Comer v. Murphy Oil USA.

A three-judge panel of the Fifth Circuit resurrected a case dismissed below on the basis that it presented a non-justiciable “political question,” and held that a proposed class of private property owners along the Mississippi gulf coast could proceed with their lawsuit against 147 oil, chemical and electric generation company defendants. Plaintiffs asserted that those defendants had intentionally and unreasonably used their property so as to produce massive amounts of greenhouse gases, thereby contributing to global warming – which had in turn caused the sea level to rise and added to the strength of Hurricane Katrina. Such actions had led, in turn, according to the plaintiffs, to the destruction of plaintiffs’ property, as well as plaintiffs’ loss of the use of certain public property in the vicinity of their dwellings. Plaintiffs sought compensatory and punitive damages. The Fifth Circuit concluded that plaintiffs did have standing to assert public and private nuisance claims, as well as trespass and negligence claims. (The panel dismissed various other claims, including claims of fraudulent misrepresentation, unjust enrichment, and civil conspiracy). The court rejected defendants’ argument that the matter lay beyond the purview of the judiciary, finding that the lawsuit did not involve issues that were “constitutionally committed to the exclusive authority of a political branch of government” or in which the judiciary lacked “discoverable or manageable standards with which to decide [the] case;” nor that the case involved issues that were “impossible [to decide] without an ‘initial policy determination’ having been made by the elected branches,” that required “adherence to a political decision already made.” The court gave short shrift to what defendants had characterized as the “attenuated” purported causal connection between defendants’ claimed conduct and plaintiffs’ injuries. In defendants’ view, plaintiffs had not sufficiently alleged that the hurricane damage to their properties was traceable to the companies’ actions. The court, however, invoked the U.S. Supreme Court’s decision in Massachusetts v. EPA, which it said seemed to accept “as plausible the link between man-made greenhouse gas emissions and global warming [and that] rising ocean temperatures may contribute to the ferocity of hurricanes.” The Fifth Circuit stated that “the [Supreme] Court accepted a causal chain virtually identical in part to that alleged by the plaintiffs” when it ruled in Massachusetts v. EPA that to satisfy the causal standard, the states merely had to show a contributing cause, not the main cause of their injuries. In addition, in a footnote, the court characterized the U.S. Supreme Court in Massachusetts v. EPA as having “also recognized that the impact of Hurricane Katrina is arguably a result of this causation link.”