28 May 2021

U.S. Supreme Court Provides Procedural Victory to Defendants Seeking to Keep Climate Change Nuisance Litigation in Federal Court

On May 24, 2021, the U.S. Supreme Court vacated and remanded First, Ninth, and Tenth Circuit rulings that sent climate change litigation to state courts (Order List: 593 U.S. – May 24, 2021). The Supreme Court’s orders come fresh off its May 17, 2021, decision in Mayor and City Council of Baltimore v. BP P.L.C., et al., in which the Supreme Court addressed appellate court review of a district court’s remand orders.

Generally, 28 U.S.C. § 1447(d) bars appellate review of a district court’s remand order; however, § 1447(d) provides an exception for certain removal grounds, including federal officer removal. A circuit split arose in which some courts of appeals had ruled that when a case is removed on multiple grounds including federal officer removal, and the district court remands the case to state court, its appellate review could consider only the portion of the remand order involving federal officer removal. The Supreme Court resolved this split by holding that the ordinary statutory meaning of § 1447(d) allows review of the entire remand order when the federal officer removal exception is among the grounds asserted for removal.

Although the Supreme Court did not address whether climate change litigation must be litigated in a federal or state court, the Supreme Court’s string of decisions provides a procedural victory for defendants that have sought to keep climate change litigation in federal courts.

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