Burford Capital Logo Light Burford Capital Logo Dark

Climate change litigation is on the rise, but threshold issues need to be addressed

December 14, 2020
Ernest Getto

Climate change litigation in the United States is on the rise as individuals, municipalities, counties and states increasingly seek damages from fossil fuel companies for alleged environmental harm. But before such cases can proceed to discovery and trial, several threshold issues must first be addressed.

These procedural issues include removal (whether cases can be removed from state to federal court), standing (whether climate change issues are justiciable or whether they should be left to the executive and legislative branches) and legal sufficiency (whether the common law doctrines of nuisance and trespass are applicable). If these cases survive these procedural challenges, liability determinations will involve the complex issues of causation (whether the alleged harm is too remote from the acts and practices of defendants) and damages (whether the proffered damages model and accompanying expert testimony are admissible under the applicable rules of evidence).

While the threshold questions above remain unanswered, the first issue, removal, has made it to the U.S. Supreme Court, which has agreed to review a Fourth Circuit ruling in City of Baltimore v. BP PLC (2020), in which Baltimore is seeking climate change damages from fossil fuel companies, asserting claims of public and private nuisance in Maryland state court. The Supreme Court’s eventual decision has the potential to move the needle forward for climate change cases or to produce a significant delay or even begin to unravel these cases in state courts.

The recent history of climate change litigation

Climate change plaintiffs have generally not fared well in federal court. With few exceptions, such litigation has not made it past a motion to dismiss. For example, defendants have successfully argued that the subject matter in those cases is preempted by the Clean Air Act and other federal doctrines. These cases include American Electric Power v. Connecticut (U.S. Supreme Court 2011), Native Village of Kivalina v. ExxonMobil (9th Cir. 2013) and City of New York v. BP (2d Cir. 2018). In 2018, however, an action brought by children in Oregon—asserting a Fifth Amendment right to a “climate system capable of sustaining human life”—survived a motion to dismiss. Two years later, in a split decision, the Ninth Circuit reversed, holding that the plaintiffs lacked standing and that only the legislative and executive branches of the government have the power to redress climate change claims. Juliana v. United States of America (9th Cir. 2020).

Given the failure of federal cases to proceed, states, cities and counties across the country have turned to filing cases in state courts, asserting claims under common law causes of action (public and private nuisance and trespass) and state consumer protection statutes. Nearly 20 such actions have been filed in the last five years. In response, defendants have removed all of these cases to federal court on several grounds, including “federal officer removal,” based on the companies having entered into fuel supply and strategic reserve agreements with the U.S. Navy, as well as holding federal offshore drilling leases.

Federal courts have uniformly granted motions to remand these cases to state court, and in each case the defendants have appealed. Thus far, the D.C., Third and Eighth Circuits have yet to rule on the issue, but the First, Fourth and Ninth Circuits have affirmed the remand orders in unanimous decisions. Defendants have responded by filling petitions for certiorari seeking review by the U.S. Supreme Court, and on Oct. 2, 2020, the U.S. Supreme Court granted BP’s petition for certiorari in City of Baltimore v. BP PLC (2020).

The implications of ‘City of Baltimore v. BP PLC’

In 2018 the City of Baltimore filed its case in Maryland state court against major oil and gas companies for their fossil fuel emissions and alleged concealment of their negative and dangerous effects on climate. Defendants removed the case to the U.S. District of Maryland, relying on eight grounds for removal, including federal officer removal. The District Court rejected each ground for removal and the defendants appealed to the Fourth Circuit. In affirming the District Court’s remand order, the Fourth Circuit rejected removal based on the federal officer removal statute. It also held that its appellate jurisdiction was limited to the issue of whether removal was proper under the federal officer review statute and declined to review the lower court’s decision on the other seven grounds for removal. The Ninth and Tenth Circuits reached the same result.

The defendants in City of Baltimore filed a petition for certiorari, arguing that there is a conflict among the Circuits concerning the scope of review of a remand order when one of the grounds for removal is federal officer removal. In their petition, defendants argued that the decisions of the Fourth, Ninth and Tenth Circuits restricting review to federal officer removal conflict with the Seventh Circuit’s decision in Lu Junhong v. Boeing Co.(2015), holding that all grounds for removal are reviewable in such cases. The petition also cited decisions in the Fifth and Sixth Circuits that follow Lu Junhong. The Supreme Court granted certiorari and agreed to review whether appellate review of remand orders “permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal officer removal statute.”

Although the plaintiffs have characterized this as a review of “a narrow technical issue,” the Supreme Court’s review could have far reaching implications for climate change litigation in state court. Should the court reverse and hold that any ground for removal is reviewable when federal officer removal is also asserted, the lower courts would have to review all of the grounds for removal asserted by defendants. Subsequent rulings approving removal would deprive the state court of jurisdiction and plaintiffs of their preferred forum.

At the very least, a reversal by the Supreme Court in Baltimore would produce substantial delay in climate change litigation in state courts. There is also the possibility that a reversal in Baltimore could be the first step in removing climate change litigation from the courts completely, leaving those issues to the legislative and executive branches. Among the defendants’ stated grounds for removal in all of these cases, including Baltimore, are preemption under the Clean Air Act, and that plaintiffs’ claims implicate a uniquely federal interest and are governed by federal common law rather than state common law. With the cases back in federal court, defendants would surely seek dismissal, relying on the decisions in American Electric Power, Kivalina, City of New York and Juliana. District courts may feel bound by those decisions and dismiss the state court actions. Thus, this “narrow legal issue,” which will not be resolved until sometime in 2021, may well play a significant role in the future of climate change litigation in the United States. As a result, this early skirmish over remand will be closely watched.

All litigation has an inherent level of expense and risk and given the procedural and substantive hurdles present in climate change cases thus far, the risk in climate change litigation appears to be very high. A number of these cases were filed more than three years ago and the parties are still litigating the removal issue. Motions to dismiss have been filed in some of the cases, but none have been ruled upon. At this point, one of the few things known about these cases is that they will undoubtedly be long and expensive.


This article was originally published in New York Law Journal and can be found here.