By Ari Blemur (he/him), Senior Staff Member, 3L

Procedural Background

In July of 2018, the Mayor and City Council of Baltimore (collectively, the “City”) sued twenty-six energy companies in Maryland State court, alleging that the companies concealed the negative environmental impacts of the fossil fuels they promoted and advertised. In its complaint, the City asserted claims of public nuisance, private nuisance, strict liability failure to warn, strict liability design defect, negligent design defect, negligent failure to warn, and trespass, as well as a cause of action under Maryland’s Consumer Protection Act. 

The defendants originally removed the case to federal court, alleging federal jurisdiction under the federal officer removal statute, 28 U.S.C. § 1442, and the civil rights removal statute, 28 U.S.C. § 1443, among others. However, in June of 2019, the Federal District Court of Maryland remanded the case to state court, finding no basis for federal jurisdiction under federal question jurisdiction or the defendant’s alternative bases for federal jurisdiction. The defendants then appealed to the Court of Appeals for the Fourth Circuit in October of 2019, which held that it lacked jurisdiction to review all the lower court’s rejections for removal grounds. This holding was based on the Court of Appeal’s interpretation that they were authorized by Congress to review on appeal those orders “remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of [Title 28].” 28 U.S.C. § 1447(d) (stating “an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.”) The defendants then petitioned to the Supreme Court in March of 2020, and the Supreme Court granted certiorari.

Justice Gorsuch held that the Fourth Circuit erred in holding that it did not have the authority to consider all of the defendants’ grounds for removal to federal court under 28 U.S.C. § 1447(d) and remanded the case back to the Fourth Circuit for proceedings consistent with its ruling. Consequently, the Fourth Circuit held a second trial in April of 2022, and again remanded the case to state court. This time, the circuit court held that because it lacked subject matter jurisdiction and rejected all other grounds for removal to federal court, the matter must be decided in State court. 

In July of 2024, the Maryland Circuit Court heard the case, holding that the Clean Air Act displaced federal common law related to domestic emissions and preempted the City’s state law claims based on domestic emissions. The court found that the City failed to state claims of public and private nuisance, failure to warn, design defect, and trespass. The court also ruled that Baltimore’s Maryland Consumer Protection Act claim was time-barred. This was an especially frustrating ruling for the City because, aside from the Circuit Court not ruling in their favor, the claims that the Court said the plaintiffs failed to make were the exact claims that the plaintiffs tried to make in their original complaint in 2018. Therefore in part due to the six year procedural conundrum the plaintiffs had to endure, the arguments in the plaintiff’s original complaint ultimately fell short.

Implications

This lawsuit began as a quest to hold large corporations accountable for mass-producing fossil fuel emissions that were polluting the city of Baltimore, worsening climate change, and then lying about the effects of their practices. However, the case turned into a six-year procedural whirlwind through the intricacies of federal question jurisdiction and the Federal Rules of Civil Procedure. Since this precedent is publicly available, the defendants’ accidental (or intentional) strategy of removal to federal courts to time-bar claims that plaintiffs are bringing against a corporation and their constituents likely will not work again. By pulling attention away from the merits and focusing the case on the procedural correctness of the parties and the courts that heard the case, the defendants shifted the focus of the issues in such a way that they were lost under a pile of bureaucratic formality. Even though the Mayor and City Council of Baltimore had a strong case on its face, the issues they ran into dealing with procedural alignment stopped them from prevailing in their original pursuit of holding companies concealing the dangers of fossil fuel usage accountable. While many lawyers will find this precedent and avoid going down a similar path as the plaintiffs here, this procedural conundrum is not uncommonly seen in the practice of law. This means that, going forward, the best strategy for those attempting to enforce state climate control policies on mass polluters is to be succinct, quick, and wary of the Clean Air Act.