Clint Bolick

Uncoupling responsibility and liability

Posted on November 05, 2009 | Author: Clint Bolick
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The redistribution of wealth is a central theme of our current political era. That trend just received a boost from a decision from the U.S. Court of Appeals for the Fifth Circuit, which reinstated a lawsuit that, if successful, could fundamentally transform the concept of liability and enrich scores of environmental and personal-injury lawyers.
 
The plaintiffs in Comer v. Murphy Oil USA allege that "defendants' operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming . . . that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs' private property, as well as public property useful to them." For which the plaintiffs, of course, seek massive compensatory and punitive damages.
 
Under federal law, in order to have "standing" to sue, a plaintiff must show an injury that is "fairly traceable" to the defendant's conduct. Standing typically is so narrowly construed that some unconstitutional government actions cannot be challenged at all. So it was not surprising that the district court dismissed the lawsuit as presenting a political "debate" over global warming rather than a true legal controversy.

But the appeals court reversed, holding that "the plaintiffs have standing to assert their public and private nuisance, trespass, and negligence claims." The company will have to spend untold thousands of dollars (which will increase prices or reduce investment returns) to fend off a lawsuit that could never prevail under standard tort concepts of fault.

The next time you're in California, be careful to walk softly lest your footstep be the one to set off the long-forecast earthquake that might render you liable for billions in damages. But if you do, make sure you're carrying a hot cup of coffee so that when you spill it on yourself during the earthquake, you can get McDonald's to pick up part of the tab.
 
Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.
 
Learn More:
 
5th Circuit Court of Appeals Decision: Comer v. Murphy Oil USA

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