Supreme Court hears dispute over court arenas for climate emissions cases
The US Supreme Court heard arguments Jan. 19 in which oil and gas companies and the Justice Department tried to get a climate change lawsuit pulled into federal courts while the city of Baltimore tried to keep the case in Maryland state courts.
BP PLC v. Mayor and City Council of Baltimore hinged on interpretation of a federal law written to minimize—but with exceptions—the shifting of cases from state to federal courts. Because of the legalistic obscurities, questions from Supreme Court justices mostly did not give away their opinions.
As things now stand, a ruling by the US Court of Appeal for the Fourth Circuit has agreed with a federal district court on keeping the case in state courts. The venues of many other similar cases may hinge on this case.
“As you are aware, there are some 20 of these cases pending nationwide in courts around the country, and, indeed, there are a number of ... petitions in follow-on cases that are currently pending before this court,” attorney Kannon Shanmugam told the Supreme Court, where he spoke on behalf of the companies.
The 12 oil and gas companies that brought the case to the Supreme Court want the fight to be resolved on the basis of federal law and regulation and would prefer the court determine the applicability of federal common law.
Petitioners are BP PLC, Chevron Corp., CITGO Petroleum Corp., CNX Resources Corp., ConocoPhillips Co., CONSOL Energy Inc., Crown Central LLC, Exxon Mobil Corp., Hess Corp., Marathon Petroleum Corp., Phillips 66 Co., and Royal Dutch Shell PLC.
State or Federal
“This court, for more than a century, has applied federal common law to claims seeking redress for interstate pollution, including most notably in AEP with regard to very similar nuisance claims alleging injury from global climate change,” Shanmugam told the court.
His “AEP” reference was to a 2011 case, American Electric Power Co. v. Connecticut, in which the Supreme Court appeared to accept federal common law as a potential avenue for climate emission lawsuits but then ruled that the Clean Air Act overrode and displaced federal common law in that particular case.
Shanmugam argued for the value of a Supreme Court ruling that could affirm federal common law is the appropriate starting place for arguments over the impacts of interstate and global emissions.
The government attorney agreed. “We do think that Respondent's claims are inherently federal in nature,” said Brinton Lucas of the Justice Department.
Lucas said the case “depends on alleged injuries to the City of Baltimore caused by emissions from all over the world, and those emissions just can't be subjected to potentially conflicting regulations by every state and city affected by global warming.”
Beyond oil and gas
Victor Sher, attorney for Baltimore, warned of implications that go beyond the oil and gas industry and greenhouse gas emissions.
An effort to shift a case from state to federal courts “has become a tactic of defendants in a wide range of cases, including environmental regulation, opioids, sub-prime lending in financial institutions and others,” Sher said.
“Big cases involving large companies and important interests frequently bump up against federal interests, and the issue here is whether there's a federal officer connection, which in this case there is not,” Sher said.
The “federal officer” connection is key to the case because of a federal law limiting many cases to state court but with an exception for cases involving federal officer authority.
The oil and gas companies have asserted that there is a federal officer connection because their exploration and production work is regulated by federal officers.
Sher also argued that the case was more appropriate in state courts because of Baltimore’s focus not only on the harm from greenhouse gas emissions but on whether companies misrepresented the potential consequences of their emissions.
“The conduct complained of is fraud, deception, denial, and disinformation—and that those are traditional state foci and traditional state remedies,” Sher said.