Decision Expected in Comer

The Supreme Court is scheduled to consider whether to grant a petition for writ of mandamus in one of the first major climate change-related tort cases, In re Comer, No. 10-294, in conference on January 7, 2010. The Court likely will announce a decision by the morning of January 10 unless it decides to hold over the case. The Comer v. Murphy Oil USA case originated in Mississippi. In the aftermath of Hurricane Katrina, Gulf Coast property owners sued oil companies, coal companies, and chemical manufacturers for property damage alleging that the companies' greenhouse gas emissions contributed to global warming which in turn contributed to increased sea levels and the ferocity of Hurricane Katrina. The district court dismissed the case on political question doctrine and standing grounds, but the Fifth Circuit originally reversed holding that (1) plaintiffs had standing to bring their nuisance, trespass, and negligence claims; and (2) plaintiffs' nuisance, trespass, and negligence claims did not present non-justiciable political questions. The Fifth Circuit did not reverse the trial court's decision that plaintiffs did not have standing to bring their unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims. The Defendants sought rehearing en banc by the Fifth Circuit. Seven of the sixteen judges recused themselves leaving nine active judges, the minimum quorum needed for en banc review. Six of the nine judges voted to grant rehearing en banc. This grant had the effect, per court local rules, of vacating the initial Fifth Circuit decision. After the briefing began, an additional judge recused herself. The Fifth Circuit concluded (with some judges dissenting) that it no longer had a sufficient en banc quorum for the appeal to continue, and thus dismissed the case. With the original Fifth Circuit decision already vacated, this meant that the original trial court decision dismissing the case was reinstated. Plaintiffs then filed a petition for writ of mandamus. What happens next? If the Supreme Court decided to grant the petition in Comer, the Court would decide whether the Fifth Circuit should have dismissed the case after determining that it lacked a quorum to proceed with the rehearing en banc. This question is a constitutional and statutory one. Thus, if the Court takes the case, it would not be deciding any of the underlying climate change-related issues. Instead, those will be addressed in AEP v. Connecticut. AEP is one of the other two major climate change-related tort cases. At issue in AEP is whether states can seek redress under federal common law for the effects of climate change allegedly caused by anthropogenic (i.e., man-made) greenhouse gas emissions. The third case-Kivalina v. ExxonMobil, in which an Inupiat Eskimo village sued twenty-four oil, coal, and electric utility companies, alleging that their emissions have contributed to global warming and thereby caused Arctic sea ice to diminish-is still pending on appeal in the Ninth Circuit. Even though the questions before the Supreme Court do not directly relate to the underlying climate change allegations, a decision to take the case still could have some impact on the future of climate change litigation. If there is a narrow ruling in AEP, it is possible that Comer could still proceed and address additional issues. AEP will address the application of the political question doctrine, displacement of federal common law, and standing as it relates to the allegations of states, cities, and three private groups that six companies' plants are creating a nuisance and thus their GHG emissions should be capped. Comer, by contrast,is not limited to nuisance. Comer relates to a multitude of sources whereas AEP focuses on a more limited set- this could impact the judicially manageable standards prong of the political question doctrine analysis. Comer has a set of private plaintiffs, potentially differentiating the standing analysis from AEP primarily involving states. Depending on the breadth of any Supreme Court ruling in AEP, a return trip to the Court might be necessary in other cases. If threshold issues are surmounted, AEP and Comer also present different causation scenarios. Comer has the most attenuated chain of events in support of causation of the three pending climate tort cases.

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