By Karen Savage
Fossil fuel companies want the Supreme Court to decide the crucial question of jurisdiction over climate lawsuits filed by nearly two dozen municipalities across the country: whether they belong in federal court, where the industry wants them, or in state courts where they were filed.
The Supreme Court has already agreed to review a procedural question in Baltimore’s climate liability suit when it granted a petition from ExxonMobil, Chevron, Shell, BP and nearly two dozen other companies that would impact federal vs. state jurisdiction.
Now the companies want the high court to expand its review.
“Given the number of climate-change cases pending across the nation, the court should confirm that this case and others like it were properly removed to federal court on the ground that federal common law necessarily governs claims alleging injury based on the contribution of interstate and international emissions to global climate change,” the companies wrote in a brief filed Monday.
Baltimore first filed suit in Maryland state court in 2018, alleging that the fossil fuel 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 moved the case to federal court, where they believe they have a better chance of shaking it, based on federal precedent. Both the U.S. District Court and the Fourth Circuit Court of Appeals decided in the city’s favor and ordered the case to state court.
In its ruling, the Fourth Circuit reviewed only the issue of federal officer removal—whether the companies, as they claim, were acting as “federal officers” because they operated with leases issued by the federal government, thus exempting them from state laws. The appeals court declined to consider the energy companies’ other arguments, which it said are not eligible for review. The companies argue that because those arguments were presented along with the federal officer removal argument—which is eligible for appellate review—they too should have been reviewed.
“The court of appeals erred by holding that it lacked jurisdiction to review any of petitioners’ grounds for removal other than the federal-officer ground,” the companies told the court, urging the high court to “address the remaining grounds for removal and reverse the judgment below.”
Alternately, the companies want the court to vacate the appellate court’s ruling and direct it to review all of their arguments.
“Our response in court will be our full comment on the matter,” Dana P. Moore, Baltimore’s acting city solicitor, said in a statement.
An Exxon spokesperson referred to the brief for comments from the company. The other defendants did not immediately reply to a request for comment.
The First, Ninth, and Tenth circuits have upheld similar lower court rulings that the various cases belong in state courts and, like the Fourth Circuit, have determined that the companies’ other arguments are not eligible for review.