(openPR) - In a closely watched decision, the Federal District Court in the Northern District of California has dismissed the State of California's global warming public nuisance claim against the auto industry. Houston attorney Richard O. Faulk, Chair of the Litigation Department at Gardere Wynne Sewell LLP, predicts, however, that the impact of the ruling will be felt far beyond the auto industry.
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.
“Although the 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 ruling has much broader implications for public nuisance claims generally, whether based on federal or state substantive law,” says Mr. Faulk. “Viewed in a broader perspective, 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.’
“According to the Court, California's claim was non-justiciable because it required to 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. The Court focused its decision squarely upon the fundamental notion of the ‘separation of powers’ framed in the Constitution. In its decision, the Court wrote that 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.’
“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, including those being litigated in the state courts of Rhode Island and Ohio, as well as additional pending litigation in California. 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 to which the people have entrusted the enforcement of those laws. However, 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. Instead, as the New Jersey Supreme Court recently held, the comprehensive programs adopted by other branches of government rightly preclude judges from interfering with their own creative schemes. The California federal court's decision in the global warming case demonstrates, yet again, that the creative reach of public nuisance advocates exceeds their grasp.
“After a summer of setbacks in Missouri, New Jersey and Wisconsin, the California decision once again exposes fundamental fallacies in their arguments. Whether the rejections are based upon non-justiciability, commerce clause problems or unacceptable distortions of the substantive law of public nuisance, the underlying justification is a reluctance to entrust judges with discretionary powers reserved to branches more responsive to the people's political will. As this summer's precedents hold, and as the California Court recognized, this distrust is enshrined in the very structure of our democracy. Those who advocate disregarding those principles risk a return to the tyranny against which the Founders so wisely rebelled.”
Richard O. Faulk is the author of numerous papers on public nuisance issues. Those articles are posted on the Gardere Wynne Sewell website (www.gardere.com) under Mr. Faulk’s biography.
Gardere Wynne Sewell LLP, an AmLaw 200 firm, was founded in 1909 and is one of the Southwest’s largest full-service law firms. With offices in Austin, Dallas, Houston and Mexico City, Gardere provides legal services to private and public companies and individuals in areas of energy, litigation, corporate, tax, environmental, labor and employment, intellectual property and financial services.
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