City of Annapolis v. BP P.L.C.

• Decision Date: 29 September 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

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.

CIVIL Nos. SAG-21-00772, SAG-21-01323

United States District Court, D. Maryland

September 29, 2022

MEMORANDUM OPINION

STEPHANIE A. GALLAGHER, UNITED STATES DISTRICT JUDGE

Plaintiffs City of Annapolis and 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 damages and equitable relief under

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state common law and Maryland's Consumer Protection Act for Defendants allegedly concealing climate-related harms caused by fossil fuels. Id.

Defendants removed the cases to federal court, ECF 1, and Plaintiffs filed a motion to remand to state court, ECF 118. Defendants moved to stay the proceedings pending a potential grant of certiorari in the Supreme Court in a similar case, ECF 158, to which the Plaintiffs responded, ECF 160, and Defendants replied, ECF 163. Before ruling on the motion to stay, this Court requested completed briefing on Plaintiffs' Motion to Remand. See Letter Order, ECF 164. The issue of whether the case belongs in state or federal court has now been fully briefed, ECF 166 (Pl.'s Mem.), ECF 168 (Defs.' Opp'n), ECF 169 (Pl.'s Reply), and no hearing is necessary, see Local Rule 105.6 (D. Md. 2021). For the following reasons, Defendants' Motions to Stay Proceedings will be denied and Plaintiffs' Motions to Remand to State Court will be granted.

I. BACKGROUND

The cases brought by Annapolis and Anne Arundel do not stand alone. Since 2017, over twenty states and local governments across the country have brought comparable state common law claims against fossil fuel industry actors. California cities and counties were the first to bring these claims, see, e.g., County of San Mateo v. Chevron Corp., 294 F.Supp.3d 934 (N.D. Cal. 2018), soon followed by Baltimore City, Maryland. Baltimore's case has previously come before this Court and has already journeyed once to the United States Supreme Court on an appellate jurisdiction issue, see Mayor & City Council of Baltimore v. BP P.L.C., 388 F.Supp.3d 538 (D. Md. 2019), as amended (June 20, 2019), aff'd, 952 F.3d 452 (4th Cir. 2020), vacated and remanded, 141 S.Ct. 1532 (2021), and aff'd, 31 F.4th 178 (4th Cir. 2022). Judicial discourse to date has centered not around whether the companies can be held liable, but rather, whether federal or state courts should decide. Such is the question presently before this Court.

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A. Mayor and City Council of Baltimore v. BP P.L.C., et al.

A review of the Baltimore case is instructive. In 2018, the Mayor and City Council of Baltimore (“Baltimore”) filed a complaint in the Circuit Court for Baltimore City against “major corporate members of the fossil fuel industry” for eight alleged violations of state law (public nuisance, private nuisance, strict liability failure to warn, strict liability for design defect, negligent design defect, negligent failure to warn, trespass, and the Maryland Consumer Protection Act). See Complaint, Mayor & City Council of Baltimore v. BP P.L.C., 388 F.Supp.3d 538 (D. Md. Aug. 16, 2018). Baltimore alleged that Defendants had “engaged in a coordinated, multi-front effort to conceal and deny their own knowledge,” discredit scientific evidence, and “persistently create doubt” in the public regarding the dangers of fossil fuel production and use. Id. at 1. The complaint further alleged that Defendants' production and concealment of the known hazards of fossil fuels exacerbated sea level rise, increased temperatures, and disrupted the hydrologic cycle, which caused Baltimore's environmental, social, and economic harms. Id. at 5-6.

The corporate defendants immediately removed the case to federal court, presenting eight grounds for federal removal: (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. This Court considered and rejected each of these eight proposed grounds for federal jurisdiction and granted Baltimore's motion to remand to state court. See Mayor & City Council of Baltimore v. BP P.L.C., 388 F.Supp.3d 538 (D. Md. 2019) (“Baltimore I”).

Defendants appealed this Court's remand decision, and the Fourth Circuit affirmed. Mayor & City Council of Baltimore v. BP P.L.C., 952 F.3d 452, 459 (4th Cir. 2020) (“Baltimore II”). The

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Fourth Circuit concluded that it only had statutory authority to review one of the eight jurisdictional arguments, the federal officer argument under 28 U.S.C. § 1442, because Congress generally prohibits appellate review of a remand order. See Baltimore II, 952 F.3d at 459 (citing 28 U.S.C. § 1447(d) (“[A]n order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal ....”)). The Fourth Circuit considered and rejected Defendants' federal officer removal argument and affirmed the decision to remand to state court. Id. at 471.

Defendants sought certiorari on whether the appellate court had to consider all eight of Defendants' arguments for federal jurisdiction. BP P.L.C. v. Mayor & City Council of Baltimore, __ U.S. __, 141 S.Ct. 1532 (2021) (“Baltimore III”). The Supreme Court granted certiorari, answered in the affirmative, and sent the case back to the Fourth Circuit to consider the remaining seven jurisdictional bases. Baltimore III, 141 S.Ct. at 1543.

This past April, the Fourth Circuit considered and rejected Defendants' remaining seven arguments, concluding once again that there was no federal jurisdiction and that Baltimore's case belonged in state court. Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 238 (4th Cir. 2022) (“Baltimore IV”). To reiterate its prior holding, the Fourth Circuit copied its previous analysis on federal officer removal jurisdiction into its most recent opinion, word for word. Id. at 228.

The Supreme Court has granted Defendants' request for an extension to file a petition for a writ of certiorari in Baltimore IV. To date, no petition has been filed, although Defendants have informed this Court that a petition is “forthcoming.” ECF 163 at 12.

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B. The Instant Cases

In February of 2021, the City of Annapolis and Anne Arundel County each filed substantively identical complaints against Defendants in the Circuit Court for Anne Arundel County, Maryland. ECF 17. The Complaints listed six state law causes of action: public nuisance, private nuisance, strict liability failure to warn, negligent failure to warn, trespass, and violations of Maryland's Consumer Protection Act. Id. The Complaints name a very similar list of defendants as those named in the Baltimore case, with minor exceptions.

The Plaintiffs alleged that Defendants, “major corporate members of the fossil fuel industry,” id. ¶ 1, “played leadership roles in denialist campaigns to misinform and confuse consumers and the public and obscure the role of Defendants' products in causing global warming and its associated impacts, id. ¶ 9. The Plaintiffs assert that the campaigns included “a long-term pattern of direct misrepresentations and material omissions to consumers, as well as a plan to influence consumers indirectly by affecting public opinion through the dissemination of misleading research to the press, government, and academia.” Id. ¶ 112. Plaintiffs summarize their allegations as follows:

Defendants' individual and collective conduct, including, but not limited to, their introduction of fossil fuel products into the stream of commerce while knowing but failing to warn of the threats posed to the world's climate; their wrongful promotion of their fossil fuel products and concealment of known hazards associated with the use of those products; their public deception campaigns designed to obscure the connection between their products and global warming and the environmental, physical, social, and economic consequences flowing from it; and their failure to pursue less hazardous alternatives; actually and proximately caused the City's injuries. In other words, Defendants' concealment and misrepresentation of their products' known dangers-and simultaneous promotion of their unrestrained use-drove consumption, and thus greenhouse gas pollution, and thus the climate crisis.

Id. ¶ 12.

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Plaintiffs specifically identify Defendants' internal corporate policies and communications, Id. ¶¶ 113-14, 128, their membership and financial contributions to organizations that engaged with the public and government on climate change, Id. ¶¶ 116-18, 124-26, 130-35, 137-39, and their external communication and advertising on the matter, ¶¶ 119-23, 129, as examples of the tortious conduct that caused Plaintiffs' harms. They assert that “[b]ut for such campaigns, climate crisis impacts in Annapolis [and Anne Arundel County] would have been substantially mitigated or eliminated altogether,” Id. ¶ 9, as the concealment and misinformation “unduly inflated the market for fossil fuel products,” Id. ¶ 60.

Plaintiffs allege environmental, social, and economic harms. For example, Annapolis notes that it has experienced “the greatest recorded increase in average annual nuisance...