By Dana Drugmand
Fossil fuel companies facing a climate liability lawsuit brought by Baltimore argued in court on Wednesday that the case involves federal regulatory powers and should not proceed in state court.
The lawsuit, which seeks monetary damages to help pay for climate impacts, was originally filed in Maryland state court last year. The fossil fuel companies moved it to federal court, but U.S. District Judge Ellen Hollander ruled in June that it belongs in state court.
A three-judge panel from the Fourth Circuit Court of Appeals in Richmond, Va. heard arguments from both sides on Wednesday. These arguments will be repeated across the country as communities that have filed similar cases against the same companies are fighting to keep them in state courts, where they believe they have a better chance of success. The Ninth Circuit Court of Appeals will have a hearing in February in a batch of California climate cases. Two other cases brought by several Colorado communities and Rhode Island are also pending before appeals courts.
All of these cases are attempting to hold major fossil fuel producers liable for climate change harms. The communities allege that companies like ExxonMobil and Chevron engaged in an elaborate disinformation campaign to undermine climate science and deceive the public on the danger that fossil fuel products pose to the climate. The companies, the plaintiffs say, knowingly sold a dangerous product, lobbied against political action addressing the issue and caused millions of dollars of damages the communities are now struggling to pay for.
Attorney Vic Sher of the firm Sher Edling, which is representing Baltimore and several other plaintiffs in these climate cases, told the Fourth Circuit that the case centers around corporate behavior and promoting a harmful product, equating it to recent litigation against opioid manufacturers. Product liability of this kind violates state law that state courts should decide, he argued.
The fossil fuel companies, on the other hand, contend that this and similar cases are fundamentally about global greenhouse gas emissions. The companies argue that they operate on federal land under the permission of federal officials, thus invoking a “federal officer” exception that allows for appeal of orders remanding cases from federal to state court. Chevron attorney Theodore Boutrous Jr. told the Fourth Circuit judges that Baltimore is seeking to “punish” fossil fuel production on federal lands.
The case will proceed in Maryland state court while it awaits a ruling by the appeals court. A Baltimore city official said the city has a solid case and that the companies are intent on avoiding accountability.
“We have a very strong case, and four different federal judges around the country have already decided that climate damages lawsuits like Baltimore’s belong in state court,” City Solicitor Andre M. Davis said in a statement following the hearing. “Regardless of how the Fourth Circuit rules, we expect that the defendants will continue to do or say anything to avoid a trial on the merits in state court. They simply don’t want a jury of real people to hear the facts—that they knew about the damage their products would cause, that they spent the last 30 years deceiving people about what they knew, and that they now expect Baltimore’s residents, workers, and businesses to pay for all the damage they’ve caused.
“But they can’t run away from the facts forever: the climate change-related harms they knowingly caused are occurring right now in Baltimore, and the laws and remedies to hold them accountable for that behavior are well-established under Maryland state law.”