MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
BEFORE THE COURT are the Motion [100] to Dismiss filed by Hess Corporation, the Motion [207] to Dismiss Amended Complaint filed by Certain Defendants,
BACKGROUND
On September 20, 2005, Ned Comer, Brenda Comer, and Joseph Cox,
The plaintiffs filed a First Amended Complaint that added the following plaintiffs as parties: Eric Haygood, Brenda Haygood, Larry Hunter, Sandra L. Hunter, Mitchell Kisielewski, and Johanna Kisielewski.
The plaintiffs filed a Third Amended Complaint
On August 30, 2007, this Court conducted a hearing concerning the Coal Companies’ Motion to Dismiss [146]. The Court held that the plaintiffs did not have standing to bring the lawsuit, because their injuries were not fairly traceable to the actions of the defendants. (Order, No. I:05ev436, ECF No. 368). The Court also held that the plaintiffs’ claims were nonjusticiable pursuant to the political question doctrine. (Id.) Because the Court found that it did not have jurisdiction to hear any of the plaintiffs’ claims, the plaintiffs’ Motion for permission to file a fourth amended complaint and all other pending motions were rendered moot. (Tr. 41-42, ECF No. 207-8). A Judgment was entered dismissing the plaintiffs’ claims. (J., No. 1:05ev436, ECF No. 369). The plaintiffs appealed this Court’s Judgment. (Notice of Appeal, No. 1:05cv436, ECF No. 370).
On October 16, 2009, a Fifth Circuit panel of three judges reversed in part this Court’s decision with regard to the plaintiffs’ state claims of public and private nuisance, trespass, and negligence. Comer v. Murphy Oil USA,
The plaintiffs chose not to file a petition for a writ of certiorari as to the merits of their appeal, but they filed a petition for a writ of mandamus asking the Supreme Court to order the Fifth Circuit to reinstate their appeal. (Defs.’ Mot., Ex. 25, ECF No. 207-25). The Supreme Court denied the plaintiffs’ petition on January 10, 2011. In re Ned Comer, — U.S. -,
FACTS AND PROCEDURAL HISTORY
On May 27, 2011, Ned Comer, Brenda Comer, Eric Haygood, Brenda Haygood, Larry Hunter, Sandra L. Hunter, Mitchell
In support of their nuisance claims, which are filed pursuant to both federal and state common law, the plaintiffs allege that the defendants’ activities are among the largest sources of greenhouse gases that cause global warming. (Id. at 10, 13). The plaintiffs claim that global warming led to high sea surface temperatures and sea level rise that fueled Hurricane Katrina, which damaged the plaintiffs’ property. (Id. at 13-14). They allege that global warming has caused them to incur higher insurance premiums and has lowered the resale value of their homes due to the increased risk of tropical storm activity, wind damage, and flood damage. (Id. at 15). Furthermore, the plaintiffs claim that the defendants’ emissions constitute an unreasonable invasion of the plaintiffs’ property rights. (Id.) Because they live in low-lying coastal areas on or near the Gulf of Mexico, the plaintiffs claim that they have suffered more severe injuries that the general public. (Id. at 16). In addition, the plaintiffs claim that the sea level rise causes saltwater intrusion, loss of habitat for hunting and fishing, and the submersion of public and private property. (Id. at 16). All of these effects of global warming, according to the plaintiffs, have resulted in the loss of the use and quiet enjoyment of their property. (Id.)
In support of their trespass claim, the plaintiffs argue that the defendants’ emissions have caused saltwater, debris, sediments, hazardous substances, and other materials to enter and damage their property. (Id. at 17). In support of their negligence claim, the plaintiffs state that the defendants have a duty to conduct their business in a way that does not unreasonably endanger the environment, public health, and public and private property. (Id.) The plaintiffs allege that the defendants’ emissions constitute a breach of that duty. (Id. at 18). The plaintiffs also contend that the defendants should be held strictly liable for the injuries that result from their emissions. (Id.) The plaintiffs state:
In the alternative, if Defendants’ activity did not directly cause the increase in sea surface temperatures which fueled Hurricane Katrina, their actions nevertheless have increased and will continue to increase the risk of more intense tropical cyclones and other storms, as well as sea level rise (through melting of glacial ice and thermal expansion) in the immediate future. These activities put Plaintiffs’ property at greater risk of flood and storm damage, and dramatically increase Plaintiffs’ insurance costs.
(Id.) The plaintiffs seek compensatory and punitive damages as a result of the defendants’ conduct. (Id. at 19-20).
The defendants have filed four separate but similar Motions to Dismiss the plain
DISCUSSION
I. Res Judicata and Collateral Estoppel
Some of the defendants argue that this lawsuit is barred by the doctrines of res judicata and collateral estoppel. “The res judicata effect of a prior judgment is a question of law....” Davis v. Dallas Area Rapid Transit,
As for the first requirement, the eleven plaintiffs in the present lawsuit were also plaintiffs in the 2005 lawsuit. They have also named additional new defendants in the present lawsuit. However, the plaintiffs attempted to name several of those new defendants in a proposed Fourth Amended Complaint in the 2005 lawsuit. “[T]he naming of additional parties does not eliminate the res judicata effect of a prior judgment ‘so long as the judgment was rendered on the merits, the cause of action was the same and the party against whom the doctrine is asserted was a party to the former litigation.’ ” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,
Furthermore, in the 2005 lawsuit, this Court dismissed all of the plaintiffs’ claims against all of the defendants, even those that had not joined in a Motion to Dismiss, and mooted the plaintiffs’ proposed Fourth Amended Complaint, because the Court determined that it did not have jurisdiction to hear any of the plaintiffs’ claims. The naming of additional defendants to the present lawsuit does not destroy the identity of the parties, particularly since the Court refused to permit the plaintiffs to
The second requirement — the judgment in the prior action was rendered by a court of competent jurisdiction — is also satisfied. “[I]t is familiar law that a federal court always has jurisdiction to determine its own jurisdiction.” United States v. Ruiz,
The third requirement of res judicata demands that the prior action was concluded by a final judgment on the merits. First, the judgment entered in the 2005 lawsuit was final. Although it was reversed by a Fifth Circuit panel, the panel opinion was vacated, and no mandate was issued reversing or setting aside this Court’s 2005 judgment. “Until a mandate issues, an appellate judgment is not final; the decision reached in the opinion may be reversed by the panel, or reconsidered by the en banc court, or certiorari may be granted by the Supreme Court.” Flagship Marine Servs. v. Belcher Towing Co.,
Furthermore, this Court’s 2005 Judgment was on the merits for the purposes of res judicata.
Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit[s] so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.
Boone v. Kurtz,
As for the fourth requirement, the Fifth Circuit has adopted a transactional test for determining whether two cases involve the same claim or cause of action. Singh,
In the plaintiffs’ Memorandum, they admit:
This action is a re-filing of an original action of the same name (Comer I), involving the same plaintiffs and, ... there are additional defendants many of whom are named in the Fourth Amended Complaint filed under motion for leave to amend and awaiting disposition at the time this court originally dismissed Comer I.
(Pis.’ Mem. 1, ECF No. 285) (emphasis added). In addition, it is clear that the
The Court finds that this lawsuit is also barred by the doctrine of collateral estoppel.
To establish collateral estoppel under federal law, one must show: (1) that the issue at stake [is] identical to the one involved in the prior litigation; (2) that the issue has been actually litigated in the prior litigation; and (3) that the determination of the issue in the prior litigation has been a critical and necessary part of the judgment in that earlier action.
Rabo Agrifinance, Inc. v. Terra XXI, Ltd.,
Nevertheless, out of an abundance of caution, the Court will once again address whether the plaintiffs have standing and whether this lawsuit presents a political question. The Court will also address additional arguments for dismissal made by the defendants including preemption, the statute of limitations, and the lack of proximate cause.
II. Standing
A Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction should be granted “only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitled him to relief.” Home Builders Ass’n of Miss., Inc. v. City of Madison,
The doctrine of standing arises out of Article III, Section 2 of the United States Constitution, which provides that the federal judicial power shall only extend to actual “cases or controversies.” See U.S. Const, art. III, § 2, cl. 1. The doctrine of constitutional standing consists of three elements. Lujan v. Defenders of Wildlife,
The only element of standing that is at issue in the present case is the causal connection element. This “causation element does not require a party to establish proximate cause, but only requires that the injury be ‘fairly traceable’ to the defendant.” League of United Latin Amer. Citizens v. City of Boerne,
In Massachusetts v. Environmental Protection Agency, the United States Supreme Court addressed the issue of standing in the context of injuries allegedly caused by global warming. Massachusetts v. Envtl. Prot. Agency,
When considering whether the alleged injury was fairly traceable to the EPA’s inaction, the Court stated: “EPA does not dispute the existence of a causal connection between manmade greenhouse gas emissions and global warming. At a minimum, therefore, EPA’s refusal to regulate such emissions ‘contributes’ to Massachusetts’ injuries.” Id. at 523,
In American Electric Power Company v. Connecticut, four Supreme Court justices determined that Connecticut and other states had standing to file a lawsuit seeking injunctive relief requiring electric power corporations to cap and reduce their greenhouse gas emissions. Amer. Elec. Power Co. v. Connecticut, — U.S. -,
In the present lawsuit, the plaintiffs primarily rely on Clean Water Act cases for support of their contention that they are only required to allege that the defendants’ emissions contributed to the kinds of injuries that they suffered. This argument is actually derived from the last element of a three-part test adopted by the Fifth Circuit. In Friends of the Earth,
Inc. v. Crown Central Petroleum Corporation, the Fifth Circuit explained:
[W]e applied the three-part test from Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals Inc.,913 F.2d 64 , 72 (3d Cir.1990), cert. denied,498 U.S. 1109 ,111 S.Ct. 1018 ,112 L.Ed.2d 1100 (1991), to determine whether an injury is “fairly traceable” to a defendant’s discharges. In a citizen suit under the Clear Water Act the plaintiff must demonstrate that “a defendant has (1) discharged some pollutant in concentrations greater than allowed by its permit (2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and that (3) the pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.”
Friends of the Earth, Inc. v. Crown Cent. Petrol. Corp.,
According to the EPA,
Greenhouse gases are naturally present in the atmosphere and are also emitted by human activities. Greenhouse gases trap the Earth’s heat that would otherwise escape from the atmosphere, and thus form the greenhouse effect that helps keep the Earth warm enough for life. Human activities are intensifying the naturally-occurring greenhouse effect by adding greenhouse gases to the atmosphere.
Connecticut,
Contrary to the plaintiffs’ assertions in the present case, the EPA’s findings that
It is insufficient for the plaintiffs to allege that the defendants’ emissions contributed to the kinds of injuries that they suffered. As explained previously, the contribution requirement relied upon by the plaintiffs is merely one of three required elements for demonstrating the causation requirement of Constitutional standing in Clean Water Act cases. There is no legal basis for adopting a more lenient causation standard in global warming lawsuits than that adopted in Clean Water Act cases. In fact, the proof of a chain of causation in Clean Water Act cases is far less demanding than in global warming cases. Clean Water Act cases generally pertain to source point pollution occurring in a single body of water, while global warming cases pertain to pollution in the form of green house gases that are released all over the planet.
This difference is particularly demonstrated by the Crown Central case, in which the Fifth Circuit held that plaintiffs who utilized a lake that was located a mere eighteen miles from the site at which the pollution was discharged did not have standing to file a lawsuit against the plant that released the water pollution. This Court recognizes that the Crown Central case pertained to a motion for summary judgment, while the present lawsuit is at the pleading stage, but the alleged chain of causation in the present case, is by far and away, more tenuous than the causal chain alleged in the Crown Central.
The Massachusetts and Connecticut cases also support the finding that the plaintiffs in the present case lack standing. The United States Supreme Court pointed out that it has not held that private citizens have standing to assert global warming claims. In fact, the Supreme Court was only able to find that Massachusetts had standing to sue the EPA for failure to regulate emissions by granting it “special solicitude” due to its sovereign status. And, in the Connecticut case, only a plurality of the Supreme Court found that states have standing to sue companies that release emissions due to that same “special solicitude.” All of the plaintiffs in the present lawsuit are private citizens, who have no sovereign status. Although it is true that the Supreme Court determined that Massachusetts had standing based on the allegation that the EPA’s failure to regulate merely contributed to Massachusetts’ alleged injuries, this does not mean that the private citizen plaintiffs in the present case can demonstrate the causal connection standard by showing a mere contribution to similar injuries. If contribution were enough, presumably there would have been no need for the Supreme Court to grant Massachusetts special solicitude in its standing analysis.
Furthermore, the causal connection would be even more difficult to establish in the present case than in the Massachusetts and Connecticut cases. Here the plaintiffs
As this Court stated in the first Comer lawsuit, the parties should not be permitted to engage in discovery that will likely cost millions of dollars, when the tenuous nature of the causation alleged is readily apparent at the pleadings stage of the litigation. The Court finds that the plaintiffs have not alleged injuries that are fairly traceable to the defendants’ conduct, and thus, the plaintiffs do not have standing to pursue this lawsuit.
III. Political Question
“ ‘[T]he concept of justiciability,’ as embodied in the political question doctrine, ‘expresses the jurisdictional limitations imposed upon federal courts by the case or controversy requirement of Art[iele] III.’ ” Spectrum Stores, Inc. v. Citgo Petrol. Corp.,
(1) a textually demonstrable constitutional commitment to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving [the issue]; or (3) the impossibility of deciding without initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court’s undertaking independent resolution without ex*863 pressing lack of respect to coordinate branches of the government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality for embarrassment from multifarious pronouncements by various departments on one question.
Baker v. Carr,
“The judicial Power” created by Article III, § 1, of the Constitution is not whatever judges choose to do ... or even whatever Congress chooses to assign them.... It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.
Id. at 278,
The Supreme Court held that the Massachusetts case did not present a political question. However, that case is distinguishable from the present lawsuit. In Massachusetts, “[t]he parties’ dispute turn[ed] on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court.” Massachusetts,
In the Connecticut lawsuit, the Supreme Court explained:
EPA commenced a rulemaking under § 111 of the Clean Air Act, 42 U.S.C. § 7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and final rule by May 2012. See Fed.Reg. 82392.
Connecticut,
Here, the plaintiffs contend that they are not asking this Court to regulate emissions or to make policy determinations concerning climate change. (Am. Compl. 12, ECF No. 28). However, in portions of their Amended Complaint, it is clear that plaintiffs ask the Court to determine that the defendants’ levels of emissions are “unreasonable.” For example, the plaintiffs allege in their Amended Complaint:
33.
The Defendants had and continue to have a duty to conduct their business in such a way as to avoid unreasonably endangering the environment, public health, and public and private property, as well as the citizens of the State of Mississippi.
34.
The Defendants breached their duties by emitting substantial quantities of greenhouse gases, knowing that such emissions would unreasonably endanger the environment, public health, and public and private property interests.
(Am. Compl. 17-18, ECF No. 28) (emphasis added). The plaintiffs also allege that “[t]he injuries caused by Defendants’ emissions are an unreasonable invasion of Plaintiffs’ property rights.” (Am. Compl. 15, ECF No. 28) (emphasis added). Thus, the plaintiffs are asking the Court, or more specifically a jury, to determine without the benefit of legislative or administrative regulation, whether the defendants’ emissions are “unreasonable”. Simply looking to the standards established by the Mississippi courts for analyzing nuisance, trespass, and negligence claims would not provide sufficient guidance to the Court or a jury. As some of the defendants argue in their Memorandum, the plaintiffs in the present case call upon a jury to:
decide — based not on a rule or standard but instead on nothing more than its own policy preferences and predilections — which sectors or enterprises should have reduced their emissions, or otherwise altered their behavior, and which of them should now be forced to shoulder all or part of the alleged costs of climate change or damages caused by Hurricane Katrina. The jury would [not be] applying the law, but creating it.
(Defs.’ Mem. 42, ECF No. 210).
Similarly, the plaintiffs in Connecticut were asking the federal court to determine what amount of carbon-dioxide emissions is unreasonable. Connecticut,
It is unclear how this Court or any jury, regardless of its level of sophistication, could determine whether the defendants’ emissions unreasonably endanger the environment or the public without making policy determinations that weigh the harm caused by the defendants’ actions against the benefits of the products they produce. Our country, this Court, and even the plaintiffs themselves rely on the products the defendants produce. As the Supreme Court stated:
It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions .... Federal judges lack the scientific, economic, and technological re*865 sources an agency can utilize in coping with issues of this order.... Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located.
Connecticut,
IV. Preemption
In the Connecticut case, the United States Supreme Court stated: “We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” Connecticut,
Here, the plaintiffs argue that the Connecticut case is limited to federal common law nuisance claims for injunctive relief. However, as previously explained, the Connecticut Court expressed concern that the plaintiffs were calling upon the federal courts to determine what amount of carbon-dioxide emissions is unreasonable as well as what level of reduction is practical, feasible, and economically viable. Id. The Court explained that those determinations had been entrusted by Congress to the EPA, and the judgments the plaintiffs sought from federal judges could not be reconciled with the decision-making scheme enacted by Congress. Id. Therefore, the Court held that the federal common law of nuisance was displaced. Id.
In the present case, although the plaintiffs do not request injunctive relief, they are asking this Court to make similar determinations regarding the reasonableness of the defendants’ emissions. As explained previously, the state law causes of actions asserted by the plaintiffs hinge on a determination that the defendants’ emissions are unreasonable, and the plaintiffs’ Amended Complaint specifically alleges that the defendants’ emissions are unreasonable. See Glover ex rel. Glover v. Jackson State Univ.,
V. Statute of Limitations
A. Savings Statute
Hurricane Katrina struck the Mississippi Gulf Coast on August 29, 2005. The present lawsuit was filed on May 27, 2011. The plaintiffs do not dispute that Mississippi’s three-year statute of limitations, Miss.Code Ann. § 15-1-49, applies to all of their claims,
The savings statute provides:
If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiffs death, commence such new action, within the said one year.
Miss.Code. Ann. § 15-1-69. The Mississippi Supreme Court has held that the savings statute applies to cases “[wjhere the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which [the plaintiff] can remedy or avoid by new process.” Marshall v. Kansas City S. Rys. Co.,
The plaintiffs are not entitled to invoke the savings statute with regard to any of their claims. Since a judgment of dismissal with prejudice was entered in the first lawsuit, the savings statute does not apply. Although the plaintiffs’ appeal was dismissed, they were not left without a remedy. The Fifth Circuit notified the plaintiffs that they could petition the United States Supreme Court for a writ of certiorari, but the plaintiffs chose not to do so. Instead, they merely sought a writ of mandamus and waived their right to a review of this Court’s Judgment.
Moreover, the plaintiffs overlook an important requirement for applicability of the savings statute — that the refiling of the cause of action must remedy the defect that caused the dismissal in the original case. See Marshall,
B. Continuing Torts
The plaintiffs also assert that they have alleged continuing torts, and therefore, the statute of limitations does not bar their claims. Under Mississippi law:
[A] cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.... In order to become an enforceable tort claim, proof of the following four elements must be present: duty, breach of duty, causation, and actual damage. It is not vested until all four elements are present. Further, in the absence of damage, no litigable event arose.
Amer. Gen. Life & Accident Ins. Co. v. Edwards,
The plaintiffs’ claims related to Hurricane Katrina accrued on August 29, 2005, the date on which the plaintiffs suffered damages. The remainder of the plaintiffs’ claims pertain to a future risk of more severe storms and loss of property. These claims are not claims for damages that the plaintiffs have suffered, but are claims for damages that the plaintiffs may suffer in the future. The plaintiffs do not seek injunctive relief in this case. Therefore, these claims alleging a future risk of harm are not yet actionable. As a result, the Court finds that the only actionable claims filed by the plaintiffs are their claims concerning Hurricane Katrina, and those claims are barred by the statute of limitations.
VI. Proximate Cause
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
VII. Certain Defendants’ Motion for Sanctions
Alpha Natural Resources, Inc., Massey Energy Company, Peabody Energy Corporation, and Rio Tinto Energy America, Inc., have filed a Motion [211] for Rule 11 Sanctions. Fed.R.Civ.P. 11(b)(2) provides that when an attorney signs a pleading, he certifies that to the best of his knowledge, information, and belief, formed after conducting a reasonable inquiry that the claims asserted are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law.
The Coal Company defendants argue that the plaintiffs did not conduct a reasonable inquiry into the law before filing this case, because a reasonable inquiry would demonstrate that this lawsuit is barred by the doctrines of res judicata and collateral estoppel. The plaintiffs have never directly addressed the applicability of res judicata and collateral estoppel to this lawsuit, but they assert that their lawsuit was properly filed pursuant to the Mississippi savings statute. Although the Court has determined that the savings statute does not apply to the plaintiffs’ claims, the Court finds that the plaintiffs maintained the good faith belief that the savings statute did in fact apply. As a result, the Court finds that the defendants’ Motion for Sanctions should be denied.
VIII. Remaining Motions
For the reasons stated in this opinion, the Court finds that the plaintiffs’ lawsuit should be dismissed with prejudice as to all defendants. All other pending Motions are therefore moot.
CONCLUSION
The Court finds that all of the plaintiffs’ claims are barred by the doctrines of res judicata and collateral estoppel. Alternatively, the Court finds that the plaintiffs do not have standing to assert their claims, because their alleged injuries are not fairly traceable to the defendants’ conduct. Moreover, the Court finds that this lawsuit presents a non-justiciable political question, and that all of the plaintiffs’ claims are preempted by the Clean Air Act. The Court further finds that the plaintiffs’ claims are barred by the applicable statute of limitations, and that the plaintiffs cannot possibly demonstrate that their injuries were proximately caused by the defendants’ conduct.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion [100] to Dismiss filed by Hess Corporation, the Motion [207] to Dismiss Amended Complaint filed by Certain Defendants, the Motion [208] to Dismiss filed by the Coal Company Defendants, and the Motion [217] to Dismiss filed by Total Petrochemicals USA, Inc. and Total Gas & Power North America, Inc., are GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that this lawsuit is DISMISSED WITH PREJUDICE for the
reasons stated in this Court’s opinion.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Motion [211] for Rule 11 Sanctions filed by Certain Coal Company Defendants is DENIED.
Notes
. This Motion was filed by sixty-two of the defendants to this lawsuit. The complete list of filing defendants is located in footnote one
. The following defendants filed this Motion: Alpha Natural Resources, Inc., Arch Coal, Inc., CONSOL Energy Inc., International Coal Group, Inc., Massey Energy Company, The North American Coal Corporation, Ohio Valley Coal Company, Peabody Energy Corporation, Rio Tinto Energy America, Inc., and Westmoreland Coal Company. (Coal Defs.’ Mot., ECF NO. 208). BHP Minerals joined this Motion. (Joinder, ECF No. 277).
. The Comers' last name was misspelled Comber in their original Complaint. Joseph Cox voluntarily dismissed his claims six days after the lawsuit was filed.
. Mitchell and Johanna Kisielewski are married, but Mitchell’s name was misspelled in the First Amended Complaint.
. It appears that no "Second Amended Complaint” was filed in the case.
. Rosemary Romain’s name was misspelled in the 2005 Comer lawsuit. Elliott Romain passed away before the 2011 lawsuit was filed.
. Unless otherwise specified all documents cited in this opinion pertain to Cause No. 1:11cv220.
. The Court was equally divided in the Connecticut case with regard to the standing issue. Connecticut,
. As some of the defendants explained in their Memorandum, the plaintiffs would be required to demonstrate: "(1) what would the strength of Hurricane Katrina have been absent global warming; (2) how much of each Plaintiff's damages would have been attributable to Hurricane Katrina if it had come ashore at a lower strength; and (3) how much of each Plaintiffs damages was attributable to failures by others, such as FEMA and other governmental agencies, to prevent additional injury.” (Defs.' Mem. 56 n. 34, ECF No. 210).
. This Court is aware of the following statement made in a concurring opinion in Zivotofslcy v. Sec’y of State,
. On February 16, 2012, the EPA issued a final rule establishing National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Instilutional, and Small Industrial-Commercial-Instilutional Steam Generating Units. 77 Fed.Reg. 9304. The EPA stated: "This rule is expected to reduce [carbon dioxide] emissions from the electricity sector.” Id. at 9431.
. The three-year statute of limitations provided by Miss.Code Ann. § 15-1-49 applies to all causes of action for which no other period of limitation has been prescribed. With regard to federal common law claims, federal courts must borrow the applicable statute of limitations from the state in which it sits. McGuire v. Baker,
. The parties have not briefed the choice of law issue related to the plaintiffs’ state law claims. The plaintiffs contend that Mississippi law applies, but at least some of the defendants argue that the law of the states in which each defendant’s emissions were released would apply pursuant to North Carolina ex rel. Cooper v. TVA,
. The plaintiffs rely on Mississippi law in support of their claims. Therefore, the Court will only address Mississippi law, rather that considering whether the law of each state in which the emissions occurred should be applied.