Uncoupling responsibility and liability

by Clint Bolick
Goldwater Institute
 
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.


Comments

  1. Mu understanding of libertarian environmental thought has been that instead of government regulation of pollution that the issue should be handled through tort law so that those who actually damage the property or health of others would be responsible for remedy. Now it appears that this remedy is not acceptable because the environment is so complex that actual responsibility for an outcome is hard to trace back to an individual cause. It seems to me that this argument supports the idea of regulating pollutants at the source since it would undoubtedly prove nearly impossible to prove responsibility in all but the most simple cases.

  2. It’s very easy to verify that there have been no sea level rise, therefore at least one claim is demonstrably easy to verify that it’s false.
    The Arctic and Antarctic ice caps melt and refreeze every single year, gazillions of cubic tons of ice to water, water to ice right on schedule with the seasons. When the Arctic is melting, the Antarctic is freezing and visa-versa. Harbormasters around the world as part of their daily jobs record high and low tide levels twice a day. Millions of people own homes on the water, docks, sea walls, causeways, all sorts of construction interfacing sea and land exists from entire cities to a single float. If there was any actual rise in ocean water levels, it would be known.
    And due to the laws of Physics which transcend politics, thankfully, it is not possible for one location to have a rise in levels when no other locations have a corresponding rise. Equilibrium of liquids.
    And islands in the Pacific or Indian Ocean that report a rise in sea levels should be required to disclose pertinent info like their economy depends on a big export business in garden topsoil. Their sea levels aren’t rising, their elevation is SINKING.
    CLimate Change/Global Warming is Neo-Lysenkoism. The Soviet opportunist Lysenko mixed his pseudo-scientific theory “agro-biology” with radical Marxist politics and destroyed Soviet agriculture. Ominously, real Soviet scientists, agronomists and agricultural experts were harrassed, intimidated and stifled, including a few actually sent to the Gulag to shut them up.
    Climate Change/Global Warming is a POLITICAL STRATEGY to push socialist/Marxist controls over people’s lives and production.

  3. “If there was any actual rise in ocean water levels, it would be known.”

    It is known and it is a verified fact. It is also known what specific temperatures in certain areas mean in terms of future sea levels based on evidence from the past.

    “Equilibrium of liquids.”

    Not in the presence of turbulence. You have no idea what you are talking about.

  4. Of course. Change the subject, make noise, attack the commenter, get nasty.
    We’re sort of old-fashioned. SO many people mess with the numbers, live and die by fallable computer modeling that we have learned that the only way to find out what’s going on is to go to the coast and LOOK.
    We used to live in a town which is over 300 years old and is built on bedrock. Piers, docks, floats and houses sit just above high tide mark.
    They’re still there, 300 years, no change. Go complain to the ocean, it’s the seven seas fault they aren’t conforming to computer projections, not mine.

  5. Anyone interested in the actual facts go here:
    http://tidesandcurrents.noaa.gov/sltrends/sltrends.shtml

    “The Center for Operational Oceanographic Products and Services has been measuring sea level for over 150 years, with tide stations operating on all U.S. coasts through the National Water Level Observation Network.”

    One will notice two things. Almost all coasts are seeing sea level rises, so wanumba is wrong on that count, and also a small number of coasts have seen decreases, demonstrating wanumba’s grasp of the ‘laws of Physics’ are not very solid.

  6. One will notice two things. Almost all coasts are seeing sea level rises, so wanumba is wrong on that count, and also a small number of coasts have seen decreases, demonstrating wanumba’s grasp of the ‘laws of Physics’ are not very solid.
    ……………….
    New branch of physics, gravity-defying water.
    Surf’s UP! But not everywhere … surf’s down … at some places. But surf’s up and down twice a day everywhere, so how does one figure out how to figure that out when tides are up in a DOWN area and down in an UP area? And if ya can’t figure out how to make the water level in the aggregate match the printouts, instead of questioning the computer analysis, (Rule No. 1 of computers: Garbage IN, Garbage OUT) then get annoyed and disparage the bystanders for being inconvenient.
    Neo-Lysenkoism in all its glory.

  7. wanumba
    some of these measurements have been being taken for 150 years. unless you are suggesting that sea level is not measurable, i find you argument to be non-sensical. i also find it odd that you are questioning the basic ability of scientist to measure something like sea-level.

    again, you have a simple view of physics if you think the explanation is gravity-defying. as i pointed out above your high school level knowledge of physic is not accounting for turbulence caused by variable currents, trade winds, air temperature, atmospheric pressure, water temperature, and coastal features such as shoreline material, shape and depth.

    as usual, you are guilty of what you accuse others of, trying to make facts stick with your political ideology and disparaging people you disagree with.

  8. Uh, Todd.
    The global sea level has an absolute value that is determined by the total volume of water in the ocean, nothing else.
    It doesn’t matter if that volume is being shaken or stirred. Rise and fall of sea level is determined only by adding new water or taking away water.
    The arctic ice cap melts every year almost completely by mid-August. Does the sea level rise every summer with those millions of tons of ice melted into the Arctic Sea?

  9. “The arctic ice cap melts every year almost completely by mid-August. Does the sea level rise every summer with those millions of tons of ice melted into the Arctic Sea?”

    When the ice in your glass of water melts does it overfill your glass? No, it does not. This is, I believe, 3rd grade physical science.

    So considering the Arctic ice cap is OVER WATER AND NOT LAND why would the sea level rise?

    Looks like you not only need to take ENG101, but also also PHS110.

    Here’s a class schedule for you:

    http://www.maricopa.edu/academic/ccta/curric/search_subject.php?loc=PHS110

  10. wanumba – go look up the definition of sea level before you further embarrass yourself.

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