Hurricane Katrina, Global Warming, and the Fifth Circuit's Quorum Conundrum

A very interesting and puzzling development in Comer v. Murphy Oil USA, a class action lawsuit against a number of chemical and energy companies. As a three-judge Fifth Circuit panel described the case: "The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina."

The district court dismissed the case on political question grounds, but a Fifth Circuit panel reversed [585 F.3d 855 (2009)]. The en banc Fifth Circuit granted rehearing, although due to several recusals only nine of the sixteen Fifth Circuit judges were able to vote. That's when things got complicated. According to last Friday's order:

"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 sixteen judges, who are not disqualified in this en banc case. Upon this recusal, this en banc court lost its quorum."

The result, however, was not to revert to the Fifth Circuit panel's decision, which would have reversed the district court's dismissal and remanded the case for further proceedings. Rather the appeal was dismissed in its entirety, thereby reinstating a district court ruling that had already been unanimously reversed by a three-judge Fifth Circuit panel. Over a number of dissents, a majority of the quorum-less en banc Fifth Circuit reasoned: 

"This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3. Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal."

It emphasized, however, that the plaintiffs retain "the right to petition the Supreme Court of the United States."

For more information on the case, see Howard Bashman's coverage on How Appealing and Daniel Fisher's piece in Forbes.

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(Hat Tip: Brad Mank)