SUPREME COURT HEARS ARGUMENTS ON PROCEDURAL QUESTION IN BALTIMORE'S CLIMATE ACCOUNTABILITY CASE AGAINST FOSSIL FUEL COMPANIES
January 21, 2021
U.S. Supreme Court. Credit: Ken Chan, CC BY-SA 2.0
A lawsuit brought by the City of Baltimore against nearly two dozen fossil fuel companies seeking to hold them accountable for climate harms stemming from their products reached the Supreme Court bench this week. Although the Court was not hearing the case on its merits or substance, the Justices appeared somewhat skeptical of the procedural arguments offered by the fossil fuel defense.
In oral arguments Tuesday, Jan. 19 in the case BP et al. v. Mayor and City Council of Baltimore, the Supreme Court focused discussion on the highly technical procedural question before it. This question - regarding the scope of appellate review of orders remanding (or sending back) cases from federal to state courts - has important implications for U.S. litigation targeting fossil fuel producers for alleged campaigns of climate denial and deception.
In a strategic move to evade accountability, lawyers representing fossil fuel companies are trying to push climate accountability lawsuits, like the one filed by Baltimore, from state to federal courts where the cases are more likely to be dismissed. At the companies’ request, the Supreme Court is reviewing a decision issued by the Fourth Circuit Court of Appeals last year in Baltimore’s case sending that lawsuit back to state court.
During Tuesday’s hearing, the Supreme Court Justices raised several questions or concerns with the position presented by counsel for the fossil fuel companies. Specifically at issue is the interpretation of a statutory provision (28 USC §1447d) governing appellate review of remand orders – which are orders sending cases back to state courts. Fossil fuel industry lawyers (Petitioners in this case) argue for a broader interpretation allowing review of the entire remand order on appeal, including multiple grounds for federal jurisdiction beyond the specific grounds (civil rights & federal officer) referenced in the statute. Almost all federal circuit courts that have ruled on this question do not support this interpretation.
Concerns raised by the Justices during questioning of counsel for fossil fuel companies, Mr. Kannon Shanmugam, boil down to three main points:
While these issues are highly technical around statutory interpretation and rules of federal civil procedure, they have broader significance for climate accountability litigation against the fossil fuel industry. Should the Supreme Court side with the industry in this matter, it would effectively delay Baltimore’s case and similar climate accountability lawsuits from advancing in state courts, by reopening the federal appellate process to consider industry’s other arguments for federal jurisdiction. But the industry and its allies have urged the Supreme Court to go a step further and find that climate-related lawsuits must arise under federal [common] law, period. Industry lawyers have argued that, under Supreme Court precedent established by AEP v Connecticut, the Clean Air Act prevents or displaces legal claims brought under federal law relating to interstate greenhouse gas emissions, and thus see establishing federal jurisdiction as key to barring such claims altogether. Subsequent precedent set in Utility Air Group v EPA makes clear that the CAA did not address all sources of greenhouse gases, leaving open the possibility that federal common law climate claims may remain viable against sources of greenhouse not regulated by the Act.
Justice Amy Coney Barrett seemed hesitant that the Court should go this far, suggesting in questioning fossil fuel industry counsel Mr. Shanmugam that “it would be fairly aggressive for us to resolve the federal common law question here.”
This did not deter the fossil fuel counsel from pressing this point about federal law, however. As Mr. Shanmugam argued on Tuesday: “This Court’s precedents dictate the common sense conclusion that federal law governs claims alleging injury caused by worldwide GHG emissions.”
The problem with this argument is that it mischaracterizes the actual claims asserted by Baltimore and other municipalities and states suing the fossil fuel industry over localized climate impacts. These impacts are exacerbated, plaintiffs say, by a decades-long campaign orchestrated by fossil fuel producers to downplay the dangers of their products. The tort or wrongdoing, as attorney Vic Sher, representing Baltimore, pointed out on Tuesday, is “fraud, deception, denial, and disinformation.” Traditionally such conduct falls under the province of state law.
A representative from the City of Baltimore’s law department referenced this deceptive conduct in a statement responding to the Supreme Court hearing. “It is time for the case to start moving,” said Sara Gross, Chief of Affirmative Litigation Division in the Baltimore City Department of Law. “In the two and half years since we filed this case in Maryland state court, defendants have done everything they can to delay and avoid accountability for their decades of deception about climate change while Baltimore continues to suffer the costs and consequences of their actions.”
In oral arguments Tuesday, Jan. 19 in the case BP et al. v. Mayor and City Council of Baltimore, the Supreme Court focused discussion on the highly technical procedural question before it. This question - regarding the scope of appellate review of orders remanding (or sending back) cases from federal to state courts - has important implications for U.S. litigation targeting fossil fuel producers for alleged campaigns of climate denial and deception.
In a strategic move to evade accountability, lawyers representing fossil fuel companies are trying to push climate accountability lawsuits, like the one filed by Baltimore, from state to federal courts where the cases are more likely to be dismissed. At the companies’ request, the Supreme Court is reviewing a decision issued by the Fourth Circuit Court of Appeals last year in Baltimore’s case sending that lawsuit back to state court.
During Tuesday’s hearing, the Supreme Court Justices raised several questions or concerns with the position presented by counsel for the fossil fuel companies. Specifically at issue is the interpretation of a statutory provision (28 USC §1447d) governing appellate review of remand orders – which are orders sending cases back to state courts. Fossil fuel industry lawyers (Petitioners in this case) argue for a broader interpretation allowing review of the entire remand order on appeal, including multiple grounds for federal jurisdiction beyond the specific grounds (civil rights & federal officer) referenced in the statute. Almost all federal circuit courts that have ruled on this question do not support this interpretation.
Concerns raised by the Justices during questioning of counsel for fossil fuel companies, Mr. Kannon Shanmugam, boil down to three main points:
- Adopting industry’s interpretation of the removal statute could open the door to “frivolous” assertions of federal officer issues, with defendants tacking it on as a way to get otherwise unreviewable remand orders appealed; in other words, it invites “gamesmanship”
- Adopting industry’s view would delay appellate proceedings, further burdening federal appeals courts
- Congress seems to have spoken with “ratification” or amendment of the statute in 2011; also, the vast majority of circuit courts have ruled contrary to Petitioners’ view of the statute
While these issues are highly technical around statutory interpretation and rules of federal civil procedure, they have broader significance for climate accountability litigation against the fossil fuel industry. Should the Supreme Court side with the industry in this matter, it would effectively delay Baltimore’s case and similar climate accountability lawsuits from advancing in state courts, by reopening the federal appellate process to consider industry’s other arguments for federal jurisdiction. But the industry and its allies have urged the Supreme Court to go a step further and find that climate-related lawsuits must arise under federal [common] law, period. Industry lawyers have argued that, under Supreme Court precedent established by AEP v Connecticut, the Clean Air Act prevents or displaces legal claims brought under federal law relating to interstate greenhouse gas emissions, and thus see establishing federal jurisdiction as key to barring such claims altogether. Subsequent precedent set in Utility Air Group v EPA makes clear that the CAA did not address all sources of greenhouse gases, leaving open the possibility that federal common law climate claims may remain viable against sources of greenhouse not regulated by the Act.
Justice Amy Coney Barrett seemed hesitant that the Court should go this far, suggesting in questioning fossil fuel industry counsel Mr. Shanmugam that “it would be fairly aggressive for us to resolve the federal common law question here.”
This did not deter the fossil fuel counsel from pressing this point about federal law, however. As Mr. Shanmugam argued on Tuesday: “This Court’s precedents dictate the common sense conclusion that federal law governs claims alleging injury caused by worldwide GHG emissions.”
The problem with this argument is that it mischaracterizes the actual claims asserted by Baltimore and other municipalities and states suing the fossil fuel industry over localized climate impacts. These impacts are exacerbated, plaintiffs say, by a decades-long campaign orchestrated by fossil fuel producers to downplay the dangers of their products. The tort or wrongdoing, as attorney Vic Sher, representing Baltimore, pointed out on Tuesday, is “fraud, deception, denial, and disinformation.” Traditionally such conduct falls under the province of state law.
A representative from the City of Baltimore’s law department referenced this deceptive conduct in a statement responding to the Supreme Court hearing. “It is time for the case to start moving,” said Sara Gross, Chief of Affirmative Litigation Division in the Baltimore City Department of Law. “In the two and half years since we filed this case in Maryland state court, defendants have done everything they can to delay and avoid accountability for their decades of deception about climate change while Baltimore continues to suffer the costs and consequences of their actions.”
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