Last week, the 4th Circuit Court of Appeals affirmed the District Court decision remanding Baltimore’s climate change litigation to state court. I wouldn’t read too much into the decision, which is founded on the niceties of federal law governing removal of cases to federal court.
Basically, federal law severely limits courts of appeal authority to reverse erroneous remand orders:
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.
Thus, even if a District Court makes a plainly incorrect decision that federal courts lack subject jurisdiction over the case, the Court of Appeals may not review that incorrect decision. All of the oil companies’ arguments that these cases are inherently federal and must be decided by a federal court? Irrelevant to the Court of Appeals.
Thus, the only issue for the Court of Appeals here was whether what is known as the “federal officer” removal provision under section 1442 applied to plaintiff’s claims. Section 1442 applies to suits against:
any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.
To suggest that the oil companies were acting under the direction of the United States government in committing the acts related to climate change alleged by the plaintiffs is subject to my favorite rule of statutory construction – the “give me a break” rule. The only way this case gets reversed is if five members of the Supreme Court decide that all the climate cases belong in federal court and, as a result, the Court issues an ipse dixit decision, which SCOTUS certainly can do.