Author: Luke A. Wake
In the wake of Hurricane Katrina, a lawsuit was filed against a handful of energy companies for their contributions to "global warming," on the theory that those companies had somehow made the hurricane worse by emitting greenhouse gases. These litigants argued that those emissions were unreasonable, despite the fact that they violated no positive law, and they sought to have the federal courts establish a de facto green house gas emissions policy. But, this week Comer v. Murphy Oil came to an end. As T.S. Eliot would say, the end of the suit came, "Not with a bang, but with a whimper."
In a strange twist of events, the Plaintiffs had victory snatched from their jaws. They had lost in the District Court, but succeeded in convincing the Fifth Circuit to reverse that decision. But, the Fifth Circuit then vacated its decision, and agreed to hear the case en banc. At that point, Pacific Legal Foundation filed an amicus brief arguing that the Plaintiffs could not have standing to vindicate global warming related injuries; we also argued that their suit raised nonjusticiable claims in violation of the Political Question Doctrine. But, our arguments were never considered.
Instead, the Fifth Circuit determined that it did not have the required quorum to hear the case en banc, after the recusal of a few judges. As such, the Fifth Circuit could not decide the case. But, since the Fifth Circuit's panel decision had already been vacated, the District Court's decision–dismissing the suit–was controlling. The Plaintiffs then sought to compel the Fifth Circuit to hear their case, but this week the Supreme Court denied their petition for a writ of mandamus.
While the Comer case has now come to an anti-climatic conclusion, another global warming law suit is soon to be heard by the Supreme Court. At the behest of PLF, and other interested groups, the Supreme Court has granted certiorari in AEP v. Connecticut. PLF will soon be filing an amicus brief on behalf of the petitioners in that case, arguing that global warming suits are nonjusticiable.