The Federalist Society

"Complaints" About the Weather: Why the Fifth Circuit's Panel Decision in Comer v. Murphy Oil Represents the Wrong Approach to the Challenge of Climate Change

January 29, 2010

David B. Rivkin, Jr., Carlos Ramos-Mrosovsky, Matthew S. Raymer

Common law “nuisance” litigation has emerged as the strategy of choice for climate change activists and plaintiffs’ lawyers seeking to limit in a piecemeal fashion U.S. greenhouse gas (“GHG”) emissions.  The recent decision by a panel of the United States Court of Appeals for the Fifth Circuit in Comer v. Murphy Oil U.S.A., 585 F.3d 855 (5th Cir. 2009), takes this trend to a new level.  For the first time, and what some maintain is contrary to established precedent, a United States Court of Appeals has allowed private parties to bring common law nuisance claims in federal court on the theory that particular GHG emissions from defendants’ sources injured plaintiffs and their property by exacerbating specific weather events.

Related Links

Fifth Circuit's Panel Decision, Comer v. Murphy Oil U.S.A.
Amended District Court Complaint, Comer v. Murphy Oil U.S.A.
Decision of Second Circuit Court of Appeals in Conn. v. Am. Elec. Power Co.
Plaintiffs' Brief on Appeal to the Second Circuit Court of Appeals in Open Space Inst. v. AEP
Plaintiffs' Reply Brief on Appeal to the Second Circuit Court of Appeals in Open Space Inst. v. AEP
Plaintiffs' Brief on Appeal to the Second Circuit Court of Appeals in Conn. v. AEP
Decision of U.S. District Court for the Northern District of Cal. in Kivalina v. ExxonMobil Corp.
David Hunter & James Salzman, Negligence in the Air: The Duty of Care in Climate Change Litigation, 155 U. Penn. L. Rev. 101 (2007)
David Grossman, Warming Up to a Not So Radical Idea: Tort Based Climate Change Litigation, 28 Colum. J. Env'tl L. 1 (2003)
Jonathan Remy Nash, Standing and the Precautionary Principle, Colum. L. Rev. (2008)
Matthew F. Pawa, Global Warming Litigation Heats Up, Trial Magazine (April 2008)
New York Times: "Courts Follow Landmark 2nd Circuit Ruling with 2 Greenhouse Gas Decisions"
Global Climate Law Blog: "Fifth Circuit reverses Comer, joins Second Circuit in approving tort-based climate litigation"
grist.org: "A victory for Katrina victims; a defeat for Alaskan villagers"

"Complaints" About the Weather: Why the Fifth Circuit's Panel Decision in Comer v. Murphy Oil Represents the Wrong Approach to the Challenge of Climate Change  


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