On October 16, the Fifth Circuit Court of Appeals revived a lawsuit filed by residents along the Mississippi Gulf coast against several corporations in the energy, fossil fuels, and chemicals industries alleging that the defendants were responsible for property damage caused by Hurricane Katrina — Comer v. Murphy Oil USA, et al., No. 07-60756 (5th Cir. Oct. 16, 2009). The Fifth Circuit’s opinion (explained below) comes on the heels of a Second Circuit Court opinion in New York allowing a number of states to proceed with a lawsuit against electric power generators that seeks judicially established caps on the generators’ greenhouse gas (GHG) emissions under federal common law nuisance and trespass theories. As a result, the plaintiffs’ bar is ramping up, and the defense bar is bracing for a blitz of climate change tort cases that could open a new front in the battle over climate change legislation and cost industry millions to defend.
Both the Fifth Circuit’s Comer decision and the Second Circuit’s decision in Connecticut v. Am. Elec. Power Co., Nos. 05-5104 and 05-5119 (2nd Cir. Sept. 21, 2009) dealt with the threshold issues of whether the plaintiffs had the right ("standing," in legal parlance) to bring their case in federal court and whether the court had the authority to hear the case under the "political question" doctrine, a legal theory by which a court will abstain from deciding issues best left to Congress and the executive branch. Of the two opinions, the Comer decision seems more likely to have an immediate impact on the power generation industry because it involved claims for compensatory relief by private individuals, and thus is more likely to spawn copycat suits than AEP, which was a suit by state governments.
The Issue of Standing
The Fifth Circuit found that plaintiffs established standing by alleging a series of scientific facts which, if true, fairly traced the damage caused by Hurricane Katrina to the GHGs emitted from defendants’ operations, even though their emissions were not the material cause of Hurricane Katrina but merely contributed to it. The Fifth Circuit noted that the Supreme Court had already embraced such a causal link in Massachusetts v. EPA, 549 U.S. 497 (2007), a decision permitting Massachusetts to challenge the Environmental Protection Agency’s decision not to regulate GHGs. The Fifth Circuit cited several passages from Massachusetts v. EPA in which the Supreme Court discussed a link between GHG emissions and rising ocean temperatures, increasingly ferocious hurricanes, and other environmental changes.
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