part of the commingled or blended product.
Before the rebuttable presumption undergirding this theory is activated, a
plaintiff must prove by a preponderance of the evidence that the defendant
contributed-in-fact to the injury by showing that each defendant’s product
was part of the commingled mass that injured the plaintiff. The theory thus
requires the plaintiff to prove that each defendant’s gasoline was part of
the commingled product, but relieves the plaintiff of the duty to prove that
each individual defendant’s contribution to that product, in and of itself,
was sufficient to have caused an injury. “Rather, to establish liability
against a particular defendant with respect to an individual well, [the
plaintiff] must show that (a) the defendant’s MTBE was present in a
commingled product and (b) that the commingled product [rather than
defendant’s product alone] caused plaintiff’s injury.”
The combination of 'commingled product theory' with Rick Heede's research into the
contribution of 'carbon majors' to total greenhouse base emissions, appears to
provide a sound basis for attributing climate change loss and damage to fossil fuel
corporations and others.
Climate change litigation
Courts have considered the question of causation in two recent climate change
cases. In the 2015 Urgenda case the Government of the Netherlands argued that:
it cannot be seen as one of the causers of an imminent climate change, as it
does not emit greenhouse gases [see 4.66].
The court held, however, that:
... it is an established fact that the State has the power to control the
collective Dutch emission level (and that it indeed controls it). Since the
State’s acts or omissions are connected to the Dutch emissions a high level
of meticulousness should be required of it in view of the security interests
of third parties (citizens), including Urgenda ...
From the above considerations ... it follows that a sufficient causal link can
be assumed to exist between the Dutch greenhouse gas emissions, global
climate change and the effects (now and in the future) on the Dutch living
climate. The fact that the current Dutch greenhouse gas emissions are
limited on a global scale does not alter the fact that these emission
contribute to climate change. The court has taken into consideration in this
respect as well that the Dutch greenhouse emissions have contributed to
climate change and by their nature will also continue to contribute to
climate change.
In April 2016,in United States District Court for the District of Oregon, Case 6:15-cv01517-TC, Coffin Magistrate Judge, again considering the causal relationship
between governmental acts and omissions and climate change loss and damage
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