The case is Comer v Murphy Oil, # 07-60756, on appeal to the Fifth Circuit from the Federal District Court in the Southern District of Mississippi.
Yesterday that appellate court decided to rehear the prior three-judge panel decision in favour of landowners against Murphy Oil Company and a cadre of MOMCOM members.
The case will be re-heard en banc, meaning it will be heard this time by all of the Fifth Circuit Court of Appeals judges, not just the three-judge panel.
The federal district court in Mississippi had ruled against the land owners, but the Fifth Circuit panel had reversed that district court.
The case has far reaching and politically explosive implications:
The plaintiffs, residents and owners of lands and property along the Mississippi Gulf coast, filed this putative class action in the district court against the named defendants, corporations that have principal offices in other states but are doing business in Mississippi. The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz. , the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.(Comer v Murphy Oil, emphasis added). The import of this case is obvious, and it could be as big as asbestos or tobacco litigation, should the oil companies be held accountable for their part in global warming.
I expect the en banc court to reverse the three-judge panel's decision, and to uphold the district court, dismissing the claims against the oil companies.
Why I think so follows.
First: the 5th Circuit is a conservative court: the three-judge panel decision was written by Judge Dennis, appointed by President Clinton, who is in the minority on the Fifth Circuit, where most of the judges are of the conservative ilk, meaning a good many of them think global warming is a big hoax.
Second: they will hold that there is not a sufficient nexus between the injury and the defendants.
The three-judge panel explained this notion of "standing" in the federal courts:
Article III standing is an “irreducible constitutional minimum,” which requires plaintiffs to demonstrate: they have suffered an “injury in fact”; the injury is “fairly traceable’ to the defendant’s actions; and the injury will “likely . . . be redressed by a favorable decision.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992) (internal quotations and citations omitted).(ibid). I expect there to be a storm over the notion that "the injury is 'fairly traceable’ to the defendant’s actions", that is, even if these conservative judges assume arguendo that global warming is a valid notion, they will hold that there is no way to fairly link it to the defendants in that state on that property.
The crux will most likely be the allegations concerning the increased ferocity of hurricane Katrina; that is, they will say that there is too much speculation on that segment of the nexus from global warming to increased hurricane ferocity to damage of that specific property.
It will be probably a year before we know how the court will decide the case.