The U.S. Supreme Court last week declined to reinstate the climate change tort suit brought by Mississippi property owners against energy companies alleging a link between their greenhouse gas emissions and alleged harm from Hurricane Katrina.  In re: Comer, No. 10-294 U.S. petition for writ of mandamus denied 1/10/10).

We have posted on the climate change litigation, including inexplicable decisions such as the putative class action alleging that — follow the chain — dozens of oil and chemical companies emitted greenhouse gasses which contributed to an impact on the atmosphere which contributed to a rise in temperature of some parts of the ocean which contributed to making Hurricane Katrina stronger which contributed to additional damages to plaintiffs’ property. Such decisions represent a clear and dangerous trend within certain courts to usurp Congress, warp the traditional nuisance doctrine, and plunge the federal courts into what are essentially political questions.

The procedural posture of the case was unique. The trial court properly dismissed the suit on political question and standing grounds. The Fifth Circuit panel reversed and ruled that private property owners under Mississippi law may have standing to bring climate change-related nuisance and trespass claims for both property and punitive damages.  The court then issued an order last Spring granting the defendants’ petition for a rehearing en banc, vacating the panel decision. 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 then filed a petition seeking a writ of mandamus that would overturn the dismissal of their appeal. They raised 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? But the Supreme Court has declined to hear this.

The case was the second in which the Supreme Court has been asked to review an appeals court decision regarding suits against emitters of greenhouse gases. The Supreme Court, as we posted, had said last month that it would hear a challenge to another court of appeals decision allowing several states to continue with their public nuisance suit against American Electric Power Co. and other utilities for their greenhouse gas emissions. American Electric Power Co. v. Connecticut, No. 10-174 (U.S. certiorari granted 12/6/10).