The ancient common tort of public nuisance is one of the most highly visible issues in modern tort jurisprudence. Its growth is particularly notable in climate change and environmental litigation, where it seems to be the “tort of choice” for plaintiffs seeking breathtakingly broad relief from global warming and trans-border pollution. Read More »
Author: Richard O. Faulk
Richard O. Faulk is the Chair of the Litigation Department of Gardere Wynne Sewell LLP, which maintains offices in Dallas, Houston, and Austin, Texas, as well as in Mexico City. He also leads the firm’s Climate Change Task Force and the firm’s Environmental Practice Group.
Mr. Faulk concentrates his personal practice in complex environmental litigation, including class actions and "mass tort" cases with international impacts. He is a board-certified specialist in federal and state appellate practice, and has argued cases before numerous federal and state trial and appellate courts, including the U.S. Supreme Court. He is experienced and widely published on the complex problems raised by CERCLA litigation and the rights and remedies of persons dealing with contaminated properties. Read More »
Richard Faulk, Chair of the Litigation Section at Gardere and a frequent contributor to numerous publications and to nuisancelaw, spoke to judges from across the nation at the Third Annual Judicial Symposium hosted by Northwestern Law School. Here is his presentation. Read More »
Though California has so far escaped from the potentially corruptive influence of contingency-fee agreements between private lawyers and public prosecutors, other states have not been so fortunate.
The Wall Street Journal has published several editorials blasting the unseemly state practice of hiring outside lawyers to sue private companies on a contingency fee basis --and how the trial bar returns the favor with campaign donations to state office holders. The Journal revealed that Oklahoma's attorney general had entered into agreements with private firms to sue tobacco companies and later big-name poultry companies.
Oklahoma Governor Brad Henry turned down a bill that would have shed light on these deals. According to the Journal, Oklahoma's Private Attorney Retention Sunshine Act would have required state agents to use open, competitive bidding for any legal work of more than $5,000. On contracts worth $500,000 or more the governor would have to sign off. It would also have required contingency lawyers to submit a list of hours and expenses, payment for which could not exceed a mere $1,000 an hour. Read More »
Recently, the U.S. District Court for the Northern District of California offered a ruling in Native Village of Kivalina, Alaska v. ExxonMobil Corp., et al., that is in stark contrast to the recent "public nuisance" ruling by the Second Circuit Court of Appeals on utility emissions.
Contrary to the sweeping and unprecedented ruling of the 2nd Circuit in State of Connecticut v. American Electric Power Co. Inc., 05-5104-cv (2d Cir., Sept. 21, 2009), the Kivalina court wisely recognized that global climate change allegations cannot support federal question jurisdiction.
Rather than trivializing the suit as an 'ordinary tort case,' the District Court found that the matter could not be resolved without considering the truly global nature of the issue - and the lack of any ascertainable standards to determine its resolution. Unlike the Second Circuit, the court saw major distinctions between ordinary pollution cases and planet-wide climate claims, and was not willing to indulge its creativity to invent liability criteria on a planetary scale. Read More »
One would think that recent revelations concerning South Carolina Governor Mark Sanford’s personal, and very public, humiliation would encourage other elected officials to stick to the straight-and-narrow path of honesty, integrity and looking out for the Peoples’ business, rather than their own. Not so.
Last week The Wall Street Journal ran an op-ed stating that Attorney General Henry McMaster has entered into no-bid contingency fee arrangements to reward private attorneys for suing Eli Lilly and has . . . wait for it . . . received campaign contributions from these lawyers of more than $60,000. Put aside the fact that a 1991 state statute prohibits any person with a no-bid state contract from making a donation to a state official empowered to act on that contract, the issue remains—how does an elected official give to others that which he could not receive for himself? Read More »
The Second Circuit’s decision in Connecticut v. American Electric Power Company Inc., Docket Nos. 05-5104-cv, 05-5119-cv [link] is 139 pages long and could form the basis of an entire law school curriculum on all the issues it touches – standing, jurisdiction, the scope and nature of public nuisance law and so on. My fellow bloggers here have done admirable jobs in identifying major questions raised by the decision and yet have only touched the surface. For example, just one issue not yet addressed but raised in this suit goes to the Court’s holding that the private parties could sue as well, essentially because they were landowners. Perhaps anticipating the point that there are many other landowners in the United States, the Court found that these landowners had alleged the special harm needed to pursue a public nuisance claim because they are nonprofit land trusts “with legally recognized missions to preserve ecologically sensitive land areas, and they own land threatened with significant harm (as a result of global warming)” and have opened their land for public use, so they “share similar features with public entities.” Read More »