Big Oil tees up another high court climate plea

Source: By Jennifer Hijazi, E&E News reporter • Posted: Tuesday, August 11, 2020

Chevron Corp., BP PLC and other giants in the fossil fuel industry are planning to ask the justices to weigh in on whether appeals courts can review decisions by lower benches to send cases back to state court — a question that’s plagued multiple lawsuits by U.S. cities, states and counties seeking to recoup the costs of addressing climate impacts.

In a motion filed yesterday, the companies asked the 9th U.S. Circuit Court of Appeals to hold off on tossing San Mateo’s climate case back to state court pending Supreme Court review.

“A stay is warranted because Defendants’ petition for certiorari will raise a substantial question that has divided the circuits,” the companies told the appeals court.

A similar petition, BP v. Mayor and City Council of Baltimore, is currently pending before the Supreme Court, although the justices have not yet said whether they would intervene.

The Supreme Court has previously rejected two attempts by oil and gas firms to halt climate lawsuits that federal judges have sent back to the state courts where they were originally filed (Climatewire, April 2).

Allowing San Mateo’s case to proceed in state court before the justices have a chance to weigh in would be a huge inconvenience, the companies argued to the 9th Circuit yesterday.

“Defendants could be forced to incur substantial burden and expense litigating these six cases in four different state courts, which could entail briefing and resolution of various threshold and dispositive motions as well as potentially extensive discovery,” wrote attorneys for Chevron and other companies targeted by San Mateo’s lawsuit.

“Those harms will be irremediable if the remand is ultimately determined to be improper and further proceedings in federal court are required,” the attorneys said.

Industry has so far been unsuccessful in scrapping a number of climate damages cases brought by cities, counties and one state that seek to hold companies responsible for the consequences of global warming. Oil and gas companies have attempted to move the lawsuits to federal benches, where a judge could more easily dismiss the municipalities’ claims.

San Mateo’s consolidated lawsuit with three other California cities and counties was tossed back to state court in May after one such jurisdictional fight. The same 9th Circuit panel also resurrected a separate lawsuit led by Oakland and San Francisco.

The appeals court rejected industry’s request for rehearing in the San Mateo case. It has not yet made a rehearing decision in Oakland’s lawsuit (Climatewire, Aug. 5).