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Articles 1 - 30 of 46
Full-Text Articles in Law
Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, Richard O. Faulk
Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, Richard O. Faulk
Richard Faulk
The current circuit-by-circuit and state-by-state approach to the question of preemption precludes any uniform standards for environmental compliance and enforcement, and also vitiates any reliable basis for capital investment, expanded operations, and workforce stability. Because Congress enacted the CAA to promote those goals—as well as jobs and a healthy economy—delaying review prolongs the uncertainty and intensifies the dilemma facing not only the courts, but also the regulated community.
Chevron Deference Conflicts With The Administrative Procedure Act, Richard O. Faulk
Chevron Deference Conflicts With The Administrative Procedure Act, Richard O. Faulk
Richard Faulk
Although Chevron’s reasoning stresses the expertise of agencies as a basis for deference, the APA plainly delegates final interpretive authority to the courts. Since there is no statutory basis for superseding or diminishing the judicial role in the interpretive process, there is no justification for using deferential review to bypass the judiciary’s primary responsibility. It is time—indeed past time—for the Supreme Court to exercise its singular constitutional authority to declare “what the law is”—and to curb the increasingly intrusive and overreaching authority seized by the Executive Branch. The American people, from whom all authority is derived, are entitled to be …
Texas Supreme Court Rejects “Any Exposure” Causation In Asbestos Litigation, Richard O. Faulk
Texas Supreme Court Rejects “Any Exposure” Causation In Asbestos Litigation, Richard O. Faulk
Richard Faulk
The Texas Supreme Court has firmly rejected the latest effort to reopen the floodgates for asbestos litigation in Texas. While the Court rejected a formalistic adherence to “but for” causation in mesothelioma, the essence of “but for” still survives because, “but for” legally sufficient proof of exposure to the particular defendant’s product, the defendant cannot be held liable. The requirement of legally sufficient proof applicable to exposure to each defendant’s product remains, and the challenges associated with meeting that requirement remain the same. Perhaps the cohesiveness of this holding will influence other states to define “substantial factor” similarly, or perhaps …
The Quest For The Next ‘Solvent Bystander’ In Asbestos Litigation: Will Texas Resume The Search?, Richard O. Faulk
The Quest For The Next ‘Solvent Bystander’ In Asbestos Litigation: Will Texas Resume The Search?, Richard O. Faulk
Richard Faulk
Questions abound regarding the Bostic v. Georgia Pacific case. Is Texas preparing to resume the “endless search” for the next “solvent bystander?” Is the Texas Supreme Court considering a departure not only from Flores, but also from decades of settled Texas law regarding causation in tort cases? Hopefully, the memory of the disastrous and wasteful “cold war” of asbestos litigation will persist and rational common-law limits will not be sacrificed to resurrect a demonstrably abusive system.
Schultz V. Akzo Nobel Paints: “The Rest Of The Story” Reveals Limited Impact Of Expert Testimony Decision, Richard O. Faulk
Schultz V. Akzo Nobel Paints: “The Rest Of The Story” Reveals Limited Impact Of Expert Testimony Decision, Richard O. Faulk
Richard Faulk
Certainly, a number of lawyers from both sides of the bar believe that the Schultz decision is important. A review of the record in Schultz, however, reveals a relatively easy explanation for the decision—one that undermines its value as precedent. To understand why this is so, we must go back to the district court’s decision to grant Akzo Nobel’s motion for summary judgment and, with apologies to Paul Harvey, appreciate the “rest of the story.”
Climate Change Regulation And Litigation: A "Lost Decade" Of Controversy And Confrontation, Richard Faulk
Climate Change Regulation And Litigation: A "Lost Decade" Of Controversy And Confrontation, Richard Faulk
Richard Faulk
Years ago, we published our first article regarding climate change. In it, we foresaw “stormy weather ahead,” but we attempted to begin a “constructive dialogue” about the issues raised by global climate change. Today, we can look back over a decade of controversy and confrontation regarding climate change in virtually all legal forums and institutions – and say, without hesitation, that the issue of global climate change has truly experienced a “lost decade.”
Dc Circuit Says Epa's "Transport Rule" Violates Clean Air Act: Is "Cooperative Federalism On The Rise?", Richard Faulk
Dc Circuit Says Epa's "Transport Rule" Violates Clean Air Act: Is "Cooperative Federalism On The Rise?", Richard Faulk
Richard Faulk
From a strictly legal perspective, it appears that the term “cooperative federalism” is emerging as a bedrock principle of air pollution policy under the Clean Air Act. Both the DC Circuit and the Fifth Circuit have now recognized that the policy is plainly required – and that this Congressional mandate trumps any less deferential policy that the EPA might wish to pursue. Although the concept cannot be extended further than the language of the Clean Air Act permits, it is a powerful tool for restraining the EPA’s authority.
Stepping Away From The Abyss? Will The Supreme Court Preclude Extraterritorial Application Of The Alien Tort Statute?, Richard O. Faulk
Stepping Away From The Abyss? Will The Supreme Court Preclude Extraterritorial Application Of The Alien Tort Statute?, Richard O. Faulk
Richard Faulk
Policymakers find themselves increasingly occupied with ATS claims arising from conduct that occurred in other countries and which has no significant connection to the United States — claims that may not be consistent with our own government’s policies for promoting human rights. Although this issue of “extraterritorial” application has been inherent in every ATS case that has involved injuries caused by foreign corporations outside the United States, it has evaded review in every instance, and — until the Supreme Court heard arguments recently in Kiobel v. Royal Dutch Petroleum — it appeared that the proliferation of ATS cases in that …
Defendants Win "Round One" Of Climate Change Litigation In United States Supreme Court, Richard O. Faulk, John S. Gray
Defendants Win "Round One" Of Climate Change Litigation In United States Supreme Court, Richard O. Faulk, John S. Gray
Richard Faulk
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 …
A Political Question: Public Nuisance, Climate Change And The Courts, Richard O. Faulk, John S. Gray
A Political Question: Public Nuisance, Climate Change And The Courts, Richard O. Faulk, John S. Gray
Richard Faulk
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 …
Uncommon Law: Ruminations On Public Nuisance, Richard O. Faulk
Uncommon Law: Ruminations On Public Nuisance, Richard O. Faulk
Richard Faulk
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 …
Public Nuisance At The Crossroads: Policing The Intersection Between Statutory Primacy And Common Law, Richard O. Faulk, John S. Gray
Public Nuisance At The Crossroads: Policing The Intersection Between Statutory Primacy And Common Law, Richard O. Faulk, John S. Gray
Richard Faulk
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 …
The Boundaries Of Public Nuisance, Richard O. Faulk, John S. Gray
The Boundaries Of Public Nuisance, Richard O. Faulk, John S. Gray
Richard Faulk
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 …
Practical Guide To Environmental Law And Regulatory Compliance In Texas, Richard Faulk, John S. Gray
Practical Guide To Environmental Law And Regulatory Compliance In Texas, Richard Faulk, John S. Gray
Richard Faulk
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 …
Crude Defenses? Liability Limits For Offshore Drilling Accidents And Oil Spills, Richard Faulk
Crude Defenses? Liability Limits For Offshore Drilling Accidents And Oil Spills, Richard Faulk
Richard Faulk
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 …
Stretching The Boom? Limiting Liability For Offshore Drilling Disasters, Richard Faulk
Stretching The Boom? Limiting Liability For Offshore Drilling Disasters, Richard Faulk
Richard Faulk
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 …
Hannibal Eclipsed? Envelopment By Public Nuisance, Richard Faulk
Hannibal Eclipsed? Envelopment By Public Nuisance, Richard Faulk
Richard Faulk
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 …
The Theater Of Climate Change, Richard Faulk
The Theater Of Climate Change, Richard Faulk
Richard Faulk
President Obama's unilateralism promises nothing to avert planetary disasters, and since the fabled “green economy” is, at least presently, an elusive myth, one can only conclude that there must be another agenda: wealth redistribution for its own sake. If any other result is intended, it has not been credibly articulated. Unless a realistic, reliable and transparent program for replacing our wealth is created, siphoning current resources will diminish and ultimately extinguish American prosperity.
The Winter Of Our Discontent: The Impact Of Copenhagen's Failure, Richard Faulk
The Winter Of Our Discontent: The Impact Of Copenhagen's Failure, Richard Faulk
Richard Faulk
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.
Negotiating With Someone Else's Money: Shifting The Responsibility For Climate Change Funding, Richard Faulk
Negotiating With Someone Else's Money: Shifting The Responsibility For Climate Change Funding, Richard Faulk
Richard Faulk
Some people think that “Climategate” will ultimately undermine everything that the UN is attempting to resolve in Copenhagen, but that story is for a later column. The truth, however, is that the parties – all of whom profess agreement that man-made global warming is a reality – are doing a powerful job of self-destructing outside the scientific controversy. The divisive issue is, as expected, which nations will bear the costs necessary to deal with climate change, and how those costs will be apportioned. Judging from yesterday’s conflicts, it seems that even those who agree that the problem exists are in …
The Insolence Of Office: Exposing The Politics Of Perception In Copenhagen, Richard Faulk
The Insolence Of Office: Exposing The Politics Of Perception In Copenhagen, Richard Faulk
Richard Faulk
Despite the malaise that seemed to overlay the Copenhagen Climate Change Conference before opening day, the summit opened with a flourish of rhetoric and apparent optimism by a host of attendees. In a statement titled “Governments set to seal ambitious international climate change deal in Copenhagen,” UNFCCC Executive Secretary Yvo de Boer, the UN’s top climate change official, practically overflowed with enthusiasm, sounding supremely confident that an international climate change deal was within reach.
The First "Official" Draft Of The Copenhagen Agreement: Blanks, Brackets, Chewing Gum, And Baling Wire, Richard Faulk
The First "Official" Draft Of The Copenhagen Agreement: Blanks, Brackets, Chewing Gum, And Baling Wire, Richard Faulk
Richard Faulk
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.
The Queer Case Of The Quarelsome Convocation: Allies, Adversaries, Indifference And Exaggeration In Copenhagen, Richard Faulk
The Queer Case Of The Quarelsome Convocation: Allies, Adversaries, Indifference And Exaggeration In Copenhagen, Richard Faulk
Richard Faulk
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 …
The "Climategate" Controversy: A Tree Falls In The Forest -- But Is Copenhagen Listening?, Richard Faulk
The "Climategate" Controversy: A Tree Falls In The Forest -- But Is Copenhagen Listening?, Richard Faulk
Richard Faulk
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.
Bringing Diplomacy To A Boil: Options For Agreements In Copenhagen, Richard Faulk
Bringing Diplomacy To A Boil: Options For Agreements In Copenhagen, Richard Faulk
Richard Faulk
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.
Copenhagen’S Disappointing Dénouement: Anatomy Of A Failed Convocation, Richard Faulk
Copenhagen’S Disappointing Dénouement: Anatomy Of A Failed Convocation, Richard Faulk
Richard Faulk
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 …
Clearing The Air In Copenhagen, Richard Faulk
Clearing The Air In Copenhagen, Richard Faulk
Richard Faulk
As I prepare to depart for the Copenhagen climate change conference, the entire process seems awash in doubt, confusion, and controversy. Despite the grand hopes of many members of the international community, including many respected politicians and scientists, even the most optimistic advocates concede that it will be impossible to secure a comprehensive and binding climate change agreement. Instead, the delegates will seek a consensus that will guide the drafting and presentation of a formal treaty sometime in 2010, either in Bonn or in Mexico City.
The Crucible Of Common Sense: Real And Illusory Expectations In Copenhagen, Richard Faulk
The Crucible Of Common Sense: Real And Illusory Expectations In Copenhagen, Richard Faulk
Richard Faulk
The agenda is set for the United Nation’s Climate Change Conference in Copenhagen – but few attendees expect substantial progress.. As most students of international diplomacy know, leaders seldom risk valuable political capital on meeting that are expected to be unproductive. As a result, staff and other underlings strive to reach consensus so that, at the worst, some positive result can be declared. Now the consensus expectations are apparent, and predictably, they are far less promising than many delegates hoped.
Premature Burial? The Resuscitation Of Public Nuisance Litigation, Richard Faulk, John Gray
Premature Burial? The Resuscitation Of Public Nuisance Litigation, Richard Faulk, John Gray
Richard Faulk
On Sept. 22, the U.S. Court of Appeals for the Second Circuit, in Connecticut v. American Electric Power Co., held that federal common-law nuisance suits can proceed against major greenhouse gas emitters. Nine days later, a federal trial court reached the opposite conclusion in another case. In this article, attorneys Richard Faulk and John Gray discuss these rulings, and the revival of public nuisance litigation.
Lifting The Veil: Pressures Mount For Climate Change Disclosures, Richard Faulk
Lifting The Veil: Pressures Mount For Climate Change Disclosures, Richard Faulk
Richard Faulk
Measures from Sarbanes-Oxley to climate change legislation will pervasively transform the manner in which American businesses relate to shareholders and consumers. Capping a month of extraordinary changes, the National Association of Insurance Commissioners adopted a rule that mandates broad disclosures by insurance companies regarding the impact of climate change on their financial stability – thereby enlisting the insurance industry as a ‘‘partner’’ in the enforcement of global and national climate change policies.