U.S. Supreme Court To Take Up Baltimore Climate Lawfare Case

On Friday, the United States Supreme Court announced that it will review the Fourth Circuit Court of Appeals’ ruling that Baltimore’s climate change lawsuit against energy producers should be heard in state court, a move that could deal a fatal blow to the entire climate litigation campaign.

While the issue before the court is procedural in nature, its resolution could help answer an essential question present in the more than twenty municipal climate change lawsuits so far filed across the country: should these cases be litigated in federal or state court?

The energy companies filed a petition before the Supreme Court in March, after the Fourth Circuit affirmed a lower court’s ruling that Baltimore’s case belonged in state court.

The plaintiffs, and the activist groups supporting them, believe their chance of success greatly increases if these cases are heard in state court – something they’ve fought to make happen.

Considering this, the Supreme Court’s decision to review the question of jurisdiction has the potential to shake up the entire climate litigation campaign.

Covering the announcement, Bloomberg noted that the “high court’s decision to get involved gives the industry a fresh shot at arguing for federal jurisdiction,” and the Washington Post called it a “win” for energy companies and reported:

“Should the Supreme Court rule in favor of the oil companies, it may make it harder for cities and states to secure victory in the climate cases.”

So, what exactly will the energy companies and Baltimore argue before the Supreme Court in the coming months? What implications will this decision have on climate litigation in the United States moving forward?

Here is what to consider in the lead up to the court’s review of BP P.L.C., et al. v. Mayor and City Council of Baltimore:

The Issues: The Scope of Appellate Review and the Federal Officer Removal Statute

In considering the energy companies’ petition, the Supreme Court will address a reoccurring technical question that has become integral to the future of climate lawsuits across the country: the scope of appellate review.

Specifically, the Court will provide guidance on what appellate courts should review when a defendant removes a case to federal court in part under federal officer jurisdiction, a statute which holds that cases involving U.S. agencies or officers belong in federal court.

Let’s break this down a bit. The majority of these climate cases, including Baltimore’s, originated in state court.

The energy companies removed them to the federal district court, where they were ultimately sent back – or “remanded” – to the state level. The companies then appealed the remand orders to the appropriate U.S. Circuit Courts.

Even though different climate cases were removed to federal court on separate jurisdictional grounds, three circuit courts – including the Fourth Circuit, which ruled on Baltimore’s case – have ruled that federal officer jurisdiction is the only issue that they can review when considering the companies’ appeal of a lower court’s remand order.

The companies, meanwhile, argue that the federal officer removal statute authorizes appellate review of the entire remand order – a position held by the Seventh Circuit.

So, because they invoked the statute in their motions for removal, the circuit courts should have considered all their other arguments as well.

Whether this position is legally correct is what the Supreme Court will determine.

Chevron, one of the energy companies part of the petition to the Supreme Court, told E&E News that climate lawsuits should be heard in federal court, as their impact is inherently national:

“These cases have sweeping implications for national energy policy, national security, foreign policy, and other uniquely federal interests. They belong in federal court and we are hopeful the Supreme Court will agree that these issues require a closer look.”

The Implications: What Does This Mean for the Other Climate Lawsuits?

Although the Supreme Court’s review of the Baltimore case will focus on a nuanced procedural question, that does not mean the outcome will not be significant.

In fact, a ruling either way will reverberate throughout the country, directly impacting the future of dozens of existing climate litigation suits.

As the companies explained in their petition to SCOTUS:

“Resolution of the question presented is particularly important in the context of the ongoing nationwide climate change litigation brought by state and local governments against energy companies. … The question is also of substantial legal and practical importance; indeed, the question is currently arising with acute frequency in climate change lawsuits similar to this one, where the arguments for federal jurisdiction are compelling.”

The Tenth and Ninth Circuits have followed the precedent set by the Fourth Circuit, affirming that cases brought by Colorado and California municipalities belong in state court, while the First Circuit held oral arguments in Rhode Island’s lawsuit last month.

Although the Colorado case has been moving forward in state court, the Ninth Circuit stayed County of San Mateo until at least January 2021, when the companies’ appeal to the Supreme Court is due.

Meanwhile, it appears likely the First Circuit will not make further rulings until the Court issues its decision in the Baltimore case, which is expected in summer 2021.

On a macro level, the SCOTUS decision to take up this case dramatically shifts the momentum of the entire national climate litigation campaign.

While four new cases were filed within the last month, as activists, plaintiffs lawyers, and their allies in government pressed harder in their efforts, the Supreme Court is now poised to solidify a conservative majority.

This development will likely influence the Court’s decision, according to Law360’s Keith Goldberg:

“If the Supreme Court sides with the energy companies, experts say the likely upshot is that the Fourth Circuit would have to review the companies’ additional grounds for removing Baltimore’s suit to federal court. Practically, that means further delaying a final determination of where Baltimore’s suit and other climate suits currently percolating in lower federal courts can proceed, and ultimately, whether they can proceed and be successful at all.”

Having these cases proceed in state court is what the plaintiffs want; if they move forward at the federal level, their job just got a lot harder.

Even supporters of the climate litigation campaign admit that the Supreme Court could deal a fatal blow to their efforts, as a UCLA professor who consulted on these cases and has pushed for their support in the media told Bloomberg:

“‘The bottom line is that if the oil companies were to win, this gives them other avenues for delay and for getting the cases into federal court, where they think they have a better shot at getting cases dismissed entirely,’ said Ann Carlson, a law professor at the University of California, Los Angeles, who has done pro bono consulting for some plaintiffs in climate liability cases.”

Read more at EID Climate