Results matching “comer murphy fifth”

Supreme Court declines to hear 5th Circuit climate suit - PointOfLaw Forum

The U.S. Supreme Court today denied the petition of mandamus from plaintiffs who in Comer v. Murphy Oil Co. had sued energy companies and manufacturers for contributing to global warming, which strengthened Hurricane Katrina, which worsened property damage in Mississippi, so pay up. (Order List)

This is the suit that ran such a strange course through the lower courts.  U.S. District Court Judge Louis Guirola, Jr., of the Southern District of Mississippi originally dismissed the lawsuit in August 2007, ruling the plaintiffs lacked standing and the tort claims had to be resolved through 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 Fifth Circuit than agreed to consider the case en banc, but then one more appellate judge recused herself for a conflict of interest, eliminating the necessary quorum to hear the case. Since the three-member panel's ruling had been vacated, the case was dismissed (ruling), and the plaintiffs were forced to pursue the mandamus route in an attempt to keep the litigation alive.

Two other federal global warming/public nuisance suits remain: American Electric Power v. Connecticut, on appeal to the U.S. Supreme Court, and Native Village of Kivalina versus Exxon Mobil, on appeal to the Ninth Circuit.

See also, Climate Law Blog, "SCOTUS Denies Petition for Mandamus in 5th Circuit Climate Nuisance Suit," and earlier, Jonathan Adler at, "Writ of Mandamus Sought in Comer v. Murphy Oil." Earlier POL posts here.

On the dissents in the Comer dismissal - PointOfLaw Forum

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.

Recusable, non-justiciable, dis-enbancable - PointOfLaw Forum

When an eighth judge recused herself* from hearing the lawsuit on global warming damages, the U.S. Fifth Circuit of Appeals found itself without a quorum for en banc consideration of Comer v. Murphy Oil. The court on Friday determined it had no legitimate alternatives for hearing the appeal after the court had vacated the three-judge panel's ruling in anticipation of the en banc review. The result is that the U.S. District Court judge's original dismissal of the Comer lawsuit stands.

This is a strange one. What would have compelled a recusal after the en banc court had already been properly constituted? The Fifth Circuit would only say that "new circumstances arose." The Wall Street Journal speculated in an earlier editorial: "In Comer, did one of the more liberal Fifth Circuit judges buy stock specifically to blow up the quorum?" The Journal provides no evidence -- the court is not talking -- but the logic is that by blowing up the case, the recusing judge is pushing the global warming issue to the U.S. Supreme Court, increasing pressure for a political resolution of the policy issues. It's the judiciary's version of EPA's power play to regulate greenhouse gas emissions under the Clean Air Act: You don't like it? Legislate!

One can reasonably infer a legal strategy based on recusal from the fact the plaintiffs -- Mississippi residents trying to apportion blame and win cash for damages from Hurricane Katrina -- sued some 150 energy and industrial companies. (Having engaged in years of respiration, we breathed a sigh of relief at having escape the suit.)

The Fifth Circuit's order says the court considered alternatives:

  • Asking the Chief Justice to appoint a judge from another Circuit pursuant to 28 U.S.C. ยง 291.
  • Declaring that there is a quorum under the provisions of Federal Rule of Appellate Procedure 35(a).
  • Adopting the Rule of Necessity, allowing disqualified judges to sit.
  • "Dis-enbancing" the case and ordering the panel opinion reinstated, and issuing the mandate thereon.
  • Holding the case in abeyance until the composition of the court changes.

In a dissent, Judge Eugene Davis, joined by Judge Carl Stewart, writes:

The five judges who entered this order reasoned that this result was mandated by our Local Rule 41.3, which provides: "Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate."

But Local Rule 41.3 is a "provisional, practical rule" not intended for this kind of circumstance -- the loss of a quorum -- and it makes no sense to it to have an impact on the merits of the case, Davis argued.

Lawyers we talk to cannot recall a similar case; the judges are making new interpretations of their rules based on a recusal occurring in the middle of the process.

All this makes us even more curious as to what the "new circumstances" were. Did they arise from a judge's politically motivated act or something more mundane? We demand transparency!

More from Howard Bashman at How Appealing. As of 9:45 a.m. Monday, we find no news (non-blogging) accounts of the court's action.

* Judge Davis identifies the recusing judge as a "her," but that doesn't narrow down things too much: Seven of the 16 judges on the Fifth Circuit are women.

Around the web, November 2 - PointOfLaw Forum

Suing oil companies for causing Katrina, cont'd - PointOfLaw Forum

Ilya Shapiro thinks that the full Fifth Circuit en banc will overturn the recent panel decision in Comer v. Murphy Oil, or that the Supreme Court will agree to review the case. [Cato at Liberty]. "Mass tort litigation specialist Russell Jackson calls the plaintiffs' claims "the litigator's equivalent to the game 'Six Degrees of Kevin Bacon.'" Jackson also notes in a second post that a judge's recent dismissal of the Kivalina suit should be helpful to defendants seeking review of Comer. Earlier here.

Fifth Circuit reinstates climate change class action - PointOfLaw Forum

Russell Jackson brings word that the Fifth Circuit has now joined the Second Circuit's much-noted ruling in appearing to give a green light to climate change litigation:

The Fifth Circuit [panel in the new decision] held that plaintiffs lacked standing to bring their claims for unjust enrichment, fraudulent misrepresentation, and civil conspiracy, but that they had standing to assert their claims for public and private nuisance, trespass and negligence. The court further held that this latter group of claims did not present a non-justiciable political question.

The new opinion is Comer v. Murphy Oil (PDF). We covered the Second Circuit decision in Connecticut v. American Electric Power here and earlier, and (by contrast) a trial judge's dismissal (PDF) of the Kivalina suit here.