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On the dissents in the Comer dismissal

Russell Jackson of Skadden Arps reports at his Consumer Class Action and Mass Torts blog on the Fifth Circuit's quorum difficulties in Comer v. Murphy Oil, the lawsuit claiming damages for global warming. On Friday, the Fifth Circuit effectively dismissed the original lawsuit because a late recusal had deprived the court of its quorum for en banc consideration of the suit.  

"This, of course, creates a tremendous mess for those seeking to appeal to the U.S. Supreme Court.  And it threatens to overshadow the underlying substantive legal issues with a potpourri of procedural arguments," Jackson writes in "Fifth Circuit Punts on Global Warming En Banc Appeal."

Jackson says the views of the dissenting judges foreshadow the arguments the Comer plaintiffs will make in appealing to the U.S .Supreme Court. He concludes:

You can bet that the certiorari petitions to the U.S. Supreme Court will be chock full of arguments as to why the Fifth Circuit was wrong not to decide the Comer appeal. But the real underlying question remains more important: Do victims of natural disasters have standing to sue a subset of those who allegedly contribute to "climate change" based on the hypothesis that the disaster might have been milder if the ocean had been a few degrees cooler? The causal chain on such climate change theories are simply too attenuated to support legal standing. And the sooner we get a definitive ruling from the Supreme Court on that issue, the better off we'll be.

Earlier posts here.

UPDATE (1:40 pm.): AP's report today misses the news, that the original lawsuit had been vacated.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.