Rhode Island, California Municipalities Fight to Keep Climate Suits in State Court

The Ninth U.S. Circuit Court of Appeals. (Photo by Justin Sullivan/Getty Images)

By Karen Savage

Victor M. Sher, a lawyer representing Rhode Island and several California municipalities in climate liability suits against the world’s largest fossil fuel companies, sent letters to two federal appeals courts this week, urging them to follow the lead of the 4th U.S. Circuit Court of Appeals, which recently ruled that Baltimore’s climate liability suit belongs in state court.

Sher filed the letters with the 1st Circuit and the 9th Circuit appeals courts on March 9, 2020.

The counties of Marin, San Mateo and Santa Cruz, along with the cities of Imperial Beach, Santa Cruz and Richmond in California, as well as Rhode Island and Baltimore, have filed suits in state courts against Chevron, Exxon, Shell, BP, ConocoPhillips and more than a dozen other fossil fuel companies. They allege the companies violated state nuisance laws and failed to warn the public that the burning of their products contribute to climate change.

The question of jurisdiction — whether the cases should be heard in state or federal courts — has been a key point of contention in the suits. The fossil fuel corporations have argued that the cases belong in federal court, where the firms seem to believe they have a better chance of getting them dismissed.

In the latest rounds of that battle, the fossil fuel defendants in cases brought by Rhode Island, Baltimore, and the California municipalities appealed lower court rulings that the suits belong in state court.

The 4th Circuit last week upheld the lower court’s decision to keep Baltimore’s suit in state court.

Decisions by the 1st Circuit regarding Rhode Island’s suit, as well as by the 9th Circuit regarding the California cases, are expected in coming months.

Chevron attorney Ted Boutrous sent letters last month to the same courts, arguing that a recent ruling by the 5th Circuit in an asbestos-related case supports the argument by fossil fuel companies that all climate liability suits belong in federal court. Boutrous’ argument rested partly on the fact that Chevron was drilling “on the Outer Continental Shelf under federal leases,” and was also under a contract with the U.S. Navy.

But a three-judge panel of the 4th Circuit unanimously nixed that logic, finding that “none of these relationships are sufficient to justify removal under the federal officer removal statute in this case.”

Sher emphasized that finding in his letter to the 1st Circuit.

“The Baltimore ruling rejects the exact arguments raised by defendants-appellants as to the proper scope of this appeal and their tenuous justification for federal officer removal,” Sher wrote.

The fossil fuel company defendants are continuing to try to get Baltimore’s case dismissed in state court, where it has been proceeding while awaiting the recent 4th Circuit decision. Rhode Island's case is also proceeding in state court while awaiting a decision on jurisdiction from the 1st Circuit. The California suits are stayed pending a decision by the 9th Circuit.

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