A More Conservative SCOTUS Slated to Hear Remand Question in Baltimore Climate Suit

With the confirmation of Justice Amy Coney Barrett on October 26, the Supreme Court that will review a Fourth Circuit decision affirming the remand of Baltimore City’s ongoing climate suit is significantly more conservative than the Supreme Court that granted certiorari just a few weeks prior.[1] Justice Barrett, a self-proclaimed textualist and a prior clerk to the late Justice Antonin Scalia, is expected to give strong preference to the plain language meaning of federal statutes, regardless of the policy ramifications. This will likely favor Petitioners, whose certiorari petition relied on a plain language reading of the relevant federal statute.

Petitioners—major energy companies—had removed the case to federal court on multiple jurisdictional grounds, including federal officer jurisdiction under 28 U.S.C. § 1442. After the U.S. District Court for Maryland ordered remand, Petitioners appealed to the Fourth Circuit Court of Appeals based on an exception to the federal statutory prohibition on such appeals where removal is based on the federal officer provision. See 28 U.S.C. § 1447(d).  On March 6, 2020, the Fourth Circuit affirmed the district court’s rejection of the federal officer basis for removal but declined to review the other jurisdictional arguments, ruling them outside the purview of the Section 1447(d) exception. Mayor & City Council of Baltimore v. BP P.L.C., 952 F.3d 452 (4th Cir. 2020). The Petitioners sought certiorari on the issue of whether the Fourth Circuit improperly declined to review the other bases for removal. The Supreme Court granted certiorari on October 2, 2020.

The Supreme Court will address a question that has split nine federal circuit courts. The Fifth, Sixth, and Seventh Circuits have found that the Section 1447(d) exception allows for appellate review of all issues subject to an eligible remand order. The Second, Fourth, Eighth, Ninth, and Eleventh Circuits have found review is limited to the jurisdictional issue that forms the basis of the exception for an otherwise non-appealable remand order, i.e., removal based on federal officer jurisdiction or civil rights claims.[2]

While limited to an arcane jurisdictional question regarding the proper scope of appellate review of federal remand orders, the Supreme Court’s review of the case will have significant implications for the dozens of ongoing lawsuits for climate-related damages across the country. As cities and states pursue their claims, there will continue to be procedural battles over whether the cases should be heard in state or federal court, and federal appellate review of remand orders could play a significant role in deciding the proper forum for such suits. In turn, it will be either state or federal judges who review the substantive merit of such claims, including whether federal or state common law should be applied to interstate climate torts and whether federal environmental statutes preempt such tort claims.

Beveridge & Diamond’s Air and Climate Change practice group helps private and municipal clients navigate all aspects of compliance with Clean Air Act regulations for criteria pollutants, hazardous air pollutants, greenhouse gases, and permitting processes. For more information, please contact the authors.

[1] Justice Samuel A. Alito Jr. recused himself from consideration of the petition.  Presumably, he will also recuse himself from consideration of the appeal on the merits.

[2] There are currently two exceptions: one for federal officers and one for civil rights claims. See 28 U.S.C. § 1447(d) (citing id. §§ 1442, 1443).