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Baltimore supplements bid to keep Big Oil in state court

City cites new 10th Circuit decision in Supreme Court brief

XXX (The Daily Record File photo)

Baltimore has filed supplemental papers with the U.S. Supreme Court as it argues to keep it’s lawsuit against Big Oil companies in state court and not federal court.  (The Daily Record File photo)

Baltimore has given the U.S. Supreme Court what the city calls another reason for the justices to turn aside Big Oil’s bid to have the city’s climate change lawsuit against the fossil fuel companies litigated in federal rather than state court.

In supplemental papers filed with the justices, Baltimore stated last month that a ninth federal appeals court had recently rejected the oil companies’ bid to have a Colorado county’s environmental suit heard in U.S. district court. The Denver-based 10th U.S. Circuit Court of Appeals said it rejected federal-court jurisdiction in the Boulder County case for the same reason the 4th Circuit denied it in the Baltimore litigation: The oil companies had not shown that they acted at the direction of U.S. officials, counsel for Baltimore argued in the supplemental brief.

Of the 10 federal appeals courts to have ruled on the jurisdictional issue, the Chicago-based 7th U.S. Circuit Court of Appeals is the only one to have sided with the oil companies’ view, Baltimore added.

“The 4th Circuit’s holding in this case is identical to the holdings of nine of the 10 circuits to have addressed the issue, three of which have now specifically rejected the reasoning of the 7th Circuit’s outlier 2015 decision,” Victor M. Sher, Baltimore’s outside counsel, wrote in the supplemental brief. “There is no true split of authority to resolve, and no reason for this court to grant the (oil companies’) petition.”

Sher is with Sher Edling LLP in San Francisco.

Baltimore’s Supreme Court filing came in response to the fossil fuel companies’ appeal of what they called the 4th Circuit’s too narrow standard for federal court jurisdiction over a lawsuit with national implications. In their bid for Supreme Court review, the companies argued that the litigation belongs in federal court because the city’s claim of environmental damage under Maryland law implicates the U.S. government’s role in regulating interstate emissions as evidenced by the federal Clean Air Act.

Baltimore has sued the oil companies alleging they have concealed from and misinformed the public about the dangerous contributions their energy-generating activities made toward climate change. The lawsuit, filed two years ago in Baltimore City Circuit Court, seeks millions of dollars in damages for alleged violations of the Maryland Consumer Protection Act, as well as products liability, public nuisance and trespass.

The 21 companies, which are facing similar litigation in many other states, deny the allegations.

The high court is scheduled to consider and likely to vote Sept. 29 on the companies’ request that it hear their appeal. The case is docketed at the Supreme Court as BP PLC et al v. Mayor and City Council of Baltimore, No. 19-1189.

The legal odyssey began when the companies sought to remove Baltimore’s lawsuit to federal district court, where they believe they have a better chance for a pretrial victory than in state court.

U.S. District Judge Ellen L. Hollander remanded the case to Baltimore City Circuit Court in June 2019, saying the city’s state law claims did not implicate federal jurisdiction. The Richmond, Va.-based 4th Circuit upheld the remand, ruling in March that the companies had not shown they acted at the direction of a federal officer.

In their petition for Supreme Court review, the companies told the justices that U.S. appeals courts are divided on whether their review of remand decisions such as Hollander’s is limited to instances when the defendant seeking federal jurisdiction was acting at a federal officer’s direction.

The 7th Circuit, for example, said appellate courts can review all the reasons given for federal jurisdiction, not just the federal-officer removal standard, wrote Kannon K. Shanmugam, the companies’ counsel of record before the high court. Shanmugam is with Paul, Weiss, Rifkind, Wharton & Garrison LLP in Washington.

The companies being sued by Baltimore include BP America Inc., Chevron Corp., CITGO Petroleum Corp., ConocoPhillips Co., Exxon Mobil Corp.; Hess Corp., Marathon Petroleum Corp., Phillips 66 and Shell Oil Co.

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