Check out yesterday’s Wall Street Journal for a most troubling think-piece exploring the implications of widespread recusals of federal appellate judges who hold energy stocks from appeals involing inchoate climate change nuisance actions.
Wall Street Journal opinion
The WSJ reports that the Fifth Circuit has had to put off the en banc rehearing it had scheduled for last month on the appeal in the Comer case for lack of a quorum of sitting circuit judges. Recall that the trial court had dismissed this class action against fossil fuel energy companies by Mississippi victims of Hurricane Katrina claiming that emissions attributable to the defendants had caused the severe storm damage. A panel of the Fifth Circuit had affirmed the dismissal on political question grounds with one judge noting that he would affirm the dismissal on causation grounds. That Fifth Circuit panel opinion conflicted with the opinion of the Second Circuit in the AEP case, which allowed an action by several states and environmental groups to proceed against fossil fuel burning power plants in the Northeast by reversing a similar dismissal on political question ground by the trial court. The WSJ now suggests that judges who do not want to see an en banc ruling contrary to AEP, which would confirm a split between circuits and set up a potential certiorari vehicle to SCOTUS are manipulating the recusal process to prevent a quorum for the court’s en banc rehearing.