[StBernard] Court Tosses Landmark Global Warming Ruling After Late Recusal

[Westley Annis]

Court Tosses Landmark Global Warming Ruling After Late Recusal 
By GABRIEL NELSON of Greenwire
After an unusual about-face prompted by a late recusal, a federal appeals
court has scrapped a ruling that said the nation's largest producers of
greenhouse gas emissions could be sued for the damage caused by global
warming.

The case, Comer v. Murphy Oil, started with a lawsuit by Gulf Coast
residents affected by Hurricane Katrina. Claiming that global warming
contributed to the severity of the storm, the plaintiffs sued dozens of the
nation's largest polluters -- a veritable who's who of utilities, chemical
companies and the oil industry.

The Comer case is one of several pioneering climate change cases based on
claims of public nuisance, a centuries-old mainstay of common law that
allows people to sue their neighbors for nuisances such as foul smells, loud
noises or overgrown trees. A three-judge panel from the 5th U.S. Circuit
Court of Appeals ruled last year that the plaintiffs could proceed with
their lawsuit, but that ruling is now out of play unless the plaintiffs
appeal to the Supreme Court and the justices decide to intervene.

Of the 16 active judges on the court, seven had recused themselves from
consideration of the case, presumably because of ties that could have been
construed as presenting conflicts of interest. The remaining nine voted last
year to let the entire court consider the case en banc, vacating the panel's
decision, but when an eighth judge recused herself in April, the court no
longer had a quorum (E&ENews PM, April 4).

After reviewing briefs from the plaintiffs and defendants, the remaining
eight judges ruled last Friday afternoon that they lacked a quorum, meaning
they could not review or reinstate the panel's decision. Instead, they stuck
with a district court's decision that the plaintiffs lacked standing for a
lawsuit because the ties between emissions, global warming and the severity
of Hurricane Katrina were too tenuous.

"This court, lacking a quorum, certainly has no authority to disregard or to
rewrite the established rules of this court," said Friday's order (pdf),
which was signed by five of the eight remaining judges. "There is no rule
that gives this court authority to reinstate the panel opinion, which has
been vacated."

Environmentalists hope that one of the nuisance cases could boost U.S.
action on climate change, adding to the Supreme Court's 2007 ruling in
Massachusetts v. EPA that the agency is required to regulate greenhouse
gases as pollutants. It's unclear how Friday's decision will change the
judicial calculus should the court be asked to grant review to a nuisance
case.

The industry defendants in a similar case, Connecticut v. AEP, are required
to appeal to the Supreme Court by next week. The 2nd U.S. Circuit Court of
Appeals decided earlier this year not to grant en banc review to a panel
decision that said states have standing for a public nuisance case against
producers of greenhouse gas emissions.

The plaintiffs in Comer will have 90 days to file a petition for Supreme
Court review.

Though Friday's decision hinged on an arcane procedural question, it
infuriated environmentalists, who say the recusal of eight judges from the
case suggests that judges are in the pocket of polluters. Judges typically
recuse themselves because of investments or outside ties to parties involved
in a case, so the sheer number of defendants and industry attorneys could
have also been a factor.

Others have speculated that the Gulf of Mexico oil spill could have given
one of the judges a new reason to recuse. Among the defendants is BP PLC,
which leased the Deepwater Horizon rig responsible for the spill.

The number of recusals suggests that plaintiffs in the 5th Circuit will get
"less than full and fair treatment" in lawsuits against industry, said James
May, a Widener University law professor who wrote a brief urging the court
to reinstate the panel's decision.

May said similar issues could come into play during oil spill litigation.
Most plaintiffs want their cases heard in federal district court in New
Orleans, while BP PLC has asked to consolidate the litigation in Houston --
both of which are within the 5th Circuit.

"It's a hole in the law, spreading a poisonous precedent," May said,
describing Friday's decision as the legal equivalent of the spill.

The 5th Circuit's decision to leave the district court ruling in place,
issued Friday, also prompted harsh dissents from the three judges whose
decision was not reinstated. Judge James Dennis chastened the court for what
he described as "shockingly unwarranted actions," saying the majority's
decision effectively robbed the plaintiffs of their right to an appeal in
federal court.

Barring Supreme Court review, which is granted in less than 1 percent of
cases, the majority's decision would cause the court to "default on its
absolute duty to hear and decide an appeal of right properly taken from a
final district court judgment," Dennis wrote.