How Do You Spell Certiorari? Climate Change Suits En Banc

How Do You Spell Certiorari? Climate Change Suits En Banc

April 1, 2010 18:33
by J. Wylie Donald

"Plaintiffs' homeowner's insurance premiums have dramatically increased as a result of global climate change." So asserts Ned Comer and his co-plaintiffs in their Supplemental Brief on Rehearing En Banc, filed yesterday with the Fifth Circuit in the en banc appeal of Comer v. Murphy Oil USA. Although those premiums do not resurface anywhere else in the brief, presumably their insertion is to demonstrate "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual and imminent, not 'conjectural' or 'hypothetical'. Lujan v Defenders of Wildlife, 504 U.S. 555, 560 (1992). In other words, they may establish the constitutional base for standing. Little did we know ....


Unfortunately for the plaintiffs, the requirements for standing do not stop there. The Lujan decision continues: "there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly traceable to the challenged action of the defendant ..."


Plaintiffs are dismissive of the Comer defendants' abilities to sustain their arguments on this point. That may be myopic. The causation hurdle was expressly enunciated in the district court's opinion: "I foresee daunting evidentiary problems for anyone who undertakes to prove, by a preponderance of the evidence, the degree to which global warming is caused by the emission of greenhouse gases; the degree to which the actions of any individual oil company, any individual chemical company, or the collective action of these corporations contribute, through the emission of greenhouse gases, to global warming; and the extent to which the emission of greenhouse gases by these defendants, through the phenomenon of global warming, intensified or otherwise affected the weather system that produced Hurricane Katrina."  Comer v. Nationwide Mut. Ins. Co., Civ. A. No. 1:05 CV 436-LTD-RHW, 2006 WL 1066645, *4 (S.D. Miss. 2006).

Defendants recognize a winning argument and are pressing it in their papers: "Plaintiffs' claims require a piling of inference upon inference to causally connect Defendants' GHG emissions with damages suffered by Plaintiffs during Hurricane Katrina." Petition for Rehearing En Banc.  As stated in the defendants' introduction: "Plaintiffs seek to impose liability on Defendants premised on conclusory and speculative allegations: Defendants' GHG emissions over decades, along with the emissions of millions of other actors around the world, contributed to global warming, which in turn increased ocean temperatures, which in turn raised the possibility of hurricanes forming with increased ferocity, which in turn contributed to Hurricane Katrina's strength, which in turn harmed Plaintiffs."  Id.  Plaintiffs counter, however, that proximate cause simply is not an element of standing analysis.

Coupled with the causation element of standing, defendants also re-assert the political question doctrine, which was adopted by the Native Village of Kivalina v. ExxonMobil trial court (now on appeal to the Ninth Circuit) and the California v. General Motors trial court (appeal abandoned), but rejected by the Second Circuit in Connecticut v. American Electric Power. The Second Circuit likewise rejected the Connecticut defendants' petition for rehearing or rehearing en banc. Observers feel that a petition for certiorari is inevitable.

Oral argument in Comer is scheduled for the week of May 24. It is sure to be interesting. If defendants prevail, the circuit court split increases the chances that climate change will lodge another appearance before the Supreme Court. For my purposes (following insurance issues), I will be watching to see if plaintiffs' premium argument is indeed a premium argument.

Climate Change | Weather | Greenhouse Gases

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