America's litigation industry–the aggressive class action and mass tort lawyers who we at the Manhattan Institute have dubbed Trial Lawyers, Inc.–are always seeking new products to expand their bottom line. Today's plaintiff bar is taking an old class of tort claims, those involving environmental injury, and abusing the legal process in an effort to impose environmental regulations through judicial fiat.
Lawyers have long profited from “toxic tort” lawsuits. Some such litigation–such as that spurred by exposure to low magnetic fields and chemicals like the herbicide atrazine–is founded on junk science, without solid evidence that supports even a general finding of causation. Other lawsuits target defendants linked to genuine toxins, like asbestos, but wrap multiple bogus suits together with each legitimate one.
The nation's most recent large environmental disaster–the Gulf oil spill flowing from BP's Deepwater Horizon rig–promises a plethora of such vexatious litigation, in addition to genuine claims. Moreover, beyond pursuing traditional toxic tort claims, lawyers are seeking to profit from BP's mishap through attorney-driven class action suits with even higher expected payoffs–including suits filed on behalf of shareholders and pensioners, such as that recently announced by Texas asbestos and Vioxx lawyer Mark Lanier.
The tort kings' shenanigans are unfortunate; there remains an important place in our legal system for environmental litigation.
When parties have been directly harmed by pollution – such as beachfront-property owners injured by BP's spill- the case for tort liability is clear. The common-law tort of nuisance, which emerged in twelfth-century Britain, allows individuals to recover compensation for “real injuries” to their “lands.”
But modern lawyers are trying to stretch these ancient causes of action to profit from environmental fears. Front and center in the lawyers' arsenal is a subset of the nuisance tort, “public nuisance.”
In pre-regulatory times, public-nuisance suits were used to force municipalities to take actions, such as removing trees from roadways and closing down “houses of ill repute.” Public-nuisance law had its place in this earlier era, but as Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit recently observed, “[i]f we are to regulate smokestack emissions by the same principles we use to regulate prostitution, obstacles in highways, and bullfights, we will be hard pressed to derive any manageable criteria.”
Notwithstanding Judge Wilkinson's objections, plaintiffs' lawyers keep trying to use public-nuisance law to supplant national environmental regulation.
In perhaps the most egregious example, Comer v. Murphy Oil USA, Mississippi asbestos lawyer F. Gerald Maples filed suit against over 100 energy companies on behalf of homeowners injured by 2005's Hurricane Katrina. Mass tort lawyer Russell Jackson called Maples's speculative theory that the energy companies caused global warming, which in turn caused the severe hurricane, “the litigator's equivalent to the game 'Six Degrees of Kevin Bacon.'”
The U.S. Court of Appeals for the Fifth Circuit recently blocked Maples's suit, but other global-warming lawsuits are still percolating in the courts. Foremost among them is a suit led by state attorneys general who cozy up to the plaintiffs' bar, like Richard Blumenthal of Connecticut, now a candidate for Senate.
Fortunately, last week, the Obama administration filed a brief urging the Supreme Court to overturn the lower-court decision that had allowed Blumenthal's suit to proceed. Environmental activists, tort litigators, and their allies in the legal professoriate were predictably displeased: David Doniger of the Natural Resources Defense Council told the press he was “very angry and very disappointed.”
These eco-lawyers have no intention of deferring to lawmakers and regulators, and as long as the courts permit them to do so, they will continue to try to regulate the environment through lawsuits. Though we need to preserve the right to obtain legal redress of genuine environmental injuries clearly caused by wrongdoers, legislators should enact serious legal reforms to preclude such speculative litigation that lines lawyers' pockets while undercutting democratic decision-making.
James R. Copland is the director of the Manhattan Institute's Center for Legal Policy and author of the Center's latest Report, Trial Lawyers, Inc. Update: Environment.