A follow on from our blog of 15 April 2020 where we stated, as regards the climate change suits in Baltimore, and the Fourth Circuit Court of Appeal’s denial of the defendants’ application to remove it to the federal courts – where it would be dismissed due the decision of the Supreme Court in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) (AEP), and that of the Ninth Circuit in Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), that such actions, at least when they relate to domestic GHG emissions caused by the defendant, are pre-empted by the Clean Air Act. .
On 31 March 2020 the Defendants submitted a petition for certiorari to the US Supreme Court. on the question 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.
Last month the United States Supreme Court stated that it will review the Fourth Circuit Court of Appeals’ ruling. This is on the procedural ground as to what can be reviewed by a federal appellate court. Three circuit courts – including the Fourth Circuit, which ruled on Baltimore’s case – have ruled that federal officer jurisdiction is the only issue that they can review when considering the companies’ appeal of a lower court’s remand order. The seventh circuit has taken the view that that the federal officer removal statute authorizes appellate review of the entire remand order. In the Baltimore case the District Court rejected a total of eight grounds for removal but the Fourth Circuit concluded its appellate jurisdiction was limited to determining whether the companies properly removed the case under the federal-officer removal statute.
The oil major defendants are banking on the hope that the more grounds for removal that the Court of Appeal must consider, the more chance of a successful remand to the federal courts where the pesky case will meet its demise.
We shall see.