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Pivotal Climate Change Test Case Dismissed — For Now

A test case for climate change litigation was dismissed by a federal appeals court on Friday in a little-noticed afternoon ruling, leaving the door open for a Supreme Court appeal by plaintiffs who aim to link major industrial emitters with the environmental consequences of the greenhouse gases they produce.

The dismissal by the Fifth Circuit Court of Appeals in Comer v. Murphy Oil came after half of the court’s 16 judges recused themselves from hearing the appeal, effectively negating an October decision by a three-judge panel on the same court that allowed the case to proceed. The Comer class action suit was filed by Gulf Coast residents seeking financial damages from more than two dozen oil and coal companies for the local havoc wreaked by Hurricane Katrina, which the plaintiffs argued was exacerbated by the effects of global warming.

The plaintiffs now must decide whether to seek a hearing in the Supreme Court, an outcome deemed all but inevitable by the National Association of Manufacturers (NAM) in a Friday blog post reacting to the dismissal.

“Expect more appeals and suits from plaintiffs hoping to hit the jackpot and environmental activists trying to create a carbon-command-and-control economy through the courts,” NAM’s Carter Wood wrote. The group is a vocal critic of congressional climate legislation and filed a brief supporting an en banc hearing of the Comer case by the full Fifth Circuit after the initial ruling allowing the case to proceed.

Greenwire reported today (sub. req’d.) that the high number of Fifth Circuit recusals in Comer — generally an indication that judges have personal ties to the companies or law firms involved, such as stock ownership — “infuriated environmentalists” who viewed the moves as a sign that industry has all but captured the appeals court in the Gulf region. But a legal analysis published last month by the firm McGuire Woods suggested that the nation’s highest court could face similar recusal hiccups in deciding whether to hear a Comer appeal:

[T]he mass recusal of members of the 5th Circuit in Comer begs the question as to whether such recusals would be an issue for the U.S. Supreme Court as well. Initial analysis suggests it would. Justice Samuel Alito has recused himself on several occasions from cases involving ExxonMobil due to his ownership of its stock. See, e.g., Exxon Shipping v. Baker; American Isuzu v. Ntsebeza. Likewise, Justice Steven Breyer has recused himself from cases involving BP due to his ownership of its stock. See, e.g., New Jersey v. Delaware; Morgan Stanley Capital Group v. Public Utility Dist. 1. Both ExxonMobil and BP are defendants in the Comer suit.

Similarly, Justice Sonia Sotomayor would also likely recuse herself due to her participation in the Connecticut v. American Electric Power case [another high-profile climate case] when she was on the 2nd Circuit. … Indeed, it may not even be possible for the U.S. Supreme Court to hear any appeal in Comer.

The recusal issue, as Greenwire notes, could also come into play as lawsuits stemming from BP’s role in the Deepwater Horizon disaster move forward. We have a call in to the plaintiffs’ counsels in the Comer case, seeking word on whether they plan to petition for a Supreme Court hearing, and will update this post as more becomes known.

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