Argument evaluation: judges within the procedural battle between Baltimore, oil firms within the local weather battle

Kannon Shanmugam advocates BP and other fossil fuel companies (Art Lien)

In a 2015 speech at Harvard Law School, Justice Elena Kagan told the audience that “we are all textualists now” – that is, any attempt to interpret a statute begins (and often ends) with the language of the statute . This principle could ultimately prove to be optional in BP against the mayor and city council of Baltimore, in which the judges heard an oral hearing on Tuesday about a procedural aspect of a major climate protection case. Although the judges raised concerns about the impact of a judgment on the oil and gas companies defendants in the lawsuit, some of them also appeared to be convinced by the companies’ argument that their interpretation of federal law was more at the center of the dispute Consistent with the actual legal text.

The case began in 2018 when the city of Baltimore sued a group of oil and gas companies, including BP, Chevron, and Exxon Mobil, for blaming the companies for their role in climate change. Chevron transferred – the term is “removed” – the case to Maryland Federal District Court, a move permitted under federal law. One of the reasons Chevron relied on the elimination of the case was a law known as the “Federal Official Removal Act,” which allows for the elimination of lawsuits in federal courts against federal officials or those serving as federal officials: Chevron alleged that the city was trying to hold the oil companies accountable for actions they took on orders from federal officials, such as producing fossil fuel offshore under leases with the federal government.

After the district court returned the case to the state court, the companies appealed to the U.S. 4th Circuit Court of Appeals. Under federal law, most orders that refer a case back to a state court cannot be appealed. However, there are two narrow exceptions to redress in cases where the removal was based on either the federal official’s stature or some other law that provides for the removal of civil rights cases. The appeals court ruled that the federal civil servants ‘deportation act was improper and rejected the companies’ argument that it could review the remainder of the district court’s order to return the case to the state court.

Attorney Kannon Shanmugam, representing the oil and gas companies, told the judges that 28 USC Section 1447 (d), the Precautionary Warrant Appeal Act, “allows the entire order to be reviewed, not specific issues.”

Shanmugam raised several questions from judges concerned that defendants might use the federal official and civil rights exemptions as a loophole to ensure the appeals court could review the entire order and even send the case back to the state court if the reasons were frivolous for removing federal officials or civil rights. Chief Justice John Roberts addressed this possibility first, asking Shanmugam why “anyone wishing to keep their case in federal court” would not “bring as many reasons for removal as possible” and “all they have to do is do.” to carry on. ” one of these federal officials or federal citizenship reasons? Is that correct?”

Shanmugam assured Roberts that courts could sanction a defendant who brought a frivolous reason for removal. In addition, there is no evidence that the defendants actually tried to use the exceptions to obtain a review of the entire investigation warrant.

Judge Stephen Breyer did not seem convinced. If you are right, he told Shanmugam, a defendant will rely on the Federal Official Removal Act or a civil rights law to bring the case to federal court. Since there is a “big difference” between a frivolous reason and a meritorious reason, suggested the defendants, the defendants will add one of those reasons. Assuming the federal court does not find this reckless, a defendant will “appeal everything” which will result in additional delay – directly contrary to the purpose of the law, which “should shorten the time and delay” by calling. “

Justice Clarence Thomas also admitted skepticism. He told Brinton Lucas, assistant attorney general, who argued on behalf of the United States in support of the corporations, that while his reading of Section 1447 (d) may or may not be correct, “I cannot avoid the strange feeling, that it looks like we’re sneaking our way into the appeals test … other issues that aren’t necessarily the issues that are in the foreground, “like the removal of federal officials.

Lucas countered that such a scenario “is really not that unusual”. In other contexts, he noted, “the reasons that trigger an appeal review do not necessarily define the scope of that review.” And in any case, Lucas later added, the theoretical possibility of undesirable consequences is no reason to “dismantle” investigative orders.

Some judges also suggested that the corporations’ position was undermined by the 2011 decision by Congress to add the Federal Official Removal Act as an exception to the general bar association for appeal review of pre-trial detention orders. Congress made this change in the light of repeated appeals court rulings limiting appeals review of pre-trial detention warrants to the reason for removal – which, in Judge Sonia Sotomayor’s view, indicated that Congress understood that the scope of the appeals review did not have other grounds the appeal would include removal and had “ratified” the judgments of the lower courts.

Justice Brett Kavanaugh similarly identified the “ratification” doctrine as a business issue. What do we say to that? He asked once? The law was established and “no one had gone the other way”. But Kavanaugh later admitted that, in his view, the doctrine was sometimes “overused”.

Both Shanmugam and Lucas emphasized that the text of section 1447 (d) was on the side of the companies. Shanmugam argued that there is no way of interpreting the provision allowing an appeal review of a “remittal order” to mean that only “part of a resolution” can be examined.

Roberts seemed receptive to the corporations’ text-based reasoning. He said Victor Sher, who argued for the city, would give him “three consecutive minutes to explain to me the language” a remittal order may be reviewed by appeal or otherwise “Should be read to say part of an order remitting a case may be reviewed by appeal or otherwise.”

Sher urged the court to look at the verdict as a whole, including the first clause, which provides for a general ban on appeals review of pre-trial detention orders. The use of the words “order” and “reviewable” by Congress does not mean that the appeals court must deal with all of the issues raised in an order. Courts “often have untangled” problems, Sher said.

Judge Neil Gorsuch also focused on the text of Section 1447 (d). Everyone agrees, Gorsuch said, that the first reference in Section 1447 (d) to “an order remitting a case” – in the general bar for review of pre-trial detention orders – applies to the entire order. And the Supreme Court usually interprets a term in the same way in a law, which would suggest that the second reference to “an order” as part of the exceptions to the general bar also applies to the whole order.

Kavanaugh also noted that the “text in isolation” was a problem for the city, and this time he was skeptical about the weight the court should give to the “ratification” doctrine. “It looks like it has been used a lot,” he remarked, “as the icing on an already frozen cake.” “I’m just wondering,” he went on, “how much work it can do here,” unless it is clear, “that Congress was actually focused on, and in some way intended to ratify the interpretation.”

Judge Amy Coney Barrett repressed Sher’s argument that a case was not “removed” “under” federal civil servants or civil rights removal laws, “unless it was properly removed for these reasons.” “Has any court of appeal,” she asked, “ever adopted that argument?”

After more than an hour of arguing, the judges seemed divided and it was difficult to predict how the case is likely to turn out, especially with Judge Samuel Alito being expelled from the case. A decision is expected by summer; However, the court decides on the case. His decision will impact not only in this case, but also in 19 other similar cases across the country where local governments are trying to force the fossil fuel industry to pay compensation for coastal flooding and unhealthy consequences and other effects of climate change.

This post was originally published on Howe on the Court.

Posted in BP PLC Vs Baltimore Mayor and Councilor, Featured, Merits Cases

Recommended citation:
Amy Howe, argument analysis: judge in litigation between Baltimore, oil companies in the climate fight,
SCOTUSblog (January 20, 2021, 11:26 am), – Climate fight /

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