Anne Arundel County v. BP p.l.c.

–

–

–

–

On January 23, 2025, the Maryland Circuit Court in Anne Arundel County dismissed the City of Annapolis’s and Anne Arundel County’s lawsuits seeking to hold fossil fuel industry defendants liable under state law for harms allegedly suffered as a result of climate change. The City and County asserted claims under Maryland common law and the Maryland Consumer Protection Act. The court had issued a decision in May 2024 deferring a decision on the defendants’ motions to dismiss for failure to state a claim. In its January 23 decision, however, the court wrote that it was “persuaded on this second go-around” by the defendants’ authorities (including the Supreme Court’s 2011 decision in <a href="https://climatecasechart.com/case/american-electric-power-co-v-connecticut/">American Electric Power Co. v. Connecticut</a> in 2011) and the Circuit Court for Baltimore City’s dismissal in July 2024 of Baltimore’s similar lawsuit against fossil fuel industry defendants. The Anne Arundel County Circuit Court also cited the Superior Court decision granting in part and denying in part motions to dismiss the State of Delaware’s <a href="https://climatecasechart.com/case/state-v-bp-america-inc/">case</a> against fossil fuel companies. The Anne Arundel County Circuit Court concluded that Anne Arundel County’s and City of Annapolis’s claims were federally preempted, “possibly by federal common law but surely by the Federal Clean Air Act.” The court also wrote that “[t]he clear message to be had, and this Court gets it, is as Justice Ginsburg for a unanimous Supreme Court says [in American Electric Power Co.] is that there is a prescribed order of decision-making—first by the expert then by federal judges. If states and municipalities even private parties are dissatisfied with the Federal rule making or the outcome of cases, they may seek federal court review.” The court found that it was not necessary to consider individual state law claims, concluding that if its decision dismissing the cases was reversed, the cases would “no doubt come back on remand regardless of this Court’s decision on the state law claims.” The Capital Gazette <a href="https://www.capitalgazette.com/2025/01/27/climate-suits-dismissed/">reported</a> that the County would appeal the dismissal and that the City was “keeping options open for what comes next.”

–

The Fourth Circuit Court of Appeals affirmed a district court’s decision remanding cases brought by Anne Arundel County and the City of Annapolis against fossil fuel companies to state court. The Fourth Circuit described the cases as two of the cases brought by state and local governments in recent years alleging that the defendants “misrepresented and concealed information about their fossil fuel products in violation of state tort and consumer protection laws.” The Fourth Circuit said the companies “have sought—over and over and over—to remove the cases to federal court” but that “that gambit has failed in at least ten cases already,” and “[t]he eleventh time is not the charm.” The Fourth Circuit noted that the district court in Anne Arundel County’s and Annapolis’s cases had rejected most grounds for removal as foreclosed by the Fourth Circuit’s 2022 decision in <a href="https://climatecasechart.com/case/mayor-city-council-of-baltimore-v-bp-plc/">Mayor & City Council of Baltimore v. BP p.l.c.</a> and that the district court also rejected a variation of one of those foreclosed grounds (federal-officer removal) as well as a new argument for removal related to the companies’ First Amendment defenses to the plaintiffs’ claims. Regarding the variation of the defendants’ federal-officer removal argument, the Fourth Circuit concluded that it did not supply a basis for jurisdiction because the actions that the companies said they did under federal authority—including production of fuels in connection with military activity in the 1940s and 1950s and extraction of fuels and operation of energy infrastructure under federal regulations or commercial relationships with the federal government—were not the activities that were the subject of the plaintiffs’ allegations, which concerned concealment or misrepresentation of information about fossil fuel products. Regarding the defendants’ new argument that courts would necessarily have to consider First Amendment questions regarding protection of commercial speech to resolve the localities’ misrepresentation claims, the Fourth Circuit agreed with two other circuit courts of appeals that the First Amendment issues were not “necessary elements” of the local government’s claims and therefore did not supply a basis for federal jurisdiction.

–

–