WASHINGTON (Legal Newsline) – Plaintiffs lawyers and the government officials who hired them on contingency fees to sue the energy industry are back in federal court – exactly where they don’t want to be.
Following their win at the U.S. Supreme Court earlier this month, defendants who are being blamed for climate change in public nuisance lawsuits are now able to again argue those cases belong in federal court.
Plaintiffs like Boulder, Colo., the State of Rhode Island and San Mateo County want their cases heard in state courts to avoid federal precedent. But the U.S. Supreme Court this week vacated orders that remanded their cases to state court.
That was done following a 7-1 decision in Baltimore’s case that said the U.S. Court of Appeals for the Fourth Circuit failed to consider all appropriate arguments from companies like BP, ExxonMobil and Chevron. The ruling sent Baltimore’s case back to the Fourth Circuit for more analysis while sticking cases that were already remanded to their respective state courts back into the federal courts system.
The Fourth Circuit agreed to hear the oil companies’ appeal, but only on the specific question of whether the federal officer exception applied. The oil companies argued, and the Supreme Court agreed, that once an appeals court has jurisdiction to review a remand “order,” the order means every reason the district court considered.
In his decision, Justice Neil Gorsuch noted the merits of Baltimore’s claims have nothing to do with appeal. The oil companies appealed the remand order, as they had a right to do, but “the real trouble began” when the Fourth Circuit limited its review to only the federal officer question.
That triggered a circuit split, since the Seventh Circuit held appellate review extends to the entire remand order. Baltimore and its lawyers at Sher Edling, who stand to make large fees if they win, argued a number of courts had ruled the other way in decisions involving other arguments against remand.
The plaintiffs also argued the exceptions Congress made to the general rule against appealing remand orders should be construed narrowly, to preserve the general idea that litigants should be able to proceed with their cases without endless procedural maneuvering between state and federal courts.
In the only two instances in which a federal judge has exercised jurisdiction and decided the energy industry’s motions to dismiss, the cases have been tossed out. Those judges ruled it was inappropriate to decide issues like emissions standards that are better suited for lawmakers.
Defendants fear state court judges might be more sympathetic toward claims by a local city against out-of-state and international oil companies. As with other municipal plaintiffs represented by private lawyers, Baltimore’s case is structured to make only state law claims, in order to avoid the Supreme Court’s 2011 decision American Electric Power Co (AEP). v. Connecticut barring climate suits citing federal public nuisance claims as preempted under the Clean Air Act.