Climate Change Litigation: The Fifth Circuit Follows the Second Circuit

The most conservative federal appeals court in the country sides with plaintiffs in a major climate case: the Supremes might step in soon.

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.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

One thought on “Climate Change Litigation: The Fifth Circuit Follows the Second Circuit”

  1. 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.

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