Chevron claims federal jurisdiction in Baltimore’s climate change suit
By: Heather Cobun Daily Record Legal Affairs Writer August 8, 2018
One of the oil companies named as a defendant in Baltimore’s lawsuit over climate change removed the case to U.S. District Court last week, making the same arguments that have gotten other cases around the country into federal courts — where subsequently they have been dismissed.
Chevron Corp. filed a 50-page notice of removal July 31 and argues Baltimore’s lawsuit, which alleges fossil fuel companies concealed dangers and engaged in campaigns to misinform the public of the dangers of their products, falls under federal jurisdiction because it involves interstate and international environmental concerns.
“In the Complaint’s view, a state court, on petition by a city, may regulate the nationwide — and indeed, worldwide — economic activity of key sectors of the American economy, those that supply the fuels that power production and innovation, keep the lights on, and that form the basic materials from which innumerable consumer, technological, and medical devices are themselves fashioned,” the filing states.
Attorneys from Rifkin Weiner Livingston LLC in Baltimore are serving as local counsel on the case.
A federal judge in California earlier this year upheld the removal of a similar lawsuit filed by Oakland and San Francisco because federal common law governed the case. He later dismissed the case, noting that while fossil fuels have contributed to global warming, they have had societal benefits.
“Without those fuels, virtually all of our monumental progress would have been impossible,” Judge William Alsup wrote in a June 25 memorandum opinion. “All of us have benefitted (sic). Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?”
A federal judge in New York dismissed a similar suit the day before Baltimore filed one, ruling the city’s claims were displaced by the Clean Air Act and otherwise interfered with separation of powers and foreign policy.
At a news conference announcing Baltimore’s lawsuit July 20, City Solicitor Andre M. Davis acknowledged the dismissed federal lawsuits but said he wants to keep the case in state court.
“We want to be very clear that we are asserting our claims strictly under state law, statutory and common law of Maryland, so we will be vigorously pursuing those claims and making what we believe are very strong and persuasive arguments for why this case should be in state court, should remain in state court, and that we have meritorious claims under state law,” Davis said.
Davis said Wednesday the removal notice was “as expected” and he expects other defendants to support the move.
Chevron contends there are eight distinct grounds for removing the lawsuit to federal court, including federal common law, federal question and federal law preemption.
Federal common law governs in areas where it would be inappropriate to apply state law because it would “contravene federal interests,” according to the filing. It has been applied in other global warming-based tort lawsuits, including those in California and New York.
“The conclusion that federal common law governs an issue rests, not on a discretionary choice between federal law and state law, but on a determination that the issue is so distinctively federal in nature that application of state law to the issue would risk impairing uniquely federal interests,” the filing states.
The lawsuit also raises “disputed and substantial federal issues” like greenhouse gas emissions, global warming, hydrologic cycle disruption and sea level rise,” according to the filing. These areas are also the subject of federal laws like the Clean Air Act and Outer Continental Shelf Act.
The case is Mayor and City Council of Baltimore v. BP P.L.C. et al., 1:18-cv-02357.