By Karen Savage
The First Circuit Court of Appeals ruled that state court is the proper venue to hear Rhode Island’s climate liability lawsuit against Exxon, BP, Shell, Chevron, and ConocoPhillips, another setback for the industry that continually seeks to have these cases heard in federal court.
The appellate court agreed with the Fourth, Ninth, and Tenth circuits about state court jurisdiction in similar cases. All have upheld lower court rulings and sent similar lawsuits filed by Baltimore and communities in California and Colorado respectively to state court.
That makes this the fourth in a string of defeats for the fossil fuel companies, which believe they have a better chance of getting them dismissed in federal courts, which have traditionally ruled that climate-related issues should be tackled by the executive and legislative branches and not the courts.
Like the other appellate courts, the Fourth Circuit rejected the companies’ contention that the case belongs in federal court under the Federal Officer Removal Statute, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official.
“There is simply no nexus between anything for which Rhode Island seeks damages and anything the oil companies allegedly did at the behest of a federal officer,” Judge O. Rogeriee Thompson wrote in the ruling.
Thompson, along with Judge Jeffrey R. Howard and Judge Juan R. Torruella heard oral arguments last month. Torruella did not did not participate in the opinion.
As has been the case in other climate change-related cases, the companies presented several other arguments for having Rhode Island’s case heard in federal court. Both parties agreed that if presented alone, those arguments would be unreviewable by the appellate court, however the fossil fuel companies contend that they are eligible for review when presented along with the federal officer removal argument.
The Supreme Court has agreed to review that issue in Baltimore’s case, but the First Circuit, like the other appellate courts, rejected it without waiting for the SCOTUS ruling.
“After careful consideration, we conclude that [the law] permits our review of remand orders only to the extent that the defendant’s grounds for removal are federal-officer jurisdiction … and we conclude the allegations in Rhode Island’s state court complaint do not give rise to federal-officer jurisdiction. Having jurisdiction to review no more than that question, we affirm the district court’s remand order,” Thompson wrote, adding that the court was awarding costs associated with the appeal to Rhode Island.
The state filed suit against the companies in 2018, alleging they knowingly contributed to climate change but failed to warn Rhode Island citizens about the risks posed by their products. The suit makes claims of public nuisance, strict liability for failure to warn, strict liability for design defect, negligent design defect, negligent failure to warn, trespass, impairment of public trust resources, and violations of the State Environmental Rights Act.
“Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change,” Thompson wrote in her summary of Rhode Island’s claims, pointing out that the tiny state is currently grappling with the effects of climate change.
“And those effects are no joke. Most Rhode Island cities and towns are below the floodplain and New England as a whole is losing ground to the ocean at a rate three to four times faster than the global average (and Rhode Island is hardly big enough to sacrifice so much of its land).”