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Fifth Circuit Upholds Dismissal of Katrina Global Warming Suit

On May 14, the U.S. Court of Appeals for the Fifth Circuit affirmed a lower court’s dismissal of a lawsuit brought by a group of Mississippi Gulf Coast residents and property owners against energy companies whose emissions they alleged contributed to global warming, which intensified Hurricane Katrina, which, in turn, damaged their property. The Fifth Circuit held that the plaintiffs’ claims were barred by the doctrine of res judicata, which bars the re-litigation of a claim that has been decided on the merits in a prior action.

The case presented an unusual procedural situation. Plaintiffs originally brought their claims in Mississippi federal court in 2005. The district court dismissed the case, and a panel of the Fifth Circuit reversed and remanded, in part, the district court’s decision. Before the panel opinion’s mandate issued, six of this court’s nine active, unrecused judges voted to rehear the case en banc, thus vacating the panel’s opinion. However, before the en banc court reheard the case, an additional judge was recused, leaving the Fifth Circuit without a quorum (eight of the court’s sixteen active judges having been recused). Because it lacked a quorum, the court dismissed the appeal.

After unsuccessfully seeking Supreme Court review, the plaintiffs filed a new complaint asserting substantially similar claims in the same district court in 2011. The district court dismissed the claims on several grounds, including res judicata. The Fifth Circuit affirmed, holding that although the original district court decision was never subject to meaningful appellate review, it still constituted a final judgment on the merits for purposes of res judicata.

The case is Comer v Murpy Oil USA, Inc., No. 12-60291 (5th (Cir.).

© 2020 Beveridge & Diamond PC National Law Review, Volume III, Number 152


About this Author

Karen M. Hansen Water Regulation Attorney Beveridge & Diamond Austin, TX

Karen Hanson’s practice focuses on the Clean Water Act and state programs for regulating and permitting water discharges and water supply/use, and on environmental, health, and safety audit review and implementation. 

She has extensive experience assisting industrial and municipal clients in preparing strategies for and pursuing water permits for ongoing operations, expansions and new operations, including permit challenges. Karen also represents clients that must defend CWA and state water law enforcement actions, including claims pursued by governmental as well as third party...

Madeleine Boyer Environmental Attorney Beveridge Diamond

Maddie brings 25 years of experience providing strategic and solutions-oriented counseling and representation on a broad range of US and Latin American environmental, health and safety standards.

Her portfolio includes environmental regulatory counseling; audit oversight and support; supply chain and product stewardship advocacy and compliance; and high-stakes enforcement matters. Her domestic caseload currently includes air and waste matters before the US Department of Justice, the Office of the Attorney General of the State of Texas, the US Environmental...

Laura L. LaValle Clean Air Act Attorney Beveridge & Diamond Austin, TX
Office Managing Principal

Laura's practice has focused on Clean Air Act matters for over 20 years.

Laura's air quality experience includes advising and representing entities on a broad range of permitting, compliance, and policy issues. She has represented chemical manufacturing operations, electric utilities, petroleum refineries, oil and gas pipelines and terminal facilities, alternative/renewable energy operations including solar energy projects, landfills and waste combustors, steel manufacturing facilities, mining operations, and other facility types regarding federal and state permitting and compliance...