By Karen Savage
The Supreme Court has never authorized broad appellate court review of jurisdictional rulings by lower courts and—despite arguments presented by several fossil fuel companies attempting to duck a climate liability suit filed against them by Baltimore—that shouldn’t change, the city said in a new brief to the court.
The high court agreed in October to review a procedural question in the case when it granted a petition from ExxonMobil, Chevron, Shell, BP and nearly two dozen other companies. It said it would weigh in on a ruling by the Fourth Circuit that the case belongs in state court, where it was filed in 2018.
In a brief filed Wednesday, Baltimore said the appellate court ruled correctly.
After the Supreme Court agreed to hear the case, the fossil fuel companies asked it to expand the review to include rulings by the First, Ninth, and Tenth circuits, which have all sent similar climate cases to state courts. The companies want the high court to rule that climate change-related suits filed against the industry by nearly two dozen municipalities across the country belong in federal court.
Baltimore rejects that notion.
“The petition raised a single question presented,” attorneys for Baltimore wrote, adding that in their initial petition to the court, the fossil fuel companies “represented that ‘as it comes to the court, this case presents only that question.’”
Ultimately, the Supreme Court’s ruling could affect whether climate suits filed since 2017 will be heard in state court, where nearly all have been filed, or in federal court, where the companies think they have a better chance of getting them dismissed.
Fossil fuel companies contend that because they sold or extracted fossil fuels under government contract, they operated as federal officers. As such, they argue that under the Federal Officer Removal Statute, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official, the cases belong in federal court.
Several district courts have rejected that contention, as well as the companies’ other arguments for federal jurisdiction.
In Baltimore’s case, the Fourth Circuit affirmed the lower court’s ruling, but reviewed only the companies’ federal officer removal argument, which it rejected. Like First, Ninth, and Tenth circuits, it declined to consider the energy companies’ other arguments, which it said it is not authorized to review.
The other arguments are not eligible for appellate review 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.
“This Court has never declared that appellate review of a district court order necessarily entails review of all issues addressed in the order,” attorneys for Baltimore wrote, adding that to do so would “encourage jurisdictional gamesmanship.”
“A defendant could use a meritless assertion of federal-officer or civil-rights jurisdiction to obtain appellate review, as of right, of every otherwise unreviewable removal theory rejected by the district court,” Baltimore’s attorneys told the court. “The perverse incentives created by petitioners’ construction cannot be prevented by the threat of sanctions, which are rare.”
Several parties, including the U.S. Department of Justice, have filed amicus briefs in support of the companies. Briefs in support of the city are due Dec. 23.
Acting Solicitor General Jeffery B. Wall, who in 2005 clerked for Supreme Court Justice Clarence Thomas, has asked the court for permission to participate in oral arguments, which are scheduled for Jan. 19.