The Power of One: Citizen Suits in the Fight Against Global Warming

Abstract

Plaintiffs seeking compensation from the effects of global warming have encountered challenging legal barriers. Until 2009, courts consistently dismissed global warming suits as political questions or for lack of standing. In Comer v. Murphy Oil USA, property owners along the Mississippi Gulf coast sued oil and energy companies in nuisance for emitting greenhouse gases that contributed to global warming and added to the intensity of Hurricane Katrina, which damaged their property. In 2009, the Fifth Circuit surprisingly held that a class of private citizens could satisfy both standing and the political question doctrine in a global warming suit. However, after winding through a complex procedural pathway, that decision was ultimately vacated the following year following the denial of a writ of mandamus by the Supreme Court. Comer’s companion case in the Second Circuit, American Electric Power, Co., has been granted certiorari by the Supreme Court. That case should resolve the primary issues from Comer, namely standing and justiciability. It also marks the first opportunity for the Supreme Court to rule on the legitimacy of public nuisance claims against greenhouse-gas-emitting companies for injury from global warming. It is likely that the plaintiffs will be unable to prove causation, even if they succeed on the contentious issues of standing and justiciability.