By Karen Savage
With two appellate courts recently ruling that climate liability suits belong in state court, the lingering question is what comes next for the fossil fuel companies, which still desperately want the cases in federal court.
Attorneys for ExxonMobil, Chevron, Shell, BP and nearly two dozen other fossil fuel companies have already asked the U.S. Supreme Court to review a March ruling by the Fourth Circuit Court of Appeals that Baltimore’s lawsuit against them belongs in state court, where it was filed in 2018.
The companies asked the high court to weigh in on whether the law “permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the re-moving defendant premised removal in part on the federal-officer removal statute.” The court has not yet said whether it will review the case.
Similarly, the Ninth Circuit Court of Appeals ruled last month that cases filed against many of the same companies by the California cities of Imperial Beach, Richmond and Santa Cruz, as well as the counties of Marin, San Mateo, and Santa Cruz also belong in state court.
In both instances, the appellate courts reviewed—and rejected—only the companies’ argument that the case belongs in federal court because of the federal officer removal statute, which gives federal courts jurisdiction over civil actions directed at the United States or any federal official. The companies argued that because they sold or extracted fossil fuels under government contract, they operated as federal officers. They also contend that the appellate courts should have reviewed all of their arguments for keeping the cases in federal court, not just the issue of federal officer removal.