Results matching “warming”

AIG's Attitude of Gratitude - PointOfLaw Forum

The board of directors of American International Group decided today that AIG would not take part in ongoing shareholder lawsuits against the government for its September 2008 bailout of the company. AIG explained that the board was legally obligated to consider whether to participate in the legal actions. The company was correct about this point; the board has a fiduciary obligation to look out for the best interests of the company, even if doing so means looking ungrateful for its taxpayer bailout. The second point AIG made in its statement, however, is not correct when viewed in proper context.

Annals of meritless cause litigation - PointOfLaw Forum

"If you want to send a message, use Western Union." As with the recently dismissed Common Cause suit against the filibuster, however, we often see activists trying to craft legislative policy with the courts. Thankfully, courts are more reluctant to play philosopher-king than fifty years ago, and in some cases, defendants are fighting back.

  • ASPCA and several other organizations brought a trumped-up suit in 2000 against Ringling Brothers in an attempt to bar its use of elephants. The lead-witness plaintiff's sole source of income, however, was $190,000 paid by the animal-rights organizations for bringing the suit; the federal court found his after-the-fact allegations of emotional distress from witnessing elephant mistreatment were not credible. The parent company, Feld Entertainment countersued for the malicious litigation, and ASPCA recently settled—for a jaw-dropping $9.3 million. The RICO countersuit remains pending against several other defendants; CNN quotes the Humane Society as denying the allegations against it. [Ringling Bros. litigation website; ASPCA press release; Daily Caller; WSJ via Adler @ Volokh; Overlawyered on the case for years; Steele]
  • CEI files an anti-SLAPP motion against Michael Mann after he sues them for libel for criticizing him. [CEI; earlier on POL (see which for disclaimers)]
  • Per @andrewgrossman, "Lawsuits seek to generate 'awareness' of global warming, cost states a bundle." [Greenwire]
  • Speaking of a waste of taxpayer dollars, Walter Olson has the tale of the taxpayer-funded University of Maryland law clinic trying to destroy state jobs with an expensive meritless environmental suit against a local family farm. The clinic lost and is hoping to appeal. [Olson @ Balt. Sun; Overlawyered link roundup]

Compare and contrast: the case of Ed Blum, who has been bringing successful cases to the Supreme Court to enforce the Constitution's requirement of race-neutrality. [Biskupic @ Reuters]

As I've previously said, there's a lot of opportunity for the motivated conservative legal entrepreneur.

Michael Mann sues conservative critics for libel - PointOfLaw Forum

Michael Mann, of the controversial hockey-stick graph and the East Anglia e-mail controversy, not satisfied with demonizing critics as McCarthyists, has sued Rand Simberg and Mark Steyn and their publishers, arguing that their use of the rhetorical "fraudulent" is a technical accusation of academic fraud. As Alison Frankel notes, National Review is showing braggadocio, claiming that they'll use the lawsuit as a means for civil discovery into questions that they believe have not been adequately investigated. On the other hand, as the suit was filed in D.C. Superior Court (perhaps forum-shopping for a jury pool opposed to conservatives?), defense lawyers will have the option of an anti-SLAPP motion, and the case is exceedingly unlikely to get to a jury if the trial judge follows the law. The case is Mann v. National Review, Inc., No. 8263-12 (D.C. Superior Court Civ. Div.). [Frankel; NRO attorney letter; Steyn; Adler @ Volokh; Hayward; Worstall; Slashdot]

This reminds me of nothing so much as the Lott v. Levitt suit, which had the similar attempt to claim that the use of "replicate" in a lay sense could be understood as libelous if interpreted in a technical academic sense. As I said when it was a conservative economist suing a liberal critic several years ago, this is "not the soundest means of establishing academic credibility or resolving academic disagreements." (And, indeed, as I predicted at the time, Lott lost.) Even beyond the unlikelihood of legal success, the suit seems destined for a Streisand effect; CEI is already using it as a basis for fundraising.

The skeptic blogs cheered my analysis of Lott v. Levitt; it'll be interesting to see how they react to my similar conclusion about the meritlessness of Mann's suit. Unfortunately, I haven't seen the same sort of support for free speech when the gore is on the other ox. Indeed, Conde Nast's ars technica goes so far as to gleefully cite a scary Orwellian case in Australia where the government punished politically incorrect speech by compelling reeducation for the offending parties. Maybe the critics of global warming theory are wrong—but if the government can punish the critics for being critics, what's to stop the government from adopting an incorrect scientific theory as beyond challenge and punishing the scientists who correctly challenge it?

Separately, Mann's attorney has previously represented R.J. Reynolds and Mobil Oil. I haven't seen anyone in the environmental community complaining about this. There's absolutely nothing wrong with that—which I hope the Left remembers when they complain that CEI or other conservative organizations are not to be trusted because they have had funding from tobacco or oil interests.

[Disclosure: I am an unpaid member of the CEI legal advisory board; I have not been consulted on this case. I have no current opinion on the validity of the hockey-stick graph or the soundness of the investigations into the East Anglia emails.]

Paul Larkin responds to FOCUS Act critiques - PointOfLaw Forum

Paul Larkin, senior legal research fellow at The Heritage Foundation's Center for Legal and Judicial Studies, in his most recent memorandum, offers a strong response to a paper entitled "Logging and the Law" published by the Union of Concerned Scientists (UCS) criticizing the proposed Freedom from Over-Criminalization and Unjust Seizures Act of 2012 (FOCUS Act). This is the second consecutive rebuttal offered by Larkin who also responded to an article by Jon Adler at the Police: The Law Enforcement Magazine Website, written on behalf of the Federal Law Enforcement Officers Association (FLEOA) which argued that the FOCUS Act "would put federal officers and agents at risk by taking away their right to carry firearms in the course of their criminal law enforcement duties."

In short the FOCUS Act as introduced by Senator Rand Paul (R-KY) and Representative Paul C. Broun (R-GA) respectively would substitute civil for criminal penalties in the federal Lacey Act and eliminate that law's reliance on foreign law. Groups like UCS urge that criminal enforcement of the Lacey Act is necessary and will benefit the global environment and the domestic economy. Larkin disagrees and articulates a two-part argument:

(1) criminal enforcement of the Lacey Act leads to miscarriages of justice, and

(2) criminal enforcement of the Lacey Act is unnecessary.

Larkin explains these points at length in his paper and makes a strong case for the proposed legislative reforms needed to curb overcriminalization.

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.

Wal-Mart v. Dukes & A.E.P. v. Connecticut - PointOfLaw Forum

In two major decisions today that will interest the readers of this site, the Supreme Court held that the class alleging gender discrimination against Wal-Mart was improperly certified in Wal-Mart v. Dukes and that the EPA's governance of carbon-dioxide regulation under the Clean Air Act displaced the federal common law public nuisance suit brought by various states and municipalities in AEP v. Connecticut. The holding in both cases was unanimous, though not without underlying disagreement. In Dukes, the justices split 5-4 over whether to dismiss the suit outright (the majority decision) or whether to remand for further consideration as a 23(b)(3) class action (Justice Ginsburg's position, joined by Justices Breyer, Kagan, and Sotomayor). In AEP, the justices split 4-4 on whether the plaintiffs had standing to sue (presumably the same split as in Massachusetts v. EPA), and Justice Alito wrote separately, joined by Justice Thomas, to emphasize that his decision rested on the assumption that the Clean Air Act applied to carbon dioxide emissions (the position he rejected in Massachusetts v. EPA) (Justice Sotomayor, who was involved in the suit below, recused).

Those who didn't see our earlier discussion on Dukes, which pulled in various thinkers and practitioners, should check it out now and compare with the actual decision. The Manhattan Institute also wrote a fair amount on the AEP global-warming-as-public-nuisance case in last fall's Trial Lawyers, Inc.: Environment.

Josh Blackman summarizes Dukes here and AEP here. Walter Olson assesses Dukes here. And as Blackman notes, the Dukes decisions, both majority and dissent, are replete with citations to our dear departed friend Richard Nagareda's published writings, both The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003) and Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131-132 (2009).

Around the web, February 17 - PointOfLaw Forum

  • Texas asbestos and silicosis reform a success. [LNL; TCJL]
  • Elsewhere in Texas, Governor Perry proposes loser pays and making access to justice easier for smaller cases. [TCJL]
  • Extensive tort reform in Wisconsin undoes some bad Wisconsin Supreme Court decisions, caps punitive damages. [Sachse]
  • Multi-billion dollar judgment in Ecuador in Chevron lawsuit. Chevron has a webpage detailing its response to and summarizing the various collateral litigations, including a Hague international arbitration temporarily prohibiting international enforcement of the judgement.

  • "Climate Policy by Judicial Fiat: How Global Warming Lawsuits Subvert the Democratic Process" [Heritage]
  • Insider trading and the Sentencing Guidelines. [Ribstein]
  • Why is Obama meeting with a group that launders Chinese money? [Carney @ Examiner]
  • DOJ/DHS operation shuts down over 83,000 web sites for no reason. [Blackman]

Around the Web, Feb. 8 - PointOfLaw Forum


And news releases on American Electric Power v. Connecticut: 



Obama triangulates on regulation - PointOfLaw Forum

It was odd to me when conservatives targeted the nomination of Cass Sunstein to the Office of Information and Regulatory Affairs. Yes, the law professor (for whom I briefly served as a research assistant at the University of Chicago Law School) has scary views on freedom of speech and can be twee in the way only an academic can be on the issue of animal rights; I wouldn't want him in the judicial branch. But in terms of executive-branch regulatory policy, he has been one of the more sensible people on the left side of the aisle. The nomination was eventually confirmed, and then Sunstein disappeared from sight.

One can see Sunstein's hand in the WSJ op ed by Barack Obama announcing a new executive order (not yet on line) that will supposedly require that regulations not "place unreasonable burdens on business." (The line about saccharin is a giveaway.) One can cynically suggest that Obama is triangulating, moving to the center (or worse, trying to create the appearance of moving to the center without actually moving) to try to regain the business community's support lost in the first two years of his administration. But if the executive order language is good, and if regulatory agencies follow it, we can be pleased with the result no matter how sincere the motive.

Of course, the language may not be good. One concern is that Obama singles out the top-down and economically inefficient fuel-economy regulation as a good one. Another is that cost-benefit analysis can be meaningless if the regulators are permitted to put unrealistic estimates of "benefit" onto futile attempts to control global warming with today's technology—the EPA regulation on carbon will be a test of how sincere the administration is. And one wonders why the Obama administration revoked similar Bush administration executive orders in the very first month of his administration if the policy stated in the WSJ was this administration's long-term goal. Finally, the administration's request for reversal in the pending Mazda Motors v. Williamson Supreme Court case would undo over a decade of preemption law, raising business costs with no concomitant benefits.

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 Volokh.com, "Writ of Mandamus Sought in Comer v. Murphy Oil." Earlier POL posts here.

Cert grant in Wal-Mart v. Dukes - PointOfLaw Forum

Don't believe the hype; as James Beck points out in his able guide to the cert grant, it's not about "the size of the class"—but it's still the biggest class action case before the Court in a decade. More from Trask, SCOTUSblog, and Batten. Cert briefing available at SCOTUSblog.

Cert grant in American Electric Power v. Connecticut - PointOfLaw Forum

Good news that the Supreme Court has granted certiorari over the wrong-headed Second Circuit global-warming nuisance decision, but Jonathan Adler expects a narrow decision.

The National Association of Manufacturers just released its congressional ratings for the 111th Congress, and noticeable by their absence are key votes on civil justice reform issues. In years past, high-priority pieces of tort reform legislation (think Class Action Fairness Act) were included the NAM's Key Vote Committee rankings, but in 2009-2010, no separate tort reform bills were rated.1 Neither did bills to expand liability reach the point of a floor vote.

We covered some of the flurry of legislative action in the last week before recess. Here's Part II, highlighting the inaction.

Legislation Congress Did Not Pass

  • The Medical Device Safety Act, meant to overturn the Supreme Court's decision in Riegel v. Medtronic. (H.R. 1346, S. 540)

  • The Motor Vehicle Safety Act, introduced as a reaction to the Toyota recalls. Turns out that truth - in this case, the reality of operator error - helped discourage passage of the expanded regulatory control and liability applied to automakers. (H.R. 5381)
  • Expansion of liability under maritime law proposed in the wake of the Deepwater Horizon accident.2 Here's a list of the 95 bills, resolutions and amendments introduced in the 111th Congress with the term "oil spill" in them.

  • The Discount Pricing Consumer Protection Act, S. 148, meant to overturn the U.S. Supreme Court's decision in Leegin Creative Leather Products, Inc. v. PSKS, which held that resale price maintenance agreements were not per se illegal under federal antitrust law. The bill by Sen. Herb Kohl (D-WI) was reported out of the Senate Judiciary Committee, however.

  • Bills sponsored by Sen. Arlen Specter (D-PA) and Rep. Artur Davis (D-AL) to allow trial lawyers to deduct expenses from contingency lawsuits. (S.437 and H.R.2519)

  • Sen. Specter's federal media shield legislation, with the potential to weaken protections of corporate trade secrets and confidential personnel records. (S. 448)

Yes, it is possible that Congress will act on some of these bills in the lame-duck session, which convenes Nov. 15. You would think that extending the tax 2001 rates would come first, but who knows what might happen? November promises to be an unsettled period full of recriminations and last gasps -- an environment that invites legislative excesses.

Perhaps Senators will give expression to their warm feelings of affection for Sen. Specter and pass all his bills as a final tribute. If the winds of change have been especially scouring, the litigation lobby may call on their congressional supporters to use their last opportunity to enact all sorts of liability-expanding legislation.

1 The NAM rated two bills in the area of employment law, the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. The first, which became law, removed statutes of limitation on employment discrimination suits. The second, which passed the House, lifts caps on punitive damages.

2 No legislation, plenty of litigation. The Washington Post today reports: "METAIRIE, LA. - The BP oil spill cleanup is winding down, but the lawyers are just warming up. The gusher of litigation might not be capped for years."

Support my man, Blumenthal, despite his bad lawyering - PointOfLaw Forum

President Obama travels to Stamford, Conn., today to campaign for Attorney General Richard Blumenthal, who's running for the U.S. Senate.

Wonder if either one will refer to Connecticut v. American Electric Power, the Blumenthal-led suit that claimed electric utilities created a public nuisance through their greenhouse gas emissions. Last September the Second Circuit found for the states, and Blumenthal touts the case on his campaign site as an example of his "standing up to polluters."

But the Obama Administration wants the Second Circuit's ruling thrown out, which is to say, wants Blumenthal to lose. In a brief filed by the Solicitor General on behalf of the Tennessee Valley Authority, the Administration called for the Supreme Court to vacate the circuit court's ruling and remand the case for further proceedings. (More on the brief from Jonathan Adler at Volokh.)

The President and AG will avoid mentioning the dispute, no doubt, but wouldn't a frank acknowledgment be refreshing? "Vote for my friend, Richard Blumenthal! He's wrong on the law, and my Administration is fighting him in the Supreme Court, but otherwise, he's OK by me."

UPDATE (Friday): Nope. President Obama made no mention of the litigation. He gave a populist address, Blumenthal standing up for the little guy, with a heavy dose of class warfare. To wit:

Now, Connecticut, let's face it, this decision in this election should be a no-brainer. (Laughter.) Right? (Applause.) I mean, it should be. Should be a no-brainer. Here you've got a man who's been fighting for the people of Connecticut since the day he walked into the attorney general's office. He's got the record to prove it. He's taken on the tobacco industry and helped stop those companies from targeting our kids. He's taken on utility companies to try to beat back electricity rate increases and skyrocketing costs of heating oil. He's taken on the auto industry to help keep family dealerships open that have been around for almost a century.

On the dissents in the Comer dismissal - PointOfLaw Forum

Russell Jackson of Skadden Arps reports at his Consumer Class Action and Mass Torts blog on the Fifth Circuit's quorum difficulties in Comer v. Murphy Oil, the lawsuit claiming damages for global warming. On Friday, the Fifth Circuit effectively dismissed the original lawsuit because a late recusal had deprived the court of its quorum for en banc consideration of the suit.  

"This, of course, creates a tremendous mess for those seeking to appeal to the U.S. Supreme Court.  And it threatens to overshadow the underlying substantive legal issues with a potpourri of procedural arguments," Jackson writes in "Fifth Circuit Punts on Global Warming En Banc Appeal."

Jackson says the views of the dissenting judges foreshadow the arguments the Comer plaintiffs will make in appealing to the U.S .Supreme Court. He concludes:

You can bet that the certiorari petitions to the U.S. Supreme Court will be chock full of arguments as to why the Fifth Circuit was wrong not to decide the Comer appeal. But the real underlying question remains more important: Do victims of natural disasters have standing to sue a subset of those who allegedly contribute to "climate change" based on the hypothesis that the disaster might have been milder if the ocean had been a few degrees cooler? The causal chain on such climate change theories are simply too attenuated to support legal standing. And the sooner we get a definitive ruling from the Supreme Court on that issue, the better off we'll be.

Earlier posts here.

UPDATE (1:40 pm.): AP's report today misses the news, that the original lawsuit had been vacated.

Recusable, non-justiciable, dis-enbancable - PointOfLaw Forum

When an eighth judge recused herself* from hearing the lawsuit on global warming damages, the U.S. Fifth Circuit of Appeals found itself without a quorum for en banc consideration of Comer v. Murphy Oil. The court on Friday determined it had no legitimate alternatives for hearing the appeal after the court had vacated the three-judge panel's ruling in anticipation of the en banc review. The result is that the U.S. District Court judge's original dismissal of the Comer lawsuit stands.

This is a strange one. What would have compelled a recusal after the en banc court had already been properly constituted? The Fifth Circuit would only say that "new circumstances arose." The Wall Street Journal speculated in an earlier editorial: "In Comer, did one of the more liberal Fifth Circuit judges buy stock specifically to blow up the quorum?" The Journal provides no evidence -- the court is not talking -- but the logic is that by blowing up the case, the recusing judge is pushing the global warming issue to the U.S. Supreme Court, increasing pressure for a political resolution of the policy issues. It's the judiciary's version of EPA's power play to regulate greenhouse gas emissions under the Clean Air Act: You don't like it? Legislate!

One can reasonably infer a legal strategy based on recusal from the fact the plaintiffs -- Mississippi residents trying to apportion blame and win cash for damages from Hurricane Katrina -- sued some 150 energy and industrial companies. (Having engaged in years of respiration, we breathed a sigh of relief at having escape the suit.)

The Fifth Circuit's order says the court considered alternatives:


  • Asking the Chief Justice to appoint a judge from another Circuit pursuant to 28 U.S.C. ยง 291.
  • Declaring that there is a quorum under the provisions of Federal Rule of Appellate Procedure 35(a).
  • Adopting the Rule of Necessity, allowing disqualified judges to sit.
  • "Dis-enbancing" the case and ordering the panel opinion reinstated, and issuing the mandate thereon.
  • Holding the case in abeyance until the composition of the court changes.

In a dissent, Judge Eugene Davis, joined by Judge Carl Stewart, writes:

The five judges who entered this order reasoned that this result was mandated by our Local Rule 41.3, which provides: "Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate."

But Local Rule 41.3 is a "provisional, practical rule" not intended for this kind of circumstance -- the loss of a quorum -- and it makes no sense to it to have an impact on the merits of the case, Davis argued.

Lawyers we talk to cannot recall a similar case; the judges are making new interpretations of their rules based on a recusal occurring in the middle of the process.

All this makes us even more curious as to what the "new circumstances" were. Did they arise from a judge's politically motivated act or something more mundane? We demand transparency!

More from Howard Bashman at How Appealing. As of 9:45 a.m. Monday, we find no news (non-blogging) accounts of the court's action.

* Judge Davis identifies the recusing judge as a "her," but that doesn't narrow down things too much: Seven of the 16 judges on the Fifth Circuit are women.

Carter Wood at Shopfloor has details of the tortuous procedural machinations in the carbon-emissions-as-public-nuisance case; the order was issued over two dissents.

Around the web, April 6 - PointOfLaw Forum

  • "Maybe He Should Avoid Britain for a While": some lawyers eye assertions of "universal jurisdiction" to arrest Pope in abuse furor [Ku/Opinio Juris and more; Rick Esenberg on statutes of limitations and more]
  • "Appeal Confirms Rejection of Asbestos Bankruptcy Plan as Collusive and In Bad Faith" [Hartley]
  • State AGs as HIPAA police: Connecticut's Richard Blumenthal goes after a hospital over privacy lapse [HIPAA Blog]
  • "In Utah, Stopping Speculative Suits Based on Global Warming" [ShopFloor and update]
  • More high-dollar verdicts in suits alleging bullying [Fox/Jottings and more]
  • "Such a strange theory [in Illinois] -- that the legislature can't set limits on damages" -- Ted Olson [sub-only WSJ]

Around the web, February 15 - PointOfLaw Forum

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