A Non-Decision Decision on Climate Change Litigation

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The U.S. Fifth Circuit Court of Appeals on May 28th issued a decision (PDF) that will warm the heart of an appellate lawyer, but leave the rest of us scratching our heads. On Friday, the court dismissed the appeal in the Comer climate change lawsuit, but not on the merits of whether the courts should hear lawsuits challenging companies' contributions to climate change. Instead, the dismissal was based on the intricacies of procedural rules for en banc review and quorums. The result eliminates one of the two landmark climate change appellate decisions, leaving only the Second Circuit's decision in Connecticut v. AEP to allow such lawsuits and a question whether the Supreme Court will consider the issue.

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