On October 16th, the Fifth Circuit Court of Appeals became the second U.S. Court of Appeals to permit “public nuisance” suits to address claims arising from climate change.   Following the Second Circuit’s September 21st, decision in Connecticut v. AEP, which found Connecticut and several other states had the right to bring “public nuisance” claims against certain coal-fired utilities to stem climate change, the Fifth Circuit in Comer v. Murphy Oil permitted private party plaintiffs to pursue a “public nuisance” suit against the chemical, oil and gas, and utility industries for claims involving climate change and alleged damages caused by Hurricane Katrina.  Given the green light for private tort actions, Comer v. Murphy Oil may be the most significant climate change case to date.

The Comer Complaint

 In Comer, plaintiffs filed a putative class action against a wide range of energy, fossil fuel, and chemical companies, claiming they (a) generated greenhouse gases (b) which caused global warming, (c) which increased global surface air and water temperatures, (d) which in turn caused a rise in sea levels and strengthened Hurricane Katrina, and (e) which all then combined to destroy their property and public property useful to them.  The plaintiffs’ putative class action asserted claims for compensatory and punitive claims based on Mississippi common law actions of public and private nuisance, trespass, negligence, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy.  Initially filed as a suit against the insurance industry, the Comer plaintiffs amended their complaint several times to add additional industries as defendants.

District Court ‘s Dismissal of all Claims

 On August 30, 2007, in a two-page order, Judge Louis Guirola, Jr. dismissed all of the plaintiffs claims based on standing.  But in his ruling from the bench, Judge Guirola also held the plaintiffs’ claims were also barred by the “political question” doctrine, the idea that Congress and state legislatures are better equipped to make decisions involving climate change, especially given the national and international implications and policy decisions involved.  

The Fifth Circuit’s Decision to Permit “Public Nuisance” Claims

 In its decision, the Fifth Circuit reversed Judge Guirola’s decision, in part.  For the Fifth Circuit, plaintiffs had standing to assert their public and private nuisance, trespass, and negligence claims.  Reviewing 200 years of standing law, the Court embraced the standing analysis followed by the Supreme Court in its 2007 Massachusetts v. EPA decision, which accepted as plausible the causal link between industrial emissions and climate change.  In fact, because EPA had not regulated greenhouse gas emissions, motor vehicles emitted more greenhouse gas emissions than they would otherwise have emitted, which damaged state lands through rising sea levels and increased storm intensity.  Finding the legal question was only whether the defendants’ emissions could be “fairly traced” to climate change, that standard was met under the facts pled, and for this reason the plaintiffs had standing to bring the state tort claims, the Court concluded.

The Fifth Circuit’s Rejection of Remaining Counts

As for the unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims, the Fifth Circuit took a more restrictive approach, holding the plaintiffs did not satisfy the “prudential” element of standing.  The source of these claims, the Court reasoned, was the alleged failure of government to properly regulate and enforce environmental laws, caused by the defendants’ allegedly false marketing campaign and wrongful dissuasion of government regulation, which enabled the defendants to increase their prices and profits.  The Court found these interests would involve “every purchaser of petrochemicals and the entire American citizenry” because the allegations involved an alleged massive fraud on the political system resulting in the failure of environmental regulators to impose proper costs on the defendants.  These generalized grievances and political complaints were better left to the representative branch, the Court determined.

Why Tort Lawsuits Should Not Be Dismissed as “Political Questions”

Turning to the “political question” issue, the Fifth Circuit reviewed decades of Supreme Court jurisprudence.   Noting the bar on deciding political questions was a limited exception to a general rule, the Fifth Circuit found no support for the idea that a federal court could not address state court actions involving statutory construction and constitutional interpretation.  Observing that courts should not avoid “politically charged cases,” the Court found climate change was no different than many of the nation’s difficult issues in the past.   Noting that it arrived at its own conclusion without reference to the Second Circuit’s decision in Connecticut v. AEP, the Fifth Circuit found the Second Circuit’s analysis “consistent” with its conclusions that the “political question” doctrine did not prevent adjudication of the public nuisance claims involving climate change.  With its decision on standing, the Fifth Circuit remanded the case to the district court for further proceedings. 

Given the implications, the defendants are likely to seek en banc review by the Fifth Circuit, and, if that fails, ultimately seek certiorari to the Supreme Court.  But in the event the appellate routes fall short, the factual battle on whether industrial emissions caused Hurricane Katrina will begin in a Gulfport, Mississippi courtroom.
Distinctions between Connecticut v. AEP and Comer v. Murphy Oil

 Although the Second and Fifth Circuits agree “public nuisance” actions can be used to address climate change, the cases differ in several key ways.  Unlike Connecticut v. AEP, which involves a stand-alone “public nuisance” claim by states and municipalities against the utility industry, Comer involves a putative class action with public and private nuisance and other tort claims by private property owners against a wide range of industries. 

And unlike Connecticut v. AEP, which was largely about forcing emission controls on utilities, Comer is about money damages.  The goal in Comer is cash, in other words, not air quality controls.

 Still another difference between the two cases is more technical, but perhaps equally as important for the long term.  In Connecticut v. AEP, the states brought federal common law “public nuisance” claims, but in Comer, at issue were state common law “public nuisance” claims.  For the Second Circuit, because EPA had not regulated greenhouse gases, the states could rely on federal common law of public nuisance.  Left open in the court’s decision was the question of whether federal regulation of greenhouse gases would displace federal common law. 

But in Comer, because the public nuisance claims were brought under Mississippi state common law, it is unclear whether EPA’s proposed regulation of greenhouse gases would preempt the Mississippi state common law claims.  Legally, the extent that any federal greenhouse gas regulations would preempt state common law claims would depend on the actual language and scope of the regulations themselves.  Although nothing is clear in climate change law today, EPA’s promulgation of greenhouse gas regulations may displace federal common law, but may not completely preempt all state common law clams. 

Future Questions

With the Comer decision, two federal Circuit Courts now hold that plaintiffs have the legal right to file “public nuisance” suits to address climate change in the United States.  Although it is too early to tell, these holdings—if left unchanged—may reshape the entire legal landscape of air quality law, and perhaps environmental law, in the United States today.   If residential property owners in Mississippi can file tort claims against chemical companies in Virginia for their legally permitted air emissions in Virginia, the implications are far-reaching: just what is the purpose of a federal Clean Air Act, and just what are the legal protections afforded by complying with the Clean Air Act?  The Supreme Court may have to answer these questions.