On January 10, 2010, the United States Supreme Court (“Supreme Court”) stated that it will not review the Comer v. Murphy Oil case, which is a class-action suit against energy, fossil fuel and chemical companies doing business in Mississippi (see June 4, 2010 edition of the WER).  As previously reported in the WER, the plaintiffs in this case claimed that these companies: (a) generated greenhouse gases (b) which caused global warming, (c) which increased global surface air and water temperatures, (d) which in turn caused a rise in sea levels and strengthened Hurricane Katrina, and (e) which all then combined to damage their homes and property.

The Supreme Court’s decision is the latest in a complicated procedural history for the Comer case: first, a district court judge dismissed the case; next, a three-judge panel of the Fifth Circuit reversed that dismissal; then an order of the court en banc vacated the reversal and ordered briefing and oral argument.  In April 2010, however, the Court lost its quorum to decide the case after a last-minute recusal by an eighth judge on the 16-judge panel created uncertainty on whether the Fifth Circuit could consider the appeal further.  In May 2010, the Fifth Circuit resolved that uncertainty by ruling the vacatur of the three-judge panel decision remains in place, but the loss of the quorum left the Fifth Circuit with no choice but to dismiss the appeal.

This spring, the Supreme Court will hear oral arguments in a similar “public nuisance” case, Connecticut v. American Electric Power Co.  The Supreme Court will review the 2nd Circuit’s decision that several states had a right to bring “public nuisance” claims against particular coal-fired utilities in order to halt climate change (see December 13, 2010 edition of the WER).