The United States Court of Appeals for the Fifth Circuit yesterday agreed to rehearing en banc in Comer v. Murphy Oil, the case in which residential property owners sued utility, mining, oil, and chemical companies claiming their CO2 emissions caused global warming, which in turn caused Hurricane Katrina.  The suit sought money damages and injunctive relief under a common law tort theory. 

The case was initially brought before the United States District Court for the Southern District of Mississippi, which dismissed the case on jurisdictional grounds.  According to the District Court, the suit raised a political question that should not be resolved by the judicial branch of government.  The District Court also ruled that the plaintiffs lacked standing to bring the suit.

In October of 2009, however, a three-judge panel of the Fifth Circuit reversed the District Court on both issues and ruled that the case could proceed.  Yesterday, the full Fifth Circuit vacated the panel decision and ruled that it would itself consider the appeal from the District Court.  It directed the parties to file briefs in March and April and said that it would hold oral argument in May.  The fact that the full court will now consider the appeal does not necessarily mean that it will uphold the District Court opinion.  Nevertheless, grants of rehearing en banc in the federal courts of appeal are rare.

The Comer case is one of three climate change tort lawsuits now in the courts.  In the other two cases, the Southern District of New York in the Connecticut v. AEP case and the Northern District of California in the Kivalina case also dismissed the lawsuits on jurisdictional grounds.  The Second Circuit, however, on review of Connecticut v. AEP, overturned the District Court on similar grounds as in the Fifth Circuit decision.  The Ninth Circuit has not yet issued a decision on review of the Kivalina decision.  Thus, prior to yesterday’s action in the Fifth Circuit, both federal courts of appeals that had considered the matter had ruled that plaintiffs could sue in tort to redress injuries allegedly caused by CO2 emissions. 

A Petition for Reconsideration En Banc is also pending in the Second Circuit.  Given the importance of the legal issues involved, and given the potential for a split in the circuit courts on the issue, the prospect of the Supreme Court ultimately taking the case on certiorari seems to be a distinct possibility. 

The Fifth Circuit decision to rehear the case is a highly significant development in the field of climate change law, and its effects may reverberate in the climate change debate now taking place in Washington.  The decision is also an historic opportunity for American industry to weigh in through amicus briefs at the rehearing stage and eventually in the Supreme Court on the future of environmental law.