Author: Luke A. Wake
Last week Pacific Legal Foundation filed an amicus brief on behalf of numerous energy companies in Comer v. Murphy Oil. The case raises particularly interesting questions of judiciability, but the nation's eyes are on the case because the plaintiffs are seeking to sue over the energy companies' contributions to the international problem of climate change. If suing over global warming doesn't sound absurd enough, the plaintiffs are actually suing these energy companies on the theory that their emissions somehow caused Hurricane Katrina to be more intense than it would have otherwise been and that it has therein cause them damages.
The plaintiffs are trying to use common law tort doctrines as a sword to combat climate change. The idea is that these common law doctrines can be applied to hold big companies liable for their contributions to global emissions. But, there are a couple of problems with applying those tort doctrines in this case:
(1) Who should sue who for contributing to global warming? After all, we all contribute to the world's emissions and therefore we are all contributing to global warming. Moreover we are all victims of global warming at the same time. So how is it fair to single out a few companies to bear the burden of liability here?
(2) Congress has debated and, thus far, rejected legislation which would set standards for the emission of green house gases. At this point, there are no standards, and to the extent the courts invent standards, they are setting policy in violation of the political question doctrine.
(3) How can anyone have standing to sue over global warming? Global warming effects everyone, so any injury is most likely generalized. Moreover, it is impossible to demonstrate that any one defendant has contributed in a non-de minimis way to cause global warming.
(4) How can a court order do anything to stop global warming when the defendants are merely de minimis contributors to this global problem? After all, the court can't bind non-parties. This is why the only real solution to climate change would have to be done through the legislative process or through international treaties.