5th Circuit: Hurricane Katrina Victims Have Standing to Sue over Global Warming

An interesting post at The Wall Street Journal's Law Blog, concerning a recent Fifth Circuit ruling on climate change and standing in Comer v. Murphy Oil USA:

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.

Russell Jackson, a mass torts litigator at Skadden Arps, discusses the ruling in his blog, noting that this was the second instance where a court has ruled a climate change claim as justiciable:

(The Second Circuit previously had held that in the absence of comprehensive federal legislation regulating greenhouse gas emissions, states, municipalities and certain private organizations had standing to bring viable federal common law nuisance claims to impose caps on certain companies' greenhouse gas emissions.  See Connecticut v. American Elec. Power Co., 2009 WL 2996729 (2d Cir. Sept. 21, 2009.  A good description of that opinion can be found here.)

Jackson notes that the Comer decision "is particularly important because it is a private class action for compensatory and punitive damages, not a suit brought by states or municipalities for injunctive relief." Consequently, this brings along the "promise of copycat lawsuits."

If a court finds standing with a claim as described above, one has to wonder how far they can answer questions pertaining to causation. (Is the plaintiff's injury "fairly traceable" to the defendant's actions?) "Experts" claim that climate change makes some regions drier, others wetter, some warmer, and some even cooler. Can a farmer in Texas sue his local coal power plant for a poor crop due to a drought caused by climate change (brought on at least partly by the plant's greenhouse gas emissions)? Can a ski resort sue a local factory for no snow due to a lack of cold temperatures? Who is to say that the defendant's emissions were behind that specific manifestation of climate change? What about the issue of damages?