In a surprising turn of events, the Fifth Circuit has dismissed the plaintiffs’ appeal in Comer v. Murphy Oil based on a procedural technicality, holding that the court lacked a quorum to hear the appeal. Comer v. Murphy Oil, — F.3d —, 2010 WL 2136658 (5th Cir., May 28, 2010).

The case involves a hotly debated issue: can property owners sue industry for their contributions to global warming? While the dismissal is a victory to the industry defendants, it leaves unanswered many questions in this closely-watched litigation. In failing to address the merits of the parties’ claims and defenses, the parties and observers are left with an inconclusive result.

The Comer plaintiffs brought a putative class action against defendants in the energy, fuel, and chemical industries, alleging that the defendants caused the emission of greenhouse gases that contributed to global warming, which in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina. Hurricane Katrina then damaged the plaintiffs’ properties. The plaintiffs brought Mississippi common-law claims including public and private nuisance, trespass, and negligence. The defendants challenged the plaintiffs’ claims as too attenuated and speculative, and as presenting non-justiciable political questions.

In 2007, the District Court for the Southern District of Mississippi dismissed the claims for lack of standing and as presenting a non-justiciable political question. Comer v. Murphy Oil, 2007 WL 6942285 (S.D. Miss. August 30, 2007). The Fifth Circuit, however, reversed and remanded that decision in 2009, holding that the plaintiffs had standing to bring the nuisance, negligence, and trespass claims. The court found a sufficient causal link between the defendants’ greenhouse gas emissions and the plaintiffs’ injuries. The Fifth Circuit further held that those claims did not present a non-justiciable political question. Comer v. Murphy Oil, 585 F.3d 855 (5th Cir. 2009).

On February 26, 2010, the Fifth Circuit agreed to a rehearing en banc. However, since that time, one of the nine judges sitting en banc has been disqualified from hearing the case. With the recusal of the ninth judge, only eight active and non-disqualified judges out of a court of sixteen remained to hear the case. On May 28, 2010, finding themselves lacking in the majority of judges needed to constitute a quorum, the Fifth Circuit held that without a quorum it could not conduct judicial business, and dismissed the appeal.

The case is one of several recent cases where plaintiffs have attempted to use very old and traditional theories of law, most notably public nuisance, to address a very modern issue: global warming. The Second Circuit denied an en banc hearing in a similar case, Connecticut v. American Electric Power Co., after holding that a group of states could sue to abate greenhouse gas emissions under a theory of public nuisance. Another global warming public nuisance case is currently pending in the Ninth Circuit: Native Village of Kivalina v. Exxon Corp. (No. 09-17490 (9th Cir.)). The dismissal of the Comer appeal on a technicality leaves open for debate the viability of a common law claim such as public nuisance to address emerging claims of damages by greenhouse gas emissions and global warming.

Given the recent activity in the Circuit Courts, several observers have predicted that the Supreme Court may soon address the use of traditional torts to seek damages for greenhouse gas emissions. The parties in Comer v. Murphy Oil and Connecticut v. American Electric now have a right to petition the Supreme Court directly. Meanwhile, with the resolution of the Comer case leaving many issued unresolved, one thing is certain: expect more climate change litigation to come.