Baltimore, energy cos face off in fed appeals court over climate case

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A seagull flies over the promenade of Baltimore's Inner Harbor during a snow storm. REUTERS

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  • Companies say Clean Air Act displaces state law, federal common law should govern in jurisdictional battle
  • Baltimore, which wants case in state court, says nothing in complaint depends on a federal duty or law

(Reuters) - Lawyers for about two dozen fossil fuel companies including BP Plc and Chevron Corp told a federal appeals court on Tuesday that a climate change lawsuit filed by the city of Baltimore belongs in federal court because the Clean Air Act supersedes state law.

The parties, which are battling over whether the case belongs in state or federal court, are back at the 4th U.S. Circuit Court of Appeals in Richmond, Virginia because the U.S. Supreme Court ordered the circuit court to consider all of the oil and gas companies' arguments, rather than limit itself to one technical point.

The companies' lawyer, Kannon Shanmugam, said that the case is inherently federal because the Clean Air Act displaces state law, and the CAA is the exclusive vehicle to regulate greenhouse gas emissions. Shanmugam also argued that "a uniform body" of federal common law should govern the claims.

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He warned that, should Baltimore prevail, the result could be "50 states each applying their own state laws" to global climate change.

Victor Sher, an attorney representing Baltimore, which wants the case heard in the Maryland state court where it filed its complaint, countered that the lawsuit's goal is not to redress climate change at large, but rather narrowly obtain damages for injuries inflicted to the city.

"Simply, there is nothing in our complaint that depends on a federal duty, law, regulation or issue," Sher said.

About two dozen similar lawsuits in which states and local governments make claims similar to Baltimore's are underway nationwide. They include lawsuits by Honolulu and Rhode Island.

Baltimore's 2018 complaint claims that the fossil fuel companies knowingly contributed to climate change, and that the city will have to spend more on infrastructure such as flood-control measures to combat climate change's effects including sea-level rise.

The 4th Circuit had sent the Baltimore case back to state court in 2020, but the Supreme Court agreed to hear the energy companies' appeal later that year.

The case is Mayor and City Council of Baltimore v. BP Plc, 4th U.S. Circuit Court of Appeals, No. 19-1644.

For Baltimore: Victor Sher of Sher Edling

For BP: Kannon Shanmugam of Paul, Weiss, Rifkind, Wharton & Garrison

Read more:

U.S. Supreme Court wrestles with dispute over Baltimore climate suit

Supreme Court takes up energy companies' appeal over Baltimore climate suit

4th Circuit sends Baltimore climate change case back to state court

Baltimore lawsuit blames oil and gas companies for climate change

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Thomson Reuters

New York-based correspondent covering environmental, climate and energy litigation.