A special thanks to Derek Younkers, a soon-to-be 1L at Baylor Law School, who gathered the material for this post.
Those with even a passing acquaintance with the Old Testament know that when the Good Book talks pestilence and destruction, its go-to is a horde of locusts. And so it is with the plethora of lawsuits by states, cities and counties against oil and gas producers claiming catastrophic damages from fossil fuels. Some time ago we reported on City of San Mateo v. Chevron. There are others.
The causes of action vary from case to case. The common denominator is that the suits are filed in state court and allege only state law claims. Despite producers’ best efforts, the federal courts have denied federal jurisdiction.
Mayor and City Council of Baltimore v. BP p.l.c.
Baltimore alleges oil company defendants violated state-laws and concealed dangers associated with their fossil fuel products. The defendants removed to federal court. The Fourth Circuit concluded that its appellate jurisdiction only allowed it to review the federal officer removal argument and remanded without considering defendants’ other arguments. The Supreme Court then held that §1447(d) allowed the Fourth Circuit to consider all other arguments put forth by defendants and remanded.
Defendants argued that under the federal removal statutes removal jurisdiction was proper on these eight bases: federal common law, raising of a substantial federal issue, Clean Air Act preemption, federal enclave jurisdiction, original jurisdiction under the Outer Continental Shelf Lands Act, the bankruptcy removal statute, the admiralty jurisdiction statute, and federal officer removal.
The Fourth Circuit rejected all eight arguments and affirmed the district court’s decision to remand the case back to the state court, where it will reside forever.
There are 14 more pending cases. Here they are:
Board of County Commissioners of Boulder County v. Suncor Energy
The allegations in this 2018 suit are that fossil fuel companies concealed the effects of fossil fuels on climate change and disingenuously marketed their products to the harm of the people living in Boulder County. Defendants removed. The Tenth Circuit affirmed that the case could not be removed under federal officer removal statute. and stated that that statute did not grant the Court appellate jurisdiction to consider defendants’ other grounds for removal. The Supreme Court clarified that when federal officer removal is one of multiple arguments for removal, then, on appeal, the court may look at the merits of the other arguments. The case was remanded.
Six of the bases for removal were the same as in City of Baltimore, and met the same fate. The Tenth Circuit sent the case back to the state courts where it will also reside forever.
Rhode Island v. Shell Oil Products Co.
This 2018 case against Shell and other oil companies alleges state tort claims. The 1st Circuit, observing the “mind-numbing complexities of federal removal statutes” ruled recently that the case did not satisfy the necessary conditions for federal removal and remanded the case to the state court.
City of Oakland v. BP p.l.c.
The Cities of San Francisco and Oakland sued five fossil fuel companies in September 2017. This case is pending in the North District of California awaiting a decision in light of City of San Mateo.
City & County of Honolulu v. Sunoco LP
The claims here are public nuisance, failure to warn, and trespass. The case is before the 9th Circuit with the defendants claiming that the record in this case supports removal to federal courts in light of San Mateo.
City of Charleston v. Brabham Oil Co.
The claims here are failure to warn, concealment of known hazards, and other state law claims. The case is pending in the District Court of South Carolina awaiting a decision in light of City of Baltimore.
Anne Arundel County v. BP p.l.c.
The County of Anne Arundel asserts that BP and other oil companies violated the Maryland Consumer Protection Act. The case is pending in the District Court of Maryland awaiting a decision in light of City of Baltimore.
City of Annapolis v. BP p.l.c.
The claims here are public nuisance, failure to warn, and other state causes of action. The case is before the U. S. District Court of Maryland awaiting a decision in light of the decision on remand in City of Baltimore.
District of Columbia v. Exxon Mobil Corp.
This suit is for violation of The District’s Consumer Protection Procedures Act. The case is before the U. S. District Court of D.C. awaiting a decision on motions to remand.
Delaware v. DP America Inc.
The State of Delaware alleges oil and gas companies violated its Consumer Fraud Act and asserted common law claims. The case is in the 3rd Circuit where it has been consolidated with City of Hoboken.
City of Hoboken v. Exxon Mobil Corp.
This suit is pending in the 3rd Circuit where it has been consolidated with the State of Delaware.
Connecticut v. Exxon Mobil Corp.
The State of Connecticut sued Exxon and other oil companies alleging similar claims as the myriad of cases above. The case is currently before the 2d Circuit. awaiting a decision on a motion to remand.
Minnesota v. American Petroleum Institute
The State of Minnesota sued the API and oil companies alleging similar claims as other cases above. The case is before the 8th Circuit, where the parties await a decision on motions to remand.
Vermont v. Exxon Mobil Corp.
The State of Vermont sued Exxon and other oil companies in 2021. The case is currently in the District Court of Vermont awaiting a decision on motions to remand.
King County v. BP p.l.c.
King County Washington sued five fossil fuel companies in May 2018 and voluntarily dismissed its claim in September 2021.