MARY REICHARD, HOST: It’s Monday morning. This is The World and Everything in It. Today is February 15th, 2021. Let’s get to work. Good morning to you! I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.
One news item we didn’t have time for last week involves a dispute over vaccines. At the end of last month, Justice Sonia Sotomayor denied an emergency injunction to parents in the state of New York.
These parents want their children exempted from vaccine requirements for school. They say their children are too medically fragile to withstand the vaccinations. But without the shots, the school district won’t allow the children to access education, even remote education.
REICHARD: The parents filed for an emergency order to stop this practice by the school district. They say it violates their right to due process. But Justice Sotomayor said no. She’s the one responsible for emergency appeals from New York.
She held the childrens’ doctors weren’t specific enough about the medical problems claimed.
So now the families must go through the normal appeals process in the lower courts.
EICHER: Today, one oral argument left to cover and then we’re all caught up on all oral arguments so far this term.
Today’s case began in 2018 when the city of Baltimore, Maryland filed a lawsuit in state court against 26 oil and gas companies. British Petroleum, Chevron, and Exxon Mobil among them.
Here’s then-city solicitor Andrew Davis announcing the case on WBAL-TV:
DAVIS: These companies must be held accountable. Climate change is a reality. These companies hid knowledge of the harms from elected officials from ordinary citizens and refused to disclose the information.
REICHARD: The city alleges that these producers of fossil fuels caused all sorts of problems. Like rising sea levels that threaten Baltimore’s waterfront. Deadly heat waves. Citizens made sick.
The city says this all amounts to a public nuisance. And the city wants the companies to pay up, big time.
Here’s how Suzanne Sangree from the city solicitor’s office put it at that same press conference:
SANGREE: Part of what we allege is that their campaign of deception and burying the science that they knew… beginning in the late 1950s, it forestalled regulation of the industry, it prevented meaningful regulation of the industry…
The energy companies are defending similar lawsuits around the country. They say these cases are publicity stunts. The products they bring to market and that people use are simply a byproduct of modern life. They fuel all of the things we do: light and heat and cool our homes.
And they keep Baltimore’s fleet of vehicles moving.
Nothing illegal about that.
EICHER: As so often happens, by the time a case reaches the highest court in the land, the legal question winnows down to something quite narrow.
That’s true here as well. The question now isn’t about whether climate change is real or not real or caused by humans.
It’s not on the merits at all.
It’s about in which court does the case belong in the first place? State or federal court. But even more narrowly: whether the decision about that is even reviewable?
REICHARD: The energy companies want that federal appeals court order reviewed, the one that moved the case back to state court. They’d rather have the case heard in federal court, partly because they think they’d have better chances in that venue.
But the circuits are split on that.
Generally, when a case is ordered back to state court by a federal appeals court, that order cannot be reviewed.
But there are exceptions. One is when a federal officer is involved.
The energy companies say federal officer involvement is all over the place here: feds approve off-shore oil leases, approve exploration plans, regulate extraction rates. So the exception would seem to apply. And therefore, the order would seem to be reviewable.
The energy companies cite no less authority than the late Justice Ruth Bader Ginsburg to back them up. This is from a decade ago: Listen to her opinion announcement in 2011 on whether municipalities can sue power plants for greenhouse gas emissions.
GINSBURG: The EPA’s authority under the Clean Air Act, reaches carbon dioxide emissions from power plants like those the defendants operate….The critical point is that Congress has vested decision making authority in the EPA.
In other words, EPA deals with emissions, not the courts. That’s a federal agency, so this belongs in federal courts. The whole order that sent the case back to state court should be reviewable, not just bits and pieces of it.
Besides, just read the statute itself. Here’s lawyer for the energy companies, Kannon Shanmugam:
SHANMUGAM: By its plain terms, the statute permits for review of the entire order, not particular issues. Respondent offers virtually no textual defense of that interpretation…
Efficiency matters in the judicial system, Shanmugam argued. The justices can nip in the bud all these climate change disputes about what court should hear them, right now.
But Justice Stephen Breyer worried this might invite gamesmanship from the energy companies to put in frivolous reasons to move a case to federal court. That’ll cause delays to sort it all out.
BREYER: You’re a lawyer in your office and you say ah, this isn’t really much, da da da, but we better stick it in in case we want an appeal. You’re not saying it’s nothing.
Shanmugam countered that Congress thought about all this and struck a balance between the risk of delay and bad remands.
Victor Sher is lawyer for Baltimore who wants the merits case heard in state court. He wanted the justices to focus on what Congress did in 2011 that ratified 50 years of unanimous circuit court rulings.
SHER: Unanimous circuit court authority that limited review of remand orders to the exception clause’s enumerated grounds and only to those grounds. And the courts in those cases held that the language was clear…
Sher saying two reasons to review a remand order, and only two reasons to review a remand order. Period.
Justice Breyer had a bigger worry on his mind, though.
BREYER: I want to focus on a problem that occurred to me. It’s in every legal system. It’s important to have an appeal. It’s unfair not to give people appeals. But, if you give them appeals in the middle of the case, too often you will really muck up the system, take too long. And so we allow some things to go ahead even though there was no appeal and it might be unfair and wrong because we don’t want to muck up the system.
Justice Breyer at his feisty best continued later on:
BREYER: Well, the argument on policy is, look, the case is here anyway, big deal, let’s decide the issues. They take a little, but not a lot of time. That’s the mouse. And the elephant is no longer there. The elephant is it takes a lot of time to appeal, so let’s not give him any.
SHER: Your Honor, this case is a good example of the reason that we should be concerned about this. We’ve been three years in limbo between the federal and state courts.
Three years, he emphasized, proof that incessant appeals on little splinters of a case slows justice down.
Overall, it sounded as though the justices agreed that the plain reading of the law and prior precedent aligns with what the energy companies are saying. But still they worried about the companies gaming the system by putting in all kinds of reasons to remove a case to federal court, just hoping something will stick.
Narrow though this case is, any decision will have major repercussions for ongoing climate-change litigation.
Some friend-of-the-court briefs in support of the energy companies warn that ad hoc, unpredictable rulings from 50 different states is a recipe for a big mess.
Briefs in support of the city of Baltimore suggest that state courts are best suited to handle consumer-protection and corporate malfeasance.
If the energy companies prevail, the underlying case will likely proceed in federal court. It’s possible that would eventually end in a dismissal without a trial.
If Baltimore wins, the case will likely proceed in state court. That’s where massive document requests could force the energy companies—in order to answer the allegations—to reveal myriad information about marketing practices and more.
And that’s this week’s Legal Docket.