[StBernard] Ramifications of Comer v. Murphy Oil

Westley Annis westley at da-parish.com
Wed Oct 28 21:05:14 EDT 2009

Ramifications of Comer v. Murphy Oil
by Keith Loria October 28, 2009 02:25 PM.
In Comer v. Murphy Oil, the U.S. Court of Appeals for the Fifth Circuit
reinstated the suit alleging global warming exacerbated damage caused by
Hurricane Katrina.The court ruled that plaintiffs do have standing to assert
cnuisance, trespass and negligence claims and that these claims did not
represent nonjusticiable political questions. J. Russell Jackson, a partner
with Skadden Law who defends companies' products and advertising in trial
and appellate courts, spoke to Public Nuisance Wire about the ramifications
of this decision.

PNW: Why is the Comer decision important?

Jackson: This case is important because it is a class action for
compensatory and punitive damages brought by private property owners. It was
less surprising when the Second Circuit in AEP found that governments and
municipalities had standing to sue to reduce emission levels of greenhouse
gases. But the Fifth Circuit's Comer decision would seem to throw the
courthouse doors wide open to suits brought by almost anyone to seek money
from entities that they allege contributed to global warming.

PNW: What does the reversal mean for future cases dealing with climate

Jackson: If the Comer decision is allowed to stand -- and that's a big "if,"
since a petition for rehearing en banc is likely and the Fifth Circuit is
renowned to be a pretty conservative court -- then further lawsuits for
compensatory and punitive damages seem likely. People should note, however,
that merely because a litigant is held to have "standing" to sue in federal
court does not mean that he will be successful. These climate change cases
present extraordinarily difficult issues of causation. As the federal
district court in the recent Village of Kivalina decision noted, these
greenhouse gases are alleged to have built up over hundreds of years from a
wide variety of sources across the globe. That makes it awfully difficult to
pin causation in fact and legal (or "proximate") cause on some
arbitrarily-selected group of present-day defendants. Plaintiffs' counsel
may have succeeded in getting a toe in the door to the federal courthouse,
but they are right to be concerned that they may be thrown out of court on a
motion to dismiss or a motion for summary judgment.

PNW: What other concerns do you have?

Jackson: One of my biggest concerns is that we appear poised to use the
judicial system -- the most inefficient, expensive, and undemocratic
regulatory tool of all -- as the primary means of retroactively deciding
what should have been done decades ago, and yet no damage award will
actually do anything to prevent the impacts of climate change that
plaintiffs keep saying are coming. To have a court retroactively "tax"
greenhouse gas emissions when they were perfectly legal at the time is
fundamentally unfair and ultimately will impose on future American consumers
extrarodinary burdens that they presently are unprepared to face. Moreover,
the discovery costs, lawyers' fees, and wasted productivity associated with
litigating these cases are unnecessary and will do nothing to solve the
alleged problem. And they do nothing to deal with the responsibility that
each consumer bears for his or her own historic "carbon footprint," as
certain activists would term it. America's climate change policy should not
be forged in closed chambers by men and women in black robes wielding wooden
gavels; it should be publicly debated, analyzed, and adopted by the
politcally-accountable branches of government.

PNW: What do you think was the court's motivation for this decision?

Jackson: I think the Fifth Circuit panel felt unduly hamstrung by the
Supreme Court's discussion of the causal chain alleged in Massachusetts v.
EPA. The plaintiffs here are not governmental entitites and, as private
plaintiffs suing for damages, they merit no lenient standard. The district
court in Village of Kivalina demonstrated that even in public nuisance cases
involving alleged water pollution, if the sources of pollution are too
diffuse or the plaintiffs live too far downstream, they lack the sort of
causal connection that makes their injury "fairly traceable" to the
defendant's conduct, and thus they have no standing. That certainly is the
case here, where the defendants' greenhouse gas emissions are alleged to
have combined with other gases from other sources across the globe and over
time to combine to trap heat in the atmosphere, which then allegedly
impacted the strenth or ferocity of a hurricane. Just to say it is to show
how convoluted the causation theory is.

PNW: Any last thoughts?

Jackson: Regardless of whether the Fifth Circuit rehears Comer en banc or
not, it's important to note that the panel's opinion mentioned in more than
one place that its conclusion that the "fairly traceable" requirement for
standing had been met in no way meant that the complaint could survive a
proximate cause challenge in a motion to dismiss or motion for summary
judgment. Indeed, Judge Dennis made it plain that he would have affirmed a
dismissal on such grounds. So anyone who tells you that the decisions in AEP
and Comer mean that climate change cases will actually make it all the way
to trial is incredibly naive or optimistic.

One other thing. I think it's important that the Fifth Circuit held that
the private property owners had no standing to bring claims for damages
based on so-called civil conspiracy to "conceal" the alleged dangers of
global warming. These civil conspiracy and fraud claims are even further
causally removed from the challenged conduct than the nuisance claims, and
it was important to see the court recognize that and eliminate them from the

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