On May 14, 2013, the 5th Circuit dismissed a suit filed by Mississippi Gulf Coast residents and property owners against more than 30 companies and the Tennessee Valley Authority alleging defendants’ greenhouse gas emissions intensified the wrath and resulting property damage of Hurricane Katrina. The 5th Circuit dismissed the claims as barred by res judicata. Plaintiffs first filed such claims in 2005, which the district court dismissed with prejudice (“Comer I”). The 5th Circuit reversed that decision in part, then sought to rehear the claims en banc. After many judges’ recusal, the 5th Circuit held it did not have a quorum and dismissed the appeal. The Supreme Court denied reviewing the case.
The same plaintiffs refilled what they admitted were essentially several of the same claims against many of the same defendants in the same district court (“Comer II”). The 5th Circuit held the district court entered a final judgment in Comer I on the merits, thus barring Plaintiffs’ claims in Comer II. The case of Comer II is Comer et al. v. Murphy Oil USA et al., Case No. 12-60291, and the 5th Circuit’s latest opinion can be found here.
Comer I and Comer II are recent examples in a line of decisions in which plaintiffs have failed to assert common law tort or property claims based on injuries caused by climate change. See American Electric Power v. Connecticut, 131 S. Ct. 2527 (U.S. 2011) and Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir., 2012). Plaintiffs in Kivalina have filed a cert petition for review in the Supreme Court, so stay tuned.