Hungry young polar bear at Seal River Lodge, Churchill, Oct 08
On Friday, October 16, a second major US appeals court ruled that victims of climate change can sue polluters. In Comer v. Murphy Oil USA (5th Cir.), victims of Hurricane Katrina sued a number of companies that produce fossil fuels for causing greenhouse gas emissions that contributed to climate change and thereby added to Katrina’s ferocity. In District Court, the defendants had successfully moved to strike out the claim, on the ground that the plaintiffs lacked standing and that issues of climate change are not justiciable (suitable for decision by courts). On appeal, the Fifth Circuit allowed the victims’ claim to proceed to trial. It ruled that the plaintiff landowners do have standing to assert claims in public and private nuisance, trespass, and negligence claims, and that none of these claims are nonjusticiable political questions.This echoes the September decision of the Second Circuit in Connecticut v. American Electric that we described last month. Both decisions are likely headed to the Supreme Court, which has been uniformly hostile to environmental issues in its last term.
Meanwhile, Friends of the Earth are arguing a strikingly similar question in front of Canada’s Federal Court of Appeal. The Federal Court ruled that Canada’s breach of the Kyoto Protocol Implementation Act, a Canadian statute, was not justiciable, because climate change is too complex; FoE should win its appeal.