Similar to petitions filed by energy producers in climate change lawsuits brought by Boulder, San Mateo County, Baltimore and Rhode Island, the companies are asking the U.S. Supreme Court to address the question of jurisdiction, this time challenging an appellate court decision that reviewed Oakland and San Francisco’s cases. In addition to requesting the high court’s guidance on two technical matters, the companies stressed the significant implications of the cases to the justices:

“Before state courts across the nation set about deciding whether worldwide fossil-fuel production is unlawful—and thus whether a vital sector of the economy must be shuttered or remade—this Court should first decide whether these cases are in the right forum and governed by the right law.”

The petition, which was filed in early January but only docketed last week, requests review of a decision from the U.S. Court of Appeals for the Ninth Circuit that brought Oakland and San Francisco’s climate lawsuits against energy producers back to life in May 2020. It marks the latest petition brought by the companies contesting appellate court rulings over the last year; the Supreme Court heard oral argument in Baltimore’s own climate change case – the most advanced appeal – in mid-January.

The Questions at Hand

In this petition, the companies ask SCOTUS to review two questions that will determine whether San Francisco and Oakland’s lawsuits belong in state or federal court.

The first question focuses on the Ninth Circuit’s rejection of federal common-law jurisdiction. A three-judge panel found last May that the cities’ public nuisance claims did not present a “substantial question of federal law”, overturning U.S. District Judge William Alsup’s 2018 dismissal of the cases.

In their petition, however, the companies explain that the harms claimed by Oakland and San Francisco result from interstate and global pollution, and the Supreme Court has “made very clear that interstate pollution is one of the few areas that, given the constitutional structure, must be governed by federal law to the exclusion of state law”:

“…the [Ninth Circuit] concluded that the cities’ tort claims alleging harm from interstate and global pollution implicated no substantial federal-law questions. But as this Court has explained, the Constitution’s federal structure requires that claims in a few narrow areas be governed exclusively by uniform federal rules of decision. And interstate pollution is ‘undoubtedly’ such an area.” (emphasis added)

This argument reiterates one of the reasons why Judge Alsup dismissed the cases back in 2018, stating in his ruling:

“It is manifest that global warming would have continued in the absence of all California-related activities of defendants. Plaintiffs have therefore failed to adequately link each defendants’ alleged California activities to plaintiffs’ harm.” (emphasis added)

The second issue at hand is that the Ninth Circuit deepened a split among other courts of appeals throughout the country by allowing San Francisco and Oakland to challenge the removal of their cases even after they amended their complaint to include federal claims and litigated those claims to judgement.

For context, in 2018, Judge Alsup denied a motion filed by the cities to remand their cases back to state court, ruling that their claims were “necessarily governed by federal common law.” This was because the issues they raise were interstate in nature and, as such, should be resolved under a uniform federal standard. The cities then amended their complaints to add a federal nuisance claim, but Judge Alsup dismissed them, finding that they would have required foreign and domestic policy decisions that were outside of his court’s purview.

In their Supreme Court petition, the companies argue – with the support of concurring decisions by three courts of appeals – that plaintiffs waive the right to contest removal on appeal if they added federal claims and litigated the case to judgment in federal court. The Second Circuit, for example, has said that if a plaintiff voluntarily amends the complaint to allege federal claims, “we will not remand for want of jurisdiction.” And as the companies explain, the Ninth Circuit’s position on the issue “wastes resources and encourages gamesmanship”:

“Under this rule, a plaintiff ‘would be in a position where if he won his case on the merits in federal court he could claim to have raised the federal question in his amended complaint voluntarily, and if he lost he could claim to have raised it involuntarily and to be entitled to start over in state court.’”

A Time for Choosing

In their petition, the companies urge the Supreme Court to take up the cases as soon as possible, writing that their importance “supports review now.” Quoting Judge Alsup’s opinion, which characterized the plaintiffs’ main legal theory as “breathtaking” in scope, the companies argue to the Court that allowing Oakland and San Francisco’s cases — and the many similar municipal-led climate lawsuits similar to them — to continue in state court could result in a wave of frivolous litigation and conflicting state level rulings, which could have potentially crippling impacts on the energy industry and American economy:

“On the cities’ view, any party affected by climate change could sue—in state court, under state law— ‘anyone who supplied fossil fuels with knowledge of’ climate change. Id. A patchwork of conflicting state-law tort rules would inevitably result. And while this particular case was filed in California, it seeks recovery based not only on the companies’ production and sales there, but on all production and sales across the nation and ‘worldwide.’” (emphasis added)

The energy producers have also encouraged the Supreme Court to cut through the procedural issues at hand and consider the greater risks posed by climate litigation targeting the industry overall:

“The Court should not wait for a state trial court to decide a public nuisance claim based on global climate change and then for the state appellate courts to review its judgment before determining whether these many cases belong in federal or state court. Throughout that process, the specter of liability and the harm caused by persistent uncertainty will hang over the energy industry and the economy. And the political branches’ ongoing international climate-change efforts will be disrupted or stymied. Nor is a trial needed to see that this issue is not fit for regulation-by-litigation, let alone under multiple, varying state tort standards. Climate change calls for uniform national and international standards.” (emphasis added)

The Petitions Pile Up

With this filing, the San Francisco and Oakland cases become the fifth petitioned to the Supreme Court for review; previous ones have challenged appellate court decisions from the Fourth, Ninth, Tenth and First Circuits that affirmed district court decisions remanding lawsuits brought by Baltimore, San Mateo County, Boulder and Rhode Island, respectively.

In mid-January, the high court heard oral argument in its review of Baltimore’s case, which features the same argument that the case was properly removed from state to federal court because the city’s claims necessarily arise under federal common law. In their recently filed petition, the companies argue that the Supreme Court should address the argument in its consideration of Baltimore’s case, but if it doesn’t, “it should do so here”:

“Indeed, as the Baltimore petitioners explained, the Court should hold that Baltimore’s claims were properly removed because (as here) they necessarily rise under federal law. But if the Court does not reach that question in Baltimore, it should do so here.”

A Supreme Court judgement in San Francisco and Oakland’s cases could also impact other climate change lawsuits pending in the Ninth Circuit, including those brought by King County, WA and the Pacific Coast Federation of Fisherman’s Associations.

Determining the proper home for these lawsuits is crucial, as they directly implicate federal and global policy questions related to climate change; should the cases ultimately land in state court, they could result in what Judge Alsup called a “patchwork of fifty different answers to the same fundamental global issue.” And it’s important to remember that as these cases slog through the courts, America’s energy industry is leading the way in addressing climate change, while some to choose to devote time and resources on climate lawsuits that will not move the needle on climate change.