By Karen Savage
Several fossil fuel giants want the U.S. Supreme Court to make its upcoming review of climate cases applicable to a wider range of those cases, filing briefs urging the court to include cases filed by Rhode Island and several California communities.
The companies—Exxon, Chevron, Shell, BP, ConocoPhillips, Marathon and several other energy companies—last week petitioned the high court, asking it to reverse rulings by the First and Ninth Circuits that have sent those cases back to state court.
The high court has already granted review of a lower court’s decision to place the Baltimore case in state court and oral arguments are scheduled for Jan. 19. The companies are asking the court to hold the new petitions pending that ruling and then dispose of them “in a manner consistent with its decision in that case.” In other words, the companies hope the court sends all of the similar cases filed around the country to federal court, where they believe they will be dismissed.
The newest petitions, which were spearheaded by Chevron attorney Ted Boutrous, a partner with Gibson, Dunn & Crutcher, mirror a similar request made by Exxon and Suncor last month in a case filed by communities in Colorado.
The companies’ Colorado, California and Rhode Island petitions all involve the same technical, legal question they presented in a case filed against many of the same companies by Baltimore.
This is the latest round of a pitched battle over whether dozens of cases filed across the country will be heard in state court, where they were filed alleging state law violations, or in federal court, where companies think they have a better chance of shaking them. The companies moved all of the cases to federal courts shortly after they were filed and contend that appellate courts erred when they upheld lower court rulings that they belong in state courts.
The companies argue that errors by the circuit courts “led the court to disregard substantial grounds for removal,” resulting in the remand of the cases “that address issues of national—and international—energy and environmental policy.”
The companies maintain that if the decisions—which were rendered by the First, Fourth, Ninth and Tenth Circuit—aren’t reversed, they “will be deprived of their right to have these inherently federal issues heard in federal court.”
In all of the cases, the energy companies presented several arguments for having the cases heard in federal court, including the contention that because they sold or extracted fossil fuels under government contract, they operated as federal officers and are therefore not subject to state jurisdiction.
Various federal courts have rejected all of those arguments and with the exception of the federal officer argument, all are ineligible for appellate review.
But the fossil fuel companies contend that all of the arguments are all eligible for review when presented along with the argument based on the Federal Officer Removal Statute, which is reviewable and gives federal courts jurisdiction over civil actions directed at the United States or any federal official.
Thus far, appellate courts—including the First, Fourth, Ninth, and Tenth Circuits—have sided with the municipalities, rejecting that logic and upholding federal court rulings that the cases belong in state court.