LOUISIANA RECORD

NEW ORLEANS – The U.S Court of Appeals for the Fifth Circuit is set to issue its second opinion in a drawn out climate change case that pits landowners against energy companies.

The suit, which accuses a number of companies of contributing to global warming through greenhouse gas emissions, was originally filed in a Mississippi district court in 2005 just 22 days after Hurricane Katrina hit.

In the original filing, 14 plaintiffs sued eight named oil companies, 100 unnamed oil and refining companies and 31 coal companies. Through the course of the litigation, electric utilities and chemical companies have been added as defendants.

The plaintiffs claim that there is a causal relationship between the emissions, which increased the ferocity of Hurricane Katrina, and the resulting destruction of their property.

Multiple defendants in the suit moved for a dismissal, alleging that the plaintiffs lacked standing and that their claims presented nonjusticiable political questions.

A district court agreed and the case was dismissed in 2007 by Chief U.S. District Judge Louis Guirola Jr. of the U.S. District Court for the Southern District of Mississippi. The plaintiffs appealed to the Fifth Circuit.

In May 2010, a panel consisting of Circuit Judge W. Eugene Davis, Chief Judge Carl E. Stewart and Circuit Judge James L. Dennis, reversed in part and affirmed in part the district court’s dismissal.

Writing on behalf of the panel, Dennis explained that the plaintiffs had standing to assert their public and private nuisance, trespass and negligence claims.

The nuisance claims contended that the defendants “intentionally and unreasonably used their property to produce massive amounts of greenhouse gasses” injuring both the plaintiffs and the general public. They claimed that rising sea levels, a direct result of global warming, added to the strength of Hurricane Katrina and resulted in the destruction of both private and public property.

The trespass claim asserted that the emissions caused saltwater, debris, sediment and hazardous substances to enter and damage the plaintiffs property.

The negligence claim argued that the defendants breached a duty to conduct their business so as to avoid unreasonably endangering the environment, public health, public and private property and the citizens of Mississippi.

The appeals panel held that there is an accepted link between man-made greenhouse gas emissions and global warming. Citing the U.S. Supreme Court, they wrote that “Rising temperatures may contribute to the ferocity of hurricanes” and “global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming.”

The panel affirmed the dismissal of the plaintiffs’ unjust enrichment, civil conspiracy and fraudulent misrepresentation claims. These claims were primarily based on plaintiffs’ alleged injuries caused by defendants’ public relations campaigns and pricing of petrochemicals.

Dennis wrote that each of these claims “presents a generalized grievance that is more properly dealt with by the representative branches and common to all consumers of petrochemicals and the American public.”

The plaintiffs, hoping for a complete reversal, petitioned for a rehearing en banc. Seven of the (then) 16 circuit judges were disqualified from the case, but a majority of the remaining nine accepted the appeal, automatically vacating the original panel's decision.

After the rehearing had been granted “new circumstances arose that caused the disqualification and recusal” of one of the remaining nine judges. The quorum thus dissolved and the court dismissed the appeal. The panel's original decision had already been vacated, meaning that the district court’s dismissal was reinstated.

The plaintiffs re-filed their suit in May 2011, relying on a Mississippi statute that permitted refiling.

Guirola again dismissed the case in March 2012, holding that the case could not go forward as the doctrines of res judicata and collateral estoppel applied. The district court maintained that the plaintiffs had already had their day in court and their claims had been dismissed.

Guirola then reiterated his analysis for overturning, saying that the plaintiffs still lack standing and that the case presents nonjusticiable political questions.

The landowners again appealed to the Fifth Circuit.

Oral arguments were heard by Chief Judge Carl E. Stewart and Circuit Judges Rhesa H. Barksdale and Stephen A. Higginson on May 1.

The majority of the discussion centered on the res judicata issue.

New Orleans based attorney F. Gerald Maples, representing the plaintiffs, said the situation represents a “denial of due process” and that there was no final judgement in the case.

One member of the court acknowledged an unprecedented “procedural quagmire” surrounding the suit while defense attorney, Daniel P. Collins, maintained that there is no “fairness exception” in cases like this.

The oral arguments have been submitted and the Fifth Circuit is expected to publish an opinion in the case.

Case No.12-60291 Ned Comer, et al v. Murphy Oil USA Inc., et al.