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Government groups back Baltimore’s high court fight against Big Oil

Groups representing state and local governments are supporting Baltimore in its U.S. Supreme Court fight to ensure the city’s climate change lawsuit against Big Oil is heard in state rather the federal court.

In a brief filed with the justices last month, the National Conference of State Legislatures and other groups said a lower court correctly held that Baltimore’s claim against the fossil fuel companies addresses the city’s environmental concerns and lacks a national implication needed to permit federal court jurisdiction.

The groups’ argument runs counter to the companies’ contention – supported by the U.S. Chamber of Commerce – that the 4th U.S. Circuit Court’s denial of federal court’s handling of Baltimore’s lawsuit could force oil companies and other nationwide businesses to litigate environmental claims in the 50 states rather than be subjected to a single national standard.

The state and local groups submitted its brief as the justices prepare on Jan. 19 to hear Big Oil’s appeal of the 4th Circuit’s decision remanding Baltimore’s lawsuit to state court over the companies’ objection.

The 4th Circuit’s decision upheld U.S. District Judge Ellen L. Hollander’s ruling that the lawsuit belonged where the city filed it, in Baltimore City Circuit Court.

“The district court here properly found that it lacked subject-matter jurisdiction over plaintiff’s (Baltimore’s) state law claims,” attorney Robert S. Peck wrote on behalf of the state and local government groups.

“Judicial conversion of a variety of well-pleaded state law claims into vaguely defined federal common law or arising-under claims, and the exercise of federal jurisdiction over them that petitioners (oil companies) seek, would threaten to fundamentally intrude upon state and local governments’ authority within our federalist system to rely on state law and state courts to seek redress for localized harms,” added Peck, of the Washington-based Center for Constitutional Litigation PC. “Moreover, state and local (groups) assert that any suggestion that state courts cannot handle these issues fairly and appropriately is misplaced.”

Lisa Soronen, of the State & Local Legal Center in Washington, was Peck’s co-counsel on the brief.

In its lawsuit, Baltimore alleges the fossil-fuel companies concealed from and misinformed the public about the dangerous contributions their energy-generating activities made toward climate change. The city 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 legal odyssey began when the companies sought to remove the city’s lawsuit to federal district court, where they believe they have a better chance for a pretrial victory than in state court.

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 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 successful petition for 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 Chicago-based 7th U.S. Circuit Court of Appeals, 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.

“The question is also of substantial legal and practical importance; indeed, the question is currently arising with acute frequency in climate change lawsuits similar to this one, where the arguments for federal jurisdiction are compelling,” wrote Shanmugam, of Paul, Weiss, Rifkind, Wharton & Garrison LLP in Washington. “This case is an optimal vehicle for consideration of that important question.”

Baltimore, in its unsuccessful request that the high court deny the petition for review, said the 4th Circuit’s decision was in keeping with federal law, which strictly limits appellate review of U.S. district court decisions that a case does not belong in federal court.

“(T)he 4th Circuit’s interpretation of (federal law), shared by almost every circuit to address the issue, is consistent with the statutory text and strict limitations Congress has historically placed on remand orders,” wrote Baltimore’s outside counsel, Victor M. Sher of Sher Edling LLP in San Francisco. “The only exceptions Congress has carved out from the otherwise absolute statutory bar on appellate review, outside of the class action context, are for removals based on the federal civil-rights removal statute and the federal-officer removal statute.”

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.

The National Conference of State Legislatures was joined in the brief supporting Baltimore by the Council of State Governments, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the International City/County Management Association and the International Municipal Lawyers Association.

The case is docketed at the Supreme Court as BP PLC et al v. Mayor and City Council of Baltimore, No. 19-1189. The justices are expected to render their decision by this summer.


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