Hurricane Katrina Victims Have Standing To Sue Over Global Warming

[WSJ_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.”

But the Fifth Circuit held that at this preliminary stage in the litigation, the plaintiffs had sufficiently detailed their claims to earn a day in court.

In so holding, the court notably quoted a recent Supreme Court opinion that “accepted as plausible the link between man-made greenhouse gas emissions and global warming” along with the fact that “rising ocean temperatures may contribute to the ferocity of hurricanes.”

So what is the broader significance of the ruling? We checked in with Jackson for his take.

At a minimum, he says, the ruling will invite more climate-change litigation in the future.

“With this decision,” he says, “you are now pretty well assured of seeing others file these kinds of claims.”

Last month, he notes, the Second Circuit held that states and municipalities had standing to sue to impose on caps on certain companies’ greenhouse gas emissions. Here’s an overview from Skadden of that ruling.

In contrast with the Second Circuit, the Fifth Circuit case may be particularly inviting to tort lawyers, since the New Orleans court opened the door to “a case by private litigants, a class action, seeking an enormous amount of damages,” Jackson says.

Still, Jackson notes, the Katrina case is at an early stage, and the Fifth Circuit’s ruling “does not mean there is enough causation evidence to survive a motion to dismiss.”

Click here to see the complaint in Katrina case.

Photo: Getty Images

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