The Fifth Circuit en banc dismissed the appeal in Comer v. Murphy Oil USA after vacating its prior panel decision that allowed Katrina victims to sue energy companies for money damages based on alleged greenhouse gas emissions causing the hurricane’s strength and resulting damage. The appeal’s dismissal reinstates the district court’s earlier order dismissing the claims on political question and standing grounds. Click here to view the full order (.pdf), released last Friday. It’s the latest twist in this case's wild ride through the Fifth Circuit.
Recall that Mississippi residents sued many energy companies for money claiming the defendants were responsible for greenhouse gas emissions that were in turn somehow responsible for the severity of Hurricane Katrina and its resulting damages. The federal district court dismissed on both political question and standing grounds. On October 16, 2009, a panel the Fifth Circuit reversed, holding that the case did not present a non-justiciable political question and that plaintiffs have standing to pursue state law damages claims for negligence, trespass, and nuisance. 585 F.3d 855 (5th Cir. 2009). The court wrote: "Here, the plaintiffs' complaint alleges that defendants' emissions caused the plaintiffs' property damage, which is redressable through monetary damages; for example, the plaintiffs allege that defendants' willful, unreasonable use of their property to emit greenhouse gasses constituted private nuisance under Mississippi law because it inflicted injury on the plaintiffs' land by causing both land loss due to sea level rise and property damage due to Hurricane Katrina." The panel held that plaintiffs do not have standing to pursue claims for unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The third judge on the panel concurred, but stated that he thought the case should be dismissed for failure to allege facts sufficient to show proximate cause. The panel reversed and remanded the case to the district court.
The appellee defendants applied for rehearing en banc of the panel decision and order. A bare quorum of nine out of the full court's 16 active judges (the remaining seven having recused themselves), voted six to three to grant rehearing en banc, which vacated the panel opinion and order. 598 F.3d 208 (5th Cir. 2010). Subsequently, one of the six judges voting to grant rehearing en banc has recused herself, leaving only eight of the 16 active judges to hear the case. Because a quorum was lacking, the remaining eight judges voted five to three to dismiss the appeal. Because the court's prior grant of rehearing en banc had previously vacated the panel's opinion and order, the court's most recent order dismissing the appeal reinstates the district court's initial decision dismissing the case on political question and standing grounds.
Needless to say, the three dissenting judges had some choice things to say about the five-judge decision that vitiated the prior panel decision remanding the case for further proceedings on the state law damages claims for negligence, trespass, and nuisance. We probably have not heard the last of this.
John Parker Sweeney
Womble Carlyle Sandridge & Rice, PLLC