Supreme Court Ruling May Affect the Fate of Climate Change Liability Suits

"On May 17, 2021, the Supreme Court issued a ruling that could delay climate liability suits—that is, lawsuits seeking damages for alleged climate change-related injuries that result from selling and producing fossil fuel products. In BP p.l.c. v. Mayor and City Council of Baltimore, the Court considered the scope of judicial review of orders that transfer a lawsuit from federal to state court. The Court expanded the scope of appellate review of orders remanding climate liability cases to state court, a holding that will likely postpone judicial review of the merits of these suits.

Legal challenges over the appropriate court venue may affect the law and precedent that is applied in more than 20 climate liability suits filed by state and local governments against fossil fuel producers in state courts. This Legal Sidebar reviews the background of the Baltimore case, the Supreme Court’s ruling, its potential effect on climate liability suits, and considerations for Congress.

Removal from State to Federal Court

The Baltimore case arose from lower court decisions related to whether climate liability suits belong in state or federal court. Article III, Section 2 of the Constitution limits federal courts’ jurisdiction to cases involving federal statutes, the Constitution, or treaties.

A defendant may remove (transfer) a suit brought in state court to a federal district court if it falls with the federal court’s jurisdiction. If the plaintiff appeals the defendant’s removal action, a federal court can remand the case to state court if it concludes that the suit was improperly removed. Under 28 U.S.C. §1447(d), such remand orders are not subject to appellate review.

Congress established two exceptions to the Section 1447(d) bar on appellate review of remand orders. In 1964, Congress permitted appellate review of remand orders if the state case was removed to federal court under the civil rights removal statute, 28 U.S.C. § 1443, which permits removal to federal court of suits in which “equal civil rights of citizens” cannot be enforced in state court. In 2011, Congress extended the exception to allow appellate review of removal orders under the federal officer removal statute, 28 U.S.C.§ 1442, which authorizes the removal of state cases to federal court against any officer or agency of the United States for any act related to federal authority. It is this removal statute that provided a mechanism for the Supreme Court to review the Baltimore case..."
Supreme Court and climate change