Landmark Climate Change Suit Dismissed on Appeal by Quorum-Less 5th Circuit

On May 28, 2010, the U.S. Court of Appeals for the 5th Circuit dismissed the appeal in Comer v. Murphy Oil, which resulted in the reinstatement of the trial court's dismissal of all claims against the energy company defendants. The court dismissed the appeal for a very odd reason – the court did not have a quorum of nine active members to hear the case, because half of the members of the court had recused themselves.

While a decision from the 5th Circuit affirming the district court on the merits would have been preferable, and while lawsuits seeking damages arising from climate change continue to be a threat to oil, coal, chemical and power companies, this is still a welcome victory for the defendants.

The trial court initially dismissed this lawsuit by Mississippi property owners against numerous oil, coal and chemical companies who alleged the defendants' activities contributed to climate change and magnified the effects of Hurricane Katrina. The trial court concluded that the plaintiffs did not have standing and that the political question doctrine barred their claims.

On appeal, a panel of the 5th Circuit reversed on Oct. 16, 2009, holding that the plaintiffs did have standing to pursue their claims and that the political question doctrine did not apply. The full 5th Circuit granted the defendants' petition for rehearing en banc on Feb. 26, 2010, by a vote of 6-3.

In its latest ruling, the court found that because it no longer had a quorum of nine active members to hear the case, it would not hear the appeal on the merits. This was not unexpected, as the court had announced almost a month earlier that it no longer had a quorum to rule on the merits of the case. What was unexpected was what the court decided to do as a result of this finding.

By a 5-3 vote, the court refused to reinstate the panel decision that had been automatically vacated by local rule due to the grant of rehearing en banc. The court reasoned that "[t]here is no rule that gives this court authority to reinstate the panel opinion, which has been vacated." Accordingly, the court concluded that "[b]ecause neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal."

The court rejected five other less-drastic options suggested by the parties: (1) asking the Chief Justice to appoint a judge from another circuit to sit by designation; (2) declaring that a quorum existed by defining quorum as...