Utah Gov. Gary Herbert has signed H.B. 395 into law, limiting the liability of a person or business for damage or injury caused by greenhouse emissions. The law is meant to blocks suits brought against utilities, energy producers and manufacturers for having caused global warming.

Litigation like the suit by an Alaskan native village (Kivalina) blaming oil companies for a barrier island’s beach erosion or by Mississippi residents (Comer) for damage caused by Hurricane Katrina are an attempt to achieve political goals through the courts. Besides that, it’s ridiculous and hubristic for any human institution to try to apportion blame for climate phenomena.

As we noted in a previous post, this kind of legislation has an honorable and useful history. Legislatures have moved to rein in speculative lawsuits that attempt to shift individual responsibility for obesity to food manufacturers, for example, or for violent crime to gun manufacturers.

(Hat tip: Walter Olson at Point of Law for reminding us of the legislation.)

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“

Reading the blog from the makers of the anti-Chevron film, “Crude,” we see this entry from Michael Bonfiglio, second unit director and producer, “CRUDE In Our Own Backyard?”

Many of us on the Crude filmmaking team are based in New York City, where the tap water is some of the cleanest in the country, and a debate is currently raging over drilling for natural gas that could threaten our drinking water.

Our friends at Riverkeeper oppose the drilling plan. Those who support the drilling maintain that with today’s technology, nothing bad could happen.  While the plaintiffs in Ecuador charge that Texaco used practices that were outdated even in the 1960s when drilling there began, are we really so arrogant to think that there will be no errors that could contaminate our reservoirs? And is a resource as vital as clean drinking water really something that we are willing to gamble on?

Bonfiglio is referring to hydrofracturing, the technology of injecting pressurized fluids into shale formations to fracture them and release natural gas. The natural gas producers group, Energy in Depth, has lots of information about this well-proven and safe technology, which is under attack from the usual activists who let the perfect be the enemy of good jobs. Start here.

Reading Bonfligio’s comments made us wonder when the next outrage-imbued “documentary” was going to come out, this time with natural gas companies as the evil corporate exploiters. There’s “Crude,” another one in the works about Eskimos and global warming, “The Kivalina Project.” You’ve got a cause, somebody has a movie and with cable television, a place to show it, so why not a flick accusing the natural gas industry of rampage and pollution? Maybe “Gas Attack.”

Well, of course there IS a movie. “Split Estate“ attacks natural gas drilling in western states, starting with the premise that mineral rights are somehow outrageous.

The Grand Junction (Colo.) Sentinel identifies the basic problem with “Split Estate” in an editorial, “Gas documentary offers anecdotes, not evidence“:

Many of the people featured in the documentary, “Split Estates,” have heart-breaking stories about health problems they have suffered.

What they don’t have, and what is absent from the documentary itself, is actual evidence that connects those health problems to the hydraulic fracturing of natural gas wells. Without this causal link between the fracturing substances and disease, the claim of wrongdoing — like the documentary itself — falls flat, at least with respect to hydraulic fracturing.

The same criticism applies to other environmental films we’ve seen. Of course human suffering elicits sympathy, but emotion does not equal “X is to blame.” In fact, when manipulated, emotion can lead one to think “X is to blame,” when in reality “Y is to blame.”

There’s probably a better movie to be made about energy, natural gas, hydrofracturing and the environment. Hope the directors talk to W. Neil Barto of Hughsville, Penn., where development of the Marcellus Shale is going great guns.

In July, four days before Barto’s 67th birthday, he received the first check from Chief Oil & Gas L.L.C., the Dallas company that last year drilled the wells on this hardscrabble farm, 21 miles east of Williamsport.

Barto’s monthly royalty checks now come in at about $7,000. It’s just the beginning. He and 14 neighbors get royalty checks from the sale of the gas, but the wells capture only a fraction of the gas trapped in the rock. Chief plans to drill many more wells on Barto’s land and surrounding properties.

We’ve been looking for the mainstream news reports that a U.S. District Judge in California had dismissed the lawsuit brought by an Alaskan native village against oil, coal and power companies for causing global warming. Blog posts (here and here) yesterday linked to Judge Saundra Brown Armstrong’s order granting the defendants’ motion to dismiss in Native Village of Kivalina et al. v. Exxonmobil Corporation et al.

The order was issued September 30 and yet, judging from Google News, no regular news outlet has picked up on the developments. (Google News is not omniscient, we know, but one new story would have produced others that would have eventually been caught by the Internet spiders.)

We expect it’s just a matter of time and every outlet that wrote extensively about the suit will follow up appropriately. The law offices of Matthew Pawa, the defendants’ attorney, has posted links to a variety of stories on the litigation:

• Felicity Barringer, Flooded Village Files Suit, Citing Corporate Link to Climate Change – New York Times, Feb. 27, 2008
• Eroding Alaska Town Sues Oil and Power Companies Over Global Warming – Associated Press/International Herald Tribune, Feb. 27, 2008
• Eroding Alaska Native Village Sues Energy Companies – Environment News Service, Feb. 26, 2008
• Storm-plagued village sues energy companies – by Elizabeth Bluemink, Anchorage Daily News, Feb. 26, 2008

UPDATE (2:45 p.m.): Ah, The Houston Business Journal is the first media outlet to report the judge’s order, time, 1:24 p.m. Central, in “Court dismisses global warming case against Big Oil.” Reporter Ford Gunter includes a comment from the defendants’ side:

“Rather than trivializing the suit as an ‘ordinary tort case,’ the District Court found that the matter could not be resolved without considering the truly global nature of the issue — and the lack of any ascertainable standards to determine its resolution,” said Houston attorney Richard Faulk, head of the environmental practice group and chair of the litigation department at Gardere Wynne Sewell LLP.

The ruling goes against the Second Circuit Court of Appeals’ ruling on utility emissions last month in Connecticut v. AEP.

“Contrary to the sweeping and unprecedented ruling of the Second Circuit, the Kivalina court wisely recognized that global climate change allegations cannot support federal question jurisdiction,” Faulk said. “Unlike the Second Circuit, the court saw major distinctions between ordinary pollution cases and planet-wide climate claims, and was not willing to indulge its creativity to invent liability criteria on a planetary scale.”

Here’s a notable ruling that deserves widespread attention (and praise), U.S. District Judge Saundra Brown Armstrong dismissing a wild federal public nuisance suit from an Alaskan native village, Kivalina, that blamed oil, power and coal companies for causing global warming that produced coastal erosion. The Northern District of California federal judge said the plaintiffs lacked standing and the issues should be left to the political process for resolution.

Here’s the order granting the defendants’ motion to dismiss. The case is Native Village of Kivalina et al. v. Exxonmobil Corporation et al.

We applaud a judge who recognizes the limits of the federal judicial system to answer every issue and redistribute wealth according to a political calculation.

More at Point of Law.

UPDATE: The Massachusetts lawyer, Matthew F. Pawa, who represented the Eskimo plaintiffs has background legal documents available at his website.

And, how is this ruling going to affect the production schedule? It was a brief flirtation with stardom.

Below we noted the lawsuit the Kivalina Alaskan native village has brought against oil, coal and power companies, suing them for contributing to global warming that has supposedly eroded the village’s shoreline. Now some filmmakers are out to depict this calamity, using the litigation as the narrative device.

From Public Nuisance Wire, “Film company shoots Kivalina documentary before trial ends“:

TORONTO – A Canadian-based film company has begun filming a documentary aimed at exposing the controversial case of Kivalina v Exxon Mobil.

Filming began last month in the tiny Alaskan village of Kivalina, a 3.9 square-mile town with a population of around 399 people. The village is in the middle of a lawsuit with Exxon Mobil over allegations the big oil company’s excess gas emissions have caused erosion and damages to the town.

In a press release, Phoebe Greenberg, one of the film’s producers, said she was intrigued by the subject matter and that the dramatic consequences of global warming affect not only the small Alaskan community, but the world as well. 

The production company labels Exxon one the world’s “worst polluters,” claiming the oil giant should pay for the consequences of global warming.

Too bad they have their minds made up already. We were hoping for an objective documentary by an objective filmmaker telling both sides of the story objectively. You know, like the anti-Chevron movie, “Crude.”

Ms. Greenberg better not hope for boffo box-office. “Crude” pulled in $4,219 in weekend gross last weekend, Oct. 2-4, That’s right. Four thousand bucks in four theaters, off 72 percent from the previous weekend.

Total domestic sales as of October 4? $81,257. That’s not quite the “huge hit” that Amazon Watch proclaimed. Tendentious documentaries that pretend to be something else just don’t sell.

From The Irish Times, “G8 states could face class actions on climate change,” comes a report of an “Asian People’s Climate Court,” gathering in Bangkok, where the vanguard of the oppressed masses used a mock court format to rail against wealthy countries. The vannest of the guard was Antonio Oposa, a Filipino environmental lawyer, who might have just been drumming up business:

Mr Oposa said it was “only a matter of time” until properly constituted international tribunals began hearing class actions seeking reparation from “over-consuming countries” for damage caused by climate change in developing nations.

“A group of lawyers are actually thinking of it already,” he said, referring to a network called Global Legal Action on Climate Change.

“The countries most affected in Asia and Africa will begin to stand up and take action if they get nothing from Copenhagen.”

Closer to home, cash-seeking attorneys are pleased by the Second Circuit Court of Appeals’ ruling last month reinstating a lawsuit by against power companies for creating a federal “public nuisance” by emitting carbon dioxide. (See Shopfloor.org post.)  From The Business Insider, September 23, “2nd Circuit Reinstates Controversial Environmental Lawsuits“:

The decision is extremely encouraging for the plaintiffs in another environmental suit, Native Village of Kivalina v. Exxon.  That case, filed in the Northern District of California, is also based in part on common law nuisance claims.  “The 2nd Circuit has now emphatically rejected the defendants’ main arguments for dismissing the Kivalina lawsuit,” Drew Hansen, a partner at Susman Godfrey and one of the attorneys representing the Kivalina plaintiffs, said in a phone call today.  The judge in Kivalina is currently considering the defendants’ motions to dismiss.

Dubbed “the most dangerous litigation in America” by the American Justice Partnership, the Kivalina lawsuit attempts to shake down oil, coal and power companies for causing beach erosion in Alaska. If you have ever consumed electricity, you may be called as a witness.