Description: City of Baltimore lawsuit seeking to hold fossil fuel companies liable for climate change impacts.
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BP p.l.c. v. Mayor & City Council of Baltimore
Case Documents:
Filing Date Type File Action Taken Summary 04/30/2020 Amicus Brief Download Brief of amicus curiae Energy Policy Advocates filed in support of petitioners. 04/30/2020 Amicus Brief Download Brief of amicus curiae National Association of Manufacturers filed in support of petitioner. 04/30/2020 Amicus Brief Download Brief filed by 13 states as amici curiae in support of petitioners. 04/30/2020 Amicus Brief Download Brief filed by U.S. Chamber of Commerce as amicus curiae in support of petitioners. 04/24/2020 Order Motion to extend time to file a response granted. Supreme Court Granted Baltimore’s Request for More Time to Response to Petition Seeking Review of Remand Order Due to Burdens Imposed by COVID-19. The U.S. Supreme Court granted Baltimore’s request for a 60-day extension of time to file a response to fossil fuel companies’ petition for a writ of certiorari seeking review of the Fourth Circuit’s affirmance of the remand order in Baltimore’s case. Baltimore said it sought the extension due to the “extraordinary circumstances” of the COVID-19 pandemic, which placed an “enormous unanticipated burden” on Baltimore and its counsel. The fossil fuel companies asked the court to grant only a 30-day extension. Their letter to the Court noted that Baltimore was actively litigating the case in state court and that “nearly identical” cases were pending in other state courts. The companies noted that they had filed their petition “expeditiously” and that allowing a 60-day extension instead of a shorter extension would delay consideration of the petition until the next term. The Court granted Baltimore’s request without comment, setting a deadline of June 29, 2020 for the filing of a response. 04/23/2020 Reply Download Reply filed in support of respondent's motion to extend time to file response. 04/21/2020 Response Download Response filed by petitioners to the respondent's motion to extend time to file a response. 04/17/2020 Motion Download Motion filed by respondent to extend time to file response to petition for writ of certiorari. 03/31/2020 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. Companies Sought Supreme Court Review of Remand Order.. On March 31, 2020, the defendants filed a certiorari petition in the Supreme Court, seeking review of the question of whether the statutory provision prescribing the scope of appellate review of remand orders “permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.” Baltimore’s response to the petition is due on April 30. -
Mayor & City Council of Baltimore v. BP p.l.c.
Case Documents:
Filing Date Type File Action Taken Summary 03/30/2020 Not Available Download Mandate issued. 03/06/2020 Opinion Download Order granting motion to remand affirmed. Fourth Circuit Affirmed Remand of Baltimore’s Climate Change Case Against Fossil Fuel Companies. 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. 03/05/2020 Letter Download Letter filed by plaintiff-appellee in response to Chevron Corporation's February 27, 2020 letter concerning supplemental authority related to federal-officer removal. 02/27/2020 Letter Download Letter filed by Chevron Corporation regarding supplemental authority concerning federal-officer removal. 02/03/2020 Letter Download Letter filed by plaintiff-appellee in response to Chevron Corporation's January 29, 2020 letter concerning Juliana. 01/29/2020 Letter Download Letter filed by Chevron Corporation regarding supplemental authority. Chevron Corporation submitted a letter asserting that the Ninth Circuit’s decision in Juliana v. United States supported the companies’ argument that the climate change claims asserted by local and state governments against the companies “have their source in federal law and therefore belong in federal court.” 01/23/2020 Letter Download Letter filed by Chevron Corporation in response to plaintiffs-appellees' January 6, 2020 letter concerning supplemental authority. 01/06/2020 Letter Download Letter filed by plaintiffs-appellees regarding supplemental authority. 12/31/2019 Response Download Response filed by plaintiff-appellee to defendants-appellants' December 19, 2019 notice of supplemental authority. 12/19/2019 Notice Download Notice submitted by Chevron Corporation regarding supplemental authority. 12/13/2019 Response Download Response filed by plaintiff-appellee in response to defendants-appellants' December 12, 2019 letter. The plaintiffs responded that the court should disregard the defendants’ submission because it was an inappropriate attempt to supplement the evidentiary record and have the court make new factual findings. The plaintiffs further argued that the supplemental materials did not support federal-officer removal jurisdiction. 12/12/2019 Letter Download Letter submitted by appellants in response to court's question at oral argument. After the argument, the defendants submitted a letter and other documents in response to a question from the court regarding whether the federal government had exercised its right to extract petroleum form the Elk Hills Reserve. The defendants said that a 1976 law gave the Secretary of the Navy authority to sell or otherwise dispose of the U.S. share of the petroleum produced from such reserves and that the government had final authority over all production, which was carried out by defendant Chevron Corporation’s predecessor Standard Oil. The defendants also submitted a General Accounting Office report that indicated that Chevron and the government shared production, revenues, and expenses in proportion to their ownership shares. 12/11/2019 Not Available Oral argument held. 12/06/2019 Response Download Response filed by Chevron to plaintiff-appellee's December 2, 2019 notice of supplemental authority. 12/02/2019 Letter Download Letter filed by plaintiff-appellee regarding supplemental authority. 10/18/2019 Notice Oral argument scheduled for December 11, 2019. 10/01/2019 Order Download Motion for stay pending appeal denied. Fourth Circuit Declined to Stay Remand Order in Baltimore’s Climate Case Against Fossil Fuel Companies. On October 1, 2019, the Fourth Circuit Court of Appeals denied fossil fuel companies’ motion for a stay pending their appeal of the district court order remanding Baltimore’s climate change lawsuit against the companies to state court. 09/30/2019 Order Download Court tentatively calendared case for oral argument. On September 30, 2019, the Fourth Circuit tentatively calendared oral argument on the companies’ appeal for the December 10–12 argument session. 09/18/2019 Reply Download Reply brief filed by appellants. 09/10/2019 Notice Download Letter filed by plaintiff-appellee to notify the court of the District of Colorado remand order in Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc. 09/03/2019 Amicus Brief Download Amicus brief filed by National League of Cities et al. in support of plaintiff-appellee and affirmance. Amicus Briefs Filed in Support of Remand. Seven amicus briefs were filed in support of Baltimore. Amicus parties included (1) three organizations representing the interests of local governments; (2) a group of scholars and scientists “with strong interests, education, and experience in the environment and the science of climate change, with particular interest in public information and communication about climate change and how the public and public leaders learn about and understand climate change,” along with organizations that advocate for climate change policies; (3) Natural Resources Defense Council; (4) a group of climate scientists and scholars that submitted a brief to assist the court with its “understanding of the relevant science and the unavoidable adaptation expenses … communities are facing”; (5) nine states; (6) Senators Sheldon Whitehouse and Edward Markey; and (7) Public Citizen, which expressed concern about improper invocation of removal jurisdiction. 09/03/2019 Amicus Brief Download Brief filed in support of plaintiff-appellee and affirmance by amici curiae Robert Brulle et al. 09/03/2019 Amicus Brief Download Brief filed in support of plaintiff-appellee and affirmance by amici curiae Mario Molina et al. 09/03/2019 Amicus Brief Download Brief filed in support of plaintiff-appellee and affirmance by amicus curiae Natural Resources Defense Council. 09/03/2019 Amicus Brief Download Brief filed in support of appellees and affirmance by amicus curiae Public Citizen, Inc. 09/03/2019 Amicus Brief Download Brief filed by states as amici curiae supporting plaintiff-appellee. 09/03/2019 Amicus Brief Download Brief filed in support of appellees and affirmance by amici curiae Senators Sheldon Whitehouse and Edward J. Markey. 08/27/2019 Brief Download Response brief filed. Baltimore Said Fourth Circuit Should Reject Appeal of Remand Order in Climate Case. On August 27, 2019, the Mayor and City Council of Baltimore (Baltimore) filed a brief arguing that the Fourth Circuit should reject oil and gas companies’ appeal of a district court’s order remanding Baltimore’s climate change lawsuit to state court. Baltimore argued that the appellate court only had jurisdiction to consider the companies’ argument that the federal-officer removal statute provided jurisdiction; Baltimore further argued that the district court correctly rejected this basis for removal. In addition, Baltimore contended that the district court properly rejected the companies’ other asserted grounds for removal. 08/23/2019 Reply Download Reply filed by defendants in support of motion for stay pending appeal. 08/16/2019 Opposition Download Opposition to stay pending appeal filed by plaintiff-appellee. 08/09/2019 Motion Download Motion for stay pending appeal filed by defendant.s 08/02/2019 Amicus Brief Download Amicus brief filed by the U.S. Chamber of Commerce in support of appellants and reversal. 07/29/2019 Brief Download Opening brief filed by appellants. Briefing began in the Fourth Circuit on oil and gas companies' appeal of an order remanding Baltimore's climate change case against them to state court. The companies filed their opening brief on July 29, 2019. They argued that the Fourth Circuit has jurisdiction to consider their appeal and that Baltimore’s claims were properly removed on multiple grounds. Baltimore’s response brief is due by August 27, 2019, and any reply brief is due within 21 days of service of the response brief. -
BP p.l.c. v. Mayor & City Council of Baltimore
Case Documents:
Filing Date Type File Action Taken Summary 10/22/2019 Order Download Application for stay denied. On October 22, 2019, the U.S. Supreme Court denied fossil fuel companies’ application for a stay pending appeal of a district court’s remand order returning Baltimore’s lawsuit seeking to hold the companies liable for impacts of climate change. The application was presented to Chief Justice Roberts, the circuit justice for the Fourth Circuit, who referred the application to the Court. The Court’s order denying the application indicated that Justice Alito did not take part in the consideration or decision of the application. The companies’ appeal of the remand order in Baltimore’s case has been fully briefed in the Fourth Circuit and is scheduled for oral argument on December 11. As of November 5, the district court in Maryland had not yet issued an order to lift its temporary stay on the remand order. 10/18/2019 Opposition Download Opposition filed to application for stay of remand order pending appeal. 10/04/2019 Amicus Motion Download National Association of Manufacturers filed motion for leave to file an amicus brief in support of the application to stay the remand order pending appeal. 10/01/2019 Application Download Defendants filed application to stay district court's remand order pending appeal and request for immediate administrative stay. Companies Sought Stay from Supreme Court. On the same day that the Fourth Circuit denied the fossil fuel companies' motion for a stay pending appeal of the district court's remand order, the companies filed an application for a stay in the U.S. Supreme Court. The application was directed to Chief Justice John Roberts, the circuit justice for the Fourth Circuit. -
Mayor & City Council of Baltimore v. BP p.l.c.
Case Documents:
Filing Date Type File Action Taken Summary 11/12/2019 Letter Download Letter sent by clerk of court to Circuit Court for Baltimore City regarding remand. 11/12/2019 Order Download Order issued lifting stay of execution of remand order. 11/08/2019 Motion Download Unopposed motion to lift stay of execution of remand order filed by plaintiff. 10/04/2019 Letter Download Letter filed by defendants informing court that plaintiffs would not move to lift current stay in light of Supreme Court's request for response to application for stay by October 18, 2019. 10/02/2019 Order Download Court granted motion to temporarily extend stay of remand order pending resolution of stay application to the Supreme Court. On October 2, 2019, the district court granted the defendants’ motion to temporarily extend its stay of the remand order until the U.S. Supreme Court resolved the application for a stay. (The district court previously extended the stay of the remand order pending the Fourth Circuit’s resolution of the companies’ stay motion.) The district court said Baltimore could seek to rescind the temporary extension “as improvidently granted” by filing a motion by October 7. 10/01/2019 Motion Download Motion filed by defendants to temporarily extend stay of remand order pending resolution of stay application to the Supreme Court. 07/31/2019 Memorandum Download Defendants' motion for stay denied. Maryland Federal Court Declined to Stay Remand Order in Baltimore’s Climate Case Against Oil and Gas Companies; Stay to Remain in Place While Companies Seek Stay in Fourth Circuit. On July 31, 2019, the federal district court for the District of Maryland denied oil and gas companies’ motion for a stay of the June 10 remand order returning the Mayor and City Council of Baltimore’s (Baltimore’s) climate change lawsuit to state court. The companies had sought to stay the remand order until the Fourth Circuit resolves their appeal. Instead, a stay agreed to by Baltimore will remain in place pending the resolution of the companies’ anticipated motion for a stay in the Fourth Circuit. Although the district court agreed with the companies that removal of the case based on application of federal law raised “complex and unsettled” legal questions, the court concluded that appellate jurisdiction in this case would likely extend only to the issue of whether the case was properly removed under the federal officer removal statute, an issue on which the court concluded the companies had not demonstrated a substantial likelihood of success. The court further found that the companies had not demonstrated irreparable harm since the appeal would only be rendered moot in the event a state court entered final judgment before the appeal was resolved. The court also was not persuaded that the cost of litigating in state court would cause irreparable injury and disagreed with the companies’ contention that federal courts were “uniquely qualified” to address the issues presented in the case. Regarding the harm to the opposing party and weighing the public interest, the district court found that the impacts of further delay of litigation on the merits of Baltimore’s claims weighed against a stay. The court also noted that even if the remand order were vacated, interim proceedings in state court “may well advance” the case’s resolution in federal court. 07/22/2019 Reply Download Reply filed by defendants in support of their motion to extend the stay pending appeal. 07/08/2019 Response Download Opposition filed by plaintiff to defendants' motion to extend the stay pending appeal. 06/24/2019 Order Download Consent order so-ordered. 06/23/2019 Motion Download Memorandum of law filed in support of defendants' motion to extend the stay pending appeal. 06/23/2019 Stipulation Download Joint stipulation and proposed consent order filed to extend the current temporary stay of the execution of the remand order. 06/20/2019 Memorandum Opinion Download Memorandum opinion issued for publication. 06/13/2019 Notice of Appeal Download Notice of appeal filed. 06/10/2019 Memorandum Opinion Download Motion to remand granted; execution of remand order stayed for 30 days as stipulated by the parties. Federal Court Said Baltimore’s Climate Case Against Oil and Gas Companies Belonged in State Court. The federal district court for the District of Maryland remanded the City of Baltimore’s climate change lawsuit against oil and gas companies to state court. The court concluded that federal question jurisdiction did not exist and also rejected alternative bases for federal jurisdiction. First, the court rejected the defendants’ argument that federal common law governed Baltimore’s state law nuisance claim as a “cleverly veiled preemption argument.” The court said ordinary preemption was merely a defense and did not permit it to treat the claim as if it had been pleaded under federal law for jurisdictional purposes. The court further concluded that federal common law would not support removal even under the complete preemption doctrine because the defendants had not shown that any federal common law claim for public nuisance was available and case law suggested that the Clean Air Act displaced any such claim. Second, the court found that the case did not fall within the “slim category” of cases in which federal question jurisdiction exists for state law claims that raise substantial and disputed federal issues. Although the court acknowledged that there were “federal interests in addressing climate change,” the court said the defendants had not established that “a federal issue” such as foreign policy or a federal regulatory scheme was a necessary element of Baltimore’s claims. Third, the court rejected the argument that the foreign affairs doctrine or the Clean Air Act completely preempted Baltimore’s claims. Fourth, the court found no basis for federal jurisdiction based on defendants’ activities on federal enclaves. Regarding the alternative bases for removal jurisdiction, the court found that the defendants did not demonstrate that jurisdiction existed under the Outer Continental Shelf Lands Act, or that the claims were removable under the federal officer removal statute, the bankruptcy removal statute, or admiralty jurisdiction. Pursuant to a stipulation by the parties, the remand order is temporarily stayed. The defendants are seeking to stay the order pending their appeal to the Fourth Circuit. 04/22/2019 Consent Decree Download Court entered consent order accepting joint stipulation to temporarily stay execution of any remand order. 04/19/2019 Stipulation Download Parties filed a joint stipulation and proposed consent order to temporarily stay execution of any remand order the court may issue. 04/12/2019 Reply Download Reply filed by defendants to plaintiff's opposition to conditional motion to stay execution of any remand order. 04/05/2019 Opposition Download Plaintiff filed opposition to defendants' conditional motion to stay execution of any remand order. 04/03/2019 Motion Download Conditional motion filed by defendants to stay execution of remand order should the court grant the pending motion to remand. 02/22/2019 Opposition Download Opposition to defendants' request for hearing filed by plaintiff. 02/20/2019 Request Download Request for hearing filed by defendants. 12/27/2018 Memorandum of Law Download Notice errata to Mayor & City Council of Baltimore's motion to remand to state court filed, along with corrected memorandum of law. 10/25/2018 Reply Download Reply filed in support of motion to remand. 10/11/2018 Opposition Download Opposition filed to motion to remand. Fossil Fuel Companies Opposed Remand of Baltimore’s Climate Change Lawsuit. On October 11, 2018, fossil fuel companies filed papers in Maryland federal court opposing remand of the Mayor and City Council of Baltimore’s (Baltimore’s) lawsuit seeking to hold the companies liable for the impacts of climate change. The companies argued that the claims necessarily arose under federal common law, and that even if only state-law claims were asserted, the claims necessarily raised disputed and substantial federal issues. In addition, the companies argued that the Clean Air Act and other federal statutes completely preempted the claims and that federal jurisdiction was also available pursuant to the Outer Continental Shelf Lands Act, the federal officer removal statue, federal enclave doctrine, the bankruptcy removal statute, and admiralty jurisdiction. 09/11/2018 Motion Download Motion to remand filed. Baltimore Moved to Remand Its Climate Lawsuit Against Fossil Fuel Companies to State Court. On September 11, 2018, Baltimore moved to remand its climate change lawsuit against fossil fuel companies to Maryland state court. First, Baltimore contended that the defendants’ assertions that federal common law governed the City’s tort claims raised an ordinary preemption defense, which did not confer subject matter jurisdiction. Moreover, Baltimore argued, its claims were not required to be pleaded under federal common law and, in any event, fell outside the scope of federal common law. Baltimore further argued that the defendants’ other grounds for removal did not supply a basis for federal subject matter jurisdiction. In particular, Baltimore asserted that the complaint did not necessarily raise substantial, disputed federal questions; that the Clean Air Act did not preempt the City’s claims; that the Outer Continental Shelf Lands Act did not supply jurisdiction for the claims; that there was no federal enclave jurisdiction; that the federal officer removal statute did not apply because the defendants did not act under federal officers; that the bankruptcy removal provisions did not apply; and that admiralty jurisdiction did not provide a basis for removal. 07/31/2018 Notice Download Notice of removal filed. Case Removed to Federal Court. Baltimore asserted causes of action for public nuisance, private nuisance, strict liability failure to warn, strict liability design defect, negligent design defect, negligent failure to warn, and trespass, as well as a cause of action under Maryland’s Consumer Protection Act. The Chevron defendants removed the action to federal court on July 31, 2018, asserting that Baltimore’s lawsuit “calls into question longstanding decisions by the Federal Government regarding, among other things, national security, national energy policy, environmental protection, development of outer continental shelf lands, the maintenance of a national petroleum reserve, mineral extraction on federal lands (which has produced billions of dollars for the Federal Government), and the negotiation of international agreements bearing on the development and use of fossil fuels.” Chevron said the causes of action should be governed by federal common law. The defendants said the case should “be heard in this federal forum to protect the national interest by its prompt dismissal.” -
Mayor & City Council of Baltimore v. BP p.l.c.
Case Documents:
Filing Date Type File Action Taken Summary 04/15/2020 Opposition Opposition to motions to dismiss filed. Motions to dismiss for failure to state a claim and for lack of personal jurisdiction were filed in February, and the United States filed a motion for leave to file an amicus brief in support of the motion to dismiss. On April 15, Baltimore filed its opposition to the motion to dismiss, reportedly responding to a First Amendment defense by arguing that “[n]o law authorizes misleading and deceptive marketing of products that the manufacturer or marketer knows to be dangerous; and no law authorizes a multi-decade campaign of deceit to undermine public confidence in climate-related science to prolong or increase the use of the companies’ products at the expense of other, safer alternatives.” 07/20/2018 Complaint Download Complaint filed. Baltimore Filed Climate Change Lawsuit Against 26 Fossil Fuel Companies. On July 20, 2018, the Mayor and City of Baltimore (Baltimore) filed an action in Maryland state court seeking to hold 26 fossil fuel companies liable for injuries resulting from climate change. Like other municipalities, Baltimore alleged that the defendants’ conduct—the production, promotion, and marketing of fossil fuel products; the simultaneous concealment of the products’ known hazards; and their “championing of anti-science campaigns”—directly and proximately cause adverse climate change impacts. The alleged injuries included more frequent and more severe storms and flooding in the city and substantial increases in average sea level, as well as heatwaves, disruptions of the hydrologic cycle (including extreme precipitation and drought), and associated public health impacts. Baltimore asserted that it was particularly vulnerable to sea level rise and flooding due to 60 miles of waterfront land and that climate change impacts already adversely affected the City’s infrastructure. Baltimore asserted causes of action for public nuisance, private nuisance, strict liability failure to warn, strict liability design defect, negligent design defect, negligent failure to warn, and trespass, as well as a cause of action under Maryland’s Consumer Protection Act.