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Full disclosure: I am not, nor even been, a lawyer; nor do I play one (on TV or anywhere else).
The other day, Bob Owens put up a post about a bunch of Mississippi landowners who filed a nuisance lawsuit against some energy companies because those companies’ activities fueled the man-made (anthropogenic) global warming (AGW) that caused Hurricane Katrina, which heavily damaged their properties. First, let me dispense with one part of this: the lawsuit was actually filed in 2006; it was initially dismissed in the District Court in 2007, then in October, 2009 a panel of the 5th Circuit reversed the decision and ordered the District Court to rehear the case. Now, the foreign press has been very good about reporting on the recent AGW errors and scandals while the U.S. press has been deliberately negligent on the subject. But the AFP piece that Owens relies upon, which does mention the various decisions that have come down, makes it appear the lawsuit was just filed, which obviously isn’t the case.
Second, and this is the crux of my post, things may not be what they appear to be.
Not long after Hurricane Katrina hit the Gulf Coast, some ambulance-chasing shysters thought it might be a good idea to bring a class-action lawsuit blaming several energy companies for contributing to the global warming that had made that hurricane so fierce. The case is Comer, et al. v. Murphy Oil USA, et al. In 2007, Judge Louis Guirola, appointed by George W. Bush, dismissed the suit because plaintiff’s claims were political in nature and to be handled by the Legislative and Executive Branches, not as a matter for the courts. Two years later, a panel of the 5th Circuit (two Clinton-appointed judges, Dennis and Stewart, and one Reagan-appointed judge, Davis; Dennis wrote the opinion, Davis wrote an opinion concurring in judgment) ruled unanimously that plaintiffs did have standing, that it was proper for the courts to examine the case, and to have the District Court rehear it. What is briefly mentioned in the AFP piece (and missed by Owens’ post) is that a successful appeal was filed and the entire 5th Circuit will hear arguments on this case later this year.
The ruling from the 5th Circuit panel relied heavily on the Supreme Court’s 5-4 decision in Massachusetts v. EPA; the majority required the EPA to look into it’s capacity to regulate greenhouse gases (GHGs) under the Clean Air Act (Massachusetts was based on the junk science being foisted upon us by religious fanatics, despite the fact that the science, such as it is, isn’t close to being settled; the EPA headed by Democratic hack Lisa Jackson declared in a finding that GHGs are a danger to humans and can be regulated, although there is a bipartisan attempt to put the brakes on the EPA’s recent actions). But this is where it gets interesting.
The Federalist Society, prior to the most recent 5th Circuit decision to rehear the case en banc, issued a paper explaining the fault’s of the 5th Circuit panel’s ruling in Comer. The ruling determined that since the state of Massachusetts had standing to bring its action against the EPA, the plaintiffs in Comer also had standing to bring their suit. According to the Federalist Society, however, the 5th Circuit panel misread the scope of Massachusetts [emphasis from original]:
That Congress created a cause of action in the CAA, which may compel EPA to respond to a petition to regulate a substance emitted from mobile sources, does not establish standing for state common law nuisance claims where, Massachusetts acknowledges, ordinary standing requirements such as traceability need to be satisfied. Simply put, Congress has not established, and the Supreme Court has not recognized, a de minimis “contribution to” an injury’s possible indirect cause as satisfying the standing prerequisite that a plaintiff’s injury be “fairly traceable” to a defendant in a nuisance or other common law tort claim.
They explain the first sentence of the above a little further down [emphasis from original]:
In language overlooked by the Comer panel, however, the…Supreme Court’s Massachusetts opinion makes clear that its reasoning on this point was firmly rooted in the functional requirements of administrative law and has no relation whatsoever to state common law nuisance doctrine…
In other words, the Massachusetts and Comer cases are comparatively apples and oranges; the 5th Circuit panel had no business applying the standards from Massachusetts to a case whose legal foundation is completely different. As mentioned by the Federalist Society paper:
…it is well-settled that standing requires a much closer connection between a defendant’s conduct and a plaintiff’s injury in fact.
With the more recent ruling to have all of the 5th Circuit judges hear this again, it is very possible that the panel’s decision will get overturned. Regardless of how this turns out, it will go to the Supreme Court at some point, so any settlement is still years off in the future.
If you look at the various rulings in Comer, this has nothing to do with AGW but only with whether or not plaintiffs have standing to file this suit. It’s a really big deal since allowing it to continue could further open the courts to more such litigation; denying plaintiff’s standing will undercut further attempts to bring similar lawsuits forward, relegating them to the status of being frivolous (although other ambulance-chasing shysters will try to do so anyway).
Comer won’t have anything to do with overturning Massachusetts v. EPA. With Jackson’s recent finding, several states and other groups have filed suit to keep the EPA from acting on it, to go along with the bipartisan Congressional effort going on in parallel. It will be these efforts, which will allow plaintiffs to highlight the junk science being perpetrated by political activists masquerading as scientists, that could very well cause Massachusetts to be thrown out; Congress could come up with something within a year, but the litigation will take years to sort out.
So don’t hold your breath. Remember, we’re talking about battling religious fanatics, not those interested in science.