While this week the confirmation of Judge Amy Coney Barrett begins in earnest before the Senate Judiciary Committee, last week the U.S. Supreme Court granted BP’s petition for a writ of certiorari in BP P.L.C. v. Mayor and City Council of Baltimore, a much watched climate change case.
In 2017, a number of state and local governments began filing lawsuits in state courts against various energy companies, alleging that the companies’ worldwide extraction, production, sale, and promotion of fossil fuels had caused injury by contributing to global climate change, even though most of the fossil fuel companies were nonresidents of the states where the cases were filed.
Those lawsuits primarily assert that the extraction, production, sale, and promotion of fossil fuels constitute a public nuisance and give rise to product liability under state common law and state consumer protection statutes; the plaintiffs are seeking relief largely in the form of compensatory and punitive damages. The defendant energy companies removed nearly all of those lawsuits to federal court.
In this case, the defendants are 21 domestic and foreign energy companies. The plaintiff is the municipal government of Baltimore, Maryland. Like a number of other state and local governments, Baltimore City filed this action against energy companies in Maryland state court, seeking to recover damages under state law for harms that it claims it has sustained and will sustain due to global climate change. As in other similar cases, the energy companies removed this case to federal court, asserting multiple grounds for removal. The district court remanded the case to state court, and on appeal the federal appellate court agreed (although such was inconsistent with other federal appeals courts), and energy companies filed this petition with the Supreme Court.
On the face of the pleadings, this case is narrowly about procedure in appellate court jurisdiction,
Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court when the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.
And while a federal court of appeals ordinarily lacks jurisdiction to review a district court’s order remanding a removed case to state court, other federal courts of appeal have found there is authority for this appellate review, but moreover this is a case about climate change of national, if not global import, that many believe should not be decided in a Baltimore City Circuit Court courtroom.
Appreciate there are real differences in Maryland and federal law, both procedural and substantive, that may impact the outcome of these disputes. The consensus of environmental attorneys is if this case is heard in federal court such is not only all but certainly a victory for the energy companies, but also a victory for science.
The Supreme Court in a unanimous opinion written by Justice Ruth Bader Ginsburg in 2011 in American Electric Power Co., Inc. v, Connecticut, held
The Clean Air Act and EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”
Baltimore and the other state and local governments are ignoring this settled law about claims for climate change and attempting to end run this precedent by suing in state courts.
Additionally, I wrote about a key procedural matter in a recent blog post,
If courts exclude scientific evidence from a jury only because people generally agree some other way, .. think for example excluding evidence in the pending lawsuit for damages from climate change brought by Baltimore City pending in the Maryland courts because one side’s scientific experts are called “climate change deniers,” offering junk science counterposed to “sound science,” .. courts risk being the next vehicle in the car wreck of confidence the public has in scientists.
The possible importance of this case in articulating the nature of applying science in the making of public policy should not be underestimated. A state court bench is simply not a good substitute for a laboratory bench in application of the scientific method.
It is widely suggested officials in Baltimore, a city notorious for its significantly high crime rate, including a murder rate that regularly tops the nation, are wrong and out of their element when they describe their prosecution of this case in apocalyptic terms. Rather the real dispute is not about whether the world is warming or the relative impact of man on the planet, but the costs to society of particular remedies and the efficacy of those remedies versus that money being spent improving the quality of life for earth’s inhabitants; not matters a Baltimore City Circuit Court judge is particularly well suited to resolve. As the Supreme Court has already determined matters of climate change are the purview of EPA and not a trial court judge.
It should be fun to watch BP P.L.C. v. Mayor and City Council of Baltimore, docket no. 19-1189, which is set for argument on January 19, 2021 (.. yes the day before Inauguration Day), with a decision expected by June.