On May 28, 2010, the U.S. Court of Appeals for the Fifth Circuit issued a rather bizarre decision that left many attorneys scratching their heads. The appeal by the plaintiffs in the Comer v. Murphy Oil case, in which the plaintiffs alleged that energy companies’ greenhouse gas emissions had caused greater damage from Hurricane Katrina, was dismissed, not on the merits of the case, but based on the arcane procedural rules of appellate law. With this dismissal of the en banc review of the Fifth Circuit three judge panel decision, there may not be any U.S. Supreme Court review of the issue.
Last October, a three-judge panel of the Fifth Circuit reversed and reinstated the plaintiffs’ claims after the District court had dismissed them on the grounds that the claims involved political questions. The Fifth Circuit decision coincided with a similar Second Circuit decision in Connecticut v. AEP, which all found that climate change claims could proceed in trial courts. However, after the Fifth Circuit granted rehearing en banc, most court watchers assumed this was a signal that the Fifth Circuit would reverse itself. And, if that were to happen, it would set up a classic “conflict between the circuits” review of the issue in the U.S. Supreme Court.
Between the time the court voted for en banc rehearing and the May 28, 2010, decision, one of the six judges who had voted for rehearing declared herself to be recused. That meant that the court no longer had a quorum left to hear the case. So, a reasonable person might surmise, the original decision of the three-judge panel would stand as the decision in the appeal. Not so, the majority opinion said. Once the court properly voted to rehear the case en banc, the “panel opinion and judgment of the court [is vacated].” Since there is not a quorum for the court to conduct judicial business, the court cannot reinstate the panel opinion, the majority opinion concluded. Therefore, the only thing left for the court to do is to dismiss the appeal because there is “no opinion or judgment in this case upon which any mandate may issue.”
There were two dissents filed, both of which outlined other methods the court could have taken that would have avoided the outcome of having an unadjudicated appeal being dismissed, thereby denying the appellants (i.e., the plaintiffs) their right to an appeal to the Courts of Appeal. Where does that leave the plaintiffs? The majority opinion says that the parties have the right to petition the U.S. Supreme Court for review. But review of what? The District Court decision? Or the Court of Appeals’ decision dismissing the appeal on procedural grounds?