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July 31, 2019

GMU Law Prof. Says Judge Allowed “Egregious” Misuse Of Public Nuisance

Prof. Michael Krauss of George Mason University’s Antonin Scalia Law School criticized a Rhode Island federal judge’s “tolerance of a particularly egregious effort by a state to invoke” the public nuisance doctrine.

Prof. Krauss said United States District Court Chief Judge William Smith’s decision to remand Rhode Island’s public nuisance lawsuit against energy companies over climate change to state court is a “threat to the rule of law.” The suit, which relies on a theory he says is “ancient,” is “an invitation to legislate from the bench.” The state, Prof. Krauss says, isn’t accusing the companies of breaking any laws, but rather acted in a way that is “suboptimal for the future of Rhode Island.” He points out, though, that the state “profits enormously from the products of the very same petrochemical industry that it now claims constitutes a nuisance.”

Similar lawsuits have been filed on behalf of cities and counties in other states, but have been met with mixed results. San Francisco and Oakland, for example, had their suits dismissed by a federal judge in California last year.

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