Can you sue over climate change? Yes and no.

An appeals court has ruled that residents and land owners along the Mississippi Gulf Coast can sue energy and chemical companies claiming their greenhouse gas emissions contributed to global warming, caused sea levels to rise and added to the intensity of Hurricane Katrina.
The decision by the 5th Circuit late last week reverses a lower court finding in the case of Ned Comer v. Murphy Oil USA, et. al., (Case No. 07-60756).
By no means does this mean the Gulf Coast plaintiffs are on their way to a clear victory. It just means they can get their day in court of the issue on these grounds.
The attorneys at Pillsbury Winthrop note:

” The plaintiffs sought compensatory and punitive damages based on Mississippi common law precedent and the provisions of the Mississippi Constitution, and they argued they had standing to litigate these claims based on the 2007 decision of the United States Supreme Court in Massachusetts v. EPA. The Court held that the states had standing to seek review of a decision by the EPA not to regulate carbon dioxide emissions, and that CO2 is a pollutant as defined by the Clean Air Act, and could be regulated as such provided that EPA makes the appropriate finding that its emissions are an “endangerment” under the law, and there was a plausible link between man-made emissions of greenhouse gases and global warming. While allowing the claims based on private and public nuisance, negligence and trespass to continue, the Appeals Court dismissed the claims based on allegations of unjust enrichment, fraudulent misrepresentation and civil conspiracy.”

But the incremental victory for the storm victims in this case comes after a Sept. 30 decision by the U.S. District Court for the Northern District of California that dismissed a federal common law nuisance claim filed by members of the Inupiat Eskimos living in a village near the Arctic Circle. They claimed emissions by 24 energy companies contributed to global warming and diminished the Arctic sea ice that protects the village from winter storms and coastal erosion that is forcing the town to relocate. That case is Native Village of Kivalina v. ExxonMobil Corporation, et al., (Case No. C 08-1138 SBA).
Again the Pillsbury guys note:

“Here the court ruled that the complaint must be dismissed as a non-justiciable claim under the political question doctrine of the Supreme Court’s 1962 decision in Baker v. Carr. In doing so, the court took issue with a contrary ruling of the Second Circuit Court of Appeals in Connecticut v. American Electric Power, decided on September 21, 2009. In addition, the court held that the plaintiffs failed to adequately establish that they have standing to pursue these claims, failing to show that there was any connection between their alleged damages and the defendants’ conduct.

That issue of “political question doctrine” essentially means the court thinks this is a dispute that a federal court simply can’t, or shouldn’t, decide because it needs to be resolved instead by Congress or the President. So it’s a punt back to lawmakers.
Seems kind of odd, doesn’t it, to have a San Francisco court throw out a climate change case and the New Orleans/Gulf Coast court to uphold another?
“To say the least, it’s a surprise,” said Tracy Hester, a partner in Bracewell & Guiliani’s energy and environment practice.
It was widely expected the 5th Circuit would uphold the trial court’s decision to dismiss the nuisance lawsuits on “political question” grounds, Hester said.
Skaaden Arps did some deep thinking on the topic, as do the folks at Bracewell & Guiliani.

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