Res judicata is one of those phrases learned in law school that seemed of limited utility. How often is someone going to bring the same claim twice? Callow law students know little of the world. The doctrine is frequently needed and, as was learned in law school, it can be used to dispose of a claim, even if the prior decision "may have been wrong or rested on a legal principle subsequently overruled in another case." Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).
On Tuesday, the Fifth Circuit applied the hoary doctrine to snuff out (again) the seven-year old climate change liability saga of Comer v. Murphy Oil USA. Comer was filed immediately following Hurricane Katrina and asserted that a long list of energy companies were responsible for the increased destructiveness of the hurricane because of their emissions of greenhouse gases. The trial court disagreed and dismissed the case on standing and political question grounds. On appeal, however, the plaintiffs convinced an appellate panel of the Fifth Circuit to reverse the trial court. Defendants asked for rehearing en banc, which was granted, resulting in the vacating of the panel decision pursuant to court rule.
Then things got weird. After the grant of en banc review, the en banc quorum then dissolved with an eighth recusal among the active judges. With no quorum, the case could not be reviewed. Because the panel decision was vacated, the trial court dismissal was valid.
Plaintiffs chose not to appeal to the Supreme Court. Instead they sought mandamus, which was denied. Plaintiffs then decided to file their claim again, not only by the same plaintiffs on the same theories, but against the same defendants. The trial court had no difficulty dismissing their claims a second time, relying on res judicata, but also on the statute of limitations, the political question doctrine, preemption, proximate cause and standing. Another appeal was filed; this time the panel did not side with the plaintiffs. Instead, it ignored all of the bases for dismissal articulated by the trial court and settled on only one: res judicata.
To apply, four elements must exist:
(1) the parties are identical or in privity;
(2) the judgment in the prior action was rendered by a court of competent jurisdiction;
(3) the prior action was concluded by a final judgment on the merits; and
(4) the same claim or cause of action was involved in both actions. Opinion at 7.
Only the third element was disputed. The court held that the trial court's first judgment was a final judgment because, although the panel reversed, that decision was vacated and thus had no effect on the trial court's decision. Nor did the decision to grant rehearing en banc, nor the Supreme Court's denial of the mandamus motion. And the trial court's decision was on the merits, notwithstanding that it was a jurisdictional (standing and political question) determination. Opinion at 10. Accordingly, res judicata applied; the dismissal was affirmed.
We expect that the precedential value of the court's decision will be limited. However, its non-precedential value is huge. A broad and expansive theory of climate change liability was asserted by well-funded and capable plaintiffs' counsel. After a long journey it joined on the ash heap claims asserted by the State of California (California ex rel. Lockyer v. General Motors), claims by various attorneys general and public interest groups (Connecticut v. American Electric Power), and claims asserted by a Native American community (Kivalina v. ExxonMobil) (albeit nursing a petition for certiorari to the Supreme Court). Petrochemical companies, automobile companies, coal companies and electric utilities are 4-0 on the climate change liability front, with no other cases out there.
The unanswered questions from Comer are the following:
Why didn't plaintiffs add new defendants?
Why didn't plaintiffs assert state law nuisance claims in state court rather than pursue them in federal court?
Why didn't they appeal to the Supreme Court on the merits, rather than seek mandamus?
These questions are decisions on strategy, and we likely will never know. Last, however, and most importantly, where are the new theories of liability? Bueller? Bueller?