In Comer v. Murphy Oil, the U.S. Court of Appeals for the Fifth Circuit reinstated the suit alleging global warming exacerbated damage caused by Hurricane Katrina.The court ruled that plaintiffs do have standing to assert cnuisance, trespass and negligence claims and that these claims did not represent nonjusticiable political questions. J. Russell Jackson, a partner with Skadden Law who defends companies’ products and advertising in trial and appellate courts, spoke to Public Nuisance Wire about the ramifications of this decision.
PNW: Why is the Comer decision important?
Jackson: This case is important because it is a class action for compensatory and punitive damages brought by private property owners. It was less surprising when the Second Circuit in AEP found that governments and municipalities had standing to sue to reduce emission levels of greenhouse gases. But the Fifth Circuit's Comer decision would seem to throw the courthouse doors wide open to suits brought by almost anyone to seek money from entities that they allege contributed to global warming.
PNW: What does the reversal mean for future cases dealing with climate change?
Jackson: If the Comer decision is allowed to stand -- and that's a big "if," since a petition for rehearing en banc is likely and the Fifth Circuit is renowned to be a pretty conservative court -- then further lawsuits for compensatory and punitive damages seem likely. People should note, however, that merely because a litigant is held to have "standing" to sue in federal court does not mean that he will be successful. These climate change cases present extraordinarily difficult issues of causation. As the federal district court in the recent Village of Kivalina decision noted, these greenhouse gases are alleged to have built up over hundreds of years from a wide variety of sources across the globe. That makes it awfully difficult to pin causation in fact and legal (or "proximate") cause on some arbitrarily-selected group of present-day defendants. Plaintiffs' counsel may have succeeded in getting a toe in the door to the federal courthouse, but they are right to be concerned that they may be thrown out of court on a motion to dismiss or a motion for summary judgment.
PNW: What other concerns do you have?
Jackson: One of my biggest concerns is that we appear poised to use the judicial system -- the most inefficient, expensive, and undemocratic regulatory tool of all -- as the primary means of retroactively deciding what should have been done decades ago, and yet no damage award will actually do anything to prevent the impacts of climate change that plaintiffs keep saying are coming. To have a court retroactively "tax" greenhouse gas emissions when they were perfectly legal at the time is fundamentally unfair and ultimately will impose on future American consumers extrarodinary burdens that they presently are unprepared to face. Moreover, the discovery costs, lawyers' fees, and wasted productivity associated with litigating these cases are unnecessary and will do nothing to solve the alleged problem. And they do nothing to deal with the responsibility that each consumer bears for his or her own historic "carbon footprint," as certain activists would term it. America's climate change policy should not be forged in closed chambers by men and women in black robes wielding wooden gavels; it should be publicly debated, analyzed, and adopted by the politcally-accountable branches of government.
PNW: What do you think was the court's motivation for this decision?
Jackson: I think the Fifth Circuit panel felt unduly hamstrung by the Supreme Court's discussion of the causal chain alleged in Massachusetts v. EPA. The plaintiffs here are not governmental entitites and, as private plaintiffs suing for damages, they merit no lenient standard. The district court in Village of Kivalina demonstrated that even in public nuisance cases involving alleged water pollution, if the sources of pollution are too diffuse or the plaintiffs live too far downstream, they lack the sort of causal connection that makes their injury "fairly traceable" to the defendant's conduct, and thus they have no standing. That certainly is the case here, where the defendants' greenhouse gas emissions are alleged to have combined with other gases from other sources across the globe and over time to combine to trap heat in the atmosphere, which then allegedly impacted the strenth or ferocity of a hurricane. Just to say it is to show how convoluted the causation theory is.
PNW: Any last thoughts?
Jackson: Regardless of whether the Fifth Circuit rehears Comer en banc or not, it's important to note that the panel's opinion mentioned in more than one place that its conclusion that the "fairly traceable" requirement for standing had been met in no way meant that the complaint could survive a proximate cause challenge in a motion to dismiss or motion for summary judgment. Indeed, Judge Dennis made it plain that he would have affirmed a dismissal on such grounds. So anyone who tells you that the decisions in AEP and Comer mean that climate change cases will actually make it all the way to trial is incredibly naive or optimistic.
One other thing. I think it's important that the Fifth Circuit held that the private property owners had no standing to bring claims for damages based on so-called civil conspiracy to "conceal" the alleged dangers of global warming. These civil conspiracy and fraud claims are even further causally removed from the challenged conduct than the nuisance claims, and it was important to see the court recognize that and eliminate them from the litigation.
