By Karen Savage
Three U.S. government associations have filed a friend-of-the-court brief in support of Baltimore’s bid to keep its climate liability suit against ExxonMobil, Chevron, Shell and 23 other fossil fuel companies in state court.
The National League of Cities, the United States Conference of Mayors and the International Municipal Lawyers Association said the federal court appropriately ruled that it lacked jurisdiction over the claims in a brief filed Tuesday in the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.
Baltimore alleges that ExxonMobil, Chevron, Shell and 23 other fossil fuel producers and distributors knew for decades about fossil fuels’ role in driving climate change but deliberately failed to inform the public about those risks. The city is charging the companies with eight violations, including public nuisance, private nuisance, failure to warn and violations of Maryland’s consumer protection laws.
The issue under appeal is whether the suit will proceed in federal or state court, a jurisdictional battle that has been central to climate liability suits filed by communities across the country. Communities are trying to get the cases heard in state court under state laws. Fossil fuel company defendants are fighting to put them in federal court, where previous climate-related cases have been decided largely in the industry’s favor.
In California, the counties of Marin, San Mateo and Santa Cruz, along with the cities of Imperial Beach, Santa Cruz and Richmond won an earlier ruling by U.S. District Judge Vince Chhabria, who decided the suits belong in state court. San Francisco and Oakland had their cases dismissed after U.S. District Judge William Alsup ruled that their cases, which involve claims similar to those of the other municipalities, belong in federal court. The rulings have all been appealed to the Ninth Circuit.
The fossil fuel company defendants, led by Chevron, moved Baltimore’s suit to federal court shortly after it was filed, but U.S. District Judge Ellen L. Hollander ruled in June that the suit belongs in state court, where the city filed it in 2018.
“No federal question jurisdiction exists over the city’s public nuisance claim, which is founded on Maryland law,” wrote Hollander in her decision, adding that the city’s claims, which are based on the “extraction, production, promotion and sale of fossil fuel products without warning consumers of their known risks” rely only on state nuisance law and do not rely on federal statutes or regulations.
The fossil fuel companies have appealed and are asking for a review of Hollander’s entire decision.
In their amicus, or friend-of-the-court brief, the associations said the only aspect of Hollander’s ruling eligible for review is the “narrow question” of whether the removal to state court is “warranted due to federal officer jurisdiction.”
Under the federal officer removal statute, a federal court has jurisdiction over a civil action that is directed at the U.S. or any federal official. The companies have argued that because they sold or extracted fossil fuels under government contract at some point that means they operated as federal officers.
A Chevron spokesperson said the company had no comment on the brief.
The associations said the suit should remain in state court because efforts to combat climate change—including adopting adaptation or resilience plans—require significant state and local funding.
“Courts have routinely upheld subnational climate actions in the face of challenges that they interfere with national interests or priorities and affirmed the legitimacy of state interests in climate action,” said the associations.
The associations also pushed back on the fossil fuel companies’ assertion that the suit belongs in federal court under the Clean Air Act, an assertion they say has been rejected by several courts, including the Supreme Court.
“The weight of this precedent is overwhelming and the district court’s remand is consistent with it,” said the associations.