COMER v. MURPHY OIL USA 855...COMER v. MURPHY OIL USA 857 Cite as 585 F.3d 855 (5th Cir. 2009) 8....

855COMER v. MURPHY OIL USACite as 585 F.3d 855 (5th Cir. 2009)

erred in failing to grant Bueno’s motion forjudgment of acquittal. The difference be-tween ‘‘profits’’ and ‘‘gross receipts’’ is ob-vious; these errors were plain. I recog-nize that this conclusion arguably conflictswith Brown and Fernandez. See 553 F.3dat 785, 559 F.3d at 316. Our rule oforderliness prevents this panel from over-ruling a prior decision; therefore, I reluc-tantly concur in the panel’s result. SeeUnited States v. Dial, 542 F.3d 1059, 1060(5th Cir.2008).

In my view, the error affected Bueno’ssubstantial rights. As discussed above,there is simply no evidence that the moneyin Bueno’s car was profits, as opposed togross receipts. This sets this case apartfactually from either Brown or Fernandez;in both of those cases, the governmentpresented extensive evidence of the profit-ability of the respective controlled-sub-stances activities. Finally, I believe thatwe should exercise our discretion to cor-rect the error, because it ‘‘seriously af-fect[s] the fairness, integrity, or publicreputation of judicial proceedings.’’ SeeJohnson, 520 U.S. at 467, 117 S.Ct. 1544.It bears emphasizing that the gulf betweenthe elements of § 1956(a)(1) and the proofadduced at trial is vast. Moreover, theSupreme Court saw it fit in Santos tovacate on collateral review a convictionwhich had been final for nearly a decade.See 128 S.Ct. at 2023.5 It stands to reasonthat if the Supreme Court saw it fit toapply the rule of lenity and to vacate San-

tos’s long-final conviction, we should nothesitate to grant relief on direct appeal.If I could, I would vacate the convictionand remand to the district court for retrial.

,

Ned COMER, et al., Plaintiffs–Appellants,

v.

MURPHY OIL USA, et al.,Defendants–Appellees.

No. 07–60756.

United States Court of Appeals,Fifth Circuit.

Oct. 16, 2009.

Background: Owners of lands and prop-erty along Mississippi Gulf coast broughtputative class action against oil companiesand energy companies alleging the opera-tion of their companies caused emission ofgreenhouse gasses that contributed toglobal warming and added to ferocity ofHurricane Katrina which destroyed theirproperty. The United States District Courtfor the Southern District of Mississippi,Louis Guirola, Jr., J., granted defendants’motion to dismiss. Plaintiffs appealed.

5. Santos’s conviction was affirmed on directappeal to the Seventh Circuit; the SupremeCourt then denied his petition for a writ ofcertiorari. A subsequent Seventh Circuit de-cision held that ‘‘proceeds’’ under § 1956 ac-tually means ‘‘profits.’’ See United States v.Scialabba, 282 F.3d 475, 477–78 (7th Cir.2002). Scialabba was a money launderingconviction where the underlying offense wasrunning an unlawful gambling business, butits reasoning applies to drug-related activitiesas well: ‘‘Likewise, one would suppose, the

‘proceeds’ of drug dealing are the profits ofthat activity (the sums available for invest-ment outside drug markets), the net yieldrather than the gross receipts that must beused to buy inventory and pay the wages ofcouriers.’’ Id. at 477. Santos sought to setaside his conviction via a writ of habeas cor-pus under 28 U.S.C. § 2255. The districtcourt granted relief and the Seventh Circuitaffirmed, as did the Supreme Court. See 128S.Ct. at 2023.

856 585 FEDERAL REPORTER, 3d SERIES

Holdings: The Court of Appeals, Dennis,Circuit Judge, held that:

(1) landowners had standing to bringclaims under state law;

(2) landowners had Article III standing tobring nuisance, trespass and negli-gence claims;

(3) landowners did not have Article IIIstanding to bring unjust enrichment,fraudulent misrepresentation and civilconspiracy claims; and

(4) nuisance, trespass, and negligenceclaims did not present a nonjusticiablepolitical question.

Reversed and remanded.

W. Eugene Davis, Circuit Judge, filedopinion specially concurring.

1. Federal Courts O30

The requirement that jurisdiction beestablished as a threshold matter springsfrom the nature and limits of the judicialpower of the United States and is inflexi-ble and without exception.

2. Federal Civil Procedure O103.2

The standing inquiry is both plaintiff-specific and claim-specific; thus, a review-ing court must determine whether eachparticular plaintiff is entitled to have afederal court adjudicate each particularclaim that he asserts.

3. Action O13

In Mississippi, parties have standingto sue when they assert a colorable inter-est in the subject matter of the litigationor experience an adverse effect from theconduct of the defendant, or as otherwiseprovided by law. West’s A.M.C. Const.Art. 3, § 24.

4. Implied and Constructive ContractsO3, 71

Negligence O1502

Nuisance O44, 76

Trespass O29

Landowners who alleged that their in-terests in their lands and property weredamaged by the adverse effects of oil com-panies’ and energy companies’ allegedgreenhouse gas emissions had standing toassert claims of public and private nui-sance, trespass, negligence, and unjust en-richment under Mississippi law. West’sA.M.C. Const. Art. 3, § 24.


Federal Courts O12.1

Article III’s case and controversystanding requirement confines the busi-ness of federal courts to questions present-ed in an adversary context and in a formhistorically viewed as capable of resolutionthrough the judicial process. U.S.C.A.Const. Art. 3, § 1 et seq.

6. Federal Civil Procedure O103.2, 103.3

Article III standing is an irreducibleconstitutional minimum, which requiresplaintiffs to demonstrate: they have suf-fered an injury in fact; the injury is fairlytraceable to the defendant’s actions andthe injury will likely be redressed by afavorable decision. U.S.C.A. Const. Art. 3,§ 1 et seq.


The claimant bears the burden of es-tablishing Article III standing and eachelement must be supported in the sameway as any other matter on which theplaintiff bears the burden of proof, i.e.,with the manner and degree of evidencerequired at the successive stages of thelitigation. U.S.C.A. Const. Art. 3, § 1 etseq.


8. Federal Civil Procedure O103.5 Federal Courts O791

When considering Article III standingat the pleading stage, general factual alle-gations of injury resulting from the defen-dant’s conduct may suffice, for on a motionto dismiss the Court of Appeals presumesthat general allegations embrace thosespecific facts that are necessary to supportthe claim. U.S.C.A. Const. Art. 3, § 1 etseq.

9. Federal Courts O3.1The absence of a valid (as opposed to

arguable) cause of action does not impli-cate subject-matter jurisdiction, i.e., thecourts’ statutory or constitutional power toadjudicate the case.

10. Federal Civil Procedure O103.3For issues of causation, the Article III

standing traceability requirement need notbe as close as the proximate causationneeded to succeed on the merits of a tortclaim; rather, an indirect causal relation-ship will suffice, so long as there is a fairlytraceable connection between the allegedinjury in fact and the alleged conduct ofthe defendant. U.S.C.A. Const. Art. 3, § 1et seq.

11. Negligence O1502 Nuisance O44, 76 Trespass O29

Owners of lands and property alongMississippi Gulf coast had Article IIIstanding to bring public and private nui-sance, trespass and negligence claims, un-der Mississippi law, against oil companiesand energy companies for emission ofgreenhouse gasses which allegedly contrib-uted to global warming and added to feroc-ity of Hurricane Katrina which destroyedtheir property; injuries could be fairlytraceable to actions that contributed to,rather than solely or materially caused,greenhouse gas emissions and global

warming. U.S.C.A. Const. Art. 3, § 1 etseq.

12. Conspiracy O17

Fraud O29

Implied and Constructive ContractsO71

Owners of lands and property alongMississippi Gulf coast did not have ArticleIII standing to bring unjust enrichment,fraudulent misrepresentation and civil con-spiracy claims, under Mississippi law,against oil companies and energy compa-nies for allegedly inflating the price ofpetrochemicals to realize profits to whichthey were not lawfully entitled and fordisseminating misinformation about dan-gers of greenhouse gas emissions; land-owners failed to identify a particularizedinjury that would affect them in a personaland individual way and claims presentedgeneralized grievances common to all citi-zens or litigants in United States.U.S.C.A. Const. Art. 3, § 1 et seq.

13. Constitutional Law O2580

Lawsuit brought by owners of landsand property along Mississippi Gulf coastalleging public and private nuisance, tres-pass, and negligence, under Mississippilaw, against oil companies and energy com-panies for emission of greenhouse gasseswhich allegedly contributed to globalwarming and added to ferocity of Hurri-cane Katrina which destroyed their prop-erty did not present a nonjusticiable politi-cal question, since only issues were thoseinherent in adjudication of Mississippicommon law tort claims for damages,which were not committed exclusively to afederal political branch.

14. Constitutional Law O2580

In deciding whether a case should bedismissed as a nonjusticiable political ques-tion, the Court of Appeals must bear inmind the principles that govern the juris-


diction of federal courts: it is emphaticallythe province and duty of the judicial de-partment to say what the law is and feder-al courts lack the authority to abstain fromthe exercise of jurisdiction that has beenconferred.

15. Federal Courts O41Unless abstention is appropriate,

when a federal court is properly appealedto in a case over which it has by lawjurisdiction, it is its duty to take suchjurisdiction.

16. Constitutional Law O2580The ‘‘political question doctrine’’ is a

limited exception to the rule that federalcourts lack the authority to abstain fromthe exercise of jurisdiction that has beenconferred; where the Constitution assignsa particular function wholly and indivisiblyto another department, the federal judicia-ry does not intervene, but the converse ofthis proposition is that a federal courtmust not abstain from the exercise of ju-risdiction that has been conferred, unlessit has been asked to conclusively resolve aquestion that is wholly and indivisibly com-mitted by the Constitution to a politicalbranch of government.

See publication Words and Phras-es for other judicial constructionsand definitions.

17. Constitutional Law O2503(1)Congress, and not the Judiciary, de-

fines the scope of federal jurisdiction with-in the constitutionally permissible bounds.

18. Constitutional Law O2580The political question doctrine bars

judicial review only when the precise mat-ter to be decided has been constitutionallycommitted to the exclusive authority of apolitical branch of government.

19. Constitutional Law O2580In determining whether the political

question doctrine bars judicial review, the

court must begin by interpreting the con-stitutional text in question and determin-ing whether and to what extent the issue istextually committed to a political branch;thus, the court needs to know both theissue presented by the case at hand andthe federal constitutional or statutory textasserted to have committed that issue ex-clusively to a political branch and onlythen can it decide whether that issue hasbeen committed by the Constitution solelyto the political branches or whether it is aproper matter for the judiciary to resolve.

F. Gerald Maples (argued), AlexanderJacob Williamson, Carlos A. Zelaya, II, F.Gerald Maples, P.A., Stephen MichaelWiles, Reasonover & Olinde, LLC, NewOrleans, LA, for Plaintiffs–Appellants.

Michael Raudon Phillips, Benjamin Mel-vin Castoriano, Frilot, L.L.C., New Or-leans, LA, Shellye V. McDonald, RichardP. Salloum, Franke & Salloum, Gulfport,MS, for Murphy Oil, USA, Universal OilProducts and Honeywell Intern., Inc.

Mary S. Johnson, Johnson, Gray, McNa-mara, LLC, Mandeville, LA, Daniel P. Col-lins, Munger, Tolles & Olson, L.L.P., LosAngeles, CA, Thomas M. McNamara,Johnson, Gray, McNamara, L.L.C., Lafay-ette, LA, for Shell Oil Co.

Richard L. Forman, Forman, Perry,Watkins, Krutz & Tardy, L.L.P., Jackson,MS, John F. Daum, O’Melveny & Myers,Los Angeles, CA, for ExxonMobil Corp.

Thomas Lynn Carpenter, Carr, Allison,Pugh, Howard, Oliver & Sisson, PC, Gulf-port, MS, Rick Richmond, Brent L. Caslin,Jenner & Block, L.L.P., Los Angeles, CA,for AES Corp.

William Lee Watt, Brunini, Grantham,Grower & Hewes, P.L.L.C., Jackson, MS,


for Allegheny Energy, Inc. and ReliantEnergy, Inc.

Kathleen Taylor Sooy, Tracy Roman,Scott L. Winkleman (argued), Crowell &Moring, L.L.P., Washington, DC, RobertDonald Gholson, Gholson, Burson, Entre-kin & Orr, Laurel, MS, for Alliance Re-source Partners, LP, Alpha Natural Re-sources, Inc., Arch Coal, Inc., ConsolEnergy, Inc., Foundation Coal Holdings,Inc., Intern. Coal Group, Inc., MasseyEnergy Co., Natural Resource Partners,LP, Peabody Energy Corp. and West-moreland Coal Co.

Michael B. Gerrard, Nancy Gordon Mil-burn, Arnold & Porter, New York City,John Gwin Wheeler, Mitchell, McNutt &Sams, Tupelo, MS, for BP America Pro-duction Co. and BP Products North Amer-ica, Inc.

Peter D. Keisler, Quin Mikael Sorenson,Sidley Austin, L.L.P., Washington, DC, forCinergy Corp. and Duke Energy Corp.

Christopher Ray Fontan, Brunini,Grantham, Growers, Hewes, P.L.L.C.,Jackson, MS, for Allegheny Energy, Inc.,Reliant Energy, Inc. and Cinergy Corp.

Kenneth W. Barton, Benjamin M. Wat-son, Butler, Snow, O’Mara, Stevens &Cannada, Jackson, MS, for ConocoPhillipsCo.

Sarah E. Iiams, Abbott Simses,A.P.L.C., New Orleans, LA, for DowChemical Co. and EI Dupont De Nemours& Co.

Raymond Michael Ripple, Donna L.Goodman, DuPont Legal, Wilmington, DE,for E I DuPont De Nemours & Co.

Lawrence E. Abbott, Abbott, Simses &Kuchler, Covington, LA, for Dow ChemicalCo. and E I DuPont De Nemours & Co.

Charles Edwin Ross, William B. Lovett,Jr., Wise, Carter, Child & Caraway, Jack-son, MS, for Entergy Corp.

Edwin W. Small, TVA, Knoxville, TN,for TVA.

Thomas E. Fennell, Michael L. Rice,Jones Day, Dallas, TX, John G. Corlew,Kathy K. Smith, Corlew, Munford &Smith, P.L.L.C., Jackson, MS, for XcelEnergy, Inc.

Robert E. Meadows, Jonathan LawrenceMarsh, Tracie Jo Renfroe, King & Spald-ing, Houston, TX, for Chevron USA, Inc.

David Lee Martindale, Cypress, TX, forShell Oil Co. and Chevron USA, Inc.

Robert Allen Long, Jr., Covington &Burling, L.L.P., Washington, DC, forAmerican Petroleum Institute.

Appeal from the United States DistrictCourt for the Southern District of Missis-sippi.

Before DAVIS, STEWART andDENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The plaintiffs, residents and owners oflands and property along the MississippiGulf coast, filed this putative class actionin the district court against the nameddefendants, corporations that have princi-pal offices in other states but are doingbusiness in Mississippi. The plaintiffs al-lege that defendants’ operation of energy,fossil fuels, and chemical industries in theUnited States caused the emission ofgreenhouse gasses that contributed toglobal warming, viz., the increase in globalsurface air and water temperatures, thatin turn caused a rise in sea levels andadded to the ferocity of Hurricane Katrina,which combined to destroy the plaintiffs’private property, as well as public proper-ty useful to them. The plaintiffs’ putativeclass action asserts claims for compensato-ry and punitive damages based on Missis-sippi common-law actions of public andprivate nuisance, trespass, negligence, un-just enrichment, fraudulent misrepresenta-


tion, and civil conspiracy. The plaintiffsinvoked the district court’s subject-matterjurisdiction based on diversity of citizen-ship.1 The plaintiffs do not assert anyfederal or public law actions and do notseek injunctive relief.

Defendants moved to dismiss plaintiffs’claims on the grounds that the plaintiffslack standing to assert their claims andthat their claims present nonjusticiable po-litical questions. The district court grant-ed the motion and dismissed the claims.2

The plaintiffs timely appealed. For thereasons discussed herein, we conclude thatthe plaintiffs have standing to assert their

public and private nuisance, trespass, andnegligence claims, and that none of theseclaims present nonjusticiable politicalquestions; but we conclude that their un-just enrichment, fraudulent misrepresenta-tion, and civil conspiracy claims must bedismissed for prudential standing reasons.Accordingly, we reverse the district court’sjudgment, dismiss the plaintiffs’ suit inpart, and remand the case to the districtcourt for further proceedings.

I.

Plaintiffs’ public and private nuisanceclaims assert that defendants intentionally

1. We have subject-matter jurisdiction under28 U.S.C. § 1332(d)(2), which provides ‘‘[t]hedistrict courts shall have original jurisdictionof any civil action in which the matter incontroversy exceeds the sum or value of$5,000,000, exclusive of interest and costs,and is a class action in which TTT any mem-ber of a class of plaintiffs is a citizen of aState different from any defendant.’’ 28U.S.C. § 1332(d)(2). Plaintiffs’ suit satisfiesthe elements of § 1332(d) because the suit is aclass action, the amount in controversy ex-ceeds $5,000,000, and at least one member ofthe class of plaintiffs is diverse from at leastone defendant. See Frazier v. Pioneer Amer-icas LLC, 455 F.3d 542, 545 (5th Cir.2006).

Though plaintiffs’ complaint does not seekrecovery of a specific amount, the large classof plaintiffs, ‘‘residents of and/or propertyowners in the state of Mississippi who suf-fered loss and harm as a result of HurricaneKatrina,’’ and the extent of damages sought,including personal injury and property dam-age resulting from Hurricane Katrina, makesit ‘‘facially apparent that at least $5 million isin controversy.’’ Frazier, 455 F.3d at 545; seealso Allen v. R&H Oil & Gas Co., 63 F.3d1326, 1335 (5th Cir.1995) (holding that whena complaint alleges no specific amount ofdamages, the amount in controversy require-ment may be met ‘‘if it is facially apparentthat the claims are likely above [the requisiteamount]’’).

2. The district court did not issue a writtenopinion in this case but rather offered itsruling from the bench. The district court’sreasoning is recorded in the hearing tran-scripts.

The district court began its analysis of thepolitical question doctrine by stating ‘‘that theproblem [in this case] is one in which thiscourt is simply ill-equipped or unequippedwith the power that it has to address theseissues.’’ Describing this suit as a ‘‘debate’’about global warming, the district court fur-ther reasoned:

[I]t is a debate which simply has no place inthe court, until such time as Congress en-acts legislation which sets appropriate stan-dards by which this court can measure con-duct TTT and develops standards by whichTTT juries can adjudicate facts and apply thelaw TTTT Under the circumstances, I thinkthat the plaintiffs are asking the court todevelop those standards, and it is some-thing that this court simply is not empow-ered to do.

Finally, the district court concluded:[Plaintiffs’ complaint asks] this court to dowhat Baker v. Carr told me not to do, andthat is to balance economic, environmental,foreign policy, and national security inter-ests and make an initial policy determina-tion of a kind which is simply nonjudicial.Adjudication of Plaintiffs’ claims in thiscase would necessitate the formulation ofstandards dictating, for example, theamount of greenhouse gas emissions thatwould be excessive and the scientific andpolicy reasons behind those standards.These policy decisions are best left to theexecutive and legislative branches of thegovernment, who are not only in the bestposition to make those decisions but areconstitutionally empowered to do so.


and unreasonably used their property soas to produce massive amounts of green-house gasses and thereby injure bothplaintiffs and the general public by con-tributing to global warming, which causedthe sea level rise and added to the ferocityof Hurricane Katrina, the combined effectsof which resulted in the destruction ofplaintiffs’ private property, as well as theirloss of use of certain public property in thevicinity of their dwellings. Plaintiffs’ tres-pass claim asserts that defendants’ green-house gas emissions caused saltwater, de-bris, sediment, hazardous substances, andother materials to enter, remain on, anddamage plaintiffs’ property. Plaintiffs’negligence claim asserts that defendantshave a duty to conduct their businesses soas to avoid unreasonably endangering theenvironment, public health, public and pri-vate property, and the citizens of Missis-sippi; that defendants breached this dutyby emitting substantial quantities of green-house gasses; and that these emissionscaused plaintiffs’ lands and property to bedestroyed or damaged.

Additionally, the plaintiffs’ unjust en-richment claim asserts that certain defen-dants artificially inflated the price of pe-trochemicals, such as gasoline, diesel fuel,and natural gas, and realized profits towhich they are not lawfully entitled andwhich, in part, rightfully belong to plain-tiffs. Plaintiffs’ civil conspiracy claim as-serts that certain defendants were awarefor many years of the dangers of green-house gas emissions, but they unlawfullydisseminated misinformation about thesedangers in furtherance of a civil conspiracyto decrease public awareness of the dan-gers of global warming. Finally, plaintiffs’fraudulent misrepresentation claim assertsthat defendants knowingly made material-ly false statements in public relations cam-paigns to divert attention from the dan-gers of global warming, so as to dissuadegovernment regulation, public discontent

and consumer repulsion; that both govern-ment actors and the general public wereunaware that these statements were false;that government officials and the generalpublic acted upon defendants’ statements;and that plaintiffs suffered injuries as aresult of that reliance.

[1, 2] ‘‘The requirement that jurisdic-tion be established as a threshold matter‘spring[s] from the nature and limits of thejudicial power of the United States’ and is‘inflexible and without exception.’ ’’ SteelCo. v. Citizens for a Better Env’t, 523 U.S.83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210(1998) (quoting Mansfield, C. & L.M.R. Co.v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28L.Ed. 462 (1884)); see also Juidice v. Vail,430 U.S. 327, 331, 97 S.Ct. 1211, 51L.Ed.2d 376 (1977) (‘‘[W]e are first obligedto examine the standing of appellees, as amatter of the case-or-controversy require-ment associated with Art. III’’) ‘‘Thestanding inquiry is both plaintiff-specificand claim-specific. Thus, a reviewingcourt must determine whether each partic-ular plaintiff is entitled to have a federalcourt adjudicate each particular claim thathe asserts.’’ Pagan v. Calderon, 448 F.3d16, 26 (1st Cir.2006) (citing Allen v.Wright, 468 U.S. 737, 752, 104 S.Ct. 3315,82 L.Ed.2d 556 (1984)).

Because this is a diversity case involvingstate common-law rights of action, plain-tiffs must satisfy both state and federalstanding requirements. See Mid–HudsonCatskill Rural Migrant Ministry, Inc. v.Fine Host Corp., 418 F.3d 168, 173 (2dCir.2005) (‘‘Where, as here, jurisdiction ispredicated on diversity of citizenship, aplaintiff must have standing under bothArticle III of the Constitution and applica-ble state law in order to maintain a causeof action.’’); see also Metro. Exp. Services,Inc. v. City of Kansas City, 23 F.3d 1367,1369–70 (8th Cir.1994); City of Moore v.


Atchison, Topeka, & Santa Fe Ry. Co., 699F.2d 507, 511 (10th Cir.1983); Owen ofGeorgia, Inc. v. Shelby County, 648 F.2d1084, 1088–90 (6th Cir.1981); 13B CharlesA. Wright, Arthur R. Miller, Edward H.Cooper, Federal Practice & Procedure§ 3531.14 n. 28 (3d ed.2009).

[3, 4] Plaintiffs’ claims easily satisfyMississippi’s ‘‘liberal standing require-ments.’’ See Van Slyke v. Board of Trus-tees of State Institutions of Higher Learn-ing, 613 So.2d 872, 875 (1993) (‘‘Van SlykeII’’). The Mississippi Constitution pro-vides that ‘‘[a]ll courts shall be open; andevery person for an injury done him in hislands, goods, person, or reputation, shallhave remedy by due course of law, andright and justice shall be administeredwithout sale, denial, or delay,’’ Miss. Const.art. III § 24. Because Mississippi’s Con-stitution does not limit the judicial powerto cases or controversies, its courts havebeen more permissive than federal courtsin granting standing to parties. See VanSlyke II, 613 So.2d at 875 (citing Board ofTrustees v. Van Slyke, 510 So.2d 490, 496(Miss.1987) (‘‘Van Slyke I’’); Dye v. Stateex rel. Hale, 507 So.2d 332, 338 (Miss.1987); Canton Farm Equip., Inc. v. Rich-ardson, 501 So.2d 1098, 1106–07 (Miss.1987)). ‘‘In Mississippi, parties havestanding to sue ‘when they assert a color-able interest in the subject matter of thelitigation or experience an adverse effectfrom the conduct of the defendant, or asotherwise provided by law.’ ’’ State v.Quitman County, 807 So.2d 401, 405(Miss.2001) (quoting Fordice v. Bryan, 651So.2d 998, 1003 (Miss.1995); State ex rel.Moore v. Molpus, 578 So.2d 624, 632 (Miss.1991)). The plaintiffs clearly allege thattheir interests in their lands and propertyhave been damaged by the adverse effectsof defendants’ greenhouse gas emissions.Accordingly, they have standing to assertall of their claims under Mississippi law.

[5] In our federal standing inquiry,more rigorous standards apply. ArticleIII of the United States Constitution limitsfederal-court jurisdiction to ‘‘Cases’’ and‘‘Controversies.’’ ‘‘Those two words con-fine ‘the business of federal courts to ques-tions presented in an adversary contextand in a form historically viewed as capa-ble of resolution through the judicial pro-cess.’ ’’ Massachusetts v. E.P.A., 549 U.S.497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248(2007) (quoting Flast v. Cohen, 392 U.S.83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947(1968)).

[6–8] Article III standing is an ‘‘irre-ducible constitutional minimum,’’ which re-quires plaintiffs to demonstrate: they havesuffered an ‘‘injury in fact’’; the injury is‘‘fairly traceable’’ to the defendant’s ac-tions; and the injury will ‘‘likely TTT beredressed by a favorable decision.’’ Lujanv. Defenders of Wildlife, 504 U.S. 555,560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992) (internal quotations and citationsomitted). The claimant bears the burdenof establishing standing, and ‘‘each ele-ment [of the three-part standing inquiry]must be supported in the same way as anyother matter on which the plaintiff bearsthe burden of proof, i.e., with the mannerand degree of evidence required at thesuccessive stages of the litigation.’’ Lu-jan, 504 U.S. at 560–61, 112 S.Ct. 2130.When considering standing ‘‘[a]t the plead-ing stage, general factual allegations ofinjury resulting from the defendant’s con-duct may suffice, for on a motion to dis-miss we presum[e] that general allegationsembrace those specific facts that are nec-essary to support the claim.’’ Bennett v.Spear, 520 U.S. 154, 168, 117 S.Ct. 1154,137 L.Ed.2d 281 (1997) (internal quotationmarks omitted) (quoting Lujan, 504 U.S.at 561, 112 S.Ct. 2130); see also Metro.Wash. Airports Auth. v. Citizens forAbatement of Aircraft Noise, Inc., 501


U.S. 252, 264–65, 111 S.Ct. 2298, 115L.Ed.2d 236 (1991) (‘‘For purposes of rul-ing on a motion to dismiss for want ofstanding, both the trial and reviewingcourts must accept as true all materialallegations of the complaint.’’ (citationsomitted)); Gladstone Realtors v. Village ofBellwood, 441 U.S. 91, 109–10, 99 S.Ct.1601, 60 L.Ed.2d 66 (1979); Warth v. Sel-din, 422 U.S. 490, 501, 95 S.Ct. 2197, 45L.Ed.2d 343 (1975); Rohm & Hass Tex.,Inc. v. Ortiz Bros. Insulation, Inc., 32F.3d 205, 207 (5th Cir.1994) (quotingWarth, 422 U.S. at 501, 95 S.Ct. 2197).

In our federal standing analysis in thiscase, it is helpful to divide the plaintiffs’claims into two sets and apply the stan-dards in turn to each group: First, theplaintiffs’ public and private nuisance, tres-pass, and negligence claims, all of which

rely on allegations of a causal link betweengreenhouse gas emissions, global warming,and the destruction of the plaintiffs’ prop-erty by rising sea levels and the addedferocity of Hurricane Katrina; and, sec-ond, the plaintiffs’ unjust enrichment, civilconspiracy, and fraudulent misrepresenta-tion claims based on plaintiffs’ alleged inju-ries caused by defendants’ public relationscampaigns and pricing of petrochemicals.

In their nuisance, trespass and negli-gence claims, the plaintiffs have clearlysatisfied the first and third constitutionalminimum standing requirements. Thesestate common-law tort claims, in whichplaintiffs allege that they sustained actual,concrete injury in fact to their particularlands and property, can be redressed bythe compensatory and punitive damagesthey seek for those injuries.3 As to these

3. For the first set of claims, the plaintiffsassert private, common-law claims of the sortthat have been long recognized to give rise tostanding, see, e.g., Erwin Chemerinsky, Feder-al Jurisdiction 69 (5th ed. 2007) (‘‘Injury torights recognized at common law—property,contracts, and torts—are sufficient for stand-ing purposes.’’); the plaintiffs do not assertany public-law claims that might raise con-cerns the standing doctrine is designed toguard against, see Charles A. Wright & MaryKay Kane, Law of Federal Courts 69 (6th ed.2002) (‘‘The law of standing is almost exclu-sively concerned with public-law questions in-volving determinations of constitutionalityand review of administrative or other govern-mental action. In theory, of course, it is notso limited. The person suing for breach ofcontract or for a tort must be found to be thereal party of interest, but in practice thosesuits are brought only by a person harmed bythe supposed wrong, and standing to sue isself-evident. It is only when a question is of apublic nature that the interested bystander islikely to attempt suit.’’).

As a number of scholars have noted,throughout American history lawsuits be-tween private parties over private rights, suchas the common-law claims asserted here,have not triggered the standing concerns thatpublic-law cases, calling for vindication of

constitutional or statutory policies, have. See,e.g., Abram Chayes, The Role of the Judge inPublic Law Litigation, 89 Harv. L.Rev. 1281,1290–91 (1976) (‘‘The standing issue couldhardly arise at common law or under earlycode pleading rules, that is, under the tradi-tional model. There the question of plaintiff’sstanding merged with the legal merits: Onthe facts pleaded, does this particular plaintiffhave a right to the particular relief soughtfrom the particular defendant from whom heis seeking it?’’); Ann Woolhandler & CalebNelson, Does History Defeat Standing Doc-trine?, 102 Mich. L.Rev. 689, 690–94 (2004)(noting that throughout American history pri-vate litigation asserting private rights, includ-ing individuals’ rights in property and bodilyintegrity, has not raised standing concerns);Cass R. Sunstein, Standing and the Privatiza-tion of Public Law, 88 Colum. L.Rev. 1432,1439 (1988) (observing that ‘‘the existence ofan interest protected at common law [hasbeen] sufficient to confer standing’’).

This case presents common-law tort claimswith allegations of actual injury and is there-fore distinguishable from Center for BiologicalDiversity v. U.S. Department of Interior, 563F.3d 466, 479 (D.C.Cir.2009), for example.In Center for Biological Diversity, the plaintiffssued the Department of Interior in respect toits leasing program, which permitted drilling


claims, defendants do not contest standingon the first and third prongs of the tripar-tite test.

[9, 10] Defendants instead challengethe plaintiffs’ standing at the secondprong of the federal standing inquiry.They argue that the plaintiffs have notshown that the harms alleged are fairlytraceable to defendants’ actions. Defen-dants contend that the plaintiffs’ theorytracing their injuries to defendants’ ac-tions is too attenuated. However, this ar-gument, which essentially calls upon us toevaluate the merits of plaintiffs’ causes ofaction, is misplaced at this thresholdstanding stage of the litigation. It is firm-ly established ‘‘that the absence of a valid(as opposed to arguable) cause of actiondoes not implicate subject-matter jurisdic-tion, i.e., the courts’ statutory or constitu-tional power to adjudicate the case.’’Steel Co., 523 U.S. at 89, 118 S.Ct. 1003(citing generally 5A Wright & Miller, Fed-eral Practice and Procedure § 1350 n. 8and cases cited (2d ed.1990)). As the Su-preme Court stated in Bell v. Hood, 327U.S. 678, 685, 66 S.Ct. 773, 90 L.Ed. 939(1946), ‘‘[j]urisdiction TTT is not defeatedTTT by the possibility that the avermentsmight fail to state a cause of action onwhich petitioners could actually recover.’’More specifically, for issues of causation,the Article III traceability requirement

‘‘need not be as close as the proximatecausation needed to succeed on the meritsof a tort claim. Rather, an indirect causalrelationship will suffice, so long as there is‘a fairly traceable connection between thealleged injury in fact and the alleged con-duct of the defendant.’ ’’ Toll Bros., Inc.v. Township of Readington, 555 F.3d 131,142 (3d Cir.2009); see also Bennett v.Spear, 520 U.S. 154, 168, 117 S.Ct. 1154,137 L.Ed.2d 281 (1997) (‘‘[P]roximatecause’’ of [‘‘plaintiffs’] harm’’ is not equiva-lent with their ‘‘injury ‘fairly traceable’ tothe defendant’’ for standing purposes);Friends for Ferrell Parkway, LLC v.Stasko, 282 F.3d 315, 324 (4th Cir.2002)(‘‘[T]he ‘fairly traceable’ standard is ‘notequivalent to a requirement of tort causa-tion.’ ’’); Tozzi v. U.S. Dep’t of Health andHuman Servs., 271 F.3d 301, 308(D.C.Cir.2001) (‘‘[W]e have never applied a‘tort’ standard of causation to the questionof traceability.’’).

[11] Plaintiffs’ complaint, relying onscientific reports, alleges a chain of causa-tion between defendants’ substantial emis-sions and plaintiffs’ injuries, and whileplaintiffs will be required to support theseassertions at later stages in the litigation,at this pleading stage we must take theseallegations as true. Cf. Bennett, 520 U.S.at 154, 117 S.Ct. 1154 (accepting plaintiffs’

on the Outer Continental Shelf, because moredrilling will cause more oil consumption,causing more emissions, and, in turn, in-crease global warming and hurt animals andtheir habitats thereby harming the plaintiffs’enjoyment. Id. at 478–79. The D.C. Circuit,in an alternative holding, found no standingbecause the claims failed to satisfy the tracea-bility requirement. Id. However, the D.C.Circuit found that the plaintiffs could onlyspeculate that the damages will occur only ifmany different actors (oil companies, con-sumers, car manufacturers, and the depart-ment of Interior) all acted in a way thatwould increase global warming to cause dam-age. Id. Here, the plaintiffs, instead, make

allegations, taken as true, that a past causa-tion link led to their particularized damage—therefore, the alleged harms to the plaintiffs’specific property and persons are ‘‘traceable’’to the Defendants without speculation as tothe Defendants’ and third parties’ future ac-tions and interactions. See id. at 489 (Rogers,J., concurring) (noting that if the Plaintiffshad alleged particular harms caused by globalwarming, they may have standing); see alsoCity of Los Angeles v. Lyons, 461 U.S. 95, 111,103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (differ-entiating for standing purposes the specula-tive nature of potential future harm createdby a policy with suit for actual damages froman alleged past application of that policy).


pleadings as true and holding that thealleged injury, loss of water for irrigation,was fairly traceable to a Fish and WildlifeService biological opinion recommendingthat water in lakes be maintained at aminimum level to protect endangered fish);Metro. Wash. Airports Auth., 501 U.S. at264–65, 111 S.Ct. 2298 (accepting plaintiffs’pleadings as true and holding, in an actionchallenging the constitutionality of the air-port authority’s veto power over increasedairport construction, that allegations thatthe construction plan would result in in-creased airport noise, pollution, and dan-ger of accidents constituted a personal in-jury to plaintiffs that was fairly traceableto the review board’s veto power).

What is more, the defendants’ main con-tentions are similar to those recently re-jected by the Supreme Court in Massa-chusetts v. EPA. Essentially, they arguethat traceability is lacking because: (1) thecausal link between emissions, sea levelrise, and Hurricane Katrina is too attenu-ated, and (2) the defendants’ actions areonly one of many contributions to green-house gas emissions, thereby foreclosingtraceability.

In holding that Massachusetts hadstanding to challenge the EPA’s decisionnot to regulate the emission of greenhousegasses, see Massachusetts, 549 U.S. at522–23, 127 S.Ct. 1438, the Court acceptedas plausible the link between man-madegreenhouse gas emissions and globalwarming, id. at 523, 127 S.Ct. 1438 (notingthe ‘‘causal connection between man-madegreenhouse gas emissions and globalwarming’’ in finding that ‘‘EPA does notdispute the existence of a causal connec-tion between man-made greenhouse gas

emissions and global warming. At a mini-mum, therefore, EPA’s refusal to regulatesuch emissions ‘contributes’ to Massachu-setts’ injuries’’), as well as the nexus ofwarmer climate and rising ocean tempera-tures with the strength of hurricanes, id.at 521–24, 127 S.Ct. 1438. The SupremeCourt noted that

[t]he harms associated with climatechange are serious and well recognizedTTTT [R]ising ocean temperatures maycontribute to the ferocity of hurricanesTTTT According to petitioners’ unchal-lenged affidavits, global sea levels rosesomewhere between 10 and 20 centime-ters over the 20th century as a result ofglobal warming TTTT These rising seashave already begun to swallow Massa-chusetts’ coastal land.

Id. at 521–23, 127 S.Ct. 1438 (citing ascientific report from a climate scientist).Thus, the Court accepted a causal chainvirtually identical in part to that alleged byplaintiffs, viz., that defendants’ greenhousegas emissions contributed to warming ofthe environment, including the ocean’stemperature, which damaged plaintiffs’coastal Mississippi property via sea levelrise and the increased intensity of Hurri-cane Katrina.4 In fact, the MassachusettsCourt recognized a causal chain extendingone step further—i.e., that because theEPA did not regulate greenhouse gasemissions, motor vehicles emitted moregreenhouse gasses than they otherwisewould have, thus contributing to globalwarming, which injured Massachusettslands through sea level rise and increasedstorm ferocity.5 Accordingly, the defen-dants’ contention here is without merit.

4. The Court also recognized that the impactof Hurricane Katrina is arguably a result ofthis causation link. See Massachusetts, 549U.S. at 522 n. 18, 127 S.Ct. 1438.

5. The Massachusetts Court stated that Massa-chusetts was ‘‘entitled to special solicitude inour standing analysis’’ because it is a state.549 U.S. at 520, 127 S.Ct. 1438. However,the chain of causation at issue here is onestep shorter than the one recognized in Mas-


Defendants’ contention that traceabilityis lacking because their emissions contrib-uted only minimally to plaintiffs’ injuries isalso similar to another EPA argument re-jected by the Supreme Court in Massa-chusetts. In rejecting the EPA’s argu-ment that its regulation of domestic newcar emissions would have insignificant, ifany, salutary effect on global warming, theCourt concluded that ‘‘[a]t a minimum TTT

EPA’s refusal to regulate [greenhouse gas]emissions ‘contributes’ to Massachusetts’injuries,’’ and therefore sufficiently demon-strates traceability so as to support Massa-chusetts’ standing. 549 U.S. at 523, 127S.Ct. 1438. Thus, the Court recognized, inthe same context as the instant case, thatinjuries may be fairly traceable to actionsthat contribute to, rather than solely ormaterially cause, greenhouse gas emissionsand global warming.

This holding—that alleged contributionto the harm is sufficient for traceabilitypurposes—is consistent with the standingcase-law in other contexts. ‘‘[T]he factthat the defendant is only one of severalpersons who caused the harm does notpreclude a finding of causation sufficient tosupport standing.’’ 15 James Wm. Mooreet al., Moore’s Federal Practice§ 101.41[1] (3d ed.2008) (citing Lac DuFlambeau Band of Lake Superior v. Nor-ton, 422 F.3d 490, 500–01 (7th Cir.2005)).We have held, agreeing with the Third andFourth Circuits, that to satisfy the ‘‘fairlytraceable’’ element of standing plaintiffsneed not ‘‘show to a scientific certaintythat defendant’s [pollutants], and defen-

dant’s [pollutants] alone, caused the pre-cise harm suffered by the plaintiffs.’’ SaveOur Community v. E.P.A., 971 F.2d 1155,1161 (5th Cir.1992) (quoting Pub. InterestResearch Group of New Jersey, Inc. v.Powell Duffryn Terminals Inc., 913 F.2d64, 72 (3d Cir.1990); Natural Res. DefenseCouncil, Inc. v. Watkins, 954 F.2d 974, 980n. 7 (4th Cir.1992)); see also Natural Res.Defense Council v. Sw. Marine, Inc., 236F.3d 985, 995 (9th Cir.2000). In otherwords, this Circuit has articulated the‘‘fairly traceable’’ test not as an inquiryinto whether a defendant’s pollutants arethe sole cause of an injury but ratherwhether ‘‘the pollutant causes or contrib-utes to the kinds of injuries alleged by theplaintiffs.’’ Sierra Club v. Cedar Point OilCo., 73 F.3d 546, 557 (5th Cir.1996) (em-phasis added) (quoting Powell DuffrynTerminals Inc., 913 F.2d at 72); see Tex-ans United for a Safe Economy Educ.Fund v. Crown Cent. Petroleum, 207 F.3d789, 793 (5th Cir.2000); Friends of theEarth, Inc. v. Crown Cent. PetroleumCorp., 95 F.3d 358, 361 (5th Cir.1996);accord. Powell Duffryn, 913 F.2d at 72;Piney Run Pres. Ass’n v. County Comm’rsof Carroll County, 268 F.3d 255, 263–64(4th Cir.2001) (‘‘Traceability does not meanthat plaintiffs must show to a scientificcertainty that defendant’s [pollution]caused the precise harm suffered by theplaintiffs. Rather, a plaintiff must merelyshow that a defendant discharges a pollu-tant that causes or contributes to the kindsof injuries alleged.’’ (internal citations and

sachusetts, so these plaintiffs need no specialsolicitude.

Indeed, unlike in other cases in whichcourts have held that traceability was lacking,e.g., Allen v. Wright, 468 U.S. 737, 757–59,104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), thecausal chain alleged by these plaintiffs doesnot depend on independent superseding ac-tions by parties that are not before the court.Cf. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992). Nor does it rely on speculation aboutwhat the effects of the defendants’ actions willbe, or about the actions anyone will take inthe future. Cf. Whitmore v. Arkansas, 495U.S. 149, 157–58, 110 S.Ct. 1717, 109L.Ed.2d 135 (1990). It involves only the pre-dictable effects of the defendants’ past actionson the natural environment, and the resultingharm to the plaintiffs’ property.


quotations omitted)); Am. Canoe Ass’n,Inc. v. City of Louisa Water & SewerComm’n, 389 F.3d 536, 543 (6th Cir.2004)(adopting the reasoning of Piney Run, 268F.3d at 263–64); Loggerhead Turtle v.County Council of Volusia County, 148F.3d 1231, 1247 (11th Cir.1998) (‘‘[S]tand-ing is not defeated merely because thealleged injury can be fairly traced to theactions of both parties and non-parties.’’(citing Lujan, 504 U.S. at 560, 112 S.Ct.2130)). The en banc Fourth Circuit con-cluded: ‘‘Rather than pinpointing the ori-gins of particular molecules, a plaintiffmust merely show that a defendant dis-charges a pollutant that causes or contrib-utes to the kinds of injuries alleged in thespecific geographic area of concern.’’Friends of the Earth, Inc. v. Gaston Cop-per Recycling Corp., 204 F.3d 149, 161 (4thCir.2000) (en banc) (citation and internalquotation marks omitted).6

Here, the plaintiffs’ complaint allegesthat defendants’ emissions caused theplaintiffs’ property damage, which is re-dressable through monetary damages; forexample, the plaintiffs allege that defen-dants’ willful, unreasonable use of theirproperty to emit greenhouse gasses consti-tuted private nuisance under Mississippilaw because it inflicted injury on the plain-

tiffs’ land by causing both land loss due tosea level rise and property damage due toHurricane Katrina. See, e.g., Comet Delta,Inc. v. Pate Stevedore Co. of Pascagoula,Inc., 521 So.2d 857, 859 (Miss.1988) (‘‘Oneis subject to liability for a private nuisanceif, but only if, his conduct is a legal causeof an invasion of another’s interest in theprivate use and enjoyment of land, and theinvasion is TTT intentional and unreason-able.’’ (quoting Restatement (Second) ofTorts § 822)). Similarly, the plaintiffsallege that defendants’ emissions constitut-ed a public nuisance because they unrea-sonably interfered with a common right ofthe general public by causing the loss ofuse and enjoyment of public propertythrough erosion of beaches, rising sea lev-els, saltwater intrusion, habitat destruc-tion, and storm damage. See id. at 860(‘‘A public nuisance is an unreasonable in-terference with a right common to thegeneral public.’’ (quoting Restatement(Second) of Torts § 821B)). Because theinjury can be traced to the defendants’contributions, the plaintiffs’ first set ofclaims satisfies the traceability require-ment and the standing inquiry.

[12] The plaintiffs’ second set of claims(unjust enrichment, fraudulent misrepre-sentation, and civil conspiracy) do not sat-

6. Defendants try to distinguish the aboveprecedents on the ground that they areunique Clean Water Act (‘‘CWA’’) cases.Contrary to defendants’ argument or sugges-tion, the Clean Water Act could not and didnot lower the constitutional minimum stand-ing requirements and make CWA cases inap-posite here. The CWA’s ‘‘grant of standingreaches the outer limits of Article III TTT

Thus, if a Clean Water Act plaintiff meets theconstitutional requirements for standing, thenhe ipso facto satisfies the statutory thresholdas well.’’ Friends of the Earth, 204 F.3d at155; accord Save Our Community, 971 F.2dat 1161 n. 11; Envtl. Conservation Org. v. Cityof Dallas, 529 F.3d 519, 526 (5th Cir.2008).In other words, constitutional minimumstanding requirements cannot be lowered by

Congress and the constitutional standing ju-risprudence under the CWA is fully applicablein this case. See Friends of the Earth, 204F.3d at 155. Moreover, the reasoning ofthese standing decisions has been applied toother contexts. See, e.g., Interfaith Communi-ty Org. v. Honeywell Int’l, Inc., 399 F.3d 248,257 (3d Cir.2005) (quoting Powell Duffryn,913 F.2d at 72); Ocean Advocates v. U.S.Army Corps of Engineers, 402 F.3d 846, 860(9th Cir.2005) (holding that ‘‘contribution’’ tothe injury is sufficient to satisfy the constitu-tional traceability requirement); St. Pierre v.Dyer, 208 F.3d 394, 402 (2d Cir.2000) (same).By satisfying standing under the tests an-nounced in the precedents above, the plain-tiffs have satisfied constitutional standing re-quirements.


isfy federal prudential standing require-ments. The Supreme Court has describedthe prudential standing doctrine in thisway:

[O]ur standing jurisprudence containstwo strands: Article III standing, whichenforces the Constitution’s case-or-con-troversy requirement, see Lujan v. De-fenders of Wildlife, 504 U.S. 555, 559–62,112 S.Ct. 2130, 119 L.Ed.2d 351 (1992);and prudential standing, which embodies‘‘judicially self-imposed limits on the ex-ercise of federal jurisdiction,’’ Allen, 468U.S., at 751, 104 S.Ct. 3315. The ArticleIII limitations are familiar: The plaintiffmust show that the conduct of which hecomplains has caused him to suffer an‘‘injury in fact’’ that a favorable judg-ment will redress. See Lujan, 504 U.S.,at 560–61, 112 S.Ct. 2130. Although wehave not exhaustively defined the pru-dential dimensions of the standing doc-trine, we have explained that prudentialstanding encompasses ‘‘the general pro-hibition on a litigant’s raising anotherperson’s legal rights, the rule barringadjudication of generalized grievancesmore appropriately addressed in therepresentative branches, and the re-quirement that a plaintiff’s complaint fallwithin the zone of interests protected bythe law invoked.’’ Allen, 468 U.S., at751, 104 S.Ct. 3315. See also Secretaryof State of Md. v. Joseph H. MunsonCo., 467 U.S. 947, 955–56, 104 S.Ct. 2839,81 L.Ed.2d 786 (1984). ‘‘Without suchlimitations—closely related to Art. IIIconcerns but essentially matters of judi-cial self-governance—the courts wouldbe called upon to decide abstract ques-tions of wide public significance eventhough other governmental institutions

may be more competent to address thequestions and even though judicial inter-vention may be unnecessary to protectindividual rights.’’ Warth, 422 U.S., at500, 95 S.Ct. 2197.

Elk Grove Unified School Dist. v. New-dow, 542 U.S. 1, 11–12, 124 S.Ct. 2301, 159L.Ed.2d 98 (2004).7 Each of the plaintiffs’second set of claims presents a generalizedgrievance that is more properly dealt withby the representative branches and com-mon to all consumers of petrochemicalsand the American public. ‘‘[N]o matterhow well intended, Plaintiffs have donelittle more than present a generalizedgrievance, common to all citizens or liti-gants in [the United States], and as such,lack standing.’’ Public Citizen, Inc. v.Bomer, 274 F.3d 212, 219 (5th Cir.2001);see also Arizonans for Official English v.Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055,137 L.Ed.2d 170 (1997) (‘‘An interestshared generally with the public at largein the proper application of the Constitu-tion and laws will not [create standing].’’);Lujan, 504 U.S. at 573–74, 112 S.Ct. 2130(‘‘We have consistently held that a plaintiffraising only a generally available griev-ance about government—claiming onlyharm to his and every citizen’s interest inproper application of the Constitution andlaws, and seeking relief [that] no moredirectly and tangibly benefits him than itdoes the public at large—does not state anArticle III case or controversy.’’); see gen-erally Hein v. Freedom From ReligionFoundation, Inc., 551 U.S. 587, 127 S.Ct.2553, 2564 & n. 2, 168 L.Ed.2d 424 (2007)(listing cases). Unlike the first set ofclaims, the plaintiffs do not identify a par-ticularized ‘‘injury [that] must affect the

7. The nuisance, trespass, and negligenceclaims are clearly not barred by any aspect ofthe prudential standing doctrine. The plain-tiffs do not seek to raise anyone else’s legalrights; they have asserted particularized inju-

ries, not generalized grievances; and theirinjuries involve the type of interests that havetraditionally been protected by the body oflaw they invoke, namely the common law ofMississippi.


plaintiff in a personal and individual way.’’Lujan, 504 U.S. at 560 & n. 1, 112 S.Ct.2130. The source of the plaintiffs’ secondset of grievances is the alleged failure ofthe government to properly regulate andenforce environmental laws (caused by thedefendants’ engagement in an allegedlyfalse public marketing campaign andwrongful dissuasion of government regula-tion) and therefore enabled the defendantsto increase their prices and profits. Asthe plaintiffs allege in their complaint:

At the time Defendants made these ma-terially false statements [about GlobalWarming], the public and State andFederal Governments did not know thatDefendants’ statements were false. TheState and Federal Governments, actingupon Defendants’ statements and repre-sentations, refused to regulate green-house gas emissions. The public had aright to rely and did rely upon Defen-dants’ statements, and continued to con-sume products in ways that increasedGlobal Warming, all of which resulted incontinued and increased profits to theDefendants. Plaintiffs’ and PlaintiffClass’s injuries were proximately causedby that reliance.

The interests at stake involve every pur-chaser of petrochemicals and the entireAmerican citizenry because the plaintiffsare essentially alleging a massive fraud onthe political system resulting in the failureof environmental regulators to imposeproper costs on the defendants. Cf. In reMultidistrict Vehicle Air Pollution M.D.L.No. 31, 481 F.2d 122, 130 (9th Cir.1973)(‘‘Insofar as the common weal was injuredthe federal government was the properparty to seek redress TTTT If the Govern-ment did not prosecute its action withsufficient vigor, the remedy lies in execu-tive or legislative reform, not in judicialoverreaching.’’). Such a generalized griev-ance is better left to the representativebranches; we refuse to entertain the sec-

ond set of claims based on the prudentialstanding doctrine.

II.

[13] Since the plaintiffs have standingto bring their nuisance, trespass, and neg-ligence claims, we must determine whetherany of those claims present a nonjusticia-ble political question, as the district courtbelieved they did. Because those claimsdo not present any specific question that isexclusively committed by law to the discre-tion of the legislative or executive branch,we hold that they are justiciable.

To begin with, it is useful to define theterms ‘‘justiciability’’ and ‘‘political ques-tion.’’ A question, issue, case or contro-versy is ‘‘justiciable’’ when it is constitu-tionally capable of being decided by afederal court. Conversely, a question,etc., is ‘‘nonjusticiable’’ when it is not con-stitutionally capable of being judicially de-cided. Under the separation of powers ofthe Constitution and the Supreme Court’scases, a question or subject matter that iscommitted by the Constitution, or by con-stitutional federal laws or regulations, ex-clusively to Congress or the president isnot capable of being decided by a federalcourt. Thus, whether a question is con-stitutionally capable of being decided by afederal court depends ultimately on theseparation of powers, other applicableconstitutional provisions, and federal lawsor regulations, not upon federal judges’capability, intellect, knowledge, expertiseor training, nor upon the inherent difficul-ty, complexity, novelty or esotery of thematter to be resolved.

A ‘‘nonjusticiable’’ question is alsoknown as a ‘‘political question,’’ denotingthat it has been constitutionally entrustedexclusively to either or both the executiveor the legislative branch, which are calledthe ‘‘political’’ or ‘‘elected’’ branches. Cor-


respondingly, the federal judiciary, whosemembers are appointed, is known as the‘‘unelected’’ or ‘‘non-majoritarian’’ branch.Thus, in this context, ‘‘political’’ does notbroadly relate to government, governmentpolicy, partisan or party politics, or thepolitical system. A case or question thatis ‘‘political’’ only in the broad sense, i.e.,that it has political implications or ramifi-cations, is capable of being decided consti-tutionally by a federal court, so long as thequestion has not been committed by con-stitutional means exclusively to the electedor political branches.

The questions posed by this case, viz.,whether defendants are liable to plaintiffsin damages under Mississippi’s commonlaw torts of nuisance, trespass or negli-gence, are justiciable because they plainlyhave not been committed by the Constitu-tion or federal laws or regulations to Con-gress or the president. There is no feder-al constitutional or statutory provisionmaking such a commitment, and the defen-dants do not point to any provision thathas such effect. The most that the defen-dants legitimately could argue is that inthe future Congress may enact laws, orfederal agencies may adopt regulations, soas to comprehensively govern greenhousegas emissions and that such laws or regu-lations might preempt certain aspects ofstate common law tort claims. Until Con-gress, the president, or a federal agency soacts, however, the Mississippi common lawtort rules questions posed by the presentcase are justiciable, not political, becausethere is no commitment of those issuesexclusively to the political branches of thefederal government by the Constitution it-self or by federal statutes or regulations.

A.

Initially, the Supreme Court formulateda narrow but clear political question ornonjusticiability theory. In Marbury v.Madison, Chief Justice Marshall stated:‘‘By the Constitution of the United States,the President is invested with certain im-portant political powers, in the exercise ofwhich he is to use his own discretion, andis accountable only to his country in hispolitical character, and to his own con-science TTTT The subjects are political.They respect the nation, not individualrights, and being entrusted to the execu-tive, the decision of the executive is conclu-sive TTTT’’ 5 U.S. (1 Cranch) 137, 165–66,2 L.Ed. 60 (1803). ‘‘The province of thecourt is, solely, to decide on the rights ofindividuals, not to enquire how the execu-tive, or executive officers, perform dutiesin which they have a discretion. Ques-tions, in their nature political, or which areby the constitution and laws, submitted tothe executive, can never be made in thiscourt.’’ Id. at 170. In Marbury, ChiefJustice Marshall contrasted political ques-tions with instances in which individualrights are at stake; the latter, according tothe Court, never could be political ques-tions. If there was a claim of an infringe-ment of an individual right—in otherwords, if the plaintiff had standing—therewas not a political question under theMarbury formulation.8

After Marbury, however, the Courtblurred Chief Justice Marshall’s sharp linebetween individual rights violations andquestions committed to the politicalbranches. The Court held some cases tobe committed to the political branches forresolution, and therefore nonjusticiable,

8. Erwin Chemerinsky, Federal Jurisdiction§ 2.6, at 149 n.7 (5th ed. 2007) (‘‘But noticethe effect of Marbury’s classification: Stand-ing is just the obverse of political questions.If a litigant claims that an individual right has

been invaded, the lawsuit by definition doesnot involve a political question.’’) (quotingHoward Fink & Mark Tushnet, Federal Juris-diction: Policy and Practice 231 (2d ed.1987))(internal quotation marks omitted).


even though individuals claimed concreteinjuries by specific constitutional viola-tions.9 The Court’s citation to Marbury inthose cases, without explaining why ChiefJustice Marshall’s theory was not strictlyadhered to, caused confusion.

Eventually, in Baker v. Carr, 369 U.S.186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), inwhich the Court held justiciable an equalprotection challenge to the malapportion-ment of a state legislature, Justice Bren-nan attempted to clarify why that allegedconstitutional violation was justiciablewhereas those alleged in other cases hadbeen held to be nonjusticiable politicalquestions. He confirmed that ‘‘it is therelationship between the judiciary and thecoordinate branches of the Federal Gov-ernment, and not the federal judiciary’srelationship with the States, which givesrise to the ‘political question,’ ’’ id. at 210,82 S.Ct. 691; that the separation of powersis the source of the political question doc-trine, id. at 210, 217, 82 S.Ct. 691; that thepurpose of the doctrine is to prevent judi-cial interference with the exercise of pow-ers committed to the political branches, seeid. at 217, 82 S.Ct. 691; that the doctrineapplies only when the federal court is re-quired to decide a question that has ‘‘beencommitted by the Constitution to anotherbranch of government,’’ id. at 211, 82 S.Ct.691; and that a court determining such acommitment must ‘‘analyze representativecases and TTT infer from them the analyt-ical threads that make up the politicalquestion doctrine,’’ id.

After a survey of the Court’s cases, Jus-tice Brennan identified the categories inwhich the political question doctrine hadbeen discussed: foreign relations; dates ofduration of hostilities; validity of enact-ments; status of Indian tribes; and repub-

lican form of government. From thesecases, he derived Baker v. Carr’s classic,oft-quoted ‘‘formulations’’ setting forth cri-teria to aid in determining whether a casewould require a federal court to decide aquestion that is committed to a politicalbranch and is therefore nonjusticiable.The Court stated:

It is apparent that several formula-tions which vary slightly according tothe settings in which the questions arisemay describe a political question, al-though each has one or more elementswhich identify it as essentially a functionof the separation of powers. Prominenton the surface of any case held to in-volve a political question is found a tex-tually demonstrable constitutional com-mitment of the issue to a coordinatepolitical department; or a lack of judi-cially discoverable and manageable stan-dards for resolving it; or the impossibili-ty of deciding without an initial policydetermination of a kind clearly for non-judicial discretion; or the impossibilityof a court’s undertaking independentresolution without expressing lack of therespect due coordinate branches of gov-ernment; or an unusual need for un-questioning adherence to a political deci-sion already made; or the potentiality ofembarrassment from multifarious pro-nouncements by various departments onone question.

Unless one of these formulations isinextricable from the case at bar, thereshould be no dismissal for non-justicia-bility on the ground of a political ques-tion’s presence. The doctrine of whichwe treat is one of ‘‘political questions,’’not one of ‘‘political cases.’’ The courtscannot reject as ‘‘no law suit’’ a bonafide controversy as to whether some ac-

9. See, e.g., Luther v. Borden, 48 U.S. (7 How.)1, 12 L.Ed. 581 (1849) (declaring nonjusticia-ble a suit brought under the republican form

of government clause even though the effectwas to leave people in jail who contested theconstitutionality of their conviction).


tion denominated ‘‘political’’ exceeds con-stitutional authority. The cases we havereviewed show the necessity for discrim-inating inquiry into the precise facts andposture of the particular case, and theimpossibility of resolution by any seman-tic cataloguing.

Id. at 217, 82 S.Ct. 691.

Plainly, the Baker v. Carr ‘‘formula-tions’’ were not written as stand-alone defi-nitions of a ‘‘political question.’’ They areopen-textured, interpretive guides10 to aidfederal courts in deciding whether a ques-tion is entrusted by the Constitution orfederal laws exclusively to a federal politi-cal branch for its decision. The Bakerformulations are not self-sufficient defini-tions, but must be used together with theConstitution and federal laws to decidewhether a particular constitutional or stat-utory provision commits a question solelyto a political branch for decision. Conse-quently, if a party moving to dismiss underthe political question doctrine is unable toidentify a constitutional provision or feder-al law that arguably commits a materialissue in the case exclusively to a politicalbranch, the issue is clearly justiciable andthe motion should be denied without apply-ing the Baker formulations.

[14, 15] In deciding whether a caseshould be dismissed as a nonjusticiablepolitical question, we must bear in mindthe principles that govern the jurisdictionof federal courts: ‘‘It is emphatically theprovince and duty of the judicial depart-ment to say what the law is.’’ Marbury v.Madison, 5 U.S. (1 Cranch) 137, 177, 2L.Ed. 60 (1803). ‘‘[F]ederal courts lackthe authority to abstain from the exerciseof jurisdiction that has been conferred.’’New Orleans Public Service, Inc. v. Coun-

cil of the City of New Orleans, 491 U.S.350, 358, 109 S.Ct. 2506, 105 L.Ed.2d 298(1989). In Boumediene v. Bush, ––– U.S.––––, 128 S.Ct. 2229, 171 L.Ed.2d 41(2008), the Supreme Court’s reasoning re-flected the principle that when a decisionis committed exclusively to Congress, asthe suspension of habeas corpus is, federalcourts must consider the issue nonjusticia-ble; but when an issue is not so commit-ted, federal courts are not free to abstain,and must exercise their jurisdiction if theyhave it. See id. at 2262 (‘‘This Court maynot impose a de facto suspension by ab-staining from these controversies.’’). ‘‘Wehave no more right to decline the exerciseof jurisdiction which is given, than tousurp that which is not given. The one orthe other would be treason to the constitu-tion. Questions may occur which wewould gladly avoid; but we cannot avoidthem.’’ Cohens v. Virginia, 19 U.S. (6Wheat.) 264, 404, 5 L.Ed. 257 (1821). Insum, ‘‘[w]hen a Federal court is properlyappealed to in a case over which it has bylaw jurisdiction, it is its duty to take suchjurisdiction.’’ Willcox v. Consolidated GasCo. of New York, 212 U.S. 19, 40, 29 S.Ct.192, 53 L.Ed. 382 (1909).

[16, 17] The political question doctrineis a limited exception to the rule that‘‘federal courts lack the authority to ab-stain from the exercise of jurisdiction thathas been conferred,’’ New Orleans PublicService, 491 U.S. at 358, 109 S.Ct. 2506.‘‘Where the Constitution assigns a particu-lar function wholly and indivisibly to an-other department, the federal judiciarydoes not intervene.’’ Baker, 369 U.S. at246, 82 S.Ct. 691 (Douglas, J., concurring).‘‘The converse of this proposition is that afederal court must not abstain from the

10. See Lane v. Halliburton, 529 F.3d 548, 559(5th Cir.2008) (‘‘Although the Baker formula-tions provide useful analytical guideposts inour analysis, ‘[w]hether an issue presents a

nonjusticiable political question cannot be de-termined by a precise formula.’ ’’) (quotingSaldano v. O’Connell, 322 F.3d 365, 368 (5thCir.2003)).


exercise of jurisdiction that has been con-ferred, unless it has been asked to conclu-sively resolve a question that is ‘whollyand indivisibly’ committed by the Constitu-tion to a political branch of government.’’Zivotofsky v. Secretary of State, 571 F.3d1227, 1235 (D.C.Cir.2009) (Edwards, J.,concurring). ‘‘Underlying these assertionsis the undisputed constitutional principlethat Congress, and not the Judiciary, de-fines the scope of federal jurisdiction with-in the constitutionally permissible bounds.’’New Orleans Public Service, 491 U.S. at359, 109 S.Ct. 2506. Therefore, the federalcourts are not free to invoke the politicalquestion doctrine to abstain from decidingpolitically charged cases like this one, butmust exercise their jurisdiction as definedby Congress whenever a question is notexclusively committed to another branch ofthe federal government.

Unsurprisingly, federal cases in whichsubject matter jurisdiction and standingare properly asserted are rarely dismissedas nonjusticiable pursuant to the politicalquestion doctrine. Indeed, since Baker,the Supreme Court has only dismissed twocases as presenting nonjusticiable politicalquestions. See Zivotofsky, 571 F.3d at1236 (Edwards, J., concurring) (discussingGilligan v. Morgan, 413 U.S. 1, 5, 93 S.Ct.2440, 37 L.Ed.2d 407 (1973) (declining a‘‘broad call on judicial power to assumecontinuing regulatory jurisdiction over theactivities of the Ohio National Guard’’ onthe basis of an explicit constitutional textu-al commitment of that power to Congressand president), and Nixon v. UnitedStates, 506 U.S. 224, 113 S.Ct. 732, 122

L.Ed.2d 1 (1993) (finding a request to re-view Senate impeachment proceedingsnonjusticiable in light of the explicit textu-al constitutional commitment of the im-peachment power to the Senate)).

A federal court’s dismissal of litigationbetween private citizens based on statecommon law, as presenting a nonjusticia-ble political question, has rarely, if at all,11

been affirmed by a federal court of ap-peals. See 13C Charles Alan Wright, Ar-thur R. Miller & Edward H. Cooper, Fed-eral Practice and Procedure § 3534.3, at806 (3d ed. 2008) (‘‘It seems unlikely thatTTT one private citizen suing another TTT

call[s] for resolution of a political question.Challenges to official action or inactionare the stuff of the separation of powersconcerns that underlie political questionreasoning.’’) (citing, as illustration, In reAfrican–American Slave Descendants Lit-igation, 471 F.3d 754, 758 (7th Cir.2006)(per Posner, J.) (holding that no politicalquestion was presented when the slavedescendant plaintiffs carefully cast theirdiversity suits against corporations forreparations under state common law ‘‘as aquest for conventional legal relief’’)).12

Common-law tort claims are rarelythought to present nonjusticiable politicalquestions. Three Circuits have stated, inthe political question context, that ‘‘thecommon law of tort provides clear andwell-settled rules on which the districtcourt can easily rely.’’ McMahon v. Presi-dential Airways, Inc., 502 F.3d 1331, 1364(11th Cir.2007); Alperin v. Vatican Bank,

11. The Ninth Circuit observed in 1992 that‘‘we have found no Supreme Court or Courtof Appeals decisions which have dismissed asuit brought against a private party on thebasis of the political question doctrine.’’ Ko-ohi v. United States, 976 F.2d 1328, 1332 n. 3(1992).

12. See also Lane v. Halliburton, 529 F.3d 548,560–61 (5th Cir.2008) (observing that ‘‘thefirst Baker formulation is primarily concernedwith direct challenges to actions taken by acoordinate branch of the federal govern-ment,’’ whereas ‘‘American courts have re-solved such matters between private litigantssince before the adoption of the Constitu-tion’’).


410 F.3d 532, 554 (9th Cir.2005); Linder v.Portocarrero, 963 F.2d 332, 337 (11th Cir.1992); Klinghoffer v. S.N.C. Achille Lau-ro, 937 F.2d 44, 49 (2d Cir.1991). TheFifth Circuit has similarly observed that,‘‘when faced with an ‘ordinary tort suit,’the textual commitment factor actuallyweighs in favor of resolution by the judi-ciary.’’ Lane v. Halliburton, 529 F.3d 548,560 (5th Cir.2008) (quoting Klinghoffer,937 F.2d at 49). And the Tenth Circuit, ina case governed by state negligence law,stated that ‘‘the political question theoryTTT do[es] not ordinarily prevent individualtort recoveries.’’ McKay v. United States,703 F.2d 464, 470 (1983). Claims for dam-ages are also considerably less likely topresent nonjusticiable political questions,compared with claims for injunctive relief.Indeed, the Fifth Circuit in Gordon v.Texas categorically stated that ‘‘[m]one-tary damages TTT do not TTT constitute aform of relief that is not judicially manage-able.’’ 153 F.3d 190, 195 (5th Cir.1998).13

[18] Although federal courts may notdecide an issue whose resolution is com-mitted by the Constitution to the exclusiveauthority of a political branch of govern-ment, see Baker, 369 U.S. at 217, 82 S.Ct.691; Gilligan, 413 U.S. at 6–7, 93 S.Ct.2440; Nixon, 506 U.S. at 228, 113 S.Ct.732, a federal court may decide a case thatmerely implicates a matter within the au-thority of a political branch. For example,Congress alone has the authority to passlegislation, but the courts have authority toassess the constitutionality of a statutethat has been properly challenged. ‘‘[T]hepolitical question doctrine bars judicial re-

view only when the precise matter to bedecided has been constitutionally commit-ted to the exclusive authority of a politicalbranch of government.’’ Zivotofsky, 571F.3d at 1238 (Edwards, J., concurring).Compare Nixon, 506 U.S. at 229–36, 113S.Ct. 732 (holding that a claim for reviewof Senate impeachment proceedings wasnonjusticiable), with Powell v. McCor-mack, 395 U.S. 486, 519–22, 89 S.Ct. 1944,23 L.Ed.2d 491 (1969) (holding that a claimfor review of the House’s refusal to seat anelected representative did not present anonjusticiable political question).

Further, federal courts may decidewhether and to what extent a matter isreserved to the exclusive authority of apolitical branch. Baker, 369 U.S. at 211,82 S.Ct. 691 (‘‘Deciding whether a matterhas in any measure been committed bythe Constitution to another branch of gov-ernment, or whether the action of thatbranch exceeds whatever authority hasbeen committed, is itself a delicate exer-cise in constitutional interpretation, and isa responsibility of this Court as ultimateinterpreter of the Constitution.’’); Powell,395 U.S. at 521, 89 S.Ct. 1944 (‘‘[W]hetherthere is a ‘textually demonstrable constitu-tional commitment of the issue to a coordi-nate political department’ of governmentand what is the scope of such commitmentare questions we must resolve TTTT’’);Nixon, 506 U.S. at 238, 113 S.Ct. 732(‘‘[C]ourts possess power to review eitherlegislative or executive action that trans-gresses identifiable textual limits.’’).

The federal courts must decide mattersof statutory construction, constitutional in-

13. See also Koohi, 976 F.2d at 1332 (‘‘A keyelement in our conclusion that the plaintiffs’action is justiciable is the fact that the plain-tiffs seek only damages for their injuries.Damage actions are particularly judiciallymanageable.’’). Compare Gilligan v. Morgan,413 U.S. 1, 11, 93 S.Ct. 2440, 37 L.Ed.2d 407(1973) (refusing to take cognizance of a suit

seeking judicial supervision of the operationand training of the Ohio National Guard inthe wake of the Kent State shootings), with id.at 5, 93 S.Ct. 2440 (suggesting that the Courtmight allow a suit against the National Guardfor damages), and Scheuer v. Rhodes, 416 U.S.232, 247–49, 94 S.Ct. 1683, 40 L.Ed.2d 90(1974) (allowing such a suit).


terpretation, and, when applicable, statecommon law and statutes, and cannotavoid this responsibility when their deci-sions may have political implications. Ja-pan Whaling Association v. American Ce-tacean Society, 478 U.S. 221, 230, 106 S.Ct.2860, 92 L.Ed.2d 166 (1986) (‘‘[U]nder theConstitution, one of the Judiciary’s charac-teristic roles is to interpret statutes, andwe cannot shirk this responsibility merelybecause our decision may have significantpolitical overtones.’’); INS v. Chadha, 462U.S. 919, 943, 103 S.Ct. 2764, 77 L.Ed.2d317 (‘‘Resolution of litigation challengingthe constitutional authority of one of thethree branches cannot be evaded by courtsbecause the issues have political implica-tions TTTT’’).

[19] Following the framework laid outin Nixon v. United States, we must beginby ‘‘interpret[ing] the [constitutional] textin question and determin[ing] whether andto what extent the issue is textually com-mitted’’ to a political branch. 506 U.S.224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1(1993); see also Powell v. McCormack, 395U.S. 486, 519, 89 S.Ct. 1944, 23 L.Ed.2d491 (1969). Thus, we need to know boththe ‘‘issue’’ presented by the case at handand the federal constitutional or statutory‘‘text’’ asserted to have committed thatissue exclusively to a political branch.‘‘Only then can we decide whether thatissue has been committed by the Constitu-tion solely to the political branches orwhether it is a proper matter for the judi-ciary to resolve.’’ Zivotofsky, 571 F.3d at1230 (majority opinion) (citing Nixon, 506U.S. at 228, 113 S.Ct. 732).

In this case the only ‘‘issues’’ are thoseinherent in the adjudication of plaintiffs’

Mississippi common law tort claims fordamages. There is no federal constitution-al or statutory provision committing any ofthose issues exclusively to a federal politi-cal branch. The district court’s adjudica-tion of this case is well within the authorityof the federal judiciary. Under the Con-stitution and federal laws, one of the judi-ciary’s characteristic roles is to adjudicatediversity cases based on state law.

Because the defendants have failed toarticulate how any material issue is exclu-sively committed by the Constitution orfederal laws to the federal political branch-es, the application of the Baker formula-tions is not necessary or properly useful inthis case. Even if applied, the formula-tions do not make the defendants’ argu-ment for nonjusticiability any more per-suasive. The defendants have not shownany exclusive textual commitment of theissues in this case to a federal politicalbranch. Nor have they shown the absenceof judicially discoverable or manageablestandards with which to decide this case.Mississippi and other states’ common lawtort rules provide long-established stan-dards for adjudicating the nuisance, tres-pass and negligence claims at issue. Thepolicy determinations underlying thosecommon law tort rules present no need fornonjudicial policy determinations to adjudi-cate this case.14 Nor would the districtcourt’s adjudication of this case express orimply any lack of the respect due coordi-nate branches of the federal government.Even when a court finds that Congress haspassed an unconstitutional law, there is no‘‘lack of respect’’ for Congress’s judgment.See United States v. Munoz–Flores, 495U.S. 385, 390, 110 S.Ct. 1964, 109 L.Ed.2d

14. See, e.g., George W. Pugh, The Federal De-claratory Remedy: Justiciability, Jurisdictionand Related Problems, 6 Vand. L.Rev. 79, 86(1952) (‘‘In any judicial adjudication, thecourt is furnished by precedent or legislation

with at least the broad outlines of policy. Itis quite true that the judiciary must ascertainthe broad applicable policy, but it does notitself make that policy in the specific case. Itfinds it.’’).


384 (1990). There is no unusual need forunquestioning adherence to a federal polit-ical branch decision already made, and nopotentiality of embarrassment from multi-farious pronouncements by various federaldepartments on one question. For exam-ple, this is not a case in which, for thosereasons, federal courts must completelydefer to the executive’s recognition of orrefusal to recognize a foreign government.

B.

The defendants’ reliance upon the dis-trict courts’ decisions in California v. Gen-eral Motors Corp., 2007 WL 2726871(N.D.Cal.2007), and Connecticut v. Ameri-can Electric Power Co., 406 F.Supp.2d 265(S.D.N.Y.2005)15 is misplaced. Those deci-sions are legally flawed and clearly distin-guishable from the present case.

First, the decisions in both AmericanElectric and General Motors are based ona serious error of law. In each case, thedistrict court incorrectly read the SupremeCourt in Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc. as holdingthat federal courts in air pollution casesmust balance social and economic interestslike a legislative body. They mistookChevron to state that:

to resolve typical air pollution cases,courts must strike a balance ‘‘betweeninterests seeking strict schemes to re-duce pollution rapidly to eliminate itssocial costs and interests advancing theeconomic concern that strict schemes[will] retard industrial development withattendant social costs.’’

General Motors, 2007 WL 2726871 at *7(quoting American Electric, 406 F.Supp.2dat 272 (quoting Chevron U.S.A., Inc. v.Natural Resources Defense Council, Inc.,467 U.S. 837, 847, 104 S.Ct. 2778, 81L.Ed.2d 694 (1984))). But the Court didnot so state. Instead, the Chevron Court,in the language quoted, was simply refer-ring to and describing the balancing ofinterests in Congress’s legislative process.Chevron does not require federal courts toimitate the legislative process.16

15. The Second Circuit Court of Appeals re-cently reversed the district court’s decision inAmerican Electric, holding that the case wasjusticiable. 582 F.3d 309 (2d Cir.2009). Al-though we arrived at our own decision inde-pendently, the Second Circuit’s reasoning isfully consistent with ours, particularly in itscareful analysis of whether the case requiresthe court to address any specific issue that isconstitutionally committed to another branchof government. The reversal of AmericanElectric casts additional doubt on the persua-siveness of General Motors, whose reasoningdrew heavily from that of the district court inAmerican Electric.

16. As the Court’s cases make clear, the histor-ic and traditional function of the federal judi-ciary is not legislation, but adjudication ofcontroversies between adversaries based onrules furnished by precedent or legislated law.Neither judges nor Congress can assign thecourts a legislative or non-judicial function.Justice Scalia, writing for the plurality in Vi-eth v. Jubelirer, explained the difference be-

tween the branches’ traditional roles as fol-lows:

‘‘The judicial Power’’ created by Article III,§ 1, of the Constitution is not whateverjudges choose to do, see Valley Forge Chris-tian College v. Americans United for Separa-tion of Church and State, Inc., 454 U.S. 464,487, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982);cf. Grupo Mexicano de Desarrollo, S.A. v.Alliance Bond Fund, Inc., 527 U.S. 308,332–33, 119 S.Ct. 1961, 144 L.Ed.2d 319(1999), or even whatever Congress choosesto assign them, see Lujan v. Defenders ofWildlife, 504 U.S. 555, 576–77, 112 S.Ct.2130, 119 L.Ed.2d 351 (1992); Chicago &Southern Air Lines, Inc. v. Waterman S.S.Corp., 333 U.S. 103, 110–14, 68 S.Ct. 431,92 L.Ed. 568 (1948). It is the power to actin the manner traditional for English andAmerican courts. One of the most obviouslimitations imposed by that requirement isthat judicial action must be governed bystandard, by rule. Laws promulgated bythe Legislative Branch can be inconsistent,illogical, and ad hoc; law pronounced by


From their erroneous premise, the twodistrict courts reasoned in a circle: ‘‘Inthis case, balancing those interests, togeth-er with the other interests involved, isimpossible without an ‘initial policy deter-mination’ first having been made by theelected branches to which our system com-mits such policy decisions, viz., Congressand the President.’’ American Electric,406 F.Supp.2d at 272; see also GeneralMotors, 2007 WL 2726871 at *7 (usingalmost identical language). Because theytook an erroneous reading of Chevron astheir premise, their conclusion as to thenature of the questions presented in thecases before them was erroneous also.

Neither Chevron nor any other SupremeCourt decision requires federal courts toimitate the functions of legislative or regu-latory bodies in ‘‘typical air pollutioncases.’’17

Second, the American Electric and Gen-eral Motors courts’ application of the polit-ical question doctrine appears to be atodds with the Supreme Court’s and Con-gress’s treatment of the analogous issue oftransboundary water quality control.18 InOhio v. Wyandotte Chemicals Corp., 401U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256(1971), the State of Ohio sought to enjoinchemical manufacturers in other states andCanada from discharging mercury into the

the courts must be principled, rational, andbased upon reasoned distinctions.

541 U.S. 267, 278, 124 S.Ct. 1769, 158L.Ed.2d 546 (2004) (plurality opinion) (paral-lel citations omitted).

17. Indeed, under the district courts’ errone-ous premise and reasoning, all ‘‘typical airpollution cases’’ would pose nonjusticiablepolitical questions and would have to be dis-missed at the outset.

Even if a particular case involves a claimfor injunctive or other equitable relief that thecourt finds to be impracticable, a court sittingin equity has the discretion to limit or moldrelief for reasons of practicality. There is noneed or authority to invoke the political ques-tion doctrine for such reasons. For instance,in Weinberger v. Romero–Barcelo, 456 U.S.305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982),the plaintiffs sought an injunction orderingthe Navy to cease violation of the FederalWater Pollution Control Act through its train-ing operations near Puerto Rico. See id. at306–07, 102 S.Ct. 1798. The Court noted that‘‘a federal judge sitting as chancellor is notmechanically obligated to grant an injunctionfor every violation of law,’’ id. at 313, 102S.Ct. 1798, and remanded the case for consid-eration of whether the federal courts in their‘‘equitable discretion’’ should grant an injunc-tion, see id. at 320, 102 S.Ct. 1798. Despitethe case’s obvious political implications, theCourt analyzed it in terms of equitable discre-tion, not the political question doctrine. Seealso Kimberly Breedon, Remedial Problems atthe Intersection of the Political Question Doc-

trine, the Standing Doctrine, and the Doctrineof Equitable Discretion, 34 Ohio N.U.L.Rev.523, 552–57 (2008) (pointing out that manycases that might be thought to implicate theBaker formulation requiring ‘‘judicially man-ageable standards’’ can best be addressedthrough the exercise of equitable discretion).

18. See Philip Weinberg, ‘‘Political Ques-tions’’: An Invasive Species Infecting TheCourts, 19 Duke Envtl. L. & Pol’y F. 155, 162–63 (2008). The General Motors court attempt-ed to distinguish the transboundary nuisancecases, 2007 WL 2726871 at *15, but its rea-soning on this point is unpersuasive. Thecourt did not explain why it believed thatthose cases were somehow more justiciablerather than less so because they involved in-junctive relief rather than damages. As dis-cussed above, the Fifth Circuit in Gordon v.Texas found monetary damages to be morejudicially manageable than injunctions. 153F.3d 190, 195 (5th Cir.1998). The GeneralMotors court also failed to explain how the‘‘national and international policy issues’’ im-plicated by global warming, or the impossibil-ity of attributing pollution to specific externalsources in the global warming context, wouldrender the political question doctrine applica-ble. See 2007 WL 2726871 at *15. Althoughthe worldwide effects of greenhouse gas emis-sions may, for instance, make it difficult forthe plaintiffs to show proximate causation, itdoes not follow that the issue has been com-mitted exclusively to the political branches fordecision.


tributaries of Lake Erie as a public nui-sance. While ultimately declining to hearthe suit as an original jurisdiction action,the Court explicitly distinguished cases inwhich the political question defense wassustained19; recognized that it had oftenadjudicated controversies between Statesand between a State and citizens of anoth-er State seeking to abate a nuisance thatexists in one State yet produces noxiousconsequences in another20; and ruled that‘‘precedent leads almost ineluctably to theconclusion that we are empowered to re-solve this dispute.’’21

Moreover, ‘‘[t]he courts have long andconsistently rejected assertions that theenactment of regulatory statutes like theClean Air Act and Clean Water Actpreempt states from public nuisance ac-tions.’’ Weinberg, supra note 10, at 163 n.72. In City of Milwaukee v. Illinois, 451U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114(1981), the Court held that the federalcommon law of nuisance was preempted bythe 1972 amendments to the Clean WaterAct, which comprehensively occupied thefield. Id. at 327–32, 101 S.Ct. 1784. Indoing so, however, the Court noted thatthe CWA preserved nuisance suits understate common law, see id. at 327–29, 101S.Ct. 1784, and stated further that:

[T]he appropriate analysis in determin-ing if federal statutory law governs aquestion previously the subject of feder-al common law is not the same as thatemployed in deciding if federal law pre-empts state law. In considering the lat-ter question ‘‘ ‘we start with the assump-

tion that the historic police powers ofthe States were not to be superseded bythe Federal Act unless that was theclear and manifest purpose of Con-gress.’ ’’ Jones v. Rath Packing Co., 430U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d604 (1977) (quoting Rice v. Santa FeElevator Corp., 331 U.S. 218, 230, 67S.Ct. 1146, 91 L.Ed. 1447 (1947)). Whilewe have not hesitated to find pre-emp-tion of state law, whether express orimplied, when Congress has so indicat-ed, see Ray v. Atlantic Richfield Co.,435 U.S. 151, 157, 98 S.Ct. 988, 55L.Ed.2d 179 (1978), or when enforce-ment of state regulations would impair‘‘federal superintendence of the field,’’Florida Lime & Avocado Growers, Inc.v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210,10 L.Ed.2d 248 (1963), our analysis hasincluded ‘‘due regard for the presupposi-tions of our embracing federal system,including the principle of diffusion ofpower not as a matter of doctrinairelocalism but as a promoter of democra-cy.’’ San Diego Building Trades Coun-cil v. Garmon, 359 U.S. 236, 243, 79S.Ct. 773, 3 L.Ed.2d 775 (1959).

Id. at 316, 101 S.Ct. 1784 (parallel citationsomitted). The Clean Air Act and otherfederal legislation on air quality are muchless comprehensive than the CWA, asamended. The defendants here do notcontend, and the district courts in Ameri-can Electric and General Motors did nothold, that any act of Congress haspreempted state law with respect to global

19. Id. at 496 (distinguishing Mississippi v.Johnson, 71 U.S. (4 Wall.) 475, 18 L.Ed. 437(1867) (suit to enjoin the president from exe-cuting the Reconstruction Acts), and Georgiav. Stanton, 73 U.S. (6 Wall.) 50, 18 L.Ed. 721(1868) (same, but against the Secretary ofWar and other officials)).

20. Id. (citing Missouri v. Illinois, 200 U.S.496, 26 S.Ct. 268, 50 L.Ed. 572 (1906), Geor-

gia v. Tennessee Copper Co., 206 U.S. 230, 27S.Ct. 618, 51 L.Ed. 1038 (1907), New York v.New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65L.Ed. 937 (1921), and New Jersey v. New YorkCity, 283 U.S. 473, 51 S.Ct. 519, 75 L.Ed.1176 (1931)).

21. Id.


warming. Even if Congress does eventu-ally enact a comprehensive federal lawconcerning greenhouse gas emissions, itmight very well preserve state commonlaw remedies, as the CWA did. The de-fendants’ briefs in this case fall far short ofshowing the ‘‘clear and manifest purpose’’of Congress that the Supreme Court inMilwaukee v. Illinois stated was neces-sary to overcome the ‘‘assumption that thehistoric police powers of the States werenot to be superseded by the FederalAct[s],’’ id. Given the clear inapplicabilityof federal preemption in this case, we willnot employ the political question doctrinein a way that would amount to a de factopreemption of state law.

Third, American Electric and GeneralMotors were not diversity suits understate common law between private partiesfor damages only (i.e., ‘‘quest[s] for con-ventional legal relief,’’ In re African–American Slave Descendants Litigation,471 F.3d 754, 758 (7th Cir.2006)). Rather,they were actions brought by state attor-neys general for their state governmentsbased partly on federal common law. Un-like the present plaintiffs’ ‘‘damages only’’state law tort suit, the American Electricsuit asked for an injunction explicitly im-posing future emissions standards and al-lowances, and the General Motors suitpressed for a declaratory judgment havingfuture effects in addition to damages. De-spite these distinguishing characteristics,American Electric and General Motors didnot genuinely present nonjusticiable politi-cal questions, because neither court coulddemonstrate (rather than assume as afalse premise) that a specific issue that hadbeen exclusively committed to a politicalbranch by a federal constitutional or statu-tory provision.

We need not decide whether the districtcourts in American Electric and General

Motors properly decided the federal com-mon law questions with which they werepresented. It suffices to recognize thatthe initial flaw or false premise in thosedecisions is essentially the same as thatwhich undermines the defendants’ argu-ment in this case. Similarly to those dis-trict courts, the defendants here havefailed to follow the method laid out by theSupreme Court in Nixon v. United States,506 U.S. 224, 228, 113 S.Ct. 732, 122L.Ed.2d 1 (1993), which requires, first,carefully identifying the issues that theplaintiffs’ claims pose for decision, and,second, ‘‘interpret[ing] the [constitutional]text in question and determin[ing] whetherand to what extent the issue[s are] textual-ly committed’’ to a political branch. Id.Like the district courts in American Elec-tric and General Motors, the defendantsbegin with an assumption they cannot sup-port, viz., that the adjudication of plaintiffs’claims will require the district court to fixand impose future emission standardsupon defendants and all other emitters.Then, again in a fashion similar to thosedistrict courts, the defendants proclaimthat it would be ‘‘impossible’’ for a court toperform such an obviously legislative orregulatory task so that the case must pres-ent a nonjusticiable political question. Thedefendants have failed to show how any ofthe issues inherent in the plaintiffs’ nui-sance, trespass, and negligence claimshave been committed by the Constitutionor federal laws ‘‘wholly and indivisibly’’22 toa federal political branch.

CONCLUSION

The plaintiffs have pleaded sufficientfacts to demonstrate standing for theirpublic and private nuisance, trespass, andnegligence claims. We decline to findstanding for the unjust enrichment, civil

22. Baker v. Carr, 369 U.S. 186, 246, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).


conspiracy, and fraudulent misrepresenta-tion claims and DISMISS these claims.We find that the plaintiffs’ remainingclaims are justiciable and do not present apolitical question. We do not hazard, atthis early procedural stage, an Erie guessinto whether these claims actually state allthe elements of a claim under Mississippitort law, e.g., whether the alleged chain ofcausation satisfies the proximate cause re-quirement under Mississippi state commonlaw; we leave this analysis to the districtcourt in the first instance. Thus, for theforegoing reasons, we REVERSE thejudgment of the district court and RE-MAND the case to the district court forfurther proceedings consistent with thisopinion.

W. EUGENE DAVIS, Circuit Judge,specially concurring:

I agree with the panel opinion that theplaintiffs in this case have standing tobring their claims. In addition, becausethere is no clear authority dictating thatwe do not have jurisdiction over this caseunder the political question doctrine, Iagree as well with the result the panelreaches on that point.

The defendants argued an alternativebasis for dismissal to the district court—that the plaintiffs failed to state a claimunder common law. Specifically, the de-fendants argued to the district court thatthe plaintiffs failed to allege facts thatcould establish that the defendant’s actionswere a proximate cause of the plaintiffs’alleged injuries. If it were up to me, Iwould affirm the district court on this al-ternative ground.

I recognize however that the panel hasdiscretion whether to decide this case on aground other than one relied on by thedistrict court and I defer to the panel’s

discretion not to address that argument.With this reservation, I concur.

,

UNITED STATES of America,Plaintiff–Appellee,

v.

Joe Daniel PEREZ, Defendant–Appellant.

No. 08–40917.

United States Court of Appeals,Fifth Circuit.

Oct. 16, 2009.

Background: Defendant pleaded guilty inthe United States District Court for theSouthern District of Texas, Janis GrahamJack, J., to possession of a firearm by aconvicted felon. Defendant appealed his120-month sentence.

Holdings: The Court of Appeals, Dennis,Circuit Judge, held that:

(1) four-level enhancement for an alteredor obliterated firearm serial numberwas warranted, and

(2) four-level enhancement for possessingfirearm in connection with another fel-ony offense was warranted.

Affirmed.

1. Sentencing and Punishment O651

The failure to properly calculate theapplicable Sentencing Guidelines range isprocedural error. U.S.S.G. § 1B1.1 etseq., 18 U.S.C.A.

2. Criminal Law O1139

He district court’s interpretation andapplication of the Sentencing Guidelines

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