Comer v. Murphy Oil USA, Inc. Dismissed by Mississippi Federal Court

On March 20, 2012, a federal district court judge in Mississippi dismissed for the second time Comer v. Murphy Oil USA, Inc., a lawsuit by various Mississippi property owners against numerous oil, coal, and chemical companies seeking tort liability for climate change.  The decision, though not unexpected, certainly strikes a blow to persons wanting to hold greenhouse gas (GHG) emitters liable for the alleged harm they are causing to the environment. 

 Procedural History

The suit was originally filed in 2005 (Comer I) and was subsequently refiled in 2011 after a lengthy and convoluted procedural history (Comer II).  The crux of the Comer plaintiffs’ claims is that the defendants’ GHG emissions contributed to global warming, which fueled Hurricane Katrina and ultimately led to damage to the plaintiffs’ property.  The plaintiffs assert state law public and private nuisance, trespass, and negligence causes of action against the defendants.

The district court dismissed Comer I in 2007 on grounds that the plaintiffs lacked standing and their claims presented nonjusticiable political questions.  The plaintiffs appealed to the Fifth Circuit, which reversed the district court in part in 2009.  The reversal was vacated when the Fifth Circuit agreed to rehear the appeal en banc.  Before the rehearing, however, the appellate court lost its quorum and appellate rules required its dismissal.  Because the Fifth Circuit’s opinion had already been vacated, the 2007 district court dismissal was reinstated.  When the Supreme Court denied the plaintiffs’ request for a writ of mandamus, they filed Comer II in 2011. 

The Second Dismissal

The same court that dismissed Comer I dismissed Comer II on procedural grounds, finding that the refiled lawsuit is barred by the doctrines of res judicata and collateral estoppel.  The court concluded that Comer II raises essentially the same claims as Comer I,and the plaintiffs are not entitled to another bite at the apple. 

Although the court could have relied solely on these procedural grounds to dismiss Comer II, “out of an abundance of caution” the court revisited whether the plaintiffs have standing and whether the political question doctrine bars their claims.  With regard to standing, the court affirmed its 2007 decision in Comer I that the plaintiffs could not allege injuries that are fairly traceable to the defendants’ specific GHG emissions.  The court also affirmed its 2007 decision that the plaintiffs’ claims are barred by the political question doctrine. 

The court further agreed with the defendants’ arguments that the plaintiffs’ claims are preempted by the Clean Air Act (CAA).  The court’s determination was based upon the Supreme Court’s 2007 decision in Massachusetts v. EPA (holding that EPA has the authority to regulate GHGs) and its 2011 decision in Connecticut v. AEP (holding that federal nuisance claims relating to GHG emissions are displaced by the CAA).  Comer is the first case to hold state law claims preempted by the CAA. 

Additionally, the court agreed with the defendants that the Mississippi Savings statute does not save the plaintiffs’ claims from Mississippi’s three year statute of limitations and that the plaintiffs cannot demonstrate that the defendants’ emissions are the proximate cause of their injuries. 

Significance of Decision

As it stands, the district court’s dismissal continues to make it more difficult for future plaintiffs to hold GHG emitters liable in tort for alleged harm caused by climate change, at least in Mississippi.  It is unlikely, however, that the district court will have the final say.  The plaintiffs are likely to appeal to the Fifth Circuit, which in the past has been more open to the plaintiffs’ claims than the district court.  The Fifth Circuit’s 2009 vacated opinion held that the plaintiffs had standing to bring their nuisance, trespass, and negligence claims and that those same claims did not present nonjusticiable political questions.

Although the Fifth Circuit held for the plaintiffs in 2009, there is no guarantee that it will do so again, even if it reverses the district court on res judicata and collateral estoppel.  Significantly, at the time of the Fifth Circuit’s decision in Comer I, the EPA was not regulating GHGs to the extent it is today and the Supreme Court had not yet decided Connecticut v. AEP.  Based on these developments, the Fifth Circuit could very well find that the CAA preempts the plaintiffs’ state law claims.

In addition, Native Village of Kivalina v. Exxonmobil Corp., which involves similar challenges with respect to standing, the political question doctrine, and preemption, is currently pending before the Ninth Circuit.  A decision against the plaintiffs in Kivalina could potentially influence the Fifth Circuit in Comer.  A decision in Kivalina is