Delaware v. BP America Inc.

On October 12, 2022, the Third Circuit Court of Appeals denied fossil fuel industry defendants’ request that it stay issuance of the mandates after the court affirmed district court orders remanding climate change cases brought by the City of Hoboken and the State of Delaware to state court. The defendants had argued that issuance of the mandates should be stayed to allow the filing and disposition of a petition for a writ of certiorari in the U.S. Supreme Court.

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In a letter to the Third Circuit in support of its motion to stay the mandates in the City of Hoboken’s and State of Delaware’s cases, the defendants argued that the Supreme Court’s invitation to the Solicitor General to submit the U.S.'s views on the certiorari petition in the Boulder case made clear that these jurisdictional questions were “substantial.” The defendants cited an article that found that certiorari petitions were more than 46 times more likely to be granted once the Court sought the Solicitor General’s views. The defendants also cited the position the United States had previously taken in amicus briefs in Baltimore’s case and the Oakland/San Francisco case that the plaintiffs’ climate change claims were “inherently and necessarily federal in nature.”

The Third Circuit Court of Appeals denied fossil fuel industry defendants’ petition for rehearing of the court’s decision affirming the remand orders in climate change cases brought by the City of Hoboken and the State of Delaware.

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The defendants-appellants filed a petition for rehearing en banc in which they contended that the Third Circuit panel erred by concluding that cases “that are necessarily federal by virtue of federal common law derived from the Constitution’s structure” were not removable. The defendants argued that the panel’s decision misinterpreted Third Circuit precedent, “deepened” a circuit split, and was at odds with the position of the United States and “the teachings of the Supreme Court.” The petition for rehearing also contended that that the panel erred in giving effect to Hoboken’s and Delaware’s “artful disclaimers” that the defendants said were “designed to evade federal jurisdiction.”

The Third Circuit Court of Appeals affirmed remand orders in climate change cases brought by the City of Hoboken and State of Delaware against fossil fuel industry defendants. The Third Circuit found “no federal hook” that would allow the defendants to remove the state tort law actions to federal court, rejecting arguments that the state law claims were inherently federal or necessarily raised a substantial federal issue or that the Outer Continental Shelf Lands Act or federal officer removal statute provided a basis for federal jurisdiction. The Third Circuit stated that “[c]limate change is an important problem with national and global implications” but that “federal courts cannot hear cases just because they are important.”

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