Greenhouse emissions lawsuit dismissed

From the SPPI blog

Murphy Oil Corporation

Fifth Circuit Dismisses Comer v. Murphy Oil

Source:  Troutman/Sanders Advisory

Fifth Circuit Dismisses Comer v. Murphy Oil — A Victory for Industry In Climate Change Tort Litigation?

On May 28, 2010, in a startling decision in perhaps the most important and certainly the most topsy-turvy climate change tort case against the utility, chemical, and oil and gas industry, the United States Court of Appeals for the Fifth Circuit handed industry a victory by dismissing the appeal in Comer v. Murphy Oil.   The decision follows a complex procedural path: a favorable district court decision for industry dismissing the case, a decision of a three-judge panel of the Fifth Circuit handing the plaintiffs a victory by reversing that dismissal, and an order of the full court en banc vacating that reversal and ordering further briefing and oral argument before the full court.

In April, however, the Court lost its quorum to decide the case after a last-minute recusal by an eighth judge on the 16-judge court created uncertainty on whether the Court could consider the appeal further.  Last Friday, the Court resolved that uncertainty by ruling the vacatur of the three-judge panel decision remains in place, but the loss of the quorum left the Court with no choice but to dismiss the appeal.

The continued vacatur of three-judge panel’s decision is the remarkable win for industry.  It means the district court’s decision—which held that property owners did not have standing to sue for climate change and that climate change was a “political question” for Congress—stands as good law.  For now, in the Fifth Circuit at least, property owners are not permitted to seek state-law tort damages for industrial emissions of carbon dioxide.

Background: The Tort Claims in Comer v. Murphy Oil

In Comer, plaintiffs filed a putative class action against a wide range of energy, fossil fuel, and chemical companies, claiming they (a) generated greenhouse gases (b) which caused global warming, (c) which increased global surface air and water temperatures, (d) which in turn caused a rise in sea levels and strengthened Hurricane Katrina, and (e) which all then combined to damage their homes and property.   On August 30, 2007, in a two-page order, Judge Louis Guirola, Jr. dismissed plaintiffs’ claims based on standing.  But in his ruling from the bench, Judge Guirola also held the plaintiffs’ claims were barred by the “political question” doctrine, the idea that Congress and state legislatures are better equipped to make decisions involving climate change, especially given the national and international implications and policy decisions involved.

On October 16, 2009, a three-judge panel of the Fifth Circuit Court of Appeals reversed Judge Guirola, holding that the plaintiffs did in fact have standing to sue industry for their Hurricane Katrina damages allegedly caused by climate change.  The panel also held that issues of climate change were not barred by the “political question” doctrine.

On February 26, 2010, the Court granted rehearing en banc to address the political question and standing issues.  The Court’s decision to grant rehearing en banc was based on a 6-3 vote of the remaining nine judges on the Fifth Circuit who were not then recused for various reasons.

In late April, with most of the briefing already submitted and a hearing scheduled for May 24, 2010, the Court issued an order stating that because another judge was recused, only eight judges were left to hear the merits of the appeal, which meant the court no longer had a majority of the 16-judge Fifth Circuit.  Confronting the dwindling number of judges, the court requested additional briefing on what it should do.

Recusal Math: The Reason for the Comer Dismissal

After considering a wide range of arguments, a majority of the remaining non-recused members of the Fifth Circuit held that it had no quorum and it could not hear the case en banc, as it had initially decided that it would do on February 26, 2010.  After considering arguments by parties and amici over the past few weeks, five of the eight remaining non-recused members rejected all of the theories on how to fix the problem—(1) having the Chief Justice appoint a judge from another Circuit; (2) declaring a quorum of the non—recused judges; (3) adopting a “rule of necessity”; (4) “dis-enbancing” the case or reinstating the three-judge panel’s decision; and (5) holding the case in abeyance until the composition of the court changed.  None of these fixes worked, the Fifth Circuit held,  because “a court without a quorum cannot conduct judicial business.”

Ironically, the three judges dissenting from the Court’s dismissal of the appeal were the same three judges constituting the three-judge panel which initially overturned the district court’s opinion.  In separate dissents, Judge Davis, joined by Judge Stewart, and Judge Dennis believed the court should decide the merits of the case.  For these judges, it made no sense to allow a vote to take a case en banc to dictate the results on the merits.  For Judge Davis, it made no sense that a majority of the eight unrecused judges could dismiss the appeal, but they could not hear the merits.  For Judge Dennis, the decision was “injudiciously mechanistic and arbitrary.”  If the most recently recused judge had become recused three months earlier, he noted, the outcome would have been precisely the opposite—the court would not have been able to grant the rehearing, which meant the three-judge panel’s reversal of the district court’s opinion would have remained in effect.

Bottom Line: The District Court’s Decision Rejecting Tort Claims Against Industry for CO2 Emissions Stands as Good Law

As for the controlling law, the five remaining unrecused members of the Court specifically held that it could not undo its vacatur of the earlier three-judge panel’s decision.  Under its Local Rule 41.3, the grant of rehearing en banc “vacate[d] the panel opinion and judgment of the court and stay[ed] the mandate.”  Applying this rule, the Court held that even though it did not have a quorum to hear the merits of the appeal en banc, the vacatur of the three-judge panel’s October 16, 2009 decision was made by a then-proper quorum, even if that quorum later evaporated because of a recusal.  With that decision, the three-judge panel’s reversal of the district court’s opinion remained vacated.  This is the good news for industry.

How Does the Fifth Circuit’s Dismissal of Comer Affect the Other Key Climate Change Case, Connecticut v. AEP?

Strange as it may seem, with the Fifth Circuit’s dismissal of Comer and the reinstatement of the district court’s rejection of the property owner’s claims against industry, there is now a conflict—to the extent the Fifth Circuit’s dismissal in Comer represents a substantive decision—between the Fifth and the Second Circuits on standing and political question in climate change cases.  The Comer dismissal could strengthen industry’s appeal of the adverse Second Circuit decision in Connecticut v. AEP.

In Connecticut v. AEP, which involved carbon dioxide emissions from coal-fired electric utilities, the Second Circuit held that a group of states could sue to abate climate change under a theory of public nuisance.  In its decision, issued on September 21, 2009, the Second Circuit also found that tort litigation over climate change was not barred by the political question doctrine.  But unlike the Fifth Circuit in Comer, which agreed to rehear the matter en banc, on March 5, 2010 the Second Circuit denied a motion for rehearing en banc.  Certiorari petitions to the Supreme Court in Connecticut v. AEP are due June 3, 2010, and the Supreme Court is likely to determine whether it will grant certiorari by the end of the year.

Long term, many view Comer as the more important case because the plaintiffs are private property owners seeking property damages for climate change, not States, as in Connecticut v. AEP, who may have standing to litigate climate change as a public nuisance by virtue of their “special solitude” as states.  And unlike Connecticut v. AEP, which was largely about forcing air quality controls on electric utilities, the plaintiffs in Comer seek money damages.

Will the United States Supreme Court Grant Certiorari to Decide Whether Climate Change is a “Political Question”?

For Comer, the procedural math determined the substantive outcome.  Of the 16 judges on the Fifth Circuit, eight were recused for various reasons, and five of the remaining eight unrecused judges voted to dismiss the appeal without ever considering the merits of the appeal.  That procedural vote by five judges determined the substantive outcome of the case.  As Judge Dennis suggested in his dissent, the dismissal by the unrecused judges means the plaintiffs, who claim that Hurricane Katrina was caused by industrial emissions, not the industry itself, will now be appellants on the standing and political question issues.

On certiorari in both Comer and in Connecticut v. AEP, the ultimate question for the Supreme Court is whether industry should be liable for climate change.  More fundamentally at issue is whether private property owners can sue industry simply because it emits carbon dioxide, a question important not only for the legal system, but for the U.S. economy itself.

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49 thoughts on “Greenhouse emissions lawsuit dismissed

  1. Can someone inform?
    Is this the case where some of the Justices were recusing themselves specifically to cause a loss of quorum? I thought I read that the Justices in question knew, or strongly believed that, Murphy Oil would prevail en banc, and recused themselves in order to keep the full Fifth Circuit from hearing the case and ruling.
    If this is a true story, then those Justices should be impeached. Proving it may be impossible . . .

  2. So, no Comer ruling on the merits. Depending upon how many black-robed juridicals show up for work, junk science from AGW on down takes on a legal-schmegal existence all its own. Blanketing science fraud with legal foam will hardly resolve any issue of substance in these matters.

  3. Are there any scientists that claim to know what portion of the Katrina damage is due to climate change, if any? Did any documents disclose what scientific “experts” would be called?

  4. I can’t help but wonder who the industry people will sue if/when AGW is proven to be a complete and utter fraud?
    Will they sue and bankrupt Penn State and East Anglia University?

  5. Property damage for “climate change”? That’s a no-brainer, since climate change is the earth’s modus operandi. Leave it to the Global Warmers to embrace the status quo, then litigate it to push their job-destroying, civilization-reducing agenda. It is encouraging that the courts have denied this approach, at least so far.

  6. The Katrina disaster was indeed partly anthropogenic in its making. However, the human culprits were not the energy companies, but the US Army Corps of Engineers, 1) for diverting the Mississippi out to sea for the last 90 years so that it could not form a natural delta to protect the land, and 2) for encouraging half a million people to live below sea level behind a level 3 levee on a coast where level 5 hurricanes regularly occur.
    As for the en banc vacatur of the recusal, it’s a wonder courts get anything done!

  7. Of course, everything would always be wonderful without industry.
    It’s scary that a suit like this could even get as far as it apparently did.

  8. The steam and smoke is risong on Climate progress. There may be an eruption.
    This case was really a trial on how horrible out culture is becoming.
    They will be back and seek climate related tort judgments.

  9. The climate change act that the House passed last year specifically allows these sorts of suits . Unfortunately , the Comer suit probably won’t set a precedent .

  10. This case is over. It was dismissed. The dismissal over turned and then dismissed again. It doesn’t look like it will get a hearing. Selective prosecution is in this. Why Murphy Oil and not Hunt trucklines or some other industry that uses fuel? why not Africa where these hurricanes form?
    I guaranteee this hurricane didn’t originate in Eldorado Arkansas

  11. I would have liked to see anyone try and prove the CO2 emissions affected the severity of that or any other storm. My suspicion is the evidence in a legal sense simply does not exist.

  12. As someone noted – legal foam indeed. Can someone translate this into plain English please.

  13. “Hu McCulloch says:
    June 1, 2010 at 2:40 pm
    The Katrina disaster was indeed partly anthropogenic in its making. However, the human culprits were not the energy companies, but…” the human culprits where the Greenies who sued the Corps of Engineers when the Corps attempted to raise and strengthen the levies around New Orleans. But, that’s water under the bridge where Jesus flung it, as a friend of mine used to say.
    Speaking as a retired attorney, I have to say that I believe causation is going to be a little bit short of proof in any civil suit alleging that some group of companies in the energy business – or, indeed, even all of them within the jurisdiction of a U.S. Court – injured anyone by the mechanism of producing carbon dioxide thereby producing global warming, which in its turn caused Hurricain Katrina – name the storm you like – thereby causing pecuniary loss to plaintiffs.
    The production of carbon dioxide may as well be admitted; it’s what combustion releases, among other things. Then you have what percentage of human-produced carbon dioxide did Defendants produce – some figure well below 5%, but say 5% – which gives 5% of 4% (4% being the estimated by the AGW proponents as the percent of CO2 produced by all humanity) = .2% (two-tenths of one percent). Next, that .2% increase in CO2 caused Hurricaine Hypothetical, which swept ashore and was the proximate cause of Plaintiffs’ damages. The weakest link, looking at this like a lawyer not like I would if I were a reasoning, thinking human being, is going to be that last link. Nowhere is there any scientific literature – not even in computer model outputs – establishing that any particular “chunk” of CO2 produced any particular hurricaine. Worse, there is not a scintilla of admissible evidence tending to prove that all of the human-produced CO2 produces any particular hurricaine or indeed all of them. Not even any evidence you could use to say it makes them “more likely” – which isn’t the legal standard and that “evidence” might not be admissible, but that’s another issue – so the chain of causation fails there. Might as well claim that wearing tin-foil hats causes brain cancer by concentrating all those spy rays from the government satellites. No proof at all one of the basic links in the chain of causation, not “insufficient”, not “unconvincing”, not “circumstantial”; non-existant.
    Given that basic fact, no matter what the circumstances were surrounding the Fifth Circuit’s decision, personally, I’m thankful that it came out that way. If the Fifth Circuit – or American courts in general – would adopt a “loser pays attorneys’ fees and court costs” rule, particularly in cases which are clearly without legal foundation, either in law or in fact, then I’d be delighted to see one of these cases go to trial. Perhaps after one of these major Green NGO’s and/or their attorneys finish paying several million dollars for the defendants’ attorneys’ fees and court costs, they’d think twice about commencing this kind of utterly frivilous litigation. Lawyes act as if they took legal ethics courses for the same reason burglars study security systems: to figure out how to evade them.

  14. This reeks of politics, and anyone who believes that judges are not the #1 target of eco groups, and of the Administration itself are fooling themselves.
    All it takes is one influential person in a company, in a government entity, or in a charitable trust to cause the organization to embrace the “carbon” meme — those people are targeted all the time, and we see the result. How much more valuable would bagging a federal judge be?
    Judges are as human as anyone, and not all of them resist the ever present temptation to give in to back-slapping, smiling sycophants, and to be invited to all the best social gatherings to hobnob with the top tier movers and shakers. Thus, the quorum charade to protect the government’s interest against individual plaintiffs.
    This stage-managed round of judicial musical chairs gets the government out of a tight spot. The government does not want private individuals to sue the life out of industries, when they know the CO2 menace is 100% bogus hype. The government has its own plans for that money, and they do not want hordes of individual plaintiffs horning in on it.
    From the article:

    Long term, many view Comer as the more important case because the plaintiffs are private property owners seeking property damages for climate change, not States, as in Connecticut v. AEP, who may have standing to litigate climate change as a public nuisance by virtue of their “special solitude” as states. And unlike Connecticut v. AEP, which was largely about forcing air quality controls on electric utilities, the plaintiffs in Comer seek money damages.

    This is a case of the government making sausages. It’s not pretty. Or honest. It’s simply all about the money; who has it, and who’s going to pocket it. If you’re a profitable company or a taxpayer, BOHICA.

  15. Hu McCulloch says:
    However, the human culprits were not the energy companies, but the US Army Corps of Engineers,

    This is not only wrong, it lets the real culprits off the hook. The real culprits are the politicians who tell them what to do. Oh, and the kooky greens who will file lawsuits to block any project that has any small chance of success.

  16. Richard Lawson says:
    June 1, 2010 at 2:28 pm

    Has this article been created by a random word generator!

    Class!
    I read it all, and understood about 25%, I reckon.

  17. Wow.
    I thought the coagulation cascade, immune system, and thermodynamics were complicated.
    Have read this report twice and still cannot figure out what happened.

  18. Forget the old-timey 3 essentials of an appeal. Herewith, the new, updated, 2010 version:
    First, a right that was violated
    Second, the violation affected the outcome
    Third, a way to cure the effect(s) of the violation
    And now: Fourth, that the Court of Appeals must have a quorum en banc, or the last appeal gets automatically reversed.
    Very bad precedent.

  19. This is a great thread, and a great result! I’m no lawyer, but did take a business law course, so some of the legalese I can understand, but WHEW! 🙂 I do know there are a bunch of these suits still outstanding, which will be very interesting to watch. Gotta wonder how much of this will be/are impacted by the upcoming elections? A lot, I’ll bet. No doubt there are a lot of people in DC that have to be sweating bullets by now. 🙂 It’ll do ’em good. 🙂 Might be a good idea to watch the Market tomorrow.

  20. That this lawsuit wasn’t immediately laughed out of every court it entered is a serious indictment of our legal system. I might as well accuse my nearest neighbor of witchcraft when a tornado blows down my barn.

  21. thegoodlocust says:
    June 1, 2010 at 2:29 pm
    ‘I can’t help but wonder who the industry people will sue if/when AGW is proven to be a complete and utter fraud’
    I’m wondering who to sue as a taxpayer, stock shareholder and consumer.

  22. It is kind of scary that something like this even get to the point of reasonable discussion … let alone a bloody court case. It must rank alongside those that sue restaurants for making the patrons fat. Its a bizarre world we live in.

  23. Painful answer.
    All coal powered electricity generation plants shut for a week. Blame the greens & the possibility of climate litigation, loss of profits etc..
    Sit back & wait for the backlash. 😉
    DaveE.

  24. It doesn’t sound as though the merits of the case were debated at all, not at any stage in this tortuous process. The case was dismissed, then admitted, then dismissed again solely on the issue of the plaintiffs’ standing, and on the ‘political question’. I guess the latter might have involved some discussion of the science, but my guess is that it did not.
    We can only hope that the political and academic elites become disenchanted with their attempt to ram the ‘global warming’ mythology down our collective throats before cases like this, mounted by enviro-whackos, make their way into judicial case law.
    As Ike says above, in any rational court the notion that CO2 emitted by particular industries could cause ‘climate change’ would be impossible to demonstrate. However, one can imagine a radical outfit like the notorious ‘Ninth Circus’ giving credence only to Alarmist scientists and awarding all manner of goodies to ‘activist’ plaintiffs making such claims.
    We need to make sure that the very idea is so ludicrous it would be laughed out of court, before that happens.
    /Mr Lynn

  25. Okay-Watts Up With That legalese? (couldn’t resist)
    On the merits of the case, the claim being made is dependent on a rather implausible logical chain. That anyone could see any merit to such a case, let alone a lawyer, testifies to the advanced stage of infection that the Catastrophic AGW meme is in our society.
    As someone else already noted, the contribution of any individual defendant to AGW, much less GW itself, is negligible. Add on to that the fact that no scientist would ever attribute a weather event to AGW, at least not under oath, and it isn’t even worth following through to ask, how much of a difference did AGW make to any particular Hurricane’s track, formation, strength, etc.
    This case is like a bad joke.

  26. I am a practicing attorney, and will attempt here to translate the legalese above into more ordinary English. I do this quite often in my practice, trying to make engineering and other technical issues more easily understood by all parties and the jury.
    The case is Comer (the plaintiff, or party who says they were injured) against Murphy Oil, (the defendant who caused plaintiff’s injury, according to plaintiff). However, the list of defendants is very long, and includes Shell, ExxonMobil, BP, ConocoPhillips, Dow, and others. Murphy Oil operates an oil refinery in Meraux, Louisiana, which produces CO2 during its operation. Approximately 9 or 10 percent of the crude oil run through a refinery is burned, producing primarily CO2 and water vapor. The Murphy refinery is of smaller-than average size at 125,000 barrels per day. Meraux is right on the Mississippi River, just about 10 miles downriver from New Orleans.
    The case was brought in a Federal District Court, where the judge dismissed the case, ruling in favor of Murphy Oil (and the other defendants). The grounds for the dismissal are fairly complex and explained below, involving “standing” and “political question.”
    Comer (plaintiff) appealed the trial judge’s decision, which is their right under our system. The appeal goes to the Fifth Circuit Court of Appeals, where it was heard by a panel of 3 judges. There is no jury, just judges in the appellate court. After hearing both sides’ arguments, the three judges were in agreement that the trial court was wrong, and reversed their decision. This ordinarily sends the case back to the trial court. However, Murphy Oil requested and received a hearing before the full Fifth Circuit Court of Appeals, what is called an en banc hearing. That requires nine judges to hear the case instead of just the three as before. The en banc hearing reversed the three- judge panel’s decision, but then ordered the case to be heard more fully by the en banc court. “En banc” is French for “on a bench,” meaning the full panel of judges will sit on “the bench.”
    There are 16 judges on the Fifth Circuit, and for an en banc panel, 9 judges must be selected. Those judges with a conflict of interest cannot sit on the en banc panel (or hear any case, actually), and must recuse themselves. That is, they must state their conflict and that they cannot hear this case. Seven judges recused themselves, leaving nine qualified judges so the en banc panel could sit and reverse the three-judge panel’s decision. Judges recusing themselves happens fairly often, and happens even on the Supreme Court.
    However, yet another judge, one of the nine, then developed a conflict of interest (and that is very interesting as to why and the timing), leaving only 8 judges. This created a problem, because the law requires 9 judges, not 8. After much discussion of how to proceed, the court of appeal decided it could not hear the case, and left the matter where it stood, with the winner being Murphy Oil.
    Grounds for dismissal.
    The case involves “standing,” which is a legal doctrine that requires several things to exist before a person can bring a lawsuit. First, the plaintiff must have experienced some type of harm, and not simply a generalized harm. The harm must be specific and traceable to defendant’s actions. There are other requirements for standing, but those are the key points for this case. The trial court ruled that plaintiffs did not have standing, but the appellate court reversed that decision and ruled that plaintiffs did have standing. The en banc panel (the first one with 9 judges) then put it back to not having standing.
    The other issue is one of a political question. In our system, even if one has standing, a federal court can refuse to hear a case that it feels should not be decided by the courts, rather, it is more appropriately decided by Congress through the legislative process. Congress can take months or years, and have lengthy studies and testimonies performed while drafting thousands of pages of complex laws.
    In summary, because the Fifth Circuit Court of Appeals could not bring 9 judges to the en banc panel for an in-depth hearing, the first ruling by the en banc panel stands, and the defendants (Murphy Oil and others) now win.
    However, Comer has the right to appeal to the U.S. Supreme Court, but the odds of them hearing the case are very slim.
    Roger E. Sowell, Esq.

  27. Roger,
    thank you for your analysis!
    It seems odd to me that the homeowners, whom we should be able to assume were contributers to global warming through the use of gasoline and electricty, could sue for damages, that they helped to create.
    It would be as though a man who shoots himself in the foot with a gun, then sues the gun manufacturer for producing that product.
    Without even beginning to enter the whole “act of God” arena.

  28. Roger Sowell says:
    June 1, 2010 at 8:40 pm
    I am a practicing attorney, and will attempt here to translate the legalese above into more ordinary English……
    _________________________________________________________________________
    Thank you Mr. Sowell.
    I wonder why this case was ever heard in the first place. Was it because of a CAGW fanatic hoped to push the “frontiers of law” or because someone was hoping to get it tossed out because it had no “standing” and thereby set precedence.

  29. The most incomprehensible article I have ever read on WUWT… makes maths and physics seem easy.

  30. Jim G, and Gail Combs, I’m glad I could help. Sometimes (too many times, IMHO) lawyers write for other lawyers and do so in a way that is not easily read nor understood, except by other lawyers – and the above article is an example of this. Judges do this also, which is a prime reason that people should hire an attorney even when they have read the law and cases pertaining to their particular problem. English words don’t always mean what they appear to, especially when lawyers and courts get involved. By the way, Chief Justice John Roberts is noted for not writing in legalese but in a plain-style that is easily read and understood. Reading a statute also has problems, as even simple words may not mean what they appear to. There is an entire branch of law known as “statutory interpretation,” so again it is best to hire an attorney who is trained in this. As just one example, what is NOT written in a statute sometimes has more impact than the words that ARE there. I appreciate that this sounds very wrong, but it is also very true.
    Gail, in an effort to answer your question above, the plaintiffs here, Comer and others, are landowners in Mississippi who suffered storm damage from Hurricane Katrina. They filed the lawsuit, seeking to have it turned into a class action against more than a dozen defendants. The question of becoming a class action was never reached, as the judge threw it out on the standing issue. Here is a list of the defendants, which reads like a Who’s Who of big industry:
    MURPHY OIL USA; UNIVERSAL OIL PRODUCTS (UOP); SHELL OIL
    COMPANY; EXXONMOBIL CORP; AES CORP; ALLEGHENY ENERGY
    INC; ALLIANCE RESOURCE PARTNERS LP; ALPHA NATURAL
    RESOURCES INC; ARCH COAL INC; BP AMERICA PRODUCTION
    COMPANY; BP PRODUCTS NORTH AMERICA INC; CINERGY CORP;
    CONOCOPHILLIPS COMPANY; CONSOL ENERGY INC; THE DOW
    CHEMICAL COMPANY; DUKE ENERGY CORP; EON AG; E I DUPONT DE
    NEMOURS & CO; ENTERGY CORP; FIRSTENERGY CORP;
    FOUNDATION COAL HOLDINGS INC; FPL GROUP INC; HONEYWELL
    INTERNATIONAL INC; INTERNATIONAL COAL GROUP INC; MASSEY
    ENERGY CO; NATURAL RESOURCE PARTNERS LP; PEABODY ENERGY
    CORP; RELIANT ENERGY INC; TENNESSEE VALLEY AUTHORITY;
    WESTMORELAND COAL CO; XCEL ENERGY INC; CHEVRON USA INC;
    THE AMERICAN PETROLEUM INSTITUTE
    Class action attorneys are a greedy bunch, and it is likely they (the plaintiffs’ lawyers) were expecting huge sums if they could get the court to agree with them that big industry emits CO2 (not disputed), the CO2 causes global warming (some dispute there), and that global warming made Hurricane Katrina much worse than it would have been otherwise (a highly debatable point). Therefore, Gail, I’m going with your first point, CAGW proponents (and maybe fanatics) pushing the frontiers of the law.
    Jim G, as to your point on plaintiffs contributing to their own injury by producing CO2, the courts have held that a person can sue in that situation, as long as the defendant’s actions also contributed to the injury, as opposed to solely or materially caused the injury. There is a long line of cases (not global warming related) that use this doctrine to allow lawsuits.
    Roger

  31. Roger Sowell says:
    June 1, 2010 at 8:40 pm

    However, yet another judge, one of the nine, then developed a conflict of interest (and that is very interesting as to why and the timing), leaving only 8 judges.

    First, thank you for the explanation. One needs a background in such matters to put all of this into context. It’s a lot like a baseball game. Terms and circumstances sometime occur during a game that are confusing unless there is a little background.
    Just how does a judge ‘develop’ a conflict of interest? Did the judge in question offer any explanation? Sudden pangs of conscience? A purchase of shares in an energy company? An attack of common sense? Perhaps a reading of an article on WUWT led to the conclusion all of this is silly?
    Most important, did the judge realize the consequences of the act of recusal would be a dismissal of the case and did it for that reason?
    My favorite story of judicial maneuvering to achieve an unlikely goal is in Robert Caro’s Means of Ascent. Abe Fortas constructed a legal strategy for LBJ allowing LBJ to keep a primary election victory he basically stole in 1948. LBJ’s nickname after winning the Senate Democratic primary by 87 votes was Landslide Lyndon.
    Makes one wonder what is really meant by the term ‘rule of law’.

  32. “Martin Lewitt says:
    June 1, 2010 at 2:28 pm
    Are there any scientists that claim to know what portion of the Katrina damage is due to climate change, if any? Did any documents disclose what scientific “experts” would be called?”
    None, Katrina a CAT 3 Hurricane caused levee failure in defences that were supposed to withstand a CAT3 event. The culpable entities are the US Corp of Army Engineers, the State Government and their sub-contractors who failed to construct to specification.

  33. Looks like a mixed bag on the results. I would have loved to see how the plaintiff would present actual real evidence to support their claim and how the courts would accept what was presented.

  34. Jack Simmons, re why the Fifth Circuit judge recused himself or herself.
    I cannot write much about that, because as a practicing attorney I am bound by ethical rules that prohibit commentary on judges’ activities. I also may appear before judges in that court to represent clients. No matter his personal feelings on any subject, an attorney should strive to maintain a good relationship with all judges so as not to adversely bias his client’s chances of winning his case. It probably sounds strange for an attorney to state he abides by ethical rules, but we do.
    What an attorney can do, however, is state (or write, in this instance) that judges are also bound by rules of conduct that dictate the circumstances of when they must recuse or disqualify themselves. Federal judges are bound by the Code of Conduct for United States Judges, as periodically revised. There are five Canons in the Code of Conduct. Canon 3C provides at least eight circumstances under which a judge shall disqualify himself or herself, starting on page 7 of the document at the link below. These are not the only grounds for disqualification, as the Code of Conduct must be read in its entirety because each Canon has some requirements that could result in recusal or disqualification.
    http://tinyurl.com/28a6sdl
    I wish I could be of more help, but in this case cannot.

  35. How does rising sea level strengthen hurricanes? SST, sure, but sea level? They would have been better off suing people who developed the coastline which DID cause economic damage destruction of the natural storm surge barrier.

  36. I’d like to see them prove that it was the particular CO2 emitted by Murphy that caused the damage to Comer.
    Which piece of coal blows the whistle?

  37. Ike says:
    June 1, 2010 at 4:47 pm
    “The weakest link, looking at this like a lawyer not like I would if I were a reasoning, thinking human being, is going to be that last link.”
    You may be a lawyer, but you have a great sense of humour! 🙂
    Roger Sowell says:
    June 1, 2010 at 8:40 pm
    “I am a practicing attorney, and will attempt here to translate the legalese above into more ordinary English.”
    Thank you so much for this, Roger. You’ve put a lot of effort into it, and, like others, I want you to know it is greatly appreciated.

  38. This is off-topic, but our old friend Hank Roberts recently said this at RC:
    “The imbalance causing global warming is less than one third of one percent of the total insolation.”
    It’s this sort of thing that makes engineers skeptical of climate science. Imagine trying to measure a signal that modulates my weight by less than 0.33%. That’s resolving a signal comprised of less than a pound moving around. With me standing here, it’s do-able, but would take some effort. Now imagine me jumping around erratically and refusing to stand still. Now find that signal. No engineer would promise accurate results for a task like that.

  39. Martin Lewitt June 1, 2010 at 2:28 pm
    Are there any scientists that claim to know what portion of the Katrina damage is due to climate change, if any? Did any documents disclose what scientific “experts” would be called?

    I think that was strictly in the area of insurance claims’, to wit, “water damage” as the dikes failed, ostensibly, due to inadequate construction/not to spec issues. Kickbacks, favors, skimming the bids re: awarding of contracts from the various dike/water district boards.
    Not exactly climate change huh ….

  40. Roger Sowell says:
    June 2, 2010 at 7:29 am

    Jack Simmons, re why the Fifth Circuit judge recused himself or herself.
    It probably sounds strange for an attorney to state he abides by ethical rules, but we do.
    What an attorney can do, however, is state (or write, in this instance) that judges are also bound by rules of conduct that dictate the circumstances of when they must recuse or disqualify themselves.

    I am not at all surprised attorneys and judges in the federal system are bound by rules of conduct.
    Several years ago, I had the privileged of serving on a federal jury. It was one of the best experiences of my life.
    I was very impressed by the judge. He stated there were things he did not agree with in some of the procedures he had to follow. But, he followed them.
    Throughout the trail I kept telling myself I hoped, if I ever got into serious legal trouble, there would be a judge like him presiding.
    I was also impressed by my fellow jurors. I kept thinking how seriously everyone took this assignment and was striving to fulfill their obligations as citizens. There was a lot of collective wisdom sitting in that room.
    These were just ordinary people picked up in the process, given the rules under which to operate, and asked to render a decision.
    I really wanted to acquit the guy as I thought there was a lot more going on than was presented at the case. But I had a lot of regard for fellow jurors and their thinking, so I went along with them. It really was a close call and could have gone either way.
    Big rule in life, as stated by my wife on many occasions:
    “It’s easier to stay out of trouble than to get out of trouble.”

  41. Roger Sowell says:
    June 1, 2010 at 10:44 pm
    English words don’t always mean what they appear to, especially when lawyers and courts get involved.
    Or when “climate scientists” of the AGW alarmist-kind get involved, evidently …
    Canada’s Andrew Weaver, for example, is wont to claim that scientists are “cautious, skeptical and conservative”. Yet he had no compunctions about billing the (then) soon to be released revelations of AR4 vis a vis climate change as a “barrage of intergalactic ballistic missiles”.
    http://hro001.wordpress.com/2010/04/26/weavers-wobbly-conservative-claims/

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