As our readers know, the U.S. Court of Appeals for the Fifth Circuit voted back in March to re-hear, en banc, the global warming nuisance case of Comer v. Murphy Oil, which had been dismissed by the District Court but reinstated by a three-judge panel of the Court of Appeals.    On Friday, however, five judges of the Fifth Circuit, finding the court in an unusual procedural morass, issued an order – over spirited dissents – dismissing the appeal without re-hearing because the court did not have a quorum.  As a result, because the panel’s ruling had been vacated when the Fifth Circuit granted the motion to re-hear the case en banc, the District Court’s original order dismissing the case now stands.

In Comer, property owners along Mississippi’s Gulf Coast are seeking damages related to Hurricane Katrina from a number of oil companies   Relying on the common law principle of “nuisance,” the plaintiffs have alleged that the companies “engaged in activities that have produced the greatest single source of by-products leading to the development and increase of global warming,” and that the environmental conditions in the Gulf of Mexico that fostered the strengthening of Hurricane Katrina were “the direct result of” global warming.

The case was originally dismissed in August 2007 on political question and standing grounds; however, last fall, a three-judge panel of the Fifth Circuit reversed the dismissal and remanded the case to the District Court in Mississippi. The panel held that the plaintiffs have standing to bring their public and private nuisance claims, as well as trespass and negligence claims, and that none of these claims presents non-justiciable political questions.

In March, by a 6-3 vote, and with seven judges of the Fifth Circuit recused, the Court of Appeals granted the defendants’ motion to re-hear the case en banc.  Oral argument was initially set for May 24, but was postponed when one of the nine previously non-recused judges was also recused, leaving only eight judges  — of the court’s 16 —  to re-hear the case, a number insufficient for a quorum.

Five of those eight remaining judges (two put on the court by President Reagan and the other three by G.W. Bush) on Friday ordered that the appeal be dismissed, since a court, in the absence of a quorum “cannot conduct judicial business.”  In addition, according to the five judges, the court had no authority to reinstate the vacated panel decision that had reversed the District Court’s dismissal of the lawsuit.  In their order dismissing the appeal (and thus effectively dismissing the case), the five judges identified a number of other “options” they had rejected, including asking the Chief Justice to appoint a judge from another Circuit to establish a quorum.

The court’s remaining three non-recused judges – the same judges who had heard the appeal as a panel and reversed the District Court’s dismissal – dissented from Friday’s order.  Judge W. Eugene Davis, joined by Judge Carl E. Stewart, found “an inexplicable disconnect” between the majority’s notion that the court was powerless to conduct business yet had “the authority to dismiss the appeal.”  In a separate dissent, Judge James L. Dennis called the majority’s action “shockingly unwarranted” and accused the majority of “turning a blind eye to several legally viable alternative courses of action. . .”  According to Judge Dennis, if the five-judge majority’s “precipitous summary dismissal of the appeal is not corrected, it will cause the sixteen-active judge body of this United States Court of Appeals to default on its absolute duty to hear and decide an appeal of right properly taken from a final district court judgment.”

As we have recounted here on Warming Law, the Katrina victims’ lawsuit is one of several cases currently pending in the federal courts involving the issue of whether emitters of greenhouse gases may be held liable for their contribution to global warming, on the basis that such climate change is a “public nuisance.”  In a similar case decided last fall, Connecticut v. American Electric Power, the Second Circuit held that plaintiffs had standing to bring the case, reversing the lower court’s dismissal.  (Re-hearing in that case was denied on March 5.)  Meanwhile, another similar case, Native Village of Kivalina v. Exxon, was dismissed by the District Court and is currently pending on appeal in the Ninth Circuit.

Stay tuned to Warming Law for updates on these important cases.