Katrina Victims Can Sue Big Oil, Coal Companies Over Global Warming

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Mississippi Gulf Coast residents and property owners can pursue oil, chemical and coal companies for allegedly contributing to global warming that lead to the enormous power and destruction of Hurricane Katrina in that region, according to a court decision issued Oct. 16.

In 2006, these plaintiffs filed a class action in Mississippi federal court, alleging that the emissions of greenhouse gasses by the defendant companies contributed to increased sea levels and surface air and ocean water temperatures, which set the stage for Hurricane Katrina to destroy plaintiffs’ property. Defendants include companies such as ExxonMobil, Chevron, Hess, BP and ConocoPhillips. A dispute ensued as to whether the plaintiffs could even legally assert specific claims.

Last week, the Fifth Circuit U.S. Court of Appeals said the class action’s claims for public and private nuisance, trespass and negligence could go ahead and are not political questions best resolved in another forum. These claims allege that the oil, chemical and coal companies intentionally and unreasonably conducted operations resulting in massive emissions of greenhouse gas emissions, fueling global warming; causing saltwater, debris, and hazardous substances to end up on plaintiffs’ property; and failed to avoid harming the environment, public health, public and private property, and the citizens of Mississippi.

However, the federal appeals court dismissed the plaintiffs’ claims for unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims.

The appeals court did say that the defendant companies’ arguments against the class action claims have been rejected by the U.S. Supreme Court in another case, Massachusetts v. EPA. The companies argued that traceability is lacking because the causal link between emissions, sea level rise, and Hurricane Katrina is too attenuated, and that their actions are only part of many contributions to greenhouse gas emissions.

The court relied on recent decision by the Second Circuit U.S. Court of Appeals issued Sept. 21 reinstating a case brought by several state attorneys general, the City of New York, and three land trusts against six electric power companies, alleging that the companies’ greenhouse gas emissions were a public nuisance.

The Fifth Circuit court remanded the Mississippi plaintiffs’ matter to the U.S. District Court for the Southern District of Mississippi, which will eventually determine if a causal link exists.

The Fifth Circuit’s decision is in contrast to a California federal judge’s dismissal of a similar global warming suit on Sept. 30, reasoning that an Alaskan village lacked standing to sue and the issues it raised should be resolved through the political process. In that lawsuit, the Village of Kivalina asserted that decades of carbon dioxide emissions from electric utilities has elevated temperatures, causing ice to melt and consequently lead to erosion of the Kivalina coast.