The 4th Circuit Court of Appeals will hear arguments tomorrow in the City of Baltimore’s climate lawsuit on whether the case should be heard in federal or state court.

The hearing is prompted by a U.S. Supreme Court ruling last year, which said appellate courts must review all of the energy companies’ grounds for removal in climate lawsuits.

Though this hearing is more about jurisdictional arguments, it once again shines a light on the extensive coordination powering the climate litigation campaign, including the support from activist academics and a San Francisco-based plaintiffs’ firm that’s representing cases like Baltimore’s across the country.

Here’s what you need to know ahead of the hearing:

SCOTUS Setback for Plaintiffs

Last May the U.S. Supreme Court took up Baltimore’s case after energy companies asked the Court to resolve the question of whether circuit courts should consider all arguments for why the case belongs in federal court – not just the federal officer removal statute.

In a 7-1 ruling, SCOTUS ruled in favor of the companies, setting the precedent that appellate courts must review all grounds for removal before deciding whether a case should be held in federal or state court and dealing a major setback to the plaintiffs, who want these cases heard in state court.

That ruling is the reason for Tuesday’s hearing, where the 4th Circuit will take a more expansive review of the companies’ arguments. The court will not make any judgements on the merits of the lawsuit and will only consider the jurisdictional question at hand.

Baltimore is being represented by Sher Edling – the San Francisco-based law firm that’s serving as outside counsel for more than a dozen similar climate cases around the country.

Now Plaintiffs are Begging the Biden Administration for Help

It’s been a rough few years for the plaintiffs when it comes to the merits of climate litigation. Cases brought by San Francisco, Oakland and New York City were decisively defeated in the summer of 2018.

In 2019, the New York attorney general’s case was also tossed out.

And then in 2021, New York City’s appeal was rejected by the 2^nd Circuit.

Now, Baltimore is practically begging the Biden Administration for help. In an E&E News story about the administration’s failure to “strategically support” climate lawsuits, top city officials are making it clear they need a lot of help:

“Sara Gross, chief of the Affirmative Litigation Division at the Baltimore City Law Department, said the city would ‘certainly welcome the administration’s support’ in its efforts ‘to hold fossil fuel companies accountable…’”

Even the Center for Climate Integrity, one of the top outside activist groups supporting climate litigation, is looking for the administration to come to their aid:

“‘The president pledged that they would “strategically support” the cases, and they have failed to do that,’ said Richard Wiles, president of the Center for Climate Integrity. ‘And that’s significant. The Department of Justice is an important voice on the legal landscape, and its absence is conspicuous.’”

All the Activists Are Here

Baltimore has been counting on plenty of backing from outside activists. In September, a brief in support of the city’s case was submitted by:

• Robert Brulle – the Brown University professor and director of research for the school’s Climate Social Science Network (which receives funding from the Energy Foundation)
• The Center for Climate Integrity – one of the biggest outside groups supporting litigation, which has received funding from the Rockefeller Family Fund and the Children’s Investment Fund Foundation – a British organization.
• The Chesapeake Climate Action Network – the group that teamed up with CCI to recruit Anne Arundel and Annapolis before that.
• Benjamin Franta – the Stanford researcher who’s a “consulting expert for climate change litigation” and is featured on Sher Edling’s website.
• Naomi Oreskes – the Harvard researcher who “conceived” of the infamous La Jolla gathering in 2012 and who is on retainer with Sher Edling.
• Geoffrey Supran – Oreskes’ fellow Harvard researcher and co-author of flawed research against the industry that was funded by the Rockefeller Family Foundation.
• Union of Concerned Scientists – another co-host of the La Jolla meeting and funder of the so-called “climate attribution science” that was designed specifically for supporting litigation.

The plaintiffs continue to rely on support from academics and organizations that have been placed on the payroll to support this deeply flawed climate litigation campaign.

Why Take This Route?

Baltimore’s justification for its lawsuit is that it needs funding for climate change mitigation. But why is the city wasting time and money on a costly lawsuit that will take many years to resolve?

If this is really about adapting to and mitigating the effects of climate change, why is the city seeking out the ample funding that is immediately available?

Just last week, the White House announced it is designating funding from the bipartisan infrastructure bill on such climate measures:

“Recognizing the vital role of modern, resilient infrastructure in reducing costs for American families and businesses, President Biden secured unprecedented investments through the Bipartisan Infrastructure Law for the U.S. Army Corps of Engineers to increase climate resilience and make long overdue improvements at ports and waterways, as well as additional funds through supplemental appropriations to help impacted states and Tribes recover and become more resilient to natural disasters. Today, the Biden-Harris Administration is announcing that it will invest more than $14 billion of this funding in fiscal year 2022 for over 500 projects across 52 states and territories.”