1. Show slides 1-4 2. Ask: Who were the plaintiffs? What was the harm they complained of?

a. Owners of lands and property along Mississippi Gulf coast brought putative class action against oil companies and energy companies alleging the operation of their companies caused emission of greenhouse gases that contributed to global warming and added to ferocity of Hurricane Katrina which destroyed their property. i. Putative Class Action = must consist of a group of individuals or business entities that have suffered common wrong. [Plaintiffs are claiming to be representatives of a class seeking a damage remedy and will subsequently need to obtain class certification. Certification will require findings that questions of law and fact common to the class members predominate over individual questions.] 3. Show slide 5; Ask What points of the causal chain would be hardest to prove? a. The defendant is only one of several persons who caused the harm. b. Emissions cause global warming c. Global warming led to increase in the ferocity of Hurricane Katrina. i. Despite this difficulty the Plaintiffs still decided to proceed to court 4. What magic word (that we also heard in Boomer) were the plaintiffs using to describe their harm? a. Nuisance 5. The court in this case distinguished between public and private nuisance. Can anyone explain the difference? (page 867) a. Public Nuisance = Unreasonable interference with a common right of the general public through the loss of use and enjoyment of public property through erosion of beaches, rising sea levels, saltwater intrusion, habitat destruction, and storm damage. b. Private Nuisance = invasion of anothers interest in the private use and enjoyment of land, and the invasion is intentional and unreasonable. 6. Show slide #6 7. Ask, What kind of nuisance was in Boomer? a. Private nuisance 8. Before you can even argue whether the harm (in this case the destruction of private/public property b/c of hurricane Katrina) was a nuisance you must first show you have standing. One of the defendants arguments was the plaintiffs did not have standing. Ask, What do you think standing means? 9. Two different types of standing that have to be shown: state and federal. State derives from the state law where the case takes place. Federal standing derives from the Constitution, Article III. In this case, the Mississippi standing requirement was easy to fulfill when the plaintiff experiences an adverse effect from the conduct of the defendant.

10. The harder standing requirement to fulfill is Article III standing. (show slide 7) Discuss the different requirements and courts conclusions on each requirement. (Defendants question the second prong of standing) (pages 862-864) 11. Causation at the standing stage is easier to show than showing causation in a nuisance claim. Why? (page 864) a. Harder to show causation in a nuisance claim. At the standing stage, the court must take all of the Plaintiffs allegations as true. For example, the Plaintiffs submitted scientific reports alleging a chain of causation between defendants (Murphy oil) & Plaintiffs injuries. Court assumes the scientific reports are true when determining standing. When the court is determining whether there is a nuisance, this is not the case. They also analyze the validity of the reports. This is done by the defense also presenting reports proving no connection! 12. What is climate change? Greenhouse effect? a. Draw chart on board. Have students walk you through the drawing as much as possible. 13. Group Activity a. Distribute research materials b. Explain. Imagine you are an attorney (we will assign you a side momentarily) This is the collection of research you will present to the court. Develop arguments for your side. [Confer with your group about the arguments you will make.] c. Give Alaina the Comer card d. Give Zach the Murphy oil card 14. Slide 8: The final chapter of Comer. a. U.S. District Judge Louis Guirola Jr., in a decision released March 2012, dismissed Comer vs. Murphy Oil with prejudice, meaning it cant be refiled or reconstituted. The decision should serve to preclude, other similar lawsuits accusing companies of emitting global-warming gases that cause damaging weather patterns. b. Guirola dismissed the case for legal reasons hed already dismissed it once before, and he said the plaintiffs were barred by various legal doctrines from reviving it but out of an abundance of caution he reiterated why the case shouldnt be allowed to proceed. c. Those reasons are becoming familiar in global-warming cases: Guirola ruled the case invalid because the underlying issue of global warming is a political question, best left to the legislative branch and regulators to decide. And because existing tort law requires plaintiffs to prove a more solid connection between their injuries and the actions of those they are suing than a scientifically plausible argument that one contributed to the other. d. Plaintiff lawyers have tried various ways to fit global warming into conventional tort law, where they can construct a case showing industry executives were aware of the threat of CO2 emissions and did nothing about it. That would allow them to make the argument that the industry exposed others to unreasonable risks. The evidence would be memos and other material showing they were aware of scientific links between

CO2 and global warming, regardless of whether they believed them, much as the states pursued lawsuits against the tobacco industry by uncovering evidence executives were aware of research showing links to cancer and addiction. e. Guirina wasnt buying it, saying global warming was too complex an issue to ask a court to decide: 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 `reasonable, he said. f. The case followed an odd route after dismissal up to the Fifth Circuit, where a three-judge panel reinstated some of the claims, then an en banc panel agreed to rehear the appeal, only to dismiss the case when it couldnt form a quorum of nine judges. The plaintiffs declined to appeal to the U.S. Supreme Court. g. The decision helps close the door on global-warming litigation by private plaintiffs. The U.S. Supreme Court offered some hope to plaintiffs in 2007 when it held that Massachusetts could sue the E.P.A. for failing to enact rules to control CO2 emissions that threatened the states coastline. That seemed to affirm the basic idea that CO2 was a pollutant covered by the Clean Air Act. But the Supreme Court eased that door shut last year with Conn. v. AEP, where it said Connecticut must wait until or unless the EPA issues regulations before suing individual companies over emissions. The Ninth Circuit also dismissed a lawsuit by Inuit villagers against ExxonMobil and other companies, citing the political question doctrine. 15. Questions re: final chapter a. Does the courts reasoning sound similar to the courts rationale in Boomer? i. Too broad of a question. Government issue. b. What effect will this have in the future on climate change litigation re: tort law? i. Other lawyers wont pursue climate change cases using tort law.