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.
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
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.
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.
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.
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.
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.
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: http://levees.org/#ixzz0UUjy1yLn
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.
Oh heck, the term is joint and severable liability.
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.
“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.
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.
Plaintiffs will have a difficult time showing any sea level increase offshore New Orleans in August of 2005 (landfall August 29th). Data from sealevel.colorado.edu 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.
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.
While “dike” is the more common spelling “dyke” is also an acceptable spelling for a levee or waterway.
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).
At
http://www.nhc.noaa.gov/ms-word/TCR-AL122005_Katrina.doc
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.
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.
Friends
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.
Richard
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.
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…
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.” 😉
So does this mean I can sue people for being stupid? Or would I sue their parents for contributing to their stupidity?