Today, the United States Supreme Court granted a Petition for Certiorari filed by energy companies in Baltimore’s climate change lawsuit. By granting the petition, the Supreme Court has agreed to review the Fourth Circuit Court of Appeals’ decision remanding the suit to state court after rejecting the energy companies’ contention that they were acting as federal officers pursuant to historical contracts with the federal government.
The principal issue raised by the certiorari petition centers on an appellate court’s scope of review pursuant to 28 U.S.C. § 1447(d). The Fourth Circuit, agreeing with the City of Baltimore, held that 28 U.S.C. § 1447(d) limited its review of the district court’s remand order to only those grounds which were based on the energy companies acting under the authority of a federal officer. The Supreme Court, in reviewing the Fourth Circuit’s decision, will likely determine whether an appellate court is limited in its review of remand orders to federal officer removal grounds, or whether the court can properly review any grounds for removal contained in a trial court’s remand order. As discussed in more detail in our June 2nd post titled “Climate Change Jurisdiction: U.S. Court of Appeals for the Ninth Circuit Kicks Climate Change Case Back to State Court”, a circuit split has developed on the appropriate scope of appellate review: the Second, Third, Eighth, Ninth, and Eleventh Circuits follow the Fourth Circuit’s decision and limit their review to federal officer removal grounds, while the Seventh, Fifth, and Sixth Circuits have held that any ground for removal encompassed in the trial court’s order is reviewable.
Of course, the Supreme Court’s decision could have wide-ranging implications for all U.S. climate change litigation, as these cases continue to grow in number. In fact, last month, Connecticut became the 21st state or municipality to file a climate change lawsuit against fossil fuel companies. Moreover, in addition to climate change litigation, the Supreme Court’s review could have a significant impact on Louisiana’s coastal erosion litigation, where energy companies have asserted similar arguments when removing those 42 cases. Most recently, in a petition for en banc rehearing before the Fifth Circuit, the energy companies in the coastal erosion litigation argued that the scope of appellate review is not limited to federal officer jurisdiction. Consequently, this Supreme Court decision will definitely be one to watch in the upcoming term.
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