Global Warming Lawsuits Impacting Climate Change Debate
As climate change legislation hopefully gets bogged down in a do-nothing Congress that continually punts on major issues of the day - keep your fingers crossed! - America's courts are likely to become the real battleground where the war over anthropogenic global warming is waged.
With this in mind, all eyes are on a United States district court in Mississippi where a class action lawsuit was filed last year against most of America's oil, coal, and electric power companies claiming that their actions which exacerbate global warming were responsible for Hurricane Katrina and, therefore, plaintiffs' physical and monetary damages caused by that tropical storm.
I kid you not.
Led by Ned Comer, a Gulf Coast resident left homeless by the storm, the plaintiffs are seeking compensation from dozens of companies, including ExxonMobil and Duke Energy, on the grounds that these companies' emissions directly contributed to global warming, which in turn raised the temperature of seawater in the Gulf of Mexico and intensified the strength of the hurricane.
"We can prove how much carbon these companies have pumped into the air with great precision," said Gerald Maples, a lead lawyer in the case.
Among his claims against oil and coal companies: conspiracy, for funding misinformation about the reality of global warming; conducting activities that led to saltwater and hazardous materials entering plaintiffs' properties; and damages for loss of business and emotional distress.
Maples would not say what amount of money he is seeking, but said he would use a formula to calculate the exact contribution of each polluter named in the case to the damage caused by the hurricane. A hearing in the case is scheduled for Aug. 30.
Unfortunately, this is just the beginning. As NewsBusters reported in June, law firms around the country are gearing up for all kinds of global warming-related litigation.
Sadly, in this Mississippi case, the pleadings sound like they came directly from Al Gore's mouth (emphasis added):
The Earth's climate has "demonstrably changed" as a result of Defendants' greenhouse gas emissions.6 The demonstrable changes include higher and rapidly increasing air and water temperatures,7 rapid sea level rise,8 melting of arctic, Antarctic, and alpine glaciers,9 more severe droughts,10 increased El Niño events,11 and increased weather-related economic losses.12
Defendants' emissions have also substantially increased in frequency and intensity of storms known as hurricanes;14 effectively doubling the frequency of category four and five hurricanes over the past thirty years.15
There has been a perilous increase in the atmospheric concentration of carbon dioxide from approximately 280 parts per million (ppm) at the outset of the Industrial Revolution to 381 ppm during 2005. If current trends continue, including Defendants' willful refusal to employ currently available mitigation technologies, the concentration of carbon dioxide is likely to exceed 700 ppm by the end of this century. According to the Intergovernmental Panel on Climate Change (IPCC), this could lead to global warming of between 1.4 and 5.8°C with concomitant increases in the frequency and magnitude of tropical cyclones (2005's Category 5 Hurricanes Katrina, Rita, Emily, and Wilma as examples) and other severe weather conditions, plus damage to many natural ecosystems.
Potentially scarier is the possibility that this and other pending and future litigation dealing with global warming are part of the typical liberal ploy of legislating through the courts when they can't get it done in Congress. As BusinessWeek reported last October (emphasis added):
"This boomlet in global warming litigation represents frustration with the White House's and Congress' failure to come to grips with the issue," says John Echeverria, executive director of Georgetown University's Environmental Law & Policy Institute. "So the courts, for better or worse, are taking the lead."
It's hardly the first time the judiciary has emerged as the forum for those who have felt stymied trying to address a broad social issue on other fronts. And it's possible that this legal assault will prove quixotic, akin to failed suits by cities to hold gunmakers responsible for gun violence or by African Americans to win reparations for slavery.
But there's another example that's far more worrisome for polluters: tobacco. When state attorneys general began suing cigarette makers in the mid-1990s to recover smoking-related health-care costs, the litigation was widely dismissed as fanciful. Yet before the decade was out, tobacco companies had agreed to fork over more than $300 billion and make big changes in the marketing of cigarettes.
What's more, plaintiffs can have an impact without prevailing in court. The mere threat of obesity lawsuits, for example, has sent soft drink and junk food purveyors scrambling to change their products and improve their public images. In fact, the ultimate goal for environmentalists isn't necessarily to win cases but to ratchet up the pressure on business and politicians to impose mandatory curbs on greenhouse gas emissions.
Furthermore, the recent Supreme Court decision stating that the Environmental Protection Agency does have the authority to regulate greenhouse gases could open the door for even more litigation.
With this in mind, it seems that regardless of what the 110th Congress does or doesn't do concerning global warming, corporations might be spending billions of dollars in the next few years defending and settling complaints, or doing everything within their power to fend them off through real or imagined green behaviors.
Regardless of where the money goes, it certainly won't be benefiting customers, employees, or stockholders of the companies being shaken down by this abysmal scam.
On the other hand, maybe Comer et al will lose in Mississippi, as will some of these other preposterous complaints, and global warming lawsuits will become about as commonplace as Al Gore accepting a debate on the subject.
One can only hope.
—Noel Sheppard is an economist, business owner, and Associate Editor of NewsBusters.
* Noel Sheppard's blog