Well, I didn’t expect this one.
The Fifth Circuit, in Comer v. Murphy Oil Co., has agreed to follow the Second Circuit by construing Massachusetts v. EPA’s standing holding very broadly. It has allowed a class action by private plaintiffs on a common-law public nuisance claim, for damages occurring from greenhouse gas emissions, to move forward.
More to come on this one when I have a chance to finish the opinion. But a few points:
1) Comer represents a case of private plaintiffs suing private defendants; thus, it has a different procedural and remedial posture from either Massachusetts v. EPA or Connecticut v. AEP. But if anything, the test here should have been even harder, because the AEP plaintiffs are asking for an injunction, and so do not have to point to specific damages.
2) The plaintiffs drew a favorable panel, with the majority coming from two Clinton appointees. I would expect the defendants to petition for en banc review, where they have a better chance of succeeding.
3) That said, the very conservative Eugene Davis supported the majority on the basic holding. The Fifth Circuit might be the most conservative federal appellate court in the country: if it is going in this direction, then certiorari might soon follow. Chief Justice Roberts is not going to like the expansion of standing in Comer and AEP; and Justice Kennedy, who runs the Court right now, might not appreciate the lower courts diluting his emphasis on the special rights of states.
That last part in #3 about Kennedy not wanting standing for private non-state actors is a key issue. I’d be scared to see the current Supreme Court take a hold of this. In my fantasy, Kennedy would continue his evolution to reasonableness. A slightly more realistic, best-case outcome is a beefed-up climate legislation that precludes public and private nuisance claims. Warming Law has suggested this several times, I think.