In addition to stretching tort law to its outermost boundaries, plaintiffs’ attorneys are continuously looking for new ways to test the legal system to challenge manufacturers in America—going as far as filing lawsuits over issues that that many judges have ruled are not even within the judiciary’s purview to decide.

This brings us to one of the earliest climate change liability damages lawsuits, and our next case in MAP’s series of legally questionable, politically motivated cases against manufacturers: Comer v. Murphy Oil.

In 2005, a group of Mississippi residents, one of them a man named Ned Comer, filed a class action lawsuit against  oil, gas and chemical companies, including Murphy Oil, claiming the emissions released as a result of their work made Hurricane Katrina more severe and thus were partly responsible for the property damage incurred from the storm.

The complaint sought monetary damages for the plaintiffs’ losses in the aftermath of the hurricane and included claims for unjust enrichment, civil conspiracy, public and private nuisance, trespass, negligence, and fraudulent misrepresentation and concealment.

The defendants filed motions to dismiss, which were granted in 2007 by Chief Judge Louis Guirola of the U.S. District Court for the Southern District of Mississippi for two reasons: First, Judge Guirola said the suit lacked standing because the residents could not prove their losses were “fairly traceable” to the defendants’ actions. Second, he said their claims were “non-justiciable,” meaning they were not up to the judiciary’s discretion to decide because they would be making “initial policy determinations that have been entrusted to the [Environmental Protection Agency] by Congress.”

This latter reason for not hearing the case falls under the political question doctrine, which refers to the idea that an issue is so politically charged that courts should not hear the issue and should leave it to another branch of government. The political question doctrine is a legal term that has been raised time and again by the judiciary, including in American Electric Power v. Connecticut as a reason that courts are not the appropriate place for major public policy issues like climate change to be decided.

Following a round of appeals with the Fifth Circuit and a decision by the U.S. Supreme Court not to hear the case, the plaintiffs refiled their claim. This led the case to again fall into Judge Guriola’s court, but only briefly. The judge made a res judicata ruling, meaning the case had effectively already been argued and it cannot be heard again:

“As this Court stated in the first Comer lawsuit, the parties should not be permitted to engage in discovery that will likely cost millions of dollars, when the tenuous nature of the causation alleged is readily apparent at the pleadings stage of the litigation.”

In making this determination, Judge Guirola reaffirmed the Supreme Court’s unanimous decision in American Electric Power v. Connecticut that the concerns of the plaintiffs had a place elsewhere in our system of government. Despite the Supreme Court’s definitive position on where such arguments should be addressed, trial lawyers continue to pursue similar litigation wherever they can find a sympathetic ear.

As we saw in 2017, natural disasters such as hurricanes can devastate communities. Manufacturers in the United States are a part of those same communities, and we have demonstrated a commitment to protecting the environment through greater sustainability, increased energy efficiency and reducing emissions. Yet, our ability to continue this progress is hampered by these years-long lawsuits that ultimately have no place in a court of law. Our time and resources are better used elsewhere—for the benefit of all American communities.