Environmental Law

5th Circuit Allows Katrina Victims to Sue Over Global Warming

A federal appeals court is allowing a suit by victims of Hurricane Katrina who claim oil, coal and chemical companies contributed to global warming, increasing the ferocity of the hurricane that damaged their property.

The New Orleans-based 5th U.S. Circuit Court of Appeals ruled that victims of Hurricane Katrina have standing to sue oil, coal and chemical companies over global warming, and the suit presents a justiciable question. The decision (PDF) is Comer v. Murphy Oil USA.

The 5th Circuit ruled on Friday, according to the Wall Street Journal Law Blog and a Greenwire story published by the New York Times. The appeals court allowed the plaintiffs to pursue damages for nuisance, trespass and negligence, but tossed their claims for unjust enrichment, fraudulent misrepresentation and civil conspiracy.

The conspiracy and fraudulent misinformation claims had alleged the defendants knew of the dangers of global warming but disseminated misinformation to mislead the public. The 5th Circuit said the plaintiffs’ claims on those counts were a generalized grievance that is better left to the political branches of government.

In allowing the suit to move forward, the 5th Circuit cited a September opinion by the New York-based 2nd U.S. Circuit Court of Appeals that allowed eight states to sue power companies for a cap on greenhouse emissions.

The 2nd Circuit ruling in Connecticut v. AEP said there was no need for courts to defer to Congress and allowed the nuisance suit. The ruling overturned a trial judge who had found the nuisance suit was nonjusticiable under the political questions doctrine.

Bruce Myers, a senior attorney with the Environmental Law Institute, told Greenwire, “We now have rulings out of the 2nd Circuit and the 5th Circuit that, together, represent mounting legal authority that the Constitution is not a barrier to climate tort litigation.”

Lawyers told the Wall Street Journal Law Blog and Greenwire that they expected the decisions to result in an uptick in global warming litigation. But Gilbert Keteltas, co-chairman of Howrey’s environmental, product and tort practice, told Greenwire that it’s far from certain that the global warming cases will be successful on the merits.

“We still don’t have any one of these cases in active litigation on the merits, and actually, the 5th Circuit took away one of the weapons the plaintiffs bar was counting on, which was the portion of the complaint that mimicked the tobacco litigation strategy that focused on conspiracy and fraud,” he said.

“I would be surprised if plaintiffs in both the 2nd and 5th circuits don’t at least try to seek en banc review,” Keteltas added.

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