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BP v. Mayor and City Council of Baltimore

Oil Company Defendants Seek a Federal Venue for the Climate Change Case Against Them 

In the United States Supreme Court

ArgumentJanuary 19, 2021
Petitioner BriefBP, et al.
Respondent BriefMayor and City Council of Baltimore
Opinion BelowFourth Circuit Court of Appeals

Baltimore sued 26 multinational oil companies, alleging they are partially responsible for the damage caused by climate change. The oil companies would rather not have the case heard in Maryland state court, so they requested to “remove” the case to federal court in Maryland. 

This case in the Supreme Court asks whether the Fourth Circuit Court of Appeals erred in reviewing the oil companies’ request for removal.

The Lawsuit

The Mayor and City Council of Baltimore brought the lawsuit, claiming they suffer damage from the effects of climate change and that certain oil companies pushing fossil fuel products are partially responsible. The oil companies sued in the case include BP, Chevron, ExxonMobil, Shell Oil, Citgo, Marathon, Speedway, Hess, Phillips 66 and others.

The case alleges that the companies produced, promoted, and misleadingly marketed fossil fuel products after learning of the products’ dangers and connection to global warming. According to Baltimore, the companies engaged in a “coordinated multi-front” effort to conceal knowledge, to discredit scientific evidence and to undermine public support for regulation while seeking unrestrained expansion of their products.

The merits of the case are not at issue in the Supreme Court, at least not yet. This Supreme Court case involves the oil companies’ request to remove the lawsuit from Maryland state court to federal court.


Certain cases can be filed in either state court or federal court. The plaintiff makes the choice because the plaintiff files the case, but sometimes it’s the defendant who prefers a federal venue. Often it’s because the defendant fears it will face prejudice or bias in the state court.

The threat of prejudice is real in this case because the defendant oil companies face a suit by local government actors, who are more connected to the state courts than the defendants are. 

If a plaintiff files a case in state court, but the case could have been filed in federal court, the defendant may seek to remove the case.

The defendant must satisfy one of several grounds for removal, based on federal court jurisdictional requirements. If the case involves an issue of federal law, for example, federal courts have jurisdiction. Additionally, a number of federal laws specifically grant federal jurisdiction for certain types of cases.

In this case, the defendants asserted a number of grounds for federal court jurisdiction, including one ground that is covered by a specific statute (the federal officer removal statute, 28 U.S.C.  § 1442) and another asserting that the plaintiffs’ claims arise under federal law. Unfortunately for the defendants, the federal district court in Maryland didn’t go for it and instead sent the case back to state court.

Appeal of the Remand

After the federal court remanded the case back to state court, the defendants appealed. They asked the Fourth Circuit Court of Appeals to review whether the Maryland district court had properly reviewed the grounds for federal court jurisdiction. 

In determining its own jurisdiction to hear the appeal, the Fourth Circuit relied on  28 U.S.C. § 1447(d), which says:

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 Fourth Circuit interpreted that 1447(d) only allows it to review the grounds for appeal specifically listed in it: those removed pursuant to section 1442 or 1443

The oil companies’ removal claims included section 1442 and other grounds not listed in the statute. Thus, the Fourth Circuit reviewed only whether the district court correctly decided the oil companies’ section 1442 claim. In reviewing the section 1442 claim, the Fourth Circuit agreed with the district court that the oil companies did not have jurisdiction.

The Supreme Court Appeal

The oil companies appeal now to the Supreme Court, claiming the Fourth Circuit improperly limited its review to their section 1442 claim. 

They argue 28 U.S.C. § 1447(d) should be interpreted differently. According to the oil companies, the text doesn’t say the appeals court can only review the section 1442 claim. The statute specifically says the appeals court can review the order containing the section 1442 claim. And, the oil companies point out, the order includes the entire set of removal grounds:

Such a command necessarily rejects all of the defendant’s grounds for removal, because the case must remain in federal court if there is any basis for federal jurisdiction. An appeal of a remand order thus brings all of those grounds for removal before the court of appeals, and the court of appeals cannot affirm unless each lacks merit. Review of a remand “order” therefore necessarily entails review of all of the defendant’s grounds for removal.

In defense of the Fourth Circuit’s reasoning, Baltimore points out that section 1447(d) was meant to avoid “prolonged litigation of non-dispositive jurisdictional issues.” According to Baltimore, limiting courts to reviewing only those two types of removal grounds listed in section 1447(d), is the common sense view, because otherwise the additional removal grounds attached to the same order are included arbitrarily. In effect, the oil companies interpretation will encourage gamesmanship, where parties include a meritless section 1442 claim, just to ensure their entire set of removal grounds is considered on appeal.

The Supreme Court will hear arguments on January 19, 2021.

Correction: An earlier version of the graphic illustrated the City of Baltimore too broadly on the Maryland map.

BP v. Mayor and City Council of Baltimore

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About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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