For a second time, the Fourth Circuit Court of Appeals ruled that the City of Baltimore’s lawsuit seeking to hold oil and gas companies liable for climate change harms should proceed in state court. In its first decision in 2020, the Fourth Circuit concluded that it could only address whether the case had been properly removed under the federal-officer removal statute and found that the case had not been properly removed. The Supreme Court vacated that decision in 2021, holding that federal appellate courts could consider all grounds for removal when federal-officer removal is one of the asserted grounds for removal. In this second decision, the Fourth Circuit again rejected federal-officer removal as a basis for subject matter jurisdiction based on its earlier analysis and also rejected the seven other grounds for removal asserted by the oil and gas companies. First, the Fourth Circuit rejected the contention that Baltimore’s claims were necessarily governed by federal common law, finding that the well-pleaded complaint rule would bar removal because Baltimore’s complaint did not expressly invoke federal common law and also that it was not appropriate to create federal common law for the issues raised by the complaint. The court found that even if control of interstate pollution, energy independence, and multilateral treaties qualified as “uniquely federal interests” that could justify creation of federal common law, the companies failed to establish a significant conflict between state-law claims and the federal interests. In addition, the Fourth Circuit concluded that removal based on federal common law would not be proper where any previously existing federal common law had been displaced by the Clean Air Act and Clean Water Act. Second, the Fourth Circuit found that the companies failed to establish Grable jurisdiction because Baltimore’s complaint did not “necessarily raise” any of the federal issues identified by the companies, including balancing of the costs and benefits of fossil fuel extraction or federal duties to disclose. The court also found that the companies “wrongly” relied on the foreign-affairs doctrine in the Grable context as a basis for federal jurisdiction. Third, the Fourth Circuit held that the Clean Air Act did not completely preempt Baltimore’s state-law claims. Fourth, the court rejected the companies’ argument that their operations within federal enclaves conferred federal jurisdiction. The court noted that all of Baltimore’s alleged harms were pleaded “within the confines and boundaries of Baltimore City” and specifically to non-federal lands. Fifth, the Fourth Circuit found no jurisdiction under the Outer Continental Shelf Lands Act, holding that the companies did not demonstrate the required but-for connection between Baltimore’s claims and the companies’ exploration and production of fossil fuels on the Outer Continental Shelf. Sixth, the Fourth Circuit concluded that the bankruptcy removal statute did not provide grounds for removal. The court found both that the defendants failed to show that Baltimore’s lawsuit had a “close nexus” or was “related” to any bankruptcy involving predecessors, subsidiaries, or affiliates of the defendants and also that an exception to bankruptcy removal was applicable because Baltimore was a governmental unit exercising its police power. Seventh, the Fourth Circuit rejected admiralty jurisdiction as a basis for removal, finding that the defendants did not show how their floating rigs and platforms qualified as “vessels” for the “location test” of admiralty jurisdiction.

City of Baltimore lawsuit seeking to hold fossil fuel companies liable for climate change impacts.

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

<p>This entry was provided by the Sabin Center for Climate Change Law. Please see the terms of use for citation and licensing of third party data.</p>

Fourth Circuit Affirmed Order Remanding Baltimore’s Climate Case to State Court

Filed

United States of America

Maryland

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Codes and standards are regulatory instruments that specify minimum standards to protect health and safety. This ranges from performance standards, which prescribe outcomes while allowing flexibility to achieve compliance, to the more prescriptive approach of technology-specific standards.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Actions or measures to adapt freshwater systems to climate change.

Actions to adapt human health, healthcare systems and well-being to climate change.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Social protection systems consist of policies that help people manage social risks in order to prevent poverty and maintain decent incomes and living standards

Electrical energy generated from mechanical devices driven by flowing fresh water.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

People with different national or cultural traditions from the dominant population

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

Any compulsory, unrequited payment to the government levied on corporations or individuals. This can be for environmental reasons, such as introducing a Carbon tax to set a price that emitters must pay for the greenhouse gases they emit.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

The activities of industries that transforms raw materials into finished goods through industrial processes.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves the wholesale and retail selling of goods.

Activities that provide lodging, food, and entertainment services to guests, including hotels, restaurants, and resorts.

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

This sector involves the distribution, treatment, and conservation of water resources.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

Fourth Circuit Affirmed Order Remanding Baltimore’s Climate Case to State Court

Policy instrument

Risk

Impacted group

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance