Mass Tort Defense : Mass Tort Defense Lawyer & Attorney : Sean P. Wajert : Dechert Law Firm : Products Liability, Class Actions, Pharmaceutical Litigation

Latest round in the "global warming" litigation -- Coming as no surprise, a group of property owners asked the U.S. Supreme Court last week to address issues arising in the appeal of their climate change tort lawsuit.  The suit seeks to hold a group of energy companies liable for alleged hurricane damage to their properties.  See In re: Comer, No. 10-294 (U.S. petition for writ of mandamus filed 8/26/10). The causation allegation in this particular case is arguably even more attenuated than the long, convoluted causation chain in many other global warming cases; plaintiffs asserted that defendants' greenhouse gases didn't cause but contributed to global warming, which made the waters in the Gulf of Mexico warmer, which didn't create but made Hurricane Katrina more intense, which then caused their alleged property damage to be worse. That stands as perhaps the most attenuated, least supportable, causal link in tort history. 

The procedural history is fascinating.  The U.S. District Court for the Southern District of Mississippi dismissed the complaint in August, 2007 for lack of standing and as a non-justiciable political question. See Comer v. Murphy Oil USA, Inc., 2007 WL 6942285 (S.D.Miss. 2007). The district court correctly held that tort suits against electric power companies and other alleged large greenhouse gas emitters should not proceed in federal court because, among many reasons,  climate change, and tort claims based on alleged climate change, is fraught with national political and policy considerations.

Plaintiffs appealed, and a three-judge panel of the 5th Circuit reversed that decision in October, 2009.  But the defendants petitioned for a rehearing en banc, and the Circuit ordered en banc rehearing of the case. Comer et al. v. Murphy Oil USA et al., No. 07-60756 (5th Cir.). That vacated the panel opinion.

Then came a letter from the clerk noting the cancellation of en banc oral arguments. Apparently, since the en banc court was constituted, new circumstances had arisen that made it necessary for various judges to recuse, leaving only eight members of the court able to participate in the case. Consequently, said the clerk, the en banc court had lost its quorum. (Several members of the court had previously recused themselves from the case.)  The court then asked for supplemental briefing on what should happen next.

Following the briefing, in an opinion of the majority of the remaining judges, the 5th Circuit held that it could not give the climate-related lawsuit full court review because of the recusal issues. See Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010).  As a result, the court let stand the lower court's dismissal of the lawsuit.

The plaintiffs in this case have now filed a petition seeking a writ of mandamus that would overturn the dismissal of their appeal. They raise not the merits of their convoluted causation theory, but the procedural questions about when an en banc court loses its quorum after granting rehearing but before hearing argument en banc, what happens to the appeal? And when an en banc court loses its quorum before deciding an appeal on rehearing en banc, does the original panel somehow still maintain control over the case?

Thus, the case is not positioned like the Second Circuit appeal in which the federal government (Acting Solicitor General Neal Katyal on behalf of the Tennessee Valley Authority, a government-owned company), recently urged the Supreme Court to overturn a court of appeals decision that allowed Connecticut and several other states to move forward in their suit seeking greenhouse gas emissions reductions under a federal common law nuisance theory. American Electric Power Co. v. Connecticut, No. 10-174 (U.S., brief filed 8/24/10).

Readers know that writs of mandamus are rarely granted by the Supreme Court,  and the rule has traditionally been that once a court of appeals takes a case for en banc decision, the original panel decision is vacated, null and void, regardless of whatever happens next.  The 5th Circuit cannot legally reinstate a decision that no longer has any legal effect.  But stay tuned.

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Readers may recall my post about the Fifth Circuit granting the petition for rehearing en banc in Comer v. Murphy Oil.  The case involves a lawsuit by property owners against some three dozen oil, coal, and chemical companies, alleging that the defendants' activities contributed to climate change and magnified the effects of Hurricane Katrina, and thus exacerbated the damage from the storm. The trial court dismissed the suit on political question and standing grounds.  On appeal, a panel of the 5th Circuit reversed last Fall, finding 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, and set the case for oral argument next week.  But, the clerk recently sent a letter noting the cancellation of en banc oral arguments.  Apparently, 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, said the clerk, the en banc court has lost its quorum. Seven members of the court had previously recused themselves from the case.

Several defendants have filed a motion arguing for a different reading of the rule regarding a quorum, and/or raising the argument that the district court's opinion ought to remain the controlling law of the case, rather than the panel's decision which was vacated by the en banc decision. The court has responded by asking for supplemental briefing on these issues. Specifically, the order invited the parties to address the matter “as they think appropriate” but specifically directed them to analyze the interplay between the following rules and statute in resolving the disposition of the appeal: Fed. R. App. P. 35(a), 28 U.S.C. §46 (c) and (d), Fed. R. App. P. 41 (a) and (d) (1), 5th Cir. Local Rule 41.3, and Fed. R. App. P. 2. The court also instructed the parties that they may consider the rulings of Chrysler Corp. v. United States, 314 U.S. 583 (1941) and North American Co. v. Securities & Exchange Comm’n, 320 U.S. 708 (1943) and the Rule of Necessity.

Presumably, three outcomes are possible:the court decides it actually does have a quorum and thus oral argument is rescheduled; the panel decision is reinstated by default (with an ensuing cert petition to the Supreme Court); or, the district court is affirmed without opinion.

Many observers had predicted that the en banc decision by the 5th Circuit would create a circuit split  with the 2d Circuit decision in Connecticut v. American Electric Power. There, a two-judge panel reversed the lower court dismissing the case on political question grounds, and finding the plaintiffs had standing to assert nuisance claims (with a similar attenuated causation theory).  This presumably would have paved the way for Supreme Court cert review.  Of course, Justice Alito has recused himself in cases involving ExxonMobil due to his ownership of its stock, and  Justice Breyer has recused himself from cases involving BP.  Perhaps Justice Sotomayor would also recuse herself due to her participation in the Connecticut v. American Electric Power case when she was on the Second Circuit.  So any possible Supreme Court review may be complicated also by the recusal and quorum issues.

Stay tuned.  This one is getting even more interesting, if thatis possible.

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