U.S. 5th Circuit Court Of Appeals Rehearing En Banc In Comer v. Murphy Oil USA, et al.
March 3, 2010
Global Warming Climate Change Law Update
On February 26, 2010, adding yet another twist to the Global Warming Litigation saga, and fueling the possibility of an inter-circuit split necessitating U.S. Supreme Court review, a majority of the nine Fifth Circuit judges in regular active service and not disqualified voted in favor of rehearing en banc the matter of Comer v. Murphy Oil USA, et al., which was decided by a three-judge panel in October 2009. The panel had reversed a dismissal by the Southern District of Mississippi, finding that the Comer plaintiffs have standing to bring their public and private nuisance, trespass, and negligence claims based on damages resulting from global warming allegedly caused by the defendants, and that none of these claims present non-justiciable political questions.
Rehearing en banc is an extraordinary procedure that is rarely granted and is intended to bring to the attention of the entire Fifth Circuit court an error of exceptional public importance or an opinion that directly conflicts with prior Supreme Court, Fifth Circuit or state law precedent. At present, no date has been set for oral argument.
Stay with us as we continue to monitor the developing landscape of global warming and climate change litigation. For further information, or if you would like our GWCC Liability Coverage Team to provide on-site claims handling training to your claims or coverage staff, please contact CM Partner Amy R. Paulus, apaulus@clausen.com, (312) 606-7848.
