By Karen Savage
U.S. Supreme Court justices appeared skeptical of fossil fuel industry arguments in a hearing on Tuesday on an appeal that could determine whether a wave of climate change-related lawsuits filed against the industry by municipalities across the country will be heard in state or federal courts.
The high court had agreed to decide on a legal technicality about the scope of appellate review in a case filed by Baltimore against ExxonMobil, Chevron, Shell, BP and nearly two dozen other fossil fuel companies in Maryland state court in 2018. The justices appear to have brushed off a request by the fossil fuel companies to expand its review to consider whether Baltimore’s case and more than two dozen others like it should be heard in federal court.
The arguments revolved around a little known law—the Federal Officer Removal Statute—that the industry is using to claim it was acting as an officer of the federal government because some of its oil production is on land leased from the federal government. It’s an argument that multiple appeals courts have rejected, but the fossil fuel industry wants the Supreme Court to not only allow it, but use it to make more of its arguments subject to appellate review.
“We believe that the plain language of [the statute] resolves the question presented and really does permit in an appellate court to review the entirety of a remand order where the ground for removal was the federal officer removal statute,” Kannon Shanmugam, an Exxon attorney with Paul Weiss Rifkind Wharton & Garrison who argued on behalf of the fossil fuel companies, told the court.
Justice Clarence Thomas questioned whether the companies’ reasoning would result in parties “smuggling” otherwise unreviewable arguments into appellate court reviews. Justice Steven Breyer similarly reasoned that the companies’ interpretation of the statute could result in a flood of appeals.
“Parties will appeal on everything—and that means added time, added delay,” Breyer said.
The matter will be decided later this year by eight of the justices. Justice Samuel Alito, who owns stock in ConocoPhillips and Phillips 66, recused himself from the case. Justice Amy Coney Barrett—whose father was a lawyer for Shell for decades, potentially working on some of the company’s federal lease agreements at the center of Tuesday’s arguments—did not recuse. Barrett’s father also held leadership positions with the American Petroleum Institute (API).[Read more…]