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Jenner & Block: No Quorum, so En Banc Fifth Circuit Dismisses Comer v. Murphy Oil Climate Change Appeal

   By Gabrielle Sigel, Partner, Jenner & Block LLP

“The U.S. Circuit Court of Appeals for the Fifth Circuit recently issued an order in Comer v. Murphy Oil USA, dismissing the appeal of this climate change nuisance case involving the effects of Hurricane Katrina,” writes Gabrielle Sigel. “The Fifth Circuit's May 28 order effectively reinstates the decision of the U.S. District Court, which had dismissed the nuisance complaint filed by plaintiff property owners, who claimed that the greenhouse gas emissions of the defendant energy, fossil fuel-burning, and chemical companies had worsened the impacts of Hurricane Katrina on their properties. The Fifth Circuit's dismissal order did not discuss any of the substantive issues in the case, instead addressing issues of the court's power to act in the absence of a quorum.”

Sigel, a partner at Jenner & Block LLP, explains the procedural history of Comer that brought about the unusual dismissal because of the lack of an en banc quorum. She then examines the Fifth Circuit's decision in the context of other global warming litigation. “The Comer case is one of several pending or recently decided cases in which parties seek to use the federal courts to attack the alleged effect of greenhouse gas (GHG) emissions. All of these cases involve the political question and/or standing issues addressed by the Comer case in the trial and initial Fifth Circuit decisions.”

Sigel follows with a discussion of those similar cases and where we are today regarding “common law claims alleging climate change-induced damages.”


Gabrielle Sigel, a partner in Jenner & Block's Environmental Practice, is Co-Chair of her Firm's Climate and Clean Technology Law Practice. Ms. Sigel's national practice focuses primarily on environmental, safety and health litigation and counseling, toxic tort defense, and insurance coverage litigation and counseling. She recently concluded several toxic tort lawsuits concerning a contaminated site located in a residential area.


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