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Creative Common Law Strategies for Protecting the Environment.

Creative Common Law Strategies for Protecting the Environment

Clifford Rechtschaffen and Denise Antolini, editors Environmental Law Institute

426 pp., $69.95


In Thomas v. Mallett in 2005, the Wisconsin Supreme Court modified the common law to relieve lead-poisoned children of the need to identify the manufacturer of the lead pigment that actually poisoned them. Quoting an earlier decision, the court noted: "Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose." This statement exemplifies the theme that runs through Creative Common Law Strategies for Protecting the Environment.

The book is edited by Clifford Rechtschaffen, professor and director of the environmental law program at Golden Gate University School of Law in San Francisco, and Denise Antolini, professor and director of the environmental law program at the William S. Richardson School of Law in Honolulu. Their book is a fascinating review of the varied ways environmental activists are increasingly turning to the common law to remedy the effects of several decades of federal courts' anti-environmental activist decisions.

Such decisions have limited--and in many instances neutered--the viability of statutory environmental law. The old common law theories of trespass, nuisance, fraud, negligence, products liability, and public trust have been dusted off, and the results in some instances have been inspiring.

Among the innovations the book chronicles is the account of Katie Zoglin, deputy county counsel for Santa Clara County, California, regarding the landmark jury verdict in Rhode Island against three former manufacturers of lead paint pigments, a result that required the abatement of lead paint health hazards throughout the state. The innovative use of the public nuisance doctrine championed by plaintiff lawyer Fidelma Fitzpatrick stands to make Rhode Island the first state in the nation to actually solve the festering problem of childhood lead poisoning once and for all.

Zoglin notes how lawyers in lead paint litigation have used creative analogy to case law from other contexts to assert claims for negligent creation of a market by way of promoting the product--as distinct from the more classical forms of products liability, which focus on the product itself. She cites cases against gun manufacturers, such as Cincinnati v. Beretta U.S.A. Corp. and Ileto v. Glock, as examples. This strategy represents a significant innovation in the face of growing statutory limitations on products liability cases.

Similarly, former University of Oregon law professor Michael Axline describes how the court in In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation adopted a "commingled product" variant of market-share liability for MTBE cases involving contaminated groundwater. And there is just irony in the fact that Lyondell Chemical Co., a defendant in the MTBE litigation, is the parent of Millennium Holdings, a defendant in the Rhode Island lead paint litigation, and both have been held to account for environmental catastrophes through novel applications of the common law.

Kapua'ala Sproat and Issac Moriwake, both attorneys with the Honolulu office of Earthjustice, passionately describe the use of the public trust doctrine in the Waiahole water rights case, in which the Hawaii Supreme Court recognized an expansive state water resources trust that extended to "all water resources without exception or distinction." The trust imposed on the state a "duty to promote the reasonable and beneficial use of water resources in order to maximize their social and economic benefits to the people of this state" and commanded respect for native Hawaiians' traditional and customary rights. The case represents a resounding and inspiring victory for the windward communities of the island of Oahu against wealthy agribusiness and the established political power structure.

Rechtschaffen and Antolini have pieced together a useful, varied account of an important recent trend: "the re-emergence of the common law as a potent tool for protecting the environment." From the use of ordinary negligence claims as a reliable weapon for dealing with pollution from concentrated animal feeding operations in Wisconsin; to the use of a failure-to-warn theory in addressing drinking water contamination by a dry-cleaning solvent in Modesto, California; to the use of theories of public trust, public nuisance, and trespass in protecting wildlife and threatened habitats, Creative Common Law Strategies for Protecting the Environment provides environmental practitioners with helpful and potentially adaptable strategies. This book deserves a place in the library of all lawyers committed to environmental and social justice.

PETER EARLE has a law practice in Milwaukee.
COPYRIGHT 2008 American Association for Justice
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Author:Earle, Peter
Article Type:Book review
Date:Apr 1, 2008
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