Appeals Court Dismisses Pivotal Climate Change Public Nuisance Case

The U.S. Court of Appeals for the Fifth Circuit on Friday dismissed without rehearing, on procedural grounds, a controversial climate change “public nuisance” case in which 14 individuals had filed a class-action lawsuit against insurance, coal, and chemical companies, seeking relief for property damages resulting from Hurricane Katrina.

In Comer v. Murphy, residents and owners of lands and property along the Mississippi Gulf Coast had claimed in a class action suit filed in the U.S. District Court for the Southern District of Mississippi that the defendants had contributed to the increase in global surface air and water temperatures, and that in turn had caused a rise in sea levels and added to the ferocity of Hurricane Katrina.

The District Court dismissed the case in 2007 on political question and standing grounds. But, after it said in October 2009  that the plaintiffs could sue entities for creating a “public nuisance” through their emissions of climate-warming greenhouse gases, the appeals court voted this March to re-hear the case en banc. Oral arguments for the case had initially been set for May 24.

But on Friday, five judges of the court issued an order (PDF) that dismissed the appeal without re-hearing because the court did not have a quorum. One of the nine previously non-recused judges was also recused, leaving only eight of the court’s 16 judges to re-hear the case. Recusals are generally an indication that judges have personal ties to the companies or law firms involved, such as stock ownership.

The dismissal means—because the panel’s ruling had been vacated when the Fifth Circuit granted the motion to re-hear the case en banc— that the District Court’s order to dismiss the case stands.

Sources: U.S. Court of Appeals for the Fifth Circuit, theusconstituition.org, POWERnews