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.
"After the en banc court was properly constituted, new circumstances arose that caused the disqualification and recusal of one of the nine judges," the court wrote. "Upon this recusal, the en banc court lost its quorum."
Without a quorum, the 5th Circuit could not rehear the case en banc--but it also had no authority to reinstate the vacated panel
decision. The court voted 5-3 to dismiss the appeal, letting the district court's dismissal stand--and delaying any certainty on climate change torts.
"The dissenting judges felt quite strongly that the other five judges should have joined them in reinstating the panel opinion, but I don't think that the better view of what power the court had in the absence of a quorum would support that," says John Parker Sweeney, a member of the climate change team at Womble Carlyle Sandridge & Rice. "I honestly don't know what else the majority of the remaining judges could do in the absence of a quorum other than to say, we can't conduct any business here and we have to dismiss the appeal."
Sweeney notes that it may be that such issues arise in appeals courts and prevent rehearings from being granted in the first place, but no one hears about them because courts don't issue opinions in such matters and there are few requirements for disclosing judicial recusals and the reasons behind them.