The U.S. Court of Appeals for the Tenth Circuit ruled in February 2022 that federal jurisdiction did not exist over a case brought by a group of Colorado municipalities accusing several energy companies of climate change-related harm.^[1] Those municipalities allege in Board of County Commissioners v. Suncor Energy (U.S.A.) Inc. claims of public and private nuisance, trespass, unjust enrichment, civil conspiracy, and violations of the Colorado Consumer Protection Act and seek millions of dollars to adapt and repair infrastructure in addition to compensatory damages and attorneys’ fees.^[2]

The case was initially filed in Colorado state court and was later removed to federal court by the defendants, who cited a number of grounds for removal: original federal jurisdiction under the Outer Continental Shelf Lands Act (OCSLA), the federal officer removal statute, that the municipalities’ claims arose only under federal common law, and preemption under the Clean Air Act.^[3]

The federal district court remanded upon motion by the plaintiffs and the matter wound its way through the Tenth Circuit and the U.S. Supreme Court until, ultimately, the Supreme Court remanded it to the Tenth Circuit in light of its recent holding in BP, P.L.C. v. Mayor and City Council of Baltimore.^[4]

In City of Baltimore, the Supreme Court addressed federal officer removal jurisdiction and held that courts of appeal are permitted to review an entire remand order, not just the portion of the remand order addressing federal officer removal.^[5] The Tenth Circuit, in its initial review in 2020, determined that appellate courts were only empowered to review removal and remand decisions as they relate to removal based on federal officer jurisdiction.^[6]

The Tenth Circuit, now furnished with broad scope to review all of the defendants’ grounds for removal, affirmed the district court’s remand decision for a second time, holding that the case should be litigated in state court.^[7] The Tenth Circuit found that federal officer removal was inapplicable as the defendants’ compliance with federal leases was not enough to confer the requisite relationship for removal,^[8] that the municipalities were exclusively relying on state law,^[9] that there was not a substantial question of federal law in dispute,^[10] that the Clean Air Act and other federal law did not completely preempt state law in this arena,^[11] and that federal court jurisdiction under OCSLA was inappropriate.^[12]

As discussed briefly above, another climate change lawsuit has wound its way through the federal courts. After the Supreme Court addressed removal jurisdiction, the Fourth Circuit has likewise remanded a climate change lawsuit back to state court in in Mayor and City Council of Baltimore v. BP P.L.C., et al.^[13]

The city of Baltimore, like the Colorado municipalities, brought claims against a number of multinational energy companies for public and private nuisance, design defect claims, failure to warn, trespass, and violations of the Maryland Consumer Protection Act.^[14] The case was removed to federal court on similar removal grounds: federal common law, preemption under the Clean Air Act, the Outer Continental Shelf Lands Act (OCSLA), and the federal officer removal statute.^[15]

Baltimore moved to remand, the district court granted that remand, the defendants appealed to the Fourth Circuit, who reasoned that it could only review the propriety of removal under the federal officer statute, and then the matter proceeded to the Supreme Court, who addressed it as described above.^[16]

The Fourth Circuit, armed with a broader scope of review, again affirmed the district court’s remand decision for a second time in a fashion similar to the Tenth Circuit: federal common law is inapplicable as Baltimore’s complaint alleges only state law claims,^[17] there is not a substantial question of federal law in dispute,^[18] the foreign affairs doctrine does not preempt Baltimore’s state law claims,^[19] the Clean Air Act did not preempt state law,^[20] federal jurisdiction under OCSLA was inappropriate as Baltimore’s alleged injuries would exist irrespective of activities on the outer continental shelf,^[21] and federal officer removal was inapplicable as the defendants’ compliance with federal leases and fuel supply agreements (with an agency of the federal government) was an insufficient relationship for removal.^[22]

[1] Board of County Commissioners v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1275 (10th Cir. 2022).

[2] Id. at 1248.

[3] Id. at 1248 – 49.

[4] Id. at 1249; see also Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners, 141 S.Ct. 2667 (2021).

[5] BP P.L.C. v. Mayor and City Council of Baltimore, 141 S.Ct. 1532, 1538, 1543 (2021).

[6] Board of County Commissioners, 25 F.4th at 1249.

[7] Id. at 1275.

[8] Id. at 1253 – 54.

[9] Id. at 1262.

[10] Id. at 1267 – 71.

[11] Id. at 1264 – 65.

[12] Id. at 1275.

[13] 31 F.4th 178, 238 (4th Cir. 2022).

[14] Id. at 194.

[15] Id. at 196.

[16] Id. at 196 – 97; see also BP P.L.C., 141 S.Ct. at 1543.

[17] City of Baltimore, 31 F.4th at 208.

[18] Id. at 212.

[19] Id. at 214.

[20] Id. at 217.

[21] Id. at 221 – 22.

[22] Id. at 231 – 34, 238.