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"Complaints" About the Weather: Why the Fifth Circuit's Panel Decision in Comer v. Murphy Oil Represents the Wrong Approach to the Challenge of Climate Change

David B. Rivkin, Jr., Carlos Ramos-Mrosovsky, Matthew S. Raymer January 29, 2010
Common law “nuisance” litigation has emerged as the strategy of choice for climate change activists and plaintiffs’ lawyers seeking to limit in a piecemeal fashion U.S. greenhouse gas (“GHG”) emissions.  The recent decision by a panel of the United States Court of Appeals for the Fifth Circuit in Comer v. Murphy Oil U.S.A., 585 F.3d 855 (5th Cir. 2009), takes this trend to a new level.  For the first time, and what some maintain is contrary to established precedent, a United States Court of Appeals has allowed private parties to bring common law nuisance claims in federal court on the theory that particular GHG emissions from defendants’ sources injured plaintiffs and their property by exacerbating specific weather events.

American Electric Power Company v. Connecticut - Post-Argument SCOTUScast

SCOTUScast 04-27-11 featuring Megan L. Brown
Megan L. Brown April 27, 2011

SCOTUScast

On April 19, 2011, the Supreme Court heard oral argument in American Electric Power Company v. Connecticut. The question in this case is whether federal law permits states and private entities to sue utilities for allegedly contributing to global warming.

To discuss the case, we have Megan L. Brown, who is a partner at Wiley Rein LLP. Ms. Brown is on an amicus brief in support of the petitioners.

American Electric Power Company v. Connecticut - Post-Decision SCOTUScast

SCOTUScast 07-15-11 featuring Megan L. Brown
Megan L. Brown July 14, 2011

SCOTUScastOn June 20, 2011, the Supreme Court announced its decision in American Electrical Power Company v. Connecticut.  The question in this case was whether "the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority)."

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 8-0 that "[t]he Clean Air Act and the Environmental Protection Agency action the Act authorizes . . . displace the claims the plaintiffs seek to pursue." Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Kagan joined Justice Ginsburg’s opinion. Justice Alito filed an opinion concurring in part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor took no part in the consideration or decision of the case.

To discuss the case, we have Megan L. Brown, who is a partner at Wiley Rein LLP. Ms. Brown is on an amicus brief in support of the petitioners.

An Assessment of the June 2012 Rio+20 UN Conference on Sustainable Development

Engage Volume 13, Issue 1, March 2012
Christopher C. Horner April 24, 2012

An Assessment of the June 2012 Rio+20 UN Conference on Sustainable DevelopmentBy its Resolution A/RES/64/236 of December 24, 2009, the United Nations General Assembly blessed preparations for the United Nations Conference on Sustainable Development 2012. The Resolution was titled “Implementation of Agenda 21, the Programme for the Further Implementation of Agenda 21 and the outcomes of the [2002 Johannesburg] World Summit on Sustainable Development.” [Read more!]

Benefit-Cost Analysis in Rulemaking: Ready for Prime Time? - Podcast

Administrative Law & Regulation Practice Group Podcast
Sharon Brown-Hruska, Brian Mannix, Dean A. Reuter May 21, 2012

Benefit-Cost Analysis in Rulemaking: Ready for Prime Time?Benefit-Cost Analysis (BCA) has been embraced by every President since Richard Nixon as a general purpose tool for evaluating the merits of administrative decisions, even while it has been assigned a subordinate role – or no role at all – in the statutory frameworks for making those decisions. One consequence is that we have a voluminous record of BCA performance in the executive branch, but only a handful of cases in which it has played an important role in judicial review of rules. Now, amid widespread claims that federal regulation is contributing to America’s continuing economic troubles, BCA is getting more attention. As practiced, does it give an accurate picture of the economic consequences of regulatory actions? Should we rely on it or require it, more than we do, to guide administrative discretion? On this previously recorded conference call, our two experts discuss the state of the art and current BCA controversies in energy and environmental regulation, and in financial regulation. Featuring Dr. Sharon Brown-Hruska of National Economic Research Associates, Inc. and Mr. Brian Mannix of Buckland Mill Associates. [Listen now!]