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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.
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.”
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 …
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 …
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 …
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 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 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.
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.
A Lawyer's Look At The Science Of Global Climate Change, Richard O. Faulk, John S. Gray
A Lawyer's Look At The Science Of Global Climate Change, Richard O. Faulk, John S. Gray
Richard Faulk
Whether human-induced global climate change is – or is not – a scientific reality, and whether it will – or will not – ultimately transform the planet into a less hospitable place for humanity, our task as lawyers is not to “change the world,” or “save the planet,” but to address and resolve the legal problems of persons who primarily retain us not for our politics, but for our prowess. If our discussion of the basic science of climate change assists readers in that process, it will have accomplished its purpose – irrespective of whether Nature’s threats prove real or …
Alchemy In The Courtroom? The Transmutation Of Public Nuisance Litigation, Richard O. Faulk, John S. Gray
Alchemy In The Courtroom? The Transmutation Of Public Nuisance Litigation, Richard O. Faulk, John S. Gray
Richard Faulk
This Article continues our study of the public nuisance controversy regarding lead paint. Although lead paint cases are certainly not the only claims where public nuisance principles are being advocated, they are the most conspicuous claims, and they have attracted the most attention from advocates, courts, and commentators. For that reason, we have focused on the lead paint paradigm. Moreover, as will be seen, the allegations asserted in these claims are not unique to lead paint but can be applied generically by ingenious counsel to virtually any product or conduct imaginable. Hence, examining the lead paint controversy provides insight into …
Reunion In Salem: Updating The Mtbe Controversy, Richard O. Faulk
Reunion In Salem: Updating The Mtbe Controversy, Richard O. Faulk
Richard Faulk
Concerned about groundwater contamination and the potential health effects of methyl tertiary butyl ether (MTBE), a gasoline additive used to curtail air pollution, several states have banned its use. Similarly, MTBE hus been the subject ofa great deal of litigation. And while the Energy Policy Act of 2005 did not ban MTBE outright, it eliminated the federal oxygenate requirement for gasoline, thereby making the additive unnecessary. But according to RichardFaulk and./ohrr Gray, the controversy surrounding MTBE is greatly exaggerated. Moreover, MTBE represents only about 11% of the dangerous chemicals in gasoline that leak from USE into groundwater. Banning MTBE and …
Building A Better Mousetrap: A New Approach To Trying Mass Tort Cases, Richard O. Faulk
Building A Better Mousetrap: A New Approach To Trying Mass Tort Cases, Richard O. Faulk
Richard Faulk
For many years, both state and federal courts have struggled with the extraordinarily difficult problems raised by mass tort litigation. In an effort to resolve these controversies, the courts have resorted to increasingly creative procedures -- with mixed results. Courts have tried class certification in various forms, consolidation on a "controversy by controversy" basis or on the basis of "common issues," and bellwether trials with smaller groups of plaintiffs selected by varying procedures. These creative techniques have been employed in the interest of achieving results and ending the controversies expeditiously. Unfortunately, in pursuing those goals, each technique has collided, in …
Strategic And Scientific Considerations In Toxic Tort Defense, Richard O. Faulk
Strategic And Scientific Considerations In Toxic Tort Defense, Richard O. Faulk
Richard Faulk
The past decade has seen a dramatic increase in suits for injuries resulting from exposure to toxic substances. Since these suits commonly involve multiple defendants, highly technical scientific testimony, unusual legal theories, and many years of alleged exposure, they present a novel form of complex litigation and pose sophisticated problems in many phases of trial preparation. As toxic tort litigation continues to proliferate, an increasing number of practitioners will face the prospect of defending these actions. This article centers on pretrial considerations, and is intended as an orientation for the practitioner who must defend toxic tort cases without substantial experience …