The case of Comer v. Murphy began bizarre and went downhill from there. Several landowners in Gulfport, Mississippi, sued a huge number of energy and chemical companies for damages resulting from Hurricane Katrina. Their argument , if you can call it that, was that the companies’ emission of greenhouse gases contributed to global warming, thereby causing sea levels to rise, thereby intensifying Katrina, thereby exacerbating the damage from it.
In 2009, unbelievably, a three-judge panel from the Fifth Circuit Court of Appeals re-instated the case.
Naturally, the companies sought a judgment from the entire Fifth Circuit. And that’s when the fun began.
Apparently, every judge on the court of appeals who held stock in any in the 100-plus companies felt called upon to recuse himself, so that eventually the panel of judges was down to the bare minimum of nine. Still, no problem. The nine judges duly voted to hear the case en banc, meanwhile setting aside the three-judge panel’s reversal of the district court’s dismissal.
Then, suddenly, one other appeals court judge announced that he too had to disqualify himself. No quorum. What to do? Two judges argued that the court get around the impediment in several ways. But a majority of the court ruled that it simply could not hear the appeal. And yet: the three-judge panel’s reversal of the district court’s dismissal of the case remained vacated. Thus, the plaintiff’s case was dismissed , despite their having won their appeal. Weird.
Still, I cannot help but see in the proceedings a sort of rough justice. If you try to bring a legal case against the last 250 years of civilization, there will naturally be few judges so unimplicated in the civilization that they are able to hear your argument from a neutral standpoint. And that is a reflection of the fact that your case is trying to indict your society while employing its premises. It is a reflection of the fact that you are relying on what Ayn Rand called “the sanction of the victim.”
But I will say this for Comer v. Murphy, its absurdly elaborate argument must appeal to all lovers of Rube Goldberg devices: http://wiki.nasa.gov/cm/blog/whatonearth/posts/post_1275422073165.html