Public Nuisance

Only recently, the ancient tort of public nuisance was “down” and in the process of being “counted out” when its expansion was rejected by the highest courts of New Jersey, Rhode Island, Missouri and Ohio.1 Within the past year, however, it was remarkably resuscitated by federal courts that approved it as a vehicle for redressing climate change and interstate pollution.  Read More »

In a major disappointment for the plaintiffs’ bar, the 5th circuit court of appeals has granted a re hearing en banc in Comer v. Murphy Oil, et al.

The entire complement of the court’s judges granted rehearing to review an earlier decision by a three-judge panel that reversed the dismissal of Comer, a major climate change lawsuit arising from Hurricane Katrina. The court has not set a date for oral arguments.  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 »

When faced with the challenge of defending abusive public nuisance lawsuits, corporate defendants would be well advised to examine their insurance policies. In addition to providing coverage for any potential liability, such policies may also provide costs of defense coverage.

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Last August, my partner John Gray raised the question whether one state’s elected officials can force companies and governmental entities located in another state to comply with its enacted laws and regulations. He suggested that, if you thought they could not do so, you should follow North Carolina’s public nuisance case against the Tennessee Valley Authority (“TVA”) over cross-border pollution.  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 »

In an opinion piece discussing the growing cottage industry in questionable public nuisance litigation, Lisa Rickard of the U.S. Chamber Institute for Legal Reform writes this week about the financial incentive that the Motley Rice firm had, as outside contingent fee counsel, to pursue such public nuisance claims unsuccessfully in Rhode Island - at the expense of the people of that state. She notes, in part, that:  Read More »