Comer Climate Change Nuisance Action Re-filed in Southern District of Mississippi

In the latest of a string of interesting twists and turns, Comer v. Murphy Oil USA, Inc., (S.D. Miss.), a climate change case brought under Mississippi common law that had been dismissed in 2007, was re-filed by the plaintiffs on May 27, 2011 and apparently survived the June 20, 2011 decision in American Electric Power (AEP) v. Connecticut. In AEP, the United States Supreme Court held that federal common law claims are displaced by the Clean Air Act and EPA's regulation of GHGs. However, because the Supreme Court did not address whether state law claims are preempted by the Clean Air Act and EPA's regulation of GHGs, the Comer case apparently can proceed.

In Comer, a group of plaintiffs whose properties were damaged by Hurricane Katrina filed in 2005 a class action lawsuit against oil companies, coal-fired utilities, coal mining companies, and chemical manufacturers, alleging that their operations emitted greenhouse gases that caused climate change and increased the intensity of Hurricane Katrina. The plaintiffs asserted state common law nuisance, negligence, and trespass claims against the defendants and sought compensatory and punitive damages. In 2007, the district court dismissed the case for lack of standing, finding that the plaintiffs' claims were non-justiciable on political question grounds. The plaintiffs appealed to the Fifth Circuit, which reversed the district court in a decision issued by a three-judge panel, holding that the plaintiffs did have standing to assert their nuisance, negligence, and trespass claims because they alleged actual, concrete properties injuries, the alleged injuries were fairly traceable to the defendants' actions (citing Massachusetts v. EPA), and the alleged injuries could be redressed by monetary damages. The Comer court also held that the claims did not present non-justiciable political questions because they were not yet exclusively committed to the political branches of government through federal regulation or statute. (The Supreme Court in AEP v. Connecticut split 4-4 on this issue, so it remains to be decided by the lower courts.)

Following the Fifth Circuit's October 16, 2009 decision in favor of the plaintiffs, the defendants applied to the Fifth Circuit for a rehearing by the full court, which was granted on February 26, 2010. The October 16, 2009 decision was vacated due to the grant of rehearing pursuant to one of the Fifth Circuit's local rules. Then, on May 28, 2010, the court issued an order indicating that it no longer had the minimum number of judges necessary to issue a decision due to the disqualification of one of the judges. Because the court ruled that it could not rehear the case, and had no authority to reinstate the vacated decision, the district court's ruling remained in place. The legal basis for this decision was challenged by three judges in vigorous dissents. (The court's analysis of federal appellate court procedures, while intriguing, is beyond the scope of this posting.)

The plaintiffs then filed a petition with the Supreme Court to require the Court of Appeals to issue a decision, which was denied. In the new complaint, the plaintiffs claim they properly re-filed their lawsuit pursuant to a Mississippi statute that allows actions dismissed on procedural grounds to be re-filed within a year of dismissal. The new complaint raises the same state common law negligence, trespass, and nuisance claims as the original complaint, and also alleges a federal common law nuisance claim. We expect the Comer plaintiffs' federal common law claim will be dismissed based on the Supreme Court's AEP v. Connecticut decision. However, the Supreme Court left undecided the issue of whether the plaintiffs have standing, and whether their state law claims are preempted by federal law.