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?
Now 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.
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.
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.