[StBernard] Mississippi Federal Court Dismisses Comer v. Murphy Oil USA, Inc.

[Westley Annis]

Mississippi Federal Court Dismisses Comer v. Murphy Oil USA, Inc.
by McKenna Long & Aldridge LLP on 3/28/2012  
 [authors: Carroll, Christina, Evans, J. Randolph, Landis, Kristin, and
Zimolzak, Joanne]

On March 20, 2012, a federal judge in Mississippi dismissed for the second
time Comer v. Murphy Oil USA, Inc., a lawsuit by various Mississippi
property owners against numerous oil, coal, and chemical companies seeking
tort liability for climate change.  The decision, though not unexpected,
provides some additional clarity about the future of climate change-related
tort claims. 

Procedural History

The suit was originally filed in 2005 (Comer I) and was subsequently refiled
in 2011 after a lengthy and convoluted procedural history (Comer II).  The
crux of the Comerplaintiffs' claims is that the defendants' greenhouse gas
emissions contributed to global warming, which fueled Hurricane Katrina and
ultimately led to damage to the plaintiffs' property.  The plaintiffs assert
state law public and private nuisance, trespass, and negligence causes of
action against the defendants.

The district court dismissed Comer I in 2007 on grounds that the plaintiffs
lacked standing and their claims presented nonjusticiable political
questions.  The plaintiffs appealed to the Fifth Circuit, which reversed the
district court in part in 2009.  The reversal was vacated when the Fifth
Circuit agreed to rehear the appeal en banc.  Before the rehearing, however,
the appellate court lost its quorum and appellate rules required its
dismissal.  Because the Fifth Circuit's opinion had already been vacated,
the 2007 district court dismissal was reinstated.  When the Supreme Court
denied the plaintiffs' request for a writ of mandamus, they filed Comer II
in 2011. 

The Second Dismissal

The same court that dismissed Comer I dismissed Comer II last week on
procedural grounds, finding that the refiled lawsuit is barred by the
doctrines of res judicata and collateral estoppel.  The court concluded that
Comer II raises essentially the same claims as Comer I,and the plaintiffs
are not entitled to another bite at the apple. 

Although the court could have relied solely on these procedural grounds to
dismiss Comer II, "out of an abundance of caution" the court revisited
whether the plaintiffs have standing and whether the political question
doctrine bars their claims.  With regard to standing, the court affirmed its
2007 decision in Comer I that the plaintiffs could not allege injuries that
are fairly traceable to the defendants' conduct.  The plaintiffs could not
show that the defendants' specific greenhouse gas emissions caused or
contributed to the damages they allegedly suffered as a result of Hurricane
Katrina.  The court also affirmed its 2007 decision that the plaintiffs'
claims are barred by the political question doctrine.  The court held that
there are no judicially discoverable and manageable standards for resolving
whether the defendants' greenhouse gas emissions are "unreasonable" and,
moreover, that resolving plaintiffs' claims would require the court to make
initial policy determinations that Congress has entrusted to EPA. 

The court also agreed with the defendants' arguments that the plaintiffs'
claims are preempted by the Clean Air Act (CAA).  The Mississippi court's
determination was based upon the Supreme Court's 2007 decision in
Massachusetts v. EPA, in which the Court conclusively determined that EPA
has the authority to regulate greenhouse gases under the CAA, and the
Supreme Court's 2011 decision in Connecticut v. AEP, in which the Court held
that federal nuisance claims involving greenhouse gas emissions are
displaced by the CAA.  Comer is the first case to extend this reasoning to
the preemption context.  The Mississippi federal court also agreed with the
defendants that the Mississippi Savings statute does not save the
plaintiffs' claims from Mississippi's three year statute of limitations and
that the plaintiffs cannot demonstrate that the defendants' emissions are
the proximate cause of their injuries. 

Significance of Decision

Although the dismissal of Comer II certainly strikes a blow to plaintiffs
wanting to hold greenhouse gas emitters liable in tort, the plaintiffs are
likely to appeal to the Fifth Circuit, which in the past has proven more
open to the plaintiffs' claims than the district court.  The appellate
court's vacated 2009 opinion held that the plaintiffs had standing to bring
their nuisance, trespass, and negligence claims and that those same claims
did not present nonjusticiable political questions.  There is no guarantee,
however, that the Fifth Circuit will again rule in the plaintiffs' favor,
even if they reverse the district court on res judicata and collateral
estoppel grounds.  Significantly, at the time of the Fifth Circuit's
decision in Comer I, the EPA was not regulating greenhouse gases to the
extent it is today and the Supreme Court had not yet decided Connecticut v.
AEP.  On the basis of these developments, the Fifth Circuit could very well
find that the CAA preempts the plaintiffs' state law claims.  In addition,
Native Village of Kivalina v. Exxonmobil Corp., which involves similar
challenges with respect to standing, the political question doctrine, and
preemption, is currently pending before the Ninth Circuit.  A decision
against the plaintiffs in Kivalina could potentially influence the Fifth
Circuit in Comer.  A decision in Kivalina is expected this year.