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

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.

The Fourth Circuit Court of Appeals scheduled oral argument for December 6 in fossil fuel companies’ appeals of remand orders in cases brought by the City of Annapolis and Anne Arundel County.