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Fifth Circuit Dismisses Hurricane Katrina Climate Change Appeal

By Gabrielle Sigel

On May 28, 2010, in Comer v. Murphy Oil U.S.A, the U.S. Circuit Court of Appeals for the Fifth Circuit issued an order dismissing the appeal of a climate change nuisance case involving the effects of Hurricane Katrina. Comer v. Murphy 5th Cir. Order May 26 2010.The Fifth Circuit’s order, in effect, reinstates the decision of the U.S. District Court, which had dismissed the nuisance complaint filed by plaintiff property owners, who claimed that the greenhouse gas emissions of the defendant energy, fossil fuel-burning, and chemical companies had worsened the impacts of Hurricane Katrina. The Fifth Circuit’s decision is highly unusual and controversial.

The Fifth Circuit’s dismissal order did not discuss any of the substantive issues in the case, instead addressing issues of the court’s power to act in absence of a quorum.  To understand the Fifth Circuit’s order, it is important to review the case’s procedural posture.

On August 30, 2007, the U.S. District Court for the Southern District of Mississippi granted defendants’ motion to dismiss, finding that plaintiffs’ nuisance claims raised a non-justiciable political question and that plaintiffs did not adequately allege the “causation” element required for standing, as defined by the Supreme Court in
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  Plaintiffs then filed an appeal to the Fifth Circuit.  A three-judge panel of the Court of Appeals issued an opinion reversing the district court’s decision.  The appellate court panel held that plaintiffs had standing, under both state and federal law, to bring their nuisance, trespass, and negligence claims.  The court further held that the case did not raise a non-justiciable political question.  585 F. 3d 855 (5th Cir. 2009).

Defendants next asked for a rehearing en banc,
i.e., by all sixteen of the judges sitting in the Fifth Circuit.  Seven judges disqualified themselves from the decision on whether to grant rehearing.  The remaining nine judges voted and decided to grant a rehearing en banc, which vacated the three-judge panel’s opinion.

Following the decision to grant a rehearing en banc, one of the remaining nine judges recused herself.  This left only eight judges sitting en banc, which is less than the quorum authorized to transact judicial business.  In response, a majority of the remaining judges decided that, because there was no quorum, there could be no opinion or judgment from the Fifth Circuit in the case and directed a dismissal of the appeal.  Because the three-judge panel opinion had been vacated when there had been a quorum of the court, there was no longer any decision reversing the district court’s decision.  The Fifth Circuit noted, however, that the parties can petition the U.S. Supreme Court to hear an appeal.

Three of the eight judges dissented from the appellate court’s dismissal order.  They asserted that the Fifth Circuit had several alternatives short of dismissal of the appeal, including assigning an appellate judge from another circuit in order to reach a quorum, and that the court had a duty to decide appeals before it.  Thus, rather than focusing on the substantive standing issues in this climate change case, the appeals to the Supreme Court will now focus on these unusual issues of court administration and judicial power.