The 5th Circuit’s October 2009 panel decision in Comer v. Murphy Oil marked the first time a federal appeals court allowed private plaintiffs to go forward with climate change tort claims. And when the en banc 5th Circuit agreed to rehear the appeal, the case looked likely to bring legal certainty to the climate change litigation realm. Either it would add to the growing pressure against oil and gas companies to cut emissions, or it would lead to a circuit split with the 2nd Circuit, which had allowed state and public plaintiffs to proceed with similar claims in Connecticut v. AEP, and nudge the issue closer to the Supreme Court.
Instead, an unprecedented procedural oddity has effectively dismissed the case, leaving a question mark in its place.
