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4th Circuit declines to stay remand order in Baltimore climate change suit

Judge Ellen L. Hollander

U.S. District Judge Ellen L. Hollander. (The Daily Record/File photo)

Fossil fuel companies will have to ask the Supreme Court to halt an order sending Baltimore’s lawsuit over climate change back to state court.

Baltimore filed its lawsuit in Baltimore City Circuit Court last year alleging the companies concealed dangers and misinformed the public about climate change, but the defendants promptly removed the case to federal court — where cases like it have been dismissed — and have been trying to keep it there ever since.

Establishing jurisdiction for these lawsuits has been an early battle for cities, counties and states that have seen their cases dismissed if they remain before U.S. District Court judges, who have generally found that the claims are preempted by federal law and otherwise interfere with separation of powers and foreign policy.

Baltimore U.S. District Judge Ellen L. Hollander issued an order in June remanding the case to state court, finding the city’s complaint did not implicate federal jurisdiction. The complaint seeks damages for public nuisance, products liability, trespass and violations of the Maryland Consumer Protection Act.

Hollander’s order is on appeal before the 4th U.S. Circuit Court of Appeals, but both Hollander and a 4th Circuit panel declined to stay the order while the appeal is pending. The 4th Circuit tentatively scheduled the case for oral argument in December.

On Wednesday, Hollander agreed to give the defendants time to apply to the Supreme Court for an order preventing the case from being remanded to state court. If the Supreme Court does not agree to stay the case, it will be transferred to Baltimore City Circuit Court while the defendants continue to appeal the order in the 4th Circuit.

Baltimore City Solicitor Andre M. Davis said Wednesday that the city would file a “prompt opposition in the Supreme Court to their motion for stay.”

‘Parallel tracks’

In their motion for a stay addressed to the 4th Circuit in August, the defendants argued that their statutory right to appeal “would be rendered meaningless absent a stay because Defendants would be forced to litigate this case in state court for the entire pendency of the appeal.”

They also seek a stay “to relieve the parties of the substantial burden of litigating this case on parallel tracks.”

In her memorandum opinion denying the stay, Hollander agreed that the issue of removal “presents an unsettled legal question” and referenced the diverging opinions reached by other district court judges. But she determined that only the issue of “federal officer removal” — the doctrine allowing for removal of cases involving federal officers and corporations acting at their direction — can be appealed and that the defendants have not shown a likelihood of success on that front.

But the defendants argued in a brief to the 4th Circuit that they have presented a substantial case on the issue of federal officer removal because at least some of the defendants extracted, produced and sold fossil fuels at the direction of federal officers. A private contractor “acts under” the direction of a federal officer if it helps the government produce an item it needs with federal “subjection, guidance, or control.”

They also contend that remand orders in general — not just certain grounds — are reviewable on appeal.

The 4th Circuit did not issue an opinion explaining the three-judge panel’s denial of a stay.

The case is Mayor and City Council of Baltimore v. BP LLC et al., 19-1644.

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