LOUIS GUIROLA, JR., Chief Judge.
On September 20, 2005, Ned Comer, Brenda Comer, and Joseph Cox,
The plaintiffs filed a First Amended Complaint that added the following plaintiffs as parties: Eric Haygood, Brenda Haygood, Larry Hunter, Sandra L. Hunter, Mitchell Kisielewski, and Johanna Kisielewski.
The plaintiffs filed a Third Amended Complaint
On August 30, 2007, this Court conducted a hearing concerning the Coal Companies' Motion to Dismiss [146]. The Court held that the plaintiffs did not have standing to bring the lawsuit, because their injuries were not fairly traceable to the actions of the defendants. (Order, No. 1:05cv436, ECF No. 368). The Court also held that the plaintiffs' claims were non-justiciable pursuant to the political question doctrine. (Id.) Because the Court found that it did not have jurisdiction to hear any of the plaintiffs' claims, the plaintiffs' Motion for permission to file a fourth amended complaint and all other pending motions were rendered moot. (Tr. 41-42, ECF No. 207-8). A Judgment was entered dismissing the plaintiffs' claims. (J., No. 1:05cv436, ECF No. 369). The plaintiffs appealed this Court's Judgment. (Notice of Appeal, No. 1:05cv436, ECF No. 370).
On October 16, 2009, a Fifth Circuit panel of three judges reversed in part this Court's decision with regard to the plaintiffs' state claims of public and private nuisance, trespass, and negligence. Comer v. Murphy Oil USA, 585 F.3d 855, 880 (5th Cir.2009). However, the Fifth Circuit panel agreed that the plaintiffs' unjust enrichment, civil conspiracy, and fraudulent misrepresentation claims should be dismissed for lack of standing. Id. at 879-80. The defendants filed a petition for rehearing en banc. Several of the Fifth Circuit Court of Appeals judges were disqualified from participating in the case, but a rehearing en banc was granted by a majority of the remaining nine judges on February 26, 2010. Comer v. Murphy Oil USA, 598 F.3d 208, 210 n. 1 (5th Cir.2010). After the rehearing en banc had been granted, "new circumstances arose that caused the disqualification and recusal" of another appeals court judge. This resulted in the loss of a quorum before the en banc panel of the Fifth Circuit Court of Appeals. Comer v. Murphy Oil USA, 607 F.3d 1049, 1053-54 (5th Cir.2010). The Fifth Circuit held that it was not authorized to transact judicial business in the absence of a quorum. Id. at 1054. Therefore, it directed the Clerk to dismiss the plaintiffs' appeal. Id. at 1055. The Fifth Circuit also explained that the panel opinion was lawfully vacated before the Court lost its quorum, and due to the subsequent loss of the quorum, it could not reinstate the panel opinion. Id. Since the panel opinion was vacated, there was no Fifth Circuit opinion or judgment upon which a mandate could issue. Id. The Court noted, however, that the parties had the right to petition the Supreme Court of the United States. Id.
The plaintiffs chose not to file a petition for a writ of certiorari as to the merits of their appeal, but they filed a petition for a writ of mandamus asking the Supreme Court to order the Fifth Circuit to reinstate their appeal. (Defs.' Mot., Ex. 25, ECF No. 207-25). The Supreme Court denied the plaintiffs' petition on January 10, 2011. In re Ned Comer, ___ U.S. ___, 131 S.Ct. 902, 178 L.Ed.2d 807 (2011).
On May 27, 2011, Ned Comer, Brenda Comer, Eric Haygood, Brenda Haygood, Larry Hunter, Sandra L. Hunter, Mitchell
In support of their nuisance claims, which are filed pursuant to both federal and state common law, the plaintiffs allege that the defendants' activities are among the largest sources of greenhouse gases that cause global warming. (Id. at 10, 13). The plaintiffs claim that global warming led to high sea surface temperatures and sea level rise that fueled Hurricane Katrina, which damaged the plaintiffs' property. (Id. at 13-14). They allege that global warming has caused them to incur higher insurance premiums and has lowered the resale value of their homes due to the increased risk of tropical storm activity, wind damage, and flood damage. (Id. at 15). Furthermore, the plaintiffs claim that the defendants' emissions constitute an unreasonable invasion of the plaintiffs' property rights. (Id.) Because they live in low-lying coastal areas on or near the Gulf of Mexico, the plaintiffs claim that they have suffered more severe injuries that the general public. (Id. at 16). In addition, the plaintiffs claim that the sea level rise causes saltwater intrusion, loss of habitat for hunting and fishing, and the submersion of public and private property. (Id. at 16). All of these effects of global warming, according to the plaintiffs, have resulted in the loss of the use and quiet enjoyment of their property. (Id.)
In support of their trespass claim, the plaintiffs argue that the defendants' emissions have caused saltwater, debris, sediments, hazardous substances, and other materials to enter and damage their property. (Id. at 17). In support of their negligence claim, the plaintiffs state that the defendants have a duty to conduct their business in a way that does not unreasonably endanger the environment, public health, and public and private property. (Id.) The plaintiffs allege that the defendants' emissions constitute a breach of that duty. (Id. at 18). The plaintiffs also contend that the defendants should be held strictly liable for the injuries that result from their emissions. (Id.) The plaintiffs state:
(Id.) The plaintiffs seek compensatory and punitive damages as a result of the defendants' conduct. (Id. at 19-20).
The defendants have filed four separate but similar Motions to Dismiss the plaintiffs'
Some of the defendants argue that this lawsuit is barred by the doctrines of res judicata and collateral estoppel. "The res judicata effect of a prior judgment is a question of law...." Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004). "Claim preclusion, or res judicata, bars the litigation of claims that either have been litigated or should have been litigated or should have been raised in an earlier suit." In re Southmark Corp., 163 F.3d 925, 934 (5th Cir.1999). Res judicata bars a claim if the following four requirements are met: "(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions." Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.2005).
As for the first requirement, the eleven plaintiffs in the present lawsuit were also plaintiffs in the 2005 lawsuit. They have also named additional new defendants in the present lawsuit. However, the plaintiffs attempted to name several of those new defendants in a proposed Fourth Amended Complaint in the 2005 lawsuit. "[T]he naming of additional parties does not eliminate the res judicata effect of a prior judgment `so long as the judgment was rendered on the merits, the cause of action was the same and the party against whom the doctrine is asserted was a party to the former litigation.'" United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 249 (9th Cir.1992) (quoting Dreyfus v. First Nat'l Bank of Chicago, 424 F.2d 1171, 1175 (7th Cir.), cert. denied, 400 U.S. 832, 91 S.Ct. 64, 27 L.Ed.2d 63 (1970)).
Furthermore, in the 2005 lawsuit, this Court dismissed all of the plaintiffs' claims against all of the defendants, even those that had not joined in a Motion to Dismiss, and mooted the plaintiffs' proposed Fourth Amended Complaint, because the Court determined that it did not have jurisdiction to hear any of the plaintiffs' claims. The naming of additional defendants to the present lawsuit does not destroy the identity of the parties, particularly since the Court refused to permit the plaintiffs to
The second requirement — the judgment in the prior action was rendered by a court of competent jurisdiction — is also satisfied. "[I]t is familiar law that a federal court always has jurisdiction to determine its own jurisdiction." United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Therefore, this Court had the authority to determine whether it had jurisdiction over the 2005 lawsuit.
The third requirement of res judicata demands that the prior action was concluded by a final judgment on the merits. First, the judgment entered in the 2005 lawsuit was final. Although it was reversed by a Fifth Circuit panel, the panel opinion was vacated, and no mandate was issued reversing or setting aside this Court's 2005 judgment. "Until a mandate issues, an appellate judgment is not final; the decision reached in the opinion may be reversed by the panel, or reconsidered by the en banc court, or certiorari may be granted by the Supreme Court." Flagship Marine Servs. v. Belcher Towing Co., 23 F.3d 341, 342 (11th Cir.1994), quoted with approval in Charpentier v. Ortco Contractors, 480 F.3d 710, 713 n. 10 (5th Cir.2007). As the Fifth Circuit stated in its Order dismissing the plaintiffs' appeal, the plaintiffs could have filed a petition for writ of certiorari with the United States Supreme Court, but they chose not to do so. Therefore, this Court's 2005 Judgment was never overturned, and it remained a final judgment.
Furthermore, this Court's 2005 Judgment was on the merits for the purposes of res judicata.
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980).
As for the fourth requirement, the Fifth Circuit has adopted a transactional test for determining whether two cases involve the same claim or cause of action. Singh, 428 F.3d at 571. "Under the transactional test, a prior judgment's preclusive effect extends to all rights of the plaintiff with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose." Id. "If a party can only win the suit by convincing the court that the prior judgment was in error, the second suit is barred." Id.
In the plaintiffs' Memorandum, they admit:
(Pls.' Mem. 1, ECF No. 285) (emphasis added). In addition, it is clear that the
The Court finds that this lawsuit is also barred by the doctrine of collateral estoppel.
Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 583 F.3d 348, 353 (5th Cir.2009). Collateral estoppel does not require that the parties be identical, as long as the party opposing collateral estoppel had the full and fair opportunity to litigate the issue in the prior lawsuit. Id. All of the elements of collateral estoppel are clearly satisfied in this lawsuit. As explained previously, the plaintiffs have conceded that this lawsuit is nearly identical to the 2005 lawsuit. The issues of whether the plaintiffs have standing to assert their claims and whether the lawsuit presents a political question were raised in the prior lawsuit, contested by the plaintiffs, and determined by the Court. Finally, the Court's determinations regarding the issues in the prior lawsuit were undisputedly critical and necessary to the judgment entered.
Nevertheless, out of an abundance of caution, the Court will once again address whether the plaintiffs have standing and whether this lawsuit presents a political question. The Court will also address additional arguments for dismissal made by the defendants including preemption, the statute of limitations, and the lack of proximate cause.
A Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction should be granted "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitled him to relief." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Id. A district court "may base its disposition of a motion to dismiss for lack of subject matter jurisdiction on (1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Robinson v. TCI/US W. Commc'ns, Inc., 117 F.3d 900, 904 (5th Cir. 1997).
The doctrine of standing arises out of Article III, Section 2 of the United States Constitution, which provides that the federal judicial power shall only extend to actual "cases or controversies." See U.S. Const. art. III, § 2, cl. 1. The doctrine of constitutional standing consists of three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered an injury in fact, which consists of an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Id. Second, a causal connection must exist between the injury complained of and the defendant's conduct. Id. Third, it must be likely that the injury will be redressed by a favorable
The only element of standing that is at issue in the present case is the causal connection element. This "causation element does not require a party to establish proximate cause, but only requires that the injury be `fairly traceable' to the defendant." League of United Latin Amer. Citizens v. City of Boerne, 659 F.3d 421, 431 (5th Cir.2011). In order to demonstrate this element, the plaintiff must show "that it is substantially probable ... that the challenged acts of the defendant, not of some absent third party, will cause the particularized injury of the plaintiff." Ctr. for Biological Diversity v. U.S. Dep't of the Interior, 563 F.3d 466, 478 (D.C.Cir. 2009); see also Allen v. Wright, 468 U.S. 737, 759, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (noting that the chain of causation asserted by the plaintiffs is particularly weak where it involves numerous third parties). "The more attenuated or indirect the chain of causation between the [defendant's] conduct and the plaintiff's injury, the less likely the plaintiff will be able to establish a causal link sufficient for standing." Ctr. for Biological Diversity, 563 F.3d at 478 (citing Allen, 468 U.S. at 757-58, 104 S.Ct. 3315).
In Massachusetts v. Environmental Protection Agency, the United States Supreme Court addressed the issue of standing in the context of injuries allegedly caused by global warming. Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). Massachusetts, local governments, and environmental organizations petitioned for review of an EPA order denying a petition for rulemaking regulating greenhouse gases emitted by motor vehicles under the Clean Air Act. Id. at 514, 127 S.Ct. 1438. The Court explained that it was only necessary for one of the plaintiffs in that lawsuit to have standing to permit the Supreme Court to consider their petition for review. Id. at 518, 127 S.Ct. 1438. The Court emphasized "the special position and interest of Massachusetts," and stated: "It is of considerable relevance that the party seeking review is a sovereign State, and not, as it was in Lujan, a private individual." Id. The Court noted that Massachusetts filed the lawsuit in its capacity of quasi-sovereign, and thus, the Court determined that it was entitled to "special solicitude" in the Court's standing analysis. Id. at 520, 127 S.Ct. 1438. The Court stated that the EPA's refusal to regulate emissions presented a risk of harm to Massachusetts that was actual and imminent, since the emissions caused rising sea levels that, according to affidavits presented by Massachusetts, had "already begun to swallow Massachusetts' coastal land." Id. at 522, 127 S.Ct. 1438. Therefore, the Court held that Massachusetts had alleged a particularized injury. Id.
When considering whether the alleged injury was fairly traceable to the EPA's inaction, the Court stated: "EPA does not dispute the existence of a causal connection between manmade greenhouse gas emissions and global warming. At a minimum, therefore, EPA's refusal to regulate such emissions `contributes' to Massachusetts' injuries." Id. at 523, 127 S.Ct. 1438. The Court recognized that "predicted increases in greenhouse gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease [in emissions]," but
In American Electric Power Company v. Connecticut, four Supreme Court justices determined that Connecticut and other states had standing to file a lawsuit seeking injunctive relief requiring electric power corporations to cap and reduce their greenhouse gas emissions. Amer. Elec. Power Co. v. Connecticut, ___ U.S. ___, 131 S.Ct. 2527, 2534-35, 180 L.Ed.2d 435 (2011).
In the present lawsuit, the plaintiffs primarily rely on Clean Water Act cases for support of their contention that they are only required to allege that the defendants' emissions contributed to the kinds of injuries that they suffered. This argument is actually derived from the last element of a three-part test adopted by the Fifth Circuit. In Friends of the Earth, Inc. v. Crown Central Petroleum Corporation, the Fifth Circuit explained:
Friends of the Earth, Inc. v. Crown Cent. Petrol. Corp., 95 F.3d 358, 360-61 (5th Cir.1996) (emphasis added). In Crown Central, the Court held that the Powell Duffryn test may not be useful in cases where the waterway at issue is very large. Id. at 361. In those cases, the Court stated that plaintiffs should demonstrate a "more specific geographic nexus" to satisfy the causation element of standing. Id. The Court held that the waterway at issue in the Crown Central case was too large to infer causation solely from the use of some portion of it. Id. Specifically, the plaintiffs in Crown Central utilized a lake that was eighteen miles downstream from the location of the defendant's discharge. Id. The Court explained, "At some point ... we can no longer assume that an injury is fairly traceable to a defendant's conduct solely on the basis of the observation that water runs downstream." Id.
According to the EPA,
Connecticut, 131 S.Ct. at 2532 (quoting 74 Fed.Reg. 66499 (2009)). "Greenhouse gases once emitted `become well mixed in the atmosphere,' 75 Fed.Reg. 66514; emissions in New Jersey may contribute no more to flooding in New York than emissions in China." Id. at 2536. The Supreme Court recognized that the EPA has determined that greenhouse gas emissions create the following dangers: rising sea levels, more frequent and intense hurricanes, floods, coastal inundation and erosion, heat-related deaths, extreme weather events, drought, and destruction of ecosystems supporting animals and plants, but the Court recognized that there is some debate concerning whether the EPA's findings are correct. Id. at 2533 & n. 2. The Court cautioned that it "endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change." Id. at 2533 n. 2.
Contrary to the plaintiffs' assertions in the present case, the EPA's findings that
It is insufficient for the plaintiffs to allege that the defendants' emissions contributed to the kinds of injuries that they suffered. As explained previously, the contribution requirement relied upon by the plaintiffs is merely one of three required elements for demonstrating the causation requirement of Constitutional standing in Clean Water Act cases. There is no legal basis for adopting a more lenient causation standard in global warming lawsuits than that adopted in Clean Water Act cases. In fact, the proof of a chain of causation in Clean Water Act cases is far less demanding than in global warming cases. Clean Water Act cases generally pertain to source point pollution occurring in a single body of water, while global warming cases pertain to pollution in the form of green house gases that are released all over the planet.
This difference is particularly demonstrated by the Crown Central case, in which the Fifth Circuit held that plaintiffs who utilized a lake that was located a mere eighteen miles from the site at which the pollution was discharged did not have standing to file a lawsuit against the plant that released the water pollution. This Court recognizes that the Crown Central case pertained to a motion for summary judgment, while the present lawsuit is at the pleading stage, but the alleged chain of causation in the present case, is by far and away, more tenuous than the causal chain alleged in the Crown Central.
The Massachusetts and Connecticut cases also support the finding that the plaintiffs in the present case lack standing. The United States Supreme Court pointed out that it has not held that private citizens have standing to assert global warming claims. In fact, the Supreme Court was only able to find that Massachusetts had standing to sue the EPA for failure to regulate emissions by granting it "special solicitude" due to its sovereign status. And, in the Connecticut case, only a plurality of the Supreme Court found that states have standing to sue companies that release emissions due to that same "special solicitude." All of the plaintiffs in the present lawsuit are private citizens, who have no sovereign status. Although it is true that the Supreme Court determined that Massachusetts had standing based on the allegation that the EPA's failure to regulate merely contributed to Massachusetts' alleged injuries, this does not mean that the private citizen plaintiffs in the present case can demonstrate the causal connection standard by showing a mere contribution to similar injuries. If contribution were enough, presumably there would have been no need for the Supreme Court to grant Massachusetts special solicitude in its standing analysis.
Furthermore, the causal connection would be even more difficult to establish in the present case than in the Massachusetts and Connecticut cases. Here the plaintiffs
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. The Court finds that the plaintiffs have not alleged injuries that are fairly traceable to the defendants' conduct, and thus, the plaintiffs do not have standing to pursue this lawsuit.
"`[T]he concept of justiciability,' as embodied in the political question doctrine, `expresses the jurisdictional limitations imposed upon federal courts by the case or controversy requirement of Art[icle] III.'" Spectrum Stores, Inc. v. Citgo Petrol. Corp., 632 F.3d 938, 948 (5th Cir.2011) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)). "At its core, the political question doctrine, `excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.'" Id. at 949 (quoting Japan Whaling Ass'n v. Amer. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)). "The dominant consideration in any political question inquiry is whether there is a `textually demonstrable constitutional commitment of the issue to a coordinate political department.'" Id. at 950 (quoting Saldano v. O'Connell, 322 F.3d 365, 369 (5th Cir.2003)). However, the existence of a constitutional commitment is not the only consideration, nor is this Court aware of any authority that makes it a threshold consideration.
Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The Supreme Court later classified the Baker elements as "six independent tests" for determining the existence of a political question, and surmised that the tests are probably listed in "descending order of both importance and certainty." Vieth v. Jubelirer, 541 U.S. 267, 277-78, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004).
Id. at 278, 124 S.Ct. 1769. "[T]he potential for a clash between a federal court and other branches of the federal government is fundamental to the existence of a political question; a simple conflict between a federal court and state agencies does not implicate the doctrine." Saldano, 322 F.3d at 370 (quoting Gordon v. Texas, 153 F.3d 190, 194 (5th Cir.1998)).
The Supreme Court held that the Massachusetts case did not present a political question. However, that case is distinguishable from the present lawsuit. In Massachusetts, "[t]he parties' dispute turn[ed] on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court." Massachusetts, 549 U.S. at 516, 127 S.Ct. 1438. Moreover, as explained previously, the Massachusetts case arose out of the EPA's failure to act; it did not concern a nuisance lawsuit against emitters of carbon dioxide. See id. at 510-514, 127 S.Ct. 1438. In fact, the Supreme Court stated that it possessed neither the expertise nor the authority to evaluate the policy judgments that EPA offered as justification for refusing to regulate motor-vehicle emissions, such as issues involving foreign relations. Id. at 533, 127 S.Ct. 1438.
In the Connecticut lawsuit, the Supreme Court explained:
Connecticut, 131 S.Ct. at 2533.
Here, the plaintiffs contend that they are not asking this Court to regulate emissions or to make policy determinations concerning climate change. (Am. Compl. 12, ECF No. 28). However, in portions of their Amended Complaint, it is clear that plaintiffs ask the Court to determine that the defendants' levels of emissions are "unreasonable." For example, the plaintiffs allege in their Amended Complaint:
(Am. Compl. 17-18, ECF No. 28) (emphasis added). The plaintiffs also allege that "[t]he injuries caused by Defendants' emissions are an unreasonable invasion of Plaintiffs' property rights." (Am. Compl. 15, ECF No. 28) (emphasis added). Thus, the plaintiffs are asking the Court, or more specifically a jury, to determine without the benefit of legislative or administrative regulation, whether the defendants' emissions are "unreasonable". Simply looking to the standards established by the Mississippi courts for analyzing nuisance, trespass, and negligence claims would not provide sufficient guidance to the Court or a jury. As some of the defendants argue in their Memorandum, the plaintiffs in the present case call upon a jury to:
(Defs.' Mem. 42, ECF No. 210).
Similarly, the plaintiffs in Connecticut were asking the federal court to determine what amount of carbon-dioxide emissions is unreasonable. Connecticut, 131 S.Ct. at 2539. The Supreme Court held that judgments concerning the reasonableness of greenhouse gas emissions are properly committed to the EPA, and if district courts were to make such judgments, those judgments would interfere and potentially conflict with the EPA's actions. Id. at 2540.
It is unclear how this Court or any jury, regardless of its level of sophistication, could determine whether the defendants' emissions unreasonably endanger the environment or the public without making policy determinations that weigh the harm caused by the defendants' actions against the benefits of the products they produce. Our country, this Court, and even the plaintiffs themselves rely on the products the defendants produce. As the Supreme Court stated:
Connecticut, 131 S.Ct. at 2539-40. The Court finds that the claims presented by the plaintiffs constitute non-justiciable political questions, because there are no judicially discoverable and manageable standards for resolving the issues presented, and because the case would require the Court to make initial policy determinations that have been entrusted to the EPA by Congress.
In the Connecticut case, the United States Supreme Court stated: "We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants." Connecticut, 131 S.Ct. at 2537 (emphasis added). The Court did not reach the issue of whether the Clean Air Act preempted the plaintiffs' state common law nuisance claims, because the parties had not briefed that issue. Id. at 2540.
Here, the plaintiffs argue that the Connecticut case is limited to federal common law nuisance claims for injunctive relief. However, as previously explained, the Connecticut Court expressed concern that the plaintiffs were calling upon the federal courts to determine what amount of carbon-dioxide emissions is unreasonable as well as what level of reduction is practical, feasible, and economically viable. Id. The Court explained that those determinations had been entrusted by Congress to the EPA, and the judgments the plaintiffs sought from federal judges could not be reconciled with the decision-making scheme enacted by Congress. Id. Therefore, the Court held that the federal common law of nuisance was displaced. Id.
In the present case, although the plaintiffs do not request injunctive relief, they are asking this Court to make similar determinations regarding the reasonableness of the defendants' emissions. As explained previously, the state law causes of actions asserted by the plaintiffs hinge on a determination that the defendants' emissions are unreasonable, and the plaintiffs' Amended Complaint specifically alleges that the defendants' emissions are unreasonable. See Glover ex rel. Glover v. Jackson State Univ., 968 So.2d 1267, 1277 (¶ 29) (Miss.2007); Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 662 (Miss.1995); Comet Delta v. Pate Stevedore Co. of Pascagoula, Inc., 521 So.2d 857, 860 (Miss.1988); Am. Compl. 15-16, 17-18, ECF No. 28. Therefore, the Court finds that the plaintiffs' entire lawsuit is displaced by the Clean Air Act.
Hurricane Katrina struck the Mississippi Gulf Coast on August 29, 2005. The present lawsuit was filed on May 27, 2011. The plaintiffs do not dispute that Mississippi's three-year statute of limitations, Miss.Code Ann. § 15-1-49, applies to all of their claims,
The savings statute provides:
Miss.Code. Ann. § 15-1-69. The Mississippi Supreme Court has held that the savings statute applies to cases "[w]here the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which [the plaintiff] can remedy or avoid by new process." Marshall v. Kansas City S. Rys. Co., 7 So.3d 210, 214 (¶ 16) (Miss.2009) (quoting Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 69 So. 710, 713 (1915)) (emphasis added). The statute is considered to be highly remedial and is liberally construed. Id. The Mississippi Supreme Court has held that the savings statute does not apply in situations where the original complaint was dismissed with prejudice. Estate of Pope ex rel. Payne v. Delta Health, 55 So.3d 1080, 1082 (¶ 11) (Miss.2011). When a dismissal with prejudice is entered, the plaintiff is not permitted to bring a subsequent lawsuit concerning the same claim or cause of action. Id. The remedy in that circumstance is an appeal. Id.
The plaintiffs are not entitled to invoke the savings statute with regard to any of their claims. Since a judgment of dismissal with prejudice was entered in the first lawsuit, the savings statute does not apply. Although the plaintiffs' appeal was dismissed, they were not left without a remedy. The Fifth Circuit notified the plaintiffs that they could petition the United States Supreme Court for a writ of certiorari, but the plaintiffs chose not to do so. Instead, they merely sought a writ of mandamus and waived their right to a review of this Court's Judgment.
Moreover, the plaintiffs overlook an important requirement for applicability of the savings statute — that the refiling of the cause of action must remedy the defect that caused the dismissal in the original case. See Marshall, 7 So.3d at 214 (¶ 16). For example, in Marshall v. Kansas City Southern Railways Company, the plaintiffs were permitted to re-file their lawsuit in state court after it became apparent that the federal court in which the case was previously preceding did not have jurisdiction to hear their case. Id. at 216 (¶ 28). In the present case, the plaintiffs' claims were not dismissed as a matter of form; their appeal was. The plaintiffs' claims were dismissed by a Judgment of dismissal with prejudice entered as a result of the political question doctrine and the plaintiffs' lack of standing. The plaintiffs
The plaintiffs also assert that they have alleged continuing torts, and therefore, the statute of limitations does not bar their claims. Under Mississippi law:
Amer. Gen. Life & Accident Ins. Co. v. Edwards, 76 So.3d 183, 186 (¶ 8) (Miss.Ct. App.2011) (internal quotations and citations omitted).
The plaintiffs' claims related to Hurricane Katrina accrued on August 29, 2005, the date on which the plaintiffs suffered damages. The remainder of the plaintiffs' claims pertain to a future risk of more severe storms and loss of property. These claims are not claims for damages that the plaintiffs have suffered, but are claims for damages that the plaintiffs may suffer in the future. The plaintiffs do not seek injunctive relief in this case. Therefore, these claims alleging a future risk of harm are not yet actionable. As a result, the Court finds that the only actionable claims filed by the plaintiffs are their claims concerning Hurricane Katrina, and those claims are barred by the statute of limitations.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Assuming for the sake of argument only that the plaintiffs have alleged injuries that are fairly traceable to the defendants' conduct, they certainly have not made allegations that satisfy the more stringent proximate cause standard under Mississippi law.
Alpha Natural Resources, Inc., Massey Energy Company, Peabody Energy Corporation, and Rio Tinto Energy America, Inc., have filed a Motion [211] for Rule 11 Sanctions. Fed.R.Civ.P. 11(b)(2) provides that when an attorney signs a pleading, he certifies that to the best of his knowledge, information, and belief, formed after conducting a reasonable inquiry that the claims asserted are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law.
The Coal Company defendants argue that the plaintiffs did not conduct a reasonable inquiry into the law before filing this case, because a reasonable inquiry would demonstrate that this lawsuit is barred by the doctrines of res judicata and collateral estoppel. The plaintiffs have never directly addressed the applicability of res judicata and collateral estoppel to this lawsuit, but they assert that their lawsuit was properly filed pursuant to the Mississippi savings statute. Although the Court has determined that the savings statute does not apply to the plaintiffs' claims, the Court finds that the plaintiffs maintained the good faith belief that the savings statute did in fact apply. As a result, the Court finds that the defendants' Motion for Sanctions should be denied.
For the reasons stated in this opinion, the Court finds that the plaintiffs' lawsuit should be dismissed with prejudice as to all defendants. All other pending Motions are therefore moot.
The Court finds that all of the plaintiffs' claims are barred by the doctrines of res judicata and collateral estoppel. Alternatively, the Court finds that the plaintiffs do not have standing to assert their claims, because their alleged injuries are not fairly traceable to the defendants' conduct. Moreover, the Court finds that this lawsuit presents a non-justiciable political question, and that all of the plaintiffs' claims are preempted by the Clean Air Act. The Court further finds that the plaintiffs' claims are barred by the applicable statute of limitations, and that the plaintiffs cannot possibly demonstrate that their injuries were proximately caused by the defendants' conduct.
