Kicking the climate can down the road: BP v. Baltimore and Chevron v. Oakland
The Supreme Court’s decisions in BP v. Baltimore and Chevron v. Oakland continue to delay resolution of climate change litigation
By: Emma F. Blake
Scientists first began sounding the alarm about catastrophic climate change as early as the 1960s, and the need for immediate action has only grown since then. According to the U.N. Intergovernmental Panel on Climate Change (IPCC), we have less than nine years to drastically reduce greenhouse gas (GHG) emissions before we risk triggering climatic “tipping points,” which could lead to “irreversible consequences.” Global temperatures have already risen 1.1°C above pre-industrial levels. Even if we manage to hold that number below 1.5°C, “increasingly severe heatwaves, fires, floods, and droughts are coming our way.” In many places, they’ve already arrived. In 2020 alone, communities across the United States experienced 22 “billion-dollar” weather and climate disasters, shattering the previous annual record and costing the nation a combined $95 billion. As state and local governments look to rebuild in the wake of disasters like these, some have sought to hold fossil fuel companies liable for the damages.
More than 20 states and localities have brought lawsuits against companies like BP and Chevron, seeking to hold them accountable for deceiving the public about the science of climate change and failing to warn consumers about the harm they knew would arise from continued use of their products. All but one of these lawsuits were filed in state court with state law claims. The plaintiffs made this strategic choice in part to avoid a prior Supreme Court decision, American Electric Power v. Connecticut (“AEP”). There, the Court held that the EPA’s authority to regulate GHG emissions under the Clean Air Act displaced the federal common law cause of action through which the plaintiffs tried to make owners and operators of coal-fired power plants pay for the harmful impacts of their GHG emissions. Importantly, the Court in AEP expressly declined to decide whether state common law claims are similarly superseded. Still, the fossil fuel defendants now squaring off against state and local governments have sought to remove their cases from state court to federal court, hoping federal judges will eventually rule that the plaintiffs’ state law claims are preempted by federal law. As a result, the parties have spent several years locked in legal battles over the proper forum. Two recent Supreme Court decisions demonstrate the justices’ reluctance to step into the fray.
On May 17, 2021, the Court decided BP P.L.C. v. Mayor and City Council of Baltimore, a case involving Baltimore’s suit against 26 fossil fuel companies, originally filed in Maryland state court. The City asserted claims based on state law, including public nuisance and a cause of action under Maryland’s Consumer Protection Act. Defendants removed the case to federal court based on multiple grounds, including 28 U.S.C. §1442(a)(1) (the so-called “federal officer removal statute”). Defendants argued that because they undertook some of the challenged actions at the direction of federal officials, including the production of fossil fuels offshore under leases with the federal government, they should be considered quasi-federal officials. The federal district court found that argument without merit and remanded the case back to state court. Defendants appealed to the Fourth Circuit, which reviewed only the district court’s analysis of federal officer removal, and concluded that remand was proper. The Supreme Court granted review on the question of whether the Fourth Circuit could consider defendants’ other grounds for removal, or whether it was right to limit its review to § 1442. Defendants pushed the Court to go further and decide in the first instance whether one of their other arguments justified removal. Specifically, they asked the justices to rule that the issues in the case “arose under” federal law and, therefore, the City had no business being in state court.
The Court expressly refused to do so, stating in the opening paragraph of its decision that “the merits of [the City’s] claim have nothing to do with this appeal.” Instead, the Court limited its holding to the narrow procedural question presented for review, concluding, 7-1, that the Fourth Circuit had erred in limiting its review to the district court’s analysis of removal under § 1442. Rather than accept defendants’ invitation to consider their other grounds for removal, the Court remanded the case to the Fourth Circuit to decide those questions in the first instance.
One month later, the Court again avoided the question of whether climate change lawsuits brought by state and local governments belong in state or federal court. On June 14, 2021, the Court denied several fossil fuel companies’ petition for certiorari in Chevron Corp. v. Oakland. The government plaintiffs in that case filed suit against the fossil fuel companies in California state court, asserting a single cause of action for public nuisance under California law. After defendants removed the case to federal court, the U.S. District Court for the Northern District of California denied plaintiffs’ motion to remand, holding that their claims were “necessarily governed by federal common law.” When plaintiffs later amended their complaints to add claims for public nuisance under federal common law, the district court dismissed the case, concluding that though federal law “governed” their claims, it provided no rights or remedies. The Ninth Circuit reversed, holding that plaintiffs’ public nuisance claim did not arise under federal law because it “[did] not require resolution of a substantial question of federal law.” As in Baltimore, the fossil fuel defendants asked the Supreme Court to address whether plaintiffs’ state law claims were removable because they “arose under” federal law. Once again, the justices declined to do so. Even a conflicting ruling from the Second Circuit—that the climate change suit brought by New York City fell under federal law and was displaced by the Clean Air Act—wasn’t enough to persuade the justices to grant review in Oakland.
It thus appears that lower federal courts will resolve the substantive legal issues in these climate change lawsuits—but only after they decide whether the suits belong in federal court at all. That question has already eaten up nearly three years in the Baltimore case, and resolving it now will likely take a few more. As Justice Sotomayor noted in her solo dissent, the Court’s holding in Baltimore means states and localities must continue waging procedural battles rather than finally beginning to litigate these cases on the merits. With the scope of appellate review broadened, defendants hope that the lower federal courts will find at least one basis for removal, which could ultimately lead to federal judges dismissing plaintiffs’ claims as displaced by the Clean Air Act. Plaintiffs, as masters of their complaints, have pleaded their claims under state law and have compelling arguments that state law should control. For now, however, the Court’s narrow decision in Baltimore and denial of cert in Oakland ensures continuing uncertainty.
Fiona Harvey, IPCC Steps Up Warning on Climate Tipping Points in Leaked Draft Report, The Guardian (June 23, 2021), https://www.theguardian.com/environment/2021/jun/23/climate-change-dangerous-thresholds-un-report. See also Press Release, Intergovernmental Panel on Climate Change, Summary for Policymakers of IPCC Special Report on Global Warming of 1.5°C Approved by Governments (Oct. 8, 2018), https://www.ipcc.ch/2018/10/08/ summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by-governments; Jonathan Watts, We Have 12 Years to Limit Climate Change Catastrophe, Warns UN, The Guardian (Oct. 8, 2018), https:// www.theguardian.com/environment/2018/oct/08/global-warming-must-not-exceed-15c-warns-landmark-un-report.
 Harvey, supra note 1.
 Id. (quoting Professor Simon Lewis of University College London).
 NOAA National Centers for Environmental Information, U.S. Billion-Dollar Weather and Climate Disasters (2021), https://www.ncdc.noaa.gov/billions/, DOI: 10.25921/stkw-7w73.
 See, e.g., Mayor & City Council of Baltimore v. BP P.L.C., 388 F. Supp. 3d 538 (D. Md. 2019), aff’d, 952 F.3d 452 (4th Cir. 2020), vacated and remanded, 141 S.Ct. 1532, 593 U.S. ___ (2021); California v. BP P.L.C., 2018 WL 1064293 (N.D. Cal. Feb. 27, 2018) and City of Oakland v. BP P.L.C., 325 F. Supp. 3d 1017 (N.D. Cal. 2018), both vacated and remanded, 960 F.3d 570 (9th Cir. 2020), opinion amended and superseded on denial of reh’g, 969 F.3d 895 (9th Cir. 2020), cert. denied, ___ S.Ct. ___, No. 20-1089, 2021 WL 2405350 (June 14, 2021); Bd. of Cnty. Comm’rs v. Suncor Energy (U.S.A.) Inc., 405 F. Supp. 3d 947 (D. Colo. 2019), aff’d in part and appeal dismissed in part, 965 F.3d 792 (10th Cir. 2020), vacated and remanded, ___ S.Ct. ___, No. 20-783, 2021 WL 2044533 (May 24, 2021); City of New York v. BP P.L.C., 325 F. Supp. 3d 466 (S.D.N.Y. 2018), aff’d, 993 F.3d 81 (2d. Cir. 2021).
 564 U.S. 410 (2011).
 Id. at 424.
 Id. at 429.
 141 S.Ct. 1532 (2021).
 Mayor & City Council of Baltimore v. BP P.L.C., 388 F. Supp. 3d 538, 548 (D. Md. 2019).
 Id. at 548-49.
 Id. at 567.
 Id. at 569, 574.
 Mayor & City Council of Baltimore v. BP P.L.C., 952 F.3d 452, 461-71 (4th Cir. 2020).
 BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 222 (2020) (granting cert.).
 Pet. Brief at 43-45, BP P.L.C. v. Mayor & City Council of Baltimore, No. 19-1189 (June 29, 2020); (“Given the number of climate-change cases pending across the Nation, the Court should confirm that this case and others like it were properly removed to federal court on the ground that federal common law necessarily governs claims alleging in-jury based on the contribution of interstate and international emissions to global climate change.”); Pet. Reply Brief at 2, 16-21, BP P.L.C. v. Mayor & City Council of Baltimore, No. 19-1189 (Jan. 8, 2021) (“The court of appeals erred by concluding that it lacked jurisdiction … to decide whether this case is removable because respondent’s claims necessarily arise under federal law. Because this case was so clearly removable on that basis, the Court should reverse the judgment outright and hold that the case should proceed in federal court.”).
 BP P.L.C. v. Mayor & City Council of Baltimore, 141 S.Ct. at 1536.
 Id. at 1543.
 Id. The Supreme Court also vacated the judgments and issued remand orders in similar cases pending in the First Circuit, the Ninth Circuit, and the Tenth Circuit, directing each of the lower federal courts to reconsider all the grounds of removal raised by defendants. Shell Oil Products Co. v. Rhode Island, ___ S.Ct. ___, No. 20-900, 2021 WL 2044535; Chevron Corp. v. San Mateo County, ___ S.Ct. ___, No. 20-884, 2021 WL 2044534 (May 24, 2021); Suncor Energy Inc. v. Bd. of Cnty. Comm’rs, ___ S.Ct. ___, No. 20-783, 2021 WL 2044533 (May 24, 2021).
 ___ S.Ct. ___, No. 20-1089, 2021 WL 2405350 (June 14, 2021).
 California v. BP P.L.C., No. C 17-06011 WHA, 2018 WL 1064293, at *1 (N.D. Cal. Feb. 27, 2018).
 Id. at *2.
 City of Oakland v. BP P.L.C., 325 F. Supp. 3d 1017, 1028-29 (N.D. Cal. 2018).
 City of Oakland v. BP P.L.C., 960 F.3d 570, 580 (9th Cir. 2020), opinion amended and superseded on denial of reh'g, 969 F.3d 895 (9th Cir. 2020).
 Pet. at 2-7, Chevron Corp. v. Oakland, No. 20-1089 (Jan. 8, 2021).
 Chevron Corp. v. Oakland, ___ S.Ct. ___, No. 20-1089, 2021 WL 2405350 (June 14, 2021) (denying cert).
 See City of New York v. BP P.L.C., 993 F.3d 81 (2d. Cir. 2021).
 See 141 S.Ct. at 1543-47 (Sotomayor, J., dissenting).