Extreme rainfall driven by climate change has plagued Baltimore, which filed a climate liability suitBaltimore, beset by climate impacts such as extreme rainfall events, had its climate liability suit sent to state court by a federal judge. Photo credit: Jonathan Newton/Washington Post via Getty Images

By Karen Savage

A federal court judge ruled on Tuesday that Baltimore’s climate liability suit against more than two dozen fossil fuel companies belongs in state court. The city filed the original case there last July and argued against the companies’ attempts to have the case heard in federal court.

The fossil fuel defendants relied on a “proverbial ‘laundry list’ of grounds for removal,”  U.S. District Judge Ellen L. Hollander wrote in her decision, explaining why she rejected each of those grounds in a detailed ruling. She took particular pains to explain that the public nuisance claims the city is pursuing can only be decided in a state court and the city  “nowhere even alleges that the defendants violated any federal statutes or regulations.”

The ruling is important because all of the liability suits that have been filed by communities across the country against the oil industry are embroiled in a battle over jurisdiction, with the cities trying to get the cases heard in state court under state laws and the industry fighting to put them in federal court, where past climate-related cases have been decided largely in its favor.

“We’re happy to see this case return to the state court where it was filed, and where it belongs,” said Andre M. Davis, Baltimore’s city solicitor. “While we expect the fossil fuel companies to continue to delay and distract from the merits of our case, we are eager to get to work to hold these fossil fuel companies accountable for the costs and damages of climate change,”

Baltimore alleges in the suit that ExxonMobil, Chevron, Shell and 23 other fossil fuel producers and distributors knew for decades about fossil fuels’ role in driving climate change but deliberately failed to inform the public about those risks.

The city charges the companies with eight legal violations, including  public nuisance, private nuisance, failure to warn and violations of the Maryland’s consumer protection laws.

In the suit, Baltimore details how the city is already adversely affected by climate change and how  its residents are already suffering health effects related to increased heatwaves and increased precipitation. Its approximately 60 miles of waterfront is also vulnerable to sea level rise and flooding.

Lead by Chevron, the fossil fuel companies moved the suit to federal court shortly after it was filed. The city then moved to return the suit to state court, the question Hollander decided on Tuesday. She did grant the companies a 30-day stay so they can prepare an appeal to the Fourth Circuit Court of Appeals.

In her decision, Hollander said Baltimore’s public nuisance claim belongs in state court. “It may be true that the City’s public nuisance claim is not viable under Maryland law. But, this Court need not – and, indeed, cannot – make that determination.” She also noted that “no federal question jurisdiction exists over the city’s public nuisance claim, which is founded on Maryland law,” she wrote.

Hollander also said the city’s nuisance claims, which are based on the “extraction, production, promotion and sale of fossil fuel products without warning consumers of their known risks” rely only on state nuisance law, do not rely on federal statutes or regulations.

Hollander also pushed back on the reasoning of another federal judge, William Alsup, who dismissed similar cases filed by Oakland and San Francisco in June 2018. Alsup had previously ruled that the case should be heard in his court because federal law pre-empted state law regarding climate change. Hollander wrote that Alsup’s ruling “is at odds with the firmly established principle that ordinary preemption does not give rise to federal question.”

She also determined that the fossil fuel defendants’ arguments for removal to federal court relied on a “mischaracterization of the city’s claims.”

“The Complaint does not allege that defendants violated any duties to disclose imposed by federal law. Rather, it alleges that defendants breached various duties under state law by, inter alia, failing to warn consumers, retailers, regulators, public officials, and the city of the risks posed by their fossil fuel products,” wrote Hollander, adding that she rejects attempts by the fossil fuel companies to “inject a federal issue into the City’s state law public nuisance claim where one simply does not exist.”

The companies also argued that Baltimore’s claims have an impact on foreign affairs, a contention also rejected by Hollander, who said the fossil fuel companies “wholly fail to demonstrate that a federal question is ‘essential to resolving’ the city’s state law claims.”

The other communities with suits pending against many of the same companies are awaiting jurisdiction decisions that may prove pivotal in the fate of their cases. Several California communities— Santa Cruz, Imperial Beach and the counties of Marin, San Mateo and Santa Cruz—were remanded to state courts, but the fossil fuel industry has appealed that decision to the Ninth Circuit Court of Appeals.  

A federal court judge in Louisiana last week ruled that a suit filed by Plaquemines Parish belongs in state court. That suit is one of 42 filed by Louisiana parishes against oil and gas companies for damaging the coastal wetlands and increasing the state’s vulnerability to sea level rise and other climate impacts.

Baltimore Mayor Bernard C. “Jack” Young  said the ruling moves his city and its residents one step closer to holding the oil and gas companies accountable for climate change.  

“Today is a good day for Baltimore’s hard-working residents, workers, and taxpayers,” Young said. “They should not be forced to pay the enormous costs the city is incurring to cope with climate change-related damages the fossil fuel companies knowingly inflicted on us.”  

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