A whirlwind of unexpected twists in the Hurricane Katrina global warming suit

Author:  Luke A. Wake

Recently I posted on our filing in Comer v. Murphy Oil - a case that environmentalists hoped would open the floodgates for suits against large corporations as a back-door means of addressing the climate change issue. Here we had a couple property owners suing energy companies because their property had been damaged in Hurricane Katrina. Now normally damage caused by a hurricane is considered "an act of God." It is absurd to blame an individual or a company for causing harms resulting from natural events, but that is exactly what these litigants were doing; they argued that the energy companies had contributed to green house gases and that this had somehow resulted in climate change, which somehow made Hurricane Katrina more destructive than it would have otherwise been. 

The District Court thought this was too much of a stretch. In fact, the District Court dismissed the suit for lack of standing and because it presented a non-judicable political question. The plaintiffs then appealed to the 5th Circuit and the District Court's decision was reversed.

The Defendants then asked the 5th Circuit to reconsider the issues en banc and their petition was granted. The 5th Circuit vacated the panel decision, which had reversed the District Court, and was going to hear arguments – once more – on the standing and political question issues. But, after the panel decision had been vacated, new circumstances arose that caused one of the en banc judges to recuse himself. This meant that there were no longer enough judges to decide the case en banc. As such, the 5th Circuit determined that it no longer could hear the case and dismissed the appeal. Thus the original District Court decision is upheld, and the plaintiffs will have to appeal to the Supreme Court if they want to continue with their suit. If the high court agrees to hear their appeal, then we will submit an amicus brief on behalf of the energy companies once more.