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Climate Change (Kinda) Goes Back to the High Court

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This morning the Supreme Court granted certiorari in four cases. This is less that we sometimes expect from the Court’s long conference just before the Court’s term begins, but a reluctance to grant certiorari is not surprising given the Court is currently short-handed. When there are only eight, the justices are often more reluctant to grant certiorari.

Among today’s grants was BP P.L.C. v. Mayor and City Council of Baltimore. The technical question raised by the petition concerns the reviewability of a order remanding a case back to state court. Here’s the question presented in the petition for certiorari:

Section 1447(d) of Title 28 of the United States Code generally precludes appellate review of an order remanding a removed case to state court. But Section 1447(d) expressly provides that an “order remanding a case * * * removed pursuant to” the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443, “shall be reviewable by appeal or otherwise.” Some courts of appeals have interpreted Section 1447(d) to permit appellate review of any issue encompassed in a district court’s remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statutes; other courts of appeals, including the Fourth Circuit in this case, have held that appellate review is limited to the federal-officer or civil rights ground for removal. The question presented is as follows:

Whether 28 U.S.C. 1447(d) 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.

What makes the case particularly interesting is that it concerns climate change. This case is one of several tort and nuisance cases brought against oil companies for climate change related damages. Due to the Supreme Court’s decision in AEP v. Connecticut, common law claims against greenhouse gas emitters and fossil fuel producers must be brought under state law.  Accordingly, most of these cases have been brought in state court. The corporate defendants, however, have generally sought to have these cases removed to federal court, in part because they believe their various arguments, including claims of preemption, will fare better in federal courts than in state courts. The plaintiffs, for their part, have generally opposed removal and sought remands.

In this particular case, a panel of the U.S. Court of Appeals for the Fourth Circuit concluded that 28 U.S.C. § 1442, which is commonly referred to as the federal officer removal statute, did not provide a proper basis for removal. While the ultimate resolution of this case may be of primary interest to civil procedure buffs, it will likely have an effect on the procedural maneuvering in other pending climate cases.

Also worth noting: Justice Alito appears to be recused, as he did not participate in the consideration of this cert petition.

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