Fifth Circuit Vacates Earlier Reinstatement of Climate Change Claims

In a highly unusual procedural decision, the Fifth Circuit recently handed a victory to the defendants in Comer et al. v. Murphy Oil USA et al.  This case, a class action against numerous utilities, oil companies, and chemical companies for damages due to the severity of Hurricane Katrina, was reinstated last October by a panel of three Fifth Circuit judges.  After voting to rehear the case en banc, another judge (in addition to seven who recused themselves initially) recused herself, leaving only eight of the court's 16 judges to hear the case.  In the court's opinion issued on May 28, five of the remaining eight judges concluded that they lacked a quorum required for an en banc rehearing.  However, they also concluded that their prior decision to rehear the case en banc technically vacated the panel's October decision.  So, the District Court's opinion from 2006, dismissing the case for lack of standing under the political question doctrine, is now in effect again.

The amazing thing about this decision is that the plaintiffs have essentially been denied their absolute right to an appeal.  They will undoubtedly appeal to the Supreme Court, but of course, the Supreme Court has the ability to choose which appeals it will consider.