Beveridge & Diamond

Fifth Circuit Declines En Banc Review and Dismisses Climate Change Nuisance Case

Beveridge & Diamond, P.C., June 3, 2010

Following the recusal of the eighth of its 16 judges on April 30, 2010, the en banc U.S. Court of Appeals for the Fifth Circuit determined that it had lost the requisite quorum to decide the climate change public nuisance case Comer v. Murphy Oil, and, on that basis, dismissed the appeal.  Comer v. Murphy Oil, No. 07-60756 (5th Cir. May 28, 2010).  A majority of the remaining judges also found they could not reinstate the prior ruling of its three-judge panel, and instead restored the district court’s dismissal of the case.  The plaintiffs’ only recourse at this point is to petition the U.S. Supreme Court for certiorari.  The district court’s dismissal stands in contrast to the Second Circuit’s decision in Connecticut v. AEP, 582 F.3d 309 (2d Cir. 2009), a similar climate change nuisance action, on the political question doctrine and federal justiciability issues.  See  Moreover, the unusual basis for the Fifth Circuit’s dismissal of the appeal muddies the issues such that, if the Supreme Court does grant certiorari, it may spend as much time addressing procedural points as it does the more substantive issues pertaining to the justiciability of climate-nuisance actions.

In the fall of 2009, the Comer appellate panel reversed the district court and held a class of Gulf Coast private plaintiffs could sue oil companies, utilities, and chemical companies for their greenhouse gas releases’ alleged contribution to the severity of Hurricane Katrina.  (Click here for our more complete discussion of the panel opinion.)  On February 26, 2010, six of the nine non-disqualified judges of the full Fifth Circuit voted to grant defendants’ request to rehear the case en banc.  On April 30, 2010, less than a month before oral argument was scheduled to be heard on May 24, an eighth judge recused herself due to new circumstances.  In its May 28 Order, the en banc Court held that it lacked a quorum and therefore could no longer handle the case.  Further, based on its reading of the Court’s Local Rules, the majority held that the original panel’s decision was vacated upon the grant of rehearing en banc in February and could not subsequently be reinstated or “dis-enbanced.”  As a result, the Court held that the effect of its dismissal was to reinstate the district court decision, adding that “[t]he parties, of course, now have the right to petition the Supreme Court of the United States.”

The three judges that sat on the 2009 Comer panel filed two vigorous dissents from the May 28 order, highlighting the procedural issues that could predominate the sure-to-be-filed certiorari petition to the U.S. Supreme Court.  These judges objected to the Court’s determining the merits of the case based on a vote to grant en banc review.  That is, if the eighth recusal had pre-dated the decision to grant rehearing en banc, the panel’s ruling for the plaintiffs rather than the district court’s dismissal would now control.  The dissenting judges also disagreed with the majority’s refusal to pursue other options to preserve the appeal, including (1) inviting a judge from another Circuit; (2) invoking the “Rule of Necessity” to set aside recusals; (3) reinterpreting applicable court rules to find a quorum; and (4) holding the case in abeyance until the Court’s vacant 17th judge position is filled or a quorum is otherwise established.  According to the dissents, refusal to either proceed en banc or reinstate the panel decision is a deprivation of plaintiffs’ appeal rights.  The dissents provide a preview of the arguments that plaintiffs are likely to make in their certiorari petition.

The Fifth Circuit’s decision presents several implications for potential Supreme Court review.  The unusual posture and procedural issues presented in Comer may allow the Supreme Court to avoid the more difficult merits questions.  Moreover, Supreme Court review of the district court’s decision may be foreclosed if a sufficient number of Justices similarly recuse themselves (typically due to ownership of stock in one of the corporate parties to the action — and there are very many named as defendants in Comer).  In any event, the district court’s decision in Comer is inconsistent with the Second Circuit’s decision in Connecticut v. AEP, 582 F.3d 309 (2d Cir. 2009), which found no standing or political question impediment to climate change nuisance claims.  (Click here for our more complete discussion of AEP.)  A third major climate-nuisance decision, Kivalina v. ExxonMobil Corporation, 663 F. Supp. 2d 863 (N.D. Cal. 2009), in which the district court dismissed plaintiffs’ suit for climate change damages, is pending on appeal before the Ninth Circuit.  (The appellants’ opening brief was filed in March; the appellees’ briefs have not been filed yet.)

The plaintiffs in Comer have 90 days from the date of the order to file a petition for certiorari with the Supreme Court.

Click here for a copy of the Fifth Circuit’s May 28th opinion.  For more information on the impact of this decision, please contact David Friedland (, 202-789-6047), Dan Krainin (, 212-702-5417), Nico van Aelstyn (, 415-262-4008), or James Auslander (, 202-789-6009). 




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