[StBernard] Climate Change Litigation Hits A Roadblock In Fifth Circuit Court Of Appeals

[Westley Annis]

Climate Change Litigation Hits A Roadblock In Fifth Circuit Court Of Appeals


Houston, TX (OPENPRESS) March 2, 2010 -- In a significant turn of events,
the U.S. Court of Appeals for the Fifth Circuit last Friday granted a
rehearing en banc in Comer v. Murphy Oil, et al, one of three climate change
public nuisance cases pending in the federal appellate courts. The entire
Fifth Circuit Court ordered reconsideration of an earlier decision by a
three judge panel that reversed the dismissal of Comer, a major climate
change lawsuit. The court's written order was posted this afternoon.

The class-action suit claimed that plaintiffs were injured when energy and
oil and gas companies created a public nuisance by intensifying Hurricane
Katrina with their greenhouse gas emissions. Other defendants, including
insurance companies, were also named in the suit, which included thousands
of claimants who sustained losses and injuries during the 2005 storm.

The trial court originally dismissed the case because the plaintiffs lacked
standing to sue particular defendants for the effects of global warming, and
because no judgment rendered in the case could determine whether any
particular defendant's emissions caused any particular plaintiff's alleged
injuries. The trial court also dismissed the claims because the controversy
presented a political question involving international issues that were
entrusted to Congress and the president, not to the courts. 

The original three-judge panel reversed the dismissal following a recent
Second Circuit U.S. Court of Appeals decision, which held that climate
change cases were "ordinary tort cases" despite the international and
planetary dimensions. In another ruling, a Third Circuit panel found that
plaintiffs need not show that the defendant's pollutants caused the harm,
and for purposes of standing it is sufficient to show only that they
discharged a pollutant that can contribute to the kinds of injuries being
alleged. 

A motion to rehear the Second Circuit decision is also pending, but has not
yet been decided. A federal court in San Francisco dismissed another climate
change nuisance suit last year, and the appeal of that action is pending in
the Ninth Circuit.

Texas climate change lawyer Richard O. Faulk, who chairs the Litigation
Department and Environmental Practice of Gardere Wynne Sewell LLP, says that
the Fifth Circuit's decision to allow the court's complete complement of
judges to reconsider the case is a "significant blow to the progress of
climate change and public nuisance litigation." 

Although Mr. Faulk acknowledges that the case's "ultimate resolution cannot
be predicted with certainty," he stressed that "the original panel's
original decision now has no value. Clearly, a significant number of the
court's judges believe the case deserves a closer look, and plaintiffs'
counsel cannot be comforted by that development. Indeed, since no judge on
the original panel dissented from the decision, the decision to reconsider
suggests that the rest of the court may be seriously interested in changing
the result."

Mr. Faulk, who attended and reported on the U.N. Climate Change Conference
in Copenhagen, and who has argued before the en banc Fifth Circuit and the
U.S. Supreme Court, believes that the Fifth Circuit's ruling is consistent
with growing climate change skepticism. "In the wake of "climategate" and
the debacle of the Copenhagen conference, the Fifth Circuit's decision is
yet another example of how climate change issues are receiving greater
scrutiny. Time will tell whether this is just a minor speed bump or a major
security barrier, but the momentum of skepticism is clearly increasing."

Gardere Wynne Sewell LLP, an AmLaw 200 firm founded in 1909 and one of the
Southwest's largest full-service law firms, has offices in Austin, Dallas,
Houston and Mexico City. Gardere provides legal services to private and
public companies and individuals in areas of government affairs, energy,
litigation, corporate, tax, environmental, labor and employment,
intellectual property and financial services.