Should environmentalists get excited about a judgment from the Fifth Circuit Court of Appeals in New Orleans ruling that victims of Hurricane Katrina have standing to sue a motley crew of oil and coal companies for contributing to global warming? The ruling overturns a decision by a district court in southern Mississippi that denied standing on the grounds that the question was "political" and shouldn't be settled in the courts. That's makes it a bit of a groundbreaking precedent. (Found via the WSJ's Environmental Capital blog.)
But I'd be cautious. It is one thing to say, as the appellate court did, that the plaintiffs satisfy the requirements to bring a suit on grounds of "public and private nuisance, trespass, and negligence." It will be quite another to prove in a court of law the causal link between greenhouse gas emissions produced by petrochemical companies operating in Mississippi, climate change, rising sea levels, and the consequent damage inflicted on Mississippi landowners by Hurricane Katrina.
Personally, I was far more interested in the claims that the appellate court decided the plaintiffs did not have standing to sue, particularly their "civil conspiracy" and "fraudulent misrepresentation" claims.
Plaintiffs' civil conspiracy claim asserts that certain defendants were aware for many years of the dangers of greenhouse gas emissions, but they unlawfully disseminated misinformation about these dangers in furtherance of a civil conspiracy to decrease public awareness of the dangers of global warming. Finally, plaintiffs fraudulent misrepresentation claim asserts that defendants knowingly made materially false statements in public relations campaigns to divert attention from the dangers of global warming, so as to dissuade government regulation, public discontent and consumer repulsion; that both government actors and the general public were unaware that these statements were false; that government officials and the general public acted upon defendants' statements; and that plaintiffs suffered injuries as a result of that reliance."
The appeals court ruled that "Each of the plaintiffs' second set of claims presents a generalized grievance that is more properly dealt with by the representative branches and common to all consumers of petrochemicals and the American public."
Maybe so. And maybe some day Congress will take up the issue of whether or not the conscious effort by energy companies to financially support climate change skepticism in order to protect their own profits was a crime, plain and simple. I'm not holding my breath. But it sure seems to me that if we're looking for guilty parties, that's where we should start.
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