By Karen Savage
The Supreme Court on Friday granted a petition from several fossil fuel companies and agreed to review a procedural question on whether Baltimore’s climate liability suit filed against them should be heard in federal or state court.
The city’s suit focuses on the fossil fuel companies’ contribution to climate change, however the high court is unlikely to address the suit’s merits. The issue being appealed simply relates to whether the complaints involved federal or state claims and what court should hear them.
“The Court has decided to review a narrow technical issue that has no bearing on the substance of Baltimore’s suit to hold these defendants accountable for the climate change harms and costs they are imposing on our taxpayers,” Baltimore Acting Solicitor Dana P. Moore said in a statement.
The city first filed suit in Maryland state court in 2018, alleging that Chevron, ExxonMobil, Shell, BP and more than a dozen other companies knew for decades that their products drive 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.
As they have in dozens of climate change-related lawsuits filed against them in recent years, the companies wanted the case to be heard in federal court, where they thought they’d have a better chance of shaking it. Both the U.S. District Court and the Fourth Circuit Court of Appeals decided in the city’s favor, which prompted the companies to appeal the issue to the Supreme Court.
The court’s acceptance of the case will also slow the progression of several similar suits, which have been paused while the companies ask the high court to weigh in.
The companies argue that because they sold or extracted fossil fuels under government contract, they operated as federal officers. As evidence, they cite the Federal Officer Removal Statute, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official.
The U.S. District Court rejected that contention, along with the companies’ other arguments. The Fourth Circuit affirmed that decision, but reviewed only the issue of federal officer removal. It declined to consider the energy companies’ other arguments, which it said it is not authorized to review.
Both parties agree that those arguments are not reviewable if presented alone, but the companies contend that because they were presented along with the federal officer removal argument—which is eligible for appellate review—they too should have been reviewed.
In their petition to the Supreme Court, the companies contend that the appellate courts are divided on the issue. While that appears to be the case in unrelated cases, the Ninth and Tenth Circuit Courts, which have reviewed similar cases filed by municipalities in California and Colorado, respectively have all ruled similarly to the Fourth Circuit.
“Four U.S. district judges and three federal appellate panels are aligned on the legal standard for the scope of review of a district court’s remand order. We look forward to a Supreme Court ruling validating that alignment,” Moore said, adding that Baltimore filed its case more than two years ago.
“In public, defendants criticize our case as without merit. But in court, they do everything they can to delay proceedings and avoid a public trial on the facts. Their days of having it both ways are ending. Accountability is coming.”
If the high court ultimately decides in the companies’ favor, they still must convince the appellate court that their other reasons are persuasive in order for the case to be heard in federal court. Thus far, no federal court has been swayed by those arguments.