The Supreme Court of the United States dealt another major blow to the climate litigation campaign on Monday, overwhelmingly siding with energy companies on a procedural question that will impact many of the other state and municipal climate liability cases that have argued they should be heard in state court.
According to the 7-1 decision, the court ruled that the U.S. Fourth Circuit Court of Appeals should have considered all grounds for removal before affirming a lower court’s decision that sent the City of Baltimore’s case back to state court.
The Supreme Court’s decision now establishes the precedent that appellate courts must review all the energy companies’ several grounds for removal – not just one lone argument – before affirming or denying any decision permitting a case to move forward at the state or federal court level.
Beyond resolving this in-the-weeds procedural question, the biggest practical impact of this ruling is that Baltimore’s case, and many others like it, will drag on for several more months – if not years – before they’re heard on their merits, as jurisdictional questions will continue to be hashed out.
Meanwhile, the nationally coordinated climate litigation campaign still faces the reality that it has been a failure thus far – every case that has been heard on its merits has been defeated.
Further, unlike these lawsuits which will do nothing to address climate change, the energy industry continues to pioneer breakthrough technologies to lower greenhouse gas emissions.
The Nitty Gritty: Baltimore and the Scope of Appellate Review
Baltimore filed its case in 2018 in Maryland state court, where it was swiftly removed to federal court by the energy companies named as defendants. That federal court then decided the case should be heard in state court, a decision which the defendants appealed to the Fourth Circuit.
In 2020, the Fourth Circuit allowed Baltimore’s case to move forward in state court after finding it only had the authority to consider one of the companies’ several removal arguments.
That argument was based on a concept called “federal officer removal” – a legal statute that permits a defendant to litigate claims in federal court whenever the activity of that defendant was at the direction of a United States agency or officer.
In limiting the scope of its review, the Fourth Circuit widened a circuit split on what is appropriate for an appeals court to review in cases that were remanded in part under the federal officer removal statute.
The Seventh Circuit had held that appellate courts may consider the entire remand order on review, while the Fifth and Sixth Circuits had ruled inconsistently when it comes to the issue.
In the Baltimore case, the companies sued by the city petitioned the Supreme Court to resolve this federal officer removal confusion, arguing that all their other removal arguments should have been considered as well – a stance that the high court ultimately agreed with on May 17.
Major Implications For Other Climate Lawsuits
The Supreme Court’s ruling in Baltimore’s case has significant ramifications for the coordinated climate litigation effort across the country.
In particular, the ruling has direct implications for climate change lawsuits brought by Rhode Island, the City and County of Boulder and San Miguel County, and California municipalities – all of which were sent back to state court after their respective appellate courts followed in the Fourth Circuit’s steps, deciding that they too were limited to only reviewing the companies’ federal officer removal argument.
The energy companies that were sued in those cases have petitions pending before the Supreme Court that addresses the exact same issue that was at play in Baltimore’s case.
Now that the high court has ruled in favor of the companies, these other cases will likely be sent back to the appellate courts to hear all the companies’ arguments as to why the lawsuits belong in federal court.
Media Coverage Shows Impact Of The Ruling
National and local media outlets were quick to highlight this major win for the American energy industry and the impact that the Supreme Court’s decision will have on climate lawsuits around the country.
Bloomberg Law said it gives the industry “the upper hand” in these cases:
Exxon, BP, and other energy giants triumph in an arcane but consequential Supreme Court case that gives the industry a chance to gain the upper hand in climate litigation nationwide. https://t.co/VreE3k0AB6
— Bloomberg Law (@BLaw) May 17, 2021
Reuters noted the lopsided decision and the more difficult path that now lies ahead for the plaintiffs:
“The 7-1 ruling, authored by conservative Justice Neil Gorsuch, came on a technical legal issue that could help the companies in their effort to have the case heard in federal court, as they would prefer, instead of state court, which the city favors as it is seen as a more amenable venue.”
The Washington Examiner highlighted the wide-ranging ramifications of this ruling:
“The Supreme Court’s opinion will have implications for the more than two dozen lawsuits oil companies now face from cities and states seeking to force them to pay for climate damages.”
The Wall Street Journal editorial board observed:
“States and cities have purposefully tried to side-step federal courts and Supreme Court precedent. Now they will have a harder time drilling for money in state courts.”
Climate Litigation Has Failed
While the Supreme Court’s ruling focused only on a procedural question, all three climate lawsuits that have been decided on their merits have been decisively defeated.
In the summer of 2018, two lawsuits filed by San Francisco and Oakland and New York City which sought damages from energy companies related to climate change were rejected by federal judges who ruled that climate change should be address by Congress and the executive branch, not the courts.
In his opinion dismissing the San Francisco and Oakland cases, Judge William Alsup wrote:
“[Climate change] deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”
In 2019, the New York Attorney General – after failing to make any headway on the debunked “Exxon Knew” theory during a three week trial against ExxonMobil – saw its case, which focused on a narrow accounting question – dismissed by New York State Supreme Court Barry Judge, who ruled:
“In sum, the Office of the Attorney General failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor.”
The latest setback came last month after New York City, after appealing its loss from 2018, was handed another defeat by the U.S. Second Circuit Court of Appeals which ruled that the courts aren’t the proper venue to address climate change, “Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions.”
The ruling, on top of this Supreme Court decision, ensures that the litigation campaign – which has an 0-3 record – faces an even steeper uphill battle in the months and years ahead.
Read more at EID Climate
Do the plaintiffs even know there is only 0.042% CO2 in the air we breathe ? Not even 1/20 of 1% !
Do they realize at current levels CO2 is limiting plant growth ?
What is the cure against stupidity ?
These lawsuits are based on politics and junk science just like what Global Warming/Climate Change is based upon Politics and Junk Science was used to ban DDT and now their using it to force us all to drive electric cars
Ditto. Super Ditto — and even MAGA DITTO. IPPC climate science is not based on the climate or science — but instead the installment of a new world order, wealth redistribution, and some population control — and don’t forget the face masks.