Amicus Curiae Brief — BP p.l.c., et al., Petitioners v. Mayor and City Council of Baltimore
Supreme Court briefApr 30, 2020
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No. 19-1189
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------BP P.L.C., et al.,
Petitioners,
v.
MAYOR AND CITY COUNCIL OF BALTIMORE,
Respondent.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE
ENERGY POLICY ADVOCATES
IN SUPPORT OF THE PETITIONERS
FILED BY CONSENT OF ALL PARTIES
---------------------------------♦--------------------------------MATTHEW D. HARDIN
Counsel of Record
324 Logtrac Road
Stanardsville, VA 22973
Phone: 434-202-4224
Email: Matt@MatthewHardin.com
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................
i
TABLE OF AUTHORITIES .................................
ii
INTEREST OF AMICUS CURIAE ......................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
4
I.
II.
III.
IV.
THE FOURTH CIRCUIT’S DECISION CONTRADICTS RECENT JURISPRUDENCE
AND LEGISLATION. THIS COURT SHOULD
GRANT CERTIORARI TO ENFORCE ITS
OWN PRECEDENTS AND CONGRESSIONAL INTENT .......................................
4
IF THE DECISION BELOW STANDS, FEDERAL COURTS WILL BE UNABLE TO
PREVENT FEDERAL POLICIES FROM
BEING UNDERMINED AT THE STATE
LEVEL..........................................................
6
PUBLIC RECORDS OBTAINED BY PROPOSED AMICUS CURIAE AFFIRM THIS
CASE BELONGS IN FEDERAL COURT ....
9
HISTORIC CONCERNS ABOUT STATE
COURT BIAS ARE AMPLIFIED IN CASES
OF THIS TYPE, SUCH THAT FEDERAL
COURTS SHOULD STEP IN TO PROTECT FEDERAL INTERESTS .................. 17
CONCLUSION..................................................... 22
ii
TABLE OF AUTHORITIES
Page
CASES
American Electric Power v. Connecticut, 131
S. Ct. 2527, 564 U.S. 410 (2011) ................ 2, 3, 13, 19
Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir.
2016), cert. denied at 137 S. Ct. 2268 (2017) ............6
Chevron Corp. v. Donziger, 974 F.Supp.2d 362
(S.D.N.Y. 2014) ..........................................................6
Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir.
2015) ..........................................................................5
Murray v. Murray, 621 F.2d 103 (5th Cir. 1980) ........17
Native Village of Kivalina v. ExxonMobil Corp.,
663 F.Supp.2d 863 (N.D. Cal. 2009), upheld at
696 F.3d 849 (9th Cir. 2012) ....................................13
Noel v. McCain, 538 F.2d 633 (4th Cir. 1976)........... 4, 5
Savoie v. Huntington Ingalls, Inc., 817 F.3d 457
(5th Cir. 2016)..........................................................17
Watson v. Philip Morris Cos., 551 U.S. 142 (2007) ......17
Willingham v. Morgan, 395 U.S. 402 (1969) ..............17
Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199 (1996) ..................................................................5
STATUTES AND RULES
Fed. R. App. Pro. 28(j) ...................................................2
Removal Clarification Act of 2011, Pub. L. No.
112-51, 125 Stat. 545 ................................................5
iii
TABLE OF AUTHORITIES – Continued
Page
OTHER AUTHORITIES
City of Oakland, et al. v. BP P.L.C., et al., N.D. Cal.,
Order Granting Motion to Dismiss Amended
Complaints, Alsup, J., June 25, 2018 ......................19
Manufacturers’ Accountability Project, “Beyond
the Courtroom: Climate Liability Litigation in
the United States”...................................................16
United States Chamber of Commerce, “Mitigating
Municipality Litigation: Scope and Solutions,”
U.S. Chamber Institute for Legal Reform,
March 2019..............................................................16
Zoe Carpenter, The Government May Already
Have the Law It Needs to Beat Big Oil, The
Nation (July 15, 2015).............................................14
1
INTEREST OF AMICUS CURIAE1
Energy Policy Advocates (“EPA”) is a nonprofit organization incorporated under the laws of Washington
State, dedicated to bringing transparency to the actions of government. As part of that project, EPA has
obtained emails and handwritten and typewritten
notes under public records requests, which records on
their face confess to the driving factor behind this litigation and similar litigation and inform the inquiry
into federal versus state jurisdiction in this booming
class of “climate nuisance” litigation filed in state
courts. These records EPA obtained prompted it to file
its first amicus brief in the U.S. Court of Appeals for
the First Circuit, where removal of another among the
growing number of “climate nuisance” lawsuits filed
by governmental entities seeking billions of dollars
from private parties is pending.2 That brief revealed
two sets of notes each purporting, independently, to
record the assertion by an official with the governmental plaintiff in that case, the State of Rhode Island, that
the litigation seeks to obtain a “sustainable funding
stream” to underwrite that State’s spending ambitions,
1
Pursuant to Rule 37.6, counsel for Amicus certifies that no
counsel for any party authored this brief in whole or in part and
that no person or entity other than Amici or their counsel made a
monetary contribution intended to fund the brief ’s preparation or
submission. All parties’ counsel of record received notice regarding
the filing of this brief on April 27, 2020. This brief is filed by consent of all parties. Petitioners filed a blanket consent for all such
briefs on April 13, 2020. Respondent provided its written consent
via email on April 29, 2020.
2
See State of Rhode Island v. Shell Oil Products Co., LLC, et
al., Case No. 19-1818 (1st Cir.). Leave for EPA to file as amicus
curiae granted on March 26, 2020
2
after the State’s legislature declined to provide the desired funds. Rhode Island’s confession was made at a
meeting attended by “cabinet”-level representatives of
numerous state governments from across the nation,
including a representative from Maryland, and emphasized the desire to proceed in state courts.3 In that First
Circuit litigation, numerous parties rely upon the
Fourth Circuit’s decision in the instant matter, and parties to the First Circuit litigation addressed the Fourth
Circuit’s opinion below in letters of supplemental authority pursuant to Fed. R. App. Pro. 28(j). Because EPA
has obtained records confessing the rationale behind
the veritable tsunami of state-court “climate nuisance”
lawsuits such as the one now before this Court, and affirming the plaintiffs’ emphasis among peers and other
potential governmental plaintiff-recruits on using state
courts for these actions with national policy implications and avoiding the federal court system, EPA is
keenly interested in this case and asks this Court to
grant certiorari to address the proper relationship between the state and federal court systems.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
As important as climate policy is to both state and
federal governments, equally and arguably more important is the principle that the courts’ role is not to
make policy judgments. This Court held in American
Electric Power v. Connecticut, 131 S. Ct. 2527, 2539,
3
A full list of attendees prepared by the organizers and obtained under Colorado law is available at https://govoversight.org/
wp-content/uploads/2020/01/Fulsome-list-of-participants.png.
3
564 U.S. 410, 426 (2011) that “the federal courts would
have no warrant to employ the federal common law of
nuisance to upset” federal primacy in climate regulatory policy. But rather than heed the American Electric
Power opinion’s warnings that federal policy decisions
are to be made by Congress or by federal agencies exercising properly delegated authority, certain litigants
have instead attempted to end run that holding by
seeking to create policy in state, rather than federal,
courts. While federal courts are courts of limited jurisdiction, in this matter the decision below is based upon
a series of cases that have eviscerated the jurisdiction
of federal courts, even when important federal interests are at stake. This is in conflict with the decisions
of other Circuits, congressional action taken since these
Fourth Circuit precedents were adopted, and this Court’s
own rulings. Allowing the opinion below to stand will
cause mischief in state courts across the nation. Recently obtained public records provide strong impetus
to acknowledge, as a formal matter, that this “climate
nuisance” litigation campaign is an impermissible use
of the state courts, just as this Court previously held it
was an impermissible use of the federal courts. This
Court should prevent litigants from seeking the most
favorable forum to obtain political and policy ends by
judicial means.
---------------------------------♦---------------------------------
4
ARGUMENT
I.
THE FOURTH CIRCUIT’S DECISION CONTRADICTS RECENT JURISPRUDENCE
AND LEGISLATION. THIS COURT SHOULD
GRANT CERTIORARI TO ENFORCE ITS
OWN PRECEDENTS AND CONGRESSIONAL
INTENT
The decision below, designated for publication and
with the potential to shape or confuse the law for years
to come, is based on a series of precedents unique to
the Fourth Circuit, many of which contradict more recent holdings of this Court and even statutory changes
enacted by Congress. The Fourth Circuit’s reliance on
its own, idiosyncratic precedents led to a result that is
in conflict with the holdings of numerous other courts
and which will, if allowed to stand, result in mischief
across the nation.
The Fourth Circuit’s decision below, while published only this year, has its foundations in a holding
from the 1970s that has been adrift in changing legal
seas since then, and was implicitly swamped by a holding of this Court twenty years ago. That Fourth Circuit
opinion, Noel v. McCain, 538 F.2d 633 (4th Cir. 1976),
held that remand orders are essentially unreviewable
unless they raise very narrow statutory grounds. Stare
decisis is an important legal principle, but in this case
the Fourth Circuit’s adherence to its own precedents
rather than those of this Court was misplaced.
The Fourth Circuit’s decision below acknowledges
that this Court subsequently interpreted the same
5
statutory language differently in Yamaha Motor Corp.,
U.S.A. v. Calhoun, 516 U.S. 199 (1996). More recently,
the Seventh Circuit reached a contrary conclusion
about the reviewability of district court orders to remand in Lu Junhong v. Boeing Co., 792 F.3d 805, 810–
13 (7th Cir. 2015). Even assuming, arguendo, that the
Fourth Circuit properly decided the Noel case in 1976,
continued reliance on Noel is no longer appropriate.
It isn’t just precedent that has changed since the
Fourth Circuit issued its opinion in Noel. Relevant
statutory law has also changed: the Removal Clarification Act of 2011, Pub. L. No. 112-51, 125 Stat. 545, clarified Congressional intent for federal courts to “clarify
and improve certain provisions relating to the removal
of litigation against Federal officers or agencies to Federal courts.”
The Fourth Circuit’s decision below (hereinafter
“Baltimore”), is based on foundations that Congress,
other federal courts, and this Court have steadily
eroded since the Fourth Circuit issued the authority on
which Baltimore rests. This Court, the Seventh Circuit,
and Congress itself have all spoken more recently. The
innovative legal theories brought by the Plaintiffs in
this case further highlight the need to decide the matter based on current law. This Court should take the
opportunity to apply the Removal Clarification Act and
resolve the split in the circuits that the Baltimore opinion below aggravates.
6
II.
IF THE DECISION BELOW STANDS, FEDERAL COURTS WILL BE UNABLE TO PREVENT FEDERAL POLICIES FROM BEING
UNDERMINED AT THE STATE LEVEL
This suit is but one of many similar suits being
filed all over the country. More than a dozen U.S. cities, states and counties including the State of Rhode
Island, City and County of Boulder (CO), City and
County of Honolulu (HI), City of New York (NY),
Marin, San Mateo and Santa Cruz Counties (CA), the
cities of Imperial Beach, Oakland, Richmond, San
Francisco, San Mateo, and Santa Cruz (CA), and King
County (WA), among others have filed similar claims
against similar and generally the same defendants alleging similar causes of action which allegedly arise
under state law. As at least one court has previously
noted, multi-front litigation raises important concerns
about the motivations of litigants. Chevron Corp. v.
Donziger, 974 F.Supp.2d 362, 475 (S.D.N.Y. 2014) (“The
point of the multi-front strategy thus was to leverage
the expense, risks, and burden to [defendant] of defending itself in multiple jurisdictions to achieve a
swift recovery, most likely by precipitating a settlement.”), later upheld at Chevron Corp. v. Donziger, 833
F.3d 74 (2d Cir. 2016), cert. denied at 137 S. Ct. 2268
(2017).
This explosion in such cases filed in state court
seeks many hundreds of billions of dollars from private
parties, and seeks to enlist the defendants as advocates in pressing for the plaintiffs’ and their partners’
desired federal policies. Records obtained by Amicus
7
also show the attempt to use the litigation to obtain
governmental revenues after that failed through the
appropriate, political process (see, infra). Affirming the
impropriety of this use of the courts as well as the ardent campaign by state and municipal plaintiffs to
keep the matters away from the federal court and exclusively before state courts, EPA has obtained emails
and handwritten and typewritten notes under public
records requests, further discussed below, that illustrate the danger of allowing state courts to interfere in
this way in lawful interstate commerce conducted under the auspices of the federal government. Key among
these public records are two sets of notes each purporting, independently, to record the assertion by a senior
State of Rhode Island official that the objective of its
litigation was to obtain a “sustainable funding stream”
for the State’s spending ambitions, in the face of a legislature that does not share the executive’s priorities.
Both sets of notes record that official as emphasizing the use of state courts to obtain this funding denied
them by the legislature. Other records, also noted, infra, record the plaintiff ’s legal counsel’s team, at least
some of whom also represent the Mayor and City
Council of Baltimore in this litigation,4 lobbying governmental officials to join the campaign emphasizing
the strategy of advancing this cause in the “more advantageous venue for these cases,” which plaintiffs
confess is to be had in state courts.
4
The California law firm Sher Edling LLP represents both
the State of Rhode Island in the First Circuit and the Mayor and
City Council of Baltimore in the Fourth Circuit.
8
These public records obtained through state open
records laws by Amicus EPA represent a Rhode Island
“cabinet”-level official confiding to peers that the
State’s elected representatives are insufficiently
moved by the plaintiff ’s requests to enact laws raising
the revenues the State’s executive desires; and that it
is thus “looking for [a] sustainable funding stream,”
having been reduced to “suing big oil” for its “Priority
– sustainable funding stream.” Notably, both sets of
notes capture the State of Rhode Island as having emphasized the “state court” aspect of its plan.
These records, representing a similarly-situated
plaintiff ’s confession, as recorded identically by two by
others in the comfort of a presumably candid and offthe-record private meeting with peers and funders of
“climate” activism, leave little doubt that this growing
wave of state court “climate nuisance” litigation seeks
at least two impermissible objectives. First, this type
of litigation seeks to use (state) courts to effectively
create federal energy and environmental policy. Second, in addition to using litigation as a stand-in for
the political process that has denied state and municipal plaintiffs their desired policies, it seeks to use litigation to raise revenues having been denied them
where revenues would properly be raised, which
again is by the political process.
These public records provide strong impetus to
acknowledge, as a formal matter, that this “climate
nuisance” litigation campaign is an impermissible use
of the courts, seeking the most favorable forum to obtain political ends by judicial means; that when filed
9
they must remain in federal court; and that they
should be dismissed for the same reasons.
III. PUBLIC RECORDS OBTAINED BY PROPOSED AMICUS CURIAE AFFIRM THIS
CASE BELONGS IN FEDERAL COURT
Amicus EPA has obtained public records from Colorado State University’s Center for a New Energy
Economy (“CNEE”) under the Colorado Open Records
Act (“CORA”). Those records have now been brought to
the attention of the First Circuit in related litigation,
and are proper subject for judicial notice by this Court.
See Fed. Rule Evid. 201(b)(2). The records pertain to a
two-day meeting in July 2019 hosted by the Rockefeller Brothers Fund (“RBF”) at the Rockefeller family
mansion at Pocantico, NY. They include numerous
emails, agendas and other materials. Most pertinent,
they also include a set of handwritten notes and a second, corroborating set of typewritten notes. According
to the public records themselves, the former was prepared by attendee Carla Frisch of the Rocky Mountain
Institute (“RMI”), and the latter by attendee Katie
McCormack of the Energy Foundation.5
5
These are available, respectively, at https://climatelitigationwatch.
org/wp-content/uploads/2020/03/Carla-Frisch-handwritten-notesEPA_CORA1505.pdf and https://climatelitigationwatch.org/
wp-content/uploads/2020/03/EF-Katie-McCormack-typed-notesEPA_CORA1542.pdf. These documents are identified in an August
20, 2019 email from CNEE’s Patrick Cummins transmitting them
to RBF’s Michael Northrop, Subject: meeting highlights, available
at https://climatelitigationwatch.org/wp-content/uploads/2020/03/
10
This was a private event, styled “Accelerating
State Action on Climate Change,” if hosted as a forum
for policy activists and a major funder to coordinate
with senior public employees, e.g., a governor’s chief of
staff and department secretaries and their cabinet
equivalents from fifteen states. These states included
First Circuit Plaintiff the State of Rhode Island, represented by its Director of the Department of Environmental Management, Janet Coit.6
These notes purport to contemporaneously record
the comments of Director Coit discussing Rhode Island’s entry in this litigation campaign, among peers.
One passage in each set of notes, attributed to Director
Coit and replicated almost verbatim in both, is particularly striking and relevant, affirming two points that
have become obvious and which should inform key decisions confronting the judiciary in this “climate nuisance” litigation campaign.
The records show RMI’s Frisch recorded Director
Coit speaking to this litigation as shown in the below
Edited-notes-transmittal-email-CSU-suggests-Snail-mail-probablycovered-EPA_CORA1481_Redacted.pdf. “RBF CNEE climate policy notes Jul 17 18.docx” are Katie McCormack’s notes (Energy
Foundation); these appear to be produced as document EPA_
CORA1542.pdf, derived from Ms. McCormick’s transmittal email
being 1541, in which she describes her notes as long, and 1542
consists of 18 pages of notes; “Xerox Scan_07222019155622.pdf ”
are Carla Frisch’s handwritten notes (this was produced as document EPA_CORA1505.pdf ).
6
The participant list is available at https://climatelitigationwatch.org/wp-content/uploads/2020/03/List-of-Attendees-EPA_
CORA1037.pdf.
11
excerpted image (Ms. Frisch’s notes are available in
full at https://climatelitigationwatch.org/wp-content/
uploads/2020/03/Carla-Frisch-handwritten-notes-EPA_
CORA1505.pdf ). Ms. Frisch recorded Director Coit as
saying, about this suit:
RI – Gen Assembly D but doesn’t care on env/climate
looking for sustainable funding stream
suing big oil for RI damages in state court
The first line-item attributes to Director Coit the
position that the Rhode Island legislature is not persuaded of the claims set forth by the State in its litigation. This reluctance to politically impose the revenueraising measures (taxes) necessary for such funding
streams is inherently shared among all “climate nuisance” plaintiffs. The excerpt appears to also reflect
Director Coit’s view of why the Rhode Island legislature has thereby declined to obtain from the taxpayer,
12
and then appropriate to the State, the revenue streams
that governmental Plaintiff Rhode Island desires.
This entry on its face represents a senior official
confessing that Rhode Island’s climate litigation, essentially identical to that in the Baltimore case below,
is in fact a product of Rhode Island’s elected representatives lacking enthusiasm for politically enacting certain policies, including revenue measures, thus leaving
the state “looking for [a] sustainable funding stream,”
and so “suing big oil.” This characterizes all such governmental plaintiffs and suits including the matter
in the Fourth Circuit case which is the subject of the
Petition in this matter.
Fortunately, we can be confident that Ms. Frisch
did not mishear Director Coit. The Energy Foundation’s
Katie McCormack provided RBF with a typewritten
set of her own notes transcribing the proceedings. To
this Court’s further benefit, Ms. McCormack’s typewritten transcription of Director Coit’s commentary
reads almost verbatim as Ms. Frisch’s.
Ms. McCormack recorded Director Coit as saying:
*
Assembly very conservative leadership – don’t
care about env’t
*
If care, put it in the budget
*
Priority – sustainable funding stream
*
State court against oil/gas
13
These notes on their face both affirm two realities
that have become inescapable in recent years about
this epidemic of “climate nuisance” litigation, all channeled into state courts (after the first generation of
suits floundered in federal court, and ultimately were
terminated by this Court in American Electric Power v.
Connecticut, 131 S. Ct. 2527, 2539, 564 U.S. 410, 426
(2011)).7 That is that these suits seek to use the courts
to stand in for policymakers on two fronts. First, these
suits ask the courts to substitute their authority for
that of the political branches of government on matters
of policy. Second, these suits seek billions of dollars in
revenues, again the province of the political branches,
for distribution toward political uses and constituencies.
On that first count of policymaking through the
courts, the RBF meeting notes ratify a comment made
to The Nation magazine by the plaintiffs’ tort lawyer
credited with inventing this wave of litigation, Matt
7
See, e.g., Native Village of Kivalina v. ExxonMobil Corp.,
663 F.Supp.2d 863 (N.D. Cal. 2009), upheld at 696 F.3d 849 (9th
Cir. 2012).
14
Pawa. The magazine wrote, “At the end of his speech,
Senator [Sheldon] Whitehouse [of Rhode Island] reminded his colleagues of their ‘legislative responsibility to address climate change.’ But it’s clear that too
many lawmakers have abdicated, thus the pressure to
tackle the climate issue through existing regulations
like the Clean Air Act, and through the courts. ‘I’ve
been hearing for twelve years or more that legislation
is right around the corner that’s going to solve the
global-warming problem, and that litigation is too long,
difficult, and arduous a path,’ said Matthew Pawa, a
climate attorney. ‘Legislation is going nowhere, so litigation could potentially play an important role.’ ”8
Such use of the courts is of course improper but
also informs a conclusion that these cases, when
brought, belong in federal court, as well as that they
should be dismissed for reasons including the inherently obvious, and now repeatedly confessed, purpose.
The second conclusion affirmed by these twicesourced assertions by the First Circuit plaintiffs is that
this type of litigation is a grab for revenues, which
again must properly be pursued through the political
process. This is related to the first, in that, like policy,
such revenue-raising measures must be enacted by the
voters’ elected representatives or approved directly by
voters. Instead, with the desire for more “funding
streams” being yet another way the political process
8
Zoe Carpenter, The Government May Already Have the
Law It Needs to Beat Big Oil, The Nation (July 15, 2015),
https://www.thenation.com/article/the-government-may-alreadyhave-the-law-it-needs-to-beat-big-oil/.
15
has failed such plaintiffs, we see them circumventing
that process through this litigation campaign.
That the desire for more governmental revenue,
without adopting the necessary direct taxes for which
there can be a political price to pay, was behind such
litigation was suggested by the U.S. Chamber of Commerce in a 2019 report entitled “Mitigating Municipality Litigation: Scope and Solutions,” published by
the Chamber’s Institute for Legal Reform. That report highlighted:
*
“For instance, local government leaders may
eye the prospect of significant recoveries as a
means of making up for budget shortfalls.”
*
“Large settlements like those produced in the
tobacco litigation are alluring to municipalities facing budget constraints.”
*
“Severe, persistent municipal budget constraints have coincided with the rise of municipal litigation against opioid manufacturers
as local governments are promised large recoveries with no risk to municipal budgets by
contingency fee trial lawyers.”
*
“Conclusion
A convergence of factors is propelling municipalities to file affirmative lawsuits against
corporate entities.
There is the ‘push’ factor: municipalities face
historic budgetary constraints and a public
inundated with news reports on the opioid crisis, rising sea levels, and data breaches. And
16
there is the ‘pull’ of potential multimilliondollar settlements and low-cost, contingency
fee trial lawyers. As a consequence, municipalities are pivoting to the courts by the thousands.”9
The National Association of Manufacturers’ Center for Legal Action has similarly argued that, “The
towns and lawyers have said that this litigation is
solely about money. The towns want funding for local
projects, and their lawyers are working on a contingency fee basis, which means they aren’t paid if they
don’t win.”10
The records EPA has obtained now provide documentary evidence to support these concerns that the
courts are being exploited to balance municipal/state
budgets and make policy decisions that legislators
have declined to make.
9
United States Chamber of Commerce, “Mitigating Municipality Litigation: Scope and Solutions,” U.S. Chamber Institute
for Legal Reform, March 2019, https://www.instituteforlegalreform.com/uploads/sites/1/Mitigating-Municipality-Litigation-2019Research.pdf, at p. 1, 6, 7 and 18, respectively.
10
Manufacturers’ Accountability Project, “Beyond the Courtroom: Climate Liability Litigation in the United States,” p. 2,
https://mfgaccountabilityproject.org/wp-content/uploads/2019/06/
MAP-Beyond-the-Courtroom-Chapter-One.pdf
17
IV. HISTORIC CONCERNS ABOUT STATE
COURT BIAS ARE AMPLIFIED IN CASES
OF THIS TYPE, SUCH THAT FEDERAL
COURTS SHOULD STEP IN TO PROTECT
FEDERAL INTERESTS
A “historic concern about state court bias” is the
underlying basis allowing for federal officer removal.
Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 461
(5th Cir. 2016). The Supreme Court also recognizes
bias as a concern justifying removal to federal court.
“State-court proceedings may reflect ‘local prejudice’
against unpopular federal laws or federal officials.”
Watson v. Philip Morris Cos., 551 U.S. 142, 150 (2007).
Bias exists, as these opinions acknowledge, and there
is no rational basis for declaring that such bias extends
only to parties who are unpopular government officials. Indeed, this Court has cautioned against “narrow,
grudging interpretation” of federal officer removal.
Willingham v. Morgan, 395 U.S. 402, 407 (1969).
Simply put, “[t]he removal statute is an incident of federal supremacy.” Murray v. Murray, 621 F.2d 103, 106
(5th Cir. 1980).
States and municipalities are engaged in a campaign through the courts to overturn “unpopular federal laws.” Rather than recognizing the Constitution
and federal laws as supreme, governmental “climate
nuisance” plaintiffs are applying “narrow, grudging”
interpretation of the removal statute to seek to overturn federal law through imposing ostensible tort liability in state courts.
18
It is hard to imagine a more striking case where
fear of state court bias could be a concern than is presented in the instant matter and similar cases unfolding across the nation. Stated otherwise and even more
affirmatively, the hope for state court bias is demonstrably at play in these cases, as shown in other records
obtained by Amicus EPA through public records laws.
As documented, supra, by its own admission the
State of Rhode Island is pursuing its litigation to obtain a “sustainable funding stream” for its officials’
spending ambitions, having failed to convince the voters’ elected representatives to provide one. Rhode Island’s circumstance in this respect differs not at all
from all such plaintiffs including in Baltimore. Both
sets of notes discussed, supra, specify Director Coit’s
emphasis on seeking this “sustainable funding stream”
in “state court.” All such plaintiffs are now moving
Heaven and earth to keep these matters out of the
clutches of federal jurisdiction.
This objective of suing to make federal policy in
state courts is a thematic cousin of the drive to use the
courts when legislatures fail to enact plaintiffs’ desired
policies, and is well-understood among the instant
plaintiffs, Mayor and City Council of Baltimore, and by
the legal teams for most similarly-situated government plaintiffs. That Rhode Island and the City of Baltimore share not only claims and legal strategies but
legal counsel, whose recruiting team has emphasized
to targeted governmental entities the desire to keep
these matters in state court as the “more advantageous
venue for these cases,” given this Court’s ruling in
19
American Electric Power, raises concerns that the climate nuisance plaintiffs also share the hope for state
court biases in the campaign to eliminate budgetary
shortfalls and otherwise make policy through tort litigation.
For example, and again turning to documents obtained through open records laws, we see that, after
U.S. District Judge William Alsup dismissed the City
of Oakland’s “climate nuisance” suit against many of
the same defendants in June 2018,11 a lobbyist hired to
assist with recruiting more governmental plaintiffs for
Sher Edling12 passed along a note of encouragement to
11
City of Oakland, et al. v. BP P.L.C., et al., N.D. Cal., Order
Granting Motion to Dismiss Amended Complaints, Alsup, J., June
25, 2018, http://blogs2.law.columbia.edu/climate-change-litigation/
wp-content/uploads/sites/16/case-documents/2018/20180625_docket317-cv-06011_order-1.pdf.
12
The legal/recruiting team is somewhat involved. G. Seth
Platt is one of the network’s consultants, engaged to help lobby
Florida municipalities to file suit similar to the State’s. At the
time of the correspondence cited herein, Platt was a registered
lobbyist for the Institute for Governance & Sustainable Development
(“IGSD”) (www.igsd.org) (see searchable index of lobbying registrations at ftlweb01app.azurewebsites.us/Ethicstrac/Lobbyists.aspx).
Platt worked with IGSD and others pitching municipalities to file
“climate nuisance” litigation against energy interests, with First
Circuit and Fourth Circuit plaintiffs’ counsel Sher Edling.
On July 27, 2018 Fort Lauderdale Interim City Attorney
Alain Boileau wrote Mayor Dean Trantalis, copying other aides,
in pertinent part:
“Mayor . . . I had a positive meeting yesterday with
Marco Simons, Esquire of the EarthRights International Group, Matt Edling, Esquire, Vic Sher, Esquire,
of SherEdling [sic], and Jorge Mursuli [IGSD].”
https://climatelitigationwatch.org/wp-content/uploads/
20
one prospective client whose counsel had expressed
concern over that latest failure. While the email was
seemingly written by legal counsel,13 this lobbyist/
2020/03/Boileau-explains-to-Mayor-his-mtg-w-SherEdling.pdf.
That same day, Boileau again wrote the same parties: “I suggested they prepare a presentation for the commission. They just need
a target date.” https://climatelitigationwatch.org/wp-content/uploads/
2020/03/Boileau-explains-to-Mayor-his-mtg-w-Sher-Edling.pdf
When that presentation was arranged, Mr. Mursuli wrote
to Mayda Pineda of Fort Lauderdale’s government “to include
additional co-counsel on the phone during our face-to-face meeting with Mr. Boileau.
They are:
Vic Sher 415/595-9969
Matt Edling 415/531-1829
Please let me know if patching them into our meeting
is doable. Again, thanks very much.”
https://climatelitigationwatch.org/wp-content/uploads/
2020/03/Mursuli-seeks-inclusion-ofSherEdling-in-pitchingFTL-litigation.pdf.
Mr. Mursuli then wrote Lizardo Corandao of Fort Lauderdale’s
government seeking to ensure that Sher Edling participation on the
pitch call “is doable.” https://climatelitigationwatch.org/wp-content/
uploads/2020/03/Mursuli-seeks-inclusion-ofSherEdling-in-pitchingFTL-litigation-II.pdf.
EPA has obtained other emails showing Rhode Island,
through Special Assistant Attorney General Greg Schultz, referring Sher Edling to Connecticut’s Office of Attorney General
for similar purposes. https://climatelitigationwatch.org/wp-content/
uploads/2020/03/Pawa-SherEdling-chronology.pdf.
13
Lobbyist G. Seth Platt is not an attorney but “provides procurement and lobbying consultation services, research analysis,
and marketing and media consultation.” https://lsnpartners.com/
staff/seth-platt/. Also, Platt’s email relating an assessment of
Judge Alsup’s opinion begins in the Times Roman font, but the assessment that follows his introduction is written in Helvetica font.
21
recruiter G. Seth Platt flatly stated (or forwarded) the
team’s position that state courts are the “more advantageous venue for these cases.”14
Mr. Platt then quotes UCLA Law professor and
also consultant to plaintiff ’s counsel Sher Edling,15
Ann Carlson, linking in his email to an article quoting
Prof. Carlson further on this belief that, for whatever
reasons, plaintiffs’ chances for recovery are much better in state fora.16 And in February a Los Angeles Times
14
https://climatelitigationwatch.org/wp-content/uploads/2020/
03/GSPlatt-explains-seeks-to-encourage-Fort-Lauderdale-postJudge-Alsop-Opinion.pdf. While recruiting Fort Lauderdale to file
a climate nuisance action similar to the instant matter, Platt offered “context for Dean and Alain’s consideration” in an email to
Mayor Dean Trantalis, City Attorney Boileau, and Mayor’s Chief
of Staff Scott Wyman. This was specifically in response to U.S.
District Judge Alsup’s June 2018 opinion dismissing certain municipalities’ “climate nuisance” litigation on the grounds that the
courts were not the proper place to deal with such global issues.
In another email, City Attorney Alan Boileau writes to
Mayor Trantalis, “The governmental plaintiffs are essentially
pursuing liability through common law claims at a local level for
a global (and not exclusively domestic) problem upon which the
judiciary is taking the position that the issue has been and
should be relegated to the executive and legislative branches.
https://climatelitigationwatch.org/wp-content/uploads/2020/03/
CLK_789_2018-Emails-2nd-FTL-Production.pdf.
15
Matt Dempsey, “UCLA Professor’s Role In Climate Litigation Raises Transparency Questions,” Western Wire, November
27, 2018, https://westernwire.net/ucla-professors-role-in-climatelitigation-raises-transparency-questions/.
16
“ ‘[U.S. District Judge William Alsup’s] decision is irrelevant from a legal perspective,’ Carlson said, as long as these cases
stay in state courts. Federal courts, like Alsup’s, are less favorable
to lawsuits like San Francisco and Oakland’s, which contend
that fossils fuel companies are liable for damages because
22
news article quoted Carlson’s colleague and also apparently consultant for plaintiffs’ counsel, Sean Hecht,
on this topic of state courts being “more favorable to
‘nuisance’ lawsuits.”17
---------------------------------♦---------------------------------
CONCLUSION
These notes referenced above from the Rockefellerhosted meeting in July 2019, as well as the team recruiting governmental “climate nuisance” plaintiffs to
sue, provide strong impetus to confront traits of a “climate nuisance” litigation campaign, which include
efforts to use the courts both as a grab for revenue
and to obtain other desired policies that have eluded
they’ve created a public ‘nuisance,’ said Carlson.” Mark Kaufman,
“Judge tosses out climate suit against big oil, but it’s not the
end for these kinds of cases,” mashable.com, June 26, 2018,
https://mashable.com/article/climate-change-lawsuit-big-oil-tossedout/.
17
“Two separate coalitions of California local governments
are arguing to have their suits heard in California state courts,
which compared to their federal counterparts, tend to be more
favorable to ‘nuisance’ lawsuits. . . . “There is a lot at stake in this
appeal,” said Sean Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment at UCLA School
of Law. “If the cases can move forward in state court, the courts
are likely to take the plaintiffs’ claims seriously, and this may affect prospects for cases in other states as well.” Hecht’s environmental law clinic provided legal analysis for the plaintiffs in
some of the cases.” Susanne Rust, “California communities suing
Big Oil over climate change face a key hearing Wednesday,” Los
Angeles Times, February 5, 2020, https://www.latimes.com/
california/story/2020-02-05/california-counties-suing-oil-companiesover-climate-change-face-key-hearing-wednesday.
23
parties through the political process, seeking the most
favorable forum for a court to stand in for the political
process.
The decision below is designated for publication,
and has the potential to cause innumerable harms if
left to stand. First, it sends a message that the Federal
Circuits can enforce their own aging precedents even
after contrary decisions of this Court and amendments
from the legislative branch of the federal government
leave such decisions unsound. Second, the Fourth Circuit’s decision sends a message that what this Court
said in American Electric Power about the importance
of keeping the judiciary out of the federal climate policymaking business is inapplicable to state judiciaries.
Lastly, the decision of the Fourth Circuit leaves the
door open for “multi-front” litigation and forum shopping that will increase costs for litigants and serve to
coerce cash settlements rather than serve the ends of
justice. This Court should grant certiorari to make
clear that federal courts have jurisdiction over federal
energy and environmental policy matters.
Dated: April 30, 2020
Respectfully submitted,
MATTHEW D. HARDIN
Counsel of Record
324 Logtrac Road
Stanardsville, VA 22973
Phone: 434-202-4224
Email: Matt@MatthewHardin.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.