Supreme Court Action Likely Ends Citizens Climate Nuisance Suit

Jan 10: The U.S. Supreme Court has issued an order denying a petition of mandamus in the case of Comer v. Murphy Oil USA (Docket 10-294) [See WIMS 10/21/09]. The action effectively dismisses the case with no explanation. The case decided by the U.S. Court of Appeals, Fifth Circuit (Case No. 07-60756) on October 16, 2009, represented a major decision regarding citizen enforcement, utilizing common-law actions and seeking damages resulting from corporate greenhouse gas emissions. The case followed another related decision in State of Connecticut v. American Electric Power Co. Inc. issued on September 21, 2009, by the U.S. Court of Appeals, Second Circuit [See WIMS 9/22/09]. The Supreme Court will hear that case this year [See WIMS 12/7/10].

    The plaintiffs (i.e. Comer, et al), residents and owners of lands and property along the Mississippi Gulf coast, filed this putative class action in the district court against the named defendants, corporations that have principal offices in other states but are doing business in Mississippi. The plaintiffs allege that defendants' operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs' private property, as well as public property useful to them.

    In its conclusion the Appeals Court said, "The plaintiffs have pleaded sufficient facts to demonstrate standing for their public and private nuisance, trespass, and negligence claims. We decline to find standing for the unjust enrichment, civil conspiracy, and fraudulent misrepresentation claims and dismiss these claims. We find that the plaintiffs' remaining claims are justiciable and do not present a political question. We do not hazard, at this early procedural stage, an Erie guess into whether these claims actually state all the elements of a claim under Mississippi tort law, e.g., whether the alleged chain of causation satisfies the proximate cause requirement under Mississippi state common law; we leave this analysis to the district court in the first instance. Thus, for the foregoing reasons, we reverse the judgment of the district court and remand the case to the district court for further proceedings consistent with this opinion."

    The National Association of Manufacturers' (NAM) blog explains the convoluted case as follows: ". . .a District Court Judge in Mississippi held that Mississippi residents could NOT sue power companies and refineries for damages that resulted from global warming, but a three-judge panel of the Fifth Circuit Court of Appeals ruled otherwise on appeal. That decision was appealed to the full Fifth Circuit Court of Appeals for en banc consideration, but after accepting the case, another judge recused herself because of a conflict of interest, eliminating the court's quorum to hear the appeal. However, the appellate court had already vacated the lower court's decision in anticipation of hearing it, so the lawsuit basically died. The petition for mandamus was an effort to keep the litigation going." The NAM blog comments, "This should be the end of the case because the plaintiffs did not file a petition for certiorari, but given how convoluted the lawsuit's path through the courts has been, perhaps there's a strange maneuver that could revive it." NAM called the case "one of the major -- and preposterous -- suits claiming damages against industry for causing global warming. . ."

    Access the Supreme Court docket (click here). Access the Supreme Court order (click here, page 26 of 40). Access the complete 36-page Appeals Court opinion (click here). Access the NAM blog post with more details (click here). Access a Pace Law School blog post explaining the convoluted appeals process in the case (click here).