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From “Fringe” to “Reasonable”, Court Exhibits Seismic Shift in Interpretation


By: Jake Bonifield

The religious ask what is moral.  The economists ask what is optimal.  Lawyers ask what is reasonable.  Reasonableness is the primary determinant of winners and losers in every court battle that takes place, even the question of guilt or innocence hinges on whether or not your actions were justified (i.e. reasonable).  Last week the 2nd Circuit Court of Appeals, one of the 11 circuit courts in the nation and at the highest federal appellate rung other than the Supreme Court, issued a monumental ruling that is sure to shift the future of climate change litigation for decades to come, declaring it reasonable that litigants seek damages from big polluters for their contributions to global warming under a common-law provision for “public nuisance”.

Tort litigation, or civil suits which seek compensation for aggrieved plaintiffs who allege defendants were negligent in their duties, is a powerful tool that can dwarf efforts by the government to punish companies or individuals criminally.  Tort cases take place in civil court where the currency of justice is just that, currency.  The cost of breaking the law or of infringing on others’ rights (i.e. the neighborhood by a coal plant or the Maldives) is incurred by companies who are found by the courts to have willingly knowingly or intentionally been reckless in their actions and thus negligent towards their consumers and surroundings.

The very words “tort” and “litigation” often strike fear into any executive, and if the power industry is worried about the downside that can be exposed by just one highly publicized loss, they ought to call a fewer former CEOs at “Big Tobacco”.  Until the 1990s, the tobacco companies were all but unbeaten in civil court.  The onus was on the individual to be responsible, they were unaware that nicotine was addictive, and the high rates of cancer could have been caused by anything.  Or at least those were the talking points.  And then the relatively small cancer of negative perception and ebbing legal precedent spread to the whole body.  Tobacco lost one, and then another, and before the end of the maelstrom they had shelled out billions in settlements and found themselves subject to strict regulation.  The milk-and-honey days of denial and head-scratching were gone, and the new reality of public awareness and legal responsibility had finally dawned.

There are many obstacles ahead, not the least of which is the possibility of a split ruling from another of the 11 circuit courts, possibly propelling the case to the Supreme Court where it would find one of the most business-friendly high courts of recent memory.  Even with the addition of Justice Sotomayor, it is unlikely that the balance of power has shifted enough to allow environmentalists much hope of avoiding yet another 5-4 loss.  In the interim, it is possible that this shift will stand as the overarching precedent for at least a few months, and perhaps in that time the convergence of legislative, international, and now judicial action will finally amount to substantive action on climate change.

Assuming, of course, that all goes according to reason.

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