Global Warming Claims Gathering Strength

The New Orleans-based Fifth Circuit Court of Appeals has given the greenlight to a lawsuit claiming Hurricane Katrina was fueled by global warming caused by emissions from 26 oil and 121 chemical companies. http://www.ca5.uscourts.gov/opinions/pub/07/07-60756-CV0.wpd.pdf

The case was brought by New Orleans attorney F. Gerald Maples, http://dev.geraldmaples.com/modules/content/index.php?id=18, who has spent the past 30 years bringing asbestos injury and toxic tort claims and in recent years has led the cause of global warming litigation. He represents Mississippi landlowners who claim the greenhouse gas emissions caused a rise in sea level that fueled Katrina’s fury, leading to the destruction of their property.

District Judge Louis Guirola Jr. http://en.wikipedia.org/wiki/Louis_Guirola_Jr. granted the oil and chemical companies’ motion to dismiss, saying the debate over global warming had “no place in the court,” until Congress acted. http://www.bdlaw.com/assets/attachments/Comer_v_Murphy_Oil_opinion.pdf

However, the 5th Circuit overturned that decision. As the Wall Street Journal reported, http://blogs.wsj.com/law/2009/10/19/hurricane-katrina-victims-have-standing-to-sue-over-global-warming/,  the main question the 5th Circuit faced was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendant’s actions. The defendants claimed any link between the emissions and the destruction was “too attenuated.”

The decision by Judges Eugene Davis http://en.wikipedia.org/wiki/W._Eugene_Davis, Carl Stewart http://en.wikipedia.org/wiki/Carl_E._Stewart and James Dennis http://en.wikipedia.org/wiki/James_L._Dennis was written by Dennis.

The 5th Circuit decision relied in part on a 2007 U.S. Supreme Court case, Massachusetts v. EPA, which found that Massachusetts had standing to challenge the EPA’s decision not to regulate the emission of greenhouse gases, finding plausible the link between man-made greenhouse gas emissions and global warming. http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf. That 5-4 decision was written by Justice John Paul Stevens, with the dissenters led by Chief Justice John Roberts. http://www.supremecourtus.gov/about/biographiescurrent.pdf

Legal experts are predicting a surge in climate change litigation following the decision. Skadden partner J. Russell Jackson http://www.skadden.com/index.cfm?contentID=45&bioID=1396 provided a good analysis noted by the WSJ. http://www.consumerclassactionsmasstorts.com/2009/10/articles/standing/fifth-circuit-reverses-dismissal-of-climate-change-class-action-brought-by-private-plaintiffs-who-blame-hurricane-katrina-on-global-warming/

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