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J. Wylie Donald

J. Wylie Donald

McCarter & English, LLP


Latest Publications

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Fifth Circuit Knocks Out Climate Change Liability Lawsuit Again

Res judicata is one of those phrases learned in law school that seemed of limited utility. How often is someone going to bring the same claim twice?...more

5/16/2013 - Climate Change Liability Res Judicata

Climate Change Legal Work: Changing The Paradigm Does Not Come Easily

I learned the other day that for $3995 I can download nearly a 1000 page report on the climate change industry. The Ah Hah moment was at hand. The President’s promise at his inauguration and then again at the State of the...more

5/9/2013 - Business Development Climate Change

Climate Change Legal Theories: The Atmospheric Public Trust Doctrine Moves Another Step Forward

One of the shibboleths of those following climate change litigation is the idea that new legal theories will be surfaced, fired in the furnace of litigation and then forged as the vehicle for addressing climate change in the...more

4/30/2013 - Climate Change Greenhouse Gas Emissions Public Trust Doctrine

Who Says Catastrophe Bond Payouts Are Not Correlated With The Stock Market?

Here is some food for thought: Catastrophe bond payouts are correlated with climate change. Climate change is correlated with stock market returns. Therefore catastrophe bond payouts are correlated with the stock market. ...more

3/28/2013 - Catastrophe Bonds Climate Change Investors Stocks

Native Village Of Kivalina Files Its Petition For Certiorari - A Five-Year Climate Change Litigation Marathon That Has Yet To...

One day short of five years since the case was originally filed, on February 25, 2013 the plaintiffs in Native Village of Kivalina v. ExxonMobil Corp. attempt once more to get out of the starting blocks, this time with a...more

3/18/2013 - Certiorari Clean Air Act Climate Change Damages Greenhouse Gas Emissions Native Village of Kivalina v ExxonMobil Corp. SCOTUS

Act II At The Obama EPA: Gina Mccarthy (Is Predicted) To Take The Helm

The President gave an indication of his environmental focus in his inaugural address, and then again in his state of the union speech. The focus would be on climate change. ...more

3/1/2013 - Administrative Appointments Cap-and-Trade Climate Change Energy Policy Greenhouse Gas Emissions Obama Administration Renewable Energy

Ten things to do in the wake of this past weekend's severe winter weather

The recent severe winter weather left behind legal and financial problems even deeper than the snow. But it may also have presented you with resources for help that you weren't previously aware of. Businesses may wish to act...more

2/21/2013 - Business Interruption Construction Contracts Natural Disasters Property Insurance Retirement Plan Termination Clauses Time-Off Policies

In Response To Sea Level Rising At Double The Global Rate, Delaware Debates Whether To Accommodate, Avoid, Protect Or Retreat

On February 19, 2013, the Delaware Sea Level Rise Advisory Committee ("DSLRAC") held the second of three "public engagement sessions" to solicit public comment on a list of 61 "Options for Preparing Delaware for Sea Level...more

2/21/2013 - Adaptation Strategies Climate Change DSLRAC Infrastructure National Climate Assessments Natural Resources Sea Levels Vulnerability Assessments

A Theory Of A Moveable Parcel Is Not The Legal Solution To Rising Sea Levels And Beach Front Ownership

The Massachusetts Supreme Judicial Court weighed in on an ugly property rights case last Friday concerning some beautiful beachfront on Martha’s Vineyard. In White v. Hartigan, SJC 11072 (Feb. 8, 2013), the Court considered...more

2/12/2013 - Beachfront Properties Deed of Trust Erosion Moveable Land Boundaries Moveable Parcels Rising Sea Levels

Wind Projects: Bald Eagles Don't Surf

One would think that preliminary estimates of bird fatalities at a proposed 78 MW wind farm in southeastern Minnesota were hardly news. After all, there are over 60,000 MW of wind energy installed in the United States. But...more

2/6/2013 - Bald and Golden Eagle Protection Act Bird Fatalities Department of Fish and Wildlife Endangered Species Act Land-Based Wind Energy Guidelines Permits Renewable Energy Wind Power

Call For Comments On The Third National Climate Assessment

The draft “National Assessment of Supply Chain and Other Developing Risks” was issued just last month. It outlined increasing threats to infrastructure, food and water supplies, air quality, national security, public health...more

2/4/2013 - Air Quality Standards Climate Assessment Report Climate Change Flooding Hurricane Irene Hurricane Sandy Infrastructure Ports Sea Levels Storm Water

On Inaugurations And Liberal Catechisms: Climate Change Makes It Back On The National Agenda

Who knew that civil rights started with an "S" as in Seneca Falls, Selma and Stonewall? In case you missed it Monday, President Obama laid out an ambitious agenda as he began his second term and delivered his second inaugural...more

1/24/2013 - Barack Obama Climate Change

Delaware Advisory Committee Suggests Mandatory Disclosure Of Rising Sea Levels In Real Estate Contracts

If the State dropped a notice in the mail advising you that 10% of your property was going to be condemned without compensation, you would immediately hire a lawyer, seek out the press and raise holy **** about the trampling...more

1/15/2013 - Duty to Disclose Flooding Sea Levels

Top 6 At 12: Highlights Of The Top Climate Change Stories In The Second Half Of 2012

2012 has drawn to a close. We chronicle here six of the most significant stories on the climate change front in the last six months. For those looking for hope that government is taking action to rein in greenhouse gas...more

1/2/2013 - Climate Change Flood Insurance Hurricane Sandy National Environmental Policies Nuisance

Even If You Can't Insure The End Of Days, You Can Insure Some Of The Effects Of Climate Change

Today is the day the world ended. But it didn’t. The spin put by some on the Mayan calendar didn’t pan out and the world continued. Here in Baltimore we didn’t buy into the predictions, but just in case, we went looking...more

12/24/2012 - Catastrophe Bonds Climate Change Farms Green Building Insurance Total Weather Insurance

Western Pa.'s Take On Carbon Dioxide Liability Claims

Originally published in Law360 on December 17, 2012. Left open by the U.S. Supreme Court’s decision in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), was the question of whether state law nuisance...more

12/20/2012 - Clean Air Act Greenhouse Gas Emissions Injunctions Nuisance Preemption

No En Banc Appeal in Kivalina; So What's Next for Climate Change LItigation?

When we discuss climate change litigation with colleagues or acquaintances unfamiliar with it, they are always a little incredulous. “The plaintiffs allege what? How could you prove that? There's no way they can win.” ...more

12/10/2012 - Climate Change Nuisance

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