[StBernard] Mississippi Federal Court Sacks Climate Change Lawsuit for a Second Time

[Westley Annis]

Mississippi Federal Court Sacks Climate Change Lawsuit for a  Second Time 

Toxic Tort and Environmental Law Update 

April 2012 by Ruben Reyna 

The U.S. District Court for the Southern District of Mississippi once again
dismissed claims that the oil and coal industries are liable for property
damaged by Hurricane Katrina, finding both that the plaintiffs failed to
allege injuries that are "fairly traceable" to the defendants' conduct and
that the lawsuit raised non-justiciable political questions. 

In Ned Comer, et al. v. Murphy Oil USA, Inc., et al., No. 1:11CV220-LG-RHW
(S.D. Miss. Mar. 

20, 2012), a group of Coastal Mississippi property owners alleged that the
oil and coal 

industries released greenhouse gases that led to the development and
increase of global 

warming, producing the conditions that formed Hurricane Katrina, which
damaged their 

property.   This was the second time these plaintiffs raised these claims
against the same 

defendants in this District Court.   In the original lawsuit, the District
Court dismissed the 

plaintiffs' claims because it found that the plaintiffs lacked standing and
that their claims were 

non-justiciable pursuant to the political question doctrine.   Comer v.
Murphy Oil USA, No. 05-

436 (S.D. Miss. Aug. 30, 2007), rev'd, 585 F.3d 855 (5th Cir. 2009), vacated
on grant of reh'g 

en banc, 598 F.3d 208 (5th Cir. 2010), appeal dismissed, No. 07-60756, 2010
WL 2136658 

(5th Cir. May 28, 2010), mandamus denied, No. 10-294 (U.S. Jan. 10, 2011).
Subsequent to a 

long and complicated procedural history, resulting in the District Court's
original dismissal 

being left firmly in place, the plaintiffs refiled their claims, relying on
a Mississippi statute that 

purportedly permitted refiling. 

The District Court did not agree, ruling that because there was a final
judgment on the merits 

of their claims against their favor found with prejudice, the plaintiffs'
present claims were 

barred because the doctrines of res judicata and collateral estoppel
applied.   Moreover, the 

court ruled that the plaintiffs still lacked Article III standing.   The
court held that it was 

insufficient for the plaintiffs to merely allege that the defendants'
emissions contributed to the 

kinds of injuries that they suffered.   The plaintiffs must allege that the
defendants' particular 

emissions led to their property damage and this they could not do.   "At
most," the court held, 

"the plaintiffs can argue that the types of emissions released by the
defendants, when 

combined with similar emissions released over an extended period of time by
innumerable 

manmade and naturally occurring sources encompassing the entire planet, may
have 

contributed to global warming, which caused sea temperatures to rise, which
in turn caused 

glaciers and icebergs to melt, which caused sea levels to rise, which may
have strengthened 

Hurricane Katrina, which damaged the plaintiffs' property."   The court also
found that the 

plaintiffs' claims were non-justiciable political questions, because the
plaintiffs were essentially 

asking the court to determine what levels of greenhouse gas emissions were
unreasonable 

and these types of determinations have been entrusted to the EPA by
Congress. 

Comer is one of a trio of cases presenting common law tort claims for
alleged contributions to 

global warming.   A second suit is American Electric Power, et al. v.
Connecticut, et al.,131 S. 

Ct. 2527 (2011), where several states and land trusts sued six energy
companies alleging that 

the defendants' greenhouse gas emissions constituted a public nuisance under
federal 

common law.   The third case is Native Village of Kivalina v. Exxon-Mobil
Corp., 663 F. Supp. 

2d 863 (N.D. Cal. 2009), in which an Inupiat Eskimo village sued oil,
energy, and utility 

companies, alleging that their greenhouse gas emissions have contributed to
global warming, 

thereby causing Arctic sea ice to diminish.   As in Comer, the trial courts
in AEP and Kivalina 

dismissed those respective actions on the grounds that the plaintiffs lacked
standing and/or 

the claims were barred by the political question doctrine.   In AEP, the
plaintiffs appealed, the 

Second Circuit Court of Appeals vacated the lower court's dismissal, the
defendants appealed, 

and the U.S. Supreme Court dismissed the plaintiffs' federal common-law
claims, basically 

gutting the plaintiffs' case, and remanded to the Second Circuit, where the
plaintiffs ultimately 

dismissed voluntarily.   In Kivalina, the plaintiffs appealed and the Ninth
Circuit Court of Appeals has yet to render a decision. 

The path of current and future litigation seeking to hold industry liable
for the alleged effects of 

greenhouse gases on climate change remains somewhat uncertain, but the
Mississippi federal 

court's decision in Comer is a strong indication that these issues are
ill-suited for tort litigation 

and are inherently political and must therefore be dealt with by Congress
and the executive 

branch.