It does not get much more anti-climactic. The Supreme Court today rejected the Comer v. Murphy Oil plaintiffs' request for a writ of mandamus. It took only a short seven words to relegate the petition (as well as others) to the dustbin: "The petitions for writs of mandamus are denied." So ends a saga that was initiated with Hurrican Katrina, expressed in a complaint, dismissed under the political question doctrine, reversed by the Fifth Circuit, accepted for en banc review, reinstated as dismissed when the Fifth Circuit's quorum dissolved, and ultimately ended up on the Supreme Court's docket. Then it ended, not with a bang, nor even a whimper.
The questions as framed by the plaintiffs were thoughtful:
Where the litigants have perfected a right to an appeal under 28 U.S.C. § 1291, does the Circuit Court have a duty to render a decision?
When an en banc court loses its quorum after granting rehearing but before hearing argument en banc, can the remaining judges dismiss an appeal of right without a decision on the merits?
When an en banc court loses its quorum before deciding an appeal on rehearing en banc, does the
original panel maintain control over the case?
I will be frank, I don't have a clue about the answers to these meaty questions (and I suspect there will be a few law review notes and articles attempting to intuit one). But I do have some thoughts on the significance of this ruling with respect to climate change litigation.
First, it was an expensive defeat for the plaintiffs' bar. Gerald Maples, lead counsel for the plaintiffs, estimated he had spent $3 million on the case even before the en banc and Supreme Court appeals. (Maples Australian Interview). I assume that even for the plaintiffs' bar, $3 million is not chump change. While tobacco litigation required numerous attempts before plaintiffs finally beat Big Tobacco, tobacco plaintiffs never had to contend with problems of causation anywhere near the complexity faced by climate change plaintiffs. As stated by the district court in Comer:
I foresee daunting evidentiary problems for anyone who undertakes to prove, by a preponderance of the evidence, the degree to which global warming is caused by the emission of greenhouse gasses; the degree to which the actions of any individual oil company, any individual chemical company, or the collective action of these corporations contribute, through the emission of greenhouse gasses, to global warming; and the extent to which the emission of greenhouse gasses by these defendants, through the phenomenon of global warming, intensified or otherwise affected the weather system that produced Hurricane Katrina. Comer v. Nationwide Mut. Ins. Co., Civ. A. No. 1:05 CV 436-LTD-RHW, 2006 WL 1066645, *4 (S.D. Miss. Feb. 23, 2006).
Conversely, however, plaintiffs' counsel may be encouraged notwithstanding the loss in Comer. There are presently two appellate decisions on the merits on public nuisance climate change cases, Connecticut v. American Electric Power and Comer; both come out for the plaintiffs. As we wrote in December, with the retirements of Justices Stevens and Souter, and the recusal of Justice Sotomayor, a 4-4 stalemate at the Supreme Court in Connecticut is a distinct possibility. That, coupled with the panel decision in Comer, could send a message that climate change liability cases are worth bringing. In that case, we will certainly see more such cases.
Second, the Tennessee Valley Authority is batting 1.000 in climate change appeals. TVA filed papers supporting the petition for certiorari in Connecticut. The Court accepted the petition. And TVA opposed the request for mandamus in Comer, which was denied. The same of course could be said of several other utlities in both litigations. The difference being that when TVA speaks on the political question doctrine, it is the government itself asserting that it wishes to address climate change through the political process rather than through the courts. In the appeal of Native Village of Kivalina v. ExxonMobil, TVA did not join as an amicus. Instead, the defendants drew the support of two Congressmen: Lamar Smith, the Ranking Republican Member of the House Judiciary Committee, and James Sensenbrenner, Jr., the Ranking Republican of the Select Committee on Energy Independence and Global Warming. (Kivalina Amicus Brief) Let us hope that the 50 years of congressional experience between them gives them some sway with the Ninth Circuit.
Last, can we read the tea leaves in Connecticut through the Comer lens? The blogosphere is particularly harsh on the Fifth Circuit for its failure to solve its quorum problem. Suggested solutions include bringing in a district court judge or a jurist from another circuit. Instead, based on procedure the court nullified the case's only appellate merits ruling. That seems a particularly harsh result on a topic of such significance, but it is only so if the Court affirms the Second Circuit and permits the appellate decision in Connecticut to survive. Is the rejection of Comer then, a case of precognition applicable to Connecticut? By June we will have found out.