Come On! Jesus Murphy!

The National Hurricane Center sets the “official” start of the hurricane season as today, June 1.  At the moment, all eyes are on the Gulf of Mexico and the failure of “top kill” to stop oil from spilling into the sea.  There will undoubtedly be many legal actions developing from that oil spill, and there is no doubt that the possibility of hurricanes developing in the Gulf during the next several months that the spill may continue is on people’s minds. 

In that case, though, there are very definite parties to identify as having potential culpability:  the oil company BP, certainly; perhaps some subcontractors of BP; at a stretch, maybe certain officials in the current government Administration. 

But consider the case of Comer v. Murphy Oil, which arose from Hurricane Katrina’s devastation five years ago, the memory of which is still fresh in people’s minds.  Canal-levee breaches that flooded more than 80% of New Orleans.  Thousands housed in barely livable conditions in the Superdome, with reports of fighting and rapes.  Widespread looting and a breakdown of law enforcement, communications, and transportation infrastructures. 

In Comer, a class of a dozen Mississippi property owners sued a range of about 30 corporate defendants involved in the energy and chemical industries for compensation for the damage caused to them by Hurricane Katrina.  Incidentally, one of the defendants was BP, the company struggling to control the Gulf of Mexico’s current oil spill.  Their liability theory is essentially as follows:  the defendants’ operation of their industries caused the emission of greenhouse gases, which in turn contributed to the climate change that is currently underway on the Earth, which in turn caused the hurricane to be more ferocious and devastating, which resulted in the destruction of their property. 

That the Earth’s temperature is increasing as a result of human activity is not seriously disputed.  It is, in fact, one of the most widely accepted conclusions that science has reached, certainly among those scientists who have examined and evaluated the evidence directly.  But any discussion of the Earth’s climate is necessarily a complex one and the Earth is sufficiently large that the impact of human activities on its climate proceeds relatively slowly.  These two factors — the complexity of the system and the slowness of its response — make it difficult to point to any particular event and establish the precise link to what human beings have done or are doing. 

The lower court in Comer dismissed the case.  One of its bases for doing so was that the issue was a “political question.”  This doctrine is one that courts use in implementing the separation of powers that defines the government structure in the United States.  Just as there are issues decided by the judiciary that the legislative and executive branches of government cannot interfere with, so too there are questions that are beyond the purview of the courts.  Such “political questions” require resolution by the other branches of government. 

It is difficult to fault the district court’s determination.  Fossil fuels provide a critically important source of energy that drives the national economy and alternative sources of energy are not as well developed at this point in time.  There are consequences to limiting the use of such energy sources that are significant and far-reaching.  And there are consequences to failing to limit the use of such energy sources that are equally significant and far-reaching.  Furthermore, the United States does not even have control itself over the level of greenhouses gases within its borders — the use of fossil fuels elsewhere on the planet also raises the concentration of such gases in the United States so that even if the U.S. did take some action unilaterally, the positive impact on its own atmosphere may be far less than the negative impact on its economy. 

It seems very much that the appropriate way to reach a solution to the issue is through the democratic mechanism of government.  It is through that structure that the collective thinking of the many different groups impacted by any approach may at least be considered, even if any solution will garner criticism.

But the panel on the appellate court for the Fifth Circuit disagreed with the district court, reversing its dismissal, and essentially telling the plaintiffs that they are at least entitled to present their evidence in a court to determine whether there is liability on the part of the defendants for the damage to their property. 

Where things became especially interesting procedurally in Comer was when the full court decided to hear the case en banc.  Each of the federal appeals courts has a relatively large number of judges — somewhere around 15 — and most appeals are heard by three-judge panels of the court.  When an issue is of significant importance, it is possible for the entire court to hear the case and render a decision.  There was considerable interest in Comer because of its potential in bringing some clarity to the ability of plaintiffs to sue oil companies and other large emitters of greenhouse gases for damage to property caused by severe weather. 

But several of the judges recused themselves from the case.  While the specific reasons for the recusals are not publicly known, the likelihood is that each of those judges had some investment in one of the defendant corporations so that he or she could not ethically participate in a decision.  Initially, seven of the sixteen judges of the court recused themselves.  This left a quorum that vacated the panel decision when the court agreed to rehear the case en banc.  But then an eighth judge also recused himself, leaving only eight judges on the court — a number insufficient to establish a quorum.

 On Friday, just before the Memorial Day weekend began, the court issued its order, dismissing the appeal and refusing to hear oral arguments or decide the case on its merits because of the lack of a quorum.  This leaves the case in a sort of limbo.  The original district court decision stands, meaning that the plaintiffs are not entitled to have their case heard on the merits unless an appeal to the Supreme Court of the U.S. is heard. 

In a strongly worded dissent, one of the judges of the Fifth Circuit described the action of the court as “shockingly unwarranted” and “deeply lamentable,” providing a number of reasons why the court should hear the case.  Options such as having the Chief Justice appoint another judge from another circuit to hear the appeal or of applying the so-called Rule of Necessity to allow the judges who recused themselves to set aside their recusals, were options that he felt should have been taken. 

The dissent argued that the court has “an absolute duty to hear and decide the appeal,” a position that is difficult to disagree with.  The issue of climate change and its legal ramifications is a critically important one.  What is at issue at the moment is not so much whether oil companies should be liable for damage caused by our changing climate — although that could potentially be the issue that ultimately arises — but whether the courts should be involved in hearing such cases at all.  Clarity is needed, and a clear decision by the full court would have had impressive weight in moving towards such clarity. 

The idea that the effects of climate change do indeed represent a “political question” is a compelling one.  While the plaintiffs in Comer may have suffered from an especially dramatic storm, all of us feel the effects of global climate change — and all of us contribute to it by using fossil fuels to power our automobiles and trucks or to heat our homes.  Can someone sue his neighbor for hail damage to his roof because the neighbor drives a car?  When severe weather damages a home in Hawaii, can a salmon cannery in Alaska be sued because it emits greenhouse gases?  These questions appear silly at first blush, and the havoc that could result if such suits were entertained is plain.  But they differ from the argument in Comer only by a matter of scale and degree, not in underlying principle.

The time is soon coming when the Supreme Court of the U.S. will need to step in and provide some clarification, particularly if intermediate courts are going to punt.  It feels instinctively right that authoritative clarification is deserved.

About Patrick Boucher

The author, Patrick M. Boucher, is a patent attorney living near Denver, Colorado and working at Marsh Fischmann & Breyfogle. He holds a Ph.D. in physics as well as a J.D. He is an active member of the American Physical Society, and is admitted to practice law in the states of Colorado and New York, as well as to practice before the U.S. Patent and Trademark Office. He is also a member of the Authors Guild and of the Colorado Authors League.