On Oct. 16, 2009, the U.S. Court of Appeals for the Fifth Circuit held that private plaintiffs—a putative class of residents and owners of land and property along the Mississippi Gulf Coast—could proceed with claims against certain U.S. energy companies based on an allegation that those defendants were responsible for greenhouse gas emissions that contributed to global warming, which, in turn, increased global surface air and water temperatures, which, in turn, increased the strength and damage caused by Hurricane Katrina when it struck the coast of Mississippi on Aug. 29, 2005. In doing so, the Fifth Circuit reversed the judgment of the District Court for the Southern District of Mississippi dismissing plaintiffs’ claims on standing and political question grounds.

The case in question, Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), came only a few weeks after the decision of the U.S. Court of Appeals for the Second Circuit in Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009). In that case, eight states (including New York), the City of New York and three U.S. land trusts (the Open Space Institute, Open Space Conservatory and the Audubon Society of New Hampshire) sued six U.S. electric companies operating in 20 states seeking abatement of their alleged contribution to the public nuisance of global warming. There, the Second Circuit reversed the judgment of the District Court for the Southern District of New York, which had dismissed the case on political question grounds.

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