Amicus Brief Argues That Climate Change Tort Suits Belong – If Anywhere – In Federal, Not State, Courts

During the past several years, state and local governments around the United States have filed at least 19 state-court suits seeking to hold fossil fuel energy companies liable under state common law (such as public nuisance law) for allegedly contributing to climate change and its harmful effects. The defendant energy companies have been largely unsuccessful in removing (i.e., transferring) these suits to federal court, where nationally uniform standards and procedures apply, including for admission of expert scientific testimony.

On October 2, 2020, the Supreme Court agreed to hear BP p.l.c. v. Mayor & City Council of Baltimore, No. 19-1989, one such climate change tort suit. The Court’s review will be limited to a relatively narrow question involving the breadth of appellate review after a suit is removed to federal court under 28 U.S.C. § 1442 on “federal officer removal” grounds, but then remanded back to state court. Although the underlying issue of climate change will not be directly addressed in the appeal, I have filed on behalf of the Atlantic Legal Foundation an amicus brief intended to enhance the Court’s perspective on the importance of removing climate change liability suits from state to federal court. The brief argues that federal courts, not state courts, are the appropriate forum for determining whether climate change tort claims are justiciable, and if they are, whether federal statutes and regulations nonetheless preclude them from being litigated.

Issue Areas: Civil Justice, Free Enterprise, Climate Change

Case: BP, p.l.c. v. Mayor and City Council of Baltimore, No. 19-1189 (Sup. Ct.) (merits stage)

Question Presented: Whether appellate review under 28 U.S.C. § 1447(d) is limited to the grounds for federal officer removal even though additional grounds for removal have been asserted.

Background: Baltimore claims that it has suffered climate change-related harms such as an increase in sea levels, storms, floods heat-waves, droughts, and extreme precipitation. It filed a suit in a state court (the Circuit Court for Baltimore City) seeking money damages against numerous “fossil fuel” energy companies. Baltimore’s complaint alleges that the defendant energy companies have substantially contributed to climate change by producing, promoting, and selling fossil fuel products such as oil, natural gas, and coal. All of the causes of action in Baltimore’s complaint are pleaded as state-law claims, such as a state common law public nuisance claim.

Federal statutes allow state-court suits to be “removed” to federal district court where the federal court has federal question or diversity jurisdiction. See 28 U.S.C. § 1441. A special provision, 28 U.S.C. § 1442, also allows removal where a state-court suit is filed against “any officer of the United States (or any person acting under that officer)” (emphasis added). If following removal, a federal district court determines that the grounds for removal are invalid, it can remand the case back to state court. Such a remand order cannot be appealed to a federal court of appeals, except in narrow circumstances, including where the case was removed in whole or part on federal officer removal grounds. See 28 U.S.C. § 1447(d).

In the Baltimore case, the defendants removed the suit to a Maryland federal district court on various grounds, including, but not limited, to federal officer removal. The district court remanded the case to state court, and the defendants appealed the remand order to the U.S. Court of Appeals for the Fourth Circuit. The court of appeals affirmed the remand order, but in so doing, held that under § 1447(d), appellate jurisdiction is limited to reviewing the basis for federal officer removal, and does not extend to the additional grounds for removal, such as whether Baltimore’s state-law claims arise under federal common law. The defendants filed a petition for a writ of certiorari on the scope-of-review question. and the Supreme Court has granted the petition.

ALF’s Amicus Brief: To provide the Supreme Court with additional perspective on the context in which the scope-of-review question arises, ALF’s amicus brief, authored by Lawrence S. Ebner, argues that (i) climate-change tort claims, including those that purport to be based only on state law, unavoidably arise under, or at least implicate, federal law; (ii) federal courts are the appropriate forum for deciding whether climate change tort claims raise nonjusticiable “political questions,” i.e., questions constitutionally reserved for Congress and the Executive Branch; (iii) climate change tort claims, even if justiciable, are supplanted by federal law; and (iv) climate change tort claims conflict with interstate federalism, the principle that each of the 50 states is a coequal sovereign within the Constitution’s federal system.

Status: The case has has been scheduled for oral argument on January 19, 2021.

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Read more Atlantic Legal Foundation amicus briefs authored by Larry Ebner

Capital Appellate Advocacy founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation. 

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