Baltimore Climate Change litigation in State Courts. Supreme Court to wade in.

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.

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Professor Simon Baughen

Professor Simon Baughen was appointed as Professor of Shipping Law in September 2013 (previously Reader at the University of Bristol Law School). Simon Baughen studied law at Oxford and practised in maritime law for several years before joining academia. His research interests lie mainly in the field of shipping law, but also include the law of trusts and the environmental law implications of the activities of multinational corporations in the developing world. Simon's book on Shipping Law, has run to seven editions (soon to be eight) and is already well-known to academics and students alike as by far the most learned and approachable work on the subject. Furthermore, he is now the author of the very well-established practitioner's work Summerskill on Laytime. He has an extensive list of publications to his name, including International Trade and the Protection of the Environment, and Human Rights and Corporate Wrongs - Closing the Governance Gap. He has also written and taught extensively on commercial law, trusts and environmental law. Simon is a member of the Institute of International Shipping and Trade Law, a University Research Centre within the School of Law, and he currently teaches at Swansea on the LLM in:Carriage of Goods by Sea, Land and Air; Charterparties Law and Practice; International Corporate Governance.

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