Earlier this week, in what almost certainly has to be the most fractured appellate decision in the history of the United States courts, the 5th Circuit Court of Appeals, sitting en banc, affirmed via per curiam decision the 2021 District Court judgment in Environment Texas Citizen Lobby v. ExxonMobil Corporation.
Seventeen judges sat en banc. Nine of them voted to affirm. However, it appears that – literally – only one of the 17 judges actually wanted to affirm the 2021 District Court judgment. Seven of them actually wanted to go back and affirm an earlier District Court judgment from 2017. One judge wanted to dismiss the order granting the en banc rehearing as improvidently granted. He did so not because he supported the panel decision affirming the 2021 District Court opinion; in fact, his opinion states that had he been on the original three-judge panel, he would have voted to vacate and remand. Instead, he supported dismissal because “no one on the en banc court has been able to garner a majority in support of their views.” Finally, eight very frustrated judges dissented, arguing that plaintiffs did not have standing to bring most of their Clean Air Act penalty claims. Here is the summary of the result from Judge Oldham, writing for the dissenters:
After two years of en banc deliberations, here is how everything shakes out. Eight members of the en banc court support Judge Jones’s rule to vacate. Seven support Judge Davis’s rule to affirm. Chief Judge Elrod supports the district court’s rule and thus would also affirm. Judge Ho—the ninth vote for today’s judgment—supports none of this. But rather than completing the task and choosing a legal rule (any legal rule), today’s en banc majority throws up its hands and announces a non sequitur: “We have taken too long trying to make up our minds, so, oh well—affirmed.”
For what it’s worth, I think the concurring judges who supported the 2017 District Court opinion probably have the better argument. However, I am sympathetic to the concerns expressed by the dissent concerning the implications of the Court’s handling of this case:
Today’s decision purports to settle nothing about the Clean Air Act. It decides nothing about standing. And it does nothing to assist future parties to important environmental law cases in our circuit.
After all, it is the courts' role to say what the law is, and the Court here has failed to do so.
