On May 28, 2010, the U.S. Court of Appeals for the Fifth Circuit dismissed the appeal in Comer v. Murphy Oil.  The decision follows a complex procedural path: a favorable district court decision for industry dismissing the case, a decision of a three-judge panel of the Fifth Circuit handing the plaintiffs a victory by reversing that dismissal, and an order of the full court en banc vacating that reversal and ordering further briefing and oral argument before the full court.

The case involved a lawsuit brought by property owners against some three dozen oil, coal, and chemical companies, alleging that the defendants’ activities contributed to climate change and magnified the effects of Hurricane Katrina, and thus exacerbated the damage from the storm. The trial court dismissed the suit on political question and standing grounds.  On appeal, a panel of the 5th Circuit reversed last Fall, finding that the plaintiffs did have standing and that the political question doctrine did not apply.

In April, the Court lost its quorum to decide the case after a last-minute recusal by an eighth judge on the 16-judge court created uncertainty as to whether the Court could consider the appeal further. On May 28, the Court resolved that uncertainty by ruling the vacatur of the three-judge panel decision remains in place, but the loss of the quorum left the the Court with no choice but to dismiss the appeal.

The continued vacatur of the three-judge panel’s decision is a remarkable win for the industry.  It means the district court’s decision — which held that property owners did not have standing to sue for climate change and that climate change was a “political question” for Congress — stands as good law.  For now, in the Fifth Circuit at least, property owners are not permitted to seek state-law tort damages for industrial emissions of carbon dioxide.