Late Recusal Unravels Global Warming Ruling

(CN) - A judge's late recusal forced the 5th Circuit to scrap a pioneering global warming ruling that cleared the path for a class action claiming polluters are partially liable for Hurricane Katrina damage.

The recusal of an eighth judge means the court no longer has quorum to rehear the case before a nine-judge panel. Last October, a three-judge panel allowed Mississippi property owners to sue oil, coal and chemical companies whose pollution allegedly elevated sea levels and "added to the ferocity" of Katrina, which destroyed public and private property.

The panel's ruling had mirrored a 2nd Circuit decision allowing a federal nuisance lawsuit over greenhouse gas emissions.

When the 5th Circuit decided to rehear the case en banc, or before a nine-judge panel, it followed the standard procedure of vacating its earlier ruling. Seven of the court's 16 judges then recused themselves, presumably due to conflicts of interest, leaving just enough judges to meet quorum.

"After the en banc court was properly constituted, new circumstances arose that caused the disqualification and recusal of one of the nine judges, leaving only eight judges in regular active service," the court wrote in its recent order, signed by five judges.

"Upon this recusal, this en banc court lost its quorum. Absent a quorum, no court is authorized to transact judicial business."

The court directed the clerk to dismiss the appeal, saying it "considered and rejected" the alternatives, including asking Supreme Court Chief Justice John Roberts to appoint a judge from another circuit, declaring a quorum with the remaining eight judges, allowing a disqualified judge to sit on the panel, reinstating the panel decision, and stalling the case until a current vacancy is filled.

"This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court," the order states. "There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated."

Judgment thus reverts to the district court's ruling that global warming disputes are best resolved by the political branches of government.

The plaintiffs have 90 days to file a petition for Supreme Court review.

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