Releases

HOUSTON - In a significant turn of events, the U.S. Court of Appeals for the Fifth Circuit last Friday granted a rehearing en banc in Comer v. Murphy Oil, et al, one of three climate change public nuisance cases pending in the federal appellate courts. The entire Fifth Circuit Court ordered reconsideration of an earlier decision by a three judge panel that reversed the dismissal of Comer, a major climate change lawsuit. The court's written order was posted this afternoon.

The class-action suit claimed that plaintiffs were injured when energy and oil and gas companies created a public nuisance by intensifying Hurricane Katrina with their greenhouse gas emissions. Other defendants, including insurance companies, were also named in the suit, which included thousands of claimants who sustained losses and injuries during the 2005 storm.

The trial court originally dismissed the case because the plaintiffs lacked standing to sue particular defendants for the effects of global warming, and because no judgment rendered in the case could determine whether any particular defendant's emissions caused any particular plaintiff's alleged injuries. The trial court also dismissed the claims because the controversy presented a political question involving international issues that were entrusted to Congress and the president, not to the courts.

The original three-judge panel reversed the dismissal following a recent Second Circuit U.S. Court of Appeals decision, which held that climate change cases were "ordinary tort cases" despite the international and planetary dimensions. In another ruling, the panel found that plaintiffs need not show that the defendant's pollutants caused the harm, and for purposes of standing it is sufficient to show only that they discharged a pollutant that can contribute to the kinds of injuries being alleged.

A motion to rehear the Second Circuit decision is also pending, but has not yet been decided. A federal court in San Francisco dismissed another climate change nuisance suit last year, and the appeal of that action is pending in the Ninth Circuit.

Texas climate change lawyer Richard O. Faulk, who chairs the Litigation Department and Environmental Practice of Gardere Wynne Sewell LLP, says that the Fifth Circuit's decision to allow the court's complete complement of judges to reconsider the case is a "significant blow to the progress of climate change and public nuisance litigation."

Although Mr. Faulk acknowledges that the case's "ultimate resolution cannot be predicted with certainty," he stressed that "the original panel's original decision now has no value. Clearly, a significant number of the court's judges believe the case deserves a closer look, and plaintiffs' counsel cannot be comforted by that development. Indeed, since no judge on the original panel dissented from the decision, the decision to reconsider suggests that the rest of the court may be seriously interested in changing the result."

Mr. Faulk, who attended and reported on the U.N. Climate Change Conference in Copenhagen, and who has argued before the en banc Fifth Circuit and the U.S. Supreme Court, believes that the Fifth Circuit's ruling is consistent with growing climate change skepticism. "In the wake of "climategate" and the debacle of the Copenhagen conference, the Fifth Circuit's decision is yet another example of how climate change issues are receiving greater scrutiny. Time will tell whether this is just a minor speed bump or a major security barrier, but the momentum of skepticism is clearly increasing."

Gardere Wynne Sewell LLP, an AmLaw 200 firm founded in 1909 and one of the Southwest's largest full-service law firms, has offices in Austin, Dallas, Houston and Mexico City. Gardere provides legal services to private and public companies and individuals in areas of government affairs, energy, litigation, corporate, tax, environmental, labor and employment, intellectual property and financial services.

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