Supreme Court takes appeal of Baltimore climate-change lawsuit

By Daniel Fisher

WASHINGTON (Legal Newsline) – The U.S. Supreme Court has agreed to hear an appeal of a lower-court decision sending Baltimore’s climate lawsuit back to state court, potentially resolving where the politically controversial litigation will be decided.

The high court granted certiorari in BP vs. Baltimore on the narrow question of whether the Fourth Circuit Court of Appeals should have considered all of BP’s arguments against remand to state court, instead of just the question of whether the involvement of federal officials in energy policy stripped the state court of jurisdiction.

The Supreme Court’s interest cheered the energy industry, which is facing a growing number of lawsuits by cities and states, many of them represented by private lawyers who stand to earn billions of dollars in fees if they are successful. Baltimore is represented by Sher Edling, a San Francisco law firm that has also recruited Delaware, Rhode Island and municipalities in California as clients.

The Supreme Court isn’t being asked to decide the core issue in climate litigation, which is whether these cases belong in court at all. The defendant companies, mostly oil producers but also their industry association, say the lawsuits are an attempt to end-run elected legislators who are responsible for energy policy. Federal courts in New York and California agreed, dismissing lawsuits by New York City and San Francisco.

Since then, climate activists and private lawyers have scored successes in Maryland and Colorado, winning orders sending their cases back to local courts which may view lawsuits seeking billions of dollars from out-of-state corporations more favorably. The lawsuits generally accuse oil companies of failing to tell consumers about the effects of CO2 emissions on global climate, which plaintiff lawyers say represents fraud. The lawsuits don’t seek damages for actual emissions of greenhouse gases, since that would implicate their own government clients, who use hydrocarbon fuels to heat their buildings and operate their vehicles.

Most remand orders are not appealable under federal law. There are two exceptions for questions involving federal officers and violations of federal civil rights statutes. The Fourth Circuit construed the rules narrowly to find a federal court had correctly rejected oil-industry arguments that the Baltimore case met the federal officer exception. The defendants – backed by attorneys general of more than a dozen states and the U.S. Chamber of Commerce – say appeals courts should examine all the arguments for removal.

“In granting review in the Baltimore climate change case, the Supreme Court clearly understands the need for the federal judiciary to speak with a single voice on whether this climate case and the others like it should be heard in state or federal court,” said Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, which opposes climate litigation.