By Karen Savage
With two appellate courts recently ruling that climate liability suits belong in state court, the lingering question is what comes next for the fossil fuel companies, which still desperately want the cases in federal court.
Attorneys for ExxonMobil, Chevron, Shell, BP and nearly two dozen other fossil fuel companies have already asked the U.S. Supreme Court to review a March ruling by the Fourth Circuit Court of Appeals that Baltimore’s lawsuit against them belongs in state court, where it was filed in 2018.
The companies asked the high court to weigh in on whether the law “permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the re-moving defendant premised removal in part on the federal-officer removal statute.” The court has not yet said whether it will review the case.
Similarly, the Ninth Circuit Court of Appeals ruled last month that cases filed against many of the same companies by the California cities of Imperial Beach, Richmond and Santa Cruz, as well as the counties of Marin, San Mateo, and Santa Cruz also belong in state court.
In both instances, the appellate courts reviewed—and rejected—only the companies’ argument that the case belongs in federal court because of the federal officer removal statute, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official. The companies argued that because they sold or extracted fossil fuels under government contract, they operated as federal officers. They also contend that the appellate courts should have reviewed all of their arguments for keeping the cases in federal court, not just the issue of federal officer removal.
Next steps in the California cases could depend on whether the high court agrees to hear the fossil fuel companies’ appeal in the Baltimore case.
“The Ninth Circuit defendants can buy some time by petitioning for an en banc review in the Ninth Circuit and also requesting an extension on the deadline for filing a certiorari petition with the Supreme Court,” said Pat Parenteau, a professor of environmental law at the Vermont Law School. A request for an en banc hearing must be approved by a majority of the Ninth Circuit’s 29 judges and if approved, a panel of 11 judges would then review the ruling.
Parenteau said while it takes only four of the nine Supreme Court justices to approve a review, it’s hard to predict how the court will deal with the cases.
The companies could also wait for the result of an appeal pending in the First Circuit involving Rhode Island’s suit against Exxon, BP, Shell, Chevron, ConocoPhillips and more than a dozen other fossil fuel companies. The case was sent to state court by a U.S. District Court ruling and the First Circuit’s decision could have wider ramifications. If it rules for state court, it solidifies consensus between the circuits but if it causes a split by ruling for federal court, that would make it more likely the Supreme Court will weigh in. The First Circuit has completed the briefing stage, but oral arguments are not yet scheduled.