Environmental Law Update - Bracewell & Guiliani, LLP
On October 16, the U.S. Court of Appeals for the Fifth Circuit revived a climate change lawsuit against corporate defendants in the energy and chemical sectors. The plaintiffs allege that greenhouse gases emitted by the defendants' operations were responsible for the property damage caused by Hurricane Katrina.
The Fifth Circuit disagreed with the district court's finding that global warming was a issue best addressed by the legislative and executive branches of government. In reaching its conclusion the Court apparently ignored the "political question doctrine," established by the Supreme Court in Baker v. Carr, 369 U.S. 186 (1962), which holds that courts should defer to the legislative and executive branches in certain circumstances. In the analysis of this doctrine the court ignored some of the 5 elements laid out by the Baker court and held that only one element in the disjunctive rule applied.
All of this comes on heels of the Second Circuit's reversal of a lower court's dismissal of a public nuisance suit alleging that emissions from a coal fired electric plant were partly responsible for global warming in Connecticut v. American Electric Power Co. Inc.
Some commentators predicted at the time of the second circuit's decision that the holding would breathe new life into climate change lawsuits that were previously "on the ropes." The question now is "which court will follow next?"
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