7. “Climate change” litigation. In 2013, more “climate change” litigation was before the federal courts. Continuing the trend, all of the federal district courts that have considered the issue have held that “climate change” lawsuits involve nonjusticiable political questions that are not suitable for court resolution. In what is probably the lead case on the matter, the court held that the plaintiff class, residents and owners of lands and property along the Mississippi Gulf coast, had standing to assert public and private nuisance, trespass and negligence claims against the defendants for emission of greenhouse gases that allegedly contributed to “global warming” which, the claim asserted, caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property along with public property.

In reversing the trial court, the United States Court of Appeals for the Fifth Circuit held that the plaintiffs’ claims were not non-justiciable political questions. However, the plaintiff’s unjust enrichment, fraudulent misrepresentation and civil conspiracy claims were dismissed for lack of standing. The trial court could have dismissed the case due to the plaintiffs’ inability to establish proximate causation, but the trial court had dismissed the case without relying on that ground so the appellate court did not address the issue. The court remanded the case to the trial court to determine if the plaintiffs could establish a causal connection. But, before the case was remanded, the court granted the plaintiffs’ petition for a review by the full court and vacated the three-judge panel’s decision. Later, the court dismissed the appeal. Thus, the district court’s opinion holding that property owners did not have standing to sue for “climate change” and that “climate change” is a political question and that property owners cannot seek state-law tort damages for industrial emissions of carbon dioxide is controlling law in the Fifth Circuit. In 2012, the plaintiffs’ claims were completely dismissed, and that decision was affirmed on appeal in 2013. Comer, et al. v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012), aff’d., No. 12-60291, 2013 U.S. App. LEXIS 9705 (5th Cir. May 14, 2013).

 

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In another 2013 case, a collection of youth plaintiffs sued the federal government and the oil industry claiming that the government had failed to protect the atmosphere from irreversible damage from man-made effects. The essence of the plaintiffs’ legal claim was rooted in the public trust doctrine, which imposes a fiduciary obligation on the government to protect the nation’s natural resources such as air and water. The plaintiffs wanted the government to conduct a detailed accounting of carbon emissions in the U.S., followed by the development and implementation of a national Climate Recovery Plan. But, the court dismissed the case in 2012 on the grounds that the federal government has no constitutional obligation to protect the atmosphere. In 2013, the court refused to reconsider its 2012 decision. The court based its decision heavily on a 2012 U.S. Supreme Court decision wherein the Court noted that the U.S. Constitution does not control state public trust law. The Court stated that the public trust doctrine is essentially the domain of the states and, as a result, a state would have standing to litigate “climate change” as a public nuisance. The federal government has no public trust obligation. As such, the court in the present case determined that the plaintiffs had not asserted any constitutional claim in its complaint. Loorz, et al. v. Perciaspepe, No. 11-cv-2235, 2013 U.S. Dist. LEXIS 72301 (D. D.C. May 22, 2013).