By Karen Savage
Attorneys for ExxonMobil, Chevron, Shell, and BP, along with nearly two dozen other fossil fuel companies named in a climate damages suit by the city of Baltimore, have asked the U.S. Supreme Court to review a March decision by the 4th U.S. Circuit Court of Appeals to keep the case in state court.
Baltimore Acting City Solicitor Dana P. Moore said in a statement that she was "disappointed" that the oil and gas firms "continue to do or say anything to avoid accountability" for decades of misleading the public about climate change in order to delay climate action. "After raking in trillions of dollars in profits for themselves in just the past 30 years, they now expect Baltimore’s taxpayers to pay the enormous costs for the climate change damage the corporations knowingly caused." Her office has 30 days to respond to the appeal.
The question of jurisdiction — whether the proper venue for a case is state or federal court — has been a hotly contested issue in climate liability suits. The outcome of this appeal could have widespread ramifications for communities across the country attempting to hold the fossil fuel industry accountable for worsening climate change.
Most of the suits have been filed in state courts, and allege violations of state law. But fossil fuel companies have typically tried to move them to federal court, where precedents set in an earlier wave of climate lawsuits found that the Clean Air Act took precedence over state or local liability claims.
In March, the 4th Circuit became the first appellate court to weigh in directly on the jurisdiction question, ruling that Baltimore’s case belonged in state court, where it was originally filed in 2018. The 1st, 9th, and 10th Circuit Courts have also heard arguments about jurisdiction in cases filed by Rhode Island and by communities in California and Colorado, respectively. Decisions in those cases are pending.
The 4th Circuit specifically rejected the defendants’ argument that the case is covered by the federal officer removal statute. The corporations say they have operated as federal officers because they have sold or extracted fossil fuels while under a government contract. Specifically, they maintain that because they held federal leases, operated on the Outer Continental Shelf, and had other contracts with the federal government, their actions were taken under the direction of the federal government and thus fall under the federal officer removal statute.
In their Supreme Court appeal, filed Tuesday, attorneys for the fossil fuel firms contended that the 4th Circuit did not consider their other arguments for keeping the case in federal court. The rules governing jurisdiction permit “a court of appeals to review any issue encompassed in a district court’s remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statute,” attorneys for the companies wrote in the petition.
They also noted that some circuit courts have agreed with the defendants’ interpretation of those rules.
“They are pushing a procedural argument that has been rejected by the overwhelming majority of our country’s federal courts," countered Baltimore's Moore in her statement. "As the 4th Circuit Court of Appeals panel unanimously held: 'They are wrong.’"
While the Supreme Court has so far opted not to pause or stay climate cases from advancing in state court while jurisdiction or other appeals played out, the high court typically agrees to review cases that involve “circuit splits,” in which the appellate courts reach different conclusions on similar issues of national significance.
1/1/20: This story has been updated to include Baltimore Acting City Solicitor Dana P. Moore's response to the Supreme Court petition.