5th Circuit Grants Rehearing En Banc In Climate Change/Public Nuisance Case

In a major disappointment for the plaintiffs’ bar, the 5th circuit court of appeals has granted a re hearing en banc in Comer v. Murphy Oil, et al.

The entire complement of the court’s judges granted rehearing to review an earlier decision by a three-judge panel that reversed the dismissal of Comer, a major climate change lawsuit arising from Hurricane Katrina. The court has not set a date for oral arguments.

The class action suit claimed that plaintiffs were injured when energy and oil and gas companies created a public nuisance by intensifying Hurricane Katrina with their greenhouse gas emissions. Other defendants, including insurance companies were also named in the suit. The suit allegedly included thousands of claimants who sustained Hurricane losses and injuries.

The trial court originally dismissed the case because the plaintiffs lacked standing to sue particular defendants for the effects of global warming. The court also dismissed because the controversy presented a political question involving international issues that were entrusted to Congress and the President, not courts.

The original three-judge panel reversed the dismissal, following a recent 2d circuit decision which held that climate change cases were "ordinary tort cases" despite their international and planetary dimensions. [link to our “Premature Burial” article] The panel reversed the dismissal even though no judgment rendered in the case could determine whether any particular defendant's emissions caused any particular plaintiff's alleged injuries.

The 5th circuit's decision reconsider the panel’s ruling is a major blow to climate change and public nuisance litigation. Although the ultimate resolution cannot be predicted with certainty, the panel's original decision now has no value. Clearly, a significant number of the court's judges believe the case deserves a closer look, and plaintiffs are surely not comforted by that development. Indeed, since no judge on the original panel dissented, the en banc court’s decision to reconsider suggests a serious interest in changing the result.