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United States: Appellate Court Allows Global Warning Lawsuit by Katrina Victims to Proceed

(Nov. 17, 2009) A U.S. federal appellate court has ruled that a lawsuit by victims of Hurricane Katrina against energy and chemical companies, for contributing to global warming and thus increasing the damages from the hurricane, may proceed in federal court.

Several property owners along the Mississippi Gulf Coast filed a class action lawsuit against various energy and chemical companies, alleging the companies' operations emitted greenhouse gasses that contributed to global warming, which in turn caused a rise in sea levels that worsened the severity of property damage caused by the hurricane. The plaintiffs asserted common-law claims of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The defendants moved to dismiss the action, arguing that the plaintiffs lacked standing and that the claims asserted political questions that should be decided by the other branches of government. The district court agreed with the defendants and granted their motion to dismiss.

The U.S. Court of Appeals for the Fifth Circuit reversed, ruling that the lawsuit could proceed on some of the claims. The court ruled that the plaintiffs have standing to assert their claims of public and private nuisance, trespass, and negligence. It rejected the defendants' arguments that the plaintiffs lack standing because their damages are not traceable to the defendants' emissions, finding a sufficient nexus for standing purposes between defendants' emissions and plaintiffs' damages. The court ruled that these claims were not barred as nonjusticiable political questions, because common law tort claims for damages between private litigants such as these are not committed exclusively to the discretion of the executive or legislative branches by any constitutional or statutory provision and thus are not covered by the political question doctrine. The court upheld the dismissal of three of their claims – unjust enrichment, fraudulent misrepresentation, and civil conspiracy – ruling that the plaintiffs lack standing to assert these claims because they suffered no particularized injury from these alleged violations distinct from the injury to the public at large. (Comer v. Murphy Oil USA, No. 07-60756 (5th Cir. Oct. 22, 2009), available at