Following its decision to grant en banc review of a Mississippi district court’s dismissal of a class action suit claiming that various oil and energy companies contributed to climate change, the Fifth Circuit Court of Appeals dismissed the appeal after it lost a quorum of judges necessary to hear the scheduled en banc appeal. Comer v. Murphy Oil USA, — F.3d —, 2010 WL 2136658 (5th Cir. May 28, 2010). Eight of the court’s sixteen judges recused themselves from hearing the case, presumably because they held stock in the defendant companies, leaving the court one judge shy of the requisite nine for a quorum.
Absent a quorum, five of the remaining eight Fifth Circuit judges concluded that they lacked judicial authority over the case and dismissed the appeal. Because the prior panel decision had been vacated when the court granted rehearing en banc, the dismissal of the appeal effectively reinstated the district court decision, which had dismissed the case. Three judges dissented from the Fifth Circuit’s dismissal, arguing that other alternatives were available for the Court to hear the appeal. Some have questioned whether dismissal of the appeal on narrow technical grounds signaled an unwillingness to reach the merits of what has become a highly troublesome issue for the courts.
The Fifth Circuit’s dismissal of Comer stands at odds with a Second Circuit decision handed down last fall that is currently the subject of a petition for certiorari to the Supreme Court. Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009) (“CT v. AEP”). In CT v. AEP, the Second Circuit reversed the lower court’s dismissal of a lawsuit alleging that climate change creates a public nuisance and rejected the argument that such suit presents a non-justiciable political question. The Fifth Circuit’s dismissal order noted that the Comer plaintiffs also could petition for review by the Supreme Court. Given what could be seen as an effective split in the circuits, Supreme Court review now seems more likely.
