What the Law Supposes Is a Ass
| Author | Richard Lazarus |
| Position | Justice William J. Brennan Jr. Professor of Law at Georgetown |
| Pages | 12-12 |
Page 12 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, July/August 2010
By Richard Lazarus
What the Law
Supposes Is a Ass
The Fifth Circuit’s ruling in late
May in Comer v. Murphy Oil re-
minds me of a famous, though dated,
colloquy in Charles Dickens’s won-
derful novel Oliver Twist. In that sto-
ry, upon being told that “the law sup-
poses that your wife acts under your
direction,” Mr. Bumble famously re-
sponds “If the law supposes that . . .
the law is a [sic] ass — a [sic] idiot.”
In Comer, the plaintiffs are seeking
money damages from defendant ener-
gy, fossil fuel, and chemical industries
on the ground that their greenhouse
gas emissions damaged plaintiffs’ prop-
erty by increasing Hurricane Katrina’s
ferocity. e district court dismissed
the lawsuit, which, standing alone,
was not surprising. One would expect
that many judges would be skeptical
that plaintiffs could establish that the
defendants proximately caused hur-
ricane damage. But the court never
permitted the plaintiffs to try to make
that clearly difficult evidentiary show-
ing of causation and instead dismissed
the case at the outset based on the “po-
litical question doctrine.” e judge
reasoned that plaintiffs’ various legal
theories amounted to a “debate about
global warming” that is “best left to the
executive and legislative branches.”
On appeal, a three-judge panel of
the Fifth Circuit last October affirmed
in part and reversed in part. e panel
concluded that the plaintiffs lacked
“prudential standing” to bring some
of their state law claims, because they
amounted to generalized grievances
not sufficiently different from those
that any person could make, but that
the plaintiffs could maintain other tort
law claims based on state nuisance,
trespass, and negligence law.
According to the panel, neither
the political question doctrine nor
standing requirements barred the law-
suit. e political question doctrine
does not serve as a bar because state
“common law tort rules provide long-
established standards for adjudicating
the nuisance, trespass, and negligence
claims at issue.” Nor were any of the
requirements that plaintiffs possess
“standing” to invoke the jurisdiction
of a federal court a bar. Relying on
the Supreme Court’s recent decision
in Massachusetts v. EPA, the panel held
that the linkage between increased
greenhouse gas emis-
sions, global warm-
ing, and stronger
hurricanes was suf-
ficiently established
to meet the standing
requirement that the
actions of the defen-
dants must be “fairly traceable” to the
plaintiffs’ alleged injury.
In sending the case back to the trial
court, the panel made clear, however,
that it was deciding only that the
plaintiffs should be permitted to try
to establish defendants’ tort liability
and not that the plaintiffs had yet to
make such a showing. Indeed, one
judge wrote separately to say that he
thought plaintiffs would be unable to
do so and had the court reached that
issue, he would have favored dismissal
on that alternative ground.
No doubt because of the signifi-
cance of the panel’s jurisdictional rul-
ings, the Fifth Circuit subsequently
granted rehearing en banc. e rehear-
ing order was striking because seven
of the total of 16 judges on the Fifth
Circuit recused themselves because of
conflicts of interest.
But that is when the unusual first
became extraordinary and then bi-
zarre. After briefing and before argu-
ment, the Fifth Circuit announced
that an eighth judge now had a con-
flict and was recused from the case, de-
priving the full court of the necessary
quorum to decide the issue. Although
the plaintiffs then assumed the practi-
cal effect would be a reinstatement of
the initial favorable panel ruling, the
Fifth Circuit did just the opposite.
e court announced that because it
had vacated the panel ruling when it
still had an en banc quorum, but now
lacked a quorum to decide the case,
the only possible disposition was to
dismiss the appeal altogether, reinstat-
ing the unfavorable trial court ruling.
Now, this is where the Fifth Cir-
cuit should have paid greater heed to
Dickens’s Mr. Bumble. If this is in
fact what “the law supposes,” then it
truly would be an “ass.” e notion
that a federal appellate court loses
power to provide an
aggrieved plaintiff
with a statutory right
to appeal because the
en banc court loses
its quorum would be
truly idiotic.
But the good news
is that it is not true or at least I don’t
think so. One can hotly dispute
whether the plaintiffs in this case
will ultimately be able to satisfy the
challenging burden of establishing
proximate causation. But it should
be beyond cavil that a federal appel-
late court in these truly odd circum-
stances retains the authority to allow
an appeal before a three-judge panel.
Whether that means reinstatement
of the original panel ruling is per-
haps a more difficult question, but
what is not difficult is that at the very
least the right to appeal still exists to
a three-judge panel, which the chief
judge has the authority to ensure is
provided, including back before the
original panel of judges.
ere is no need to make the law
an ass, when it is not.
Richard Lazarus is Justice William J. Brennan
Jr. Professor of Law at Georgetown. He can be
reached at laza rusr@law.georgetown.edu.
I C
When the unusual
rst became
extraordinar y and
then bizarre
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