Green Light for Global Warming Suit

Fifth Circuit makes surprise move and allows state law suit over fossil fuels' contribution to global warming

In Comer v. Murphy Oil USA, handed down last Friday, the Fifth Circuit gave the green light to (most of) an anti-global warming suit brought by property owners on the Mississippi gulf coast under Mississipi common law theories of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. That this cause was allowed to proceed is of huge significance to the environmental community, which has been restrained from using public nuisance law for much of the past 35 years by the presence of comprehensive federal environmental legislation. It is the second case in which a public nuisance claim over global warming has been allowed to proceed after the Second Circuit issued Connecticut v. AEP just under a month ago, and the first with private plaintiffs employing state law. And it stands in contrast to a Northern District of California ruling from last month dismissing a similar global warming claim by Alaskan villagers.

Plaintiffs argued, in essence, that defendant's use of petrochemicals, chemicals and fossil fuels in their US operations contributed to global warming, which in turn spawned Hurricane Katrina which harmed plaintiffs' coastal property. Defendants moved to dismiss for lack of standing, arguing that the theory of harm was too attenuated, and that the case presented a non-justiciable political question. (They did not argue preemption, perhaps because that would have required arguing that the Clean Air Act governs global warming).

They were granted dismissal below, and plaintiffs appealed more than two years ago. Last Friday, the Fifth Circuit panel, consisting of Judges Davis, Stewart and Dennis, rejected the defendant's standing argument with respect to the public and private nuisance, trespass, and negligence claims under Massachusetts v. EPA. They noted that in that case, the Supreme Court granted standing to a group of coastal land-owners alleging harm from global warming, and that the instant plaintiffs presented an identical theory of standing. The panel also rejected the political-question defense to the same claims, telling the defense, basically, that they had mistaken a doctrine under which the courts decline to intrude on other federal branches for one that operated to dismiss "politically charged" cases.

The panel did, however, dismiss the balance of the claims--enrichment, fraudulent misrepresentation, and civil conspiracy--for federal prudential standing reasons. In bringing those claims, the panel noted, "the plaintiffs are essentially alleging a massive fraud on the political system resulting in the failure of environmental regulators to impose proper costs on the defendants." Slip Op. at 17. This, they said, was too generalized to get them into court.

Nonetheless, the result is that one of the most conservative appeals courts in the country has allowed a global warming suit to proceed on state law theories of nuisance, trespass, and negligence. (Or, as an obviously disappointed private attorney in Chicago put it, "Fifth Circuit More Activist Than San-Francisco-Based Court.") This should embolden other plaintiffs, and because it does so, only raises the stakes below. I would bet that there will be plenty of industry lawyers observing as the case proceeds.