Hurricane Katrina Victims Have Standing To Sue Over Global Warming

I say BRING IT ON. Finally we’ll get to put this absurdity about the connection between global warming and hurricanes to rest, because, it doesn’t exist. I hope the defense will bring in the findings of Ryan Maue at FSU COAPS as shown below.

12-month running sums of Accumulated Cyclone Energy for the entire globe. 1979-current

From the Wall Street Journal Law Blog

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. The hurdles to such suits are pretty obvious: How do you apportion fault and link particular plaintiffs’ injuries to the pollution emitted by a particular group of defendants?

Today, though, plaintiffs’ lawyers may be a gloating a bit, after a favorable ruling Friday from the Fifth Circuit in New Orleans, which is regarded as one of the more conservative circuit courts in the country. Here’s a link to the ruling.

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. (See photo of Bay St. Louis, Miss., after the storm.)

For a nice overview of the ruling, and its significance in the climate change battle, check out this blog post by J. Russell Jackson, a Skadden Arps partner who specializes in mass tort litigation. The post likens the Katrina plaintiffs’ claims, which set out a chain of causation, to the litigation equivalent of “Six Degrees of Kevin Bacon.”

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.”

Read the entire article here

h/t Ron De Haan

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October 19, 2009 6:49 pm

May he who is without carbon footprint throw the first stone.

Steve Huntwork
October 19, 2009 6:58 pm

Bring it on!
How was any hypothetical “global warming” responsible for shoddy construction of the dykes around the city of New Orleans?
The State of Mississippi was where hurricane Katrina actually made it’s landfall. New Orleans was a victim of political graft and corruptions, and eventually it caught up with them.

Bill Illis
October 19, 2009 6:59 pm

It is very interesting how weak this storm season has been.
The Philippines got hit with two very bad storms but overall, it is one the lowest seasons in quite some time.
It will be nearly impossible for the global warming equals more hurricanes set to spin this year’s numbers into “dangerous global warming will … “.
It will, of course, still be blamed on global warming somehow.

October 19, 2009 7:05 pm

This means that the issue will be subject to rules of evidence. That could backfire on the AGW movement.
REPLY: That’s why I say “bring it”. -A

October 19, 2009 7:07 pm

One might wonder if the 5th Circuit issued its ruling with a certain mischievous intent that had little to to do with the merits. Risky. Will Al Gore be allowed to testify as an expert witness? Hmmmm…. not a bad idea…. finally, a member of that administration sent to prison for perjury…. still risky. It will be more like a beauty contest than a dispassionate evaluation of fact and science. It will get argued before a jury carefully selected to have no knowledge of the issue and will get to decide whether they believe some egg-headed guy named Ryan Maue who is probably in the pay of big oil anyway, or the former vice-president of the United States, who danced with Tipper to “You Can Call Me Al”.

October 19, 2009 7:10 pm

This month Japan was hit by a typhoon without tremendous damage. The last hit was in September 2007. No noticeable change these years.

October 19, 2009 7:10 pm

I am not sure how “causation” — CO2=AGW — could be argued in a court of law, but wouldn’t it be swell if the single tree serving as THE treemometer and the fraudulent hockey stick had to stand up in court. What if the plaintiffs had to prove that there was no Roman or Medieval warming! Yeah, I agree, bring it on.

October 19, 2009 7:17 pm

tokyoboy, I lived through Typhoon Melor and it came at Japan as a category 5. Only the wind sheer (and perhaps slightly cooler anomaly ocean temp on the Pacific side) cut it down to a 3 before landfall. I have been reading over and over again for both Pacific and the Atlantic Oceans about the wind sheer decapitating hurricanes/typhoons. Are the oceans warm enough for significant destructiveness but other processes are at work? Anyone want to comment on this phenomenon?

October 19, 2009 7:20 pm

“Will Al Gore be allowed to testify as an expert witness? Hmmmm…. not a bad idea…. finally, a member of that administration sent to prison for perjury…. still risky.”
I’d be absolutely shocked to see that happen, as if he testifies, he’s open to cross-examination, which he has NEVER allowed during this freak show that he at the very least, helped orchestrate.

October 19, 2009 7:27 pm

I just want them to try to prove global warming when it isn’t global. The best thermometers show no such warming. I would not want to be the “expert witness” but I will happily turn over the code that I’ve developed to anyone wanting to use it to do defense. I’d even be available at a reasonable hourly rate to do any added development they wanted.

October 19, 2009 7:27 pm

The comments at the WSJ suggest it will not get any further,if it does,what if the companies being sued settle out of court?

October 19, 2009 7:30 pm

My understanding, the formula to estimate hurricane surface winds from the package dropped by hurricane hunters has been changed a number of times.
Does anyone know if these formula changes have been accounted for?
BTW I live near Bay St Louis. The only one I want to sue works for NASA.

a jones
October 19, 2009 7:36 pm

I am no expert on US law but I understood that the law in that part of the world differed from the law in the rest of the USA in that it was based on Code Napoleon.
And as such lawyers needed different qualifications and there were consequently various limitations vis a vis laws, judgements etc. reached in the other states of the union.
Any legal eagles around here?
Kindest Regards

October 19, 2009 7:40 pm

ah, a Bay Rat! I lived in Pass Christian.
[REPLY – Ever read Heinlein’s The Puppet Masters? ~ Evan]

October 19, 2009 7:48 pm

pyromancer76 (19:17:46) :
>Are the oceans warm enough for significant destructiveness but other processes are at work?
Sorry but as a chemist I am unable to figure out meteorological events, though several TV personalities ascribed the landfall to sea surface temperature rise due to “Global Warming” which I don’t believe at all.
I give this issue over to people with expertise in this field.

October 19, 2009 7:48 pm

Justice in the legal system happens by a carefully contrived but not infallible accident. Especially when uninformed juries and complex data are involved.

October 19, 2009 7:51 pm

pyromancer76 –
The oceans are just as warm, maybe warmer this year, as previous years, thus whatever it brings to the table wrt hurricanes should be about the same.
I do cannot address Pacific storms, but I do follow the Atlantic ones. There have been three forces that have caused them to be pretty much still-born. First is, as you mentioned, the wind shear. Strong storms need verticality, and the upper-level winds made that almost impossible. The second was that the general circulation patterns took tropical storms north and east much sooner than in other years. This drove them out of the warm, tropical waters sooner. Third was that the low pressure systems coming off the coast of Africa, which gives birth to the Atlantic storms, was dryer and more dust-laden than usual. The dry air and dust simply kills storm formation. Whether any of those things are inter-related I do not know. The climate, though, is quit obviously more complicated than more CO2 = warmer temps = warmer oceans = more and stronger storms.
My fear is that a sympathetic jury might let the suffering plaintiffs have some money from deep-pocket defendants. If so, the judge will likely find a reason to throw the case out, but it will leave the AGWers something to crow about.

Henry chance
October 19, 2009 7:54 pm

Send algore a summons Take his phoney claims into interrogatories and discovery.
In these liability claims, it takes a lot of testimony. Newspaper clippings are hearsay.
Since we have always had storms, how do we isolate this one? That is a town built below sealevel? And why this storm and not Rita?

D Overcast
October 19, 2009 7:56 pm

That would be sweet. Get Al Gore in court and have the debate he has avoided having under oath. Pipe dream…but wow…wouldn’t that be fun.

October 19, 2009 7:59 pm

a jones-
Louisiana law is based on the Napoleonic Code unlike the English Common Law of the other states. It’s a moot point, though. The Fifth Circuit Court is a US Court, and federal law applies, not state.
My mother’s house was (note the ‘was’) in Bay St. Louis. From all the reports I got, the eye passed directly over it. Absolutely nothing was left except for the concrete slab. Complete devastation.

James H
October 19, 2009 7:59 pm

This is pretty high-stakes, though. If the plaintiffs prevail, it would open the floodgates to sue anyone that emits CO2. I think that people even exhale CO2, so I guess we’re all responsible. Also, remember in a civil case, the burden is not beyond a reasonable doubt but rather the preponderance of evidence.

Jerry Lee Davis
October 19, 2009 8:06 pm

Steve Huntwork (18:58:51) :
“…..The State of Mississippi was where hurricane Katrina actually made it’s landfall. New Orleans was a victim of political graft and corruptions, and eventually it caught up with them……….”
Steve, please see Katrina’s actual Louisiana landfall at the National Hurricane center link:
Not that it will matter much, but I did notice a few hundred Louisiana houses blown down or damaged, not caused by corruption. Thousands of trees were broken in two or blown down, not caused by corruption. A significant part of Slidell, Louisiana (NE of New Orleans), was flooded, not caused by corruption.
The greatest damage in New Orleans was due to the collapse of floodwalls built by the Corp of Engineers. Maybe corruption did cause the design flaws in the floodwalls, but I doubt it. See the following report from Delft University in The Netherlands:
My point: Inaccuracy in news reporting (regarding landfall) and lack of precision with insults (regarding corruption causing the main damage in New Orleans), will reduce our credibility when we insult our common enemy, the AGWers.

October 19, 2009 8:08 pm

I remember talking to a former legal assistant in Denver (back when I was doing courses at the CSM) and she mentioned a couple cases she had heard about.
In one a guy had used G-clamps to affix his hard shell to the truck (ute), which naturally worked loose as he drove down the highway. The shell flew off into the oncoming traffic on the other side of the motorway tragically causing great injury to a woman & child (I think it was).
Although the truck driver was found to be mostly responsible, there was a very slight culpability (not sure of the exact legalese, but you get my drift) on the part of the shell company for not explicitly posting a disclaimer with respect to using the incorrect mechnism to affix the shell to trucks.
The truck driver had no money, so the shell-manufacturing company ended up paying out.
It could well end up this way in the AGW court action… 99% of the blame might be attributed logically to things such as inadequate levees etc, but if even 1% is apportioned to fossil fuel companies the AGW mob will take it as a win. Therein lies the real danger of the crazy US law system. Sorry, but it is crazy… judges with $60million pants? pulease… that would have been laughed out of court over here in Oz, and the judge stood down for fear of embarrassing the entire judicial system.
PS> It was my understanding that the litigation in Denver was particularly bad in the 1980s-1990s because of all the corporate lawyers looking for work after thr reosurces industry went into the post energy crisis slow down.

David in Davis
October 19, 2009 8:08 pm

While Maue’s Accumulated Cyclone Energy bares no resemblance to atmospheric CO2, it does look a fair bit like the global temperature anomaly shown next to it on your new world climate widget. Is there a recognized weather predictive relationship?

October 19, 2009 8:10 pm

What is the unit on the ordinate of the top figure? Petajoule or much more? As a presbyope I was unable to find the unit in the Ryan Maue page……..

October 19, 2009 8:11 pm

The final stages of degeneracy are when the leadership actively seeks the destructoin of the society.
We are there now.

CPT. Charles
October 19, 2009 8:11 pm

Yeah, I question the timing.
If this meant to re-kindle the fires of Copenhagen, good luck.

D. King
October 19, 2009 8:17 pm

So, first they’ll have to prove Global Warming.
Then CO2 is the cause.
Then the CO2 is from industry and not natural.
Then GW causes increased hurricanes.
And then…. natural GW does not exist.
We’re going to need Big bucket of popcorn for this movie.

October 19, 2009 8:26 pm

a jones (19:36:55) :
This ruling occurred in a Federal Circuit Court and the matter originated in Mississippi, so there is no variance in the law as it relates to this matter. What you are referencing is that the US’s and individual state’s legal systems are primarily based on common law, which relies upon case law to establish precedents. However, Louisiana uses a mixed system that draws from both common law and civil law. Civil law relies upon a written collection laws that are established through legislation.
Wikipedia does a pretty good job with this:

October 19, 2009 8:27 pm

It should be a UFC Championship fight between the IPCC and the Farmers Almnac.

October 19, 2009 8:29 pm

So much for the notion of Tort Reform.
Can they call God Almighty to the stand (or whatever your belief states as the Supreme Being) to explain exactly where the Hurricane was headed prior to the steering caused by AGW?
This would make a great Boston Legal episode. Denny Crane calls God to the witness stand.
Judge has a fit, calls them to chambers. Denny proceeds to shoot a Bible declaring “If you rule for the plaintiff, then we have to declare God is dead first”.. Judge goes bananas, puts Crane in the slammer for contempt.
Alan Shore sums up by saying “Every Insurance policy explicity states that they are not responsible for Acts of God”.
Judge throws case out.
Alan pays Denny’s fine.

October 19, 2009 8:30 pm

D. King (20:17:37) :
“We’re going to need Big bucket of popcorn for this movie.”
Remember to use the non-butter flavour stuff… don’t want to get sued for popcorn lung*.
* And some of you probably thought I was making it up…

October 19, 2009 8:31 pm

D. King (20:17:37) :
Better than the OJ Trial.
The ratings will be through the roof.
Bring it. We already know the prosecution has ‘contaminated’ the evidence.

October 19, 2009 8:35 pm

I can’t see the oil and gas companies having any option but to defend themselves from this. Otherwise, it will just open the floodgates to all sorts of nuisance claims, even if they were to settle out of court with no fault attached.
In order so that justice can be done, absolutely all the evidence will have to be submitted. This could be the Scopes trial we were talking about in previous threads. Exciting times.

Ron de Haan
October 19, 2009 8:35 pm

Maybe Moncton will have his debate with Gore after all, in court!
The interesting aspect of the legal procedure of course is the fact that they finally put AGW on trial.
Hopefully the trial will start before the new World Government is sworn in (sarc).

October 19, 2009 8:36 pm

I had already read the article. The article, of course, also says that the plaintiff’s lawyers will still have a problem with causation, with one of the judges on the panel stating that if the causation issue had been part of the appeal, he would have affirmed the dismissal order of the district court.
Being a lawyer, I unfortunately know that this does not stop some lawyers from making absurd arguments with a straight face. It is not a good thing that my profession is trying to do.

George Bruce
October 19, 2009 8:37 pm

5th Circuit? Sounds like a trap to me.

D. King
October 19, 2009 8:48 pm

rbateman (20:31:49) :
We already know the prosecution has ‘contaminated’ the evidence.
But “hot air” decreases the differential.
Less energy transfer.

October 19, 2009 8:54 pm

If the oil and gas companies did this, the people filing the suit are participants due to using oil and gas. As those are the only identifiable people, let them pay themselves any penalty.

October 19, 2009 9:13 pm

As the NRA has always been careful to say …
bad lawsuits make bad law

Eric Anderson
October 19, 2009 9:21 pm

One more piece of nonsense from the legal system, and one more reason tort reform is needed.

October 19, 2009 9:38 pm

Hang on… oil companies don’t cause warming… people who drive cars do!
I am sure I heard something like this before somewhere…

October 19, 2009 9:43 pm

Larry (20:36:39) :
I disagree with Shakespeare and I don’t think it is your profession that is doing anything dishonorable. Some members… perhaps…. but everyone with a grievance needs to be heard at least once… and our system is one of laws, interpretations and precedents. Doesn’t always work well, but there are worse alternatives. Not that there aren’t professionals who don’t game the system…. I’ve been setting a snare all summer for a lawyer who is the sole partner in an LLC that buys bad debts from banks and then files suit for recovery utilizing his law firm, tacking on “attorney fees” twenty percent higher than the norm just for writing the collection letter…. essentially representing himself. This attorney has about two hundred collection cases (more than half his entire case load) where he is representing himself. To my immense surprise the judge assigned to the case has scheduled oral arguments. My attorney friends have been happy to offer advice…. with the caveat that I never heard it from them…. perhaps the Fifth Circuit panel feels somewhat the same way….

October 19, 2009 9:43 pm

whats happened to DMI? seems to be permanently closed (3 weeks now?)

el gordo
October 19, 2009 10:14 pm

Water vapor is responsible for 96% of the Greenhouse Effect, while AGW is responsible for 0.1% of greenhouse gases.
Climate is controlled by water not CO2. Bring it on!

October 19, 2009 10:15 pm

If this suit happens, do “Discovery” on the decisions to delete thermometers over the period from about 1989 to today. I’m fairly certain there is enough evidence of deliberate bias in the deletion of thermometers from the GHCN series to justify a “Discovery process” and that there has likely been some fraudulent action in that thermometer deletion. At this point it is only a pattern of evidence, but discovery ought to turn up something in the pattern of meeting attendance and approval signoffs.
Proving intent would be the hard part. OTOH, if it is a major party who has been vocal in public about their strong beliefs… (Motive clear, capacity clear, opportunity check, memos & emails mate)
Also, it would be reasonable to try to apply the “disparate impact” standard set in harassment law. You don’t need to prove intent, just that the act had a negative impact. Probably a bit of a stretch, but cases have been won on greater stretches…

Mike Bryant
October 19, 2009 10:22 pm

Indur Goklany’s article here:
Should be used in the countersuit… Those people should be sending money to the energy companies…

martin brumby
October 19, 2009 10:41 pm

Unfortunately there is a real danger here and it is not just the danger of the courts awarding cash from “rich” energy companies to destitute hurricane victims.
Remember the Kingsnorth Power Station case in the UK where the eco-fascist morons who vandalised the station were found not guilty by a jury obviously persuaded by Jim Hansen and his gang of clowns.
The interesting thing in that case, which hasn’t been much commented upon:- what kind of prosecution case was put forward? Did they put Lord Monckton (say) up as an expert witness to rubbish Hansen’s testimony? No chance!
What kind of outcome from the Kingsnorth case was Gordon Brown, Ed Miliband and the rest hoping for? The one they got, of course!
And what outcome will Obama hope for in this New Orleans case? No prizes for guessing! Will genuine science, logic and common sense even get an airing in court?
I just hope the US justice system is a bit more robust.

October 19, 2009 10:44 pm

Ah, but the ‘blanket’ of C02 they claim causes runaway warming is as thin as saran wrap per 1″ column of air. While saran wrap can be stretched tight, C02 cannot be.
If you buy the “Power of C02” theory, then I have a windowless greenhouse I’d like to sell you.

Ron de Haan
October 19, 2009 11:03 pm

James H (19:59:20) :
This is pretty high-stakes, though. If the plaintiffs prevail, it would open the floodgates to sue anyone that emits CO2. I think that people even exhale CO2, so I guess we’re all responsible. Also, remember in a civil case, the burden is not beyond a reasonable doubt but rather the preponderance of evidence.
If that happens James, we return America to the Indians and move on.

October 19, 2009 11:24 pm

The responsibility for the levee maintenance in New Orleans was spread among a large number of organizations. Some of these organizations thought it was more to their interest to foster river boat gambling than maintain the levees. While I saw the destruction of this storm first hand in the 9th ward and it was truly horrible, it was a disaster that was waiting to happen. I seem to remember a NOVA program in 2002 that predicted what would happen if a large hurricane hit this city head on. They had 4 years to do remediation. All Nagin did was to play “Happy times are here again.” and ignore it.

October 19, 2009 11:28 pm

@a jones A lot of the local law is built around the code of Napoleon, given that the French owned the area prior to the Louisiana Purchase. However, this suit is proceeding across state lines and therefore falls under the Federal jurisdiction.

October 19, 2009 11:30 pm

But, but, but there is more CO2 now in the atmosphere than there was then and the ACE is at a 30 year low. Put that in your pipe (along with some weed) and smoke it.

Patrick Davis
October 19, 2009 11:31 pm

Sort of related, storms and “one world gummint” etc, but really, are there more natural disasters than before?
You can’t make this stuff up…
“martin brumby (22:41:50) :
I just hope the US justice system is a bit more robust.”
I don’t know a single developed, western, country which has (Anymore) a justice system. What you have (Now) are legal systems. Two very different beasts.

martin brumby
October 19, 2009 11:51 pm

Not the least interesting aspect of the case will be whether the Energy companies will be prepared to stop ‘playing green’, come out of the closet and start telling it like it is.
Maybe they will even realise where their intrests really are (perhaps prompted by their shareholders) and actually start to play hard ball with the eco-fascists. It is way over due.

October 20, 2009 12:07 am

JimB (19:20:32) :
“Will Al Gore be allowed to testify as an expert witness? Hmmmm…. not a bad idea…. finally, a member of that administration sent to prison for perjury…. still risky.”
I’d be absolutely shocked to see that happen, as if he testifies, he’s open to cross-examination, which he has NEVER allowed during this freak show that he at the very least, helped orchestrate.

He’s yapped in public as a self appointed expert / apostle and the Nobel Committee recognized his importance (so he has to show he is not important to dodge). Can you say subpoena (From the latin “sub” meaning below and “Pen…” oh, never mind…)
At a bare minimum you can bring him in for “discovery” of what pertinent evidence he might know about. Then he gets to either cough up what, who, and how he knows along with his conflicts of interest, or admit under oath he is without clue…
Maybe I missed my calling… I could really enjoy being a lawyer. If I could just get passed that being smarmy part…

October 20, 2009 12:21 am

You know, if you can get any witness on the prosecution side to admit having seen his movie or read his book, you can probably bring him in as a cross examination of the evidence / topics brought up…
“Did you ever see (foo) or read (foobar)?” yes
“And do you think it shows global warming is real?” yes
“Your Honor, defense wishes to examine this influential material that shaped the decisions of the plaintiff and to enquire of the author as to where he gathered this information.”
(or however a real lawyer would phrase it…)
AND it would be great fun in voir dire to ask the juror pool if they had ever seen AIT and were they influenced by it. Easy way to filter out the true believers…

October 20, 2009 12:33 am

While I saw the destruction of this storm first hand in the 9th ward and it was truly horrible, it was a disaster that was waiting to happen.

Absolutely correct, I worked in emergency management for from the late 1970’s to early 1990’s and it was common knowledge (ie used as an obvious problem example) that if New Orleans was hit with a major hurricane there would be major destruction, and very high likelihood that they would have significant flooding due to over topping of levees, failure of levees, or lack of pumping capacity or pump failures making it impossible to keep the basin the city is built in pumped out.
Most of the city is below local sea level, the only reason the city is dry is due to large pumping systems.
It was one of those situations that everyone that had a clue knew was going to happen for about 40 years (at least ever since Hurricane Camille in 1969).

October 20, 2009 12:52 am

This article will sum it up global warming is real it is time we take action.
Baffin Island reveals dramatic scale of Arctic climate change

October 20, 2009 3:51 am

@Bill Illis…
Bill, maybe you can offer up your paleo sea level reconstructions to the defense team. Most people in the courtroom would probably be shocked to see how much sea level had already risen before man ever burned his first lump of coal or Col. Drake drilled his well in Titusville PA.
On another note…
Wouldn’t the plaintiffs also have to go after the people who actually burned the coal and oil? It seems to me that the courts have fairly well established that firearms manufacturers are not liable for gun violence. Assuming that the plaintiffs use electricity, heat their homes and drive automobiles… They might just have to… Go sue themselves!

October 20, 2009 4:06 am

Forget about Louisiana and their legal system.
Under the Federal system, in simple terms, a case may be tried in Federal court if there is diversity of citizens and the amount in controversy exceeds a Congress established minimum amount. The reason is to allow a citizen of one state to sue a citizen in another state (or states) and have the issues decided in a court that has jurisdiction over all the parties. See the US Constitution, Article III, Section 2. The appellate decision made clear there is no Federal subject matter jurisdiction. This means the issue will be tried on the law of the state in which the case was brought. The appellate decision indicates it’s Mississippi common law. Thus, the plaintiffs brought the case in the state of Mississippi. They can do this even if they were residents of California just as long as either the plaintiff or the defendant has a “presence” in Mississippi. This is sometimes called “forum shopping”.
The case, if it proceeds, will be tried under Mississippi law. The appellate court indicated it was under Mississippi common law meaning there is no statute that covers the plaintiffs claims. This is both good and bad.
Also, there is no requirement to sue everyone that may have injured the plaintiff. The plaintiff chooses their defendants.
As Bulldust pointed out, there is, however, a very real danger in all this. Anyone that’s gone to first semester evidence in law school will tell you that, all in all, expert witnesses will usually offset each other. For example, if Hansen testifies there is AGW using the usual scientific language he’ll obviously conclude there is AGW etc. A defence rebuttal witness will obviously conclude just the opposite. They would have to discredit the testimony of the plaintiff’s witness on the key issue of whether global warming causes hurricanes. This would be very, very difficult to do. If they get to trial. Don’t forget the jury will have to decide since there is obviously different expert opinions about this. Think about the Evolution cases.
If it gets to trial, I’d bet a jury, in their deliberations, will decide it’s possible that global warming has some connection to hurricanes. (Don’t forget there is a scrubbing process in jury selection so Anthony would be challenged and excluded from the jury pool. But so would Al Gore). With that, they move on to the contribution of humans to global warming. Suppose it’s 1 percent. Case won for the plaintiffs.
Since it’s a class action, anyone in the class, even those not part of the original suit, can collect. Then you’ll see TV ads soliciting victims. This is where the figures will skyrocket and why there are class action lawyers. Suppose the original plaintiff had losses due to Katrina of $100,000. One percent is only $1,000. Suppose losses are $60 billion. Even one half of one percent would be around $300 million. If only half of those “in the class” come forward, it’s still $150 million with about half that for the plaintiffs attorneys.
I’d bet a lot the plaintiffs will win if it goes to trial since I think a jury could be convinced there is a likely probability that heat and hurricanes go together. After all, look at how many believe it today.

October 20, 2009 4:57 am

Why can’t the prosecution just take the chart and turn it upside down and offer it as PROOF for their case?

John Silver
October 20, 2009 5:17 am

jtom (19:59:14) :
“Absolutely nothing was left except for the concrete slab.”
All of a sudden I came think of the story of the big bad wolf and the three pigs.
I wonder why.

October 20, 2009 5:21 am

Cedarhill, you make very good points – but I think you left out the most important one. The plaintiffs will need to show that the defendant’s actions were proximately linked to the harm caused. If the linkage between the defendants actions and the harm caused is too attenuated, then the defendants cannot be held liable.
This decision in favor of standing did *Not* (as I’m sure you know) establish that linkage – it simply allowed the plaintiffs the opportunity to establish that linkage in court. If they cannot, then this case is still subject to being tossed with a summary judgment. Standing is just the first of several hurdles that get progressively higher. I think this linkage will be extremely difficult to show for several reasons – if I understand correctly, they are suing oil and gas producers, not actual CO2 emitters. This means that not only are they trying to prove a linkage to “global warming”, but they have also got to prove that the defendants are responsible for their customer’s use of their products, even though they had no control over that use. For example, how could the producers control whether or not their customers used adequate emissions controls?
This argument has failed in almost every industry in which it has been tried (ie: gun manufacturers) and it is just one of many reasons why it is very unlikely that this ever makes it before a jury.

October 20, 2009 5:31 am

Okay, the link between global warming and hurricanes. This is how I understand it. Hurricanes are not caused by warming. Rather, they are caused by a large difference between surface temperatures and upper atmospheric temperatures. The surface is always warmer than the upper atmosphere. So, in order to create an environment more favorable for hurricanes, the surface needs to warm MORE than the upper atmosphere. And that is exactly what happens. Under NATURAL global warming.
However, if global warming is caused by mankind, via an “enhanced greenhouse effect”, then the upper atmosphere will, unquestionably, warm more than the surface. All of the anthropogenic global warming computer models agree on this. In fact, they DEPEND on this. (However, the EMPIRICAL data doesn’t agree with this at all, which SHOULD have been the first clue that, if global warming is occurring, it’s isn’t caused by mankind, but that’s another story.)
The point is, if anthropogenic global warming is occurring, then there should be FEWER, and WEAKER hurricanes, because anthropogenic global warming decreases the temperature difference between the surface and the upper atmosphere.

October 20, 2009 5:41 am

I think they have a better case against the Smithsonian and the estate of Lorenz:

Midwest Mark
October 20, 2009 5:41 am

I for one do not support this rush to judgement. I contend that American industry is not to blame in this case. I have witnesses who will testify that Katrina got in with the wrong crowd as a youth in the Bahamas. At first it was just flooding. Then she moved on to light property damage. By the time she entered the Gulf she was recklessly sporting high winds, displacing cargo ships, and threatening massive flooding and destruction to the people of the southern United States. She was out of control, but she acted alone in this wanton act of vandalism.

October 20, 2009 5:45 am

Thanks for the link. I read it. Doesn’t prove a thing. The author ADMITTED that this area is “warming faster than most other parts of the world”. So, what you have here is ANECDOTAL evidence of warming. Not GLOBAL evidence of warming.
Funny, any time a skeptic points out cooling in a specific location, or at a specific time, the alarmists scream about it being “anecdotal evidence”. But they don’t have a problem using the same kind of anecdotal evidence when it supports their own whacky conclusions.
And where did the author come up with this “natural cooling trend which began 8,000 years ago”? I’ve never heard of this before. I thought we were in the middle of an Interglacial which began around 10-12,000 years ago, at the end of the last Glacial Maximum. If this is based on a 21,000-year cycle, we should have experienced gradual WARMING over the last 10,000 years, not cooling. This is the first article I’ve seen claiming any kind of cooling trend over the last 8,000 years. (Mann claimed a 1,000-year cooling trend, but that has been thoroughly discredited, as have, now, the subsequent papers by Mann’s buddies claiming to confirm it.)

Steve Huntwork
October 20, 2009 5:47 am

[Please provide a few words of explanation when posting a link. ~dbs, moderator]

October 20, 2009 5:54 am

Going by her alarming link, Sue believes that the ‘plastic vortex’ is so thick you could walk on it.
But this person actually did some analysis:
Not to excuse using the ocean as a dump, but the truth is much less alarming.

Steve Huntwork
October 20, 2009 5:58 am

Sorry moderator…
I was trying to post an image of the actual track of Hurricane Katrina.
In my original post at the top of this discussion, I claimed that hurricane Katrina hit the State of Mississippi.
This was intended as a rebuttal to something rather misleading:
Jerry Lee Davis (20:06:18) :
Steve, please see Katrina’s actual Louisiana landfall at the National Hurricane center link:
My point: Inaccuracy in news reporting (regarding landfall) and lack of precision with insults (regarding corruption causing the main damage in New Orleans), will reduce our credibility when we insult our common enemy, the AGWers.

October 20, 2009 6:04 am

The Mississippi gulf coast was hit by a similar surge ~100 years ago.
This is total bunk, and the 5th Circuit is completely out of line on this.
It is not clear from the article, but was this the complete panel of the 5th, or a smaller subset.
If it is not the complete Circuit, there is some hope it can still be treated as it should be: tossed out.
The flip side is that this may become the much sought after trial about AGW that is long over due.
I do have a practical idea:
The energy companies should provide immediate voluntary relief to all plaintiffs, attorneys and judges in the case:
Power companies should halt all electricity sales to anyone on the plaintiff side, oil and gas companies should cut off sales of all products to them as well, and any stores that receive products in a manner that involves the release of CO2 should stop all sales to the plaintiffs, their lawyers, and the Judges who have contrived this ridiculous false claim.
That way the defendants can mitigate their damages to these special people.
And the plaintiffs and their pals can start experiencing the fruits of the desires immediately.

October 20, 2009 6:08 am

Perhaps there is an AGW true believer blog that will be low enough in critical thinkgin skills to agree with you.
This is not that blog.
Please do not post self referential propaganda as if it proves anything.
Baffin island proves yet again that AGW’s biggest danger is that it makes its believers stupid.

October 20, 2009 6:16 am

I think it is unwise to assume that this will be the “trial of AGW” that many of us hope for.
Depending on what the defendants think is in their best interests – or their least-worse option. they may not even try to argue that CO2 doesn’t cause global warming.
For example, they might settle, thinking that, after all the propaganda, that they will struggle to convince a jury that AGW is nonsense.
Some industries might even accept their “guilt” because the payout could be cheaper than losing their place on the AGW gravy-train.
When you have such insanity as the UK government giving grants to environmental groups specifically so that they can lobby the UK government (so that government ministers can then claim that they are responding to “public pressure”) then Alice in Wonderland and Catch 22 are the most useful handbooks.

Steve in SC
October 20, 2009 6:28 am

Be careful what you wish for.
Be mindful that as a result of the public indoctrination by the media propagandists you would very likely get an “OJ” jury.
Where a trial would be held would be crucial because of the prospective jury pool. Rules of evidence are one thing but if they are ignored you have a kangaroo court.
In my not so humble ass opinion, most of the broadcast media should have their licenses suspended for knowingly broadcasting false information under the guise of news with the intent of inciting the public.

Scott B
October 20, 2009 6:40 am

How ridiculous. Was Betsy in 1965 caused by global warming? What about Camille in 1969? How far back to we go?
Their specific argument is even more bogus. So global warming caused the sea level rise which made the hurricane more damaging? Even if I assume that’s true, from what little I can find, the Mississippi Gulf Coast’s sea level has been rising around 2mm/yr. I’d love to know the exact amount. If I go back 36 years before Katrina (since Camille destroyed the area) that would mean 72 mm or 0.23 ft. That’s less that a fifth of the change that the daily tide causes. The storm surge of Katrina was up to 27 ft along the coast. It’s hard to believe that extra 0.8% of sea level could be shown to have contributed to Katrina’s damage in any significant way.

October 20, 2009 6:49 am

The only good thing about this is that if it came down to it …. a real trial with real global warming evidence on the table and real questions could be really interesting.

Rod Smith
October 20, 2009 8:02 am

DanbO: “My understanding, the formula to estimate hurricane surface winds from the package dropped by hurricane hunters has been changed a number of times.”
Winds are measured these days by dropsondes using GPS. I do not know how winds from multiple sondes are handled, but I think all are reported and I would assume that the highest reading is selected as the maximum and reported as such.

October 20, 2009 8:09 am

Steve Huntwork (18:58:51) :
“How was any hypothetical “global warming” responsible for shoddy construction of the dykes around the city of New Orleans?”
For future reference: In the US we spell it “dike”. Dyke is a crude term for something completely different. However, I sure that there was a fair share of them in New Orleans as well.

October 20, 2009 9:14 am

I have my own opinions which I won’t go into great detail here but from what I see sea-level rise is the basis for this claim? Was “global warming” an issue when Camille pushed an equally-high storm surge into the same region in 1969? Was “global warming” an issue when the 1935 Labor Day hurricane pushed a 20-plus foot storm surge into Florida? What about the Galveston hurricane of 1900?
Global warming must have been around for a long time for all of these significantly tall storm surges. Wonder what the energy companies were building then?
It’d be so much easier to preach eco-friendliness than scare tactics. At least people will respond to truth.

October 20, 2009 9:26 am

Was it sea level rise or too low levees:
Fact 1
The flooding of New Orleans and nearby St. Bernard parish was a civil engineering disaster, not a weather event.

Read more:

Kevin Kilty
October 20, 2009 9:41 am

Bulldust earlier was refering to the concept of joint and several liability. All the plaintiffs have to do is get a jury to agree that company X was responsible for 0.001% of the problem and they will bear the full burden. Who was responsible for the levees and who used the gasoline will not matter one wit.

Kevin Kilty
October 20, 2009 9:41 am

Oh heck, the term is joint and severable liability.

Don S.
October 20, 2009 9:49 am

Be careful what you wish for, Anthony, you just might get it. The federal courts of the United States are not places of pure fairness and truth and light. Precedent rules, and there is already plenty of precedent, all the way to the Supreme Court, for wily mouthpieces to construct a substantial framework on which to hang a case for the claimants. Note the fact that the claimants do not present a chain of causes, but still allege that the facts support their claim and the court says go ahead and try it. If this ruling holds, the claimants will be able to refute any evidence to the contrary. There is no way that the facts you want to see adjudicated will see the light of day in this case. The only things on display will be mendacity and greed.

Steve Huntwork
October 20, 2009 10:10 am

“In the US we spell it “dike”.
You are correct and I thought something did not look right with the spell checker. Oh well…
Anyway, like I said, hurricane Katrina hit the State of Mississippi and the eye of the storm was miles away from New Orleans.
The flooding was cause by a civil engineering disaster, although the hurricane obviously pushed the dikes over their constructed limits.

October 20, 2009 10:21 am

I posted the following comment to the WSJ article about this law suit:
“The first point that must be proved is that there is in fact anthropogenic global warming, an impossible task. However, if there are any federal or state agencies that are defendants, there is some worry that they make take a dive on this issue.
Next, plaintiffs’ must establish that the damage from Katrina was due to the ferocity of the storm rather than failed flood control systems. This too is daunting.
Finally, can this suit go forward without joinder of all necessary parties, including the Corps of Engineers and environmental organizations that successfully blocked many improvements to the flood control system from being built from about 1985 to Katrina? There may be jurisdictional barriers that prevent joinder of he Corps or other federal parties.
This is the type of case that could kill AGW once and for all if it is allowed to proceed.”
There are many other variations upon this theme that could also be mentioned. Was there a rise of the Gulf sea level? If so, was the rise caused by AGW? If not, what are the probative links that establish the main AGW related thesis of this law suit.
Cases like these provide the defendants with real weapons for them to win and undercut contrary major public policy initiatives.

October 20, 2009 3:50 pm

Plaintiffs will have a difficult time showing any sea level increase offshore New Orleans in August of 2005 (landfall August 29th). Data from shows sea level there was approximately 4 cm above the “zero datum” – whatever that is – for the three week period before landfall.
As stated earlier by another commenter, those 4 cm (approximately 1.5 inches) above “normal” are absolutely overwhelmed by the tidal surge (several feet high), the large waves (several more feet high in those winds), the weakened and inadequate levee system, and the idiocy of building human habitations below sea level in a region known to have hurricanes.
The reverse of this is that, had there been global cooling that reduced the sea level 4 cm below the “normal,” there would have been no difference in the outcome, given the tidal surge, waves, levee conditions, and habitations below sea level.
The causation argument is a losing argument, in that CO2 builds steadily, while ocean temperatures rise and fall. Global land-based temperatures also rise, fall, and remain constant for decades while CO2 continues to rise. There is zero causality (in a legal sense) between atmospheric CO2 and global warming.
Legal causation has two components, actual cause and proximate cause. Actual cause means that there is a demonstrable cause-and-effect (there will likely be conflicting expert opinions on this). Stated another way, “but for” this action, the injury would not have occurred. Can it be stated that “but for” increased CO2 emissions, the flooding in New Orleans due to Hurricane Katrina would not have occurred? If the answer to that is yes, one must then explain the large hurricanes from prior decades before CO2 emissions began increasing (Hurricane Carla comes to mind, in September 1961). One must also explain the absence of large hurricanes in the most recent two years – while admitting that CO2 is higher now than in 2005. That is a tough burden to carry.
Proximate cause is another area where this case will fall apart, as this legal element requires that there be no intervening factors that result in the injury. As shown above, there are numerous other factors, including intensity of the storm (there have been many more intense hurricanes in the past, before “global warming”), and the direction or path of the storm (did CO2 guide the storm to just east of New Orleans?). Also, did the shallow Lake Ponchartrain and its bottom contours have an effect? (average depth 12 to 14 feet). What impact does CO2 have on that lake?
Finally, there is the legal issue of the culpable defendant, or joint and several liability. Where there are many defendants and each contributes to the causation, how does one apportion the blame amongst them? Should only those CO2 emitters in Louisiana or Mississippi be liable? (that would bring in the deep pockets of Big Oil and chemical companies). What about emitters in other states, such as those that burn coal? What about emitters in other countries? (jurisdictional problems arise for all of these).
These are just a few of the many legal considerations.

October 20, 2009 4:08 pm

Funny that he’d blog this but didn’t bother to blog the 2nd most powerful cyclone ever recorded in the East Pacific (180 mph w/ 220 mph wind gusts), despite the fact that it weakened greatly soon afterward.
Please blog unusual hurricanes, if only for nothing but to say weather is not climate.

October 20, 2009 5:00 pm

While “dike” is the more common spelling “dyke” is also an acceptable spelling for a levee or waterway.

Jerry Lee Davis
October 20, 2009 5:47 pm

Steve Huntwork (10:10:19) :
“Anyway, like I said, hurricane Katrina hit the State of Mississippi and the eye of the storm was miles away from New Orleans.”
This is my last comment on this subject–promise. I make this comment just in case there is a WUWT reader truly interested in knowing how near Katrina came to New Orleans (personally I’m bored by now, and expect others may be also).
the National Hurricane Center have posted a report called “Tropical Cyclone Report, Hurricane Katrina” dated 20 December 2005 and updated 10 August 2006. Below I have copied four extracts from pages 3, 7, 8, and 9 of that report.
In summary of those extracts: Katrina’s eye was 25 to 30 nautical miles across and its center passed within about 20 nautical miles of downtown New Orleans after having made landfall at Buras, Louisiana. The eye ultimately passed over the mouth of the Pearl River, at the Louisiana/Mississippi border.
Hence the western eyewall was over downtown New Orleans. The eye passed directly over a section of town called “New Orleans East.”
Here are the extracts from the report (all copy/paste verbatim):
From page 3:
The hurricane then made landfall, at the upper end of Category 3 intensity with estimated maximum sustained winds of 110 kt, near Buras, Louisiana at 1110 UTC 29 August. Katrina continued northward and made its final landfall near the mouth of the Pearl River at the Louisiana/Mississippi border, still as a Category 3 hurricane with an estimated intensity of 105 kt.
From page 7:
It is worth noting that Katrina was likely at Category 4 strength with maximum sustained winds of about 115 kt near 0900 UTC 29 August, a couple of hours before the center made landfall near Buras, LA. Due to the large (~25-30 n mi) radius of maximum winds, it is possible that sustained winds of Category 4 strength briefly impacted the extreme southeastern tip of Louisiana in advance of landfall of the center.
From page 8:
While the intensity of Katrina was Category 3 as the center of the eye made its closest approach (about 20 n mi) to the east of downtown New Orleans, the strongest winds corresponding to that intensity were likely present only over water to the east of the eye.
From page 9:
The massive storm surge produced by Katrina, even though it had weakened from Category 5 intensity the previous day to Category 3 at landfall in Louisiana, can be generally explained by the huge size of the storm. Katrina had on 29 August a large (about 25-30 n mi) radius of maximum winds and a very wide swath of hurricane force winds that extended at least 75 n mi to the east from the center.

October 20, 2009 9:48 pm

The EPA did not allow the proposed storm suge gate that would have saved New Orleans. The folding gate was not allowed because it would interfere with fish sex. These people should be suing the Federal government if they had any sense. It would not have saved people from the winds but it would have saved them from the water. But….we have to save the unborn fish.

October 21, 2009 2:48 am

I agree with Martin Brumby (22:41:50). There is a real risk in this case and, as he says, it is demonstrated by the Kingsnorth case.
Courts do NOT assess scientific evidence (they are incapable of doing that).
Courts assess scientific opinions as exemplified by Expert Witnesses. The views of the most credible Expert Witness prevail. Simply, the trial will be an appeal to authority by both the plaintiffs and the defence.
In the Kingsnorth case there was no dispute that the eco-terrorists had damaged the power station and caused its temporary closure. But they were acquited on the basis that their action was justified by the court agreeing the damage the caused was justified in that it reduced a great danger; i.e. CO2 emissions from the power station causing AGW. The result has been that eco-terrorists have been confirmed in their belief that they are right to attack UK power stations and they attacked Ratcliffe power station this past week.
James Hansen travelled to the UK to act as Expert Witness on behalf of the eco-terrorists who attacked Kingsnorth power station. Hansen is not a climatologist: he is a cosmologist. His credibility as an Expert Witness on AGW is provided by his being head of NASA GISS and, therefore, it is clear that the US Government has appointed him as being a supreme authority on climate and AGW.
The prosecution did not provide an Expert Witness (e.g. from UK Met. Office) to oppose Hansen’s testimony. They could have provided a climatologist to dispute Hansen’s testimony but there was no point. And they could have pointed out that Hansen is not a climatologist, but that would have damaged their case by seeming to be a smear of Hansen.
The only important fact for the court is that no expert could have such authority as that provided to Hansen by his being head of NASA GISS.
So, who is to be the Expert Witness for the defence in the New Orleans case? There are several climate experts who could be called for the defendants and whose scientific credentials are exemplary (e.g. Landsea, Lindzen, Spencer, etc.), but so what?
Courts do NOT assess scientific evidence or scientific qualifications or scientific achievements. They compare the authority of Expert Witnesses.
The New Orleans court case is a probable disaster for those who want the truth of AGW to be promoted because Hansen and his ilk are certain to win the case.

October 21, 2009 6:07 am

wws. good questions. As noted, if it gets to trial the factual issues, including those of “linkage” will be jury questions. But the oil producers are two things (1) they emit green house gases during their extraction and refinement (think about those burn-off pipes you see at refineries) as well as (2) manufacturing a specific product. The product in question produces tons of green house gases. Think about the cigarette cases and their jury awards.
If it does not go to trial there will be no real discovery in the sense as some hope there will be. Anything beyond procedural moves will likely be subject to a gag order.
If it gets to trial, imho, the plaintiffs will win. Think about a really, really good Dr. Phil helping jury selection in the same manner the real Dr. Phil helped the attorneys defending Oprah versus the Texas ranchers. The only caveat is if the jury pool only includes posters at this site which is highly unlikely. I’m sure Mississippi was chosen for man reasons including the jury pool.

October 21, 2009 11:53 am

Adolfo Giurfa (09:26:21) : The flooding of New Orleans and nearby St. Bernard parish was a civil engineering disaster, not a weather event.
Minor nit pick: The engineering work done by the Army Corp of Engineers was fine. They proposed a Cat 5 system. It was congress that said “here is enough money for a Cat 3, go build a Cat 3 system”. So while it was a “civil disaster” I think it in fairness ought to be called a “civil government disaster” and leave the engineers out of it. They can only build what the customer will pay for…

October 21, 2009 12:08 pm

Jason (16:08:15) : Please blog unusual hurricanes, if only for nothing but to say weather is not climate.
Perhaps you ought to visit a site dedicated to extreme weather events.
Anthony can post what Anthony finds interesting. The rest of us think that is a fine arrangement. That he does not post what you find interesting is, er, uninteresting…
JC (17:00:45) : While “dike” is the more common spelling “dyke” is also an acceptable spelling for a levee or waterway.
Strange. I spell it either way for either use… Wonder how many folks get an unintended chuckle from some of my usage. “The Army Corp of Engineers needed to visit all the dykes in the New Orleans region for individual inspection and strength testing. Any dyke failing to meet specifications will be reported to local authorities responsible for the upkeep of the dykes.” 😉

October 25, 2009 6:44 am

So does this mean I can sue people for being stupid? Or would I sue their parents for contributing to their stupidity?

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