Mayor of Balt. v. BP P. L.C.

• Decision Date: 10 June 2019
• Docket Number: Civil Action No. ELH-18-2357
• Citation: 388 F.Supp.3d 538
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff, v. BP P.L.C., et al., Defendants.
• Court: U.S. District Court — District of Maryland

388 F.Supp.3d 538

MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff,

v.BP P.L.C., et al., Defendants.

Civil Action No. ELH-18-2357

United States District Court, D. Maryland.

Signed June 10, 2019

As Amended June 20, 2019

Andre M Davis, Elizabeth Ryan Martinez, Suzanne Sangree, Baltimore City Department Of Law, Baltimore, MD, Matthew K. Edling, Pro Hac Vice, Victor M. Sher, Pro Hac Vice, Sher Edling LLP, San Francisco, CA, for Plaintiff.

Thomas K. Prevas, Michelle Nicole Lipkowitz, Saul Ewing LLP, Craig A. Thompson, Venable LLP, Warren N. Weaver, Whiteford Taylor and Preston LLP, Lynn C, Schlie, Nelson Mullins Riley & Scaborough LLP, Mark Spencer Saudek, Gallagher Evelius and Jones LLP, Tonya Kelly Cronin, Aron U. Raskas, Jonathan Biran, Michael Alan Brown, Leianne S. McEvoy, Baltimore, MD, Daniel Toal, Pro Hac Vice, Jaren Janghorbani, Pro Hac Vice Theodore V. Wells, Jr., Pro Hac Vice, Paul Weiss Rifkind Wharton and Garrison LLP, Anne Champion, Pro Hac Vice Gibson Dunn and Crutcher LLP, John F. Savarese, Pro Hac Vice, Ben M. Germana, Pro Hac Vice, Jonathan R. Siegel, Pro Hac Vice, Wachtell Lipton Rosen and Katz, James L. Stengel, Pro Hac Vice, Orrick Herrington & Sutcliffe LLP, Shawn P. Regan, Pro Hac Vice, Hunton Andrews Kurth LLP, New York, NY, Brendan J. Crimmins, Pro Hac Vice, David C. Frederick, Pro Hac Vice, David K. Suska, Pro Hac Vice, Grace Knofczynski, Pro Hac Vice, James M. Webster, III, Kellogg Hansen Todd Figel and Frederick PLLC, Joshua S. Lipshutz, Pro Hac Vice Gibson Dunn and Crutcher LLP, Jonathan Chunwei Su, Latham and Watkins LLP, Robert Reznick, Pro Hac Vice, Orrick Herrington & Sutcliffe LLP, Kathleen Taylor Sooy, Tracy A. Roman, Crowell and Moring LLP, Perie Reiko Koyama, Hunton Andrews Kurth LLP, Washington, DC, Lisa S. Meyer, Pro Hac Vice, Nathan P. Eimer, Pro Hac Vice, Pamela R. Hanebutt, Pro Hac Vice, Raphael Janove, Pro Hac Vice, Eimer Stahl LLP, Chicago, IL, Elizabeth A. Kim, Pro Hac Vice, Jerome Roth, Pro Hac Vice, Munger Tolles and Olson LLP, Margaret A. Tough, Steven M. Bauer, Latham & Watkins LLP, Shannon S. Broome, Pro Hac Vice, Hunton Andrews Kurth LLP, San Francisco, CA, Theodore J. Boutrous, Jr., Pro Hac Vice, Gibson Dunn and Crutcher LLP, Ann M. Mortimer, Pro Hac Vice, Hunton Andrews Kurth LLP, Los Angeles, CA, Jameson R. Jones, Pro Hac Vice, Sean C. Grimsley, Pro Hac Vice, Bartlit Beck Herman Palenchar and Scott LLP, Denver, CO, Katherine Treistman, Pro Hac Vice, Houston, TX, for Defendants.

MEMORANDUM OPINION

Ellen Lipton Hollander, United States District Judge In this Memorandum Opinion, the Court determines whether a suit concerning climate change was properly removed from a Maryland state court to federal court.

The Mayor and City Council of Baltimore (the "City") filed suit in the Circuit Court for Baltimore City against twenty-six multinational oil and gas companies. See ECF 42 (Complaint). The City alleges that defendants have substantially contributed to greenhouse gas pollution, global warming, and climate change by extracting, producing, promoting, refining, distributing, and selling fossil fuel products (i.e. , coal, oil, and natural gas), while simultaneously deceiving consumers and the public about the dangers associated with those products. Id. ¶¶ 1–8. As a result of such conduct, the City claims that it has sustained and will sustain "climate change-related injuries." Id. ¶ 102. According to the City, the injuries from "[a]nthropogenic (human-caused) greenhouse gas pollution," id. ¶ 3, include a rise in sea level along Maryland's coast, as well as an increase in storms, floods, heatwaves, drought, extreme precipitation, and other conditions. Id. ¶ 8.

The Complaint asserts eight causes of action, all founded on Maryland law: public nuisance (Count I); private nuisance (Count II); strict liability for failure to warn (Count III); strict liability for design defect (Count IV); negligent design defect (Count V); negligent failure to warn (Count VI); trespass (Count VII); and violations of the Maryland Consumer Protection Act, Md. Code (2013 Repl. Vol., 2019 Supp.), Com. Law §§ 13–101 to 13–501 (Count VIII). Id. ¶¶ 218–98. The City seeks monetary damages, civil penalties, and equitable relief. Id.

Two of the defendants, Chevron Corp. and Chevron U.S.A., Inc. (collectively, "Chevron"), timely removed the case to this Court. ECF 1 (Notice of Removal).¹ Asserting a battery of grounds for removal, Chevron underscores that the case concerns "global emissions" (id. at 3) with "uniquely federal interests" (id. at 6) that implicate "bedrock federal-state divisions of responsibility[.]" Id. at 3.

The eight grounds for removal are as follows: (1) the case is removable under 28 U.S.C. § 1441(a) and § 1331, because the City's claims are governed by federal common law, not state common law; (2) the action raises disputed and substantial issues of federal law that must be adjudicated in a federal forum; (3) the City's claims are completely preempted by the Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq. , and/or other federal statutes and the Constitution; (4) this Court has original jurisdiction under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1349(b) ; (5) removal is authorized under the federal officer removal statute, 28 U.S.C. § 1442(a)(1) ; (6) this Court has federal question jurisdiction under 28 U.S.C. § 1331 because the City's claims are based on alleged injuries to and/or conduct on federal enclaves; (7) removal is authorized under 28 U.S.C. § 1452(a) and 28 U.S.C. § 1334(b), because the City's claims are related to federal bankruptcy cases; and (8) the City's claims fall within the Court's original admiralty jurisdiction under 28 U.S.C. § 1333. ECF 1 at 6–12, ¶¶ 5–12.

Thereafter, the City filed a motion to remand the case to state court, pursuant to 28 U.S.C. § 1447(c). ECF 111. The motion is supported by a memorandum of law (ECF 111-1) (collectively, "Remand Motion"). Defendants filed a joint opposition to the Remand Motion (ECF 124, "Opposition"), along with three supplements containing numerous exhibits. ECF 125; ECF 126; ECF 127.² The City replied. ECF 133.

Defendants also filed a conditional motion to stay the execution of any remand order. ECF 161. They ask that, in the event the Court grants the City's Remand Motion, the Court issue an order staying execution of the remand for thirty days to allow them to appeal the ruling. Id. at 1– 2. The City initially opposed that motion (ECF 162), but subsequently stipulated to the requested stay. ECF 170. This Court accepted the parties' stipulation by Consent Order of April 22, 2019. ECF 171.

No hearing is necessary to resolve the Remand Motion. See Local Rule 105.6. For the reasons that follow, I conclude that removal was improper. Therefore, I shall grant the Remand Motion. However, I shall stay execution of the remand for thirty days, in accordance with the parties' joint stipulation and the Court's prior Order.

I. Discussion

A. The Contours of Removal

This matter presents a primer on removal jurisdiction; defendants rely on the proverbial "laundry list" of grounds for removal. I begin by outlining the general contours of removal jurisdiction and then turn to the specific bases for removal on which defendants rely.

District courts of the United States are courts of limited jurisdiction and possess only the "power authorized by Constitution and statute." Exxon Mobil Corp. v. Allapattah Servs., Inc. , 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (citation omitted); see Home Buyers Warranty Corp. v. Hanna , 750 F.3d 427, 432 (4th Cir. 2014). They "may not exercise jurisdiction absent a statutory basis ...." Exxon Mobil Corp , 545 U.S. at 552, 125 S.Ct. 2611. Indeed, a federal court must presume that a case lies outside its limited jurisdiction unless and until jurisdiction has been shown to be proper. United States v. Poole , 531 F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ).

Under 28 U.S.C. § 1441, the general removal statute, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction" may be "removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." Id. § 1441(a). Congress has conferred jurisdiction on the federal courts in several ways. Of relevance here, to provide a federal forum for plaintiffs who seek to vindicate federal rights, Congress has conferred on the district courts original jurisdiction over civil actions that arise under the Constitution, laws, or treaties of the United States. See U.S. Const. art. III, § 2 ("The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made ..."); see also 28 U.S.C. § 1331 ; Exxon Mobil Corp. , 545 U.S. at 552, 125 S.Ct. 2611. This is sometimes called federal question jurisdiction.³

The burden of demonstrating jurisdiction and the propriety of removal rests with the removing party. See McBurney v. Cuccinelli , 616 F.3d 393, 408 (4th Cir. 2010) ; Robb Evans & Assocs. v. Holibaugh , 609 F.3d 359, 362 (4th Cir. 2010) ; Dixon v. Coburg Dairy, Inc. , 369 F.3d 811, 816 (4th Cir. 2004) (en banc). Therefore, "[i]f a plaintiff files suit in state court and the defendant seeks to adjudicate the matter in federal court through removal, it is the defendant who carries the burden of alleging in his notice of removal and, if challenged, demonstrating the court's jurisdiction over the matter." Strawn v. AT & T Mobility LLC , 530 F.3d 293, 296 (4th Cir. 2008). And, if "a case was not properly removed, because it was not within the original jurisdiction" of the federal court, then "the district court must remand [the case] to the state court from which it was removed." Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation...