By Karen Savage
A group of fossil fuel companies say they will suffer ‘irremediable harms’ if a group of California climate liability lawsuits is allowed to proceed in state court and have asked the Ninth Circuit Court of Appeals to stay its ruling that remanded them there.
The companies, including Chevron, ExxonMobil, BP and Shell, say they plan to ask the Supreme Court to weigh in and said they could be “forced to incur substantial burden and expense” litigating the cases should they be allowed to proceed in state court before the question of jurisdiction is fully settled.
“Those harms will be irremediable” if the Supreme Court ultimately decides that the cases belong in federal court, the companies said in a motion filed Monday.
The Ninth Circuit last week rejected a request by the companies to reconsider its ruling.
The California cities of Imperial Beach, Richmond, and Santa Cruz, as well as the counties of Marin, San Mateo, and Santa Cruz filed suits in state court in 2017 against Chevron, Exxon, Shell, Citco, ConocoPhillips, Peabody Energy, and more than 30 other fossil fuel companies. The municipalities allege the companies violated state public nuisance laws and are seeking compensation for climate change-related damages.
Nearly two dozen climate change-related cases have been filed against fossil fuel companies in recent years. In nearly all of them, the question of jurisdiction—whether the cases should be heard in state court where they were filed or federal court where the companies think they have a better chance at shaking them—has been hotly contested.
The companies’ arguments for federal jurisdiction have relied most heavily on the Federal Officer Removal Statute, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official. The defendants contend that because they sold or extracted fossil fuels under government contract, they operated as federal officers.
Thus far, the federal courts have not been persuaded by any of the companies’ arguments.
In addition to the California ruling, federal judges have sent cases filed by Baltimore, Rhode Island, Massachusetts and several Colorado municipalities back to state court. With the exception of the Rhode Island case, which is still under review, those rulings have all been affirmed on appeal.
The companies contend the appellate courts erred by reviewing only the companies’ federal officer argument, which the courts have ruled is the only argument eligible for review. They argue that if presented alone, their other arguments would be unreviewable, but maintain that they are eligible for review when presented along with the federal officer removal argument.
Chevron, ExxonMobil, Shell, BP and more than a dozen other companies have already asked the high court to review a similar ruling by the Fourth Circuit in Baltimore’s case. Briefing has been completed and the court is expected to decide whether to hear the case when it returns in October.