A federal judge recently dismissed a lawsuit in which the plaintiffs alleged that defendants’ production of chemicals and electricity had “added to the ferocity of Hurricane Katrina.” The judge’s reasoning reveals the inherent limitations of courts unilaterally initiating policies to address climate change issues:
[This] debate... has no place in the court, until... Congress enacts legislation which sets appropriate standards by which [the] court can measure conduct...
[Plaintiffs’ complaint asks] this court... to balance economic, environmental, foreign policy, and national security interests.... Adjudication of Plaintiffs’ claims... would necessitate the formulation of standards dictating, for example, the amount of greenhouse gas emissions, that would be excessive and the scientific and policy reasons behind those standards.
However, this judicial recalcitrance was reversed in October 2009 by a panel of judges from the Fifth Circuit Court of Appeals in Comer v. Murphy Oil. This chapter of the Comer story would delegate to a jury the responsibility to decide whether defendants should pay damages to compensate for losses caused by Hurricane Katrina. No statutory or regulatory standards would be available to guide the jurors; the case would turn on Mississippi “common law.”
In February 2009, the Fifth Circuit vacated this decision, granting the defendants’ petition for rehearing en banc. In late May of this year, due to a recusal of the majority of its judges, the remaining Fifth Circuit judges dismissed the appeal, which effectively reinstates the dismissal by the original judge but enables the plaintiffs to request that the U.S. Supreme Court hear the matter. The legal and policy implications of the Comer odyssey are intertwined with two other pending climate change actions. (See “Climate Change: Policy via Litigation” and “ Conn. v. AEP: Call for Congressional Action” in July 2008 and November 2009 issues of POWER, respectively.)
In Native Village of Kivalina v. ExxonMobil, the court in September 2009 dismissed the claims by residents of an Alaskan island that the defendants’ (oil, energy, and utility companies) production of greenhouse gas (GHG) emissions contributed to global warming, caused erosion, and rendered their island uninhabitable. This decision is on appeal. Also in September 2009, the Second Circuit in Connecticut v. American Electric Power Co. authorized the plaintiffs to seek global warming–caused damages against electric generators and oil producers based on “federal common law.” The Second Circuit denied rehearing, and, absent some intervening action by the Supreme Court, the matter is headed back to the trial court.
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