The 5th Circuit, a historically conservative court, has granted standing to allow Victims of Hurricane Katrina to sue energy companies who emitted carbon for damage to their property. H/T WSJ Blog Reports
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.”
Of course, this case is based on Massachusetts v. E.P.A., 549 U.S. 497 (2007).
The 5th Circuit Opinion can be found here. Some choice excerpts:
In Mass v. EPA “Massachusetts had standing to challenge the EPA’s decision not to regulate the emission of greenhouse gasses, see Massachusetts . . . [and] the Court accepted as plausible the link between man-made greenhouse gas emissions and global warming.”
In holding that Massachusetts had standing to challenge the EPA’s decision not to regulate the emission of greenhouse gasses, see Massachusetts, 549 U.S. at 522-23, the Court accepted as plausible the link between man-made greenhouse gas emissions and global warming, id. at 523 (noting the “causal connection between man-made greenhouse gas emissions and global warming” in finding that “EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming. At a minimum, therefore, EPA’s refusal to regulate such emissions ‘contributes’ to Massachusetts’ injuries”), as well as the nexus of warmer climate and rising ocean temperatures with the strength of hurricanes.“
“Thus, the Court recognized, in the same context as the instant case, that injuries may be fairly traceable to actions that contribute to, rather than solely or materially cause, greenhouse gas emissions and global warming.”
Regarding traceability, one of the prongs of standing, the court found:
“Here, the plaintiffs’ complaint alleges that defendants’ emissions caused the plaintiffs’ property damage, which is redressable through monetary damages; for example, the plaintiffs allege that defendants’ willful, unreasonable use of their property to emit greenhouse gasses constituted private nuisance under Mississippi law because it inflicted injury on the plaintiffs’ land by causing both land loss due to sea level rise and property damage due to Hurricane Katrina . . . Similarly, the plaintiffs allege that defendants’ emissions constituted a public nuisance because they unreasonably interfered with a common right of
the general public by causing the loss of use and enjoyment of public property through erosion of beaches, rising sea levels, saltwater intrusion, habitat destruction, and storm damage. Because the injury can be traced to the defendants’ contributions, the plaintiffs’ first set of claims satisfies the traceability requirement and the standing inquiry.”
This could be potentially significant. Quoting J. Russell Jackson, who specializes in mass tort litigation, WSJ reports:
“With this decision,” he says, “you are now pretty well assured of seeing others file these kinds of claims.”