The Future of Climate Change Liability: A Jurisdictional Battle

*Sarah Steinberg

I. Introduction

On July 20, 2018, the City of Baltimore filed a lawsuit in the Circuit Court for Baltimore City against twenty-six fossil fuel companies (collectively, the “defendants”).[1] The City contends that these energy companies should pay the costs associated with climate change in Baltimore.[2] The City alleged that the oil companies engaged in fraud, deception, denial, and disinformation, causing irreparable damage to Baltimore.[3]

II. The Jurisdictional Battle

Immediately after the filing of the complaint, two of the defendants moved for removal to federal court, commencing an aggressive jurisdictional battle between the parties.[4] The oil companies’ liability may hinge on whether a federal or state court hears the case. The defendants are fighting for a federal court since federal law treats common law nuisance more favorably than state law.[5] In American Electric Power v. Connecticut, the Supreme Court held the Clean Air Act, as well as Environmental Protection Agency action, authorized by the Clean Air Act displaces federal common law public nuisance claims against carbon-dioxide emitters.[6] This holding illustrates that the Clean Air Act provides a means to seek limits on companies’ emissions which would be the same relief the plaintiffs are seeking by invoking federal common law.[7] Precedent dictates that judges cannot set limits on greenhouse gas emissions in place of the Clean Air Act which permits the Environmental Protection Agency to set the same limits.[8] Therefore, if the City’s case is removed to federal court, then the case will likely be dismissed.[9] If the matter progresses in federal court and defendants lose, then the defendants could access the conservative-leaning United States Supreme Court, where they would face a favorable bench.[10] In contrast, the City assumes state court would prove a friendlier venue since Maryland elected judges would hear the matter.[11]

III. Removal? On What Grounds?

The defendants invoked a variety of federal statutes to remove the case to federal court, including 28 U.S.C. § 1442.[12] Section 1442(a)(1) provides a federal forum for any action against an “officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.”[13] The district court, however, rejected the defendants’ motion in a forty-five page memorandum opinion that thoroughly reviewed and refuted a litany of grounds for removal.[14]

The defendants appealed, and the United States Court of Appeals for the Fourth Circuit affirmed, finding that § 1442 does not provide a proper basis for removal of the matter to federal court.[15] The Fourth Circuit’s holding should have ended the jurisdictional battle in its tracks, but defendants ultimately appealed to the Supreme Court.[16]

Federal appellate courts historically lack the authority to review a district court order remanding a case to state court.[17] However, there are exceptions to this rule.[18] Defendants relied on a potential exception that provides federal appellate courts the discretion to review district court orders.[19]

Under the Civil Rights Act of 1964, Congress enacted legislation to allow for appellate review of cases removed pursuant to 28 U.S.C. § 1443.[20] This exception guarantees a federal forum for certain federal civil rights claims.[21] In 2011, Congress added a similar exception for lawsuits against federal officers or agencies removed pursuant to § 1442.[22] The law currently provides that an order remanding a case to a state court from which it was removed is not reviewable on appeal unless removed pursuant to § 1442 or § 1443.[23]

IV. The Battle in the Supreme Court

The Supreme Court heard the case on January 19, 2021.[24] The Supreme Court considered the scope of § 1447(d) and whether it permits a federal appellate court to review a district court’s order remanding a case to state court where the defendant premised removal in part on § 1442 or § 1443.[25]

In a 7-1 ruling authored by Justice Gorsuch, the Supreme Court concluded that the Fourth Circuit did not correctly analyze whether the federal court could hear the City’s lawsuit.[26] The Court held that the ordinary meaning of § 1447(d) permits appellate review of the district court’s entire remand order when a defendant relies on § 1442 or § 1443 as grounds for removal.[27] Section 1447(d) does not limit appellate review for cases removed under § 1442 or § 1443.[28] The Court emphasized the word “order” in § 1447(d) because the statute should allow appellate courts to examine the totality of a district court’s order, not just some of its parts.[29]

The City argued against broadening the scope of § 1447(d) to avoid frivolous claims under § 1442 or § 1443.[30] The Supreme Court posited that these contentions are misguided, however, as this issue was addressed by other statutes and rules that provide sanctions for such frivolous claims.[31] The City also cautioned that full appellate review of remand orders may impair judicial efficiency.[32] The Supreme Court rejected the City’s concerns and suggested that full appellate review could expedite some appeals.[33]

V. The Supreme Court’s Permanent Impression on Climate Change Litigation

Even without addressing whether climate litigation should be heard in state or federal court, the Supreme Court’s decision will have a lasting effect on climate litigation.[34] Across the United States, cities and states are bringing similar lawsuits against the fossil fuel industry.[35] Whether the Baltimore lawsuit will be heard in federal or state court has yet to be decided. By holding that the Fourth Circuit has full authority to reexamine the removal order, the Supreme Court opened the door for the federal court system to hear the substantive portion of the case.[36] Under this precedent, it is likely that the Fourth Circuit will find the matter has grounds for removal under § 1442.[37] The effort to remove the Baltimore case reflects trends from similar climate cases.[38] The same oil companies being sued by the City of Baltimore have already succeeded in having a lawsuit brought by Anne Arundel County removed to federal court and similar requests regarding lawsuits by Rhode Island and Honolulu are pending as well.[39]

VI. Conclusion

If courts find these lawsuits to be meritorious, they potentially will be a financial nightmare for oil companies.[40] With numerous liability lawsuits filed against the fossil fuel industry, oil companies could face the same fate as the big tobacco companies of the 1990s.[41] Cities and states would be awarded exorbitant damage awards if oil companies pay damages for their role in climate change.[42] While the Baltimore litigation is ongoing, studies show that states and cities will attempt to force action regarding climate change through litigation while lawmakers remain divided over whether the fossil fuel industry should be held liable for their part in climate change.[43]

*Sarah Steinberg is a second-year law student at the University of Baltimore School of Law and a proud Penn State University alumna. Sarah is a Staff Editor for Law Review and a Royal Graham Shannonhouse III Honor Society member. She also serves as a teaching assistant for Professor Meyerson’s Contracts I section and is the President for the Jewish Law Student Association. Sarah interned for Judge McDonald on the Maryland Court of Appeals in the summer of 2021 and is looking forward to being a summer associate with Nelson, Mullins, Riley & Scarborough during the upcoming summer of 2022.


[1] See Complaint, Mayor & City Council of Baltimore v. BP P.L.C., 388 F. Supp. 3d 538 (D. Md. 2019) (No. 18-cv-02357) [hereinafter Complaint].

[2] Id. at 1.

[3] Id. at 3–5.

[4] BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532, 1533 (U.S. 2021).

[5] John Schwartz, Supreme Court Gives Big Oil a Win in Climate Fight With Cities, N.Y. Times (May 17, 2021), https://www.nytimes.com/2021/05/17/climate/supreme-court-baltimore-fossil-fuels.html.

[6] 564 U.S. 410, 411 (2011).

[7] Id. at 425.

[8] Id. at 429.

[9] See id.; Schwartz, supra note 5.

[10] Schwartz, supra note 5.

[11] Id.

[12] BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532, 1536 (U.S. 2021).

[13] 28 U.S.C. § 1442.

[14] Mayor of Balt. v. BP P.L.C., No. ELH-18-2357, 2019 WL 2436848, at *12 (D. Md. June 10, 2019).

[15] Mayor of Balt. v. BP P.L.C., 952 F.3d 452, 457 (4th Cir. 2020).

[16] Petition for Writ of Certiorari, BP P.L.C., 141 S. Ct. 1532 (No. 19-1644).

[17] BP P.L.C.,141 S. Ct. at 1536.

[18] Id. at 1536–37.

[19] Id.; see 28 U.S.C. § 1447(d).

[20] BP P.L.C.,141 S. Ct. at 1536.

[21] 28 U.S.C. § 1447(d).

[22] See id.

[23] Id.

[24] BP P.L.C.,141 S. Ct. at 1532.

[25] Id. at 1536.

[26] Id. at 1532.

[27] Id. at 1536.

[28] Id.

[29] Id. at 1538.

[30] Id.

[31] Id.

[32] Id. at 1542.

[33] Id.

[34] Lawrence Hurley, U.S. Supreme Court Backs Energy Companies over Baltimore in Climate Case, Reuters (May 17, 2021, 10:37 AM), https://www.reuters.com/business/sustainable-business/us-supreme-court-backs-energy-companies-over-baltimore-climate-case-2021-05-17/; Christine Condon, U.S. Supreme Court Hears Arguments in Baltimore’s Climate Change Lawsuit Against Fossil Fuel Companies, Balt. Sun (Jan. 19, 2021, 6:32 PM), https://www.baltimoresun.com/news/environment/bs-md-supreme-court-baltimore-lawsuit-energy-companies-20210119-al5q5mhykvec3n7og77s235ry4-story.html.

[35] Joseph Manning, Note, Climate Torts: It’s a Conspiracy!, 62 B.C. L. Rev. 941, 949–50 (2021).

[36] See BP P.L.C., 141 S. Ct. at 1537; see also Condon, supra note 34

[37] Condon, supra note 34.

[38] Maya Earls, Texas, Alaska Want Baltimore Climate Suit Sent to Federal Court, Bloomberg L. (Aug. 16, 2021, 11:21 AM), https://news.bloomberglaw.com/us-law-week/texas-alaska-want-baltimore-climate-suit-sent-to-federal-court.

[39] Id.

[40] Dino Grandoni, States and Cities Scramble to Sue Oil Companies Over Climate Change, Wash. Post (September 14, 2020), https://www.washingtonpost.com/climate-environment/2020/09/14/states-cities-scramble-sue-oil-companies-over-climate-change/.

[41] Id.

[42] Id.

[43] Hurley, supra note 34.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: