The United States Supreme Court recently heard a case on climate change that may help determine the fate of many similar lawsuits across the country.

In July 2018, the Mayor and City of Baltimore filed suit in Maryland state court against over two dozen oil and gas companies. The state contends that they are partly responsible for climate change. The complaint laid out eight causes of action, all founded on Maryland law, and sought monetary damages, civil penalties, and equitable relief.

Two of the defendants removed the case to federal court, asserting eight grounds for removal. Baltimore then moved to remand the case back to state court. The district court rejected all eight grounds for removal and granted Baltimore’s motion for remand back to state court.

Oral Argument About Procedural Question, not Climate Change

The New York Times reports that the oral argument in BP P.L.C. v. Mayor and City Council of Baltimore wasn’t about whether climate change is real or caused by greenhouse gases generated by humans. Nor was the hearing was about whether fossil fuel companies should pay Baltimore for the costs of climate change—which is the claim in the underlying lawsuit.

Instead those issues, the Supreme Court justices granted the petition for writ of certiorari to hear the case on just one extremely technical legal question. That question is what should the disposition of a case be when a federal court sends it to state court for hearing? In this case, again, the plaintiffs filed the case in state court, then the fossil fuel companies attempted to move it to federal court. They hope to receive a warmer welcome and a more favorable result there.

The Procedural Background

The fossil fuel companies appealed the remand order, and the Fourth Circuit Court of Appeals affirmed the lower court, holding that 28 U.S.C. § 1442 (the federal officer removal statute) didn’t provide a proper basis for removal of the action relating to climate change.

That law allows the removal of lawsuits filed in state courts against federal officers or anyone acting as a federal officer. Here, Chevron argued that the city was trying to hold the oil companies liable for actions that they took at the direction of federal officials, like offshore fossil fuel production under leases with the federal government, that led to climate change.

Thus, the question before the high court is whether, in hearing the appeal of a decision to remand a case to state court, must a federal appeals court must limit its review to the two very specific and narrow reasons that the law allows…or are they free to look more broadly at the lower court’s decision.

Tough Questions from the Justices About Climate Change and Jurisdiction

Kannon Shanmugam, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, represented the oil and gas companies, told the Justices that 28 U.S.C. § 1447(d) “permits review of the entire order, not particular issues.” Shanmugam answered several questions from justices who were concerned that defendants could use the exceptions for federal-officer and civil-rights removals as a loophole to ensure that they could have the court of appeals review the entire order sending the climate change case back to state court—even if the grounds for federal-officer or civil-rights removals were frivolous.

Chief Justice John Roberts raised this first, asking Shanmugam why “everyone who wants to keep their case in federal court” wouldn’t “put in as many grounds for removal as they can,” and “all they have to do is tack on one of these federal officer or federal civil rights grounds? Is that right?”

Shanmugam responded that courts could sanction a defendant that raised a frivolous ground for removal. Further, the attorney said that there was no evidence that defendants actually tried to use the exceptions to obtain review of the entire remand order for the climate change case.

However, Justice Stephen Breyer didn’t seem to be convinced. If so, a defendant will rely on the federal-officer removal statute or a civil-rights statute as a reason to remove the case to federal court. Breyer said there’s a “big difference” between a ground being frivolous and meritorious, and defendants will add one of those grounds. If the federal court doesn’t hold the claim frivolous, a defendant “will appeal on everything,” which will result in additional delay – directly contrary to the purpose of the statute, which was intended to “cut down on the time and delay caused by appeal.”

Justices Appeared Divided

After over an hour of oral argument, the Justices appeared divided. Oservers found it difficult to predict exactly how the Court will decide the climate change case. They do expect a decisiojn by this summer.

Justice Samuel Alito Jr. disqualified himself from the case, most likely because of a financial conflict. Environmental groups argued that Justice Amy Coney Barrett—whose father had worked for Shell Oil Company—one of the defendants, should also have recused herself, but she participated in the argument.

There are about 20 climate cases similar to Baltimore’s that have been filed by cities, counties, and states nationwide since 2017. The first was in California, then Colorado, Minnesota, and Rhode Island, along with Hoboken, N.J. The Court’s decision will have an impact these cases in which local governments are looking to force the fossil fuel industry to pay compensation for coastal flooding, adverse health outcomes, and other effects of climate change.