Richard Faulk

Public Nuisance at the Crossroads: Policing the Intersection Between Statutory Primacy and Common Law

Richard O. Faulk et al. — Mon, 13 Feb 2012 09:29:35 PST

Public nuisance is at the “crossroads” in California. The California lead paint litigation may be the end – or a new beginning – of mass tort proceedings against product manufacturers based upon public nuisance, as opposed to traditional strict product liability. The controversy lies squarely at the intersection of statutory and common law – an interchange that has grown increasingly more complex since California’s laws were codified in 1850, and since public nuisance was codified as a tort in 1872. The dispute is framed by this singular legal history and the complex jurisprudence the state has developed to simultaneously empower and restrain the creativity of common law courts in such cases. As a result, those historical perspectives and contexts must be appreciated and studied before honest prognostications can be made.

Defendants Win "Round One" of Climate Change Litigation in United States Supreme Court

Richard O. Faulk et al. — Mon, 29 Aug 2011 10:28:45 PDT

In American Electric Power Co. v. Connecticut (“AEP”), the United States Supreme Court held that federal common law public nuisance claims seeking injunctive relief against emitters of greenhouse gases (“GHG”) were displaced by the Clean Air Act (“CAA”) and EPA’s regulatory implementation of the Act’s provisions. In hindsight, this holding seems an inevitable outgrowth of Massachusetts v. EPA, 549 U.S. 497 (2007), which held that GHGs are pollutants subject to CAA regulation. Building on that precedent in a unanimous 8-0 opinion, the AEP Court gave the defendant utility companies a clear-cut victory by precluding judicial direct regulation of GHG through tort litigation. Despite the Supreme Court’s mandate, it is premature to declare victory over all climate change litigation based on common law public nuisance. The high court’s ruling was conspicuously narrow – and it left many important issues unresolved.

A Political Question: Public Nuisance, Climate Change and the Courts

Richard O. Faulk et al. — Tue, 22 Feb 2011 11:01:33 PST

When it comes to climate change regulation, one of the great discussions of our day is whether the political branches of government or the judiciary should lead the way. Is it appropriate or wise to use the crucible of the courtroom to forge standards regarding what emission levels are, and are not, acceptable? In other words, is the use of tort litigation in this context a legitimate judicial exercise, or does the judiciary overstep its bounds by reaching impermissibly into the political sphere?

Although the poet’s imagination may dream of leaping to seize an otherwise inaccessible prize, wise jurists know that the common law progresses in a measured series of carefully considered steps — each firmly grounded on traditional principles. Departing from that path, as climate plaintiffs suggest, to blaze trails through uncharted territory is an adventure best entrusted to politicians.

Uncommon Law: Ruminations on Public Nuisance

Richard O. Faulk — Fri, 28 Jan 2011 08:12:33 PST

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. Traditionally limited to local concerns, the tort now aspires to global dimensions, and its expanding scope has attracted review by the United States Supreme Court. If its advocates succeed, the “monster that will devour in one gulp the entire law of torts” may be afforded a prime seat at the banquet.

The Boundaries of Public Nuisance

Richard O. Faulk et al. — Fri, 24 Sep 2010 09:33:17 PDT

Over the past 20 years, government entities have sought to use the vagueness of generic public nuisance statutes to address complex public health issues, including tobacco use, gun violence, childhood lead poisoning, global warming and the fallout from the subprime mortgage meltdown. Because the tort of public nuisance is so amorphous, many of these entities have sought to is so amorphous, many of these entities have sought to blam industry for societal problems even when the actual harm is often caused by third and fourth parties who misuse or abuse industry's products.

Some sympathetic judges have issued abatement orders that go far beyond what is otherwise required by statutory law Consequently a number of important cases have been working their way through the judicial system, requiring appellate courts to identify and clarify the boundaries that define the circumstances under which a public nuisance exists.

Practical Guide to Environmental Law and Regulatory Compliance in Texas

Richard Faulk et al. — Mon, 30 Aug 2010 12:27:39 PDT

History teaches us that the natural development of our land and resources has been a contentious undertaking. Until recently, the issues that today make up the corpus of “environmental law” were not to be found in environmental cases, legislative journals or in environmental law treatises. Instead, they were found under the rubrics of property, constitutional law, contract and the common law.

Today, environmental law consists of a complex and interlocking body of treaties, conventions, statutes, regulations, and common law that attempt to work together in unison to regulate how we (individuals, governmental entities and businesses) interact with the rest of the biophysical or natural environment.

This primer can barely scratch the surface of this massive, ever-growing corpus of law. Therefore, rather than attempt a comprehensive synopsis of the substance of environmental law, it serves more as our guided tour to give you a sense of the layout and architecture of the law and to provide you with some details.

Crude Defenses? Liability Limits for Offshore Drilling Accidents and Oil Spills

Richard Faulk — Tue, 25 May 2010 15:25:57 PDT

All those who participate in realizing the benefits of exploration – including those who use the resulting products and depend on their safe handling to avoid harm – are subject to their dangers. When the risks are enormous, and when society’s demands are extraordinary, the situation is ripe for political compromise. The products of that compromise may not be popular at this time of crisis, but that does not lessen their importance as anchors of reason during difficult times.

The Limitation Act and the OPA, as well as the procedures under Supplemental Rule F, form a foundation that enables the construction of a meritorious process that facilitates compensation and remediation while avoiding consumptive litigation. Leaving their safe harbor during this storm risks even greater uncertainties and complications.

Stretching the Boom? Limiting Liability for Offshore Drilling Disasters

Richard Faulk — Wed, 19 May 2010 08:29:06 PDT

Offshore drilling is a tremendously complicated and potentially lucrative process. Unfortunately, it is also dangerous. Harvesters of fossil fuels face massive risks, not only to their lives and properties, but also to our environment and the livelihoods of all those who depend upon it. On balance, our “modern” sense of justice might insist that those who realize wealth should bear the risks that their exploration and production poses to others. But when a product, like petroleum, is inextricably woven into our national fabric, legislators sometimes reach surprising compromises.

So, it seems, the owner of the Deepwater Horizon will argue in a Texas court as it seeks to limit its liability for one of the 21st century’s greatest environmental catastrophes – by relying on the “Shipowners’ Limitation of Liability Act of 1851” – an antiquated federal law that Transocean hopes may limit its potential liability for personal injuries and deaths associated with the disaster. Laypersons may have reacted with alarm, anger and disbelief at Transocean’s suit – but from a lawyer’s perspective, the initiative deserves some study. As we will see below, such studies even suggest solutions under other laws, such as the Oil Pollution Act, that may dispel the thick “fog of litigation” that threatens to engulf the Deepwater Horizon incident

Hannibal Eclipsed? Envelopment by Public Nuisance

Richard Faulk — Thu, 15 Apr 2010 12:40:11 PDT

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. 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. Without the constraints of geography, public nuisance now “spans the globe” in an enveloping maneuver that threatens to reduce Hannibal’s legendary victory at Cannae to a mere neighborhood brawl. Unless the tort’s scope is narrowed by reviewing courts, its pincer movement may encircle industries and apply pressures that can only be relieved by congressional intervention or international agreements. Public nuisance, which is one of the eldest creatures of the common law, may yet mature into a “monster that will devour in one gulp the entire law of torts.”

Uncommon Law: Ruminations on Public Nuisance

Richard Faulk — Thu, 15 Apr 2010 12:32:43 PDT

Faced with allegations of planetary liability, wise jurists may decide that courts lack the resources and tools to comprehensively investigate, thoroughly evaluate, and fairly resolve public nuisance claims based upon global climate change. After considering their unique role in our partitioned system of government, judges may decide that complex environmental bureaucracies can only be reliably developed and justly administered outside their limited realm. They may conclude that judicial intrusion into such matters usurps the legislature’s and the executive’s prerogatives, especially when they are urged to base sweeping liability determinations on narrow “case by case” standards limited by a record generated solely by litigants, and by budgets constrained by judicial appropriations. Under such circumstances, the limits of judicial competency suggest that forbearance, rather than adventure, may be the most “principled response.”

Originally presented at the Judicial Symposium on the Expansion of Public Nuisance - Northwestern University School of Law (April 27, 2010).

The Winter of Our Discontent: The Impact of Copenhagen's Failure

Richard Faulk — Tue, 23 Mar 2010 09:00:57 PDT

Far from treating climate change as a “universal” problem that transcends national boundaries, the Copenhagen conference devolved into a frustrating exercise in nationalism, where individual nations, or groups of nations, tried to satisfy their particular needs, as opposed to redressing global climate problems. Now that Copenhagen’s uproar has faded, it is appropriate to evaluate the consequences of the conference’s failure for American industry.

The Theater of Climate Change

Richard Faulk — Thu, 18 Mar 2010 07:48:45 PDT

In a season of failure the United Nations’ climate change initiatives have suffered yet another serious blow. On Feb. 18 the U.N.’s top climate change official, Yvo de Boer, announced that he would resign his post before treaty negotiations resumed later this year. The announcement climaxed a series of developments that demonstrated that the climate change movement is still in “free fall” since the debacle in Copenhagen last December. Unless the movement can somehow find a diplomatic parachute on the way down, a hard and perhaps fatal landing seems inevitable.

Determining Trial Type in Complex Toxic Tort and Environmental Cases

Richard Faulk — Thu, 28 Jan 2010 12:46:10 PST

Generally, there are four trial options available for dealing with complex multi-party cases, although they can be blended or combined in a number of ways. They include: a conventional plenary trial for all plaintiffs and all defendants on all issues; one or more separate trials on issues, such as limitations or causation; "pilot" or "bellwether" trials for selected plaintiffs against all defendants on all issues; and class actions where the claims of class representatives are tried in a plenary fashion. This article examines these options and their relative benefits and disadvantages.

MTBE: Can The Controversy Be Contained?

Richard Faulk — Thu, 28 Jan 2010 12:34:54 PST

Controversy concerning the gasoline additive MTBE may mark the beginning of yet another mass tort explosion as incresing numbers of toxic tort and environmental cases are filed alleging MTBE contamination. This article provides background information on the emerging issues.

Knowing Just Enough To Be Dangerous: A Primer for Complex Toxic Tort and Environmental Cases

Richard Faulk — Thu, 28 Jan 2010 12:24:51 PST

"Complexity" is a hallmark of toxic tort and environmental litigation. To be sure, these cases present complex factual, medical, and scientific issues. The extent of the "complexity," however, depends largely upon the trial lawyer's ability to recognize the issues that actually require extensive attention. This article deals with a number of practical problems facing lawyers in complex toxic tort and environmental cases.

COPENHAGEN’S DISAPPOINTING DÉNOUEMENT: ANATOMY OF A FAILED CONVOCATION

Richard Faulk — Sat, 26 Dec 2009 09:19:33 PST

The Copenhagen Climate Change Conference is over. For two weeks, the United Nations and its member nations waited expectantly for “change” – waited, cajoled, argued, accused, threatened, and ultimately, disappointed everyone involved as they struggled on the “World Stage” of Copenhagen’s Bella Center. Tens of thousands watched inside and outside the Center while the convocation became ever more divisive and quarrelsome as the “developing” nations of the world demanded that their “developed” counterparts “share” their wealth and technology to “save the planet.”

From the beginning of the conference, few informed attendees realistically expected significant progress, largely because of the twin problems of funding sufficiency and verification. They were not disappointed. In the end, the conference fulfilled realistic expectations by delivering no legally binding agreements. Considering the energy, enthusiasm, cost and political capital spent pursuing elusive commitments, many terms can be used to describe the convocation – but “successful” is not one of them.

Bringing Diplomacy to a Boil: Options for Agreements in Copenhagen

Richard Faulk — Sat, 26 Dec 2009 09:12:17 PST

As of Tuesday night, United Nations negotiators still disagreed on the financial aid that the US, Japan and other developed nations will give to the developing world to cope with climate change, Bloomberg reports, referring to a draft document. Many believe that the conference is seriously deadlocked. Well, maybe so, but alternatives still exist, and they have not, at least according to all reports, been fully considered.

The Queer Case of the Quarelsome Convocation: Allies, Adversaries, Indifference and Exaggeration in Copenhagen

Richard Faulk — Sat, 26 Dec 2009 09:08:21 PST

There’s no doubt, insofar as the UN is concerned, that the island nations are in desperate plight. In fact, the UN seized yesterday as an opportunity to unveil a barrage of new scientific information directly affecting the islanders’ interests. The day climaxed with an appearance by Al Gore himself, who relayed a disturbing forecast of vanished polar ice within five years. All of the disclosures were orchestrated masterfully, presumably in an attempt to create an irresistible cascade of information which, in turn, would motivate negotiators to reach a global agreement. Unfortunately, by the end of the day, all of this effort seemed wasted as the delegates remained quarrelsome, strained and divided. Perhaps worst of all, the credibility of the UN’s scientific barrage was seriously undermined by Gore’s exaggerated conclusions. After all of the argumentative water receded, the desperate islanders remained stranded just as they were when the day began.

The "Climategate" Controversy: A Tree Falls in the Forest -- But Is Copenhagen Listening?

Richard Faulk — Sat, 26 Dec 2009 09:01:49 PST

An old philosophical riddle asks "If a tree falls in a forest and no one is around to hear it, does it make a sound?" The “Climategate” tree has fallen, and there were plenty of people around, both in Copenhagen and Washington, to hear it. The question is, however, was anyone listening? For the sake of the Copenhagen conference, and our Republic, one hopes so.

The First "Official" Draft of the Copenhagen Agreement: Blanks, Brackets, Chewing Gum, and Baling Wire

Richard Faulk — Thu, 17 Dec 2009 15:20:36 PST

The war of words – and the fight over money – continued at the Copenhagen conference on Friday. Although some parties continue to posture and insist that the negotiations are between the “haves” – “developed” nations such as the United States and Japan – and the “have nots” – “developing” nations such as China and the “G77” group – those classifications are increasingly imperiled by harsh rhetoric and unrealistic expectations.