The Supreme Court or Congress: Which Will Decide Whether Large Emitters of Greenhouse Gasses May be Held Liable for the Effects of Global Warming?

As climate change litigation proceeds throughout the country, three cases, Comer v. Murphy Oil, Connecticut v. American Electric Power and Native Village of Kivalina v. ExxonMobil, provide indications of the Supreme Court's potential role in shaping the legal landscape of climate change. The Fifth Circuit's May 28, 2010 order dismissing the en banc appeal in Comer has provided renewed interest in this issue.

In Comer, property owners along the Gulf Coast brought a putative class action alleging the activities of energy, chemical and fossil fuel companies had contributed to global warming. The class claimed that greenhouse gas (GHG) emissions from the defendants’ operations contributed to rising sea levels and severe hurricanes resulting, ultimately, in property damage. The district court granted defendants’ motion to dismiss, finding plaintiffs’ claims presented non-justiciable political questions. A Fifth Circuit panel disagreed and the case was remanded for arguments on the merits. Defendants immediately moved for a rehearing en banc.

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