NEW ORLEANS CAN SUE EMITTERS FOR CLIMATE CHANGE DAMAGES

Hurricane Katrina Victims Have Standing To Sue Over Global Warming
Nathan Koppel, October 19, 2009 (Wall Street Journal)

"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…[because]…How do you apportion fault and link particular plaintiffs’ injuries to the pollution emitted by a particular group of defendants? …[But a ruling] from the Fifth Circuit in New Orleans, which is regarded as one of the more conservative circuit courts in the country [may change things]…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…[Mass tort litigation attorney] J. Russell Jackson…likens the Katrina plaintiffs’ claims, which set out a chain of causation, to the litigation equivalent of Six Degrees of Kevin Bacon."

From the U.S. Climate Change Research Program. (click to enlarge)

"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.'"

click to enlarge

"…[T]he broader significance of the ruling…[according to attorney Jackson, is that it] will invite more climate-change litigation in the future…Last month, he notes, the Second Circuit held that states and municipalities had standing to sue to impose on caps on certain companies’ greenhouse gas emissions…

"In contrast with the Second Circuit, the Fifth Circuit case may be particularly inviting to tort lawyers, since the New Orleans court opened the door to…[private litigants bringing a class action, seeking an enormous amount of damages but]… the Fifth Circuit’s ruling 'does not mean there is enough causation evidence to survive a motion to dismiss.'"