Another Global-Warming Tort Case Moves Forward

(CN) - Mississippi property owners can sue oil, coal and chemical companies whose pollution allegedly elevated sea levels and "added to the ferocity" of Hurricane Katrina, which destroyed public and private property, the 5th Circuit ruled.

The New Orleans-based court said its ruling was in step with the 2nd Circuit's landmark decision allowing a federal nuisance lawsuit over greenhouse gas emissions.

In Connecticut v. AEP, the 2nd Circuit reinstated the federal public nuisance claims of eight states, New York City and three land trusts against six power companies, including the five "largest emitters of carbon dioxide in the United States."

Citing that Sept. 21 decision, the 5th Circuit cleared the path for a class action claiming polluters are partially liable for Hurricane Katrina damage.

"Although we arrived at our own decision independently," Judge James Dennis wrote in Comer v. Murphy Oil Co., "the Second Circuit's reasoning is fully consistent with ours, particularly in its careful analysis of whether the case requires the court to address any specific issue that is constitutionally committed to another branch of government."

Both circuits rejected the lower courts' finding that global-warming disputes are best resolved by the political branches of government.

Judge Dennis said the property owners could proceed with claims for nuisance, trespass and negligence, because those allegations don't clearly fall under the authority of Congress, the president or federal law.

At most, the defendants could argue that future laws or regulations would pre-empt the plaintiffs' state-law tort claims, Dennis said. But he rejected this argument as too speculative.

"The defendants have failed to show how any of the issues inherent in the plaintiffs' nuisance, trespass, and negligence claims have been committed by the Constitution or federal laws 'wholly and indivisibly' to a federal political branch," the court concluded.

The three-judge panel dismissed for lack of standing claims for unjust enrichment, fraudulent misrepresentation and civil conspiracy.

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