On October 16, 2009, the U.S. Court of Appeals for the Fifth Circuit joined the Second Circuit in allowing a climate change common-law nuisance case to proceed against emitters of greenhouse gases. In Comer v. Murphy Oil USA, Inc. et al., 585 F.3d 855 (5th Cir. 2009), rehearing petitions filed (Nov. 27, 2009), the defendants include more than 33 companies from various industries, including utilities, oil, gas, coal, and chemicals. As discussed in ourFall 2009 edition, the Second Circuit recently allowed such a lawsuit to proceed against a group of utility defendants based on a federal common-law public nuisance theory in Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009), rehearing petition filed (Nov. 5, 2009).

Meanwhile, the U.S. District Court for the Northern District of California dismissed common-law nuisance and other state law claims against those same industry segments in a suit brought by an Alaskan native village in Native Village of Kivalina v. ExxonMobil Corp., et al., No. 08-1138, 2009 WL 3326113 (N.D. Cal. September 30, 2009), appeal pending.

(Jones Day is counsel of record for Xcel Energy Inc. in Connecticut, Comer, and Native Village of Kivalina.)


In Comer, a group of Gulf Coast landowners brought a class action against a group of companies, arguing that the defendants were responsible for greenhouse gas emissions that caused a sea level rise and increased the severity of Hurricane Katrina. The plaintiffs, among other things, asserted nuisance, trespass, and negligence claims. Unlike the plaintiffs in Connecticut, the Comer plaintiffs sought millions of dollars in damages, not just injunctive relief.

In its decision on October 16, 2009, a three-judge panel of the Fifth Circuit overturned a lower court's dismissal of the case on political question and standing grounds and allowed Comer to proceed in the district court. The Comer court relied upon the U.S. Supreme Court's decision in Massachusetts v. EPA to find that the plaintiffs had adequately alleged that their injuries were caused by a condition--climate change--that was fairly traceable to the defendants' conduct. The court of appeals went on to find that the resolution of the case did not present a political question.

Like the Second Circuit in Connecticut, the Fifth Circuit framed the case as a simple tort suit between private plaintiffs, noting that the Second Circuit's reasoning was "fully consistent" with its own. Also like the Second Circuit, the Comer court looked to the historic use of nuisance litigation to resolve cross-border air and water pollution cases and found it to be an adequate tool to address alleged climate change-related injuries.


In Kivalina v. ExxonMobil, the Native Alaskan town of Kivalina sued a host of major energy companies and electricity providers, arguing that the emissions attributable to their fuels and power plants were contributing to a public nuisance, climate change. The Kivalina plaintiffs requested up to $400 million to enable them to relocate their village, which was allegedly threatened by melting sea ice.

In a decision released shortly before the Fifth Circuit's Comer decision, the U.S. District Court for the Northern District of California granted the defendants' motion to dismiss, holding that the case presented political questions not suitable for decision by the judicial branch. The court went on to hold that the plaintiffs lacked standing to bring the suit, because they could not show that climate change was fairly traceable to the defendants' conduct. The Kivalina court conceded that the Supreme Court had found standing to challenge a climate change-related injury in Massachusetts v. EPA, but it distinguished that case on the ground that the plaintiffs in Massachusetts asserted a statutory right, rather than one based on the common law.

The Kivalina court reviewed the same authority as did the Second Circuit in Connecticut but came to precisely the opposite conclusion. Directly rejecting the reasoning of the Second Circuit, the Kivalina court wrote that the Connecticut decision failed to articulate any standard by which a judge presented with such a case could arrive at a principled decision. The district court also agreed with the defendants that plaintiffs could not establish that any injury they suffered was "fairly traceable" to the defendants.

The way the courts in Comer and Kivalina framed the issues led to the different results. The Kivalina court identified climate change as uniquely complex, with significant ramifications for national and international policy, and therefore nonjusticiable under settled Supreme Court precedent. The Comer court, however, followed Connecticut and framed the suit as a simple common-law action between private parties, with limited national or international ramifications. With each of these decisions pending in the appellate courts, most legal observers believe that the U.S. Supreme Court ultimately will be asked to decide the questions presented by these cases.