Landmark Climate Change Lawsuits in 'Comer v. Murphy Oil' and 'Connecticut v. American Electric Power' Headed to U.S. Supreme Court Sooner Than Expected?

Author:Mr R. Trent Taylor
Profession:McGuireWoods LLP

A. Comer v. Murphy Oil

On April 30, 2010, the United States Court of Appeals for the Fifth Circuit, via its clerk, in a letter to all counsel of record announced the cancellation of en banc oral arguments previously scheduled for May 24, 2010, in the landmark climate change lawsuit Comer v. Murphy Oil. The letter stated:

The parties are hereby notified that since the en banc court was constituted, new circumstances have arisen that make it necessary for another judge to recuse, leaving only eight members of the court able to participate in the case. Consequently, this en banc court has lost its quorum, precluding the court from acting on the merits of the case. Accordingly, arguments scheduled for May 24, 2010, are canceled. Further notification to the parties will follow.

It is not currently known which judge made the latest decision to recuse and the reason for it. Seven members of the court (Jones, King, Wiener, Garza, Benavides, Southwick, and Haynes) had previously recused themselves from the case.

On May 3, 2010, four defendants filed a motion suggesting that the court was misreading the rule regarding a quorum, and that the Court continued to have a quorum regardless of the new recusal. Alternatively, these defendants asked that the district court's judgment remain the controlling law of the case, rather than the panel's decision. On May 6, 2010, nine more defendants filed a similar motion, adding as an additional argument that the recused judges should reconsider whether recusal is really necessary.

On May 6, 2010, the court sent a letter of advisement requesting supplemental letter briefs on the issue be filed no later than 5:00 pm on May 12, 2010, to be followed by opposition letter briefs due to be filed no later than 5:00 p.m. on May 17, 2010.

Comer v. Murphy Oil involves a lawsuit by Mississippi property owners against numerous oil, coal, and chemical companies, alleging that the defendants' activities contributed to climate change and magnified the effects of Hurricane Katrina. The district court dismissed the suit on political question and standing grounds, but on appeal, a panel of the Fifth Circuit reversed on October 16, 2009, holding that the plaintiffs did have standing and that the political question doctrine did not apply. The defendants filed a petition for rehearing en banc, which was granted on February 26, 2010.

B. Connecticut v. American Electric Power

On March 5, 2010, the United State Court of Appeals for the Second Circuit...

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