The Supreme Court has put the kabosh on a lawsuit brought by Mississippi homeowners against Murphy Oil, Shell, ExxonMobil, and over two dozen other companies, charging them with contributing to the destructive force of Hurricane Katrina by creating greenhouse gas pollution.
As Mark Schliefstein reports today in The New Orleans Times-Picayune, the homeowners "claimed that by emitting greenhouse gases, the companies helped cause global warming and exacerbated Katrina’s wrath."
The case was decided on the nuances of the appeals process, rather than the substance of the charges. As Schliefstein writes,
The Supreme Court was asked to step in after so many members of the 16-judge 5th U.S. Circuit Court of Appeals had recused themselves that it could not conduct a rehearing of a partially successful appeal of the suit.
At issue for the nation’s highest court was the question of whether the 5th Circuit should have dismissed the appeal after determining that it lacked a quorum.
Under the circuit court’s rules, the court’s original three-judge decision in favor of the homeowners had been vacated after the full court agreed to rehear the case, and the appeal was dismissed by the failure to get a quorum.
The 5th Circuit’s failure to rehear the case meant that the original ruling of the U.S. District Court in Mississippi throwing out the homeowners’ suit was reinstated, and the Supreme Court’s failure to hear the challenge of the 5th Circuit’s non-decision means that the decision by U.S. District Judge Louis Guirola Jr. in Mississippi stays in place.
Global warming lawsuits have had mixed results so far in federal court, with no clear victories. In 2008, a case brought by Inupiat of Kivalina, Alaska -- an Arctic Ocean community literally falling into the sea due to coastal erosion -- was dismissed in federal court. The Inupiat charged that by emitting huge amounts of greenhouse gas pollution, ExxonMobil, 8 other oil companies, 14 power companies, and 1 coal company were contributing to global warming, which has led to the melting of protective sea ice barriers along the Arctic Ocean shoreline, and the destruction of their village.
But in 2009, a federal appeals court effectively opened the door to more global warming lawsuits, by reversing a lower court's dismissal of a similar case. In Connecticut v. American Electric Power Company Inc., several states, New York City, and several land trusts have charged a number of large power companies with endangering public health and the environment by contributing to climate change, under the federal common law of "contributing to a public nuisance." The power companies are all huge greenhouse gas polluters.
The Supreme Court announced last month that it would consider this case. Its decision could determine whether the courts will have a role in dealing with greenhouse gas pollution, or if that power will rest solely with Congress and the federal government. As Greenwire reported in December,
On reviewing both sides' arguments, Jonathan Adler, an expert in environmental law at Case Western Reserve University School of Law, predicted in a blog post that the utilities will win on the question of whether EPA and Congress have "occupied the field," as he put it, when it comes to regulating greenhouse gases.
He noted that the Obama administration's narrow argument calling for the case to be remanded back to [the appeals court] "has the potential to unify the court," thereby avoiding an ideological split.
