The U.S. Supreme Court today denied the petition for mandamus filed by plaintiffs in one of the major — and preposterous — suits claiming damages against industry for causing global warming, Comer v. Murphy Oil. (Today’s order list is here.) This should be the end of the case because the plaintiffs did not file a petition for certiorari, but given how convoluted the lawsuit’s path through the courts has been, perhaps there’s a strange maneuver that could revive it.

As we have summarized at Shopfloor.org, a District Court Judge in Mississippi held that Mississippi residents could NOT sue power companies and refineries for damages that resulted from global warming, but a three-judge panel of the Fifth Circuit Court of Appeals ruled otherwise on appeal.

That decision was appealed to the full Fifth Circuit Court of Appeals for en banc consideration, but after accepting the case, another judge recused herself because of a conflict of interest, eliminating the court’s quorum to hear the appeal. However, the appellate court had already vacated the lower court’s decision in anticipation of hearing it, so the lawsuit basically died. The petition for mandamus was an effort to keep the litigation going.

The National Association of Manufacturers’ Manufacturing Law Center summarized the case here. In amicus briefs, we argued:

The plaintiffs, Mississippi residents and property owners, alleged that the emissions from more than 150 energy and manufacturing companies increased global warming and contributed to the severity of damages resulting from Hurricane Katrina. Our brief in support of the appeal argued that the plaintiffs’ theory of liability would dramatically expand tort law beyond anything ever recognized because of the tenuous link between the alleged conduct and the alleged harm. In addition, this case involves a complex regulatory matter requiring the balancing of economic, environmental and international interests, and is constitutionally the domain of the political branches of government, not the courts.

The U.S. Supreme Court will still have an opportunity to rule on the legitimacy of public nuisance claims against power companies for the alleged harm caused by supposed global warming. In December, the Supreme Court granted certiorari in American Electric Power v. Connecticut, the federal common law nuisance case brought by several northeastern states against power utilities for global warming. The NAM’s case summary is here.

[Update: I quickly corrected the original version that got the U.S. District Court judge's ruling wrong. District Court Judge Louis Guirola, Jr., of the Southern District of Mississippi dismissed the lawsuit in August 2007, ruling that the plaintiffs lacked standing and the tort claims were non-justiciable ones to be resolved by the political system. ]

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 Shopfloor.org posts here.

Quin Hillyer of The Washington Times comments on the should-be-higher profile case of Comer v. Murphy Oil U.S.A., in a column, “No butterfly caused Katrina“:

A case called Comer v. Murphy Oil USA, winding its way through federal courts, offers leftists a perfect storm of fantasy fulfillment. Yet their fantasy balloons may well get popped. If the case is decided correctly, it could strike separate blows against both lawsuit abuse and global-warming alarmists, including those at the radicalized Environmental Protection Agency. …

This is the class-action lawsuit in which Mississippi residents sued  150 energy companies, chemical manufacturers and other emitters of greenhouse gases, claiming the emissions increased global warming, which made Hurricane Katrina so much more powerful and damaging to property. Compensate us!

Hillyer writes:

Remember the theory of the “butterfly effect,” whereby the flap of an insect’s wings in Brazil somehow could cause a tornado in Texas? In essence, the Comer theory amounts to sort of a butterfly effect writ extra-large. The problem with the butterfly effect is that a gazillion other creatures are flapping their wings all over the world, so it is literally impossible ever to prove a cause-and-effect relationship between airflows in Brazil and Texas or between Bolivia and Tennessee.

The trial judge, U.S. District Judge Louis Girola, Jr., dismissed the lawsuit because it sought to use the courts to balance complicated economic, environmental and international interests. These interests are constitutionally the domain of the political branches of government, not the courts. Unfortunately, a three-judge panel of the Fifth Circuit reversed, allowing the case to proceed. Now the full court will now consider the litigation en banc. Hillyer:

Remember, this first fight involves mere standing to sue, not the merits of the global-warming, butterfly-effect claims. But if it proceeds to trial, literally every one of us who uses energy could be legally liable for some degree of Katrina’s devastation. Energy-company shareholders, including retirees whose pension funds rely on stock in those companies, would see their savings diminished, while consumers surely would pay vastly higher prices if the millions of people who suffered damages in Katrina could lay claims for damages.

Hillyer cites an amicus brief filed in the litigation by the American Farm Bureau Federation, joined by the National Association of Manufacturers, the the American Tort Reform Association. The brief and case summary is available at the NAM’s Manufacturing Law Center’s entry on Comer, here.

Salt Lake City Tribune, “Noel seeks to protect power companies from emissions lawsuits“:

Power companies would be immune from lawsuits resulting from their greenhouse gas emissions under a bill sponsored by Rep. Mike Noel, R-Kanab, that passed the House on Tuesday.

Noel said he knows of two lawsuits that have been filed against power companies alleging they are contributing to climate change and, he said, Utah might be vulnerable to such lawsuits because so much of its power comes from fossil fuel.

“We need not make Utah fertile ground for future litigation of this type,” Noel said. “It’s only going to hurt our citizens.”

The vote was 49-19.

H.B. 395 is NOT just limited to power companies. As the text states:

A person residing or doing business in this state may not be held liable for damage or injury to another arising out of any actual or potential effect on climate caused by contributions to emissions of greenhouse gases unless it can be proved by clear and convincing evidence that the person has:

a) violated an enforceable statutory limitation or restriction against emissions of a specific greenhouse gas originating within this state; or (b) violated the express terms of a valid, enforceable operating, air, or other permit issued by a state or federal regulatory agency that has jurisdiction over the greenhouse gas emissions of the person or business.

The need to expand the protections beyond utilities is clear. In an earlier story from The Deseret News, “Utah lawmaker Mike Noel targets global warming lawsuits,” Rep. Noel mentions the Comer v. Murphy Oil Co. litigation, in which Mississippi property owners sued 150 oil companies, other energy producers and manufacturing companies under the theory that their emissions exacerbated Hurricane Katrina. (See our post from Thursday.)

Liability protections of this kind are not uncommon. State legislatures have passed laws to preclude suits against fast-food companies for causing obesity and against gun manufacturers for acts committed by criminals.

Last October a three-member panel of the U.S. Court of Appeals for the Fifth Circuit ruled in Comer v. Murphy Oil USA [585 F. 3d 855 (5th Cir. 2009)] that private landowners along the Gulf Coast of Mississippi could use Mississippi state law to sue more than 150 energy and manufacturing companies for having contributed to global warming. The argument was that global warming made Hurricane Katrina more powerful, causing the damage to their property, and therefore the companies should pay up. (Opinion)

The panel’s opinion was a terrible example of a court deciding that the judiciary is the proper authority to rule on a matter of policy — how society should allocate economic resources in response to the possibility of anthropogenic global warming — that appropriately belongs with the elected, policy-making branch of government, Congress. Indeed, the trial court had dismissed the suit on the grounds it raised non-justiciable political questions.

Good news. In a little noticed decision last Friday, the Fifth Circuit vacated the panel’s ruling and ordered an en banc hearing of the case, that is, decided to bring the litigation before the full court of appeals. (The order is here.) En banc hearings are relatively rare, but the stakes in this case — and the extreme position taken by the panel — warrant the review.

The National Association of Manufacturers joined the American Farm Bureau Federation and the American Tort Reform Association in filing an amicus brief urging the en banc consideration. Excerpt:

The theories alleged by Plaintiffs would dramatically change tort law and negatively affect business and consumer practices far beyond the energy industry and the parties before the court. The practical application of these theories will burden trial judges with extraordinarily speculative litigation against American farms,manufacturers, and virtually all other businesses; arbitrary selection by plaintiffs’ counsel will be the touchstone for liability. The tenuous link between plaintiffs’ alleged harm and defendants’ alleged conduct is beyond anything ever recognized in American tort law. Causation issues will also create an impossible burden for judges and juries. Adjudicating such claims would require a fact-finder to balance the social utility and costs of an enormous range of industrial, agricultural, manufacturing and individual activities that are only remotely related (if at all) to the alleged harm in order to assess and to assign potential liability.

Further, complex regulatory matters should remain within the domain of the political branches, as the constitutional power to engage in the balancing of such economic, environmental and international interests is vested in them. Constitutional issues aside, only these branches of government can fully assess the impact of carbon emissions limits on the entire range of emitters, whether energy producers, farmers, or others not before the court. Those branches can also factor in the financial burden on consumers to afford the added costs associated with such restrictions to their utility, food and other bills.

Comer is one of three major cases where the courts are being asked to assign liability to U.S. companies for contributing to global warming and property damage. The others are Kivalina v. ExxonMobil, in which an Alaskan native village has sued oil companies for beach erosion, a suit since dismissed by a federal district judge; and Connecticut v. American Electronic Power, in which the Second Circuit has ruled that states may bring a federal public nuisance suit against electric utilities.

News, commentary:

• Associated Press, “Appeals Court to revisit Katrina lawsuit“
• Troutman Sanders, “Fifth Circuit Grants Rehearing En Banc in Comer Climate Change Tort Litigation“
• Gardere Wynne Sewell LLP news release “Climate Change Litigation Hits A Roadblock In Fifth Circuit Court Of Appeals“
• Insurance Journal, “Global Warming Litigation Just Getting Started; Costs Will Be Significant“