Today’s arguments before the U.S. Supreme Court in the City of Baltimore’s climate litigation case went as both parties expected –  focused on an arcane procedural rule. The Supreme Court justices raised an array of questions, delving into the procedural questions at hand as well as the broader questions of the underlying case.

In the end, one justice called the case a “close call,” while a legal expert speculated that the outcome could have a “blockbuster” result. But perhaps most notably, as Bloomberg Law reported, the “U.S. Supreme Court appeared open to the oil industry’s arguments in a high-stakes procedural spat that will set the course for climate litigation across the country.” (emphasis added)

On the Wrong Side of a Ginsburg Opinion

At the heart of the hour-long arguments was a procedural issue related to the scope of appellate review.

The energy companies outlined that in their view, federal law permits appeals and review of the entire remand “order” when a defendant removes a case to federal court in part under the civil rights removal statutes. This is the plain text interpretation of Section 1447(d) in the legal system – the procedural rule at the crux of this case.

The Trump administration’s Justice Department, which was granted time during arguments to support the companies’ position, offered additional support for the companies’ interpretation of the plain text:

“… appellate courts should be able to figure out whether a remand order resulted from a legal error, even if that error doesn’t involve federal officers or civil rights. That’s how this Court has approached other types of orders, and there’s no good reason for treating remand orders any differently.”

Following the energy companies’ arguments, legal counsel for Baltimore presented their view, which advocated for a narrower scope of appellate review using linguistics gymnastics. Several of the justices challenged Baltimore’s interpretation of the scope of appellate review.

Justice Brett Kavanaugh commented, “I think the text in isolation is a problem for you, and that means the text is a problem for you”, while Justice Stephen Breyer called the City’s “linguistic argument … tough.” Justice Amy Coney Barrett called some of the respondent’s arguments “inconsistent.”

Moreover, Justice Kavanaugh pointed out that Baltimore’s arguments conflicted with a ruling written by the late liberal Justice Ruth Bader Ginsburg in 1996, noting, “it’s never good to be on the wrong side of Justice Ginsburg opinions, but particularly on a jurisdictional issue…”

Outcome Could Have Big Ramifications

Patrick A. Parenteau, a law professor and an expert on environmental law at Vermont Law School, told the New York Times that the case “could be anything from a nothing burger to a blockbuster.”

The case would likely become a blockbuster should the Court choose to expand its purview beyond the narrow question explicitly at hand and find that Baltimore’s case belongs in federal court, as advocated by the companies. The federal versus state nature of Baltimore’s claims came up in the arguments, largely by the justices themselves. Through their statements and responses to the Court, the attorney who argued on behalf of the companies emphasized the federal nature of the claims made in the Baltimore case, as well as other climate cases:

“…we believe that the claims here arise under federal law, and the easiest basis for that is the federal common law ground that the court of appeals did not reach because of its resolution of the question presented. We believe the answer on that question is dictated by this Court’s precedents and that federal jurisdiction is therefore mandated here.” (emphasis added)

The U.S. Department of Justice reiterated the inherent federal nature of the claims at hand. Assistant to the Solicitor General Brinton Lucas affirmed the DOJ’s belief that the questions presented by climate change public nuisance cases “tend to be federal in nature,” as these cases hinge on “…alleged injuries from emissions all over the world.”

In concluding arguments, the attorney representing the companies summarized:

“There is something profoundly counterintuitive about the notion that these cases which seek relief for injuries caused by worldwide greenhouse gas emissions should be litigated in state courts under the laws of different states. This Court has long made clear that, as a matter of constitutional structure, such claims necessarily arise under federal law. The United States has agreed with that proposition. And resolving that issue now will preserve the resources of the judiciary and the parties and ensure the orderly resolution of these cases. And, accordingly, this Court should not simply vacate but reverse the court of appeals’ judgment.” (emphasis added)

Why Are Climate Activists Afraid of Federal Court?

In today’s court proceedings, Justice Kavanaugh asked Vic Sher, legal counsel for the city of Baltimore, why the respondents desired to be in state court. Mr. Sher gave a stilted answer focusing on the legal claims made within Baltimore’s original complaint:

“We don’t believe federal court jurisdiction exists and the cases — there is no federal claim to assert here, Your Honor. The — the tort that is concerned — that is — that we’re concerned with — and the Fourth Circuit addressed this in detail in its opinion, as did Judge Hollander in the district court; it’s on pages 21a and 22a of the — of the circuit court’s opinion in the — in the record — pointed out that the — that the conduct complained of is fraud, deception, denial, and disinformation – — and that those are traditional state foci and traditional state remedies.” (emphasis added)

While Baltimore’s legal counsel states their preference for state court has to do with the legal focus on fraud and the states’ traditional role in handling fraud, the larger matter characterized within these climate cases is who – or what entities – must pay for damages from climate change.

This leads to yet another important question. In every other context in U.S. history where significant matters needed to be decided and enforced, the United States has turned to the federal courts.  However, in this instance, the city of Baltimore – alongside climate activists and the many municipalities also suing energy companies – is firm that the issues posed in climate litigation should be heard in state, not federal court.

So the question arises: why is climate litigation different, and why are climate litigants so afraid of what the outcome may be in a venue governed by federal law?

What’s Next?

The Supreme Court is expected to issue a decision before the end of session. Cases pending in courts from Boulder to Rhode Island will certainly be waiting, as several petitions hang in the balance pending the outcome of the high court’s decision in Baltimore.

But the bottom line remains that while a well-funded national climate litigation campaign continues its slow slog through the courts, industry is working every day to meet our energy needs while reducing emissions.