Great article on the insanity of global warming and energy production. Just think of the possibilities - the lawyers can sue every individual and everything that uses petroleum based products as a source to produce energy. Lawyers can make billions in fees - and guess who loses big time - the consumer, again.
Waiting to Exhale - Surprise! You’re a polluter.
Dave Hoopman (Wisconsin Energy Cooperative News)
"How about if we sue you for breathing,” The Wall Street Journal asked in a December 2009 editorial. Of course the idea seems absurd, but that’s not the same thing as saying prudent persons or businesses would bet their futures that the U.S. legal system is incapable of producing absurd results.
Since the U.S. Environmental Protection Agency (EPA) almost a year ago made clear its intention to declare carbon dioxide—the stuff we all exhale—a dangerous pollutant that threatens human health and welfare, federal appeals courts have shown themselves willing to entertain litigation that validates the logic of the Journal’s rhetorical question.
Twice in recent months, appellate courts have revived lawsuits with potential consequences ranging from an impact on the cost and reliability of electricity to monetary damages that would ultimately be paid by all consumers, based on a finding that someone’s emissions of carbon dioxide—not necessarily those of the defendants—could have caused or might eventually cause harm to plaintiffs or their interests.
Something Special from Wisconsin
When new uses were being invented for an old legal concept, Wisconsin was in on the ground floor. Six years ago this July, then-Wisconsin Attorney General Peg Lautenschlager joined Richard Blumenthal, still Connecticut’s attorney general, and six other A-Gs in a federal lawsuit alleging five of the nation’s largest electricity producers had created a “public nuisance” by allowing their power plants to emit carbon dioxide.
Named as defendants were Xcel Energy and four other utilities (only Xcel operates in Wisconsin) serving a total of 20 states. Lautenschlager got out a press release claiming the emissions threatened Wisconsin with “increased ozone and respiratory illness, more heat-related deaths and ailments, debilitated winter sports and tourist economy, reduced natural fishery stocks, decimated forests, lowered water levels in our Great Lakes…and intensified catastrophic droughts, storms, and floods…”
In September 2005 federal Judge Loretta Preska of the Southern District of New York decided the A-Gs were asking her court to rule on questions outside its authority. In her dismissal, Preska called the issues “transcendently legislative” and said the suit presented “non-justiciable political questions that are consigned to the political branches, not the judiciary.”
The following month, lead plaintiff Blumenthal said Preska should have asserted greater judicial powers rather than leave the environmental policy decision to elected legislators. He and his fellow A-Gs appealed, asking the U.S. Court of Appeals for the Second Circuit to compel the five utilities to cap their CO2 emissions and then reduce them by an unspecified percentage annually for 10 years. Just over one year later with the appeal still pending, Wisconsin voters retired Lautenschlager.
Forgotten but not Gone
Until last September nothing more was heard of the lawsuit. Then, almost exactly four years after Preska’s dismissal, the Second Circuit reinstated the case. Wisconsin remains a plaintiff.
In an opinion that came close to saying the problem cited by Preska can’t occur, the appeals court wrote, “Given the checks and balances among the three branches of our government, the judiciary can no more usurp executive and legislative prerogatives than it can decline to decide matters within its jurisdiction simply because such matters may have political ramifications.”
Within days, Law Seminars International (LSI), a private-sector Seattle firm offering legal education and specializing in regulatory issues, was marketing a “telebriefing” on the case, saying its implications could spread far beyond the 20 states and five utilities originally sued.
Painting a picture of regulatory chaos, LSI claimed a decision favoring the plaintiffs “could result in numerous federal judges each setting different emission caps and reduction schedules for various groups of defendants.”
Obviously LSI has a commercial interest, but it’s undeniable that barely more than three weeks after the Second Circuit’s order, another federal appeals court breathed new life into a CO2 lawsuit previously dismissed.
Last October 16, the U.S. Court of Appeals for the Fifth Circuit ruled that District Judge Louis Guirola erred in his 2007 dismissal of a suit brought by a group of Mississippi property owners.
The plaintiffs accused some two-dozen defendants, including oil companies and electric utilities, of emitting carbon dioxide that intensified Hurricane Katrina, making its damage to their properties worse than it otherwise would have been.
Pushing the Judicial Envelope
Hearing transcripts quote District Judge Guirola saying the suit amounts to a “debate” about global warming “which has no place in this court until Congress enacts legislation which sets appropriate standards by which this court can measure conduct…and develops standards by which…juries can adjudicate facts and apply the law.” Guirola said the plaintiffs were “asking the court to develop those standards, and it is something that this court is simply not empowered to do.”
But the Fifth Circuit thought the court was empowered to hear the case. The defendants maintain it’s impossible to show their lawful actions harmed specific plaintiffs but the Fifth Circuit framed the issue, “not as an inquiry into whether a defendant’s pollutants are the sole cause of an injury but rather whether ‘the pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.’”
The plaintiffs cannot expect an easy win. Abundant research over the past few years has debunked the supposed link between global warming and more frequent, stronger storms. In January 2008, the National Oceanic and Atmospheric Administration (NOAA) published findings that warmer ocean temperatures worldwide tend to increase vertical wind shear, reducing the intensity of developing storms.
The court did not weigh the damage claims, saying, “Plaintiffs will be required to support these assertions at later stages in the litigation, [but] at this pleading stage we must take these allegations as true.”
Who’s on the Hook?
Big, plump, and to many people unsympathetic targets are the common thread connecting the 2004 nuisance suit and the Katrina case, but the reasoning in last October’s LSI promotion and in The Wall Street Journal editorial is that nothing says it will stay this way: Anyone could become a defendant.
In fact, the Journal echoed LSI’s warning about defendants being held to unpredictable standards, saying, “The courts would become a venue for a carbon war of all against all,” adding, “Judges would decide the remedies against specific defendants,” meaning “ad hoc command-and-control regulation” that could vary from one judicial district or lifetime-appointed federal judge to another.
The Journal quoted attorney David Rivkin’s friend-of-the-court brief in the Katrina case, saying, “There is no logical reason to draw the line at 30 defendants as opposed to 50, or 500, or even 10,000 defendants. These plaintiffs—and any others alleging injury by climatic phenomena—would have standing to assert a damages claim against virtually every entity and individual on the planet, since each ‘contributes’ to global concentrations of carbon dioxide.”We may be small-time polluters, but as long as we keep exhaling, polluters we are—in the eyes of the law.—
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