By Karen Savage
Exxon, Shell, Chevron, BP and more than a dozen other fossil fuel companies say a climate liability lawsuit against them by Maui County belongs in federal court.
Maui County filed the suit last month in state court and, following the pattern they have used in dozens of other similar lawsuits, industry attorneys filed a removal notice in U.S. District Court. Chevron, representing all of the defendants, said the case involves federal issues and should be heard in federal court.
The companies recycled many of the same arguments they have used in previous attempts to get the other climate change-related lawsuits filed against them by municipalities across the country heard in federal court, where they think they have a better chance of getting them dismissed.
Thus far, those arguments have failed.
Several federal courts have determined that the cases belong in state courts, where most have been filed. The lower court rulings have been upheld by the Fourth, Ninth and Tenth Circuit Courts, as well as by the First Circuit, which last month ordered the companies to reimburse Rhode Island for costs associated with their appeal.
The U.S. Supreme Court has agreed to review a technicality related to whether the Fourth Circuit properly reviewed a lower court ruling that Baltiore’s case belongs in state court. The high court will not consider the merits of the jurisdictional arguments or the merits of the allegations, but the outcome could determine where all of the cases will be heard.
The companies say Maui County is seeking to “overturn decades of federal energy policy and threatens the reliable, affordable supply of energy on which this country, and the world, depends.”
The county’s suit includes state law claims of public and private nuisance, strict liability for failure to warn, negligent failure to warn and trespass and seeks compensation for local harm. It does not seek to regulate the companies or to determine federal energy policy.
Maui County’s next step will likely be to ask the federal court to move the case back to state court. If the court agrees, the fossil fuel companies could ask for appellate review, however that could be a long shot. The Ninth Circuit has already affirmed a federal court ruling that a similar case filed by six California municipalities belongs in state court.