News and Observer Op-ed: Bill Would Weaken Neighbors' Ability to Be Compensated in Hog Farm Lawsuits
This op-ed originally ran in the Raleigh News & Observer.
The civil justice system in North Carolina exists to protect people and their property from unreasonable actions by others. One of the longest standing causes of action in civil courts is for nuisance claims, which allow you to bring suit when your neighbor creates a condition on their property that interferes with your ability to use and enjoy your property, such as excessive noise, poorly stored garbage that might attract vermin or foul odors.
Yet, House Bill 467, which is being fast-tracked through the legislature, would prevent hundreds of rural landowners from recovering more than token damages even if a court were to decide that the corporations responsible for factory farming have committed just such a nuisance.
Nuisance suits are already limited to addressing conditions that are unreasonable for the area where they occur. They also protect pre-existing businesses, such as farms, from suits by people who "come to the nuisance" and then take issue with their surroundings. In rural agricultural areas, some noise, dust and smells are expected and reasonable; our state's Right to Farm Act adds additional protections for farmers from being sued over such typical agricultural impacts on neighbors. So why eliminate damages for landowners that prove a nuisance which does not involve a typical agriculture impact?
The timing of HB 467 is suspicious because it would affect a nuisance lawsuit already filed by hundreds
New CPR Report: Protecting the Rights of Victims of Defective Aircraft
Many Americans would likely be shocked to learn how lax government oversight of the manufacture and design of aircraft, such as airplanes and helicopters, has become. After all, any list of those areas of the economy that would seem to cry out for strict regulation would have to include aircraft production and maintenance, considering that when aircraft are defective or contain defective parts, the consequences are almost inevitably catastrophic and tragic. Yet, in a 2004 audit, Congress' nonpartisan Government Accountability
It's Time to Give Customers of Financial Services and Products Their Day in Court
Originally published by the Oxford Business Law Blog. Reprinted with permission. Forced arbitration clauses are now almost impossible to avoid in consumer contracts for financial services and products ranging from credit cards to private student loans. Despite their ubiquity, most consumers aren't even aware of them. This is because companies frequently bury them deep in the lengthy fine print of their contracts, which they then offer to consumers on a 'take it or leave it' basis. Forced arbitration clauses warrant
Representing Workers Injured on the Job – A New York Perspective
When it comes to worker health and safety, preventing injuries and illnesses is the number one goal. It was for this very purpose that Congress enacted the Occupational Safety and Health Act (OSH Act) and tasked the Occupational Safety and Health Administration (OSHA) with setting and enforcing strong workplace standards. But when preventative measures fail and workers are harmed, agency enforcement actions against the employer (while necessary) don't provide legal redress to workers or their families for the damages they've
Comments from CPR: Forced Arbitration Proposal Is Strong but Should Be Stronger
Yesterday, several CPR Member Scholars and staff formally submitted comments on the Consumer Financial Protection Bureau's (CFPB) proposed rule to limit the use of forced arbitration agreements in consumer contracts for financial products like credit cards and bank accounts. CPR Member Scholars and staff have been tracking this rulemaking for over a year and in May 2016 published a report that assessed several key issues shortly before the CFPB released its proposal. In particular, our report evaluated the CFPB's preliminary
Statutory Standing After the Spokeo Decision
One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question. The Court has made it clear that there is a constitutional core of the doctrine with three elements: a concrete injury in fact, a causal link between the injury and the defendant's conduct, and a
New Paper: Americans Hurt By Forced Arbitration Agreements with Big Banks, Credit Card Companies
NEWS RELEASE: New Paper Shows Americans Hurt By Forced Arbitration Agreements with Big Banks, Credit Card Companies Forthcoming Rule from Consumer Financial Protection Bureau Offers Some Solutions, but More Can Be Done to Protect Consumers Opening a checking account or using a credit card is an essential, everyday activity for many Americans, but most financial services are governed by pages of fine print, much of which is difficult to navigate and understand. As a new paper from the Center for
The Next Justice and the Fate of the Clean Water Act
Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involve only a technical issue about administrative procedure, he dropped the suggestion that the Clean Water Act just might be unconstitutionally vague. It didn't seem to faze him that such a ruling would wipe out a statute that has been on
Clean Water Act Jurisdiction and the Changing Supreme Court
by Dave Owen | March 07, 2016
Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that
Blankenship Convicted in Massey Coal Mine Disaster
Justice was done today by a hard-working jury in West Virginia that convicted Don Blankenship of conspiracy to obstruct federal mine safety rules. This conspiracy was the primary cause of an enormous explosion that killed 29 men in the worst mine disaster in 40 years. Although the jury was not presented with the question of whether Blankenship was directly responsible for the explosion, it did decide that he played Russian roulette with miners’ lives. By underfunding efforts to comply with and harassing
Labor Board's New 'Joint Employer' Standard Offers College Football Players a Second Chance
by Katie Tracy | September 10, 2015
Marking a victory for workers, on August 27, the National Labor Relations Board (NLRB) issued a highly anticipated decision in the case of Browning-Ferris Industries, updating its overly restrictive standard for determining “joint employer” status for purposes of collective bargaining. The decision responds to the increasing reliance on contingent work arrangements that often involve multiple employers, and reflects the Board’s recognition that its application of labor law must be adjusted to address the realities of today’s economy. Much of the
Clean Air versus States Rights
A sleeper decision by the D.C. Circuit upholds federal air pollution authority. The D.C. Circuit’s decision last week in Mississippi Commission on Environmental Quality v. EPA didn’t get a lot of attention, despite having a very significant constitutional ruling. Since the constitutional discussion doesn’t start until about page seventy, after many pages of scintillating discussion of matters like the reliability of private air pollution monitors and the meaning of the word “nearby”, I guess it shouldn’t be a surprise that the case has
Corporate Crime Is Not 'Civil Disobedience'
Cross-posted with ACSBlog. The Wall Street Journal recently devoted nearly two pages of its Saturday Review section to an editorial by Charles Murray of the American Enterprise Institute urging American corporations to violate laws that they deem to be “pointless, stupid or tyrannical” as acts of civil disobedience. The article, which is a capsule summary of his recently published book titled By the People: Rebuilding Liberty Without Permission,” betrays a profound misunderstanding of the concept of civil disobedience and a deplorable contempt for the laws that
GM and Its No Good, Very Bad Year
With the announcement that GM Chief Executive Officer Mary Barra received the outsized compensation of $16.2 million in 2014, what should have been a year of humiliation and soul-searching for that feckless automaker instead ended on a disturbingly self-satisfied note. Purely from a public relations perspective, Barra worked hard for her money. Appearing repentant, sincere, and downcast, she persuaded star-struck members of Congress that the company was committed to overhauling a culture characterized by what she called the “GM shrug,”
The Horne Case and the Public Trust in Wildlife
Who could have imagined that the takings case of Horne v Department of Agriculture argued in the Supreme Court last week might portend revival of the doctrine of public trust ownership of wildlife? But it might. Really. The Horne case involves a claim that an arcane raisin-marketing program administered by the Department of Agriculture effects a taking by requiring raisin growers, in certain years, to turn over a portion of their crop to the government in order to keep raisin prices high. While there
Urban Parks and the Public Trust Doctrine: A Pending New York Lawsuit and Its Implications
Urban parks are a much-prized resource. They provide city dwellers with safe places to relax, walk their dogs, supervise their children at play, plant gardens, contemplate nature, pursue recreational activities, and escape the multiple stresses of urban life. At the same time, however, particularly in prosperous cities where open land is scarce and real estate values are high and growing ever-higher, some urban parks are under threat. Where they feel they can find legal avenues to do so, developers who
The Importance of the Murray Energy Case and Administrative Procedure
Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants. Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention. The rule’s importance is precisely why it is critical that the agency complete the administrative process. That industry groups will file lawsuits over EPA’s greenhouse gas initiatives is unremarkable.
The Stuff of an 'Extraordinary Writ' or a Hum-drum Administrative Law Case?
Reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA In a rulemaking there is a provision for judicial review, right, it’s not going to be a question that’s avoided . . . when the rule comes out, it’s going to be challenged, we’re going to get to it. Why in the world would we resort to an extraordinary writ, which we have never used before? So it really is quite unusual. - Judge Griffiths, remarking on