When You Sue Utilities and Chemical Companies, Expect Recusals

Greenwire, in a report now published online at NYTimes.com, covers the latest twist in the Comer v. Murphy Oil global warming lawsuit, dismissed when the eighth judge on the Fifth Circuit recused herself, depriving the court a quorum, “Court Tosses Landmark Global Warming Ruling After Late Recusal“:

Though Friday’s decision hinged on an arcane procedural question, it infuriated environmentalists, who say the recusal of eight judges from the case suggests that judges are in the pocket of polluters.

Oh, c’mon. Sometime the mock outrage is just too mockingly obvious.

The Mississippi residents involved in the Comer litigation sued several dozens of companies for supposedly causing the global warming that supposedly made Hurricane Katrina especially powerful so it damaged the plaintiffs’ property. Most federal judges invest. They have stock porfolios. You can’t sue all the major utilities, oil and gas producers, and chemical companies without anticipating recusals. On the contrary, casting that wide of a litigation net looks like a strategy to cause a conflict of interest that ensures recusals: You force off the investing judges, leaving only the impecunious environmentalist liberals to rule on your suit. (Or so might be the theory.)

Ilya Shapiro at the Cato Institute has displayed admirable clarity in his blogging about Comer, including in his latest analysis, “Global Warming Plaintiffs Hoisted on Their Own Petard“:

[The] plaintiffs ended up botching their strategy of suing companies whose shares are owned by Fifth Circuit judges.  This clever legerdemain successfully removed seven judges, but that left a quorum of nine.  Of course, had the late-recusing eighth, Jennifer Elrod — who would’ve been expected to rule against the plaintiffs – recused when the first seven did, the court could not have vacated the panel opinion in the first place.  We’ll never know what happened after the court’s prior decision to grant rehearing that caused Judge Elrod to recuse, but at least we’re left with the second-best result: no strong decision from an important federal appellate court, but the reinstatment of the correct decision below.

Shapiro is the first follower of the case we’ve seen to identify the final judge who recused herself, having figured it out by comparing lists. (And a dissenting judge referred to “her.”) Judge Elrod was appointed to the federal bench by President George W. Bush.

More coverage …


Join the discussion One Comment

Leave a Reply