The 9^th Circuit Court of Appeals has issued two rulings that, combined with the recent 4^th Circuit ruling in the Baltimore case, makes it more likely that state and local public nuisance climate cases will be heard in state courts, rather than federal courts.  The two California cases got to the 9^th Circuit via different routes.

San Mateo v. Chevron is on all fours with the recent 4^th Circuit decision.  As in Baltimore, the defendants in San Mateo removed to federal court, but the federal judge remanded to state court.  The defendants appealed the remand, but the removal statute is very clear that, except in limited circumstances pretty obviously not in play here, even plainly wrong remand orders are not reviewable by courts of appeal.  Moreover, since the 9^th Circuit and the 4^th Circuit agreed, there is no circuit split to tempt SCOTUS.  Although a circuit split is still possible given pending cases in other circuits, it seems likely that, where a federal judge remands a case to state court, the case will be heard in state court.

City of Oakland was different.  There, the federal judge found that there was federal jurisdiction, refused to remand, and then dismissed under Rule 12.  The 9^th Circuit disagreed, concluding that the complaint did not create federal question jurisdiction.  It’s a rather deft decision (joined by a Trump appointee, I feel compelled to note).  The 9^th Circuit had already concluded, following the SCOTUS decision in AEP, that there is no federal common law of nuisance to be applied to climate change cases.  As a result, the Court basically hoisted the defendants on their own petard.  If there is no federal common law of nuisance, how can state complaints alleging violations of state nuisance law create federal question jurisdiction?  There’s more to the opinion, but that’s the crux.

Defendants still can hold out some hope.  They had raised a variety of federal question arguments that the district court did not address in its original opinion.  Therefore, the 9^th Circuit remanded so that the district court could address them.  Stay tuned for round 2.  In the meantime, the San Mateo case should start moving forward.