Questions of Venue in Climate Change Litigation
by, Lexicon Legal
On January 19, 2021, the Supreme Court heard oral arguments in a case which could have implications for all future fossil fuel litigation. Practitioners in this area should be aware of this case — though it appears to address a single, minute procedural issue, the Court’s ruling could create precedent that determines where future climate change cases should be litigated.
Even if the ruling does not address the larger issue of jurisdiction, it will still create limitations that affect a practitioner’s choice of venue in both filing and defending fossil fuel lawsuits. New questions of procedure and substance are likely to arise in the aftermath of this ruling. By observing the development of case law in the early stages, litigators will be better able to take control of their own cases and advocate for the positions that benefit their clients.
LITIGATION HISTORY
In 2018, the City of Baltimore filed a momentous lawsuit against 26 fossil fuel companies – including large international companies such as BP, Chevron, and Citgo. The lawsuit argued that these companies minimized and even concealed the dangers of fossil fuel emissions, and they should therefore be held liable for the effects of climate change on Baltimore residents. The City sought substantial damages for everything from its changing coastline to the health effects of rising temperatures.
From the start, the City and the fossil fuel companies have disagreed about which court should hear this case. The City initially filed in state court. Its position has focused on the harm done to Baltimore residents. The oil companies, however, have sought to keep the case in federal court, arguing that the case involves issues of pollution all across the country. The Fourth Circuit Court of Appeals most recently remanded the case to state court. The defendants appealed this decision on a narrow federal exception, and the Supreme Court granted certiorari. The Court heard oral arguments in January 2021.
As always, there are practical reasons for each side taking the positions they have. The question of state or federal jurisdiction determines the ultimate course of appeal for fossil fuel cases. If the defendants win the right to keep the case in federal court, the final appeal has the potential to go before the Supreme Court.
With a 6-3 conservative majority, the defendants likely feel that this is a better outcome than risking litigation in the states – where each high court has different political compositions that are constantly in flux. Meanwhile, the City of Baltimore seeks to keep the case in state court, where the final source of review would be the Maryland Court of Appeals. The City reasonably believes that this will result in a better outcome for litigation seeking redress for the rights of Baltimore residents. But of course, these preferences must be supported with recognized legal arguments. The City has focused on its consumer fraud claims – which are generally heard by state courts – and the fact that redress is being sought for residents of Baltimore only. The defendants, meanwhile, have focused on interstate pollution, arguing that federal common law has placed this issue in federal courts.
WHAT’S NEXT IN CLIMATE CHANGE LITIGATION
Already, similar climate change cases have been filed across the country. The Supreme Court’s decision on the Baltimore case could have an immediate impact on cases that are already in the throes of litigation.
The Baltimore Sun recently reported on the substance of the oral arguments made before the Supreme Court. On its face, the case presents a narrow issue of procedure on appeal. Generally, an order remanding a case to state court cannot be appealed, but there are two recognized exceptions. Issues involving federal officers or civil rights can be appealed. But this creates an important question: if an order of remand is appealed using one of these exceptions, can the appellate court hear all arguments in the case or only those related to the exception? The justices’ questions at oral arguments were focused on this narrow issue.
As a result, one law professor felt it was unlikely that the Court would take up the larger issue of whether fossil fuel cases should be litigated in state or federal court. Of course, both sides seemed to agree that the court could rule on this larger issue if it were so inclined and advocated for its own position on the question of state versus federal court.
Even if the court declines to create a general rule of jurisdiction for fossil fuel litigation, this case will still have implications for attorneys who litigate in this subject area. The issues a federal appellate court may hear on appeal will determine the outcome of that appeal. This means that litigators may find it more or less favorable to be in federal court. Choice of venue is an important factor that determines the outcome of many cases. This is evident from the Baltimore case: the parties have spent years and huge sums of money litigating the simple matter of jurisdiction all the way to the Supreme Court.
GUIDEPOINT PROVIDES LITIGATION SUPPORT AT ALL LEVELS OF APPEAL
Climate change litigation is a developing area of the law that will see dramatic changes in the coming years. It is important for lawyers who practice in this area to understand the developing body of case law on these issues.
Guidepoint can help you stay on top of all developments in this area of the law, connecting you with the specific experts you need to keep on top of legislation, case law, and breaking news that could affect your cases. Contact us today to learn about how our services help you deliver the results your clients expect.
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