Recently in Environmental/Toxic Torts Category
"Environmental Protection Agency officials are making an 'on-going practice' of 'near-immediate turnaround to provide records to environmentalist pressure groups,' while imposing 'starkly disparate treatment of groups with different perspectives but which are otherwise similarly situated,'" complains a Competitive Enterprise Institute FOIA request seeking data on the practice, as well as on the disparate use of fee waivers to create barriers to transparency. [Wash. Examiner]
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.
A Law Week Colorado story (via Amazon Post), looks at the role of Stratus Consulting in the gigantic Lago Agrio verdict, and Chevron's suit against the firm. Greenwire reports that Stratus is currently receiving federal taxpayer money for consulting work.
Chevron tells its side of the story in a seven-part video series on the Lago Agrio litigation in Ecuador.
PLF wins the important Supreme Court case of Sackett v. EPA, reaffirming the right of landowners to challenge agency compliance orders under the Administrative Procedure Act. Justice Alito's concurrence goes even farther, citing CEI's amicus brief, the only amicus brief cited in the case. Congratulations to all. More at ABAJ.
We wrote in May about what have since become called "legacy lawsuits":
A 2006 Louisiana law allows conventional tort litigation by landlords who leased to oil companies to supplant state regulatory efforts at remediation and cleanup. Oil companies express concern that they're now drawn into expensive litigation that delays the cleanup process for several years, but one suspects that they're even more concerned that entrepreneurial trial lawyers have figured out that impoverished remote-county juries and judges plus deep-pocketed defendants presents desirable rent-seeking. One verdict awarded $54 million for environmental damage to a piece of land that was never worth more than $108,000. Business is asking the legislature for relief, and there has since been a feeding frenzy of suits over decades-old leases; meanwhile, Louisiana's attempt to sue itself into prosperity has hurt job growth.
Nothing's gotten any better in the last year, says a recent LSU study on legacy lawsuits, which calculates the loss to the Louisiana economy at "1,200 new wells, translating into a total statewide reduction of about $6.7 billion dollars in lost Louisiana drilling investment. The estimate is likely conservative since it excludes the impacts these reduced drilling activities would have on oil and natural gas production, and the mineral revenues generated by this foregone production," as well as 30,000 jobs. But trial lawyers are making money, so who cares about the other 99%, or the skyrocketing price of gas? [ATRA; Fox News]
A year ago, a Madison County judge in the meritless atrazine litigation unsealed PR documents that showed, heaven forfend, that the defendants were exercising their First Amendment rights to defend themselves against false accusations. Now there's evidence that, surprise, surprise, the plaintiffs are doing the same thing they pearl-clutched about when the defendants did it, though one doubts the judge will let defendants conduct discovery on the Center for Media and Democracy or who leaked documents to them. But as Ed Murnane and Tiger Joyce ask, "why would Madison County judges ignore overwhelming science and favor the plaintiffs when so many of the county's tax-paying residents earn their livelihoods in conventional agriculture?"
Resuming Point of Law blogging after a hiatus*, we return to reporting on the most under-covered lobbying outfit in D.C. and the nation, the American Association for Justice, i.e., the trial lawyers.
The AAJ concludes its winter convention in Phoenix at the Biltmore Report and Spa today, a four-day event held under the Orwellian-sounding theme, "Strength in Knowledge, Power from Networking, United for Justice." The choice of Arizona - with its retrograde immigration policies - obviously gave some members heartburn, but it's OK, they were assured:
The state law has been eviscerated in court decisions. Rather than continue to punish Arizona citizens, including the many Latino low-wage workers who depend upon tourist business for their livelihoods, Latino leaders in Arizona are uniformly asking for meetings to resume and people to visit Arizona. We at AAJ are locked into a hotel contract that requires a major penalty for canceling the convention. While we considered doing so, the penalty we face and subsequent actions by Latino leaders asking that we not boycott Arizona resulted in AAJ's decision to go forward with the convention in Arizona and to have a major focus on immigration as a part of the convention.
(Speaking of boycotts and "eviscerated laws": In 2009, the AAJ relocated its summer convention from the Manchester Grand Hyatt in San Diego because the owner, Doug Manchester, had donated $125,000 to Proposition 8, the constitutional amendment to prohibit same-sex marriage, prompting a boycott of the hotel.)
Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, did give a talk on how to overturn state immigration laws like Arizona's SB 1070, and there was a "Hot Topics" set of presentations on "Fighting for Justice in the Courts and in the Courtroom, with class action lawsuits and immigration among the issues. (Full conference agenda, .pdf'ed.)
The Second Circuit has ruled that Chevron must challenge the Ecuadorian judgment against it jurisdiction by jurisdiction rather than asking a US court to enjoin enforcement globally. The ruling is likely to have an adverse effect on Chevron's collateral RICO litigation against the plaintiffs. Meanwhile, you wouldn't know anything was fishy going on if you relied on Time Magazine's one-sided coverage instead of Alison Frankel's. [Frankel; Frankel; Frankel; Time; NYLJ; New Yorker via OL]