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Legal Ethics

Mass Recusal of 5th Circuit Kills Closely Watched Global-Warming Case

Posted Jun 2, 2010 3:11 PM CDT
By Rachel M. Zahorsky

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Eight judges on the New Orleans-based 5th U.S. Circuit Court of Appeals have recused themselves from hearing an en banc appeal of a provocative global-warming lawsuit. As a result, there’s no quorum, and the court is unable to hear the case.

The class action suit, filed by property owners against energy and chemical companies, alleges that the defendants contributed to global warming which, in turn, contributed to the strength and subsequent destruction of Hurricane Katrina in 2005, reports the Wall Street Journal Law Blog.

The defendants had asked for an en banc rehearing of the district court’s dismissal of the class action. (A three-judge panel brought the case back to life last fall.) Initially, seven 5th Circuit judges recused themselves from the case. However the remaining nine voted to vacate the panel decision and move forward with the en banc hearing. Oral argument was scheduled for May 24.

On April 30, the court posted a notice saying that an eighth judge had recused him or herself. And, last week, the circuit essentially dismissed the entire appeal.

“This, of course, creates a tremendous mess for those seeking to appeal to the U.S. Supreme Court,” posted Skadden Arps’ Russell Jackson on his blog, Jackson on Consumer Class Actions & Mass Torts. “And, it threatens to overshadow the underlying substantive legal issues with a potpourri of procedural arguments.”

In his dissent to the 5th Circuit's Friday order (PDF posted by Jackson on Consumer Class Actions & Mass Torts), Judge James L. Dennis pointed out that one thing the court could have done to ensure it could hear the case was its decision until President Barack Obama fills the current vacancy on the 5th Circuit.

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