John Nevius of Anderson Kill & Olick - Fifth Circuit Punts on Global Warming Case with En Banc Quorum Dismissal - Legal Limbo is Prolonged

    By John G. Nevius, Shareholder, Anderson Kill & Olick P.C.

On May 28, the U .S. Court of Appeals for the 5th Circuit punted in a most unusual manner in a closely watched global warming suit, Comer v. Murphy Oil, et al.  The case was brought by landowners devastated by Hurricane Katrina alleging that greenhouse gas emissions from energy and chemical companies contributed to global warming, caused sea levels to rise and added to the intensity of 2005 hurricane.

The 5th Circuit, gathered en banc to consider a 2007 decision by its own 3-judge panel that reinstated the suit, ruled that it didn't have a quorum of judges to hear an appeal, since several judges had recused themselves because of their personal losses caused by the hurricane and other ties to defendants. The court effectively invited the landowners and the companies to petition the U.S. Supreme Court to hear the case.

Comer v. Murphy Oil has been seen as an indicator of whether the federal courts will green-light nuisance suits based upon allegations of climate impact from greenhouse gas emissions.  The U.S. 2nd Circuit has allowed a similar suit brought by 8 states, including Connecticut, and the City of New York against a group of coal-burning energy-generating companies to proceed.   When the 5th Circuit panel reinstated the Comer suit, earlier dismissed in U.S. District court, that decision was viewed as agreeing with the 2nd Circuit's approach, taking some observers by surprise.

The 5th Circuit panel's decision relied upon the landmark 2007 Supreme Court case, Massachusetts v. EPA, which expressly recognized the potential impact on global weather patterns arising from emissions, including impacts such as more severe storms.  Since the 5th Circuit has now effectively recused itself, the case and the litigants are left very much in legal limbo that highlights the complexity of the issues and invites the Supreme Court to reconsider the ramifications of Massachusetts v. EPA.  

Some observers have criticized the federal courts for getting out in front of the executive and legislative branches on global warming issues.  In fact, the Political Question Doctrine was cited recently by the United States District Court for the Northern District of California as the basis for dismissing federal nuisance claims based upon air emissions brought by the Alaskan Village of Kivalina against a group of large energy companies. The 2nd Circuit suit is proceeding, however -- as is the Comer case, albeit tenuously -- despite the fact that plaintiffs face numerous substantial hurdles, including having to prove that the emissions complained of caused the specific harm alleged.

The Connecticut case in the 2nd Circuit, the 5th Circuit Comer case and the case involving the Village of Kivalina (and related coverage litigation) will continue to be followed closely as our society grapples with climate change and the alleged impact of human activity on the ecology of the planet.

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John G. Nevius is a shareholder in the New York office of Anderson Kill & Olick, P.C., a registered Professional Engineer and an Adjunct Professor at Pace University School of Law, where he teaches a class on Climate and Insurance.  Mr. Nevius has successfully resolved and litigated numerous insurance coverage actions on behalf of policyholders and provides advice and technical expertise on a wide range of environmental and insurance matters. Please call or email if you would like to speak to John about global warming liability and attendant insurance coverage issues.