As 2021 shapes up to be a defining year for more than a dozen pending lawsuits, major energy companies have asked the U.S. Supreme Court to review two appellate court decisions allowing public nuisance lawsuits to move forward in state court. The move, which raises the stakes in the municipal- and state-driven climate litigation campaign, comes just days before the high court will hear arguments in the companies appeal of a lower-court decision which sent Baltimore’s public nuisance lawsuit back to state court.

In the petitions, which were filed on December 30, the companies argue that decisions from the U.S. Ninth and First Circuit Courts of Appeals allowing climate lawsuits brought by California municipalities and Rhode Island to progress in state court should be examined following the outcome of the Supreme Court’s review of the City of Baltimore’s case.

Recall that the Supreme Court agreed to grant review of Baltimore’s case in October 2020 and will hear oral arguments on January 19. In its review, the Court will provide guidance on a procedural question that will determine whether the city’s lawsuit – and the several others like it – will proceed in state or federal court.

In March 2020, the Fourth Circuit affirmed a lower federal court’s ruling to remand Baltimore’s lawsuit to state court after deciding its review was limited to the federal officer removal statute (a statute which holds that cases involving U.S. agencies or officers belong in federal court). The companies, meanwhile, argue that all issues addressed in the remand order should have been considered.

That question, known as the scope of appellate review, is also at the heart of the companies’ Supreme Court appeal of Rhode Island and the California municipalities’ cases. Following the Fourth Circuit’s lead, the Ninth, Tenth and First Circuits followed suit later that year, remanding cases from California, Colorado and Rhode Island.

Because the issue at the core of the new petitions contesting the Ninth and First Circuits’ rulings is identical to the question currently before the Supreme Court in Baltimore’s case, the companies have asked that the petitions be put on hold until Baltimore is resolved:

“To ensure similar treatment of similar cases, the Court routinely holds petitions that implicate the same issue as other cases pending before it and, once the related case is decided, resolves the held petitions in a consistent manner. … That procedure is particularly apt here, given that the cases involve a jurisdictional question that must be answered in the same way throughout the Nation.” (emphasis added)

In early December, the companies similarly appealed the Tenth Circuit’s decision to remand Boulder and other Colorado municipalities’ now-consolidated lawsuit, also asking that the Supreme Court put the petition on hold pending the resolution of Baltimore’s case.

A win for the companies at the U.S. Supreme Court in Baltimore’s case would therefore likely overturn the three other appellate court decisions made in the Colorado municipalities, California municipalities and Rhode Island’s cases.  And – more broadly – it could affect the greater ligation campaign against energy producers, as the Washington Post reported: “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.”