Climate Change (Kinda) Goes Back to the High Court

The Supreme Court accepted certiorari on a climate change case today.

This morning the Supreme Court granted certiorari in four cases. This is less that we sometimes expect from the Court's long conference just before the Court's term begins, but a reluctance to grant certiorari is not surprising given the Court is currently short-handed. When there are only eight, the justices are often more reluctant to grant certiorari.

Among today's grants was BP P.L.C. v. Mayor and City Council of Baltimore. The technical question raised by the petition concerns the reviewability of a order remanding a case back to state court. Here's the question presented in the petition for certiorari:

Section 1447(d) of Title 28 of the United States Code generally precludes appellate review of an order remanding a removed case to state court. But Section 1447(d) expressly provides that an "order remanding a case * * * removed pursuant to" the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443, "shall be reviewable by appeal or otherwise." Some courts of appeals have interpreted Section 1447(d) to permit appellate review of any issue encompassed in a district court's remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statutes; other courts of appeals, including the Fourth Circuit in this case, have held that appellate review is limited to the federal-officer or civil rights ground for removal. The question presented is as follows:

Whether 28 U.S.C. 1447(d) 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, 28 U.S.C. 1442, or the civil rights removal statute, 28 U.S.C. 1443.

What makes the case particularly interesting is that it concerns climate change. This case is one of several tort and nuisance cases brought against oil companies for climate change related damages. Due to the Supreme Court's decision in AEP v. Connecticut, common law claims against greenhouse gas emitters and fossil fuel producers must be brought under state law.  Accordingly, most of these cases have been brought in state court. The corporate defendants, however, have generally sought to have these cases removed to federal court, in part because they believe their various arguments, including claims of preemption, will fare better in federal courts than in state courts. The plaintiffs, for their part, have generally opposed removal and sought remands.

In this particular case, a panel of the U.S. Court of Appeals for the Fourth Circuit concluded that 28 U.S.C. § 1442, which is commonly referred to as the federal officer removal statute, did not provide a proper basis for removal. While the ultimate resolution of this case may be of primary interest to civil procedure buffs, it will likely have an effect on the procedural maneuvering in other pending climate cases.

Also worth noting: Justice Alito appears to be recused, as he did not participate in the consideration of this cert petition.

Comments

[Jerry B.]

Anyone suing China?

[Joe_dallas]

Why no lawsuits against coal companies and local utility companies who use coal fired plants. Coal produces much more carbon than the oil companies. (at least as percentage of energy produced).

Guess the pockets arent as deep

[Sarcastr0]

There are almost always some active environmental lawsuits against coal companies at any given time.

I don’t have access to the appropriate databases, but a Google search of “lawsuits against coal companies” turns up a whole bunch.

[Joe_dallas]

The suits against the coal companies are generally actual environmental damage.

My reference is why no high profile climate change suits against coal companies.

[kkoshkin]

Seems like a pretty straightforward statutory-interpretation issue. The statute says “an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.”

The statute appears to raise two questions. First, was the case “removed pursuant to section 1442 or 1443?” If so, was there an “order remanding [that] case to the State court?” If so, then the “order” appears to be reviewable, not portions of, or grounds discussed in, the order.

[Dr. Ed 2]

Why can’t nuisance suits be filed against these environmental “activists”?

[Rev. Arthur L. Kirkland]

Would a Justice Barrett participate in this case? It could be interesting to have a justice opine formally that climate change cases are not worth the Court’s attention because any environmental problems that might develop are to be resolved by the Rapture.

[Rev. Arthur L. Kirkland]

The United States Senator who told me he couldn’t get ‘too worked up’ about environmental issues because — although he understood some short-term concerns — ‘when you think about it in the proper perspective, the Rapture is going to take care of anything you can imagine involving the Earth’ is a Roman Catholic.

[David Nieporent]

So now you’re taking a page from Dr. Ed’s playbook?