Comer v. Murphy Oil USA: Blaming a few Butterflies for Hurricane Katrina

No Butterfly Caused Katrina - Washington Times

Mississippi Resident Ned Comer is the lead plaintiff in a class action Climate Change lawsuit lawsuit winding its way through the Federal Courts. The plaintiffs are demanding major damage awards alleging that emissions from defendants' plants contributed to global warming which plaintiffs claim caused a strengthing of Hurricane Katrina in 2005 which led to the destruction of the plaintiffs' property. As previously discussed on this site, the district court rightly dismissed the case for lack of standing and because a political question - best left to the legislature - was at issue. However, a Fifth Circuit Court of Appeals three member panel reinstated the case. 

Last month the Fifth Circuit, sitting en banc, ordered a rehearing of the panel's decision with briefs due for that hearing at the end of March. In an opinion piece in the Washington Times, senior editorial writer Quin Hillyer predicts that, given the similar cases snaking their way through the courts, that this issue will ultimately wind up in the Supreme Court. 

Hillyer eschews the plaintiffs' rationale that the defendants' carbon emissions alone can be linked to the alleged harm that resulted from Huricane Katrina. Hillyer recalls the "butterfly theory" wherein one butterfly flaps its wings which causes a ripple of repercussions around the globe. According to Hillyer, it is a bit of a stretch for the plaintiffs in this case to claim that Murphy Oil and the other defendants are responsible for a shift in climate when "[s]ix billion other souls on Earth, and billions more now deceased, have added carbon dioxide and other "greenhouse gases" to the atmosphere. The defendants argue, quite reasonably, that it would be ludicrous to ask a jury to trace the causes of the Katrina injuries back to any provable, much less quantifiable, actions by the particular energy companies targeted in this suit." 

According to Hillyer tracing the effects of a natural disaster to one butterfly or a small set of butterflies seems an impossibility. Others agree with Hillyer's assesment; an amicus brief by the American Farm Federation Bureau explains "The tenuous link between plaintiffs' alleged harm and defendants' alleged conduct is beyond anything ever recognized in American tort law...claim of injury...is too speculative." 

Whether or not the Fifth Circuit will ultimately agree with this logical conclusion is yet to be known. One thing is for certain though - a final dismissal of the claim in this case will once again put Public Nuisance Climate Change cases back on the ropes. Let's just hope that this time these claims will go down for the count.