Stranger than GHG Fiction: Fifth Circuit Dismisses Comer v Murphy

The great lawyers at Chadborne and Parke LLP published an client alert explaining the May 28, 2010 dismissal of the Comer v. Murphy Oil lawsuit over greenhouse gas emissions because so many of the en banc judges on the court recused themselves they no longer had a majority needed to decide the case.

Blame it on Global Warming

You knew global warming was too good an excuse to waste so there have been a growing number of lawsuits on the subject.  The three getting the most attention are:

  • In Native Village of Kivalina v. Exxon Mobil Corp., No. 09-17490 (9th Cir.), the plaintiffs said oil, energy and utility company greenhouse gas emissions “threatened the habitability of the village” but the Federal District court said forget it we don’t decide political disputes. That case is on appeal to the Ninth Circuit.
  • In Connecticut v. American Elec. Power Co. Inc., 582 F.3d 309 (2d Cir. 2009) (“AEP”), the Second Circuit said that state governments and environmental interveners could seek an injunction against greenhouse gas-emitters based on federal common law nuisance and trespass theories.
  • In Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009) Mississippi property owners said greenhouse gas emissions from the oil, coal, and chemical industry contributed to climate change and made the property damage from Hurricane Katrina worse.  The Federal district court threw out the case saying this was politics using the same logic as in Native Village, but a three-member panel of the Fifth Circuit reversed that decision on appeal.  Murphy asked for a hearing before the entire Fifth Circuit en banc which was granted by nine judges in February 2010 but seven of the sixteen judges recused themselves.  But before they got to the en banc hearing another judge recused himself and there was no longer a majority of judges to hear the case.  After much lawyerly fussing, the appeal was dismissed, but because the Appeals Court had accepted the appeal it too was dismissed leaving the district Court judgment intact. It sounds like Desperate Housewives for lawyers but I’m sure a lot of meters are running to figure it all out.

Bucking the Hot GHG to the Supreme Court

As the Chadborne & Parke client alert describes, the cases now appear headed to the Supremes to decide whether this is real litigation or politics in disguise.  If they are smart they will stop the trial lawyers dead in their CO2 tracks or risk contributing to global warming with all the hot air being expelled from the flood of litigation that will surely follow.