The U.S. Supreme Court has denied review in a climate change tort lawsuit in which Mississippi property owners alleged that several energy companies should be liable for damage caused by Hurricane Katrina because their greenhouse gas (GHG) emissions contributed to global warming which raised sea levels thus increasing the hurricane’s intensity. In re: Comer, No. 10-294 (S. Ct. petition for writ of mandamus denied 01/10/11). In 2007, a federal district court dismissed plaintiffs’ complaint for lack of standing and for presenting non-justiciable political questions. Comer v. Murphy Oil U.S.A. Inc., 2007 WL 6942285 (S.D. Miss. 2007).

In October 2009, a Fifth Circuit Court of Appeals panel reversed the district court, ruling that plaintiffs did have standing to sue the industry and that issues of climate change were not barred by the “political question” doctrine. Comer v. Murphy Oil U.S.A. Inc., 585 F.3d 855 (5th Cir. 2009). After granting a motion for en banc review, vacating the panel opinion and judgment of the court and staying the mandate, the Fifth Circuit issued an order stating that the court could not give the lawsuit full court review because one of the nine judges who agreed to grant the en banc review had since recused herself. The recusal coupled with the prior recusals of seven other judges left the court without a quorum to hear the case. The court therefore dismissed the complaint, finding that it lacked the authority to reinstate the vacated panel opinion. Comer v. Murphy Oil U.S.A. Inc., 607 F.3d 1049 (5th Cir. 2010).

Plaintiffs sought U.S. Supreme Court review, arguing that the Fifth Circuit did not properly hear their appeal. The Court’s denial of review lets stand the Fifth Circuit’s dismissal of the complaint.