Nov 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-56814, 05-56815, 05-56843, 05-56832, and 05-56908. Kaiser Eagle Mountain, Inc. (Kaiser) seeks to build a landfill on a former Kaiser mining site near Joshua Tree National Park (Joshua Tree). As part of its landfill development plan, Kaiser sought to exchange certain private lands for several parcels of land surrounding the mine site and owned by the Bureau of Land Managment (BLM). Several parties, including the National Parks Conservation Association (Conservation Association) and Donna and Laurence Charpied (the Charpieds), challenged the land exchange. Nevertheless, the BLM approved the land exchange, as did the Interior Board of Land Appeals (Appeals Board).
The Conservation Association and the Charpieds pursued their challenges in district court on several grounds, including violations of the Federal Land and Policy Management Act (Management Act) and National Environmental Policy Act (NEPA). The district court held for the Conservation Association and Charpieds on the Management Act claims and some, but not all, of the NEPA claims. Under its review, the Appeals Court in a split decision, affirmed in part and reversed in part.
In this somewhat complicated decision, involving several conclusions on separate disputed issues, the majority Appeals Court ruled in part that, "BLM necessarily considered an unreasonably narrow range of alternatives. We therefore affirm the district court’s grant of summary judgment on both the 'purpose and need' and “reasonable range of alternatives” claims under NEPA."
And, "Contrary to the district court’s conclusion, we find that the EIS contains extensive analyses of potential impacts on Bighorn sheep, including migration patterns, habitat loss, and water accessibility. . . [However,] the discussion of [atmospheric] eutrophication is neither full nor fair with respect to atmospheric eutrophication. . . We therefore affirm the district court’s decision on this NEPA claim.
". . .we affirm the district court’s holding that the Charpieds lack standing under NEPA, the National Park Service Organic Act, and the California Desert Protection Act. . . [Also,] "we find that the EIS’s discussion of these issues [desert tortoises, visual, noise, and night lighting impacts, groundwater, and air quality] is sufficient to foster informed decision-making and public participation. We therefore affirm the district court’s grant of summary judgment on these NEPA claims."
Perhaps, most interesting in this case is the lengthy dissenting opinion of Justice Trott. In summary he says, "What sane person would want to attempt to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool’s errand. This case is yet another example of how daunting -- if not impossible -- such an adventure can be. Ulysses thought he encountered fearsome obstacles as he headed home to Ithaca on the Argo, but nothing that compares to the 'due process' of unchecked environmental law. Not the Cyclops, not the Sirens, and not even Scylla and Charybdis can measure up to the obstacles Kaiser has faced in this endeavor. The record here exceeds 50,000 pages. At the beginning, Kaiser had a partner, Browning-Ferris Industries (BFI), but BFI -- a company experienced in the field of solid waste disposal -- dropped out after investing $45 million in the project with nothing to show for it in return.
"I agree with my colleagues insofar as they dispense with the cross-appeal and the public interest and bighorn sheep issues, but I dissent with respect to the rest. The final irony is that my colleagues send the case back to the Bureau of Land Management (BLM) to do something BLM has already adequately done: consider the value of the land involved as a commercial landfill." In the final conclusion of his 49-page dissent, Judge Trott said, "I end with the Technical Advisory Panel’s evaluation: 'the proposed Eagle Mountain Landfill could well become one of the world’s safest landfills and a model for others to emulate.' Don’t hold your breath."
Access the complete opinion (click here).
Thursday, November 12, 2009
U.S. v. Albert Investment Co.
Nov 10: In the U.S. Court of Appeals, Tenth Circuit, Chase No. 08-6267. Union Pacific Railroad Co. (Union Pacific) appealed from the district court’s denial of its motion to intervene in an action brought by Plaintiffs-Appellees (United States and the State of Oklahoma) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Appeals Court ruled, "Because Union Pacific has an interest in the underlying action, and a statutory right to intervene, we reverse and remand."
The Union Pacific Railroad Company acquired the Double Eagle Superfund Site in 2003, as part of its merger with the Missouri Pacific Railroad Company. The Appeals Court concluded, "Because Union Pacific has demonstrated all four requirements for intervention as of right -- timeliness, interest, impairment, and inadequate representation -- the district court erred in denying the motion for intervention as of right, and on remand Union Pacific shall be allowed to intervene. Because we find that Union Pacific has a right to intervene, we do not reach the district court’s denial of the motion for permissive intervention."
In an interesting portion of the overall decision, the Appeals Court says, "The notice-and-comment mechanism is not an adequate substitute for intervention, contrary to the government’s claims. . . The government solicits comments regarding proposed consent decrees as a matter of practice. . . Union Pacific submitted comments to the Attorney General within the comment period, and the Department of Justice will file them with the district court. . . As Judge Lucero observed during oral arguments, however, the government is free to ignore the comments because the notice-and comment mechanism is not statutorily mandated. The district court may also disregard Union Pacific’s comments in the absence of any requirement to consider them or any appellate review of the court’s consideration of comments. The failure to consider adequately an intervenor’s objections, on the other hand, is subject to appellate review. . . For these reasons, Union Pacific’s ability to protect its interests will be impaired if it is not a party to this action."
Access the complete opinion (click here).
The Union Pacific Railroad Company acquired the Double Eagle Superfund Site in 2003, as part of its merger with the Missouri Pacific Railroad Company. The Appeals Court concluded, "Because Union Pacific has demonstrated all four requirements for intervention as of right -- timeliness, interest, impairment, and inadequate representation -- the district court erred in denying the motion for intervention as of right, and on remand Union Pacific shall be allowed to intervene. Because we find that Union Pacific has a right to intervene, we do not reach the district court’s denial of the motion for permissive intervention."
In an interesting portion of the overall decision, the Appeals Court says, "The notice-and-comment mechanism is not an adequate substitute for intervention, contrary to the government’s claims. . . The government solicits comments regarding proposed consent decrees as a matter of practice. . . Union Pacific submitted comments to the Attorney General within the comment period, and the Department of Justice will file them with the district court. . . As Judge Lucero observed during oral arguments, however, the government is free to ignore the comments because the notice-and comment mechanism is not statutorily mandated. The district court may also disregard Union Pacific’s comments in the absence of any requirement to consider them or any appellate review of the court’s consideration of comments. The failure to consider adequately an intervenor’s objections, on the other hand, is subject to appellate review. . . For these reasons, Union Pacific’s ability to protect its interests will be impaired if it is not a party to this action."
Access the complete opinion (click here).
Monday, November 9, 2009
Friends Of Tims Ford v. TVA
Nov 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5706. Plaintiff-Appellant Friends of Tims Ford (FTF) appeals from the district court’s dismissal of its case on summary judgment for want of standing. FTF is an unincorporated association of individuals, families, and homeowners’ associations, who own property adjoining the Tims Ford Reservoir (Reservoir) or in adjacent communities, and are concerned about the environmental impact of land development near the Reservoir and the environmental impact of increased boating on, and community use of, Reservoir water. FTF seeks declaratory and injunctive relief against the Tennessee Valley Authority (TVA) and James Fyke, in his official capacity as Commissioner of the Tennessee Department of Environment Conservation (TDEC), for alleged violations of the National Environmental Policy Act of 1969 (NEPA) by TVA and TDEC in their implementation of the Tims Ford Reservoir Land Management and Disposition Plan (LMDP), based on the Final Environmental Impact Statement (FEIS) prepared by TVA and TDEC, and for violations of the TVA Act of 1933 (TVA Act) in the development of two parcels of land, Fanning Bend, and a parcel conveyed to the City of Winchester, Parcel 79B. FTF has also brought state law claims against TDEC.
The Appeals Court agreed with the district court and said, "Because we find that FTF has failed to demonstrate standing to bring this case, we affirm the district court’s decision to dismiss this action without prejudice. The Sixth Circuit further explained its decision saying, ". . .we are compelled to find that FTF has failed its burden to demonstrate standing. Under this theory of harm, FTF has failed to allege future injury that could be redressed by the requested declaratory or injunctive relief, as its two members only allege direct harm from already-constructed community boat docks, yet seek: (1) issuance of a declaratory judgment that implementation of the FEIS/LMDP violates the TVA Act and NEPA; and (2) an injunction against unidentified future construction. . . Furthermore, because FTF’s suit does not additionally seek the destruction or modification of the community boat docks, nor does it seek, as noted by the district court, 'remedial measures to counteract or prevent the harms allegedly caused by the current docks,' there is no value to a declaratory judgment stating that TVA and TDEC violated NEPA and the TVA Act. . . Thus, FTF lacks standing to bring its claim alleging ongoing harm to its members’ aesthetic and recreational enjoyment of the Reservoir."
Access the complete opinion (click here).
The Appeals Court agreed with the district court and said, "Because we find that FTF has failed to demonstrate standing to bring this case, we affirm the district court’s decision to dismiss this action without prejudice. The Sixth Circuit further explained its decision saying, ". . .we are compelled to find that FTF has failed its burden to demonstrate standing. Under this theory of harm, FTF has failed to allege future injury that could be redressed by the requested declaratory or injunctive relief, as its two members only allege direct harm from already-constructed community boat docks, yet seek: (1) issuance of a declaratory judgment that implementation of the FEIS/LMDP violates the TVA Act and NEPA; and (2) an injunction against unidentified future construction. . . Furthermore, because FTF’s suit does not additionally seek the destruction or modification of the community boat docks, nor does it seek, as noted by the district court, 'remedial measures to counteract or prevent the harms allegedly caused by the current docks,' there is no value to a declaratory judgment stating that TVA and TDEC violated NEPA and the TVA Act. . . Thus, FTF lacks standing to bring its claim alleging ongoing harm to its members’ aesthetic and recreational enjoyment of the Reservoir."
Access the complete opinion (click here).
Friday, October 30, 2009
California Energy Commission v. Department of Energy
Oct 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71576. The California Energy Commission (CEC) petitions for review of an order of the U.S. Department of Energy (DOE) denying CEC’s request for a waiver of preemption under the Energy Policy and Conservation Act (EPCA). The CEC sought the waiver in order to establish water efficiency standards for residential clothes washers, as set forth in its state regulations. To obtain such a waiver, CEC was required to show by a preponderance of the evidence that the state regulation was “needed to meet unusual and compelling State or local . . . water interests.”
DOE rejected the CEC’s petition for three separate reasons, but asserts that “each [of the reasons] flowed from CEC’s failure to provide adequate information to DOE to allow the federal agency to make an informed decision.” The DOE also challenged the court’s jurisdiction under the EPCA to review the denial of the waiver, raising an issue of first impression in the Ninth Circuit.
The Appeals Court said, "We hold that this court has jurisdiction under the EPCA. Because the DOE’s stated justifications demonstrate an arbitrary and capricious failure meaningfully to address the CEC’s application for a waiver, we reverse the
DOE’s ruling and remand for further proceedings."
The Appeals Court ruled further, "The CEC has requested that this Court order the DOE to grant the CEC’s waiver petition. However, this Court’s appropriate role is not to engage in the underlying analysis to determine whether the statutory criteria are met, even if the CEC might have supplied the DOE with sufficient information to do so. . . Considering the significant number of
issues left for resolution, many of which require factual findings in the DOE’s area of expertise, we decline to order a waiver on the present record. We reverse the challenged order of the DOE and remand for further proceedings consistent with this opinion."
Access the complete opinion (click here).
DOE rejected the CEC’s petition for three separate reasons, but asserts that “each [of the reasons] flowed from CEC’s failure to provide adequate information to DOE to allow the federal agency to make an informed decision.” The DOE also challenged the court’s jurisdiction under the EPCA to review the denial of the waiver, raising an issue of first impression in the Ninth Circuit.
The Appeals Court said, "We hold that this court has jurisdiction under the EPCA. Because the DOE’s stated justifications demonstrate an arbitrary and capricious failure meaningfully to address the CEC’s application for a waiver, we reverse the
DOE’s ruling and remand for further proceedings."
The Appeals Court ruled further, "The CEC has requested that this Court order the DOE to grant the CEC’s waiver petition. However, this Court’s appropriate role is not to engage in the underlying analysis to determine whether the statutory criteria are met, even if the CEC might have supplied the DOE with sufficient information to do so. . . Considering the significant number of
issues left for resolution, many of which require factual findings in the DOE’s area of expertise, we decline to order a waiver on the present record. We reverse the challenged order of the DOE and remand for further proceedings consistent with this opinion."
Access the complete opinion (click here).
Thursday, October 29, 2009
Nkihtaqmikon v. Imson
Oct 28: In the U.S Court of Appeals, First Circuit, Case No. 08-2122. The appeal is the second in continuing litigation by a group of members of the Passamaquoddy Tribe called Nulankeyutmonen Nkihtaqmikon (NN) -- the phrase means "We Protect the Homeland," -- to challenge a Bureau of Indian Affairs (BIA) decision which approved a lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas (LNG) facility, contingent on Federal regulatory approval being obtained from the Federal Energy Regulatory Commission (FERC).
Based on a previous ruling by the Appeals Court in this case that the "exhaustion of agency remedies was 'mandatory' under governing precedent," the district court on remand dismissed the case -- leaving NN to pursue its internal Interior Department appeals before resuming (if necessary) litigation in the district court.
As stated by the Appeals Court, NN's main argument against the prior decision is that "unless a statute requires exhaustion, judicial review of agency action under the APA, applicable where no other statutory channel of review is provided, does not require exhaustion unless there is both internal agency review available and the final agency action is rendered inoperative during such review."
The Appeals Court rules that the NN "attack is foreclosed by our mandate unless our earlier decision was plainly wrong and following it would cause a serious injustice. Neither condition has been satisfied. . . None of these developments affects our analysis in the present appeal. The district court's judgment is affirmed."
Access the complete opinion (click here).
Based on a previous ruling by the Appeals Court in this case that the "exhaustion of agency remedies was 'mandatory' under governing precedent," the district court on remand dismissed the case -- leaving NN to pursue its internal Interior Department appeals before resuming (if necessary) litigation in the district court.
As stated by the Appeals Court, NN's main argument against the prior decision is that "unless a statute requires exhaustion, judicial review of agency action under the APA, applicable where no other statutory channel of review is provided, does not require exhaustion unless there is both internal agency review available and the final agency action is rendered inoperative during such review."
The Appeals Court rules that the NN "attack is foreclosed by our mandate unless our earlier decision was plainly wrong and following it would cause a serious injustice. Neither condition has been satisfied. . . None of these developments affects our analysis in the present appeal. The district court's judgment is affirmed."
Access the complete opinion (click here).
Monday, October 26, 2009
Rhode Island Fishermen's Alliance v. Rhode Island DEM
Oct 23: In the U.S. Court of Appeals, First Circuit, Case No. 08-2390. The case involves regulations which imposed restrictions on lobster-trap allocations for Rhode Island waters. The challenge to them centers on the Rhode Island Department of Environmental Management (DEM's) alleged use of "retroactive control dates" in composing the regulatory scheme.
According to the Appeals Court, "This appeal brings us face to face with two exotic creatures: the American lobster and a state-law claim that may or may not contain an embedded federal question sufficient to ground a claim of original jurisdiction under 28 U.S.C. § 1331 (commonly known as "federal question" jurisdiction). Cases of this sort require courts to venture into a murky jurisprudence. The answers are rarely black or white but, rather, more often doused in varying shades of gray. The difficult jurisdictional question presented here is no exception."
The underlying case began as a state-court challenge to regulations promulgated by the DEM. Those regulations imposed restrictions on lobster-trap allocations for Rhode Island waters. The challenge to them centers on the DEM's alleged use of retroactive control dates in composing the regulatory scheme. The Court explains that a "control date" is "a cut off date for potential use in establishing eligibility criteria for future access to a fishery." Neither the relevant statute nor the challenged regulation, however, defines the term "retroactive control date." The plaintiffs aver that the DEM employed "retroactive control dates" by limiting, in 2006, fishermen's future access to fishing resources based on each fisherman's documented catch during 2001-2003.
The DEM thought that it was obliged to adopt the retroactive control dates by federal law. Accordingly, it removed the case to the federal district court. The plaintiffs moved to remand, but the district court refused to relinquish jurisdiction. The court subsequently granted summary judgment in favor of the defendants. The Appeals Court said, "After careful consideration of the plaintiffs' ensuing appeal, we agree that the district court appropriately exercised federal question jurisdiction over the case." Accordingly, the Appeals Court affirmed both the district court's denial of the plaintiffs' motion to remand and its grant of summary judgment in favor of the defendants.
Access the complete opinion (click here).
According to the Appeals Court, "This appeal brings us face to face with two exotic creatures: the American lobster and a state-law claim that may or may not contain an embedded federal question sufficient to ground a claim of original jurisdiction under 28 U.S.C. § 1331 (commonly known as "federal question" jurisdiction). Cases of this sort require courts to venture into a murky jurisprudence. The answers are rarely black or white but, rather, more often doused in varying shades of gray. The difficult jurisdictional question presented here is no exception."
The underlying case began as a state-court challenge to regulations promulgated by the DEM. Those regulations imposed restrictions on lobster-trap allocations for Rhode Island waters. The challenge to them centers on the DEM's alleged use of retroactive control dates in composing the regulatory scheme. The Court explains that a "control date" is "a cut off date for potential use in establishing eligibility criteria for future access to a fishery." Neither the relevant statute nor the challenged regulation, however, defines the term "retroactive control date." The plaintiffs aver that the DEM employed "retroactive control dates" by limiting, in 2006, fishermen's future access to fishing resources based on each fisherman's documented catch during 2001-2003.
The DEM thought that it was obliged to adopt the retroactive control dates by federal law. Accordingly, it removed the case to the federal district court. The plaintiffs moved to remand, but the district court refused to relinquish jurisdiction. The court subsequently granted summary judgment in favor of the defendants. The Appeals Court said, "After careful consideration of the plaintiffs' ensuing appeal, we agree that the district court appropriately exercised federal question jurisdiction over the case." Accordingly, the Appeals Court affirmed both the district court's denial of the plaintiffs' motion to remand and its grant of summary judgment in favor of the defendants.
Access the complete opinion (click here).
Wednesday, October 21, 2009
Comer v. Murphy Oil USA
Oct 16: In the U.S. Court of Appeals, Fifth Circuit, Case No. 07-60756. This case represents another major decision regarding citizen enforcement, utilizing common-law actions and seeking damages resulting from corporate greenhouse gas emissions. The case follows another recent 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].
As explained by the Appeals Court, the plaintiffs, 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.
The plaintiffs’ putative class action asserts claims for compensatory and punitive damages based on Mississippi common-law actions of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The plaintiffs invoked the district court’s subject-matter jurisdiction based on diversity of citizenship. The plaintiffs do not assert any federal or public law actions and do not seek injunctive relief.
Defendants moved to dismiss plaintiffs’ claims on the grounds that the plaintiffs lack standing to assert their claims and that their claims present "nonjusticiable political questions." The district court granted the motion and dismissed the claims. The plaintiffs timely appealed.
The Appeals Court ruled, "For the reasons discussed herein, we conclude that the plaintiffs have standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims present nonjusticiable political questions; but we conclude that their unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons. Accordingly, we reverse the district court’s judgment, dismiss the plaintiffs’ suit in part, and remand the case to the district court for further proceedings."
The Appeals Court explains that the district court began its analysis of the political question doctrine by stating “that the problem [in this case] is one in which this court is simply ill-equipped or unequipped with the power that it has to address these issues.” Describing this suit as a “debate” about global warming. The district court judge said he should not be forced "to balance economic, environmental, foreign policy, and national security interests and make an initial policy determination of a kind which is simply nonjudicial."
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."
On attorney, Paul Mollica, with the law firm of Meites, Mulder, Mollica & Glink in Chicago commented on the company blog that, "The headline for this case ought to read: 'Fifth Circuit More Activist Than San-Francisco-Based Court." A panel of Fifth Circuit judges reverse dismissal of a potentially immense tort class action, under Mississippi law, alleging trespass, nuisance and negligence in relation to the emission of greenhouse gasses.'" Mollica concludes his comments saying, "One thought: if anything might prompt Congress to regulate the greenhouse gas field preemptively, it would be the peril of having an incensed Mississippi jury decide the issue instead."
The blog, Global Environmental Law posted a comment on the case saying, "The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina."
Access the complete 36-page opinion (click here). Access the complete blog post by Paul Mollica (click here). Access the complete Global Environmental Law blog post (click here).
As explained by the Appeals Court, the plaintiffs, 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.
The plaintiffs’ putative class action asserts claims for compensatory and punitive damages based on Mississippi common-law actions of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The plaintiffs invoked the district court’s subject-matter jurisdiction based on diversity of citizenship. The plaintiffs do not assert any federal or public law actions and do not seek injunctive relief.
Defendants moved to dismiss plaintiffs’ claims on the grounds that the plaintiffs lack standing to assert their claims and that their claims present "nonjusticiable political questions." The district court granted the motion and dismissed the claims. The plaintiffs timely appealed.
The Appeals Court ruled, "For the reasons discussed herein, we conclude that the plaintiffs have standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims present nonjusticiable political questions; but we conclude that their unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons. Accordingly, we reverse the district court’s judgment, dismiss the plaintiffs’ suit in part, and remand the case to the district court for further proceedings."
The Appeals Court explains that the district court began its analysis of the political question doctrine by stating “that the problem [in this case] is one in which this court is simply ill-equipped or unequipped with the power that it has to address these issues.” Describing this suit as a “debate” about global warming. The district court judge said he should not be forced "to balance economic, environmental, foreign policy, and national security interests and make an initial policy determination of a kind which is simply nonjudicial."
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."
On attorney, Paul Mollica, with the law firm of Meites, Mulder, Mollica & Glink in Chicago commented on the company blog that, "The headline for this case ought to read: 'Fifth Circuit More Activist Than San-Francisco-Based Court." A panel of Fifth Circuit judges reverse dismissal of a potentially immense tort class action, under Mississippi law, alleging trespass, nuisance and negligence in relation to the emission of greenhouse gasses.'" Mollica concludes his comments saying, "One thought: if anything might prompt Congress to regulate the greenhouse gas field preemptively, it would be the peril of having an incensed Mississippi jury decide the issue instead."
The blog, Global Environmental Law posted a comment on the case saying, "The court held that the case did not pose a nonjusticiable political question and that the plaintiffs had standing in light of the U.S Supreme Court’s decision in Massachusetts v. EPA. While the case returns to the district court for trial, it remains a decided longshot on the merits in light of the attenuated causal link between climate change and Hurricane Katrina. Indeed Judge Davis in a special concurrence opined that the case could be dismissed for failure to allege facts that would establish that GHG emissions from the defendants were a proximate cause of injury from Hurricane Katrina."
Access the complete 36-page opinion (click here). Access the complete blog post by Paul Mollica (click here). Access the complete Global Environmental Law blog post (click here).
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