Climate change: We’ll see you in court


Contemplation of Justice, statue by James Earle Fraser at the U.S. Supreme Court (exterior) - photo by Steve Petteway

Contemplation of Justice, statue by James Earle Fraser at the U.S. Supreme Court (exterior) - photo by Steve Petteway

From a press release from Gardere and Wynn:

Gardere’s Faulk And Gray Tapped To Represent Business, Industry In Climate Change Amicus Briefs

Gardere Wynne Sewell attorneys Richard O. Faulk and John S. Gray have been retained to write amicus curiae briefs to federal appellate courts and the U.S. Supreme Court in relation to public nuisance lawsuits regarding global climate change.

(I-Newswire) May 13, 2010 – HOUSTON – Richard O. Faulk and John S. Gray, co-chairs of Gardere Wynne Sewell LLP’s Climate Change Task Force, have been retained to write amicus curiae briefs to federal appellate courts and the U.S. Supreme Court in relation to public nuisance lawsuits regarding global climate change.

Mr. Faulk and Mr. Gray, partners in Gardere’s Houston office, will represent a group of organizations that include the American Chemistry Council, The National Petrochemical & Refiners Association, The American Coatings Association, and the Public Nuisance Fairness Coalition.

The first brief was filed in the 5th Circuit on Friday, May 7, in the case of Comer v. Murphy Oil. In that case, a group of property owners sued utility, mining, oil and chemical companies claiming their CO2 emissions ultimately caused the devastation of Hurricane Katrina. Comer had originally been dismissed at the trial level because the plaintiffs lacked standing to sue particular defendants for the effects of global warming, among other reasons.

A panel of the 5th Circuit reversed the dismissal, but on February 26 the court granted an en banc rehearing. The court is now weighing a number of procedural concerns caused by a number of judicial recusals, and has not set a final date for oral arguments.

“Despite the current procedural wrangling, the 5th circuit’s initial decision to reconsider the panel’s ruling remains a major blow to climate change and public nuisance litigation,” Faulk said. “Although the final decision, the panel’s original decision now has no value. Clearly, a significant number of the court’s judges believe the case deserves a closer look, and plaintiffs are surely not comforted by that development. Indeed, since no judge on the original panel dissented, the en banc court’s decision to reconsider suggests a serious interest in changing the result.”

Mr. Faulk and Mr. Gray also plan to file amicus briefs in Native Village of Kivalina, Alaska v. ExxonMobil Corp., et al., which is pending in the 9th Circuit, and Connecticut v. American Electric Power, a 2nd Circuit decision in which a petition for certiorari to the United States Supreme Court is expected to be filed. Both of those cases also involve the propriety of using public nuisance litigation to redress global climate change.

Mr. Faulk and Mr. Gray have authored many scholarly articles regarding public nuisance and climate change. One of their major papers, “Stormy Weather Ahead: The Legal Environment of Global Climate Change,” has been presented at conferences of the United States Chamber of Commerce, in media events at the Washington Legal Foundation, at various Professional Development seminars for lawyers, engineers, and businessmen. A complete collection of their articles is available at http://works.bepress.com/richard_faulk/subject_areas.html#Climate%20Change.

In addition, Mr. Faulk recently spoke on climate change lawsuits at the Judicial Symposium on The Expansion of Liability Under Public Nuisance on April 26 at the Searle Center on Law, Regulation, and Economic Growth, Northwestern University School of Law.

Gardere Wynne Sewell LLP, an AmLaw 200 firm founded in 1909 and one of the Southwest’s largest full-service law firms, has offices in Austin, Dallas, Houston and Mexico City. Gardere provides legal services to private and public companies and individuals in areas of energy, hospitality, litigation, corporate, tax, government affairs, environmental, labor and employment, intellectual property and financial services.

Familiar with any of those cases?

Were denialists to have the facts, some of those legal cases would be the places that the facts emerge in useful-to-stop-climate-change-legislation fashion.

Want to make bets on whether those who desperately want (and maybe need) climate change denialists to be right, actually use the climate denialists’ studies?

Watch those cases.

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