Jonathan B. Sokol

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Litigation Update – Fifth and Second Circuits Reverse Dismissal of Private Party Climate Change Lawsuits

Twice in recent months, federal appeals courts have opened the door to climate change damage claims by private parties against companies that contribute to global warming.

On October 16, 2009, the Fifth Circuit Court of Appeals in Comer, et al. v. Murphy Oil USA, et al. held that residents and owners of lands and property along Mississippi Gulf Coast could assert damage claims from Hurricane Katrina against various oil, energy and chemical companies. The plaintiffs alleged the defendants’ operations caused the emission of greenhouse gases that contributed to global warming causing a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ property. The plaintiffs seek to recover damages based on claims for public and private nuisance, trespass and negligence. The trial court granted the defendants’ motion to dismiss the action, finding that the plaintiffs lacked standing to assert their claims and that their claims presented non-justiciable political questions. The appellate court reversed the trial court, which threw out plaintiffs’’ claims and upheld their right to proceed with their claims.

In September, the Second Circuit Court of Appeals held in State of Connecticut, et al. v. American Electric Power Company, Inc. that several states, the City of New York and three private land trusts could assert nuisance claims against several power companies to force them cap and then reduce their carbon dioxide emissions. The Second Circuit also reversed the lower court’s dismissal of plaintiffs’ claims.

The Ninth Circuit Court of Appeals (the federal appellate court that hears appeals from the district courts in California) will have the opportunity to address their issues in Native Village of Kivalina v. Exxon Mobil Corporation, et al. In that case, the United States District Court for the Northern District of California dismissed an action filed by the Eskimo Village of Kivalina against 24 oil, energy and utility companies seeking damages under nuisance law based on the defendants’ alleged contribution to global warming impacts, which plaintiffs contend have resulted in erosion of their village that will require relocation.

These cases are just the first wave of challenges that private parties asserting climate change claims will have to overcome. Other substantial issues will include whether a plaintiff can show a causal connection between a defendant’s greenhouse gas emissions and the specific harm suffered by the plaintiff.