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Tort Law

What’s Old Is New Again: State Common- Law Tort Actions Elude Clean Air Act Preemption

It usually takes at least three to start a trend, but two recent appellate-level decisions suggest a new air pollution enforcement trend is in the making: Environmental plaintiffs may be able to avoid Clean Air Act (CAA) preemption by...

Being Small in a Supersized World: Tackling the Problem of Low-Level Exposures in Toxic Tort Actions

Low-level toxic tort claims are challenging traditional tort notions of injury and causation. Low-level exposures form the basis of claims in both environmental contamination cases and toxic product liability actions and may involve...

Setting the Bar for “Injury” in Environmental Exposure Cases: How Low Can It Go?

On May 16, 2012, ELI convened a panel of experts to provide an overview and analysis of the tension between regulatory and common-law standards for injury in the context of toxic tort litigation. The speakers discussed and debated...

How Lawsuits Could Ignite an Energy Market: The Case of Anaerobic Digestion

This Article demonstrates that it is possible for lawsuits to ignite a market for an innovative energy technology that otherwise would be too costly to implement. For example,
early adopters of a technology might be able to create...

AEP v. Connecticut—Global Warming Litigation and Beyond

On June 21, 2011, the U.S. Supreme Court in American Electric Power (AEP) v. Connecticut held that the Clean Air Act (CAA), and the U.S. Environmental Protection Agency (EPA) actions it authorized, displaced any federal common-...

<MI>Rapanos v. United States<D>: Searching for a Significant Nexus Using Proximate Causation and Foreseeability Principles

Editors' Summary

The U.S. Supreme Court issued its decision in Rapanos v. United States more than four years ago. Because no single opinion garnered a majority of the Justices' votes, the controlling test for wetlands...

Making the Case for Causation in Toxic Tort Cases: Superfund Rules Don't Apply

While causation is often a paramount obstacle to prosecuting a toxic tort claim, judicial interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) generally has eliminated consideration of...

Run Aground Again: The <MI>Exxon Valdez<D>'s Collision With the Supreme Court's Punitive Damages Jurisprudence

Editors' Summary

After 20 years of litigation, the Supreme Court's decision in the Exxon Valdez case established a new constraint on punitive damages. The decision will impact the future of punitive damage awards in the United...

Getting Back to Basics: Why Nuisance Claims Are of Limited Value in Shifting the Costs of Climate Change

Editors' Summary

Climate change is a global problem to which everyone contributes and from which everyone suffers in unequal proportions. Therefore, common-law nuisance is not a strong theory for plaintiffs to use to shift their...

Global Warming: The Ultimate Public Nuisance

Editors' Summary:

In 2004, eight states filed suit against five major U.S. electric power companies. Together, these companies contribute 25% of the United States' total carbon dioxide emissions. The states' complaint, based on...