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5th Circuit Dismisses Global Warming Appeal

NEW ORLEANS — A divided en banc Fifth Circuit U.S. Court of Appeals on May 28 dismissed the appeal of a panel decision that Mississippi residents have standing to sue the oil, coal and energy companies for releasing greenhouse gas emissions that contributed to global warming and exacerbated Hurricane Katrina.  The majority said the en banc court could not proceed because of lack of a quorum but pointed out that the parties may now appeal to the U.S. Supreme Court (Ned Comer, et al. v. Murphy Oil USA, et al., No. 07-60756, 5th Cir.; See May 2010, Page 12).

After the recusal of a judge, the Fifth Circuit on April 30 canceled the scheduled May 24 en banc rehearing.  The Fifth Circuit then ordered the parties on May 6 to submit letter briefs addressing the situation.

This case was voted en banc by a duly constituted quorum of the court consisting of nine members in regular active service who are not disqualified, according to the panel majority of Acting Chief Judge E. Grady Jolly and Judges Jerry Edwin Smith, Edith Brown Clement, Edward C. Prado and Priscilla Owen.  Judges W. Eugene Davis, Carl E. Stewart and James L. Dennis dissented.

After the en banc court was properly constituted, new circumstances arose that caused the disqualification and recusal of one of the nine judges, leaving only eight judges in regular active service, on a court of 16 judges, who are not disqualified in this en banc case.  Upon the recusal, this en banc court lost its quorum, the majority said.

“The absence of a quorum does not preclude the internal authority of the body to state the facts as they exist in relation to that body, and to apply the established rules to those facts,” the majority said.  The en banc court considered and rejected several options.

Judge Davis dissented, joined by Judge Stewart.  Judge Dennis wrote a separate dissent.

Ned and Brenda Comer and others owned property on the coast of Mississippi.  They sued oil, coal and utility companies in the U.S. District Court for the Southern District of Mississippi for releasing greenhouse gases that contributed to global warming, increased the surface temperature of the Gulf of Mexico and allowed Hurricane Katrina to damage their properties in 2005.

[Editor's Note:  Full coverage will be in the June issue of Mealey's Litigation Report: Pollution Liability.  In the meantime, the order is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #08-100603-006R.  For all of your legal news needs, please visit]

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