Comer v. Murphy Oil USA, Inc.

Due to the loss of a quorum because of recusal of an additional judge, the Fifth Circuit dismissed the en banc review of a climate change tort lawsuit in which Mississippi property owners alleged that a group of energy and other companies should be held liable for some of the hurricane damage to their properties. The action means that the district court’s dismissal of the lawsuit stands. In February 2010, the Fifth Circuit granted en banc review to a 2009 decision by the Circuit that held that plaintiffs could proceed, and vacated the 2009 decision. However, in the May 2010 decision the court held that it could not give the lawsuit en banc review because it no longer had a quorum to do so, but it left standing the order vacating the panel decision. The court said the plaintiffs could seek review from the U.S. Supreme Court. Three judges vigorously dissented.

The Fifth Circuit granted petitions for rehearing en banc of its decision allowing a group of Mississippi property owners to sue a group of energy companies and the Tennessee Valley Authority in federal court for alleged climate change-related damages.

On appeal, the Fifth Circuit partially reversed, holding that plaintiffs had standing to assert their public and private nuisance, trespass, and negligence claims, and that none of these claims presented non-justiciable political questions.