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Mississippi Lawsuit Claims Link Between Emissions and Katrina

October 26, 2009
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The U.S. Court of Appeals for the Fifth Circuit in New Orleans has ruled that a group of Mississippi landowners can move forward with a lawsuit in which they claim gas and coal companies contributed to global warming and "added to the ferocity of Hurricane Katrina" by emitting greenhouse gases (GHG).

Plaintiffs in the case Ned Comer et al. vs. Murphy Oil USA et al. (No. 07-60756) allege that the operations of defendants including Shell Oil Co., ExxonMobil Corp., AES Corp., BP Products NA, ConocoPhillips Co., Duke Energy Corp. and Chevron USA Inc. resulted in a rise in sea levels and helped increase the power of Katrina, "which combined to destroy the plaintiffs' private property, as well as public property useful to them."

In a decision issued Oct. 16, the appeals court said the landowners had pleaded sufficient facts to move ahead with their putative class action claims for compensatory and punitive damages based on Mississippi common-law actions of public and private nuisance, trespass and negligence. The trespass claim asserts that the companies' GHG emissions caused ocean water and debris to enter the plaintiffs' property and the negligence claim asserts that the companies breached their responsibility to conduct their businesses "so as to avoid unreasonably endangering the environment, public health, public and private property, and the citizens of Mississippi."

The court dismissed the plaintiffs' claims of unjust enrichment, civil conspiracy and fraudulent misrepresentation. The landowners had alleged that the companies artificially inflated the price of natural gas and other petrochemicals, and "disseminated misinformation" about the dangers of GHG emissions.

The defendants had moved to dismiss all of the claims on the grounds that the plaintiffs lacked standing and that the claims presented nonjusticiable political questions. A district court had granted that motion, and the landowners appealed the decision.

The appeals court said the defendants' main contentions were similar to those rejected by the U.S. Supreme Court in Massachusetts v. Environmental Protection Agency (see NGI, April 9, 2007). In that case the Supreme Court "accepted as plausible the link between man-made greenhouse gas emissions and global warming," the appeals court said.

In its decision the appeals court noted that it could not say if the landowners' claims meet the standards of Mississippi tort law, leaving that decision to the district court.

Last month a federal appeals court panel reinstated a lawsuit brought by eight states in 2004 against five of the largest U.S. utilities over their carbon dioxide emissions. The states argued that GHG emissions from American Electric Power, Southern Company, Xcel Energy Inc., Cinergy Corp. (now Duke Energy) and the Tennessee Valley Authority (TVA) public power system were a public nuisance that caused irreparable harm to property. Xcel, Cinergy/Duke and TVA are also defendants in the Mississippi case.

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