On May 28, 2010, in a procedurally bizarre and legally dubious move, the United States Court of Appeals for the Fifth Circuit dismissed a climate change lawsuit.  The court’s decision in Comer v. Murphy Oil [2] deprives people of a remedy and a right to appeal when their lives and property have been damaged due to the destructive effects of climate change.  

In Comer, a group of property owners filed suit against dozens of oil, gas, and chemical companies, alleging that the greenhouse gas emissions from their industrial activities had helped change the climate in the Gulf of Mexico and amplified the damage caused by Hurricane Katrina.  The District Court dismissed the case, finding that the case raised political questions that were more appropriate for Executive Branch determination, and that plaintiffs had no standing to sue.  This ruling was reversed on appeal by a three-judge panel [3] of the Fifth Circuit, which found that in the absence of federal guidance on the issue, normal tort principles could apply to the case.  Defendants asked the Fifth Circuit to rehear the case en banc – i.e. in front of a panel of all the appellate judges in the Circuit. 

Here’s where the procedural shenanigans begin.  In February, the Fifth Circuit voted to hear the case en banc, thereby instantly voiding the panel decision in favor of the plaintiffs.  Out of sixteen judges on the court, seven judges recused themselves due to conflicts of interest – presumably because they had some connection to or investment in one of the numerous major corporate defendants, which include both Exxon Mobil and BP.  The Fifth Circuit requires a quorum of nine judges to make en banc decisions; in other words, after the recusals, only a bare quorum remained to hear the case.  But before the en banc hearing, it was announced that one more judge needed to recuse herself, leaving the court without a quorum to hear the case. 

At this point, the Court could have done a number of things that would have enabled it to hear the case.  As some of the judges pointed out in their dissents, it could have redefined its quorum rules, or it could have used various procedural provisions, including the “Rule of Necessity” (which allows courts to take reasonable steps outside the established rules in order to ensure to litigants their right of appellate review) to ask for another “loaner” judge from another Circuit or from a District Court.  Instead, the Court decided that as it lacked a quorum, it could not hear the case at all.  But since the panel opinion had been voided by the mere decision to take the case en banc, the court found that all it could do was to dismiss the appeal, leaving the original District Court opinion in favor of defendants as the final word in the case.  In other words, the Fifth Circuit got rid of an inconvenient panel decision by agreeing to the rehearing, and then used the subsequent lack of quorum to abdicate its responsibility to supply a new appellate judgment.  That it did so primarily on its own initiative is shown by the fact that, in its order directing the parties to submit brieing on this issue, it strongly suggested that this was what it intended to do.

The result?  The plaintiffs were summarily stripped of their statutory right to an appeal.

The immediate fallout of this miscarriage of justice is somewhat mixed.  For the plaintiffs, of course, the unwarranted dismissal of their claims (which is irrevocable unless the Supreme Court grants review – an eventuality that is made more unlikely by the high possibility that the Supreme Court, too, would lack a quorum due to mass recusals) is tragic.  As for the impact on climate change litigation as a whole, it may not be completely bad.  The Fifth Circuit was widely expected to overturn the panel decision if it had been able to hear the case en banc, potentially producing a strong appellate precedent against climate change plaintiffs.  By abdicating its responsibility to hear the case, the court avoided producing such a negative decision; the panel decision, while void in effect and technically non-precedential, will remain as the Fifth Circuit’s last – positive – word on climate change litigation.  By contrast, the District Court's decision, although effective in this case, could be diminished in importance by the bizarre manner in which appellate review was denied. 

At best, then, the developments in Comer are unsettling.  It is highly disturbing that a panel of appellate judges was willing to deny the plaintiffs their basic right to an appeal, just to rid itself of a contraversial case without having to find a legal basis for dismissal.  Such bases do exist – for example, the political question doctrine gives judges discretion to dismiss cases when they raise questions that are unsuitable for resolution by the judicial branch – but their scope is narrow and their use disfavored.  In other words, judges are expected to do their job and apply the law to the facts, even when the subject is controversial or lots of money is involved.  That’s one of the key reasons why federal judges have life tenure – to enable them to make tough choices without facing political retribution.  They’re not supposed to manipulate quorum rules to divest themselves of this responsibility, as the court did here.

Over decades of litigation, ERI and its allies have managed to navigate a seemingly limitless array of legal tools that corporate defendants use to convince courts to wash their hands of difficult cases – the political question doctrine, forum non conveniens, joinder of necessary parties, comity, and the act of state doctrine, to name just a few.  Perhaps the greatest pity in this case is that the defendants didn’t even have to urge the non-recused judges of the Fifth Circuit to deprive the plaintiffs of their right to appeal – instead, the Court invited them to present just such an argument, and then dismissed the appeal, essentially of its own accord.