Tuesday, October 20, 2009

A Very Bad Idea

This is a bad idea (and, as usual, Chris Mooney plays a part):
Hurricane Katrina Victims Have Standing To Sue Over Global Warming

For years, leading plaintiffs’ lawyers have promised a legal assault on industrial America for contributing to global warming.

So far, the trial bar has had limited success. The hurdles to such suits are pretty obvious: How do you apportion fault and link particular plaintiffs’ injuries to the pollution emitted by a particular group of defendants?

Today, though, plaintiffs’ lawyers may be a gloating a bit, after a favorable ruling Friday from the Fifth Circuit in New Orleans, which is regarded as one of the more conservative circuit courts in the country.

The suit was brought by landowners in Mississippi, who claim that oil and coal companies emitted greenhouse gasses that contributed to global warming that, in turn, caused a rise in sea levels, adding to Hurricane Katrina’s ferocity.

For a nice overview of the ruling, and its significance in the climate change battle, check out this blog post by J. Russell Jackson, a Skadden Arps partner who specializes in mass tort litigation. The post likens the Katrina plaintiffs’ claims, which set out a chain of causation, to the litigation equivalent of “Six Degrees of Kevin Bacon.

The central question before the Fifth Circuit was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendant’s actions. The defendants predictably assert that the link is “too attenuated.”

But the Fifth Circuit held that at this preliminary stage in the litigation, the plaintiffs had sufficiently detailed their claims to earn a day in court.

In so holding, the court notably quoted a recent Supreme Court opinion that “accepted as plausible the link between man-made greenhouse gas emissions and global warming” along with the fact that “rising ocean temperatures may contribute to the ferocity of hurricanes.”
Why is this a bad idea? Let us count the ways:
  1. There is, as of now, no clear link between the global warming that has taken place and hurricanes. Indeed, global ACE numbers (Accumulated Energy) are near 30-yr record lows.
  2. There is, and can never be, any direct proof that Hurricane Katrina was caused by global warming, or that any particular storm was.
  3. Hurricane Katrina wasn't even that bad of a storm -- just a very well-aimed one. It was a Cat 5 while out in the Gulf of Mexico, but only a Cat 3 when it hit land.
  4. The dumb civil engineering around New Orleans contributed heavily to the ultimate destruction that occurred.
  5. US gas and oil industries are hardly the ones one in this country -- or the world -- responsible for the global warming that has occurred. You and I and every resident of New Orleans are both partly responsible for our use of fossil fuels in our cars and in heating our homes. As is every car owner around the world, or almost anyone who heats their home, or eats food grown from forest-cleared land.

1 comment:

Anonymous said...

Would one possible line of attack for the plaintiffs be whether the sea-level rise component of climate change could be used to argue that another couple centimeters lower would have saved the levees from being overtopped?