterizing carbon dioxide as a nuisance. [American Lawyer, Point of Law first, second, third posts]
{ 11 comments }
Posts tagged as:
climate change
Religious discrimination is prohibited, the logic goes, and the views in the case at hand were intense enough to count as akin to religion. Critics are said to fear a “flood of litigation” on behalf of other workers whose strongly held beliefs bring them into conflict with co-workers or employers. [Guardian]
{ 2 comments }
It’s wonderfully circular, and not all that different in practice from the “advocacy” and “law reform” funding that has at various times been doled out by our own federal and state governments through legal services, community action and public health programs, tobacco settlement kitties, and so forth. [Iain Murray, CEI "Open Market"]
Waxman-Markey’s Easter eggs (earlier).
Apparently there are a lot of hidden surprises in this Waxman-Markey “cap and trade” energy/environment bill we’ll be hearing about in coming weeks [Washington Post via Virginia Postrel].
The Washington Times reported on Friday on what it says is a little-noticed provision in draft cap-and-trade legislation (PDF) authored by Reps. Henry Waxman (D-Calif.) and Edward Markey (D-Mass.): new authorization for “citizen suits” to challenge government inaction on climate change. The bill would confer such standing, according to the article, on anyone “who has suffered, or reasonably expects to suffer, a harm attributable, in whole or in part,” to such inaction. However — in an apparent concession made some time ago to Republican lawmakers — the article also says that total payouts by the government would be limited to the comparatively minor amount of $1.5 million per year. Attorneys’ fees payable to prevailing plaintiffs, however, will presumably be subject to no such limit. More: Carter Wood also discovers new litigation powers for state AGs tucked into the bill; Marlo Lewis, CEI “Open Market”; Deputy Headmistress.
{ 2 comments }
“The threat of global warming is so great that campaigners were justified in causing more than £35,000 worth of damage to a coal-fired power station, a jury decided yesterday. In a verdict that will have shocked ministers and energy companies the jury at Maidstone Crown Court cleared six Greenpeace activists of criminal damage.” (Michael McCarthy, Independent (U.K.), Sept. 11).
{ 6 comments }
The idea does seem to be in the air (Coyote, Aug. 5; Alex Lockwood, Jul. 31 but note Aug. 4 post backtracking somewhat). Lockwood writes from the U.K., which of course lacks our First Amendment. On the idea of staging show trials of energy executives for propagating incorrect opinion, see Point of Law, Jun. 23, as well as Kivalina suit coverage.
{ 2 comments }
Don’t expect the much-hyped Kivalina suit to bring down Big Energy, the columnist says, but it might just keep the lawyers at Hagens Berman in BMWs:
The Inupiat Eskimos are perfect, jury-worthy plaintiffs. They have occupied their tiny barrier reef, just a few feet above sea level, “since time immemorial,” according to the lawsuit. They are poor. They live in harmony with nature, according to the documentary. (Pay no attention to those all-terrain vehicles zipping around town, and the kid flashing the gang sign.) …Some judges may be liberal, but they’re not idiots. They know that utilities sold electricity to Americans because their customers wanted to jack up the AC. In fact, there isn’t a utility in America that hasn’t spent the past 20 years begging its customers to use less oil and gas. There is an inconvenient truth if I ever saw one.
Not to be missed (”Eskimos, whales, and luaus…Oh my!”, Boston Globe, May 24).
{ 1 comment }
Looks like we’ll be hearing a lot more about the “Kivalina” (Alaskan Inupiat village) climate-change suit:
Over time, the two trial lawyers [Stephen Susman of Texas and Steve Berman of Seattle, both familiar to longterm readers of this site] have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina — where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.
(Stephan Faris, “Conspiracy Theory”, The Atlantic, June). For the theory of legally wrongful participation in public debate (as one might call it), as it surfaced in the tobacco litigation, see, for example, this 2006 post.
More background on the suit at the Native American Rights Fund’s blog, here and here, and at attorney Matthew Pawa’s site. Carter Wood at NAM “Shop Floor” links to a report by the American Justice Partnership and Southeastern Legal Foundation (PDF) entitled, “The Most Dangerous Litigation in America: Kivalina“.
Yet more: Northwestern lawprof David Dana has a working paper at SSRN entitled “The Mismatch between Public Nuisance Law and Global Warming” (via Sheila Scheuerman/TortsProf). Abstract:
The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.
{ 3 comments }
- Polar bears on parade: “Lawsuits are not the best way to force the public into solving planet-size problems such as climate change.” [Christian Science Monitor editorial]
- Jury convicts private investigator Anthony Pellicano, trial of entertainment lawyer Terry Christiansen set for July [Variety; earlier]
- Knockoff sneakers differed from Adidas original in having two or four stripes instead of three, didn’t save Payless Shoes from getting hit with $304 million verdict [American Lawyer]
- Following up on our discussion of municipal tree liability: Michigan high court OKs homeowner class action over sewer line damage from city trees [AP/MLive]
- Attorney Franklin Azar, of Colorado TV-ad fame, says jury’s verdict ordering him to pay a former client $145,000 was really a “big victory” for him [ABA Journal]
- Annals of tolling-for-infancy: “Dog bite 10 years ago subject of civil suit” [MC Record]
- Feds indict Missouri woman for cruel MySpace hoax that drove victim to suicide: Orin Kerr finds legal grounds weak [@ Volokh]
- “I blame R. Kelly for Sept. 11″: some ways potential jurors managed to get off singer’s high-profile Chicago trial [Tribune; h/t reader A.K.]
- Update: “click fraud” class actions filed in Texarkana against online ad providers have all now settled [SE Texas Record; earlier]
- Judge orders dad to stay on top of his daughter’s education, then jails him for 180 days when she fails to get her general equivalency diploma [WCPO, Cincinnati; update, father released]
- Lawyers still soliciting for AOL volunteer class actions [Colossus of Rhodey; earlier]
{ 6 comments }
- John Ritter’s family has already received $14 million in settlements, seeking $67 million more in medical malpractice litigation for ER failure to diagnose rare heart condition. Dr. R.W. Donnell thinks they’re wrong. [LA Times; USA Today; Kevin MD; Turkewitz; Overlawyered Sep. 2004]
- Speaking of the celebrity bonus in litigation: as M.E. e-mailed me, “Cheek rides again”; Wesley Snipes acquitted of tax felonies, though convicted of misdemeanors, and still on the hook for $17 million in taxes plus penalties. [NY Times; earlier]
- California AG Jerry Brown continuing bogus carbon dioxide “public nuisance” lawsuit against automakers [Stirling & Sandefur @ Investor's Business Daily; earlier]
- Words-only criminal obscenity prosecution. [WSJ Law Blog (and farewell to Peter Lattman)]
- In the category of gambits we’re sympathetic to, but are unlikely to succeed: East Texas burger restaurant tries mandatory-arbitration-by-posted-window-notice [TortsProf]
- Mikal Watts puff piece [Corpus Christi Caller-Times]
A major rebuke for former California AG Bill Lockyer and his successor, Jerry Brown, as well: “A federal judge in San Francisco today threw out a lawsuit filed by the state Attorney General’s office against the six largest automakers in what had been billed as a novel attempt to hold the companies financially liable for global warming. … U.S. District Judge Martin Jenkins said it would be inappropriate for the court to wade into issues pertaining to interstate commerce and foreign policy – matters that should be left to the political branches of government.” The judge’s order can be found here (PDF). (Henry K. Lee, San Francisco Chronicle, Sept. 18)(cross-posted from Point of Law).
{ 1 comment }
Our thanks to Steve Hantler of Chrysler for some provocative posts which stirred considerable reader interest. His post on global warming litigation drew links from (among others) Prof. Bainbridge and New York magazine’s “Intelligencer”.
Among the nightmare scenarios of global warming, there’s one only now coming into view – and it’s definitely manmade: As predictable as the rising seas, we can expect a flood of class-action lawsuits trying to cash in on the issue.
Climate change promises to be “a lucrative new field” for the tort bar reports the Newark Star-Ledger. A Rutgers law professor predicts that global warming will make for “one of the biggest legal practices in the next 20 years.” (The Star-Ledger, 7/8/07)
The opinion is shared by the president of the World Resources Institute: “Companies that generate significant carbon emissions,” he warns, “face the threat of lawsuits similar to those common in the tobacco, pharmaceutical and asbestos industries.” (The Toronto Star, 4/29/07)
And if you thought asbestos and tobacco litigation were profitable, try to imagine all the “mass tort” cases that global warming will inspire. Energy companies, coal mines, any firm at all that generates carbon dioxide – these industries and many more can expect to find themselves accused of causing climate change.
Some law firms already have “climate-change groups” studying the possibilities. Another hint of things to come was a class action suit was filed on behalf of Mississippi residents against oil and coal companies after Hurricane Katrina – arguing that company emissions caused the climate change that caused the hurricane. (Star-Ledger, 7/8/07).
In Alaska, the Inuits claim that their island is sinking because of global warming. The aggrieved islanders haven’t decided who to sue yet – but they’ve got a Houston trial lawyer working on it. (Star-Ledger, 7/8/07)
All of which proves nothing at all about the actual causes or dangers of global warming. It’s just more evidence of a climate of greed and opportunism in the trial bar. And that’s one climate that never changes.
{ 14 comments }
- In the Supreme Court November 29: Watters v. Wachovia. Also an AEI panel November 28, broadcast on C-SPAN1, 2pm to 4pm Eastern. [Point of Law; AEI; Zywicki @ Volokh]
- Also in the Supreme Court November 29: Massachusetts v. EPA global warming regulation case. Previously an AEI panel November 21. [Adler @ Volokh; AEI; C-SPAN (Real Media)]
- Legal cliche: If the facts are against you, pound the law; if the law is against you, pound the facts; if both are against you, pound the table. Table-pounding class of Gerry Spence protegee offers lessons in emotionally creating jury sympathy worth millions. [LATimes]
- What judicial activism?, Part 7356: Indiana state court judge holds “Protection of Lawful Commerce in Arms Act” unconstitutional, complains gun industry supported the law. [Indianapolis Star via Bashman; Indiana Law Blog]
- Entertaining doctor victory in medmal case. [Musings of a Dinosaur via Kevin MD]
- Dahlia Lithwick gets something right; if only it was on an issue more important than a suit advertisement. [Slate]
- Leftover from Thanksgiving: lawyers acting like turkeys. [Ambrogi]
- Ninth Circuit grants potential standing to monkeys over Kozinski dissent. Earlier: Oct. 21, 2004. [Bashman roundup of links]
- Gloria Allred joins the Borat pile-on. [LATimes]
- Speaking of, here’s the future case of Allred v. Kramer. More Allred: Oct. 16. [Evanier]
- Speaking of Allred nostalgia, and of primates, whatever happened to chimpanzee victim St. James Davis? (Mar. 17, 2005; Mar. 8, 2005) [Inside Edition; "The Original Musings"; CNN Pipeline ($)]
- More Allred nostalgia: is Veronica Mars‘ Francis Capra the next Hunter Tylo? Discuss. [Prettier than Napoleon]
- Bill Moyers calls his lawyers. [Adler @ Volokh]
- Jim Copland: 9/11 suits against New York City over emergency recovery work “simply wrong.” [New York Post]
- Did the PSLRA help shareholders? [Point of Law]
- 32-year-old Oregon grocery store employee sues, claiming that Green Day stole his never-recorded high-school writings. [Above the Law]
- Does one assume the risk of a broken nose if one agrees to a sparring match at a karate school? [TortsProf]
- “At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances.” [New York Times via Point of Law]
- More on global warming lawsuits. [Point of Law]
- Dahlia Lithwick, wrong again when bashing conservatives? Quelle surprise! [Ponnuru @ Bench Memos; see also Kaus] Earlier: POL Oct. 6 and links therein. Best commentary on New Jersey gay marriage decision is at Volokh.
- Michael Dimino asks for examples of frivolous lawsuits. What’s the over-under until it turns into a debate over the McDonald’s coffee case? [Prawfsblawg]
- Unintended consequences of campaign finance reform. [Zywicki @ Volokh; Washington Times]
- Who’s your least favorite Supreme Court justice? [Above the Law]
- More on Borat and the law. [Slate] Earlier on OL: Dec. 9 and links therein.
- “Thrilled Juror Feels Like Murder Trial Being Put On Just For Her.” [Onion]
- A revealing post by the Milberg Weiss Fellow at DMI: companies make “too much” profit. I respond: “Again, if you really think the problem is that insurance companies charge ‘too much’ and make ‘too much’ money, then the profitable solution is to take advantage of this opportunity and open a competing insurance company that charges less instead of whining about it. (Or, you could use a fraction of the profits to hire a dozen bloggers and thus solve the problem at the same time keeping the whining constant.)” [Dugger]
{ 1 comment }
