Federal Appeals Court Denies Major Oil Companies’ Requests To Move Climate Change Lawsuits To Federal Court
Last week, the U.S. Court of Appeals for the Fourth Circuit delivered a victory for proponents of holding major oil companies liable for the effects of climate change.
Cities and counties have instituted lawsuits all over the Nation like the one filed by the City of Baltimore, seeking to shift the burden of dealing with the alleged effects of climate change (e.g., rises in sea levels, floods, and other natural disasters) to major oil companies.
Thus far, these cases have been characterized by the procedural wrangling of the parties, with the cities and counties striving to keep the cases in state courts and the major oil companies seeking to remove them to federal courts.
Most observers believe that a federal court adjudication would mean a likely victory for the oil companies, and that an adjudication by a state court would provide a more welcome forum for the cities and counties.
Federal courts are more likely to view climate change issues as being governed by “federal common law,” which would supersede the state law claims asserted by Baltimore and other jurisdictions.
The Fourth Circuit Court of Appeals, in a case in which EMA sided with the oil companies in an amicus brief filed with the court, remanded the case for adjudication by a state court in Maryland.
The court held that federal common law could be a defense to state law claims but that it is not a basis for removal of the case to a federal court.
The oil companies will likely file a petition for review by the U.S. Supreme Court, which may or may not be granted.
If the U.S. Supreme Court decides to review the case, it may be able to determine the substantive issue that will most likely decide the fate of cities and counties in these cases.
That is, whether the application of federal common law so completely governs climate change issues that it removes state court jurisdiction in the area.
If this issue is decided in the affirmative, it could spell the death knell for all of the various climate change cases brought by state and local jurisdictions.
On the other hand, if the U.S. Supreme Court sides with the cities and counties, they will live to fight another day, and they may ultimately prevail on some of their state law theories, at least in some state courts.