[StBernard] Suing Energy Companies for Hurricane Katrina

[Westley Annis]

Suing Energy Companies for Hurricane Katrina
Written by Ann Shibler     
Friday, 23 October 2009 08:00  

A new skirmish in the global warming/climate change debate is playing out in
U.S. courts with a lawsuit filed by victims of Hurricane Katrina against
oil, gas, and coal companies for their alleged contribution - via greenhouse
gas emissions - toward increasing the severity of the hurricane, thereby
causing more damage to property.

Comer v. Murphy Oil USA is a class action suit filed by 14 victims of the
great hurricane that the Fifth Circuit Court of Appeals has seen fit to
advance. A previous court, the Second Circuit, reversed an earlier trial
court decision that had thrown out the lawsuit saying it was a
nonjusticiable political question that could not be settled in the courts
because of an absence of regulatory federal legislation in the matter of
greenhouse gas emissions.

Specifically, the plaintiffs in Comer are suing because greenhouse gas
emissions contributed, they insist, to an increase in air and water
temperatures, causing a rise in sea levels, which in turn added to the fury
of the hurricane and hence more destruction. They also asserted that the
energy companies are guilty of: Being a public nuisance, a private nuisance,
trespassers, negligent, unjust enrichment, fraudulent misrepresentation, and
civil conspiracy.

The Fifth Circuit has already dismissed the claims for unjust enrichment,
fraudulent misrepresentation and civil conspiracy - the rest of the charges
still stand. The Court said:

The plaintiffs' complaint alleges that defendants' emissions caused the
plaintiffs' property damage, which is redressable through monetary damages;
for example, the plaintiffs allege that defendants' willful, unreasonable
use of their property to emit greenhouse gasses constituted private nuisance
under Mississippi law because it inflicted injury on the plaintiffs' land by
causing both land loss due to sea level rise and property damage due to
Hurricane Katrina.

How is direct causation going to be established in cases such as this,
seeing as how the whole global warming theory is under serious question as
to its causes by tens of thousands of serious scientists across the globe?
Even if such a causation could be established, how could companies in the
United States be held liable for the damages, when third world countries and
major industrial nations like China have emissions far above those in the
U.S.? Looking back at the most powerful hurricanes in recorded history, the
one in 1900 that hit Galveston, Texas, and Camille in 1969, which was a
Category 5, we can ask: Did global warming contribute to the power of those
hurricanes as well?

The whole allegation is absurd. 

Nonetheless, the Fifth Circuit Court, whose panel members consist of two
Clinton appointees and one Reagan appointee, will give this case a day in
court, having stated that, upon examination, the case did not involve issues
that were "constitutionally committed to another branch of government," or
that "require adherence to a previously-made political decision." Therefore
the plaintiffs have standing to bring federal common law nuisance claims to
impose caps on certain companies' greenhouse gas emissions - this being in
accord with the New York Second Circuit's decision just last month. (Not
being a lawyer, this still sounds as though the Fifth Circuit is more than
tempted to set a cap on CO2 emissions for starters, thereby creating laws
where none exist. This doesn't fall under the category of interpreting the
law, as the judicial branch was intended to do.)

The Fifth Circuit Court is going to rely on the "fairly traceable" concept
for its final decision in assigning possible redress, because for this,
there is already a precedent. In the Massachusetts v. EPA ruling, the fairly
traceable concept was said to have been met when just a contributing cause
was shown, leaving the establishment of a primary cause completely out of
the picture. In that case the Supreme Court accepted, says the Fifth Circuit
Court, "as plausible the link between greenhouse gas emissions and global
warming" along with the notion that "rising ocean temperatures may
contribute to the ferocity of hurricanes." But does accepting something as
plausible necessarily fit the "fairly traceable" concept?

It's really no surprise that global warming/climate change policy
manipulators have launched a legal assault on American industry for the
supposed crime of contributing to global warming. Because, in the past, when
legislative efforts have failed to achieve certain agendas, the courts have
supplied the ways and means, e.g., Roe. v. Wade.

Given our overly-litigious society, often directed by lawyers with a view to
what could be enormous contingency fees, the promise of copycat lawsuits is
only too obvious. And once a precedence is established, there will be a
tsunami of lawsuits to further decimate the already over-regulated energy
industries, clog the courts, and fill the pockets of greedy attorneys, so
this type of litigation is a win-win for climate change activists and
lawyers and global policy manipulators.

Right now there is absolutely no positive proof that CO2 or any other
greenhouse gas is responsible for a rise in temperatures and sea levels, nor
the strength of winds, but leave it to liberal activist judges to legislate
this false science. Then the courts could, after establishing standards or
caps on emissions, decide which activities of yours and mine are excessive
under the caps - equating such activities as a nuisance - and enforce a
cease-and-desist policy by law.