The Law US court opens climate change litigation floodgates

[bit_pattern]

Should be interesting to see how this pans out. If there is one thing that should scare the bejeesus out of the fossil fuel lobby it is the prospect of massive class actions against them in the not too distant future. I wonder if this 'externality' has been factored into the cost-benefit analyses suggesting that mitigation isn't worth the cost?

• October 19, 2009, 1:16 PM ET

Hurricane Katrina Victims Have Standing To Sue Over Global Warming

By Nathan Koppel

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. Here’s a link to the ruling.

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. (See photo of Bay St. Louis, Miss., after the storm.)

 

[WA ROO]

Only in America

 

[bit_pattern]

Oh, I don't know, we could well start to see these sorts of cases in Australia.

 

[fairdinkum]

You cannot seriously support this, can you Bitpattern?

Absolutely farcical.

 

[Generalissimo]

If the sea level rises, can low-lying island nations like Kiribati and Marshall Islands regard the submerging of their country as an act of war and take it up with the UN?

 

[bit_pattern]

You cannot seriously support this, can you Bitpattern?

Absolutely farcical.

How so? Sounds perfectly reasonable to me. Not too much different to the tobacco and asbestos class suits of the 80's and 90's.

From the ruling:

Plaintiffs’ civil conspiracy claim asserts that certain defendants were aware for many years of the dangers of greenhouse gas emissions, but they unlawfully disseminated misinformation about these dangers in furtherance of a civil conspiracy to decrease public awareness of the dangers of global warming. Finally, plaintiffs’ fraudulent misrepresentation claim asserts that defendants knowingly made materially false statements in public relations campaigns to divert attention from the dangers of global warming, so as to dissuade government regulation, public discontent and consumer repulsion; that both government actors and the general public were unaware that these statements were false; that government officials and the general public acted upon defendants’ statements; and that plaintiffs suffered injuries as a result of that reliance.

Hard to argue with that.

It's about time that that the fossil fuel lobby be held accountable for it's campaign of wilful misinformation

 

[Tex_21]

If the sea level rises, can low-lying island nations like Kiribati and Marshall Islands regard the submerging of their country as an act of war and take it up with the UN?

This is where it could lead. This has opened a huge can of worms that will never be resolved. COngratulations America-you've done it again.

 

[bit_pattern]

^^ So industries shouldn't be held accountable for lying about and misrepresenting the dangers of their products and doing everything in their power to prevent policy makers from making informed decisions on those dangers?

 

[Generalissimo]

This is where it could lead. This has opened a huge can of worms that will never be resolved. COngratulations America-you've done it again.

I'd say those nations would have a legitimate grievance.

 

[SergioGeorgini]

Should be interesting to see how this pans out. If there is one thing that should scare the bejeesus out of the fossil fuel lobby it is the prospect of massive class actions against them in the not too distant future. I wonder if this 'externality' has been factored into the cost-benefit analyses suggesting that mitigation isn't worth the cost?

Regardless of your position on global warming, this is a terrible legal decision. But it only deals with the question of standing, that is, whether a case can even be brought by the plaintiffs in the first place - certaintly doesn't mean they have proved anything. All the court is saying is, 'yeah we think there might be a sufficient connection between the plaintiff's loss and the defendant's actions to let you run this case.' When it gets to the trial proper the plaintiffs case will be destroyed because they simply can't prove a link between their loss and the actions of the defendants.

But even if a court were misguided enough to uphold a 'climate change claim' the government would swiftly pass legislation to prevent these types of claims for political reasons. So I don't think coal fired power station owners would be too concerned (yet).

It's not a good sign though for rationality. At the end of the day we're the ones who will pay for this kind of stupidity.

 

[SergioGeorgini]

How so? Sounds perfectly reasonable to me. Not too much different to the tobacco and asbestos class suits of the 80's and 90's.

From the ruling:



Hard to argue with that.

It's about time that that the fossil fuel lobby be held accountable for it's campaign of wilful misinformation

Actually the court did argue with that. They dismissed these claims. The only claims that survived were the negligence, trespass and nuisance claims, which in itself is ridiculous.

 

[bit_pattern]

Thanks for the info on the case, legalese can be a bit much to wade through at times.

But, as for who pays, we all pay when calamities like Hurricane Katrina strike. Global warming is a stupidity for which we will be paying a very high price for a very long time. This sort of issue is going to become more and more common in the courts as the effects of climate change really start taking old and the issue of responsibility is going to be critical.

 

[Cap]

great just what we need, another way for lawyers to get rich.

I blame the industrial revolution for climate change so who the **** do I sue for that

why do people always need to focus on blame rather than solution

 

[Tex_21]

^^ So industries shouldn't be held accountable for lying about and misrepresenting the dangers of their products and doing everything in their power to prevent policy makers from making informed decisions on those dangers?

They should be-but not to individuals. This is a case for government intervention. Following this line of process, all negative externalities will become grounds for litigation.

If someone builds a house that obscures your view-can you sue? (provided no council regulations are broken) No you can't. And the gulf gets hurricanes every year-the people who live there no that, or at least they ****ing should!

 

[bit_pattern]

great just what we need, another way for lawyers to get rich.

I blame the industrial revolution for climate change so who the **** do I sue for that

why do people always need to focus on blame rather than solution

Well, America has a litigation-happy system, no doubt, and I'm sure most people would prefer a solution than a financial settlement, but when the government and big polluting industry lobbies move mountains to prevent solutions being put into place then where else can people turn to in order to redress their grievances?

 

[bit_pattern]

They should be-but not to individuals. This is a case for government intervention. Following this line of process, all negative externalities will become grounds for litigation.

I'm certainly no law-talking-guy, but... don't class actions usually result in settlements for individuals? If an individual has their property damaged due to the actions of an industry then why shouldn't that individual be the one to receive financial settlement?

And, negative externalities, there are plenty of examples where courts have ruled that negative externalities have become grounds for litigation. Think communities that hav been poisoned by industry practices, Erin Brokavitch type stuff - I can't be bothered digging up examples but I am sure you know what I mean - or Jame Hardie and it's employees. I don't see why this would be any different to those examples, except perhaps in definitively proving the causation between emissions and particular events, like Katrina.

 

[SergioGeorgini]

Thanks for the info on the case, legalese can be a bit much to wade through at times.

But, as for who pays, we all pay when calamities like Hurricane Katrina strike. Global warming is a stupidity for which we will be paying a very high price for a very long time. This sort of issue is going to become more and more common in the courts as the effects of climate change really start taking old and the issue of responsibility is going to be critical.

According to the site below, hurricane intensity and frequency has dropped. Even Al Gore is no longer claiming global warming = more and fiercer hurricanes. At the very least, scientists can't agree on it. I can't see how a jury would hold that on the balance of probabilities a couple of power stations in the US caused Hurricane Katrina. Anyway, isn't it supposed to be a global issue? Like I said, where ever you stand on the issue of AGW, this legal action is just silly.

http://wattsupwiththat.com/2009/09/22/global-warming-more-hurricanes-still-not-happening/

 

[Tex_21]

I'm certainly no law-talking-guy, but... don't class actions usually result in settlements for individuals? If an individual has their property damaged due to the actions of an industry then why shouldn't that individual be the one to receive financial settlement?

And, negative externalities, there are plenty of examples where courts have ruled that negative externalities have become grounds for litigation. Think communities that hav been poisoned by industry practices, Erin Brokavitch type stuff - I can't be bothered digging up examples but I am sure you know what I mean - or Jame Hardie and it's employees. I don't see why this would be any different to those examples, except perhaps in definitively proving the causation between emissions and particular events, like Katrina.

THose cases you have mentioned (I'm not as familiar with Erin Brokavich (sp?) but certainly James Hardie) have a much more cler and concise line of fault than Hurricane Katrina. If (a massive if) it was caused by global warming, what has caused all other hurricanes in the Gulf? And more importantly, how can that be pinned on a couple of specific emitters? Isn't it a global problem? Why not sue China? Pittsburgh? Germany?

 

[bit_pattern]

According to the site below, hurricane intensity and frequency has dropped. Even Al Gore is no longer claiming global warming = more and fiercer hurricanes. At the very least, scientists can't agree on it. I can't see how a jury would hold that on the balance of probabilities a couple of power stations in the US caused Hurricane Katrina. Anyway, isn't it supposed to be a global issue? Like I said, where ever you stand on the issue of AGW, this legal action is just silly.

http://wattsupwiththat.com/2009/09/22/global-warming-more-hurricanes-still-not-happening/

I wouldn't be taking anything I read at WUWT as gospel.

Is it any surprise that hurricane intensity was at its height in the late 90's, when the globe was at its warmest?

Compare the chart with global temps over the same period

http://farm4.static.flickr.com/3169/2604836403_6b075902b3.jpg

http://wattsupwiththat.files.wordpress.com/2009/09/fsu-ace_vs_giss-oceantemp4.png

It's funny that the same crew who are pushing the global cooling meme wouldn't notice the change in hurricane intensity has dropped at the same time as global temperatures are supposedly dropping.

Meanwhile, in the scientific journals

http://www.nature.com/news/2008/080903/full/news.2008.1079.html

And, you are right about it being a global problem, but the US has contributed well over a third of the accumulated emissions that have built up over the last 50 years, so their industry has to accept a lions share of the blame.

 

[Ripper]

This is a positive move. All the evidence will have to be tabled and the plainiff's will have to prove that co2 is at fault.

They will have their work cut out.

As tallbloke points out

tallbloke (04:35:29) :
http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-chapter9.pdf
Here’s the key passage as I see it:

In all simulations shown in Figure
6.13, the late 20th century is warmer than any other multidecadal
period during the last millennium. In addition, there
is significant correlation between simulated and reconstructed
variability (e.g., Yoshimori et al., 2005). By comparing
simulated and observed atmospheric CO2 concentration during
the last 1 kyr, Gerber et al. (2003) suggest that the amplitude
of the temperature evolution simulated by simple climate
models and EMICs is consistent with the observed evolution
of CO2. Since reconstructions of external forcing are virtually
independent from the reconstructions of past temperatures, this
broad consistency increases confidence in the broad features of
the reconstructions and the understanding of the role of external
forcing in recent climate variability. The simulations also
show that it is not possible to reproduce the large 20th-century
warming without anthropogenic forcing regardless of which
solar or volcanic forcing reconstruction is used (Crowley, 2000;
Bertrand et al., 2002; Bauer et al., 2003; Hegerl et al., 2003,
2007), stressing the impact of human activity on the recent
warming.
So by ignoring all the studies whose reconstructions show a warmer medieval warm period, they are able to claim that the models and the reconstructions mutually reinforce each other. And by downplaying medieval temps, they can claim a good correlation with co2 and therefore the AGW hypothesis is strongest in explaining C20th temp rise.
Mann is debunked, Briffa is debunked. What’s left?

You can see here and here the problems with lead authors and the IPCC review process.

 

[bit_pattern]

THose cases you have mentioned (I'm not as familiar with Erin Brokavich (sp?) but certainly James Hardie) have a much more cler and concise line of fault than Hurricane Katrina. If (a massive if) it was caused by global warming, what has caused all other hurricanes in the Gulf? And more importantly, how can that be pinned on a couple of specific emitters? Isn't it a global problem? Why not sue China? Pittsburgh? Germany?

All good points. I think that finding a causality between Katrina and GW is next to impossible, but as time goes on this will become a much clearer issue. The argument about hurricanes in the Gulf relate to frequency and intensity, while NO suffers hurricanes normally I think the question is would it have been as intense, and as a result would there have been as much property damage, without the impact of GW. Also, hurricanes are only the tip of the iceberg (or the eye of the storm, if i don't want to mix my metaphors) in terms of future litigation. In the future there is likely to be more and more events with stronger and stronger links to GW, and these cases will have to resolve the issue of responsibility. As I said above, US industry is responsible for over a third of emissions accumulated over the last fifty years, so there is definitely a case that US industry is more responsible than industries from other countries.

 

[bit_pattern]

This is a positive move. All the evidence will have to be tabled and the plainiff's will have to prove that co2 is at fault.

They will have their work cut out.

As tallbloke points out



You can see here and here the problems with lead authors and the IPCC review process.

Let's leave the discussion about the politics of GW to the other threads. We really don't need to have a cut and paste war over who is more right, the bloggers or the scientists, in this thread. kthxbye

 

[SergioGeorgini]

All good points. I think that finding a causality between Katrina and GW is next to impossible, but as time goes on this will become a much clearer issue. The argument about hurricanes in the Gulf relate to frequency and intensity, while NO suffers hurricanes normally I think the question is would it have been as intense, and as a result would there have been as much property damage, without the impact of GW. Also, hurricanes are only the tip of the iceberg (or the eye of the storm, if i don't want to mix my metaphors) in terms of future litigation. In the future there is likely to be more and more events with stronger and stronger links to GW, and these cases will have to resolve the issue of responsibility. As I said above, US industry is responsible for over a third of emissions accumulated over the last fifty years, so there is definitely a case that US industry is more responsible than industries from other countries.

Even if this were the case, from a legal point of view it is impossible to prove causality, as you point out yourself.

But do you really believe there will be increased disasters as a result of AGW? Personally, I think AGW theory is wombat s**t, but I'm an open minded guy. If there was a clear trend of the globe getting hotter each year and a clear trend of more and more hurricanes and tsunamis and whatever other natural disasters are caused by AGW then I would reconsider my view. But it just aint happening.

 

[bit_pattern]

Even if this were the case, from a legal point of view it is impossible to prove causality, as you point out yourself.

Isn't that what the 5th Circuit has done to some degree in this decision?

But do you really believe there will be increased disasters as a result of AGW? Personally, I think AGW theory is wombat s**t, but I'm an open minded guy. If there was a clear trend of the globe getting hotter each year and a clear trend of more and more hurricanes and tsunamis and whatever other natural disasters are caused by AGW then I would reconsider my view. But it just aint happening.

Well, as I said to Ripper, we can have that debate in the multitude of threads dedicated to the topic.

But, yes, according to the scientific literature, GW will lead to a whole raft of disasters - from hurricanes and sea level rise, mass migration, the dust bowl-ification of productive agricultural land, increases in wildfires etc. Global warming is already costing economies a lot, and will only cost them more in the future, you only have to look at the astronomical sums California is spending on fighting wildfires of increasing frequency and intensity. These are all issues that are going to come up in the future and many aggrieved parties will be looking for responsibility. And it is not just a matter of litigation, these are questions the insurance industry is starting to take very seriously.

 

[SergioGeorgini]

Isn't that what the 5th Circuit has done to some degree in this decision?

Yes they did; good point. Highly unlikely to succeed at a proper trial though, but apparently this court thought there was enough chance of success to let it go to trial. Astonishing as I think that is.

Well, as I said to Ripper, we can have that debate in the multitude of threads dedicated to the topic.

But, yes, according to the scientific literature, GW will lead to a whole raft of disasters - from hurricanes and sea level rise, mass migration, the dust bowl-ification of productive agricultural land, increases in wildfires etc. Global warming is already costing economies a lot, and will only cost them more in the future, you only have to look at the astronomical sums California is spending on fighting wildfires of increasing frequency and intensity. These are all issues that are going to come up in the future and many aggrieved parties will be looking for responsibility. And it is not just a matter of litigation, these are questions the insurance industry is starting to take very seriously.

Fair enough. Don't agree with you on the armegeddon stuff, but you're right it's for another thread.