Who's to Blame for Climate Change: Will the Supreme Court Review?

In the last month, two federal courts of appeal have ruled on much-watched petitions for rehearing in climate change lawsuits. The decisions have set up a possible showdown on the viability of nuisance claims premised on damages allegedly caused by the effects of greenhouse gas emissions.

In Connecticut v. American Electric Power, the Court of Appeals for the Second Circuit rejected on March 5 requests both for rehearing by the original panel and for en banc review by the entire panel of circuit judges. The original panel's September 2009 decision resurrected lawsuits brought by New York City, several states, and private land trusts against electric utilities that allegedly emit 10 percent of America's man-made greenhouse gases. Premising their federal common law suit on alleged harms resulting from climate change, the plaintiffs seek an injunction forcing the utilities to cap and then reduce their greenhouse gas emissions.

The Second Circuit's decision came on the heels of a decision just a week earlier in the case of Comer v. Murphy Oil Co. There, the Fifth Circuit reached the opposite conclusion by vacating its original decision and agreeing to rehear that matter en banc. In the October 2009 Comer decision, the Fifth Circuit allowed a putative class of Gulf Coast residents and property owners to proceed with a suit against energy, fossil fuel, and chemical companies for Hurricane Katrina damage. Instead of an injunction, the Comer plaintiffs seek compensatory and punitive damages, contending that the defendants' combined greenhouse gas emissions increased global surface air and water temperatures, thus raising sea levels, thus compounding the storm, thus destroying plaintiffs' property. The original three-judge panel of the Fifth Circuit agreed with much of the Second Circuit's American Electric Power decision. However, the Fifth Circuit's decision to vacate its decision and rehear the case by the full panel of judges presents the distinct possibility that the Katrina claims will be dismissed, which could create a circuit court split. The en banc argument is set for the week of May 24, and the parties were ordered to file...