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.

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

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

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In Baltimore’s Climate Case Against Fossil Fuel Companies, Supreme Court Held that Appellate Review of Remand Order Extends to All Grounds for Removal

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In Baltimore’s Climate Case Against Fossil Fuel Companies, Supreme Court Held that Appellate Review of Remand Order Extends to All Grounds for Removal

Fossil fuel

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