Originally Speaking: Climate Change and Common Law Public Nuisance

Daniel Lungren, Donald Kochan, Patrick Parenteau, Richard Faulk, and John Baker

Originally Speaking is a written debate series that approaches a contemporary topic from diverse perspectives. The Federalist Society takes no position and encourages a clear and constructive exchange on the subject. Posts in an OS series chain off of each other in waves, creating a loose stream of dialogue.

The focus of this series is if climate change is eligible for common law public nuisance claims, as articulated in the lawsuits by CA and NY municipalities against several major oil and gas companies. We hope you enjoy this Originally Speaking series.

OSHA Drones in the Workplace?

Tammy McCutchen

Yes, your friendly neighborhood OSHA inspector is now authorized by the Labor Department “to use camera-carrying drones as part of their inspections of outdoor workplaces.”

NLC 2018 Digital Survival Guide

Docket Watch: Zarate v. Tennessee of Cosmetology and Barber Examiners

Braden Boucek

If Elias wanted to save a life or write a law, his educational level would not disqualify him. Unfortunately, it does disqualify him from cutting hair.

Why Environmental Reviews Take So Long… And How We Can Speed Them Up

James W. Coleman

On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law. The law requires that the government issue a report—known as an environmental impact statement—before taking major federal actions that significantly impact the environment. NEPA is not a substantive environmental standard; the government can approve a harmful project. It is merely procedural, reflecting the sensible adage “look before you leap.”

May I Offer You Some Guidance?

Wayne A. Abernathy

Guidance from regulators to the regulated can be valuable when kept within the bounds of genuine guidance. When it moves toward compulsion, it moves onto ground obnoxious to the rule of law. The joint statement of five financial regulators reinforces that understanding.

On the Future of the Chevron Doctrine

J. Kennerly Davis

Joel Nolette is a litigation attorney at Mintz Levin in Boston, and an active member of the Administrative Law & Regulation Practice Group, currently serving on its Executive Committee.

When Is a Bureaucracy So Independent That It’s Unconstitutional?

Alex J. Pollock

In a conceptually important opinion, the Fifth Circuit Court of Appeals has just ruled that the governance structure of the Federal Housing Finance Agency (FHFA) is unconstitutional.

Another Court Rules Against Regulation-by-Litigation in Climate Change Public Nuisance Lawsuits

Donald Kochan

On July 19, the U.S. District Court for the Southern District of New York dismissed the lawsuit brought by the City of New York and others against several large oil companies.  The lawsuit claimed those companies were responsible for public and private nuisances under federal common law for the transboundary effects of emissions causing climate change.   These municipality lawsuits for climate change are the subject of a Federalist Society Environmental Law & Property Rights Practice Group podcast  from  July 3, titled “Municipality Lawsuit on Climate Change and Public Nuisance: Litigation Update.”

The Dangers of Independence for Executive Branch Agencies

Peter Wallison

There may be cases where executive branch officials need to be independent of the president, but they are likely to be exceedingly few. The Supreme Court, if it takes an appeal from the 5th Circuit’s decision, should approach the issue from this perspective.