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Fifth Circuit Opinion Allows Climate Change Lawsuit

Private plaintiffs have begun filing suit for damages alleged to have been caused by climate changes. Whether these cases, involving energy and chemical company defendants, will stand remains an open question. On October 16, 2009, the U.S. Court of Appeals for the Fifth Circuit reversed the dismissal of a climate change lawsuit brought by residents and owners of lands and property along the Mississippi Gulf Coast who claim damages from Hurricane Katrina. No. 07-60756; Comer v. Murphy Oil, et al. These Plaintiffs sued numerous energy companies, chemical companies, and coal mining companies based upon the claim that the Defendants' operation of the energy, chemical, and fossil fuels industries in the United States caused the emission of greenhouse gases that have contributed to global warming. The Comer Plaintiffs claim that the increase in global surface, air and water temperatures caused a rise in sea levels and added to the impact of Hurricane Katrina, which combined to destroy the Plaintiffs' private property, as well as public property useful to them.

The U.S. District Court for the Southern District of Mississippi dismissed the Comer lawsuit on September 17, 2007, based upon lack of standing and also based upon the political question doctrine. This was consistent with other federal district courts in recent years, all of whom have dismissed private party climate change lawsuits based upon lack of standing and/or the political question doctrine. As recently as September 30, 2009, the U.S. District Court for the Northern District of California dismissed a climate change lawsuit filed by an Alaskan Inupiat village against twenty-four oil, energy and utility companies based upon these same defenses. No. C 08-1138; Native Village of Kivalina, et al. v. ExxonMobil Corporation, et al.

However, the Fifth Circuit held that the private party Plaintiffs in Comer have standing to assert public and private nuisance, trespass, and negligence claims based upon their allegations of global warming. The Fifth Circuit also held that none of these claims present nonjusticiable political questions which must be dismissed based upon the political question doctrine. Thus, the Fifth Circuit reversed the dismissal of Plaintiffs' nuisance, trespass, and negligence claims and remanded them to the district court.

The Comer decision follows on the heels of the September 21, 2009, Second Circuit decision in State of Connecticut, et al. v. American Electric Power Company, et al. which reversed the dismissal of a climate change lawsuit filed by eight states and the City of New York against six electric power companies that own and operate fossil-fuel power plants in twenty states. The Second Circuit held that the Plaintiffs had stated claims under the federal common law of nuisance which did not present non-justiciable political questions and that those Plaintiffs had standing to bring their claims.

Thus, the Fifth and Second Circuits have held that certain private parties may bring nuisance, trespass, or negligence lawsuits based upon the claim that the actions of certain identified defendants have contributed to global warming, and that such claims are not barred by the political question doctrine. Courts have begun warming up to the view that certain private party plaintiffs can sue for damages allegedly caused by global warming.

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