City of Annapolis v. BP P.L.C.
| Decision Date | 27 October 2022 |
| Docket Number | Civil SAG-21-00772,SAG-21-01323 |
| Parties | CITY OF ANNAPOLIS, MARYLAND Plaintiff, v. BP P.L.C., et al., Defendants. ANNE ARUNDEL COUNTY, MARYLAND Plaintiff, v. BP P.L.C., et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Plaintiff City of Annapolis and Plaintiff Anne Arundel County (collectively “Plaintiffs”) -political subdivisions within the State of Maryland - filed actions against more than twenty “major corporate members of the fossil fuel industry” (collectively “Defendants”) in the Circuit Court for Anne Arundel County, Maryland. See Complaint & Demand for Jury Trial, City of Annapolis, Maryland v. BP P.L.C et al., No. 21-CV-00772 (D. Md. Mar. 25, 2021), ECF 17;[1] see also Complaint & Demand for Jury Trial Anne Arundel County, Maryland v. BP P.L.C., et al. No. 21-CV-01323 (D. Md. May 27, 2021). The two complaints seek relief under state common law and Maryland's Consumer Protection Act for Defendants allegedly concealing climate-related harms caused by fossil fuels. Id.
Defendants removed these cases to federal court. ECF 1. This Court ordered remand of the cases to state court, citing a lack of subject matter jurisdiction over Plaintiffs' state law claims. ECF 174. This Court denied Defendants' request to stay proceedings pending resolution of related cases in the United States Supreme Court, but it granted a temporary 30-day stay to allow time for Defendants to appeal. ECF 175. Defendants have now appealed, ECF 177, and seek to stay execution of the remand order pending appellate resolution, ECF 178. Plaintiffs opposed the motion, ECF 179, and Defendants replied, ECF 181. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For reasons explained below, this Court will temporarily stay its remand order until it can obtain greater clarity about the timing of the related Supreme Court petitions.
The cases brought by Annapolis and Anne Arundel do not stand alone. Since 2017, over twenty states and local governments across the country, including the City of Baltimore, have brought comparable state law claims against fossil fuel industry actors. Many of these cases have yet to consider the merits, as judicial discourse centers around whether federal courts have jurisdiction.[2]
Throughout these cases, Defendants have proffered at least eight grounds for federal court jurisdiction: (1) federal common law, (2) federal question jurisdiction under Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005), (3) Clean Air Act preemption, (4) Outer Continental Shelf Lands Act, (5) federal officer removal statute, (6) “federal enclaves,” (7) bankruptcy law, and (8) original admiralty jurisdiction. See, e.g., Mayor & City Council of Baltimore v. BP P.L.C., 388 F.Supp.3d 538 (D. Md. 2019) (“Baltimore”).
In a previous related case brought by the City of Baltimore, this Court considered and rejected all eight purported grounds of federal jurisdiction and remanded to state court. See id. at 574. The Fourth Circuit affirmed. See Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 238 (4th Cir. 2022). Presently, Defendants seek certiorari in that case before the Supreme Court, petitioning review of only one proposed ground for federal court jurisdiction - federal common law. See Petition for Writ of Certiorari, BP P.L.C., et al. v. Mayor and City Counsel of Baltimore, No. 19-1644 (Oct. 14, 2022). A related case brought by the Board of County Commissioners of Boulder County against similar defendants in the Tenth Circuit likewise awaits disposition in the Supreme Court. See Petition for Writ of Certiorari, Suncor Energy (U.S.A.) Inc., et al., Petitioners v. Board of County Commissioners of Boulder County, et al., No. 19-1330 (June 8, 2022).
In the present cases, Anne Arundel and the City of Annapolis brought similar claims against similar defendants. See ECF 17. Defendants once again removed these cases to federal court, asserting many of the same grounds for federal court jurisdiction as in Baltimore. See ECF 1. Defendants acknowledged that Baltimore largely controlled the removal question, but they argued that they presented additional evidence to support their federal officer theory and presented a new argument under Grable jurisdiction. ECF 168 at 7, 12. Defendants also requested that this Court stay proceedings because if the Supreme Court granted certiorari and if the Supreme Court agreed that Plaintiffs' claims arose under federal common law, then they would be able to bring their cases to federal court. ECF 158-1 at 6.
This Court first considered Defendants' new arguments and evidence for removal to federal court, but concluded that it had no jurisdiction over Plaintiffs' claims. ECF 174. The Court also denied Defendants' motion to stay proceedings. Id. This Court reasoned that even if Defendants' petitions for certiorari were granted, Defendants failed to prove a likelihood of success on the merits, given that five out of six appellate courts have ruled against Defendants on the federal common law theory, and no appellate court has accepted Defendants' other theories of federal court jurisdiction. See id. at 8. Further, the balance of harms weighed in Plaintiffs' favor because Defendants' additional litigation expenses did not constitute irreparable harms. Id. Finally, this Court believed there was substantial public interest in moving these cases towards disposition. Id. at 9.
Ultimately, this Court denied Defendants' motion to stay, granted Plaintiffs' motion to remand to state court, and imposed a 30-day stay of its order to allow time for Defendants to appeal. ECF 175. Defendants have now appealed. See ECF 177.
Presently, with the temporary 30-day stay now coming to a close, Defendants again move to stay execution of the remand orders pending resolution of the related petitions for certiorari in the Supreme Court. ECF 178. In the past few weeks since this Court ruled on Defendants' previous motion to stay, two updates have occurred in these related cases: (1) Defendants have formally petitioned the Supreme Court to review the Fourth Circuit's decision, see Petition for Writ of Certiorari, BP P.L.C., et al. v. Mayor and City Counsel of Baltimore, No. 19-1644 (Oct. 14, 2022), and (2) the Supreme Court has invited the Solicitor General to express the views of the United States on the related Tenth Circuit petition, see Order, Suncor Energy (U.S.A.), Inc. v. Board of County Commissioners of Boulder County, No. 19-1330 (Oct. 3, 2022). At issue is whether this Court should further stay execution of its remand order pending continued resolution of those cases in the Supreme Court.
The issuance of a stay is “an exercise of judicial discretion” and “the propriety of its issue is dependent upon the circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672-73 (1926)) (internal quotation marks omitted). Courts consider four factors when determining whether to grant a stay: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id. at 434 (internal quotations omitted). As the Supreme Court has explained, “[i]t is not enough that the chance of success on the merits be ‘better than negligible.'” Id. (quoting Sofinet v. INS, 188 F.3d 703, 707 (C.A.7 1999)). “The party requesting a stay bears the burden of showing that a stay is warranted.” Mayor & City Council of Baltimore v. BP P.L.C., No. 18-CV-2357, 2019 WL 3464667, at *2 (D. Md. July 31, 2019) (citing Nken v. Holder, 556 U.S. 418, 43334 (2009)).
The Court begins with the first factor - a “strong showing” that Defendants are likely to succeed on the merits. To clarify at the outset, Defendants do not argue the likelihood of their successful appeal of this Court's most recent opinion and memorandum, which rejected Defendants' two new arguments for federal officer removal jurisdiction and Grable jurisdiction. This is wise given that the Fourth Circuit has previously rejected very similar, if not identical, arguments; no other appellate court has yet to agree with these arguments; and Defendants are not seeking certiorari in the Supreme Court on these grounds. Thus, Defendants' likelihood of success rests entirely with their federal common law arguments previously rejected by this Court and the Fourth Circuit.
Even assuming the Supreme Court were to grant certiorari, however Defendants have not evidenced a strong likelihood of success on the merits of their appeal. Three years ago, this Court noted that “the removal of this case based on the application of federal law presents a complex and unsettled legal question,” see Mayor & City Council of Baltimore v. BP P.L.C., No. CV 18-CV-2357, 2019 WL 3464667, at *3 (D. Md. July 31, 2019). But since that time, many other district courts and courts of appeals have also considered and rejected Defendants' federal common law argument. To date, five out of six appellate courts have ruled against Defendants' theory. See Rhode Island v. Shell Oil Prod. Co., 35 F.4th 44, 55-56, 62 (1st Cir. 2022) () (“Congress displaced the federal common law of interstate pollution, and it would ‘defy logic' to base removal on a ‘federal common law claim that has been deemed displaced, extinguished, and rendered null by the Supreme Court,'”...
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