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Wednesday, April 1, 2020

Baltimore gets favorable decision letting its climate change case transfer out of federal court

Federal Court

By Daniel Fisher | Mar 9, 2020

Chevron corporation

BALTIMORE (Legal Newsline) - The U.S. Court of Appeals for the Fourth Circuit has refused to reverse a remand order sending the City of Baltimore’s climate lawsuit to Maryland state court, virtually ensuring ExxonMobil, Chevron and other oil companies will face trial seeking billions of dollars in damages in an unfavorable venue they were hoping to avoid.

A three-judge panel on the appeals court rejected the oil companies’ argument the case should be removed to federal court under a statute that prohibits state courts from hearing lawsuits relating to acts by federal officers or under their orders. The defendants cited contracts with federal agencies and offshore drilling leases they said showed they were operating under the orders of federal officials.

The appeals court disagreed, saying the contracts cited weren’t enough to give the court jurisdiction. Federal appeals courts have extremely limited jurisdiction to overrule remand decisions by district courts, the Fourth Circuit panel said. The district court rejected the defendants’ other arguments against remand, including that the lawsuit involves purely federal questions of energy policy, and the U.S. Supreme Court declined to intervene while the appeal to the Fourth Circuit was pending. 

Last June, U.S. District Judge Ellen Hollander ruled that the climate lawsuit should return to state court, rejecting the reasoning of federal courts in New York and San Francisco that previously ruled climate lawsuits don’t belong in court at all. Baltimore is represented by Sher Edling, a law firm working under a contingent-fee contract. 

Phil Goldberg, a lawyer for the Manufacturer’s Accountability Project, said climate change “is not a liability issue for state or federal court.”

"This effort to try to scapegoat others may score political points, but it is not productive,” he said in a prepared statement. “If Baltimore officials really want to do something about climate change, they should work with manufacturers on energy innovations for the City, not waste everyone’s time with this baseless litigation.”

Other courts to consider climate litigation have found it presents non-justiciable questions of policy. In a 2018 decision, U.S. District Judge William Alsup dismissed lawsuits by San Francisco and Oakland, saying the scope of the legal theory developed by plaintiff lawyers was “breathtaking,” and would “reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales.” A federal judge dismissed New York City’s climate lawsuit also in 2018 and in December a state court judge in New York rejected that state’s “ill-conceived” lawsuit against ExxonMobil over allegations it misled investors about climate change.

The Ninth Circuit Court shut down another avenue of attack for climate litigants this year when it rejected a lawsuit brought on behalf of children. But a federal court in Colorado in September remanded lawsuits by three municipalities back to state court, illustrating the sharp divide among federal judges over whether climate change is a matter that can be litigated in court.

The Baltimore lawsuit, like others, accuses oil companies of knowingly selling products that cause climate change and misleading consumers about the science of human-induced global warming. The complaint ascribes astonishing powers of persuasion to oil companies, saying they “prevented reasonable consumers from forming an expectation that fossil fuel products would cause grave climate changes.” 

The science of how carbon dioxide emitted from burning hydrocarbons has been widely understood and discussed since the early 1900s and was a subject of debate in Congress by the 1960s. 

Private lawyers promoting climate lawsuits by public entities model their tactics on those used against tobacco companies, which were similarly accused of convincing consumers cigarettes were safe despite warnings from the U.S. Surgeon General on every pack that using them could be deadly. 

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