Results matching “kivalina”

Schwartz et al. on climate-change litigation - PointOfLaw Forum

Victor Schwartz, Phil Goldberg, and Chris Appel write in The Recorder ($) on the status of climate-change litigation in the federal appellate courts; the Ninth Circuit recently affirmed dismissal of the Kivalina suit (in an opinion by Judge Sidney Thomas, of all people), and the Fifth Circuit is considering a similar suit seeking to hold liable carbon-based energy producers for Hurricane Katrina.

At this point, it is uncertain what the Fifth Circuit will decide. If the panel bucks conventional wisdom and allows the case to go forward, it will be interesting to see if it tries to set any limiting principles so that similar claims cannot arise after every severe storm or change in weather patterns. If the court tries to do so, it will undoubtedly realize, as other courts have, that moving the deck chairs in this litigation do not change the legal outcome.

To the extent the Fifth Circuit looks to the Supreme Court for guidance, the Supreme Court has already made its position clear: America's energy policy is properly decided in Congress and the executive branch, and that there is no "room for a parallel track" of litigation for setting [greenhouse-gas] emissions case-by-case in courtrooms across America.

Global warming lawsuits and insurance - PointOfLaw Forum

There have been a variety of meritless lawsuits against power companies on a theory that power companies contributed to global warming, global warming contributes to property damage, therefore power companies are liable. Randy Maniloff discusses the case of AES Corp. v. Steadfast Ins. Co., 715 S.E.2d 28 (Va. 2011), where a power company (now joined by a state trial lawyers association on a motion for rehearing) unsuccessfully argued that these lawsuits created a duty to defend from its liability insurer.

Supreme Court declines to hear 5th Circuit climate suit - PointOfLaw Forum

The U.S. Supreme Court today denied the petition of mandamus from plaintiffs who in Comer v. Murphy Oil Co. had sued energy companies and manufacturers for contributing to global warming, which strengthened Hurricane Katrina, which worsened property damage in Mississippi, so pay up. (Order List)

This is the suit that ran such a strange course through the lower courts.  U.S. District Court Judge Louis Guirola, Jr., of the Southern District of Mississippi originally dismissed the lawsuit in August 2007, ruling the plaintiffs lacked standing and the tort claims had to be resolved through the political system. (Opinion here, via Global Climate Law Blog.) The plaintiff's appealed to the Fifth Circuit, and on Oct. 16, 2009, a three-judge panel ruled two-to-one that the lawsuit had indeed raised justiciable issues that should be heard at trial. (Opinion here.)

The Fifth Circuit than agreed to consider the case en banc, but then one more appellate judge recused herself for a conflict of interest, eliminating the necessary quorum to hear the case. Since the three-member panel's ruling had been vacated, the case was dismissed (ruling), and the plaintiffs were forced to pursue the mandamus route in an attempt to keep the litigation alive.

Two other federal global warming/public nuisance suits remain: American Electric Power v. Connecticut, on appeal to the U.S. Supreme Court, and Native Village of Kivalina versus Exxon Mobil, on appeal to the Ninth Circuit.

See also, Climate Law Blog, "SCOTUS Denies Petition for Mandamus in 5th Circuit Climate Nuisance Suit," and earlier, Jonathan Adler at, "Writ of Mandamus Sought in Comer v. Murphy Oil." Earlier POL posts here.

Around the web, July 13 - PointOfLaw Forum

On a party-line 3-2 vote, the SEC says companies need to disclose global warming exposures, and its critics suspect that politico-environmental objectives may be more at play here than motives of investor protection [Megan McArdle, Jonathan Adler] Meanwhile, as John Schwartz reports at the New York Times, advocates of global warming litigation have taken heart from a couple of favorable rulings and hope to reverse the dismissal of the much-watched Kivalina suit. A Swiss Re report (PDF, via Pero) is also being read as backing for the view that the suits are not going away soon. Christopher Fountain has this observation:

It's notable that the Eskimos bringing this Alaskan suit live on a barrier island, by definition a temporary, always moving geological structure. If they can win damages for the result of living on earth, who can't?

P.S. And here's analysis from Bainbridge (companies already must report important exposures, SEC's "guidance may muddy the waters," and "Investors don't get much of value from [the newly required] disclosures") and Ribstein ("what really bothers me is that firms (meaning, of course, their managers and shareholders) have been forced, upon penalty of fines and damages, to participate in the contentious global warming debate").

Suing oil companies for causing Katrina, cont'd - PointOfLaw Forum

Ilya Shapiro thinks that the full Fifth Circuit en banc will overturn the recent panel decision in Comer v. Murphy Oil, or that the Supreme Court will agree to review the case. [Cato at Liberty]. "Mass tort litigation specialist Russell Jackson calls the plaintiffs' claims "the litigator's equivalent to the game 'Six Degrees of Kevin Bacon.'" Jackson also notes in a second post that a judge's recent dismissal of the Kivalina suit should be helpful to defendants seeking review of Comer. Earlier here.

Fifth Circuit reinstates climate change class action - PointOfLaw Forum

Russell Jackson brings word that the Fifth Circuit has now joined the Second Circuit's much-noted ruling in appearing to give a green light to climate change litigation:

The Fifth Circuit [panel in the new decision] held that plaintiffs lacked standing to bring their claims for unjust enrichment, fraudulent misrepresentation, and civil conspiracy, but that they had standing to assert their claims for public and private nuisance, trespass and negligence. The court further held that this latter group of claims did not present a non-justiciable political question.

The new opinion is Comer v. Murphy Oil (PDF). We covered the Second Circuit decision in Connecticut v. American Electric Power here and earlier, and (by contrast) a trial judge's dismissal (PDF) of the Kivalina suit here.

U.S. District Judge Saundra Brown Armstrong has dismissed the federal public nuisance lawsuit filed by the Alaskan native village of Kivalina against oil, coal and power companies, concluding the question of global warming's damage to the environment is appropriately left in the political sphere.

In an order filed September 30, Judge Armstrong of the Northern District of California granted the defendants' motions:

In their Rule 12(b)(1) motions, Defendants contend that Plaintiffs' claims are not justiciable under the political question doctrine, and that Plaintiffs otherwise lack standing under Article III of the United States Constitution. Having read and considered the papers filed in connection with this matter, and being fully informed, the Court hereby GRANTS Defendants' motions to dismiss for lack of jurisdiction.

Judge Armstrong clearly distinguishes the claims made by the Kivalina plaintiffs from those in the Connecticut v. American Electric Power case (opinion) decided September 21 by the Second Circuit, a federal public nuisance suit brought against power companies by several states and an environmental group.

Based on the judiciary's history of addressing "new and complex problems," including those concerning environmental pollution, the [Second Circuit] court concluded that "[w]ell-settled principles of tort and public nuisance law provide appropriate guidance to the district court in assessing Plaintiffs' claims and federal courts are competent to deal with these issues" such that their global warming concerns can "be addressed through principled adjudication." This Court is not so sanguine. While such principles may provide sufficient guidance in some novel cases, this is not one of them.

The cases cited by Plaintiffs as well as the AEP court involved nuisance claims founded on environmental injuries far different than those alleged in the instant case. The common thread running through each of those cases is that they involved a discrete number of "polluters" that were identified as causing a specific injury to a specific area. Yet, Plaintiffs themselves concede that considerations involved in the emission of greenhouse gases and the resulting effects of global warming are "entirely different" than those germane to water or air pollution cases.

Earlier Point of Law posts here.

First arguments in Kivalina global-warming suit - PointOfLaw Forum

They're slated for next week (via Chris Horner). Earlier: Dec. 10, etc.

"Science paves way for climate lawsuits" - PointOfLaw Forum

Claims of improved measurement of the human contribution to changes in the earth's climate -- don't call it guesswork! -- of a sort that lawyers could assert in court, seem to have at least one Oxford scientist, as well as the Guardian, fairly pacing the floor with excitement. More here, here, here, etc.

Not much to say about Alaska's governor, Sarah Palin, on legal reform issues (certainly a lot less than Sen. Joe Biden). The Pacific Research Institute's 2008 State Liability Index ranks Alaska as having the No. 2 legal climate in outputs (costs) and No. 16 in inputs (laws).

Both Sen. McCain and Gov. Palin proclaim her courage in "taking on big oil," irritating populist rhetoric and not encouraging as far legal philosophy goes, but then, Palin does come from the state where the Exxon Valdez oil spill left an unhappy, expensive legacy. After the Supreme Court's June decision in Exxon Shipping v. Baker, reducing the punitive damages awards, Palin reacted (from The Anchorage Daily News):

Gov. Sarah Palin said she is extremely disappointed with the decision saying the court "gutted the jury's decision on punitive damages" and undercut one of the principal deterrents for marine shipping accidents in Alaska.

"It is tragic that so many Alaska fishermen and their families have had their lives put on hold waiting for this decision," Palin said. "My heart goes out to those affected, especially the families of the thousands of Alaskans who passed away while waiting for justice."

More on the case at Scotuswiki. I don't find anything immediately from Palin commenting on the outrageous Kivalina lawsuit against energy companies (although the state has certainly helped the village of Kivalina against erosion). Earlier in August, the state of Alaska sued the Department of Interior over the listing of the polar bear as a threatened species under the Endangered Species Act.

Palmetto State predictable - PointOfLaw Forum

There's a bit of news coverage and blogging about the South Carolina Trial Lawyers Association having Erin Brockovich address its annual convention this week. Brockovich speaks to lawyers! Fancy that. At least Brad Warthen's blog post at The lets readers provide a few mythbusting comments. (For more of the Brockovich reality versus myth, see Ted Frank's post at Overlawyered.) And Brockovich's speaking fee is affordable, we'll give her that.

Beyond the supposed glamor, the conference agenda is informative enough, especially given South Carolina's prominence in the history of excessive litigation. Good interaction between judges and attorneys, lots of nuts and bolts sessions, and here are the talks that caught our eye:

11:00 a.m. - 11:30 a.m. "Toxic Tort: It's all about Causation, But don't forget Liability." W. Mullins McLeod Jr., Esq. Charleston, SC
11:30 a.m. - 12:00 "The Evolving Landscape of Environmental Litigation: Lessons from the Kivalina Lawsuit" Wm. Michael Gruenloh, Esq., Charleston, SC

And ...

9:00 a.m. - 9:30 a.m. "Business Court, A Slippery Slope" Gary W. Jackson, Esq., Charlotte, NC

Slippery? Funny. That's what we would have said about Kivalina.

Catching up on the "Most Dangerous Litigation in America: Kivalina," we see that the many energy companies being sued for defending their right to produce energy have moved for dismissal in Native Village of Kivalina and City of Kivalina v. ExxonMobil Corporation et al. (No. 08cv1138-SBA). The companies filed the motion June 30th in U.S. District Court, Northern District of California, Oakland Division. (Available here as .pdf file.) From the introduction:

This case asserts tort claims without precedent in the annals of American law. Plaintiffs seek to hold a handful of U.S. businesses - including the Oil Company Defendants submitting this motion - liable in damages, on nuisance and conspiracy theories, for what plaintiffs themselves explicitly allege to be harms resulting from centuries of all human activities across the entire planet Earth. Even assuming the property losses plaintiffs assert could be traced to human-induced changes in the global climate - itself a staggeringly difficult problem of factual proof - no cognizable U.S. tort law, either federal or state, offers plaintiffs any basis for holding a small collection of defendants liable for the supposed atmospheric effects of all historical human industrial, commercial, agricultural, and residential activity worldwide.

Judge Saundra Armstrong has scheduled a hearing for December 9.

The "Democracy Now!" radio program, the premiere hard-left radio news program, had an informative interview earlier in July with Steve Susman of Susman Godfrey explaining the rationale for the litigation. Susman:

The case is a nuisance case. The theory is basically, you can't do something on your property that prevents the enjoyment of mine. I mean, if you were barbecuing and ashes from your barbecue pit fell on my house and burned it up, that's a perfect nuisance case, and you would be liable under the common laws, as long as we've had common law. Now, this is a little more direct, because what they're putting in the atmosphere hurts everyone in the world, for sure, and there are a lot of people putting the stuff up there. So it's very difficult--impossible to get all of the wrongdoers in the same courtroom. And that's where we're testing the theory.

In a second segment, interviewer Amy Goodman talks to John Holdren, professor of environmental policy at the Kennedy School of Government at Harvard University.

A road map for the Kivalina suit - PointOfLaw Forum

The Kivalina suit, backed by liberal foundation money and formidable plaintiff's lawyers, seeks to extract vast sums from energy companies on a theory that climate change can be construed as public nuisance. A Washington Legal Foundation paper (PDF) by Peter Gray and J. Benjamin Winburn of McKenna Long & Aldridge examines the hurdles and defenses the suit will likely have to overcome, including the political question doctrine, pre-emption, and standing, and most significantly causation, since the contributions of defendant oil, coal and utility companies to global warming cannot readily be disentangled from the contributions of entities not sued. Although the state tobacco recoupment precedent suggests that "civil conspiracy" and "concert of action" could be powerful theories for the plaintiffs, Gray and Winburn conclude that the atmospherics (so to speak) of sympathy are likely to be more favorable for the defendants in this case, in that their activities, unlike the sale of cigarettes, are essential to the functioning of modern society.

Directorship: annual guide to state legal climates - PointOfLaw Forum

Directorship magazine and the American Justice Partnership Foundation have released the 2008 Boardroom Guide to State Legal Climates, with a memorable title, "Dire States." The article is written by Steven B. Hantler, AJP's Chairman and former Chrysler assistant general counsel.

The article highlights the next big threat from the trial lawyers.

[There'] the danger of the "litigation trifecta." The first stage was asbestos lawsuits, the longest running mass-tort category in history. The second stage was the $265-billion national tobacco settlement between states and tobacco companies. The R&D arm of Trial Lawyers Inc. hopes to cash in on the third stage of the trifecta: global climate-change litigation. If the plaintiffs' lawyers hit the "litigation trifecta," U.S. tort costs could soon exceed Russia's GDP of $1.2 trillion.

To which we say, nyet.

The issue also carries a story on the global warming litigation, focusing on the suit by the Alaskan village of Kivalina against energy companies for conspiring to use their First Amendment rights. Or something like that. Which provides an opportunity to link to AJP's report, "The Most Dangerous Litigation in America: 'Kivalina.'"

UPDATE (10:55 a.m.): The chart of the rankings of 50 states is available here. Tennessee comes in as No. 1, and Illinois drops from 46th to 50th. West Virginia makes progress to No. 49.

These rankings always have an element of subjectivity to them, but still provide a pretty good sense of which states have a balanced legal climate absent the capriciousness that scares away investment. And justice.

Show trials asked for energy execs - PointOfLaw Forum

For propagating incorrect opinion -- a speechcrime rather than a thoughtcrime, if one may classify. Our coverage of the Kivalina global warming suit (which, to be sure, proceeds along more of a "speechtort w/punitive damages" than a "speechcrime" theory) is here.

More: Jonathan Adler @ Volokh has a direct link to Dr. James Hansen's call for "public trials" of CEOs for "high crimes against humanity and nature"; Eric Berger/Houston Chronicle.

Views critical of Hansen include Spectator Business, Glenn Reynolds, Outside the Beltway, Sweetness & Light, Mike the Actuary. Not so critical: Rep. Ed Markey (D-Mass.), Grist "Gristmill" (both skipping over the point), Oil Change International (enthusiastically supporting).

Around the web, June 19 - PointOfLaw Forum

New at Overlawyered - PointOfLaw Forum

If you're not reading Ted's and my other blog, you're missing commentary on a terrific new Stuart Taylor Jr. column on the South Africa corporate reparations suit, global warming, lead paint, etc; my own roundup on the Kivalina Eskimo climate-change suit, also discussed by Taylor, and spearheaded by class-actioneers Steve Berman and Steve Susman; the piquantly named Kentucky Fund for Healthy Living, funded from the fen-phen settlement (and more); Congress votes to authorize antitrust suits against OPEC; metal baseball bat maker sued; D.C. Circuit panel rules paper money discriminates against blind; new round in Seidel subpoena controversy; why California's Prop 99 isn't effective eminent domain reform; and much more. And that's aside from a complete new design and navigation.