The headline for this case ought to read: “Fifth Circuit More Activist Than San-Francisco-Based Court.” A panel of Fifth Circuit judges reverse dismissal of a potentially immense tort class action, under Mississippi law, alleging trespass, nuisance and negligence in relation to the emission of greenhouse gasses.
Comer v. Murphy Oil USA, No. 07-60756 (5th Cir. Oct. 16, 2009): The plaintiffs filed a diversity suit seeking only damages against numerous defendant petro-chemical companies. The panel summarizes:
“The plaintiffs, residents and owners of lands and property along the Mississippi Gulf coast, filed this putative class action in the district court against the named defendants, corporations that have principal offices in other states but are doing business in Mississippi. The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States
caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them. The plaintiffs’ putative class action asserts claims for compensatory and punitive damages based on Mississippi common-law actions
of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy.”
The district court dismissed the case on justiciability grounds, follow the action of two other federal district courts faced with comparable claims: California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007), and Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
But the Fifth Circuit panel reverses in part, holding the plaintiffs both have standing to raise at least three of the claims (nuisance, trespass, negligence), and that the claims are justiciable. As to those three claims, the panel holds that the plaintiffs “rely on allegations of a causal link between greenhouse gas emissions, global warming, and the destruction of the plaintiffs’ property by rising sea levels and the added ferocity of Hurricane Katrina.”
The defendants did not contest injury or redressability for these claims, but argued that the injuries were not tractable to the defendants. The panel rejects this formula: “They argue that the plaintiffs have not shown that the harms alleged are fairly traceable to defendants’ actions. Defendants contend that the plaintiffs’ theory tracing their injuries to defendants’ actions is too attenuated. However, this argument, which essentially calls upon us to evaluate the merits of plaintiffs’ causes of action, is misplaced at this threshold standing stage of the litigation. . . . Plaintiffs’ complaint, relying on scientific reports, alleges a chain of causation between defendants’ substantial emissions and plaintiffs’ injuries, and while plaintiffs will be required to support these assertions at later stages in the litigation, at this pleading stage we must take these allegations as true.”
The panel finds that “the other three claims plaintiffs’ second set of claims (unjust enrichment, fraudulent misrepresentation, and civil conspiracy) do not satisfy federal prudential standing requirements,” because there are generalized grievances. “The source of the plaintiffs’ second set of grievances is the alleged failure of the government to properly regulate and government regulation) and therefore enabled the defendants to increase their prices and profits. . . . The interests at stake involve every purchaser of petrochemicals and the entire American citizenry because the plaintiffs are essentially alleging a massive fraud on the political system resulting in the failure of environmental regulators to impose proper costs on the defendants.”
Moving to justiciability, the panel finds this case comparable to common-law pollutant cases that courts have routinely allowed.
“The questions posed by this case, viz., whether defendants are liable to plaintiffs in damages under Mississippi’s common law torts of nuisance, trespass or negligence, are justiciable because they plainly have not been committed by the Constitution or federal laws or regulations to Congress or the president. There is no federal constitutional or statutory provision making such a commitment, and the defendants do not point to any provision that has such effect. The most that the defendants legitimately could argue is that in the future Congress may enact laws, or federal agencies may adopt regulations, so as to comprehensively govern greenhouse gas emissions and that such laws or regulations might preempt certain aspects of state common law tort claims. Until Congress, the president, or a federal agency so acts, however, the Mississippi common law tort rules questions posed by the present case are justiciable, not political, because there is no commitment of those issues exclusively to the political branches of the federal government by the Constitution itself or by federal statutes or regulations.”
The panel particularly disapproves the decisions of the New York and California federal district courts. It notes that the New York decision had already been reversed by the Second Circuit. Moreover, “[t]hose decisions are legally flawed and clearly distinguishable from the present case,” because they supposedly misread key Supreme Court authority (especially Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 847 (1984)), and because those cases sought injunctive relief.
I have not done the full opinion justice. One thought: if anything might prompt Congress to regulate the greenhouse gas field preemptively, it would be the peril of having an incensed Mississippi jury decide the issue instead.