Negligence In The Air: International Greenhouse Gas Emissions Litigation

Originally published in New York Law Journal, January 21, 2010

On Oct. 16, 2009, the U.S. Court of Appeals for the Fifth Circuit held that private plaintiffs—a putative class of residents and owners of land and property along the Mississippi Gulf Coast—could proceed with claims against certain U.S. energy companies based on an allegation that those defendants were responsible for greenhouse gas emissions that contributed to global warming, which, in turn, increased global surface air and water temperatures, which, in turn, increased the strength and damage caused by Hurricane Katrina when it struck the coast of Mississippi on Aug. 29, 2005. In doing so, the Fifth Circuit reversed the judgment of the District Court for the Southern District of Mississippi dismissing plaintiffs' claims on standing and political question grounds.

The case in question, Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), came only a few weeks after the decision of the U.S. Court of Appeals for the Second Circuit in Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009). In that case, eight states (including New York), the City of New York and three U.S. land trusts (the Open Space Institute, Open Space Conservatory and the Audubon Society of New Hampshire) sued six U.S. electric companies operating in 20 states seeking abatement of their alleged contribution to the public nuisance of global warming. There, the Second Circuit reversed the judgment of the District Court for the Southern District of New York, which had dismissed the case on political question grounds.

While both cases concern claims by U.S. plaintiffs against U.S. defendants for damages suffered in the United States, nothing in the logic of these decisions would limit their holdings to domestic victims, actors or territory. As a result, the decisions could have far-reaching international implications. This is because global warming is just that—global. Greenhouse gas emissions generated in one country flow across national boundaries with ease and mix with the greenhouse gas emissions generated by other actors in other countries, and their impact—rising temperatures and sea levels and the resulting harm—could be felt anywhere.1

The result may be a wave of international climate change litigation in the U.S. courts: parties injured by the consequences of global warming anywhere would, under Comer, have standing to bring claims against U.S. energy companies and foreign energy companies subject to personal jurisdiction in the United States that emit greenhouse gases.

'Comer'

In Comer, plaintiffs sued defendants for public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. Defendants moved to dismiss plaintiffs' claims on three grounds: (i) lack of standing; (ii) the political question doctrine; and (iii) plaintiffs' failure to allege facts sufficient to plead proximate causation. The district court granted the motion on the first two grounds and declined to reach the third. On appeal, the Fifth Circuit reversed the judgment of the district court, finding that the plaintiffs had standing to assert some of their claims (nuisance, trespass and negligence), and that these claims did not raise nonjusticiable political questions. The court did not reach the ground for dismissal not relied upon by the district court, but remanded the case to the district court to consider that issue.2

In addressing standing under federal law,3 the Fifth Circuit distinguished two classes of claims advanced by plaintiffs: first, those claims (nuisance, trespass, negligence) that relied on an allegation of a causal connection between defendants' greenhouse gas emissions, global warming, rising sea levels, the increased strength of Hurricane Katrina, and the damages suffered by plaintiffs; and second, those claims—unjust enrichment...