Environmental -- 2013

Comer v. Murphy Oil U.S.A.   (5th Circuit)

Whether effects of global warming give rise to public nuisance suits under state law

This case alleges that the emissions of greenhouse gases from various energy and manufacturing companies led to a stronger Hurricane Katrina than might have otherwise occurred, and the companies should pay the damages. It was dismissed in litigation in 2010 summarized here.

The plaintiffs filed a new suit, and the trial court dismissed it. On appeal to the Fifth Circuit, the NAM and other groups filed an amicus brief opposing any common law cause of action for harms caused by weather events allegedly caused by climate change. The courts are not the place to make policy judgments about emissions policies for individual defendants, becoming a kind of super EPA. All the most recent Supreme Court and appellate court decisions reject this kind of liability, since EPA is already regulating greenhouse gases.

On May 14, 2013 the Fifth Circuit affirmed the district court’s rejection of plaintiffs’ claims based on the doctrine of res judicata, which holds that once a valid judgment decides a case, that decision shall stand. The case followed a complicated procedural history. The trial court decision rejecting the plaintiffs’ claims was up for an en banc rehearing by the Fifth Circuit. However, without a majority of the Circuit’s judges available to hear the case, quorum was not met and the case was not reheard. Plaintiffs then sought a writ of mandamus from the Supreme Court, which was denied. Then the plaintiffs asserted that there was not a final decision on the merits, and therefore that their claim was not barred by res judicata. The Fifth Circuit disagreed and upheld the trial court’s decision to bar the claims. At no point was the trial court’s final judgment disturbed nor was there was a decision on the merits.

Related Documents:
NAM brief  (September 28, 2012)


Environmental -- 2010

Comer v. Murphy Oil U.S.A.   (5th Circuit)

Whether global warming lawsuit is a political question

The NAM and other organizations supported an appeal of an adverse decision by the U.S. Court of Appeals for the Fifth Circuit in a global warming public nuisance case. The plaintiffs, Mississippi residents and property owners, alleged that the emissions from more than 150 energy and manufacturing companies increased global warming and contributed to the severity of damages resulting from Hurricane Katrina. Our brief in support of the appeal argued that the plaintiffs' theory of liability would dramatically expand tort law beyond anything ever recognized because of the tenuous link between the alleged conduct and the alleged harm. In addition, this case involves a complex regulatory matter requiring the balancing of economic, environmental and international interests, and is constitutionally the domain of the political branches of government, not the courts.

The trial court had dismissed the case on these grounds, but a three-judge panel of the Fifth Circuit reversed, allowing the case to proceed. The NAM and the defendants wanted all the judges of the Fifth Circuit to review this ruling. That court did agree to review the 3-judge ruling, and arguments were scheduled for May 24, 2010.

On May 10, the NAM filed an additional brief arguing to a larger group of judges that the goal of this lawsuit is less to obtain compensation than to achieve the regulation of greenhouse gas emissions through litigation. We described how plaintiffs have tried to define a "nuisance" broadly to encompass the kind of claims that have largely been rejected by other courts. In addition, these kinds of political questions should be handled as a public policy debate, not as an adversarial proceeding in court.

Subsequently, the court announced that another judge had been recused from the case, destroying the quorum. On May 28, the court dismissed the appeal, and since it had previously vacated the 3-judge panel's ruling, the trial court's decision dismissing the lawsuit stands. This very unusual procedural development means that the appellate ruling that the NAM opposed was nullified without a formal opinion from a majority of the judges. The case was appealed to the Supreme Court, which declined to review it.

The plaintiffs later filed a similar suit, but the district court dismissed it because the claims had already been dismissed in the first case. In addition, the judge found that the parties had no standing to sue, since they cannot show a sufficient connection between the defendants' emissions and the plaintiffs' property damage. The court also found the claims non-justiciable political questions that have no "judicially discoverable and manageable standards for resolving" them, and because these policy determinations are entrusted to the EPA.

Related Documents:
NAM brief  (May 7, 2010)
NAM brief  (December 4, 2009)


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