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.

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DDW said:

	Escuse me But I think I have to go and puke.
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October 23, 2009
Votes: +3

RP said:

It's called WEATHER, you dumb a$$! At the time it made landfall, Katrina was a Category 3 hurricane (previously reported has a Category 4, but that has been revised). So you want to sue because you failed to get out of your below sea level shack when you were warned and ended up getting rained on. Then you shot at the people who tried to rescue you. And it is all the oil, gas, and coal companies fault? Any judge stupid enough not to dismiss the case in totality the second it hits his desk should be impeached for gross incompetence. Get in line, DDW.

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October 23, 2009
Votes: +3

Still Free said:

Climate Change (a/k/a Global Warming) is Total Poppycock. Let's not forget deadly Hurricane Betsy in 1965, and many others [Carla, Audrey, Opal, Hugo (NC) Andrew (Fla), Georges (1998), Ivan, and Ike (TX), to name but a few]. As Ms. Shibler said, the court action is two-fold: (1) create a precedent for more government control; and (2) payback to contributors of the Left's campaign war chests. I take issue with one statement of the writer and one post: The writer states that there "could be enormous contingency fees." Totally false. Given the mindset of most jury pools, there WILL BE enormous contingency fees, just like in the tobacco lawsuits which were also geared toward destroying an industry (whether you agree with smoking or not it is/was an industry). Of course the Left/Insiders are NOT interested in reeling in plaintiff lawyers seeking huge judgments. Those monster settlements are a source of the campaign funds. Tort reform is the LAST thing they want. [Of course we all know that is the easiest way to reduce health care costs; instead we get socialized medicine which is so great everyone who has it comes here for medical treatment, if they can afford to get here.) The Left is not about "to kill the goose that lays the golden egg." Correction Please! RP, Let's be accurate here. There were hundreds, if not thousands, of $200,000 and up homes, and many, many million dollar homes that were totally destroyed by Hurricane Katrina's surge. True, there were many modest homes, and perhaps even some "shacks" as you refer to them, that were destroyed. But Katrina did not focus only on one class of people, or on one race of people. She destroyed equally across all classes, all races and all ages. The only thing that is more heinous than the storm itself is the fact that Katrina is being used by the Left to destroy all of America--not just a 90-mile stretch of coastline from the La/Tex. line to just inside the Florida panhandle.

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October 23, 2009
Votes: +2

RP said:

	... Still Free: You are correct. Sometimes I get a little carried away with sarcasm! I guess the group I SHOULD be attacking are the ones who either want to blame somebody else for everything bad that happens to them, or see an opportunity to make a buck.
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October 23, 2009
Votes: +2

Paul Harris said:

Just to correct some broad misconceptions I arrived in New Orleans as a tourist Friday night before the Monday storm. The Saints were playing football in the Superdome and Katrina was in the Florida area and not a threat. The minute I was got the evacuation order I took a cab to the train and bus station on Sunday morning. Both were shut down. I later learned that the airport, Amtrak, and Greyhound were all closed 2 days prior to the storm hitting, so it is important that people get their facts right. I ended up spending a hellish time in the Superdome and was thankful for the great work our understaffed National Guard provided. Furthermore if you read past the sensationlized media you'll discover that the police and military couldn't verify any shooting at rescue helicopters etc. No government official (airport & Amtrak are federally related and Greyhound privately) have been able to answer why they shut off this escape route so early. (Diary From the Dome, Reflections on Fear and Privilege During Katrina)

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October 24, 2009 | url
Votes: +2

Still Free said:

To RP RP, Not a problem ... how would you know if you were not there? Or if you had not visited immediately afterwards? If your only news source was TV (which focused almost exclusively on the Nola levee break, which was much more sensational)? You wouldn't ... New Orleans actually faired very well in the storm -- flood-wise and wind-wise. Nola was on the "good side" of the storm, which is the side (quadrant) of the storm that receives the least amount of damage. After the eye passed, officials actually spoke about New Orleans being "spared." It wasn't until after Katrina brushed by Nola, with a slight eastward wobble, that the levees started to break, and that's when along with the levees, all "Hades" broke loose. The levees had held all night, albeit taking a beating, and with constant pressure building ... and as luck would have it, all at High Tide. The eye of Katrina made landfall at Pearlington, Mississippi, east of the Louisiana state line. Pearlington, Ms. was "Ground Zero," not New Orleans, La. From Pearlington to at least Mobile, Alabama, Katrina left utter destruction in her wake. A little trivia for you: Trent Lott (retired Senator, R-Miss.) lost his family home on the waterfront in Pascagoula, Mississippi. That home had been in the family for 100 years. Congressman Gene Taylor (D-Miss.) also found his home a "wash through." His was on the waterfront in Bay St. Louis, Miss. Like I said, Katrina was a great equalizer. Yes, these Congressmen lived right on the water. But before the admonitions start about waterfront living, let's remember that Katrina's surge crossed Interstate 10 and roared almost TWENTY (20) MILES inland. By any stretch of the imagination, 20 miles inland cannot be considered as living on waterfront property. And Katrina was the first hurricane ever to cross Interstate 10, and she left a debris line at the Jordan River I-10 overpass of +30 feet. "The more you know, the less you need." [Anon]

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October 24, 2009
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Still Free said:

	Correction, Please (to original post of Still Free...) The 90-mile reference (of destruction) should have been from the La./Miss. state line and not the Tex./La. state line. It is more than 90 miles between Tex./La. and the Fla. panhandle. Sorry for that...
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October 24, 2009
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