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Big Oil Seeks Supreme Court Ruling to Derail Climate Litigation

Nov. 16, 2020, 8:55 PM

A set of “extraordinary” claims seeking to hold the oil and gas industry liable for greenhouse gas emissions belongs in federal court, industry lawyers told the U.S. Supreme Court in a new brief that aims to undermine climate litigation across the country.

Lawyers for BP Plc, Exxon Mobil Corp., and other companies are waging a highly technical dispute against the city of Baltimore at the Supreme Court, involving the scope of appellate review for certain scuffles over state-versus-federal court venue. But in an effort to fast-track the resolution of bigger issues, they’re also calling on the high court to rule that legal claims related to interstate emissions arise exclusively under federal law.

“Those claims allege injury caused by interstate emissions, and the Court’s precedents dictate that such claims necessarily and exclusively arise under federal common law,” the industry’s legal team argued in a brief docketed Monday. “To preserve judicial resources, the Court should address that ground for removal and confirm that this case and others like it belong in federal court.”

Such a ruling from the Supreme Court would disrupt more than a dozen other cases in which state and local governments have raised climate-related claims under state common law.

Bleak Future?

The claims may face a bleak future if they’re deemed to instead arise under federal common law. High court precedent from 2011 says the Clean Air Act displaces federal common law claims related to greenhouse gas emissions.

Federal courts are seen as more favorable to industry defendants.

“Respondent’s claims also implicate important interests of the federal government,” the new brief says. “Because respondent asserts public-nuisance claims, a court adjudicating those claims will ultimately need to weigh the gravity of the harm caused by defendants’ alleged contribution to global climate change against the utility of their production of fossil-fuel products.”

Lawyers for Baltimore and other localities raising similar climate claims have maintained their arguments focus on traditional state-level issues, including public nuisance, consumer protection, and product liability.

Technical Issue

The industry defendants’ new brief also zeroed in on the procedural issue they raised at the Supreme Court in the first place.

The question the high court agreed to consider was whether appellate courts should apply a broad or narrow scope of review when considering a case in which a defendant has used “federal officer” grounds to push a case from state to federal court, but the federal court has sent it back. The federal officer argument centers around the idea that cases involving U.S. officials generally belong in federal court.

Defendants generally can’t appeal remand orders, but Congress made an exception for decisions on federal officer jurisdiction. Circuit courts disagree whether that means they should limit their review to the federal officer issue in such cases—or broaden it to look at other arguments for placing a case in federal court.

In multiple climate cases, circuit courts have applied the narrower scope of review, rejected the industry federal officer arguments, and sent cases back to state courts.

In Monday’s brief, industry lawyers argued that the U.S. Court of Appeals for the Fourth Circuit misinterpreted the law when it applied the narrow scope of review to an appeal over whether Baltimore’s climate case belongs in state or federal court.

The plain text of the relevant federal statute “demonstrates that a court of appeals has jurisdiction to review the entire remand ‘order,’ not merely particular issues or questions within the order,” the brief says. “And because the entire remand order necessarily disposes of all of the defendant’s grounds for removal, the scope of appellate review extends to each of those grounds.”

Baltimore’s response brief is due next month.

The case is BP Plc v. Mayor & City Council of Baltimore, U.S., No. 19-1189, brief filed 11/16/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editor responsible for this story: Anna Yukhananov at