Global Warming Litigation is Heating Up

Can the owner of property destroyed by Hurricane Katrina sue a manufacturer who allegedly contributed to global warming? Over the past 45 days, this question, or ones like it, have been answered by two different federal appellate courts with a resounding "Yes." The most recent such decision was issued by the Fifth Circuit Court of Appeals in Comer v. Murphy Oil USA, et al.

In Comer, the Court was confronted with whether residents and owners of land and property along the Mississippi Gulf coast had standing to sue more than a dozen energy, oil, coal and chemical manufacturers. Plaintiffs claimed that the defendants' operations in the United Stated caused greenhouse gas emissions that contributed to global warming, which in turn caused a rise in sea levels and global temperatures that added to the ferocity of Hurricane Katrina. Due to this claimed causal link, plaintiffs contended that defendants were liable for damages that occurred when Hurricane Katrina destroyed plaintiffs' private property. Defendants moved for dismissal, arguing that plaintiffs did not have standing to assert their claims and that the claims presented nonjusticiable political questions. The trial court agreed, and the case was dismissed.

On appeal, the Fifth Circuit overturned the trial court's dismissal of several tort claims, including negligence, trespass, and public and private nuisance. The Court reasoned that, in the early stages of litigation, "plaintiffs need not show to a scientific certainty that defendants' pollutants, and defendants' pollutants alone, caused the precise harm suffered by the plaintiffs," but only that "the pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs." In making this argument, the Fifth Circuit relied on a recent, similar decision by the Second Circuit. In that decision, published in September 2009, the Second Circuit overturned the dismissal of nuisance claims against five of the nation's largest utilities, each of whom emitted greenhouse gases that allegedly contributed to climate change. Both of these matters have since resumed in the trial courts, and are now currently proceeding.

Although plaintiffs in both matters will need to prove causation to prevail on their claims, these recent rulings set an important precedent for the handling of future climate change litigation. From a plaintiff's perspective, at least, there is now one less hurdle to clear when filing lawsuits against companies or industries that emit greenhouse gases. Absent legislation addressing these issues in the near future, it can be expected that the number of climate change lawsuits will only continue to rise.

If you would like further information about these issues or the legislative efforts that may affect them, please contact a member of the Green Industries Initiative at Ice Miller LLP.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.