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).

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