The 5th Circuit’s October 2009 panel decision in Comer v. Murphy Oil marked the first time a federal appeals court allowed private plaintiffs to go forward with climate change tort claims. And when the en banc 5th Circuit agreed to rehear the appeal, the case looked likely to bring legal certainty to the climate change litigation realm. Either it would add to the growing pressure against oil and gas companies to cut emissions, or it would lead to a circuit split with the 2nd Circuit, which had allowed state and public plaintiffs to proceed with similar claims in Connecticut v. AEP, and nudge the issue closer to the Supreme Court.
Instead, an unprecedented procedural oddity has effectively dismissed the case, leaving a question mark in its place.
The first reaction from observers seemed to be unmitigated amazement. “I’d be shocked if we ever saw this particular set of circumstances again in the history of the U.S. judiciary,” says Seth Jaffe, coordinator of the Environmental Practice Group at Foley Hoag. “It’s just unbelievable how this came about.”
The order outlined a few other options the court had explored and deemed incorrect, such as waiting for the court’s composition to change and allowing disqualified judges to hear the appeal. The three dissenting judges—the original panel reversing the district court’s dismissal—disagreed with the outcome.“
The upshot of all this is that the future of climate change torts remains unclear. “From an inside baseball perspective, this is a very interesting procedural situation,” says Peter Glaser, a partner at Troutman Sander. “But what’s important here is what the law ultimately proves to be.”