Monday, December 2, 2013

Climate change litigation by the backdoor

A U.S. attorney is reporting about a lawsuit of the Southeast Louisiana Flood Protection Authority-East against Tennessee Gas Pipeline Co. LLC and about 100 other oil and gas companies. The lawsuit is based on the duty of care derived from various regulations dealing with the protection of water-ways and the coastal area. The defendants have allegedly damaged the coastal protection by the construction of a network of canals. By the canals that these gas companies built, saltwater enters heavily the Louisiana’s coastal landscape and interior wetlands. The saltwater damages the vegetation. The damaged vegetation cannot hold the soil. Thus the soil is washed away. The loss of soil and vegetation reduces the protecting effect of the coastal area: hurricanes are not slowed down to the same extent. This endangers the big coastal cities. Furthermore the plaintiff claims: “Unless immediate action is taken to reverse these losses and restore the region’s natural defense, many of Louisiana’s coastal communities will vanish into the sea.”

The attorney holds that the plaintiff, ultimately the state of Louisiana, is particularly vulnerable to this damage due to effects of climate change. He claims that this increased vulnerability is anyway attributable to the torfeasor. He quotes the Seventh Circuit in Schmude v.Tricam Industries: “If a tortfeasor inflicts a graver loss on his victim than one would have expected because the victim had some pre-existing vulnerability, that is the tortfeasor's bad luck; you take your victim as you find him.”

The plaintiff's attorney does not exclude that others follow the example given by Louisiana. What he fails to point-out is that in the case of Louisiana, the increased vulnerability of the plaintiff is also to some extent due to the past activities of the defendants: didn't they contribute to climate change as well?

In this blog we discuss news and tactics used to discourage contributors to climate change. This lawsuit differs from most in this blog because the plaintiff is suing the defendants not directly for the damages caused by their contribution to climate change but for canals weakening the coast from protecting itself from climate change regardless of there actual contribution to climate change.

Thus this tactic can be used for other plaintiffs. If this tactic is copied it could demotivate actions that contribute to climate change in so far as one can assume that cases of coasts damaged by oil and gas companies make this tactic particularly suitable for making CO2 polluters pay, by the backdoor.

The original filing can be found here: http://jonesswanson.com/wp-content/uploads/2013/07/Petition-for-Damages-and-Injunctive-Relief-with-Exhibits-A-G.pdf

Related: Comer v. Murphy Oil climate change litigation case dismissed

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