BP p.l.c. v. Mayor & City Council of Baltimore

In a 7-1 decision, the U.S. Supreme Court held that the Fourth Circuit Court of Appeals erred when it concluded that its review of the remand order in Baltimore’s climate change case against fossil fuel companies was limited to determining whether the defendants properly removed the case under the federal officer removal statute. The Court declined to review the companies’ other grounds for removal, finding that the “wiser course” was to allow the Fourth Circuit to address them in the first instance. The Court’s decision concerned the interpretation of 28 U.S.C. § 1447(d), which provides that “an order remanding a case to the State court from which it was removed pursuant to section 1442 [the federal officer removal statute] or 1443 [removal statute for civil rights cases] of this title shall be reviewable by appeal.” The Court concluded that the ordinary meaning of “order” in Section 1447(d) would include “the whole of a district court’s ‘order,’ not just some of its parts or pieces.” The Court was not persuaded by arguments that exceptions to the general bar on appellate review of remand orders should be construed narrowly or that Congress would have expressly directed that appellate courts should review all aspects of remand orders had that been its intention. In addition, the Court cited its decision in Yamaha Motor Corp., U. S. A. v. Calhoun, 516 U. S. 199 (1996)—which concerned the scope of appellate review of orders certified for appeal by district courts—as its “most analogous precedent.” The Court found that Yamaha resolved any doubts about Section 1447(d)’s interpretation with its holding that appellate courts could address any questions contained in a district court order certified for appeal. The Court said other precedents cited by Baltimore “were driven by concerns unique to their statutory contexts.” Nor was the Court persuaded by the argument that Congress ratified lower appellate court interpretations limiting the scope of review for remand orders cases removed under Section 1443 when it enacted the exception for the federal officer removal statute. The Court stated that “[i]t seems most unlikely to us that a smattering of lower court opinions could ever represent the sort of ‘judicial consensus so broad and unquestioned that we must presume Congress knew of and endorsed it.’” Responding to policy concerns regarding efficiency raised by Baltimore, the Court first noted that policy arguments could not prevail over “a clear statutory directive” and found, moreover, that Section 1447(d) “tempers its obvious concern with efficiency” by providing for the exceptions to the bar on appellate review in the first place. The Court also suggested that a “fuller form of appellate review” could serve the cause of efficiency. In response to the concern that its interpretation would “invite gamesmanship,” the Court again said policy concerns could not override plain meaning and also noted that in any event Congress had addressed this policy concern by allowing courts to sanction frivolous arguments. Justice Sotomayor dissented, writing that she believed the Court’s interpretation would allow defendants to “sidestep” the general bar on appellate review by “shoehorning” a civil rights or federal officer removal argument into their case for removal. She also was persuaded that Congress had ratified the lower appellate court decisions holding that there was a narrower scope of review. Justice Alito did not take part in the case.

The U.S. Supreme Court is scheduled to hear oral argument on January 19, 2021 in fossil fuel companies’ appeal of a Fourth Circuit Court of Appeals decision affirming an order remanding to state court the City of Baltimore’s climate change case against the companies. On January 8, the Court granted the Acting Solicitor General’s motion for leave to participate in oral argument as amicus curiae in support of the companies. The companies identified the question for review as whether the statutory provision prescribing the scope of appellate review of remand orders “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.” In its brief filed on December 16, Baltimore defined the question as whether the statutory provision “entitles a defendant, by including a meritless federal-officer or civil-rights ground for federal jurisdiction in a removal petition, to appellate review of every ground for removal rejected by the district court’s remand order.” The district court rejected 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. In December, six amicus briefs were filed in support of Baltimore—by state and local government groups, environmental groups, six senators, law professors who teach and write on civil procedure and the federal courts, 19 states and the District of Columbia, and Boulder County, San Miguel County, and the City of Boulder in Colorado.

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The U.S. Supreme Court scheduled oral argument for January 19, 2021 in fossil fuel companies’ appeal of a Fourth Circuit Court of Appeals decision affirming an order remanding to state court the City of Baltimore’s climate change case against the companies.

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The United States argued in support of the petitioners for the broader scope of appellate review of remand orders and noted its “significant interest” as “a frequent litigant” in “the application of statutory provisions governing federal appellate jurisdiction.”

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The companies filed their brief on November 16, arguing that the Fourth Circuit erred by concluding that it was limited to reviewing removal based on the federal-officer removal statute. The companies also argued that the Court should preserve judicial resources when rectifying this error by addressing the other grounds for removal and reversing the Fourth Circuit’s judgment. The brief argued in particular that the Court should hold that Baltimore’s claims “necessarily and exclusively arise under federal common law.” Alternatively, the companies asked that the Court vacate the judgment and remand to the Fourth Circuit to address the other grounds for removal raised by the companies. Ten amicus briefs were filed in support of the petitioners, including by the United States.

On October 2, 2020, the U.S. Supreme Court granted fossil fuel companies’ petition for writ of certiorari seeking review of the Fourth Circuit’s order remanding to state court Baltimore’s climate change case against the companies. Justice Alito did not participate in the consideration or decision of the petition. The question the Supreme Court agreed to consider is whether the statutory provision prescribing the scope of appellate review of remand orders “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.” The district court rejected 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.

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Baltimore filed a brief in the U.S. Supreme Court arguing that the Court should deny oil and gas companies’ petition for writ of certiorari seeking review of the Fourth Circuit’s affirmance of a remand order in Baltimore’s climate change case. Baltimore’s brief said there were three principal reasons why the certiorari petition should be denied. First, Baltimore contended that a “purported circuit split” on the issues of the scope of appellate review of remand orders was “insignificant at best.” Second, Baltimore contended that these issues were “not likely to recur with any frequency.” Third, Baltimore argued that the Fourth Circuit’s interpretation of the removal statute was “consistent with the statutory text and strict limitations Congress has historically placed on appellate review of remand orders.”

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