Idiocy among the ruins

Federal Court lets Katrina victims sue oil companies for global warming. We’re watching a society, even a civilization, deliberately commit suicide, which would be fascinating, in a gruesome sort of way, if it weren’t our own.

Next Move: Suing the Sun for Unseasonably Cool Weather

Posted by Ilya Shapiro

The New Orleans-based Fifth Circuit, the federal court of appeals where I once clerked, has allowed a class action lawsuit by Hurricane Katrina victims to proceed against a motley crew of energy, oil, and chemical companies.  Their claim: that the defendants’ greenhouse gas emissions raised air and water temperatures on the Gulf Coast, contributing to Katrina’s strength and causing property damage.  Mass tort litigation specialist Russell Jackson calls the plaintiffs’ claims “the litigator’s equivalent to the game ‘Six Degrees of Kevin Bacon.’”

In Comer v. Murphy Oil USA, the plaintiffs assert a variety of theories under Mississippi common law, but the main issue at this stage was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendant’s actions.  The court dismissed several claims but held that plaintiffs indeed could allege public and private nuisance, trespass and negligence.  The court also held that these latter claims do not present a so-called “political question” that the court doesn’t have the authority to resolve.  You can read about the Court’s ruling in more detail at the WSJ Law Blog and Jackson’s Consumer Class Actions and Mass Torts Blog.

This is actually the second federal appeals court to rule this way; last month, the Second Circuit (based in New York) held that states, municipalities and certain private organizations had standing to bring federal common law nuisance claims to impose caps on certain companies’ greenhouse gas emissions.  Here’s the opinion in that case, Connecticut v. American Electric Power Company, and you can read a pretty good summary and analysis here.

Both of these cases, which herald a flood of global warming-related litigation, so to speak, owe their continuing vitality to the Supreme Court’s misbegotten 2007 decision in Massachusetts v. EPA.  The 2006-2007 Cato Supreme Court Review covered that case in an insightful article by Andrew Morriss of the University of Illinois.  (To get your copy of the latest (2008-2009) Review, go here.)

I should note from my own experience at the Fifth Circuit that the panel here consisted of the two worst judges on the court — Clinton appointees Carl Stewart and James Dennis — and one of Reagan’s weakest federal appellate appointments, Eugene Davis.  Even Davis, however, wrote separately to note that while he agreed on the standing issue, he would have affirmed the district court’s dismissal of the suit on a different ground (that pesky proximate cause issue).

I predict that the full (16-judge) Fifth Circuit will review this case en banc –and if not that the Supreme Court will eventually take it up (if the district court on remand doesn’t again dispose of the case on causation grounds).


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8 responses to “Idiocy among the ruins

  1. polly pavel

    I think its time to move out of this country. I wish I weren’t 34 with up to 50 years left here.

  2. KC

    After the hurricane, there were all sorts of extreme theories about what caused it. I was surprised at how many people, not just in the area but across the country, just could not accept that we have seen many hurricanes before, most people regard them as phenomena of nature and there was no reason to believe that any hostile force controls a hurricane machine. (I actually saw or heard that somewhere.) People in Texas were very disappointed with me because I didn’t see the great political significance which they attached to it. I guess I’m glad to see that this case is from Mississippi, not New Orleans, so it will be harder to introduce voodoo and magic as evidence (just kidding, I hope) but can you imagine the level of the “scientific” evidence if this thing does go to trial? And if it succeeds, think about the suits that will be coming after it. Sure, it was an awful experience but your correspondent in New Orleans does not understand this any better than you do.

  3. networthdeclining

    I hope it goes. Maybe now we will get some facts about global warming or lack there of on the table.

  4. libertarianadvocate

    Perhaps a sanity test should be mandatory prior to appointment as a Federal judge.

  5. Walt

    Dude –
    So under this legal theory, can I claim your hot air has caused my property to devalue? Same thing. No?
    Your Pal,

  6. jimgilvin

    So we can sue Al Gore for the next blizzard?

  7. The Duke of Deceptiom

    We built a f$%^king city below the water line in a hurricane zone. Oh yeah, it’s also below a lake the size of Rhode Island.

    It’s Exxon’s fault. Give me some money.

  8. Roger Kaputnik

    So the great hurricane of 1900, which destroyed Galveston, Texas and occured before the proliferation of oil and chemical companies, was caused by ………..cow farts ?