In the wake of the Supreme Court’s decision in Connecticut v. AEP, a federal district court in Mississippi on Wednesday, March 21st, dismissed a re-filed case, the “Comer 2” case, seeking damages for the alleged tort of global warming. The Court in AEP ruled last year that any actions in tort under federal common law based on the assertion that a company’s greenhouse gas (“GHG”) emissions are causing climate change are displaced by EPA’s authority to regulate GHGs under the Clean Air Act. The plaintiffs in AEP sought an injunction rather than damages. The Comer 2 case tested whether the AEP decision might not apply to suits for damages under state common law.
Comer 1 was a suit for damages brought in 2005 in the Southern District of Mississippi under state and federal common law that alleged that emissions by a host of energy company defendants intensified Katrina. The case was dismissed for lack of standing and because the complaint was found to raise a non-justiciable political question. It was appealed to the Fifth Circuit, where a 3-judge panel reversed. The full court, however, vacated the reversal and granted reconsideration by the full court. The full court then lost its quorum when one or more judges recused themselves and the full court dismissed the appeal. The result was no appellate decision on the merits, the full court vacatur of the panel decision was left in place, and the district court decision dismissing the claims stood. The Supreme Court denied a petition to overturn the action of the full Fifth Circuit.
Comer 2 was filed shortly before the Supreme Court decision in AEP. It is essentially a re-filing of the Comer 1 case. The district court in Mississippi dismissed again based on the res judicata and collateral estoppels effect of Comer 1 – essentially, the plaintiffs should not get two bites of the apple. In addition, the Court reiterated what the Comer 1 court had found – that plaintiffs lack standing to bring their claims because their asserted injury is general and not unique to them and that they are essentially asking the court to make a political determination. The Court also read the AEP decision as extending to state as well as federal common law claims and to claims for damage as well as injunctive relief. Finally, the Court said the case was barred by the statute of limitations. The decision will likely be appealed back up to the Fifth Circuit.