Baltimore Climate Liability Suit Will Proceed in State Court

By Dana Drugmand




The city of Baltimore is one step closer to holding fossil fuel companies liable for localized climate impacts. A federal appeals court on Friday ruled that the case will proceed in Maryland state court, rejecting the companies’ appeal to move the suit to federal court.


Initially filed in state court in July 2018, the suit seeks to hold 26 oil and gas companies liable for Baltimore's costs stemming from climate change. It is one of a handful of lawsuits against fossil fuel producers filed by cities, counties, one state and one trade association, alleging the companies engaged in an elaborate disinformation campaign to discredit climate science and downplay the dangers of their product.


This conduct, the lawsuits allege, has substantially contributed to worsening climate change, and led to costly impacts like rising seas, floods, storms, heat waves, and drought.


According to a 2019 study by the Center for Climate Integrity, it will cost coastal communities more than $400 billion by 2040 to build seawalls to protect against climate change-driven sea level rise. With over 60 miles of waterfront property, Baltimore is particularly vulnerable to sea level rise and flooding. It is seeking to shift some of the that cost onto fossil fuel producers.


Fossil fuel companies have fought these lawsuits in part by trying to have them moved to federal courts, which have so far been more likely to dismiss them. Federal courts have dismissed recent cases brought by San Francisco and Oakland, as well as New York City, which have all appealed those rulings.


But other climate liability lawsuits, including Baltimore's case, have been kept in state court, decisions that the fossil fuel companies have appealed. The Fourth Circuit Court of Appeals was the first to hand down a decision on these appeals, with others still pending in the First, Tenth and Ninth circuit courts. The appeals courts and the U.S. Supreme Court have refused to stay or pause the cases from advancing in state court while the appeals play out.


Fourth Circuit judges Roger L. Gregory, Henry F. Floyd, and Stephanie D. Thacker issued their opinion Friday following oral argument held in Richmond, Va. in December. The judges rejected the fossil fuel companies’ argument that the entire remand order is reviewable, bluntly stating, “They are wrong.”


The judges also disputed the companies’ argument that the lawsuit challenges fossil fuel production itself, which Chevron counsel Theodore Boutrous, Jr. emphasized during the hearing.


“When read as a whole, the Complaint clearly seeks to challenge the promotion and sale of fossil fuel products without warning and abetted by a sophisticated disinformation campaign,” Judge Floyd wrote in his decision, rather than their wholesale production.


Boutrous has deflected when questioned directly about the fossil fuel companies’ history of climate denial campaigns during various climate liability hearings, leaning instead on defenses that claim these cases are fundamentally about global greenhouse gas emissions, and therefore invoke a host of federal issues. In late January, Boutrous filed letters with several appeals courts, insisting that the Ninth Circuit Court’s dismissal of the youth climate lawsuit Juliana v. United States further supported the argument that these cases belong in federal court.


This letter apparently did not sway the Fourth Circuit judges who decided in favor of Baltimore.


“We were confident in our case and are grateful that the Court of Appeals agreed,” Baltimore acting solicitor Dana Moore said in a statement responding to the ruling. “Not only did it conclude that, under federal law and the court’s precedents, the fossil fuel companies were ‘wrong’ in claiming the court had to review all of its arguments on appeal, it also rejected all three of the oil and gas companies’ arguments claiming they are somehow officers of the federal government.”


EarthRights International, an environmental law nonprofit that is helping represent the Colorado communities of Boulder County, San Miguel County, and the City of Boulder in their climate liability lawsuit against ExxonMobil and Suncor, praised the Fourth Circuit’s decision.


“This development is another win for plaintiff communities suing fossil fuel companies for the costs of climate change,” EarthRights International attorney Marco Simons said in a statement. “The corporations in these cases have tried to move them to federal court, where they believe they'll receive a more favorable hearing, but so far, almost every decision has sent them back to state court.”


That includes the Colorado case, which is now proceeding in state court, and currently pending a motion to dismiss in the Tenth Circuit as it proceeds. A suit brought by Rhode Island is also proceeding in state court while it awaits a decision from the First Circuit.


Fossil fuel companies have filed motions to dismiss all three cases in state courts.


Chevron spokesman Sean Comey said in a statement that the company stands by its assertion that Baltimore’s case should be heard in federal court.


“These claims challenge oil and gas production around the globe dating back to the industrial revolution. The case belongs in federal court,” he said. “There are significant national economic, legal and policy issues undermined by the factually and legally unsupported claims. The Fourth Circuit’s decision sending the case back to state court is wrongly decided and we intend to challenge it.”


Moore said in her statement that Baltimore is ready to have its lawsuit tried by a jury. “Our case is already moving forward in Maryland state court, and we look forward to having a jury hear the facts about the fossil fuel companies’ decades-long campaign of deception and their attempt to make Baltimore’s residents, workers and businesses pay for all the climate damage they’ve knowingly caused.”


Correction March 7, 2020: This article has been edited to note that comments by Sean Comey, Dana Moore, and Marco Simons came from prepared statements.

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