Public nuisance cases 'like a knife fight in a dark alley'

By Alejandro de los Rios | Feb 14, 2011


NEW ORLEANS (Legal Newsline) - Noted environmental law attorney John Parker Sweeney recently spoke about the unpredictable nature of public nuisance lawsuits and the possible long-ranging effects of a few high-profile cases working through federal courts.

"What we're talking bout in these cases, is energy, and what kind of energy this country is going to have," he said. "And there are very powerful economic forces at work behind these cases."

Sweeny, who practices in Baltimore, spoke at DRI's Toxic Torts and Environmental Law Conference in New Orleans on Friday. He serves as a national director of DRI and at one point served as chair of the DRI Climate Change Litigation Task Fore and Toxic Torts and Environmental Law Committee.

Where environmental law cases brought under regulatory actions are like "siege warfare with large armies that battle for decades", public nuisance claims are "like a knife fight in a dark alley", Sweeney said.

He pointed to a handful of lawsuits accusing defendants of contributing to climate change and pollution that has altered the energy landscape. Sweeny said the courts "do not appear to be well suited to decide these cases."

One case he noted was the Kivalina Village case which was recently appealed to the U.S. Court of Appeals for the Ninth Circuit. In that case, a small village in Alaska and its residents, a federally recognized tribe, sued two dozen companies, including Exxon Mobile and BP.

The lawsuit claims that the defendants are liable for the climate change, which has resulted in the erosion of the island on which the Kavalina sits. Sweeney said that plaintiff's cause of action could be applied to almost anyone.

"Who's got a beach house who's maybe losing some beach in front of it?" he said. "You could virtually take these cases and ask almost anybody in the country to stand up and pay for their contributions to green house gas emissions."

The Ninth Circuit is set to hear the plaintiffs' appeal in March.

Highlighting the unpredictable course environmental cases can take in the courts, Sweeney pointed to the lawsuit filed by property owners in Mississippi following hurricane Katrina, which accused several oil and utility of contributing to the damage through greenhouse gas emissions.

After the Fifth Circuit granted an appeal for the plaintiffs, the defendants were granted a rehearing en banc. But of the 16 judges appointed to the rehearing panel, eight had to recuse themselves and the hearing was dismissed.

Because the Fifth Circuit panel's hearing was vacated, the dismissal of the hearing en banc reinstated the District Court's ruling that the case be dismissed, Sweeney said.

"The Fifth Circuit, in effect reversed its panel without a panel," he said. "You could study this in law school forever."

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