On March 10, 2012, the latest chapter in a class of
plaintiffs' efforts to hold various industrial defendants
liable for their
greenhouse gas emissions was dismissed. Comer, et al. v.
Murphy Oil USA, et al., No. 1:11-cv-00220 (S.D. Miss.)
("Comer II"). The dismissed action was filed by
Mississippi residents and was nearly identical to another action,
Comer, et al. v. Murphy Oil USA, et al., No.
1:05-cv-00436-LG-RHW ("Comer I"), which was
previously dismissed by the federal courts, see,
Comer, et al. v. Murphy Oil USA, et al., 607 F.3d 1049
(5th Cir. 2010), as was an effort to secure a writ of mandamus from
the United States Supreme Court. In re Comer, U.S. No.
10-294 (Jan. 10, 2011).
In the Comer II complaint (as in Comer I),
plaintiffs allege that a group of defendant companies should be
held liable in tort for contributing to the worldwide phenomenon of
climate change, which purportedly contributed to strengthening
Hurricane Katrina and, in turn, damaged plaintiffs' property.
In agreeing with every basis asserted by the defendants, the U.S.
District Court for the Southern District of Mississippi held that
dismissal was appropriate for the following reasons: (i) under the
terms of the Comer I judgment, the suit is barred by
principles of res judicata and collateral estoppel; (ii) plaintiffs
lack standing to bring the claims under Article III of the
Constitution, and their claims raise nonjusticiable political
questions; (iii) the suit is barred by the statute of limitations;
(iv) plaintiffs cannot establish that any supposedly tortious
emissions of defendants proximately caused plaintiffs'
hurricane-based injuries; (v) plaintiffs' claims are
impermissibly predicated on a supposed duty to the world at large,
rather than a more circumscribed duty to specific persons or groups
of persons; and (vi) plaintiffs' attempt to invoke federal
common law is directly contrary to the U.S. Supreme Court's
recent holding in Connecticut v. AEP, 131 S.Ct. 2527
Consistent with the history of Comer I, the plaintiffs
filed a notice of appeal to the U.S. Court of Appeals for the Fifth
Circuit on April 16, 2102.
(Jones Day is counsel of record to Xcel Energy Inc. and its
affiliated entities in the Comer II case.)
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The Fifth Circuit recently handed down an important decision, Louisiana Generating LLC v. Illinois Union Insurance Company, clarifying the scope of coverage under a Premises Pollution Liability Insurance Policy.