Quin Hillyer of The Washington Times comments on the should-be-higher profile case of Comer v. Murphy Oil U.S.A., in a column, “No butterfly caused Katrina“:

A case called Comer v. Murphy Oil USA, winding its way through federal courts, offers leftists a perfect storm of fantasy fulfillment. Yet their fantasy balloons may well get popped. If the case is decided correctly, it could strike separate blows against both lawsuit abuse and global-warming alarmists, including those at the radicalized Environmental Protection Agency. …

This is the class-action lawsuit in which Mississippi residents sued  150 energy companies, chemical manufacturers and other emitters of greenhouse gases, claiming the emissions increased global warming, which made Hurricane Katrina so much more powerful and damaging to property. Compensate us!

Hillyer writes:

Remember the theory of the “butterfly effect,” whereby the flap of an insect’s wings in Brazil somehow could cause a tornado in Texas? In essence, the Comer theory amounts to sort of a butterfly effect writ extra-large. The problem with the butterfly effect is that a gazillion other creatures are flapping their wings all over the world, so it is literally impossible ever to prove a cause-and-effect relationship between airflows in Brazil and Texas or between Bolivia and Tennessee.

The trial judge, U.S. District Judge Louis Girola, Jr., dismissed the lawsuit because it sought to use the courts to balance complicated economic, environmental and international interests. These interests are constitutionally the domain of the political branches of government, not the courts. Unfortunately, a three-judge panel of the Fifth Circuit reversed, allowing the case to proceed. Now the full court will now consider the litigation en banc. Hillyer:

Remember, this first fight involves mere standing to sue, not the merits of the global-warming, butterfly-effect claims. But if it proceeds to trial, literally every one of us who uses energy could be legally liable for some degree of Katrina’s devastation. Energy-company shareholders, including retirees whose pension funds rely on stock in those companies, would see their savings diminished, while consumers surely would pay vastly higher prices if the millions of people who suffered damages in Katrina could lay claims for damages.

Hillyer cites an amicus brief filed in the litigation by the American Farm Bureau Federation, joined by the National Association of Manufacturers, the the American Tort Reform Association. The brief and case summary is available at the NAM’s Manufacturing Law Center’s entry on Comer, here.

Prominent play on the front of the Metro section in today’s Washington Post, “Virginia leaders express interest in offshore drilling“:

RICHMOND — Never has the political climate in Virginia so favored offshore drilling.

Most Virginia leaders — regardless of their political party — have expressed interest in joining Alaska, Texas, Louisiana and other states in setting up offshore platforms to drill for oil and natural gas.

Gov. Robert F. McDonnell and fellow elected Republicans strongly back the proposal, as do most members of the state’s congressional delegation, including both U.S. senators, who are Democrats.

The Tallahassee Democrat reports, “Drilling report’s conclusions disappoint both sides:

With its chief proponent saying he is in no hurry, the push to open Florida waters to oil and gas drilling inched past another milestone Monday when a House panel was briefed on a report by a Florida think tank.

House Speaker-designate Dean Cannon, R-Winter Park, said he was pleased with the report, which was prepared by the Collins Center and the Century Commission for a Sustainable Florida.

“It was fascinating how much of it jibed with what we’ve been hearing in testimony from the experts,” Cannon said.

Cannon: “I’m pleased with the report.” Newspaper: “Both sides disappointed.”

The report concludes that Gulf of Mexico oil production would produce $80 million to $190 million annually in revenue to the state, creating 2,000 to 5,000 jobs.

A recent article in Newsweek provides the big picture, or deep picture, as the case may be. From “Journey to the Center of the Earth“:

From the window of a helicopter 1,500 feet above the Gulf of Mexico, oil platforms look like Tinkertoys in a swimming pool. Dozens dot the horizon stretching south from New Orleans and continuing out as the water deepens and turns a darker blue. Then, about 50 miles offshore, the platforms stop, and for the next hundred miles there’s nothing. This is the deepwater Gulf of Mexico, where the ocean floor is 8,000 feet down and covered in a heavy layer of muck. Below that is an ancient salt bed several miles thick, and hidden under that, trapped tens of thousands of feet down, there’s oil—billions and billions of barrels of it. And it’s all in U.S. waters.

The article uses Chevron’s Tahiti platform (pictured above) as the base of reporting. Good story, tremendous prospects.

If only …

From The Washington Examiner, “The Obama Moratorium: No offshore drilling while he’s in office”

The Obama administration’s six-month delay in approving new offshore drilling leases in federal waters will become a new three-year ban, Interior Secretary Ken Salazar quietly told reporters last Friday. Which means that no new oil and gas leases will be approved during President Obama’s term even though two –thirds of the American public supports such activity, according to a December 2009 Rasmussen poll.

Sixty percent also believe that gas and oil prices will drop if the government allows offshore drilling, opening up an estimate 14 billion barrels of oil and 55 trillion cubic feet of natural gas

Lisa Jackson, Environmental Protection Agency administrator, speaking at the National Press Club Monday criticized citizens who disagree with the power grab(s) being undertaken by the agency to regulate greenhouse gases. Jackson sends an army of straw-men arguments marching into a very important debate about science, our economy, and the authority of an executive branch agency to set policy.

As you might expect, we’re running into the same old tired arguments.

Once again industry and lobbyists are trying to convince us that changes will be absolutely impossible. Once again alarmists are claiming this will be the death knell of our economy. Once again they are telling us we have to choose: Economy? Or environment?

Most drastically, we are seeing efforts to further delay EPA action to reduce greenhouse gases.

This is happening despite the overwhelming science on the dangers of climate change…despite the Supreme Court’s 2007 decision that EPA must use the Clean Air Act to reduce the proven threat of greenhouse gases…and despite the fact that leaving this problem for our children to solve is an act of breathtaking negligence.

Yeah, breathtaking. We get it.

Let’s take a look at Jackson’s claims.

1. “Once again industry and lobbyists are trying to convince us that changes will be absolutely impossible.” Really? Who’s arguing that? Here is a paragraph from the National Association of Manufacturers’ policy on climate change:

The NAM understands the fundamental importance of protecting the environment. Our member companies are committed to greater environmental sustainability, including energy efficiency and conservation and reducing greenhouse gas emissions associated with global climate change. We know we cannot solve the climate change issue alone. The U.S. Congress must engage in a thorough and transparent deliberative process for establishing federal climate change policies to reduce greenhouse gas emissions, while maintaining a competitive level playing field for U.S. companies in the global marketplace.

The policy then lists a set of principles for federal action on climate, stating that policies must be equitable and economywide in scope, include all sectors and recognize the different competitive environments and abilities of sectors. The EPA does not have the authority to accomplish this balancing under the Clean Air Act.

2. “Once again alarmists are claiming this will be the death knell of our economy. Once again they are telling us we have to choose: Economy? Or environment?” Ah, alarmists. Because with unemployment near 10 percent amid inconsistent signs of a recovery, and the United States competing in a global economy, anyone who expresses concerns about a vast new regulatory regime imposing new costs on the energy sector, manufacturers, and transportation is an “alarmist.” Here is a link to a study conducted for the National Association of Manufacturers and the American Council for Capital Formation on the effects of the Waxman-Markey legislation, including a loss of $2 trillion to $3 trillion in economic growth and two million jobs over the 18 years of the bill.

3. “Most drastically, we are seeing efforts to further delay EPA action to reduce greenhouse gases.” Thank goodness for these “most drastic” efforts, also known as legislation. You see, it’s not only industry and lobbyists and citizens who are exercising their First Amendment rights in calling for a delay in the EPA’s unprecedented power grab. It’s Senators, like Sen. Jay Rockefeller (D-WV) and Sen. Lisa Murkowski (R-AK). And Representatives like Rep. Ike Skelton (D-MO), Rep. Collin Peterson (D-MN) and Rep. Jo Ann Emerson (R-MO).

4. “This is happening despite the overwhelming science on the dangers of climate change.” That’s a point of some contention, isn’t it? We see scandal after scandal undermining the credibility of the most prominent scientific polemicists on climate change. (From Iain Murray at the Competitive Enterprise Institute, “Climategate: This Time It’s NASA,” and “The Real Climate Confusion.”)

5. “despite the Supreme Court’s 2007 decision that EPA must use the Clean Air Act to reduce the proven threat of greenhouse gases…” Advocates  often simplify the court’s decision in Massachusett v. EPA as ordering the agency to regulate greenhouse gases. It’s not that direct. The court ruled that the EPA did have the authority under the Clean Air Act to regulate greenhouse gases and is required by the Act to base the decision on a consideration of “whether greenhouse gas emissions contribute to climate change.” In any case, that’s a statutory authority that Congress, as the policymaking branch of government, can remove or modify as it wishes.

6. “and despite the fact that leaving this problem for our children to solve is an act of breathtaking negligence.” Unlike, say, the federal debt? In any case, Administrator Jackson is using the tired political tactic of invoking “the children,” in this case on behalf of a false choice. Opposing the Obama  EPA’s power grab, arguing against the agency’s attempt remake and burden the U.S. economy over the wishes of the public and policymakers does not mean “leaving this problem for our children to solve.” It means accurately identifying the problem, relying on our elected policymakers to address the issue through the political process, avoiding Pyrrhic victories that burn down our economy, and using the best of technological advances to improve efficiency and energy conservation.

What’s breathtaking about that?

Roll Call, “ Kerry Sparks Fight on Climate“:

In an already challenging election year for the majority, Sen. John Kerry’s (D-Mass.) rush to pass a climate change bill has many Democrats scratching their heads and charging that their 2004 presidential nominee could further imperil vulnerable Members this fall.

Climate change had been considered all but dead this year, and Senate Democrats have little appetite to take up the controversial issue after the beating that they have endured over their as-yet-unfinished health care reform efforts.

The Hill, “Sen. Kerry lobbies for climate compromise; actual bill to come“:

The three senators writing compromise climate legislation are lobbying business groups in hopes of winning their support for the effort. One obstacle: the absence of an actual bill…[snip]

As he tries to sell the legislation, Kerry is de-emphasizing its relation to climate change.

“What we are talking about is a jobs bill. It is not a climate bill. It is a jobs bill, and it is a clean air bill. It is a national security, energy independence bill,” he told reporters in the Capitol this week.

A national security, energy independence bill? Really?

From The Anchorage Daily News, “Lieberman to Murkowski: Forget ANWR drilling“:

Alaska Sen. Lisa Murkowski said Wednesday that opening the Arctic National Wildlife Refuge to oil drilling might be the price of her swing vote in favor of energy and climate legislation. But The Hill reports today that Sen. Joe Lieberman — a longtime opponent of ANWR drilling — says ANWR drilling would be a “deal breaker” in his attempt to craft a bipartisan climate bill.

Salt Lake City Tribune, “Noel seeks to protect power companies from emissions lawsuits“:

Power companies would be immune from lawsuits resulting from their greenhouse gas emissions under a bill sponsored by Rep. Mike Noel, R-Kanab, that passed the House on Tuesday.

Noel said he knows of two lawsuits that have been filed against power companies alleging they are contributing to climate change and, he said, Utah might be vulnerable to such lawsuits because so much of its power comes from fossil fuel.

“We need not make Utah fertile ground for future litigation of this type,” Noel said. “It’s only going to hurt our citizens.”

The vote was 49-19.

H.B. 395 is NOT just limited to power companies. As the text states:

A person residing or doing business in this state may not be held liable for damage or injury to another arising out of any actual or potential effect on climate caused by contributions to emissions of greenhouse gases unless it can be proved by clear and convincing evidence that the person has:

a) violated an enforceable statutory limitation or restriction against emissions of a specific greenhouse gas originating within this state; or (b) violated the express terms of a valid, enforceable operating, air, or other permit issued by a state or federal regulatory agency that has jurisdiction over the greenhouse gas emissions of the person or business.

The need to expand the protections beyond utilities is clear. In an earlier story from The Deseret News, “Utah lawmaker Mike Noel targets global warming lawsuits,” Rep. Noel mentions the Comer v. Murphy Oil Co. litigation, in which Mississippi property owners sued 150 oil companies, other energy producers and manufacturing companies under the theory that their emissions exacerbated Hurricane Katrina. (See our post from Thursday.)

Liability protections of this kind are not uncommon. State legislatures have passed laws to preclude suits against fast-food companies for causing obesity and against gun manufacturers for acts committed by criminals.

From a news release, office of Sen. Jay Rockefeller (D-WV), “Rockefeller Introduces Legislation to Suspend EPA Action and Protect Clean Coal State Economies.” The Senator said:

Today, we took important action to safeguard jobs, the coal industry, and the entire economy as we move toward clean coal technology. This legislation will issue a two year suspension on EPA regulation of greenhouse gases from stationary sources—giving Congress the time it needs to address an issue as complicated and expansive as our energy future. Congress, not the EPA, must be the ideal decision-maker on such a challenging issue.

Two weeks ago, I sent a letter to EPA Administrator Lisa Jackson challenging EPA’s potential regulation of greenhouse gases. Administrator Jackson responded quickly and showed some willingness to move the agency’s timetable for regulation to the end of 2010. This is a positive change and good progress, but I am concerned it may not be enough time. We must set this delay in stone and give Congress enough time to consider a comprehensive energy bill to develop the clean coal technologies we need. At a time when so many people are hurting, we need to put decisions about clean coal and our energy future into the hands of the people and their elected representatives, not a federal environmental agency.

House legislation is being introduced by Rep. Nick Rahall (D-WV).

The National Association of Manufacturers opposes EPA regulation of greenhouse gas emissions under the Clean Air Act, and the NAM contends that the agency’s attempt to hit only large, stationary emitters lacks any statutory basis. Sen. Rockefeller’s legislation is a move in the right direction.

Sen. Lisa Murkowski (R-AK), who has sponsored a Congressional resolution of regulatory disapproval (S.J.Res. 26), issued a statement on Sen. Rockefeller’s bill:

Senator Rockefeller’s legislation is further evidence of the growing, bipartisan, and bicameral resistance to EPA’s back-door climate regulations. Given the overwhelming opposition to these actions, I’m hopeful that this bill will draw additional support and advance quickly.

If that does not occur, the disapproval resolution is guaranteed consideration in the Senate. It’s imperative that senators have an opportunity to vote on whether or not they support EPA’s costly, unilateral and unprecedented attempt to impose these command-and-control regulations.

• New York Times, “Coal-State Dems Unveil Bills Stalling EPA Emission Curbs“
• Bloomberg, “Rockefeller Introduces Bill to Delay EPA Carbon Rules“
• Politico, “Rockefeller aims to block EPA rules“

Last October a three-member panel of the U.S. Court of Appeals for the Fifth Circuit ruled in Comer v. Murphy Oil USA [585 F. 3d 855 (5th Cir. 2009)] that private landowners along the Gulf Coast of Mississippi could use Mississippi state law to sue more than 150 energy and manufacturing companies for having contributed to global warming. The argument was that global warming made Hurricane Katrina more powerful, causing the damage to their property, and therefore the companies should pay up. (Opinion)

The panel’s opinion was a terrible example of a court deciding that the judiciary is the proper authority to rule on a matter of policy — how society should allocate economic resources in response to the possibility of anthropogenic global warming — that appropriately belongs with the elected, policy-making branch of government, Congress. Indeed, the trial court had dismissed the suit on the grounds it raised non-justiciable political questions.

Good news. In a little noticed decision last Friday, the Fifth Circuit vacated the panel’s ruling and ordered an en banc hearing of the case, that is, decided to bring the litigation before the full court of appeals. (The order is here.) En banc hearings are relatively rare, but the stakes in this case — and the extreme position taken by the panel — warrant the review.

The National Association of Manufacturers joined the American Farm Bureau Federation and the American Tort Reform Association in filing an amicus brief urging the en banc consideration. Excerpt:

The theories alleged by Plaintiffs would dramatically change tort law and negatively affect business and consumer practices far beyond the energy industry and the parties before the court. The practical application of these theories will burden trial judges with extraordinarily speculative litigation against American farms,manufacturers, and virtually all other businesses; arbitrary selection by plaintiffs’ counsel will be the touchstone for liability. The tenuous link between plaintiffs’ alleged harm and defendants’ alleged conduct is beyond anything ever recognized in American tort law. Causation issues will also create an impossible burden for judges and juries. Adjudicating such claims would require a fact-finder to balance the social utility and costs of an enormous range of industrial, agricultural, manufacturing and individual activities that are only remotely related (if at all) to the alleged harm in order to assess and to assign potential liability.

Further, complex regulatory matters should remain within the domain of the political branches, as the constitutional power to engage in the balancing of such economic, environmental and international interests is vested in them. Constitutional issues aside, only these branches of government can fully assess the impact of carbon emissions limits on the entire range of emitters, whether energy producers, farmers, or others not before the court. Those branches can also factor in the financial burden on consumers to afford the added costs associated with such restrictions to their utility, food and other bills.

Comer is one of three major cases where the courts are being asked to assign liability to U.S. companies for contributing to global warming and property damage. The others are Kivalina v. ExxonMobil, in which an Alaskan native village has sued oil companies for beach erosion, a suit since dismissed by a federal district judge; and Connecticut v. American Electronic Power, in which the Second Circuit has ruled that states may bring a federal public nuisance suit against electric utilities.

News, commentary:

• Associated Press, “Appeals Court to revisit Katrina lawsuit“
• Troutman Sanders, “Fifth Circuit Grants Rehearing En Banc in Comer Climate Change Tort Litigation“
• Gardere Wynne Sewell LLP news release “Climate Change Litigation Hits A Roadblock In Fifth Circuit Court Of Appeals“
• Insurance Journal, “Global Warming Litigation Just Getting Started; Costs Will Be Significant“

Former Vice President’s Al Gore’s apocalyptic op-ed in Saturday’s The New York Times, “We Can’t Wish Away Climate Change,” has already produced worthy rebuttals of his scientific contradictions, notably this editorial in Investor’s Business Daily, “A Blizzard Of Lies From Al Gore.”

Gore’s rhetoric is also something to marvel at: “In fact, the crisis is still growing because we are continuing to dump 90 million tons of global-warming pollution every 24 hours into the atmosphere — as if it were an open sewer.”

He’s talking about carbon dioxide, a gas, the product of respiration and required for life on Earth. No matter your view on anthropogenic global warming, trying to relabel CO₂ as pollution and comparing its discharge to sewage discharge is an obvious attempt to deceive and confuse.

Gore quotes Winston Churchill to end his column, but his use of language is Orwellian: language corrupting thought.

UPDATE (11:50 a.m.): Trying to build on the NYT op-ed, Gore’s group, the Climate Protection Action Fund’s Repower America campaign, has been bombarding its email list with entreaties to contact U.S. Senators in support of some sort of global warming legislation. This morning’s e-mail from Dave Boundy, campaign manager, implores:

This morning we’re kicking off an all-out, bare-knuckled, three-day calling campaign to demand the strongest possible climate and clean energy legislation — with a goal of 20,000 calls from Repower America supporters alone.

With critical negotiations happening right now in the Senate over climate and clean energy and a bill due to be announced soon, lobbyists from big polluting corporations are scrambling to throw as much firepower as they can against a strong bill.

We have to fight back. Thousands of Repower America supporters like you have already pledged to call, and reports of calls from across the country are flooding in right now. Can you join them by calling now?

Twenty thousand calls doesn’t sound like a lot to us. And what the heck is a bare-knuckled calling campaign?

The e-mail is in the extended entry.

UPDATE (1:20 p.m.): Steven Hayword at the American Enterprise Institute observes, “Everything That’s Wrong With Al Gore in a Single Sentence,” with that sentence being: “From the standpoint of governance, what is at stake is our ability to use the rule of law as an instrument of human redemption.” (Hat tip: The Chamber Post.)

Introduced Thursday, Feb. 26, by Reps. Ike Skelton (D-MO), Collin Peterson (D-PA), and Jo Ann Emerson (R-MO), H. J. RES. 76, “Disapproving a rule submitted by the Environmental Protection Agency relating to the endangerment finding and the cause or contribute findings for greenhouse gases under section 202(a) of the Clean Air Act.” From the joint news release, Skelton’s comment:

Congress stands in the shoes of the American people. Executive branch agencies, like EPA, carry out the laws passed by Congress.

When Congress passed the Clean Air Act, it never gave EPA the explicit authority to regulate greenhouse gas emissions for the purpose of stopping global climate change. But, that is exactly what EPA has proposed to do.

I do not agree with the EPA or the 2007 Supreme Court ruling that gave the Agency that authority. So, today, I introduced a bipartisan joint resolution to stop EPA from implementing its proposed greenhouse gas regulations that would likely be very costly to farmers, business owners, Midwestern utilities, and consumers.

The resolution of disapproval does not stop Congress from working on important energy legislation, though I do hope it will set aside cap and trade in favor of a more scaled back bipartisan bill. My resolution does, however, keep EPA from threatening Congress with its own greenhouse gas policy as we write legislation.

Again we see prominent Democrats — Skelton and Peterson are House committee chairmen — reasserting the proper policymaking role of Congress vis a vis an Administration of their own party. Last week, eight Senate Democrats wrote a letter to EPA Administrator Lisa Jackson also affirming the legislative branch’s primacy.

The Sketon-Peterson-Emerson measure is a direct resolution of disapproval, as opposed to H.R. 4572, which the three members of Congress introduced in early February. That measure would have removed major greenhouse gases from regulation under the Clean Air Act while promoting biomass energy.

Jay Timmons, executive vice president of the NAM, returns home to speak to business leaders. From The Chillicothe Gazette, “Chillicothe native: More small town jobs will help restore economy“: “[The] key to create and maintain jobs in the U.S. is to lowering the corporate tax and changing the polices in Washington. ‘One thing I know for sure is that Americans will still stand in line for manufacturing jobs if they are around,’ he said.”

Milwaukee Journal-Sentinel, “Manufacturing growing slowly: “At the tail of end last year, there was a spike in orders for durable goods. But that was likely due to an expiring pro-investment tax provision for accelerated depreciation of equipment, according to the National Association of Manufacturers, based in Washington, D.C.”

Detroit News, “Blanchard, Engler agree term limits were bad idea“: “[Engler] did say Granholm’s pursuit of alternative energy manufacturing is taking advantage of an opportunity. ‘We’re in on the bottom, I would say, and have an opportunity,’ he said.”

Birmingham News blog, “Alabama one of three states suing the EPA for its ruling that greenhouse gases are a danger to public health“: “‘If EPA moves forward and begins regulating stationary sources, it will open the door for them to regulate everything from industrial facilities to farms to even American homes,’ John Engler, president of the National Association of Manufacturers, said when his organization filed its challenge last week.”