No Quorum on Comer, Dismissal of Global Warming Suit Stands

The Fifth U.S. Circuit Court of Appeals today concluded that it could not form a quorum to hear an en banc appeal of the lawsuit claiming damages from global warming, Ned Comer, et al v. Murphy Oil USA, et al. Therefore, the court ruled, its earlier order that had the effect of dismissing the original suit stood.

Reached after a convoluted process with an unusual turn of events, the court’s decision that dismisses the suit is welcome news for those who believe the judicial system is the wrong place to handle claims of harm from global warming. The only venue left for the litigation is the U.S. Supreme Court, to which the plaintiffs will no doubt appeal.

Comer v. Murphy Oil was brought by Mississippi residents trying to hold 150 energy and industrial companies responsible for damages caused by Hurricane Katrina. Their theory is that the companies emitted greenhouse gases that cause global warming, which made Hurricane Katrina more destructive, therefore these companies – and only these companies — should pay up.

In August 2007, U.S. District Court Judge Louis Guirola, Jr., of the Southern District of Mississippi dismissed the lawsuit, ruling the plaintiffs lacked standing and the tort claims were non-justiciable ones that had to be resolved by the political system. (Opinion here, via Global Climate Law Blog.) The plaintiff’s appealed to the Fifth Circuit, and on Oct. 16, 2009, a three-judge panel ruled two-to-one that the lawsuit had indeed raised justiciable issues that should be heard at trial. (Opinion here.)

The defendants appealed for an en banc hearing by the full Fifth Circuit, which was granted. (The National Association of Manufacturers, American Farm Bureau Federation and American Tort Reform Association had joined in an amicus brief arguing for the hearing, as well.)

In an agreeing to the en banc consideration, the full Fifth Circuit vacated its three-member panel’s ruling on the Comer litigation, anticipating that it would hear the case and make its own ruling. That decision reinstated the district judge’s dismissal of the Comer suit. However — and this is the odd turn of events — right before briefs were due, the Fifth Circuit announced that an eighth judge had recused him or herself. The only reason stated was “new circumstances arose.” (Seven judges had already withdrawn; the usual reason for recusal is stock ownership.)

But the court had constituted itself correctly, and although the judges considered several options for further consideration, they decided that the previous action — dismissal — had to stand. From the Fifth Circuit’s order, filed today:

In sum, a court without a quorum cannot conduct judicial business. This court has no quorum. This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.

This is hardly the end of climate change litigation, unfortunately. Expect more appeals and suits from plaintiffs hoping to hit the jackpot and environmental activists trying to create a carbon-command-and-control economy through the courts.

But for now, a bad lawsuit has been dismissed. That’s good enough for today.

For more, see the NAM’s Manufacturing Law Center entry on Comer v. Murphy Oil. Earlier posts here.

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