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 »
A reader of my last two entries describing articles on nuisance suits and global warming has suggested that one of the articles does not sufficiently respect the dangers of global warming on the merits of existing scientific evidence. On one basic level, the response to this suggestion is easy: whatever one thinks about the dangers of global warming, the point of my entries was to note that the judicial branch is not the appropriate forum to address the issue, as the case law to date has held. On another level, however, the suggestion is useful because it highlights one reason why these court cases nevertheless keep getting filed: because people frustrated with the responses from the governmental branches that are appropriate and equipped to address broad policy issues, i.e. Congress and the Executive Branch, start looking elsewhere. The more critical someone thinks a policy problem is, the more likely they are to resort to any avenue for help, including the courts. Read More »
Superficially, tort law and climate change seem perfectly matched. Current cases seek to strike a "balance" reminiscent of earlier product liability cases, claiming that, as between the "victims" of climate change and the major emitters of greenhouse gases, the emission sources should bear the costs of climate change. Allegedly, the sources are in a better position to absorb such costs and, unless liability is assessed, there is no incentive for the sources to discontinue their harmful emissions. Read More »
This week, the Missouri Lawyers Weekly [subscription required] reports on a proposal to require the attorney general to seek bids when hiring outside counsel, which could have a significant impact on government use of private firms to prosecute public nuisance cases and other actions on behalf of the general public. Read More »
My last blog entry summarized a recent law review article about climate change nuisance suits. The article's point of view rejected litigation as the appropriate mechanism to address public policy concerns and to dispute policy decisions by the other branches of government. Language from a professor's summary of his recent article on the same subject, favoring such suits, confirms that not only the effect, but the goal, of such suits is to challenge the policy decisions of the other branches. Read More »
The latest edition of Ecology Law Quarterly (ELQ) has a short but useful discussion of public nuisance global warming suits: "Global Warming Tort Litigation: The Real 'Public Nuisance'."
The article, written by two of the defense lawyers in the California nuisance suit against automakers (which the district court dismissed, and is now pending before the Ninth Circuit), summarizes the five nuisance cases filed to date, then discusses why the public nuisance litigation model doesn't fit. Read More »