A novel climate-change lawsuit brought by Baltimore in state court against energy producers seeking damages for the supposed effects of global warming should be heard in federal court, the outgoing Trump administration urged the Supreme Court.
The hearing came as the incoming administration of President Joe Biden prepares to reverse President Donald Trump’s pro-energy independence policies. Media reports indicate Biden will have the United States rejoin the 2015 Paris Agreement on climate change, in which nearly 200 countries pledged to reduce emissions claimed to contribute to global warming.
Biden also is expected to revoke the permit for the 1,200-mile Keystone XL Pipeline on his first day as president, a move that experts say will eliminate thousands of jobs.
Relying on the disputed theory of man-made global warming, Baltimore in 2018 sued an array of companies that produce so-called fossil fuels—oil, coal, and natural gas—claiming they knew that consumption of their products would lead to global warming.
Baltimore seeks compensation for various injuries, claiming that climate change has hurt the city by raising sea levels and by causing heat waves and “extreme precipitation.”
Telephonic oral argument in the case known as BP PLC v. Mayor and City Council of Baltimore lasted 75 minutes, exceeding the scheduled 60 minutes. Only eight of the nine justices participated in the hearing. Justice Samuel Alito recused himself.
The hearing centered on a jurisdictional question—as opposed to the merits of the lawsuit itself—that could reportedly affect 19 other similar cases state and local governments filed against energy providers that are pending in other courts. BP and the other energy companies that are defendants in the lawsuit want this case and others like it heard in federal court, not state court.
Under federal law, cases filed in state court can be “removed” to federal court. One of the energy companies, Chevron, had the case transferred to a U.S. district court in Maryland, citing eight separate legal grounds, including the so-called federal officer removal statute that applies when “any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.”
The companies argued that Baltimore was trying to impose liability on them for exploring and producing fuels at the direction of federal officials when they produced fuels offshore under federal leases that gave government officials a say in their operations. At Baltimore’s request, the district court transferred the lawsuit back to state court. The companies appealed and the U.S. Court of Appeals for the 4th Circuit ruled in favor of the city, court watcher Amy Howe summarized at SCOTUSblog.
Oral arguments were heard in the case on Jan. 19, the Trump administration’s last full day in office.
“I think this is a close call in this case … but there are also problems,” Justice Brett Kavanaugh told government attorney Brinton Lucas of the U.S. Department of Justice, who argued in favor of the companies, in what was the Trump administration’s final scheduled appearance before the Supreme Court.
Lucas disagreed, saying, “we don’t think that [an] ‘order remanding a case’ can really be susceptible to any ambiguity here.”
Justices Elena Kagan and Clarence Thomas expressed skepticism of Lucas’s statements.
Kagan told Lucas, “I guess I don’t understand your argument.”
Thomas told Lucas he “may or may not be right on the statutory reading of this, but … I can’t avoid the odd sense that it seems as though we are … smuggling into … appellate review … other issues that are not necessarily the issues that are front and center like federal officer.”
The lawyer for Baltimore, Kannon Shanmugam, said his client favors efficiency in judicial proceedings.
“Our rule would enable courts of appeals to resolve these appeals more efficiently where a court concludes that there is an easier ground for removal than the often fact-intensive federal-officer ground and there would be delay only in a case in which a federal court stays the state court proceedings on remand which would occur only when the court determines that a defendant is likely to succeed on its appeal.”