Appellate Panel Sinks Katrina Climate Claims

     (CN) – The 5th Circuit had little patience for a repeat suit brought by Gulf Coast residents who blamed major emissions producers for fueling Hurricane Katrina.
     Ned and Brenda Comer and nine other Mississippi residents who lost property in the hurricane claimed that energy companies including Shell, Chevron, ExxonMobil and BP had set the stage for a super storm by pumping greenhouse gases into the atmosphere.
     They sued the oil and gas giants for civil conspiracy, fraud and negligence, among other claims, in the Southern District of Mississippi in 2005.
     Their class action didn’t survive a lengthy legal process that ultimately ended with the U.S. Supreme Court denying the property owners a writ of mandamus in 2011.
     In between, the 5th Circuit had thrown the Gulf residents a temporary lifeline when it ruled that their claims for negligence, trespass and nuisance should be heard. The circuit later scheduled an en banc rehearing of the case but dismissed it for lack of quorum.
     The class resurfaced later in 2011 with a similar complaint that named many of the same energy companies as defendants, again in the Southern District of Mississippi.
     “The earth’s climate has ‘demonstrably changed’ as a result of defendants’ greenhouse gas emissions,” the complaint stated. “Rising sea levels and increasing hurricane intensity are among the observable impacts of this climate shift.
     “Defendants’ activities are among the largest sources of the greenhouse gases that cause global warming. Numerous defendants have admitted the validity of mainstream global warming science as well as their role in contributing to the harmful effects of global warming.”
     The Mississippians said Katrina morphed into a “cyclonic storm of unprecedented strength and destruction, fueled by the warm waters and warm environmental conditions present in the Atlantic Ocean, Caribbean Sea and the Gulf of Mexico.”
     “These high surface temperatures, which were a direct and proximate result of the defendants’ greenhouse gas emissions, increased the intensity and magnitude of Hurricane Katrina,” they alleged.
     But when faced with “essentially several of the same claims” that it had dismissed in 2005, the District Court ruled that the new class action was barred by res judicata.
     A three-judge appellate panel in New Orleans affirmed Tuesday.
     “Here, the district court’s judgment in Comer I was final for the purpose of res judicata because the district court properly entered final judgment, and that judgment never was modified on appeal,” Judge Stephen Higginson wrote for the court.
     “Although this court issued a panel opinion reversing and remanding, in part, the district court … a member of this court ‘held mandate’ before the scheduled ‘mandate pull date,’ Higginson added. “This court then voted to grant rehearing en banc, in the process staying the issuance of a mandate and vacating the panel decision. … Once this court determined that it lacked quorum, it issued an order dismissing the case … and the clerk’s office terminated the appeal ‘without judicial action.’ The Supreme Court, in turn denied plaintiffs’ petition for writ of mandamus. … At no point was the district court’s judgment disturbed.”
     The three-judge panel also denied the class’s claim for equitable exception on the basis that their 2005 action didn’t receive “meaningful appellate review,” ruling that “such an exception is contrary to ‘the well-known rule that a federal court may not abrogate principles of res judicata out of equitable concerns.'”

%d bloggers like this: