Climate Change

The ancient common tort of public nuisance is all the rage these days. Its resurgence 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. Traditionally limited to local concerns, the tort now aspires to planetary dimensions. Its expanding scope has now attracted the attention of the United States Supreme Court in American Electric Power v. Connecticut, which will be argued this Spring.  Read More »

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 »

This “guidance” document impacts all businesses subject to SEC jurisdiction. It is sweeping, expansive and, unfortunately, fails to set realistic limits on the scope of its requirements. As a result, all regulated entities, and their officers and directors are placed in difficult circumstances. They now have a heavy burden of compliance and disclosure, and they face a risk of SEC enforcement, as well as civil and criminal liability if the disclosures prove inadequate or misleading.  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 »