City of Imperial Beach, Marin and San Mateo Counties
In July 2017, the City of Imperial Beach, California and the California counties of Marin and San Mateo filed separate suits in state court against fossil fuel companies. The complaints alleged that the companies’ production, promotion and marketing of fossil fuel products while concealing the known climate change impacts of their products caused the governments’ injuries. The injuries include more frequent and more severe flooding and sea level rise that threatens the governments’ public infrastructure. The local governments advance eight claims in seeking relief that includes compensatory damages, abatement of the alleged nuisance and disgorgement of profits.
In March 2018, the federal district court in the northern district of California, after ruling that the complaints were related and should be heard together, held that the local governments’ lawsuits belong in state court as the claims brought by the local governments are state law claims. That same month the defendant fossil fuel companies notified the federal district court that the companies were appealing the lower court decision to the Ninth Circuit Court of Appeals.
In January 2019, California Attorney General Xavier Becerra led a coalition of eight attorneys general in filing an amicus brief with the Ninth Circuit. The attorneys general requested that the district court decision be upheld and that the local governments be allowed to pursue their claims against the oil companies in state court.
In June 2019, the local governments wrote to the Ninth Circuit to notify the court of the ruling in the Baltimore climate litigation. The next month, July 2019, the Ninth Circuit ordered that the appeal in the local governments’ litigation and the appeal of the City of Oakland and City and County of San Francisco (below) would be heard by the same three-judge panel. In May 2020, the Ninth Circuit issued a decision siding with the attorneys general in affirming the March 2018 lower court decision that there was no basis for federal jurisdiction and the local governments’ complaint should be heard in state court. In August 2020, the Ninth Circuit denied the oil companies’ petition for rehearing en banc.
In August 2020, the defendant oil companies filed a motion with the Ninth Circuit to stay the issuance of a mandate that the litigation be returned to state court in order to allow the oil companies to petition for a writ of certiorari with the Supreme Court to challenge the Ninth Circuit’s May 2020 decision. A few weeks later the Ninth Circuit granted the stay request for 90 days to permit the oil companies to file a petition for a writ of certiorari.
City of Oakland and City and County of San Francisco
In September 2017, the City of Oakland and City and County of San Francisco filed separate lawsuits against large fossil fuel companies in state court. The complaints stated that the companies have produced and promoted the use of fossil fuels despite the knowledge that fossil fuels contributed to climate change-caused sea level rise, a public nuisance that will continue to injure public property and land in Oakland and San Francisco. The cities are seeking relief that would include the establishment of an abatement fund to finance infrastructure needs in Oakland and San Francisco to address sea level rise and other climate change impacts.
In February 2018, after the fossil fuel companies had removed the litigation to federal court, the federal district court in Northern California denied the cities’ motion to remand the litigation back to state court. The court ruled that public nuisance claims should be governed by federal common law. The following month, the companies filed a motion to dismiss the claims brought by Oakland and San Francisco, arguing that the public nuisance claims related to domestic greenhouse gas emissions are displaced under the federal Clean Air Act.
In May 2018, California Attorney General Becerra along with the attorneys general of New Jersey and Washington filed an amicus brief in support of the cities’ opposition to the motion to dismiss by the defendant companies. The amicus brief noted that the Clean Air Act could not displace the plaintiffs’ federal common law claims because the Clean Air Act regulates specific emissions from particular sources, not the production and marketing of fossil fuels or the defendants’ conduct outside of the United States. The following month, the judge in the northern district of California granted the motion to dismiss from the fossil fuel companies, finding that the cities’ claims were displaced under the Clean Air Act.
In August 2018, Oakland and San Francisco appealed the federal district court’s order to the Ninth Circuit Court of Appeals. In March 2019, the cities filed their opening brief in the appeal, requesting that the litigation be remanded back to the state courts as the district court lacked proper jurisdiction to hear the complaints.
In March 2019, California Attorney General Becerra led a coalition of 10 other attorneys general in filing an amicus brief in support of the cities’ efforts to hold the fossil fuel companies accountable for the production and marketing of climate change-causing fossil fuel emissions. The amicus brief noted that the cities’ complaints should have been remanded back to state court as the Clean Air Act recognizes states’ role in reducing air pollution and thus federal courts should not have exclusive jurisdiction over climate change cases.
In May 2019, the fossil fuel companies filed their opening briefs in the appellate litigation in the Ninth Circuit, arguing that the district court had jurisdiction to consider the cities’ complaints. In July 2019, the cities’ filed their reply brief in the Ninth Circuit litigation, noting the favorable decision in the City of Baltimore litigation that held that similar claims against oil companies for the impact of climate change properly belong in state court. Then the Ninth Circuit ordered that the cities’ appeal and the appeal by the City of Imperial Beach and Marin and San Mateo counties (above) be heard by the same three-judge panel.
On the same day that the Ninth Circuit issued its decision in the Imperial Beach and Marin and San Mateo counties litigation (above) in May 2020, the Ninth Circuit issued a decision vacating the lower court’s June 2018 decision to dismiss the cities’ lawsuit. The Ninth Circuit held that the cities’ state law-based claims were not preempted under federal law, including the Clean Air Act. The Ninth Circuit remanded the cities’ complaint to the northern district of California court for further proceedings. In August 2020, the Ninth Circuit denied the oil companies’ request for a panel rehearing or rehearing en banc.
New York City
In January 2018, New York City filed a lawsuit against the major fossil fuel companies in federal district court in New York. The lawsuit alleged that the fossil fuel companies produced and promoted the use of fossil fuels, even as the companies knew that burning fossil fuels would cause climate harms. The City brought three claims against the fossil fuel companies – public and private nuisance causes of action and trespass – for climate-caused injuries to City-owned property, funds the City has spent in responding to ongoing damage, and future damage that will be inflicted on City infrastructure.
In May 2018, the defendants filed a motion to dismiss the City’s complaint. The fossil fuel companies asserted that the City’s claims were displaced and preempted under federal common law and the Clean Air Act, respectively. In July 2018, the federal district court in New York dismissed the City’s claims, finding that federal common law displaces the City’s state law-based claims and that the federal Clean Air Act preempts the City’s federal common law claims.
Within a week of the dismissal, New York City notified the federal district court that it was appealing the district court order to the Second Circuit Court of Appeals. The City’s initial brief in the Second Circuit litigation asserted that the district court had erred in finding that federal common law displaces the City’s state-law based claims and holding the Clean Air Act preempts the federal common law claims.
In November 2018, former New York Attorney General Barbara Underwood led a coalition of nine attorneys general in filing an amicus brief in support of the City’s appeal of the lower court decision. The brief noted that claims similar to the City’s are not displaced by federal common law as Supreme Court case law does not support the conclusion that tort lawsuits related to harms stemming from greenhouse gas emissions are categorically outside the purview of state common law.
The attorneys general also pointed out that the lower court erred in determining that the Clean Air Act bars the City’s federal common law claims because the district court’s analysis of the City’s claims is inconsistent. If the Clean Air Act preempts federal common law, then there is no available federal common law to displace the City’s state common law claims. Instead, the remaining question is whether the Clean Air Act preempts state law, which it does not as Congress, in enacting the Clean Air Act, lacked a “clear and manifest” intent to preempt state common law claims with the legislation.
In February 2019, the fossil fuel companies filed their opening brief in the appellate litigation, arguing that the Second Circuit should affirm the lower court’s dismissal of the City’s claims. In the following month, March 2019, the City of New York filed its reply brief to the defendants’ opening brief.
City of Baltimore
In 2018, the Mayor and City Council of Baltimore filed a lawsuit against major oil companies in state court. The complaint alleged that the oil companies contributed to climate change by extracting, producing, promoting and selling fossil fuels, while deceiving the public about the known harms of fossil fuel products. Baltimore brought eight state law claims against the oil companies for the injuries – including rising sea levels and an increase in extreme weather events – the City has suffered as a result of climate change.
In July 2018, two of the defendant oil companies filed a notice of removal action to remove the litigation to federal district court in Maryland. Baltimore, in response, filed a motion to remand the lawsuit back to state court to properly hear the City’s state law claims. In June 2019, the federal district court in Maryland ruled that removal of the litigation to federal court was improper and granted Baltimore’s remand motion.
That same month the defendant oil companies appealed the district court ruling to the Fourth Circuit Court of Appeals. In September 2019, Maryland Attorney General Brian Frosh led a coalition of nine attorneys general in filing an amicus brief in support of Baltimore’s efforts to uphold the district court’s order remanding the case to state court. The amicus noted that reversing the district court’s order would be improper as Baltimore’s claims do not raise any federal issue, do not inherently arise under federal common law and are not preempted by the federal Clean Air Act.
In March 2020, the Fourth Circuit ruled in favor of Baltimore and upheld the district court’s order remanding the litigation back to state court. The court held that federal jurisdiction was improper because the defendant oil companies failed to show that federal officials had controlled their output of fossil fuels.
That same month, the defendant oil companies filed a petition for a writ of certiorari with the Supreme Court of the United States. The oil companies are seeking review of whether the federal-officer removal statute permits an appeals court 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. The oil companies had asserted the federal-officer removal statute as one of the grounds for removing the City’s complaint to federal district court.
In August 2020, the Maryland Circuit Court placed on hold state court consideration of the City of Baltimore’s lawsuit pending a Supreme Court decision on the oil companies’ petition for writ of certiorari and Supreme Court decisions in two cases involving questions about personal jurisdiction. The personal jurisdiction litigation is pertinent to the state litigation as the defendant oil companies asserted a lack of personal jurisdiction as the basis for dismissing the lawsuit in Maryland state court.
In October 2020, the Supreme Court granted certiorari on the oil companies’ petition. The Supreme Court will consider the oil companies’ contention that the district court’s remand of the litigation back to state court is subject to appellate review where the removing defendant premised removal in part on the federal-officer removal statute.
In November 2020, the oil companies filed their brief in the Supreme Court litigation, arguing that the City’s claims should be heard in federal court. A week later, the Trump administration filed an amicus curiae brief in support of the position of the defendant oil companies.
In December 2020, New York Attorney General Letitia James and Rhode Island Attorney General Peter Nerohna led a coalition of 20 attorneys general in filing an amicus brief with the Supreme Court in support of the City of Baltimore’s lawsuit. The attorneys general urged the Supreme Court to uphold the Fourth Circuit’s decision as the court properly limited its review of the district court decision to the question of federal-officer removal or civil rights jurisdiction. The brief also noted that nearly every other circuit court of appeals who had considered the question presented to the Fourth Circuit has adopted a holding similar to that of the Fourth Circuit in the City of Baltimore litigation.
Oral arguments were held in January 2021. In May 2021, the Supreme Court ruled that the oil companies could seek review of all the issues in the remand decision and sent the case back to the Court of Appeals.