On October 16, 2009, in a lawsuit brought by owners of property along the Mississippi Gulf coast that sustained damage from Hurricane Katrina, the U.S. Court of Appeals for the Fifth Circuit held that the plaintiffs have standing to assert public and private nuisance, trespass and negligence claims against the defendants who caused the emission of greenhouse gases which are alleged to have ultimately added to the ferocity of Hurricane Katrina. Further, the Fifth Circuit determined that such claims are justiciable and do not present a political question. Comer, et al. v. Murphy Oil USA, et al., No. 07-60756 (5th Cir. Oct. 16, 2009). (Click here for a copy of the Court’s opinion).

The plaintiffs filed a putative class action against various corporations alleging that the defendants’ operation of energy, fossil fuels, and chemical industries in the U.S. caused the emission of greenhouse gasses that contributed to global warming that in turn caused a rise in sea level and added to the strength of Hurricane Katrina, which combined to destroy their property. The plaintiffs assert claims for public and private nuisance, trespass, negligence, unjust enrichment, civil conspiracy and fraudulent misrepresentations and seek compensatory and punitive damages.

The defendants moved to dismiss the lawsuit on the grounds that the plaintiffs lacked standing to assert their claims and that the plaintiffs’ claims presented nonjusticiable political questions. The district court granted the motion dismissing the claims, stating that “adjudication of Plaintiffs’ claims in this case would necessitate the formulation of standards dictating, for example, the amount of greenhouse gas emissions that would be excessive and the scientific and policy reasons behind these standards. These policy decisions are best left to the executive and legislative branches of the government….”

The plaintiffs appealed the district court’s decision. In reviewing the district court’s decision, the Fifth Circuit determined that the plaintiffs have standing to assert their public and private nuisance, trespass and negligence claims and that none of these claims presented nonjusticiable political questions.

In reaching its opinion, the Court first concluded that these three claims satisfied the constitutional minimum standing requirements because “[t]hese state common-law tort claims, in which plaintiffs allege that they sustained actual, concrete injury in fact to their particular lands and property, can be redressed by the compensatory and punitive damages they seek for those injuries.” The Fifth Circuit then considered whether these claims presented a nonjusticiable political question, and held that “because those claims do not present any specific question that is exclusively committed by law to the discretion of the legislative or executive branch, we hold that they are justiciable.” The Fifth Circuit further noted that whether the defendants are liable to the plaintiffs in damages under these common law torts are justiciable “because they plainly have not been committed by the Constitution or federal laws or regulations to Congress or the president.” Finally, the Fifth Circuit held that the state law claims were properly dismissed for standing reasons.