Trial Lawyers Inc. series looks at BP oil spill

Jessica M. Karmasek Aug. 31, 2010, 9:51am

WASHINGTON (Legal Newsline) - An online publication from the Manhattan Institute says for environmental disasters like the Gulf oil spill, litigation can be a crude tool for compensating those genuinely injured.

The most recent article in its Trial Lawyers Inc. series tackles the challenges of environmental litigation in the wake of the oil spill. According to the article, lawyers' fees soak up as much as one-third of the proceeds. And actual payouts, it says, can be delayed for years as lawyers fight in court.

Trial Lawyers Inc. feels leaving it up to the court could prove timely and cause more suffering for the victims.

"If courts are the primary focus for recovery and remediation of the Gulf oil spill, genuinely injured people and businesses are likely to suffer the same disappointments that true asbestos victims have," the article says.

The publication points to President Barack Obama's administration and its decision to pressure oil giant BP to set up a $20 billion fund to pay potential claimants. This "implicitly acknowledges the cost and delays of traditional litigation to remedy such massive injuries," the article says.

According to the article, Kenneth Feinberg, who was appointed by Obama to administer the fund, looks to work "aggressively" in giving rapid payouts to those oil-spill victims -- in agreement to surrender their future liability claims.

"Let's hope that Feinberg lives up to his impressive record for efficiency, though not at the cost of denying those most seriously affected their day in court," the article says.

The article also looks at the history of environmental litigation and the evolution of nuisance suits. Traditional nuisance suits, it argues, do not manage environmental harms very well.

"Injuries are sometimes too dispersed to be remedied by damage awards to individuals, and causation too speculative or remote to meet historical legal norms."

It added, "Lay juries are generally ill-equipped to make scientific judgments on complex environmental questions."

Often, the article says, activists try to use the courts to push their agendas.

"In such suits, activist groups -- or state attorneys general seeking their support -- are trying to make an end run around regulators or legislatures to achieve policy goals," it says.

More often in environmental cases, the Manhattan Institute says, the injury is clear but the chain of causation not as much.

The article points to Comer v. Murphy Oil USA. Veteran asbestos lawyer F. Gerald Maples alleges that the defendant oil and energy companies are responsible for property damage on the Gulf coast caused by Hurricane Katrina under the theory that the hurricane's severity was attributable to global warming, for which the companies are responsible.

Trial Lawyers Inc. says, "Even if one accepts the argument that higher global temperatures lead to more severe weather patterns, it hardly follows that this hurricane was caused or exacerbated by a temperature rise, at least as causation has traditionally been applied in a legal context.

"Moreover, the companies in question account for only a small fraction of the global carbon dioxide emissions that scientists have linked to global warming," the article says. "The companies being sued in Comer might have contributed to global warming, but it hardly makes sense to suggest that they caused it."

The "very real damage" wrought by the oil spill only highlights the need for a mixed legal and regulatory approach to environmental problems, the publication says.

"Regulatory standards are essential to preventing future disasters, as well as to limiting smaller but still-significant harms wrought by modern industrial processes," according to the article.

Trial Lawyers Inc. goes on to quote leading libertarian legal scholar Richard Epstein, someone, they say, who is generally critical of lawsuit abuse: "The legal system should never allow self-interested parties to keep for themselves all the gains from dangerous activities that unilaterally impose losses on others."

Lawsuits that cannot demonstrate "tangible injuries, that rest on attenuated theories of causation, or that allege tort injuries from conduct authorized by legislative and regulatory judgments have no place in the courts.

"Circumventing the democratic process may appeal to those who simply have no patience for the public debate, but the courts are hardly the appropriate forum for resolving complex international policy dilemmas like global warming," the article concludes.

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