Cases & Deals

Xcel Energy wins motion to dismiss in global climate change class action suit related to property damage caused by Hurricane Katrina

Client(s) Xcel Energy Inc.

Jones Day client Xcel Energy's motion to dismiss was granted in Comer v. Murphy Oil USA ("Comer II"), the global climate change litigation based on Hurricane Katrina, by Judge Louis Guirola, Jr., in the Southern District of Mississippi. The case was before Judge Guirola for a second time, having been originally dismissed by him in 2007 ("Comer I"). A three-judge panel of the Fifth Circuit initially reversed Comer I in part, but rehearing en banc was granted, vacating that panel's decision. Following several recusals, however, the Fifth Circuit concluded that it did not have a quorum and dismissed the appeal, reinstating the district court's original judgment for defendants. Rather than seek certiorari, plaintiffs filed a writ of mandamus, which was denied by the U.S. Supreme Court in January 2011.

Plaintiffs then re-filed Comer II in May 2011, and defendants moved to dismiss. In granting defendants' motions, the Court initially concluded that plaintiffs' claims were barred by res judicata and collateral estoppel as a result of Comer I, but went on to rule broadly for defendants on multiple grounds, including favorable rulings on issues briefed by Jones Day as part of the joint defense briefing effort. In its order, the Court addressed a number of issues that may be of broad interest where public nuisance claims are asserted or the remoteness bar to proximate cause is at issue. The Court agreed with defendants that plaintiffs could not establish Article III standing because they could not establish the necessary causation element, concluding that plaintiffs' injuries were not "fairly traceable" to defendants' greenhouse gas emissions. Pursuant to the Supreme Court's decision last year in AEP v. Connecticut (where Jones Day also represented Xcel Energy), the Court also concluded that plaintiffs' federal and state law claims are displaced by the Clean Air Act, rejecting plaintiffs' argument that their damage suit was not governed by AEP. And the Court found that plaintiffs could not establish proximate cause because their claims were simply too "remote, improbable and extraordinary" and that they "have not asserted a plausible claim for relief under state law."

Barring another appeal, this will conclude successfully two of the three global warming lawsuits wherein Jones Day has represented Xcel Energy. A third case, Kivalina v. ExxonMobil Corp., was also dismissed by the district court and remains pending in the Ninth Circuit.

Ned Comer, et al. v. Murphy Oil USA, Inc., et al., No. 1:11CV220-LG-RHW (S.D. Miss.), appeal filed, No. 12-60291 (5th Cir. Ct. App.)