Last Friday, the Court of Appeals for the 5th Circuit issued an order – boggling the minds of lawyers and non-lawyers alike – dismissing the plaintiffs’ appeal in Comer v. Murphy Oil, one of the climate change nuisance cases. As the order and dissents make clear, it’s quite a set of circumstances. The District Court dismissed the case. A panel of the 5th Circuit reversed. A request to rehear the case en banc was made. Seven out of 16 judges recused themselves. Of the nine remaining judges, six voted to rehear the case en banc.
Three months later, one of the nine judges who voted on the en banc petition recused herself, leaving only eight – or half – of the judges. After requesting and receiving letter briefs from the parties, five of the remaining eight judges concluded that the last recusal deprived the Court of Appeals of a quorum, which means that the Court cannot hear or decide the appeal. Since the Court had already determined that, pursuant to its rules, the original panel decision was vacated when the decision to hear the case en banc was made, there is now no Court of Appeals decision; nor will there ever be one. The District Court decision dismissing the case, which had been reversed by the panel, is now in effect again, and the plaintiffs’ only remedy is a Supreme Court appeal.
As readers of this blog know, I’m not a believer in climate change nuisance litigation. As a formal matter, I think plaintiffs probably lack standing in these cases. As a practical matter, nuisance litigation is not the right way to regulate GHG emissions. However, I have to admit that I find the order breathtaking. The plaintiffs have a formal statutory right of appeal. As Judge Dennis pointed out in a scathing dissent,
federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred…. Just as courts have an “absolute duty … to hear and decide cases within their jurisdiction,  litigants have a corresponding due process right to have their cases decided when they are properly before the federal courts.
I’ll spare you the details, but Judge Dennis provided several different practical solutions that the Court could have utilized to hear the case.
My initial reaction is that this will slow Supreme Court review of this issue. The 5th Circuit was likely to affirm the District Court decision, which would have created a split with the Second Circuit. The order issued last week means that there is no circuit split at this point. While the plaintiffs can appeal the order to the Supreme Court. Even if the Supreme Court were to reverse the order, it would only be to order the 5th Circuit to hear the appeal on the merits. If the 5th Circuit is to hear the case, it’s years away at this point.
Jarndyce v. Jarndyce, anyone?