By Karen Savage
Rhode Island’s climate liability suit against 21 oil and gas companies belongs in state court because it alleges only violations of Rhode Island state law, according to Attorney General Peter Neronha. The AG made his latest arguments to keep the case in state court Thursday, in a brief to the First Circuit Court of Appeals.
“The State has the right to pursue in state court its causes of action for public nuisance, strict liability and negligent failure to warn, strict liability and negligent design defect, trespass, impairment of public trust resources, and violations of Rhode Island’s Environmental Rights Act,” the state wrote in its brief.
Rhode Island, which last year became the first state to file a climate liability suit, alleges that the 21 companies—including oil giants Exxon, BP, Shell, Chevron and ConocoPhillips—knowingly contributed to climate change and failed to adequately warn Rhode Island citizens about the risks posed by their products.
The oil companies moved the case to federal court, but in July, a federal judge remanded the case back to state court, where it was filed.
The companies then appealed that ruling and asked the First Circuit to halt the proceedings pending the outcome of their appeal. That request was denied in October. The oil companies then asked the Supreme Court to halt the case, but that request was also shot down.
The companies have asked the appellate court to review the entire remand order, a request the state says is beyond the court’s jurisdiction.
“Congress declared … that a district court’s remand order is never reviewable, ‘on appeal or otherwise,’ except with respect to federal-officer jurisdiction … or civil rights jurisdiction,” Rhode Island wrote, adding that at least eight circuit courts have agreed that remand orders can only be reviewed in those two circumstances. Rhode Island does not allege civil rights violations in its complaint.
Under the federal officer removal statute, a federal court has jurisdiction over a civil action that is directed at the United States or any federal official. The companies argue that because they sold or extracted fossil fuels under government contract, they operated as federal officers.
A California judge rejected that argument in similar climate liability suits, characterizing the federal officer claim as “dubious.”
“The State’s allegations have nothing to do with what defendants claim they have done under federal direction,” the state argued in the brief.
“Importantly, no federal officer directed any defendant to mislead the public, or to promote products based on disinformation.”