In a case of surprising longevity, Comer v Murphy Oil USA, Inc., may finally have been laid to rest. In a decision filed Tuesday, Judge Louis Guirola, Jr., Chief Judge of the United States District Court for the Southern District of Mississippi, concluded that the plaintiffs in the first climate change liability damages suit were not entitled to a second bite at the apple. And even if they were, their case still failed.
In the aftermath of Hurricane Katrina, numerous parties filed scores of lawsuits seeking to find some source to pay for the awful devastation. One suit, Comer, asserted through various amended complaints that electric utilities, coal companies, chemical companies and oil companies were responsible for the increased ferocity of Hurricane Katrina because of their emissions of greenhouse gases and their alleged resultant contribution to global warming. Following various iterations, plaintiffs ultimately alleged: "Prior to striking the Mississippi Gulf Coast, Hurricane Katrina had developed into a cyclonic storm of unprecedented strength and destruction, fueled and intensified by the warm waters and warm environmental conditions present in the Atlantic Ocean, Caribbean Sea, and the Gulf of Mexico. These high sea surface temperatures, which were a direct and proximate result of the defendants' green house gas emissions, increased the intensity and magnitude of Hurricane Katrina." Amended Complaint, 1:11-cv-00220-LG-RHW, ¶ 17. Plaintiffs also alleged risks of future harms as a result of effects of global warming.
Motions to dismiss were filed, which ultimately led to judgment in favor of the defendants. Judge Guirola ruled that plaintiffs lacked standing and that the claims were non-justiciable under the political question doctrine. 2007 WL 6942285 (S.D. Miss. Aug. 30, 2007),
Plaintiffs appealed and were initially successful before the Fifth Circuit, which reversed the district court and concluded: "Like the district courts in [Connecticut v.] American Electric [Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005)] and [California v.] General Motors [, 2007 WL 2726871 (N.D. Cal. 2007)], the defendants begin with an assumption they cannot support, viz., that the adjudication of plaintiffs' claims will require the district court to fix and impose future emission standards upon defendants and all other emitters. Then, again in a fashion similar to those district courts, the defendants proclaim that it would be "impossible" for a court to perform such an obviously legislative or regulatory task so that the case must present a nonjusticiable political question. The defendants have failed to show how any of the issues inherent in the plaintiffs' nuisance, trespass, and negligence claims have been committed by the Constitution or federal laws "wholly and indivisibly" to a federal political branch." Comer v. Murphy Oil USA, 585 F.3d 855, 879 (5th. Cir. 2009).
That was the high water mark of the plaintiffs' bar's success in climate change liability cases. With the Second Circuit's decision in Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009), just one month earlier, the tide crested with the Fifth Circuit's decision in October. Two federal courts of appeal had found standing for climate change liability plaintiffs, and rejected the political question doctrine.
Concurrently, however, a new climate change liability suit, Native Village of Kivalina v. ExxonMobil Corp., was dismissed at the end of September. 663 F. Supp. 2d 863 (N.D. Cal. 2009). From the present perspective, Kivalina's dismissal marked the turning of the tide.
The next dark moment for the plaintiffs occurred when the Fifth Circuit en banc accepted the appeal of Comer, automatically vacating the panel's decision. Then the en banc court's quorum dissolved, requiring the court to dismiss the appeal. But with the panel decision already vacated, that meant the controlling law was Judge Guirola's 2007 dismissal. The Supreme Court refused to issue a mandamus order, which meant Comer was over. It got darker. The Supreme Court dismissed the plaintiffs' federal common law claims in American Electric Power; the gutted case was remanded to the Second Circuit (and plaintiffs ultimately dismissed voluntarily). So as of June 2011 all the climate change liability suits had been disposed of.
Well, not entirely. Kivalina was pending on the Ninth Circuit's docket. And the Comer plaintiffs refused to abandon the field and re-filed their claims, relying on a Mississippi statute purportedly permitting refiling.
Judge Guirola, however, did not agree. Plaintiffs' claims were barred because the doctrines of res judicata and collateral estoppel applied. Slip op. at 12. Plaintiffs had had a previous opportunity to litigate their claims, which had been decided against them with prejudice.
Moreover, plaintiffs still lacked standing because they could not demonstrate that their alleged injuries were "fairly traceable" to the defendants' activities: "As this Court stated in the first Comer lawsuit, the parties should not be permitted to engage in discovery that will likely cost millions of dollars, when the tenuous nature of the causation alleged is readily apparent at the pleadings stage of the litigation. The Court finds that the plaintiffs have not alleged injuries that are fairly traceable to the defendants’ conduct, and thus, the plaintiffs do not have standing to pursue this lawsuit." Slip op. at 23. In addition, the political question doctrine still applied: " The Court finds that the claims presented by the plaintiffs constitute non-justiciable political questions, because there are no
judicially discoverable and manageable standards for resolving the issues presented, and because the case would require the Court to make initial policy determinations that have been entrusted to the EPA by Congress." Slip op. at 29.
And just in case all that was not enough, Judge Guirola also ruled that 1) "the plaintiffs’ entire lawsuit is displaced by the Clean Air Act", slip op. at 30 (relying on American Electric Power); 2) the three-year statute of limitations applied to the Hurricane Katrina-based claims because the Mississippi "savings statute" did not apply, and the alleged continuing torts were not ripe, slip op. at 33; and 3) plaintiffs could not demonstrate proximate cause because "[t]he assertion that the defendants’ emissions combined over a period of decades or centuries with other natural and man-made gases to cause or strengthen a hurricane and damage personal property is precisely the type of remote, improbable, and extraordinary occurrence that is excluded from liability." Slip op. at 35.
Judge Guirola's decision is well-written and thorough. Will it be enough? We expect so but we cannot be pollyana here. A Fifth Circuit panel has wrestled with Judge Guirola's standing and political question analysis before, and reversed him. This time, however, they will also need to avoid his res judicata, collateral estoppel, displacement, statute of limitations and proximate cause analyses. That seems a tall order. As for the the Second Circuit, its decision on standing is still valid law because that issue was not resolved by American Electric Power. Indeed, the Supreme Court split 4-4 on the issue (Justice Sotomayor recused herself because of her participation in argument at the court of appeals). Should Comer (or Kivalina) make it to the Court, the standing question could come out badly for the defense if Justice Sotomayor is the swing vote needed for a bare majority in favor of broader standing. Last, we have Kivalina before the Ninth Circuit. While undoubtedly the court will have read Judge Guirola's opinion, it will also have read the Fifth Circuit panel's decision. Which will be more influential? We'll make that decision then.