Freddoso: Suing our way toward a carbon-free world 

Having bullied unwilling House members into supporting his health care package, President Barack Obama can move on to his next big legislative goal: making Americans pay more for energy in an attempt to reduce carbon emissions.

Just days from now, Obama’s Environmental Protection Agency is expected to propose new regulations on carbon emissions. If the agency makes them as draconian as the letter of the law requires, your McMansion could become a federally regulated stationary source of pollution.

But don’t worry: These regulations are not designed to take effect, but rather to scare the hell out of Congress so that it enacts milder restrictions. It’s a regulatory and legislative game of chicken.

This probably sounds like a bad method for making laws, and it is. But there’s an even worse method: to have a jury of angry Mississippians decide the issue of global warming once and for all.

Trial lawyers on the Gulf Coast, representing Mississippi property owners, have sued dozens of energy and chemical companies in a case called Comer v. Murphy Oil. They allege that dozens of energy firms, by causing carbon emissions, caused the climate to change and made Hurricane Katrina more intense than it would have been otherwise. As a result, they claim, the storm did greater damage to their property than it would have otherwise.

The federal district court tossed the case in 2007 on the grounds that such claims cannot be decided in court. This was not a simple public nuisance case, in which a company produced toxic sludge and caused a town’s residents to become ill.

This was a question about global warming and its potential causes and effects, about which very little is known with scientific certainty. If presented in court, it would call upon a jury to adjudicate yet-unproven and probably unknowable questions about how greenhouse gases affect particular weather patterns — in this case, how they affected one particular 2005 weather pattern.

Even worse, this case could potentially implicate everyone in the United States. Think about it for a moment, assuming not only that global warming is man-made but also that it fueled Hurricane Katrina.

Do you drive a car, ride the bus or cause carbon emissions of any kind? If so, you could be named as a defendant in the next lawsuit over Katrina — or even in this one. You may not bear as much of the responsibility as Murphy Oil or Massey Energy, or any of the other defendants in the case, but you are liable all the same.

So is your neighbor.

So is your employer.

If you need someone to blame, just throw a rock in the air.

In October, a 2-to-1 panel on the 5th Circuit Court of Appeals reinstated the case. (The two were Clinton appointees, in case you were wondering.) Despite a raging political battle over global warming in Washington, D.C., Judge James Dennis ruled that the suit does not present a political question that’s more properly handled by Congress. For a few months, it appeared that a Mississippi jury would get to decide whether the oceans stop rising or not.

Earlier this month, the full 5th Circuit changed its mind and agreed to give the case another hearing. It could determine just who bullies you into paying more for your energy — Obama, Congress or trial lawyers.

Columnist David Freddoso is The Washington Examiner’s online opinion editor.

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Michael Daboll

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