CA Public Nuisance Global Warming Gets Tossed - Richard O. Faulk Opines on Implications

Yesterday in California, U.S. District Judge Martin Jenkins tossed the public nuisance global warming lawsuit filed first by the former state Attorney General Bill Lockyer and then continued by current AG Jerry Brown.  Given that CA is a trend-setter and that Brown has adopted an activist stance, we all recognize the importance of this ruling to tort reform in general and to public nuisance litigation more particularly. [Copy of decision is available free from MGenova981@aol.com.]

On this particular development, though, there's a lot more to digest.  So I called upon defense attorney Richard O. Faulk to drill down into the ruling's broad implication.  Richard is Chair of the Litigation Department at Gardere, Wynne Sewell LLP and author or co-author of myriad papers on public nuisance. [Those papers are available here, under "attorney bios."]  He frequently comments on this blog.

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Richard O. Faulk, on-the-record:

"First some background: California asserted two nuisance claims, one under 'federal common law' and the other under California state law.  The court declined to entertain the 'federal common law' claim because it entailed a non-justiciable 'political question" and then refused to exercise supplemental jurisdiction over the state law claim.  As a result, the entire case was dismissed.

"Now let's review why this ruling has been so important: Although this case has a high profile because it involves claims that the auto industry should be liable because of its contribution to 'global warming,' the court's decision has much broader implications for public nuisance claims generally.  That applies whether the claims are based on federal or state substantive law.  And the reason is that the court recognized significant limitations on the authority of courts to intervene in environmental issues comprehensively regulated by other branches of government.  As a result, the crux of the court's decision is whether the case could be decided 'without [making] an initial policy determination of a kind clearly for nonjudicial discretion.' Slip op. at g.

"According to the court, California's claim was non-justiciable because it required the court to make an initial policy decision in deciding whether there has been an 'unreasonable interference with a right common to the general public,' and this determination was necessary irrespective of whether equitable relief or damages was sought. slip op. at 11.  Balancing the 'competing interests' of 'reducing global warming emissions' and 'advancing and preserving economic and industrial development' is an 'initial policy determination to be made by the political branches and not this Court.' Slip op. at 11-12.

"Relying on Connecticut v. American Electric Co., Inc.  406 F. Supp.2d 265 (S.D.N.Y. 2005), the court focused its decision squarely upon the fundamental notion of 'separation of powers' framed in the Constitution:

"'Were judges to resolve political questions, there would be no check on their resolutions because the judiciary is not accountable to any other branch or to the People.  Thus, when cases present political questions, judicial review would be inconsistent with the Framer's insistence that our system be one of checks and balances.' slip op. at 22.  For this reason, the court found that 'there is a lack of judicially discoverable or manageable standards by which to properly adjudicate Plaintiff's federal common law global warming nuisance claim.' Id.

"The court's reasoning in this decision cannot be limited to 'global warming' contexts.  Instead, its wisdom should directly apply to all pending 'public nuisance' claims, such as those being litigated in the state courts of Rhode Island, California and Ohio.  The claims made in those cases also seek end runs around the legislative and executive branches - branches that have comprehensively regulated the exact subject matter of the litigation and which have been entrusted with enforcing those laws by the people. Now, plaintiffs argue that those measures should be disregarded and supplanted by a judicially created remedy that depends solely upon the ingenuity of counsel and the receptivity of judges and juries to their appeals.

"But the common law does not operate in a vacuum.  Recent state supreme court decisions bore that out."

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This blog thanks Richard Faulk for sharing his thinking with us.  He can be reached at Rfaulk@gardere.com, 713-276-5651, 713-408-7023 [cell].