Supreme Court to Hear Climate Change Case

This title isn’t inaccurate per se. It merely understates the highly technical and procedural nature of this case. In B.P. v. Mayor and City Council of Baltimore the Supreme Court will decide whether a federal appellate court may review all the grounds upon which a defendant claims its case should not be sent back to state court when only one of the grounds the defendant alleges is specifically listed in federal statute as a basis for federal appellate court review.

The mayor and City of Baltimore sued 26 oil and gas companies in Maryland state court claiming their role in climate change has violated Maryland law.

Federal law allows defendants to “remove” a case brought in state court into federal court if the federal court has jurisdiction over the case. BP claims that the federal court has jurisdiction to hear this case on eight grounds, including the federal officer removal statute. This statute allows federal courts to hear cases involving a private defendant who can show that it “acted under” a federal officer, has a “colorable federal defense,” and that the “charged conduct was carried out for [or] in relation to the asserted official authority.” 

A federal district court rejected all eight grounds BP alleged supported removing this case to federal court. The federal district court remanded the case back to Maryland state court.

28 U.S.C. §1447(d) generally disallows federal courts of appeals to review federal district court orders remanding a case back to state court which was removed to federal court. The statute creates an exception for “an order remanding a case to the State court for which it was removed pursuant to” the federal officer removal statute or the civil-rights removal statute (not at issue in this case). 

BP asked the Fourth Circuit to review all eight of its grounds for removing the case to federal court because one of the grounds it alleged--federal officer removal--is an exception allowing federal appellate court review.

The Fourth Circuit refused to review all eight grounds. It cited to a Fourth Circuit case decided in 1976, Noel v. McCain, holding that “when a case is removed on several grounds, appellate courts lack jurisdiction to review any ground other than the one specifically exempted from §1447(d)’s bar on review.” BP argued that a 1996 Supreme Court case and the Removal Clarification Act of 2011 “effectively abrogated” the 4th Circuit decision. The Fourth Circuit disagreed but acknowledged other courts have reached different conclusions.

The question the Supreme Court will decide in this case has been raised in climate change cases brought in three other circuits:  Rhode Island v. Shell Oil Products Co., County of San Mateo v. Chevron Corp., and Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc.

States and local governments have brought climate change cases under state law because the Supreme Court has held they may not be brought under federal common law. Defendants likely think federal courts will be less familiar with the state law involved and more skeptical of the claims than state courts. Allowing federal appellate courts to review multiple reasons federal courts may have jurisdictions in these cases will likely keep some of them out of state court.