by Ann Powers

When my environmental law students want to load their schedules with environmental courses and skimp on the more traditional bread and butter ones, I tell them that lots of environmental cases are decided on non-environmental issues. While it is often administrative law that controls, here is a case that revolves about basic procedural questions at the appellate level. It will be a useful object lesson for the students, but also an example of how seemingly rational judges can reach some pretty outrageous conclusions. 

If you have followed the case you know that citizen plaintiffs Comer et al. filed climate change damage claims against a number of oil and energy companies in 2005. The suit was dismissed by the District Court on standing and political question grounds, but the dismissal was reversed by a panel of the Fifth Circuit. Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009).

Rehearing en banc was granted and the case was briefed. But before en banc argument, the Court lost its quorum when 8 of the 16 judges eventually recused themselves.

Five of the remaining eight non-recused circuit judges subsequently concluded that the panel decision and judgment had been vacated by the grant of rehearing, and that they had no authority to reinstate the panel decision or judgment. They therefore dismissed the appeal. That left the citizens with no decision on the appeal and apparently no recourse. Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010). Thus the District Court’s dismissal of the case stood.

The judges based their decision on a local rule which states: “Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate.” The judges declined to “dis-enbanc” the case or take other proposed actions, such as having a judge appointed from another circuit.

Three judges sharply dissented. One found “an inexplicable disconnect” between the notion that the unrecused judges had no authority to do anything but strictly apply the rule, and their assumption of authority to dismiss the appeal. A second dissenter called the judges’ actions “shockingly unwarranted” and “deeply lamentable.” It certainly does seem an exceedingly unfair conclusion to five years of litigation, in a case that had been considered and decided on substantive grounds by the panel.

Comer has petitioned the Supreme Court for a Writ of Mandamus ordering the Fifth Circuit to reinstate the appeal. [Comer Mandamus Petition] It is an interesting read and I recommend it to you. And to my students!