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4th Circuit affirms remand of Baltimore climate change lawsuit

A federal appeals court ruled Friday that Baltimore’s lawsuit against fossil fuel companies over climate change was properly sent back to state court, marking a major victory for the city, which seeks to keep its pursuit of damages from the defendants in front of a local court.

Acting City Solicitor Dana P. Moore praised the decision in a statement Friday.

“We were confident in our case and are grateful that the Court of Appeals agreed,” she said. “The court rejected every one of the defendants’ arguments for taking our case out of state court.”

A spokesman for Chevron Corp., which initially filed the removal notice in the case, said in a statement that the decision by the 4th U.S. Circuit Court of Appeals is wrong and that the defendants intend to challenge it.

“These claims challenge oil and gas production around the globe dating back to the industrial revolution,” the statement said. “The case belongs in federal court. There are significant national economic, legal and policy issues undermined by the factually and legally unsupported claims.”

Baltimore filed its lawsuit in Baltimore City Circuit Court in 2018 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.

U.S. District Judge Ellen L. Hollander issued an order in June 2019 remanding the case to state court, finding the city’s complaint did not implicate federal jurisdiction. The lawsuit seeks damages for public nuisance, products liability, trespass and violations of the Maryland Consumer Protection Act.

The 4th Circuit issued an opinion on Friday addressing the narrow question before it: whether the defendants properly removed the case to federal court on the theory of “federal officer removal,” the doctrine allowing for removal of cases involving federal officers and corporations acting at their direction.

The defendants have made broad claims that the city’s claims are preempted by federal law and otherwise interfere with separation of powers and foreign policy. But only the issue of federal officer removal can be appealed, and Hollander determined — and the 4th Circuit agreed — that the defendants have failed to prove that doctrine applies.

Federal appeals courts lack jurisdiction to review grounds for removal to federal court, with exceptions, Judge Henry F. Floyd wrote on behalf of the three-judge panel. The only ground for removal claimed by the defendants included in these exceptions is federal officer removal.

Chief Judge Roger L. Gregory and Judge Stephanie D. Thacker joined in the opinion.

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.”

The 4th Circuit disagreed, finding “none of these relationships are sufficient to justify removal under the federal officer removal statute, either because they fail to satisfy the acting-under prong or because they are insufficiently related to Baltimore’s claims for the purposes (a second prong).”

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

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