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 »
This site contains information about the interplay between public nuisance theories and climate change litigation. (See, Global Warming and Public Nuisance Part I and Part II). A new development in that area is the Second Circuit's 139-page opinion in State of Connecticut v. American Electric Power Co. Inc., 05-5104-cv (2d Cir., Sept. 21, 2009). In that case, the Federal Court of Appeals held state governments (in this case, Connecticut, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, and New York) can sue utilities under federal common law theories of public nuisance for contributing to global warming. This ruling reversed the district court's decision that such claims would interfere with the responsibilities of the political branches. Read More »
Climate change lawsuits have acquired a new and complex vitality as a result of a Monday's decision from the Second Circuit Court of Appeals. The court reversed the dismissal of public nuisance claims filed by various states, municipalities and private entities against operators of coal-fired power plants. State of Connecticut v. American Electric Power Co. Read More »
Another contingent fee case is working its way through the California appellate courts, Priceline.com Inc. v. City of Anaheim, No. G041338 (Cal. Ct. App. Feb. 27, 2009). The City of Anaheim hired private contingent fee counsel to enforce a transient occupancy tax against online travel companies (e.g., Priceline, Travelocity, Expedia, Hotels.com.) Anaheim claims these internet services are proprietors or managing agents of hotels and are therefore subject to the tax. The superior court allowed contingent fee counsel to proceed in the name of the City on the ground that the California Supreme Court’s prohibition against contingent fee counsel in People ex rel. Clancy v. Superior Court, 39 Cal. 3d 740 (1985) should apply to bar government hiring of outside contingency counsel only in the prosecution of eminent domain and nuisance abatement actions.
On June 15, 2009, Richard O. Faulk and John S. Gray of Gardere Wynn Sewell, LLP, recieved the coveted Burton Award for Legal Achievement for 2009 in the field of Legal Writing. The award is a result of Faulk and Gray's influential law review article "Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation," 2007 Mich. St L. Rev. 941 (2008). This article was cited by the Rhode Island Supreme Court in support of its groundbreaking decision unanimously rejecting the attempt to apply public nuisance law to former lead paint and lead pigment manufacturers. Faulk and Gray are frequent contributers to a number of online publications including NuisanceLaw.com. Their work is influential throughout the legal community and was certainly influential in turning back the misuse of nuisance law in Rhode Island. Read More »
Federal Judge Sara Lioi used 36 pages to painstakingly and systematically dismiss the city’s 16-month-old lawsuit against 21 investment banks in her decision in City of Cleveland v. Ameriquest Mortgage, Inc. et al., No. 1:08 cv 139 (N. D. Ohio, May 15, 2009)
(read the opinion here). The City of Cleveland’s (the “City”) lawsuit claimed that these banks’ subprime lending practices created a public nuisance under Ohio law that was scarring neighborhoods and draining the City’s tax base. The complaint alleged that the banks (which had not originated the mortgages) facilitated the making of loans to subprime borrowers in Cleveland who could not afford the debt. After the borrowers defaulted, the lenders foreclosed. The City sought to hold the banks liable for its burdens and costs in maintaining the foreclosed properties.
Normally, when judges grant dispositive motions, they do so narrowly, focusing on what they believe is the strongest reason that reaches the desired result and ignoring all other arguments. This judge, however, chose to opine on every reason available to dismiss the City’s case, any of which, standing alone, would have sufficed. Clearly, the judge does not want to revisit this case. Ultimately the Court granted the Defendants’ motions to dismiss on four grounds: Read More »