On March 6, 2020, the Fourth Circuit Court of Appeals declined to reverse a remand order that returned the City of Baltimore’s climate change case against fossil fuel companies to state court. The district court had rejected all eight of the defendants’ grounds for removal, but the Fourth Circuit held that its appellate jurisdiction was limited to the issue of whether the defendants properly removed the case under the federal officer removal statute. The Fourth Circuit cited decades-old Fourth Circuit precedent limiting the scope of review of remand orders to grounds specifically exempted from the statutory bar on appellate review, including federal-officer removal. The court rejected the defendants’ argument that a Supreme Court decision on the scope of interlocutory review had abrogated this precedent. The Fourth Circuit also concluded that the Removal Clarification Act of 2011 did not authorize “plenary review” of remand orders. Regarding the application of federal-officer removal in this case, the Fourth Circuit found that none of the three contractual relationships on which the defendants based removal were sufficient to justify such removal, either because the relationships failed to satisfy the requirement that the defendants were “acting under” a federal officer or because the contractual relationships were “insufficiently related” to Baltimore’s claims. The first contractual relationship consisted of fuel supply agreements between one defendant and the Navy Exchange Service Command; the court said these agreements contained provisions “typical of any commercial agreement” and did not satisfy the “acting under” requirement. The second contractual relationship was oil and gas leases administered under the Outer Continental Shelf Lands Act; the court found that these agreements did not satisfy the “acting under” requirement and, moreover, that the defendants “did not plausibly assert that the charged conduct was carried out ‘for or relating to’ the alleged official authority, given the ‘wide array of conduct’ for which they were sued,” including alleged “concealment and misrepresentation of the products’ known dangers—and simultaneous promotion of their unrestrained use.” The third contractual relationship was a 1944 agreement between one defendant’s predecessor and the Navy for joint operation of a strategic petroleum reserve; the Fourth Circuit concluded this agreement did not satisfy the “acting under” requirement and that its relationship to Baltimore’s claims was too attenuated.

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 Remand of Baltimore’s Climate Change Case Against Fossil Fuel Companies

Filed

United States of America

Maryland

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Fourth Circuit Affirmed Remand of Baltimore’s Climate Change Case Against Fossil Fuel Companies

Risk

Impacted group

Fossil fuel

Greenhouse gas

Economic sector

Finance