Fourth Circuit Again Remands Climate Change Suit Against Oil Companies
Mayor & City Council of Baltimore v. BP P.L.C., 2022 U.S. App. LEXIS 9409, 2022 WL 1039685 (4th Cir., April 7 2022)
This suit was initially filed by the City of Baltimore against 26 oil and gas companies for substantially contributing to greenhouse-gas pollution, global warming, and climate change by extracting, producing, promoting, refining, marketing, distributing, and selling fossil-fuel products. Baltimore asserted it has suffered "climate[-]change-related injuries," including "sea level rise and associated impacts, increased frequency and severity of extreme precipitation events, increased frequency and severity of drought, increased frequency and severity of heat waves and extreme temperatures, and consequent social and economic injuries associated with those physical and environmental changes . . . ." (2022 U.S. App. LEXIS 9409 at *11)
The defendants sought to remove the case from state to federal court asserting various grounds for removal including: “(1) federal common law; (2) substantial issues of federal law, as well as foreign affairs, under Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005); (3) complete preemption under the Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q; (4) federal enclaves; (5) the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1349(b)(1); (6) the bankruptcy removal statute, 28 U.S.C. § 1452(a); (7) the admiralty jurisdiction statute, 28 U.S.C. § 1333(1); and (8) the federal officer removal statute, 28 U.S.C. § 1442(a)(1).” (Id at *14) The defendants appealed pursuant to 28 U.S.C. §1447 which allows immediate appeals of any removal pursuant to the federal officer removal statute (28 U.S.C. §1442) and the civil rights statute (28 U.S.C. §1443). The Fourth Circuit addressed only the appeal of the jurisdictional issue under 28 U.S.C. §1442 and maintained it had no jurisdiction to review the other bases for removal though they were addressed by the district court.
The defendants applied for and were granted writs of certiorari.[1] (BP p.l.c. v. Mayor of Baltimore, 141 S. Ct. 1532 (2021) The Supreme Court in a 7-1 vote (Justice Alito took no part in the opinion; Justice Sotomayor dissented) reversed the Fourth Circuit and held that the Court of Appeals had jurisdiction to review all the grounds on which the defendants sought removal when removal is based on either the Federal Officer Removal Statute or the civil rights statute. Once the district court issues an order to remand, the entire order goes on appeal and all bases for removal addressed by the district court are reviewable on appeal.
On remand, the Fourth Circuit in a lengthy opinion addressed all eight bases defendants asserted to support removal to federal court and again rejected every ground on which the defendants asserted federal jurisdiction supported removal. Ostensibly, the panel stated that the municipality bases its claims exclusively on state law which do not belong in federal court. (2022 U.S. App. LEXIS 9409 at *113).
[1]The Supreme Court granted writs to resolve a circuit split between the Fourth Circuit in the cited case and the Seventh Circuit in Lu Junhong v. Boeing Co., 792 F. 3d 805 (2015). (141 S. Ct. at 1537)
