Last week, the U.S. Supreme Court announced it will hear oral arguments on January 19, 2021 in its review of the Fourth Circuit Court of Appeals’ decision remanding Baltimore’s climate change lawsuit against major energy producers to state court. Since the high court initially decided to take up the case in October, the nation’s leading government officials, trade associations, and legal organizations have submitted amicus briefs in support of the energy companies’ position that the case should be heard at the federal – not state – level.

As EID Climate previously reported, SCOTUS will be weighing in on the scope of appellate review – in particular, whether an appellate court can review any issue in a trial court’s remand order when the case had been removed in part under the federal-officer removal statute (more on what that is here), or if its review is limited solely to the federal officer removal grounds. The Supreme Court’s decision in this matter will help decide whether more than 20 similar climate lawsuits filed around the country should be heard in state or federal court. The plaintiffs have fought to keep these cases in state court, believing they have a better shot at success in those venues. Meanwhile, the defendant energy companies have argued that the cases should be heard in federal court where the legal precedent is much more favorable.

Therefore, a decision that sends these cases to federal court could deliver a fatal blow to the entire climate litigation campaign. As the Washington Post stated, “Should the Supreme Court rule in favor of the oil companies, it may make it harder for cities and states to secure victory in the climate cases.”

Here are highlights from some of the ten amicus briefs filed in support of the energy companies before the Supreme Court:

  1. The U.S. DOJ Argues Baltimore Didn’t Make a “Persuasive Defense” for Limiting Appellate Review

In its amicus brief filed on November 23rd, the U.S. Department of Justice told the Supreme Court that the federal government has a “significant interest” in the scope of appellate courts’ review of lower court decisions when rulings concern whether cases were properly removed to federal court. The DOJ argued that neither Baltimore nor the Fourth Circuit made a “persuasive defense” as to why appellate review in Baltimore’s case should be limited to solely the federal officer removal statute. The DOJ continued, also arguing that Supreme Court precedent supports the companies’ position that the trial court’s entire remand order is reviewable:

“This court has repeatedly held that when a court of appeals reviews an ‘order’ pursuant to other statutes, it may address any issue fairly included within the ‘order,’ not just the portion of the order that triggered appellate jurisdiction.”

  1. 13 State Attorneys General Argue Climate Lawsuits in State Courts Would Create “Significant Conflict with Federal Policy”

In another amicus brief, state attorneys general from Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, South Carolina, Texas and Utah argued to the Supreme Court that if climate lawsuits proceed in state – rather than federal – courts, major conflicts with federal government policy could emerge:

State courts have no business deciding how global climate change should be addressed and who—among all the countless actors around the world whose conduct contributes to it—bears legal responsibility for creating it. In addition to the obvious potential for gross unfairness, such state-court-created common law rules would inevitably ‘present a “significant conflict” with federal policy.’ Among many other problems, state-common-law rules would undermine the regulatory authority States themselves have under carefully calibrated cooperative-federalism programs—programs that are administered by politically accountable officials at the federal, state, and local levels.” (emphasis added)

The officials also warned that state court decisions could lead to a “patch of conflicting standards”:

“Baltimore is not alone in urging its state courts to impose judicially created regulations on the worldwide production of fossil fuels. Many other jurisdictions have filed similar public-nuisance claims urging state courts to hold fossil fuel companies liable for the costs of global climate change. Chances are that courts in at least some of these actions will be receptive to the claims, which will ultimately lead to a patchwork of conflicting standards purporting to create liability for the same extraterritorial conduct. Ultimately, therefore, all this and other similar lawsuits have to offer is regulatory chaos. Any worldwide allocation of responsibility for remediation of climate change requires national or international action, not ad hoc intervention by individual state courts acting at the behest of a handful of local governments.” (emphasis added)

  1. API Says That Energy Companies Were Right to Argue Under Federal Officer Removal Statute

In its amicus brief, the American Petroleum Institute argued that the defendant energy companies in Baltimore’s lawsuit “had a sound basis for removing this case under the federal-officer removal statute”:

To ensure that the federal interests embodied in the federal common law on ‘transboundary pollution’ are adequately protected, a federal court of appeals must be able to consider the  relevance of federal common law in determining whether a case should stay in federal court, especially when that case presents both substantial actions taken by those ‘acting under’ a federal officer and claims that such actions led to an environmental tort crossing state lines.

  1. The NAM Says That Energy Is A National Issue, Effects All Areas Of The Economy

The National Association of Manufacturers, which has been among the biggest supporters of energy companies targeted by the climate litigation campaign because of the industry’s crucial role in the modern economy, highlighted the fact that energy production and consumption is a national matter:

Regardless of where the cases are filed or how the claims are fashioned, the subject matter and remedies sought are still inherently national, as well as legislative and regulatory in nature. The policy this litigation seeks to drive through state courts impact a multitude of national interests including energy independence, stability of America’s electric grid, and affordability for families and businesses across the country, in addition to climate impacts. Such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws.” (emphasis added)

The NAM also noted the political nature of these lawsuits and how they seek to attribute climate change effects to a single industry or even a specific company when the reality is all of society is a contributor:

“… the ever-changing list of companies named in this litigation—including among the recently filed cases—underscores the political nature of each lawsuit. Some localities are seeking to blame only one or two fossil fuel producers for their alleged climate-related injuries; others are targeting dozens of disparate companies, various energy manufacturers and gas stations, under a large Cuisinart of liability. The truth, as the Court observed in AEP, is that GHGs are not particular to any industry, but a by-product of modern society.” (emphasis added)

  1. Retired Military Leaders Underscore Energy’s Importance To National Security

Retired U.S. Air Force General Richard B. Myers and retired U.S. Navy Admiral Michael G. Mullen pointed to the federal officer question and the fact that fossil fuels support the national defense:

When [Baltimore’s] Complaint is viewed within the historical context of the Federal Government’s pervasive control and direction of oil and gas production, it is clear that [Baltimore’s] claims arise under federal law. Respondent seeks to hold [the energy companies] liable for actions taken under the direction of federal officers in pursuit of Federal Government policies to secure the national defense by developing fossil fuel resources. This is more than sufficient to permit removal of this case from state to federal court.” (emphasis added)

Conclusion

There is widespread support for a strong and responsible oil and natural gas industry in the United States, as shown by the amicus briefs filed by federal and state government officials, trade associations, former military leaders and legal foundations in support of the industry in Baltimore’s climate lawsuit. They have urged SCOTUS to allow for the 4th Circuit to consider the Maryland trial court’s full remand order as the energy market impacts everything from interstate commerce to national security. These lawsuits, if successful, would have a significant impact on those issues and several in between, underscoring just how high the stakes are in this case.