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U.S. Supreme Court hears arguments in Baltimore’s climate change lawsuit against fossil fuel companies

The U.S. Supreme Court heard oral arguments Tuesday in a 2018 lawsuit filed by Baltimore City, which argues that fossil fuel companies ought to be held accountable for the impacts of climate change.

The suit targets 26 fossil fuel companies, including BP, Citgo and Chevron. It argues that the companies should pay damages for the impacts of climate change on the city — everything from coastal flooding in Baltimore to health impacts for citizens associated with rising temperatures — in part because they downplayed and concealed information about the dangers of fossil fuel emissions.

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Only the Supreme Court justices aren’t ruling on the case itself, but rather a procedural issue related to which court should hear the case.

Similar suits have been filed across the country, for which the Supreme Court’s verdict could prove telling.

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Baltimore and the companies have long feuded over where the suit belongs. The city originally filed in state court, arguing that its litigation was focused on harm done specifically to Baltimore, but the energy companies have argued that the case belongs in federal court because it involves national fossil fuel emissions.

Most recently, the Fourth Circuit Court of Appeals ruled that case should be heard in state court. The companies appealed this decision to the Supreme Court.

Tuesday, the two sides grappled over what exactly the Court of Appeals was within its right to consider as part of its ruling. But experts say the Supreme Court could issue a broader decision about whether federal or state courts have jurisdiction in this type of climate litigation.

“It would be appropriate for the court to resolve that question,” said Kannon Shanmugam, a lawyer representing the corporations, during oral arguments. ”And the answer to that question is clear because this court for more than a century has applied federal common law to claims seeking redress for interstate pollution.”

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But the city disagreed, arguing that the case is specific to Baltimore and that it deals with consumer fraud, which is a matter traditionally handled in state courts.

“The conduct complained of is: fraud, deception, denial and disinformation, and those are traditional state foci,” Victor Sher, a lawyer representing Baltimore, said during oral arguments.

Robert Percival, a professor at the University of Maryland Francis King Carey School of Law who teaches environmental law, said he thinks it’s unlikely that the Supreme Court will take up the larger issue of state versus federal jurisdiction in climate litigation.

“The reason [the fossil fuel companies] want it in federal court, ultimately, is because they know that there’s now a solid 6-3 conservative majority on the Supreme Court that ultimately could reverse any judgment against them,” Percival said. “If it’s in state court, Maryland Court of Appeals would be the ultimate authority on whether they violated state law.”

The justices spent much of the time Tuesday assessing a far more narrow issue. Under most circumstances, an order that remands a case to state court cannot be appealed. But, there are exceptions if a case concerns federal officers or civil rights.

The question at hand is: If a ruling is appealed using one of those two exceptions, can appeals courts consider all arguments, or just the ones related to federal officers or civil rights?

The corporations had tried to assert that their use of fossil fuels was done at the direction of federal officials — since the government leased areas for fossil fuel extraction — so they were within their right to appeal. The Fourth Circuit Court of Appeals rejected that reasoning, but didn’t consider their other arguments for the case to go to federal court.

Based on the justices’ questions, Percival said it seems likely that they’ll rule that the Court of Appeals must consider all of the companies’ arguments — not just the one about federal officers.

That would slow the case by sending it back to the Court of Appeals, rather than allowing it to proceed in state court.

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