As the reality of the climate crisis has become increasingly apparent, environmental litigants throughout the world are asking courts to declare that governments have violated their rights by failing to take bolder measures to slash emissions of greenhouse gases. In January 2021 the United Nations Environment Programme reported that as of July 1, 2020, a total of 1,550 climate change lawsuits had been brought in 38 countries. One trend noted by the 2020 UNEP Climate Litigation report is that “plaintiffs are increasingly filing consumer and investor fraud claims alleging that companies failed to disclose information about climate risk or have disclosed information in a misleading way.” This is well illustrated by the 20 state tort cases that have been filed against fossil fuel producers in state courts by cities, counties and states to recover damages caused by climate change.
On January 19, 2021, the U.S. Supreme Court heard oral argument in one of these cases, BP PLC v. Mayor and City Council of Baltimore. The case is a lawsuit filed by the city of Baltimore against 21 domestic and foreign oil companies. Baltimore argues that the companies’ actions created a public nuisance under state common law by contributing to climate change while deliberately misleading the public about the effects of their products. After the suit was filed in Maryland state court, the fossil fuel companies removed it to federal court, arguing that the allegations in the complaint pertain to actions taken at the direction of federal officers and that the claims necessarily arise under federal common law and should be preempted by the Clean Air Act.
The federal district court for Maryland rejected each of their asserted grounds for removal, a decision that the companies appealed to the U.S. Court of Appeals for the Fourth Circuit. Noting that 28 U.S.C. 1447(d) prohibits appellate review of a lower court’s remand order except for cases removed on federal-officer or civil rights grounds, the court reviewed and rejected the companies’ claim that contracts to supply oil to the Department of Defense justified federal-officer removal. The Court then concluded that the removal statute did not permit it to review any of the other grounds for removal rejected in the district court’s remand order. The latter conclusion was consistent with prior holdings by all other circuits in reviewing remand orders, except for the Seventh Circuit’s decision in Lu Junhong v. Boeing. BP and the other defendants sought Supreme Court review, which was granted on October 2, 2020, presumably to resolve this circuit split.
Thus, the actual question before the Supreme Court in the Baltimore case is a narrow, technical issue of statutory interpretation (the meaning of the word “order” in 28 U.S.C. 1447(d)). However, once the case was before the Supreme Court, the companies, with the support of the Trump administration, argued in their briefs that because climate change is a global problem, climate litigation should be considered to arise exclusively under federal common law. Noting that the federal common law of interstate nuisance was held to be displaced by the Clean Air Act in the Court’s 2011 American Electric Power decision, the companies maintain that all climate litigation should be dismissed. At the oral argument on the January 19, 2021, the Justices seemed disinclined to reach this issue. Justice Amy Coney Barrett volunteered that it would be “fairly aggressive” of the Court to reach the federal common law question.