Next Move: Suing the Sun for Unseasonably Cool Weather

The New Orleans-based Fifth Circuit, the federal court of appeals where I once clerked, has allowed a class action lawsuit by Hurricane Katrina victims to proceed against a motley crew of energy, oil, and chemical companies. Their claim: that the defendants’ greenhouse gas emissions raised air and water temperatures on the Gulf Coast, contributing to Katrina’s strength and causing property damage. Mass tort litigation specialist Russell Jackson calls the plaintiffs’ claims “the litigator’s equivalent to the game ‘Six Degrees of Kevin Bacon.’”

In Comer v. Murphy Oil USA, the plaintiffs assert a variety of theories under Mississippi common law, but the main issue at this stage was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendant’s actions. The court dismissed several claims but held that plaintiffs indeed could allege public and private nuisance, trespass and negligence. The court also held that these latter claims do not present a so-called “political question” that the court doesn’t have the authority to resolve. You can read about the Court’s ruling in more detail at the WSJ Law Blog and Jackson’s Consumer Class Actions and Mass Torts Blog.

This is actually the second federal appeals court to rule this way; last month, the Second Circuit (based in New York) held that states, municipalities and certain private organizations had standing to bring federal common law nuisance claims to impose caps on certain companies’ greenhouse gas emissions. Here’s the opinion in that case, Connecticut v. American Electric Power Company, and you can read a pretty good summary and analysis here.

Both of these cases, which herald a flood of global warming-related litigation, so to speak, owe their continuing vitality to the Supreme Court’s misbegotten 2007 decision in Massachusetts v. EPA. The 2006-2007 Cato Supreme Court Review covered that case in an insightful article by Andrew Morriss of the University of Illinois. (To get your copy of the latest (2008-2009) Review, go here.)

I should note from my own experience at the Fifth Circuit that the panel here consisted of the two worst judges on the court — Clinton appointees Carl Stewart and James Dennis — and one of Reagan’s weakest federal appellate appointments, Eugene Davis. Even Davis, however, wrote separately to note that while he agreed on the standing issue, he would have affirmed the district court’s dismissal of the suit on a different ground (that pesky proximate cause issue).

I predict that the full (16-judge) Fifth Circuit will review this case en banc –and if not that the Supreme Court will eventually take it up (if the district court on remand doesn’t again dispose of the case on causation grounds).

C: Cato's blog.

In Defense of "Libertarian Crusades"

We in the public interest legal community — especially on the libertarian or conservative side — are used to taking slings and arrows from all quarters. The media doesn’t understand our quaint obsession with following the text of the Constitution. The so-called progressives seethe at our evil defense of property rights and the freedom of contract. Even the business community blanches at our refusal to leave their sacred regulatory protections untouched in our attack on statism.

But what we don’t expect is to see federal judges openly and wantonly question our motives — least of all in an actual opinion. Yet this is precisely what Judge Jacques “Jack” Weiner did last Thursday in dissenting from a Fourth Amendment seizure/Fifth Amendment takings case. The case, Severance v. Patterson, involves a challenge to a Texas law that caused the seizure of beachfront property after Hurricane Rita pushed the vegetation line landward. The purpose of the law, the Open Beaches Act, is to ensure public access to the beach regardless of erosion and other natural land migrations (a.k.a. a “rolling easement”). The Fifth Circuit panel ended up affirming the dismissal of part of the claims and asking the Texas Supreme Court for a ruling on state-law issues implicated in others.

But the legal details aren’t important. What I want to highlight is Weiner’s dissent, which begins with the following “Context” (a section title not commonly found in judicial opinions; see pages 22-23 here):

Although undoubtedly unintentionally, the panel majority today aids and abets
the quixotic adventure of a California resident who is here represented by
counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s
published mission statement declares that its raison d’être includes
“defend[ing] the fundamental human right of private property,” noting that such
defense is part of each generation’s obligation to guard “against government
encroachment.”) The real alignment between Severance and the Pacific Legal
Foundation is not discernable from the record on appeal, but the real object of
these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is
clearly not to obtain reasonable compensation for a taking of properties either
actually or nominally purchased by Severance, but is to eviscerate the OBA,
precisely the kind of legislation that, by its own declaration, the Foundation
targets. And it matters not whether Ms. Severance’s role in this litigation is
genuinely that of the fair Dulcinea whose distress the Foundation cum knight
errant would alleviate or, instead, is truly that of squire Sancho Panza
assisting the Foundation cum Don Quixote to achieve its goal: Either way, the
panel majority’s reversal of the district court (whose rulings against Severance
I would affirm) has the unintentional effect of enlisting the federal courts
and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers
in this thinly veiled Libertarian crusade. It is within this framework that I
shall seek to demonstrate how the panel majority misses the mark and why
Severance’s action should be dismissed, once and for all, for her lack of
standing to assert either a Fifth Amendment takings claim for reasonable
compensation (because Severance has had nothing taken by the State) or a Fourth
Amendment unreasonable seizure claim (because that which was putatively seized
did not belong to Severance at the time; and even if it had, there was nothing
unreasonable about the purported seizure).

Apparently in Judge Weiner’s world, it is beyond the pale for an organization to provide pro bono legal services that also advance some larger ideological mission. Somebody tell the NAACP or ACLU — or the Supreme Court for that matter, which invites amicus briefs from just the kinds of groups Weiner excoriates. Cato itself routinely files such briefs, of course, and on several occasions has joined with PLF.

Chief Judge Jones pithily dispatches her colleague’s grandiloquence in the majority’s first footnote (see bottom of page 2 here):

Notwithstanding the hyperbolic and unsupported assertions in Part I of the
dissent (“Context”), the judges of the court endeavor not to decide appeals
based on who the litigants are, who their lawyers are, or what we may believe
their motives to be. Whether that rule is observed in light of Part I of the
dissent, however, the reader must determine.

And I won’t even get into Weiner’s mixed metaphors and schoolboy Latin – he meant qua, not cum – other than to say “hit the road, Jack.”

(Full disclosure: I clerked on the Fifth Circuit and am familiar with Weiner’s squishy, unreliable jurisprudence; he’s very nice in person, but something happens in chambers — left-wing clerks? — that detracts from his effectiveness. One caveat: Weiner is a great friend of the taxpayer; the IRS does not win in his courtroom.)

For commentary from the Volokh Conspiracy, see here. For PLF’s press release, see here. Hat tip: Cato adjunct scholar Tim Sandefur (whose day job is with PLF, though he did not work on this case).

[Cross-posted at Cato's blog."]