EMA Backs Remanding Climate Case To Federal Court

Last week, the Energy Marketers of America, NACS and National Association of Manufacturers filed an opposition to a Rhode Island federal court’s remand of a state climate challenge against major oil companies.

Citing a May decision of the U.S. Supreme court finding in BP v. Mayor and City Council of Baltimore, a climate change case in which EMA submitted an amicus brief in support of BP and the other major oil company defendants, EMA argued that the case should be tried in federal court.

Although the case involved a procedural issue related to whether the case would proceed in a federal or state court, it is of significant importance in determining whether cities, like Baltimore, can ultimately prevail.

State courts, applying traditional state law causes of action, have allowed the cases to proceed to where they will ultimately be tried by a jury.

Federal courts, on the other hand, are considerably more likely to decide the cases under federal common law, which would warrant a dismissal of the cases before the huge potential liability and enormous costs of litigation leave the defendants with no alternative but to settle.

As one federal court of appeals recently stated in affirming the dismissal of a climate change case brought by the City of New York, the responsibility for global warming cannot be shifted to energy producers when “every single person who uses gas and electricity contributes to global warming.”

EMA got involved in the Baltimore case as well as other cases including Rhode Island after local marketers were added to the list of (mostly major oil company) defendants as part of a strategy to defeat federal jurisdiction and keep the cases in local state courts.

The U.S. Supreme Court’s opinion could dampen the enthusiasm of coastal cities, like Baltimore, to continue to bring these cases against energy producers and marketers.

Although it dealt only with a procedural issue, the decision could also hasten the day when one of the cases proceeds to the Supreme Court for a substantive review and, very likely, a decision that the effects of global climate change are not the responsibility of the petroleum industry.

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