Continuing a spate of rulings against plaintiffs claiming injury from climate change, the U.S. Court of Appeals for the Fifth Circuit on May 14 affirmed a lower court’s dismissal of a lawsuit brought by a group of Mississippi Gulf Coast residents and property owners who alleged that greenhouse gas emissions from defendant energy companies’ facilities contributed to global warming, which intensified Hurricane Katrina, which, in turn, damaged their property. See Comer v Murpy Oil USA, Inc., No. 12-60291 (5th Cir. May 14, 2013), available at www.bdlaw.com/assets/attachments/Comer.pdf. The Fifth Circuit held that Plaintiffs’ claims were barred by the doctrine of res judicata, which bars the re-litigation of a claim that has been decided on the merits in a prior action. Comer, slip op. at 11. 

The case presented an unusual procedural situation. Plaintiffs originally brought their claims in Mississippi federal court in 2005. Id. at 3. The district court dismissed the case, and a panel of the Fifth Circuit reversed and remanded, in part, the district court’s decision. Id. Although seven of the court’s 16 active judges were recused from the case, six of the nine remaining judges voted to rehear the case en banc, thus vacating the panel’s opinion. Id. at 4. However, before the en banc court reheard the case, an additional judge was recused, leaving the Fifth Circuit without a quorum.Id. Because it lacked a quorum, the court dismissed the appeal, effectively reinstating the district court’s dismissal. Id. (For further discussion of 2010 dismissal, see Losing En Banc Quorum, Fifth Circuit Dismisses Climate Change Appeal, Toxic Tort and Product Liability Quarterly, July 16, 2010,available at http://www.bdlaw.com/assets/attachments/Toxic%20Tort%20Product%20Liability%20Quarterly%20July%2016%202010.pdf.)

After unsuccessfully seeking Supreme Court review, Plaintiffs filed a new complaint asserting substantially similar claims in the same district court in 2011. Id. at 5. The district court dismissed the claims on several grounds, including res judicata. Id. The Fifth Circuit affirmed, holding that although the original district court decision was never subject to meaningful appellate review, it still constituted a final judgment on the merits for purposes of res judicata. Id. at 7-11.