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May: A Tough Month for Climate Plaintiffs, But Odd Fifth Circuit Decision Leaves the Door Ajar

June 13, 2013 posted by Eric Christensen

In May, the federal courts rejected two more major cases in which plaintiffs sought damages from large emitters of greenhouse gases based on claims of climate-caused property damage. As a result of the U.S. Supreme Court's action, one of the major theories espoused by plaintiffs -- federal common law nuisance -- now appears to be dead. The fate of other major theories, however, remains uncertain because a federal appeals court could not escape a procedural tangle and therefore failed to definitively address those theories. In the first case, involving the Native Village of Kivalina, Alaska, the Supreme Court denied a petition for certiorari filed by the plaintiffs, whose claim was earlier rejected by the U.S. Court of Appeals for the Ninth Circuit. As reported here previously, the Kivalina plaintiffs claimed that release of greenhouse gases has caused a significant decline of Arctic sea ice. Without the protection of sea ice, wave and storm damage from the Arctic Sea eroded the land underlying the Village. Under the plaintiffs' theory, greenhouse gas emitters are responsible for this property damage because greenhouse gases have caused the sea ice decline. The Ninth Circuit rejected Kivalina's claims, based on the federal common law of nuisance, concluding that federal common law has been displaced by the federal regulatory scheme under the Clean Air Act, which, as interpreted by the Supreme Court's 2007 opinion in Massachusetts v. EPA, reaches greenhouse gases as well as more traditional "criteria" pollutants. The Supreme Court's denial of certiorari appears to be the last gasp for climate lawsuits based on the federal common law. (Native Village of Kivalina v. Exxon Mobil Corp. et al. (Sup. Ct. Docket No. 12-1072). The result of the second case, involving damages claims from victims of Hurricane Katrina, is far less definitive. The case began simply enough, with a group of property owners filing a lawsuit against a large group of greenhouse gas emitters in the U.S. District Court for the Southern District of Louisiana. Basing their claims on a number of theories ranging from nuisance and trespass to negligence and civil conspiracy, the plaintiffs argued that greenhouse gases emitted by defendants contributed to the unusual severity of Hurricane Katrina, and defendants were therefore responsible for the property damage they suffered because of that storm. The District Court rejected these claims, finding that plaintiffs lacked standing and that their claims were not justiciable under the political question doctrine. Plaintiffs then sought relief in the U.S. Court of Appeals for the Fifth Circuit. In 2009, a three-judge panel of the Fifth Circuit reversed the District Court in part, concluding that plaintiffs had standing to pursue their nuisance, trespass, and negligence claims, and rejecting the District Court's conclusions that the claims are barred by the political questions doctrine. The defendants then filed a petition seeking en banc review of the panel's opinion. This petition resulted in a truly strange, possibly unique, procedural quagmire, ultimately rendering the Fifth Circuit unable to resolve the appeal. At the time the petition for en banc review was submitted, the Fifth Circuit had sixteen active judges eligible to participate in en banc review. Seven judges immediately recused themselves, leaving nine active judges, a bare quorum. Six of the nine remaining judges voted to rehear the appeal, setting the stage to decide the case en banc, but effectively vacating the panel opinion. But, after the petition for en banc review was granted, another judge recused himself, leaving the court without a quorum to review the appeal en banc. Five of the eight remaining judges therefore issued an order dismissing the appeal for lack of a quorum. Plaintiffs sought review of this decision in the U.S. Supreme Court, arguing that the Fifth Circuit was obligated under the Constitution to decide the appeal. The Supreme Court denied their petition for certiorari in 2011. Plaintiffs then refiled their case in the U.S. District Court, which again rejected the case, this time concluding that, in light of the Fifth Circuit's failure to act, the District Court's original opinion remained in effect and barred plaintiffs' lawsuit under principles of res judicata. In an opinion issued just a few days before the Supreme Court's rejection of the Kivalina appeal, the Fifth Circuit agreed. It concluded that the result of the Fifth Circuit's machinations was to vacate the three-judge panel's decision without replacing it with another Fifth Circuit decision. As a result, the District Court's opinion became the definitive ruling in the case. (Comer et al. v. Murphy Oil USA et al., 5th Cir. No. 12-60291). Ultimately, the Fifth Circuit's actions are rather unsatisfying. While the lawsuit filed by the Louisiana plaintiffs has been rejected, the state common law claims asserted by the plaintiffs have not been addressed definitively. This leaves the door open for different plaintiffs to pursue climate-based damage claims on these same theories. If you have any questions about the Court of Appeals opinion discussed in this post, climate policy, the utility industry, renewable energy development, or electric transmission, please contact a member of GTH's Energy, Telecommunications, and Utilities practice group or Environment & Natural Resources practice group. In addition, GTH's Appellate Practice Group has successfully pursued complex appeals in dozens of cases in both the state and federal courts. These practice groups are consistently recognized as among the best, both nationally and in the Pacific Northwest.