- The Washington Times - Thursday, March 18, 2010


A case called Comer v. Murphy Oil USA, winding its way through federal courts, offers leftists a perfect storm of fantasy fulfillment. Yet their fantasy balloons may well get popped. If the case is decided correctly, it could strike separate blows against both lawsuit abuse and global-warming alarmists, including those at the radicalized Environmental Protection Agency.

Mississippi resident Ned Comer is the lead plaintiff in this class-action lawsuit demanding major damage payments from a host of energy companies on the theory that the companies’ carbon emissions contributed to global warming, which in turn supposedly caused a strengthening of Hurricane Katrina, which damaged their properties in 2005.

Remember the theory of the “butterfly effect,” whereby the flap of an insect’s wings in Brazil somehow could cause a tornado in Texas? In essence, the Comer theory amounts to sort of a butterfly effect writ extra-large. The problem with the butterfly effect is that a gazillion other creatures are flapping their wings all over the world, so it is literally impossible ever to prove a cause-and-effect relationship between airflows in Brazil and Texas or between Bolivia and Tennessee.

Likewise with this lawsuit: Even the plaintiffs claim no more than that the defendant energy companies contributed to greenhouse gases, which contributed to global warming, which contributed to Katrina’s devastation. Six billion other souls on Earth, and billions more now deceased, have added carbon dioxide and other “greenhouse gases” to the atmosphere. The defendants argue, quite reasonably, that it would be ludicrous to ask a jury to trace the causes of the Katrina injuries back to any provable, much less quantifiable, actions by the particular energy companies targeted in this suit.

As explained in an amicus brief filed by the American Farm Bureau Federation and others, “The tenuous link between plaintiffs’ alleged harm and defendants’ alleged conduct is beyond anything ever recognized in American tort law.” For one thing - as argued in another amicus brief led by the Edison Electric Institute - “the claim of injury … is too speculative.”

Federal District Judge Louis Guirola Jr. agreed. He dismissed the case without a trial because, he said, the plaintiffs lacked legal standing to claim a traceable harm and because the case asked courts to intrude into a “political question” best left to the legislative and executive branches. This is the same thing federal district courts in Connecticut and California decided in similar global-warming-based cases. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit disagreed in September, ordering the case to be reinstated - only then to see the whole 5th Circuit bench take the rare step on Feb. 26 of ordering a rehearing of the panel’s ruling, with briefs on the case due by the end of this month. With the Connecticut and California cases also working up the federal court food chain, the U.S. Supreme Court eventually is likely to weigh in.

Remember, this first fight involves mere standing to sue, not the merits of the global-warming, butterfly-effect claims. But if it proceeds to trial, literally every one of us who uses energy could be legally liable for some degree of Katrina’s devastation. Energy-company shareholders, including retirees whose pension funds rely on stock in those companies, would see their savings diminished, while consumers surely would pay vastly higher prices if the millions of people who suffered damages in Katrina could lay claims for damages.

This is foolishness. When reinstating (for now) the Comer case, the 5th Circuit’s three-judge panel accepted without question the possibility that (purported) global warming could have been responsible for Katrina. That speculation has been debunked since shortly after the storm. On Sept. 20, 2005, just three weeks after the disaster, National Hurricane Center Director Max Mayfield told Congress that Katrina and other then-recent storms were “due to natural fluctuations/cycles of hurricane activity.” In May 2006, Mr. Mayfield and four other top hurricane specialists wrote a paper endorsing recent findings that the connection between “hurricane activity [and] global warming is inconsequential compared to natural variability.”

And even that “inconsequential” effect of global warming disappears, of course, if human-caused global warming turns out to be an invalid theory. In February, Peabody Energy Co. petitioned the EPA for reconsideration of the agency’s controversial “endangerment finding,” which would allow EPA to regulate carbon emissions. Peabody noted that the EPA openly relied mostly not on its own studies, but on those of the Intergovernmental Panel on Climate Change, the United Nations body that has been rocked repeatedly by scandal in recent months for manipulating data, suppressing inconvenient information and failing to welcome scientific peer reviews of its studies.

Plaintiffs in the Connecticut global-warming case rely specifically on the IPCC studies, as did the Supreme Court case Massachusetts v. EPA, which gave EPA the authority to regulate carbon emissions in the first place. With the IPCC increasingly discredited, the whole legal global-warming edifice - both at the EPA and in the lawsuits regarding Katrina, California and Connecticut - could collapse.

As well they should. Some catastrophes aren’t caused by man. They just happen. And neither courts nor bureaucrats should try to lay the blame.

Quin Hillyer is a senior editorial writer for The Washington Times.

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