Global Warming Lawsuit to Proceed

In a surprising decision, the 5th U.S. Circuit Court of Appeals has held that private property owners in Mississippi can continue with their global warming lawsuit against oil, coal and chemical companies.

The plaintiffs say the companies' emissions of greenhouse gases contribute to global warming and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs' private property, as well as public property they use.

The 5th Circuit reversed a lower court's decision that the property owners lacked standing under Article III of the U.S. Constitution to bring the lawsuit.

The appeals court said the property owners had standing to bring their nuisance, trespass and negligence claims because their injuries were traceable to actions by the defendants that contributed to greenhouse gas emissions and global warming.

The appeals court dismissed the plaintiffs' unjust-enrichment, fraudulent-misrepresentation and civil conspiracy claims.

The panel also reversed the U.S. District Court for the Southern District of Mississippi's ruling that the issues in the case raise policy questions best left to the executive and legislative branches of the government.

Until Congress, the president or a federal agency acts to govern greenhouse gas emissions, the appeals court said, Mississippi's common tort law rules questions posed by this case.

Last month the 2nd Circuit reinstated a public nuisance lawsuit brought by eight states and New York City aimed at reducing greenhouse gas emissions from six large coal-burning utilities.

Both that case and the Mississippi property owners' lawsuit had been languishing on appeal and were decided by the 2nd Circuit and 5th Circuit within weeks of each other.

In this case residents and owners of land and property along the Mississippi Gulf Coast filed a class action in federal court, seeking compensatory and punitive damages for property damage. The named defendants included Murphy Oil, Exxon Mobil Corp. and Duke Energy Corp.

The plaintiffs allege that the greenhouse gas emissions emitted by the defendants have substantially increased the frequency and intensity of hurricanes, doubling the frequency of Category 4 and 5 hurricanes over the past 30 years.

The complaint said Hurricane Katrina developed into a "cyclonic storm of unprecedented strength and destruction, fueled and intensified by the warm waters in the Atlantic Ocean, Caribbean Sea and the Gulf of Mexico, all of which were a direct and proximate result of the defendants' greenhouse gas emissions."

U.S. District Judge Louis Guirola Jr. dismissed the case in an oral decision in response to the defendants' argument that the plaintiffs lacked standing to assert their claims. He said the property owners failed to prove that the defendants' actions were a proximate cause of their injuries.

The plaintiffs appealed to the 5th Circuit, which reversed.

The panel explained that because this is a diversity case involving state common-law rights of action, the plaintiffs must satisfy both state and federal standing requirements. The court said the plaintiffs easily satisfied Mississippi's "liberal standing" requirements.

Citing the U.S. Supreme Court decision in Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), the appeals court also found that the landowners satisfied the federal standing requirements for their nuisance, trespass and negligence claims.

In the high court held that Massachusetts and other states had standing to challenge the EPA's decision not to regulate the emission of greenhouse gases.

The 5th Circuit said that in the high court accepted the link between manmade greenhouse gas emissions and global warming.

As for whether the subject of the lawsuit is a policy decision best left to the federal or legislative branch, the 5th Circuit said the only "issues" in this case are those inherent in the litigation of the plaintiffs' Mississippi common-law-tort claims for damages.

No act of Congress has preempted state law with respect to global warming, the 5th Circuit said.

"Even if Congress does eventually enact a comprehensive federal law concerning greenhouse gas emissions, it might very well preserve state common-law remedies," the appeals court concluded.

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