By Karen Savage
The Ninth Circuit Court of Appeals has pressed pause on its earlier decision to return climate liability suits filed by several California municipalities to state court.
In an order issued Tuesday, the appellate court agreed to a request by the fossil fuel companies to halt the cases while they ask the U.S. Supreme Court to review the issue of whether these cases should be heard in state or federal courts.
The cities of Imperial Beach, Richmond, and Santa Cruz, and the counties of Marin, San Mateo, and Santa Cruz filed the suits in state court in 2017, alleging that Chevron, Exxon, Shell, Citgo, ConocoPhillips, and dozens of other fossil fuel companies have known for decades that their products cause climate change, but instead of warning the public, the companies engaged in a public relations campaign to protect their profits. The municipalities are seeking compensation for climate change-related damages.
In a joint statement, Imperial Beach Mayor Serge Dedina, San Mateo County Supervisor Dave Pine, and Marin County Supervisor Kate Sears said they disagreed with the order and the delay in hearing the case has made those damages worse.
“It has been three years since these cases were filed in state court, where they belong. Three years of increasing heat, drought, flooding, fire, and public health impacts on some of our most vulnerable populations—harms that these defendants knew would hit us,” the officials said.
California is currently experiencing some of the largest wildfires in state history. At least seven people have died and hundreds of thousands have been forced out of their homes. At least 530 buildings have been destroyed in San Mateo and Santa Cruz counties alone.
“The danger, and the taxpayer costs to protect our citizens from that danger, are mounting,” municipal officials said. “The defendants say they aren’t doing this to delay the proceedings. We think their actions speak louder than their words.”
As with dozens of similar climate change-related suits across the country, the companies want the suits to federal court, where they think they have a better chance at beating them. In May, the Ninth Circuit upheld a district judge’s determination that the cases belong in state court.
At issue is whether the circuit court is authorized to review all of the companies’ arguments for having the cases heard in federal court.
The companies have argued there are several reasons to keep the cases in federal court, including claims that they operated as federal agents and the Federal Officer Removal Statute, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official, applies.
Several appellate courts have soundly rejected that contention, but have said the companies’ other arguments are unreviewable. The fossil fuel companies, however, contend that those arguments are only unreviewable if presented alone and maintain they are eligible for review when presented along with the federal officer removal argument.
Now the companies say they will ask the Supreme Court to decide. The high court has yet to respond to a request by many of the same companies to review a similar ruling in Baltimore’s climate liability suit.
The California stay is in effect for 90 days and will be extended if the Supreme Court agrees to review the case. If not, the case will be immediately moved to state court.
The Supreme Court will decide in the fall whether it will accept the companies’ petition in the Baltimore case. In order for a review to be granted, four of the court’s nine justices must vote to accept the case.