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Court reconsiders global warming ruling

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NEW ORLEANS—The 5th U.S. Circuit Court of Appeals' decision to rehear a case in which it previously allowed a global warming nuisance lawsuit to proceed suggests this traditionally conservative court may be rethinking its stance, environmental attorneys say.

Last October, a three-judge panel of the 5th Circuit allowed a group of Mississippi residents to sue a host of energy and chemical manufacturing companies for their alleged contributions to global warming that intensified the damage caused by Hurricane Katrina in 2005.

The 2006 suit, Ned Comer et al. vs. Murphy Oil USA Inc. et al., alleging nuisance, trespass and negligence, was dismissed in 2007 by a federal judge in Mississippi, who held that global warming nuisance suits raised political questions that were not appropriate for judicial review.

The appeals court panel, however, reversed that ruling last October and said the residents and landowners had legal standing to sue the companies for their alleged contributions to global warming.

The defendants appealed, and the appeals court decided last week that it will rehear the case en banc. However, because seven of the 16 judges sitting on the 5th Circuit have recused themselves, only nine justices will hear the case. Oral arguments are scheduled for the week of May 24.

“The fact that they wanted to take a second look implies that there's some question about whether the ruling should stand,” said John Nevius, a partner at Anderson Kill & Olick P.C. in New York, who has been following the case.

Mr. Nevius attributed the court's original finding to a 2007 decision by the U.S. Supreme Court in Massachusetts et al. vs. the Environmental Protection Agency et al., which held that greenhouse gases are pollutants under the Clean Air Act. This was further supported by the EPA's 2009 declaration that greenhouse gases endanger human health.

Victor Schwartz, general counsel to the American Tort Reform Assn. in Washington, which filed an amicus brief seeking the en banc hearing, said the court may be rethinking its previous decision because “every federal trial court that has heard similar global warming suits has dismissed those suits.”

Moreover, he said the court may be coming to the realization that the judicial branch should not regulate greenhouse gases. “Tort law is there to compensate people who have been injured by a defendant's action. It's not there to make global determinations,” Mr. Schwartz said.

“I believe the 5th Circuit's decision” to conduct an en banc review signals the “court's recognition that the elected branches of government are far better equipped than the judiciary to set policy on how energy should be produced, priced and consumed,” said William Stewart, a partner at Cozen O'Connor P.C. in Philadelphia, who has represented insurers in coverage cases involving some of the defendants.

Richard O. Faulk, chairman of the litigation department and environmental practice at Gardere Wynne Sewell L.L.P. in Houston, said the rehearing bodes well for the defendants because the 5th Circuit's makeup is largely conservative. Of the three justices who allowed the suit to stand, two were appointed by Democratic presidents. While those two will serve on the panel rehearing the case, so will seven Republican appointees.