Courthouse Steps Oral Argument Teleforum: BP P.L.C. v. Mayor and City Council of Baltimore

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a "Courthouse Steps Oral Argument Teleforum on BP P.L.C. v. Mayor and City Council of Baltimore." The oral arguments of this case just wrapped up a few minutes ago hence the late start this afternoon, so we apologize for that brief delay.

 

My name is Micah Wallen, and I am the Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on our calls.

 

Today, we are fortunate to have with us Phil Goldberg, who is Special Counsel for the Manufacturers' Accountability Project, a project of The National Association of Manufacturers, and Washington D.C. Office Managing Partner at Shook, Hardy & Bacon.

 

After Phil gives his opening remarks on the case, we will then open up the floor for our live audience Q&A. Thank you for sharing with us today, and, Phil, the floor is yours.

 

Phil Goldberg:  Great. Micah, thank you so much for that introduction and for hosting and obviously for The Federalist Society for hosting this forum. I will, as Micah said, just provide some initial thoughts on the hearing. It just finished probably about 10-15 minutes ago and thought it was obviously a very interesting discussion. And then happy to talk about the issues -- the litigation more generally or even if you have some follow up questions on the specific issues discussed today.

 

As Micah said, I'm Special Counsel to the Manufacturers' Accountability Project, which was started about three years ago under The National Association of Manufacturers specifically for the purpose of discussing the problems with the climate litigation campaign that is going on in the courts and why these are issues really meant for -- policy issues that are federal and national in nature and not for courts to decide in a case by case ad hoc basis.

 

With respect to the broader climate litigation, we believe that climate is a critical issue and that America's political and business leaders need to be working together on the innovations to help us source and use energy much more efficiently so that we can meaningfully deal with climate change.

 

This litigation, by contrast, is a counterproductive distraction. As some of you may have seen, last week, we released a poll showing that Americans view this litigation as "unimportant," that it will not solve their climate concerns, and that this is not the way to pave for climate change impacts.

 

They understand that dealing with the climate is not about casting blame but is a shared responsibility and we simply cannot sue our way out of climate change. We need to innovate meaningful solutions.

 

And I will tell you, and as we shared with the Supreme Court in the amicus brief that we filed there at The National Association of Manufacturers, the good news is actually this path is already working. Manufacturers contribute up to 18 percent more to the value of the American economy over the past decade while reducing the carbon footprint of their products by 21 percent.

 

So as you heard today, the argument before the Court dealt with a much narrower procedural issue in this litigation dealing with the scope of review of remand orders involving the federal officer removal statute. Our hope, and again, the purpose of our amicus brief in the Court, was to have the Court view this in a broader context, much like this Court did in 2011 when it decided AEP v. Connecticut.

 

There, the Court decided a discrete legal issue, displacement of federal tort claims. But it went on to talk about how the cases invoked federal issues that are better for Congress and the EPA to decide. And that's why soon after that, the Ninth Circuit dismissed its climate change suit, even though it was packaged differently. The Ninth Circuit said it would be incongruous to allow such litigation to be revived in another forum. So that is what we're hoping the courts are going to do here, defy the legal issue but provide their thoughts about this round of climate litigation.

 

I thought the oral argument itself today was pretty straightforward and thoughtful on everyone's side. Several of the justices, including Justice Barrett, Justice Thomas, and Chief Justice Robert, raised the question of whether they should limit any kind of ruling on this case to just the scope of review or should they get to the smarter question of whether the case belongs in federal or state court.

 

I thought that was very interesting and poignant that at least three of them directly asked that question. So that's clearly on their minds. Kavanaugh also tried to get each of the parties to discuss some of the practical aspects of why they want to be in state or federal court. And so that adds a fourth justice to at least be thinking about this case in broader terms.

 

On the scope of review question, it seemed clear from all angles that the text is clearly on the side of the petitioners. From Breyer to Gorsuch to Kavanaugh, several of the -- across the political spectrum justices said that the text was -- I think it was Breyer who said the linguistic argument was tough for the plaintiffs here.

 

You had, again, Gorsuch and others saying that, and Kavanaugh, saying that they thought the text was clear. In the end, Justice Barrett got into a colloquy with Vic Sher on the -- what he was saying was the pursuant to would somehow change the plain meaning of the word order. But it seems clear that when the text says the order is reviewable, and they refer to the order in other parts of the statute the exact same way, and they refer to their meaning the entire order, that the entire order is what is reviewable here.

 

Trying to get -- so that's the threshold question that several of the justices are looking at and clearly indicated that that was on the side of the petitioners. If they get past that, then they have to get to so then what happens? If they agree that the text is what it is, then they seem to be trying to work through so how do we deal with parties that would accessibly claim a federal officer removal statute just to get scope of review? And does that become an issue of jurisdiction, or does that become an issue of remedy? And they went back and forth on the secondary questions, assuming they get past the first one.

 

I thought it was interesting that it was pointed out to Vic Sher that he's on the opposite side of Justice Ginsburg on jurisdiction in the Omaha case. And as others know, he's also on the opposite side of Justice Ginsburg on climate change as she wrote AEP v. Connecticut. Both were unanimous rulings and important precedents that this litigation is in the face of.

 

At the end of the day, we do believe these cases belong in federal court. They are not tied -- the allegations in them are not tied to any specific local community, in Baltimore or anywhere else, which is exactly why these cases are being filed in so many jurisdictions. This is clearly a national federal issue.

 

And it was actually interesting that when Mr. Sher said that all of these other filings suggest that the federal courts would be overwhelmed is a reason not to grant review. And so this is yet one more example of how merely by filing cases, he's trying to overwhelm and gain the litigation system by trying to get at least some court in some jurisdiction to allow these cases to go forward and be willing to regulate global emissions standards through state tort law.

 

The truth is the New York -- as Judge Keenan in the New York case explained, these are emissions cases and the litigations trying to regulate behaviors and impacts far beyond their jurisdictions. And, again, as our amicus brief explained, this is a purposeful effort by a litigation campaign to use the courts to circumvent Congress and the EPA in order to drive a desired outcome on climate, when climate is something that needs to be dealt with at a much boarder level, needs to consider -- our national energy policy needs to consider climate impact, needs to consider the affordability issue for families and businesses who rely on energy every day whether to heat their homes, turn on the electricity, power their factories, what have you.

 

And if this litigation goes forward, those costs can be hundreds of thousands of dollars more expensive. And that's something that needs to be considered. Also energy independence needs to be considered. these are all aspects of what goes into establishing federal energy policy and that can't be done in court, and it can't be done in state court in particular because of the national scope of what's at stake here.

 

And so with that, I'll open up the floor to questions. Happy to talk about the issues more broadly, happy to talk about anything somebody saw or heard in the argument today that -- for consideration, and see where this goes. So thank you again for joining in and participating in this call and look forward to the Q&A.

 

Micah Wallen:  Thank you, Phil, for that recap and helpful notes. Let's open up the floor for audience questions. We have one caller jumped in right away. So without further ado, we'll move to our first caller.

 

Christine Condon:  Hi. Thank you guys for holding this. My name is Christine Condon. I'm actually a reporter with the Baltimore Sun. And I wanted to reiterate a question asked by Justice Kavanaugh, I believe, during oral arguments where he asked both the petitioner and the respondent about why, beyond just legal arguments, why they wanted the case to be heard in federal versus state court. You touched on the legal reasoning there. I'm curious if your party also considers that a -- this case being heard in federal court would be favorable to you all in some way.

 

Phil Goldberg:  I think the reason why you didn't really get an answer or rather Justice Kavanaugh didn't give an answer on that is because it's not about necessarily the practical implications of it and where we want to be, but it's about what's legally appropriate. And it's clear that these cases in deciding national energy policy and figuring out what to do about climate change is a national and even international objective.

 

      If we have one judge in one state deciding emissions and national energy policy, that's not going to have any kind of impact that we want to have. And so if the goal here is to do something about the climate, and that is the goal, we need to have our elected leaders accept that they need to be part of the solution and then work with businesses and other elected leaders, nationally and internationally, to drive solutions that can actually impact the climate.

 

      The only way to do that is to figure out how to innovate the new technologies that we need to source and use energies more effectively. This attempt at using state tort law inappropriately to drive those solutions is a distraction, and it's not productive and it's not going to get us there. And so that's why I think you heard more of a legal response than what the parties are desiring. It's just about where the appropriate place is to make these decisions.

 

Micah Wallen:  And our queue is open if anyone would like to join. And, Phil, I'd like to ask you just what your prediction is for the case or how you think it might end up coming out along with the nine justices.

 

Phil Goldberg:  You know, I always hate to prognosticate when it comes to what I think nine of the smartest people in the country are going to do. But having said that, it struck me that you had a significant number of justices concerned about the textual argue -- the text of the statute here that they're being asked to apply. The statute is pretty clear and justices across the political spectrum seem to understand that.

 

      I think where the rubber is going to hit the road is the next question, then what? How will they deal with the potential for abuse? How will they deal with if you try to assert a federal officer statute ground frivolously or if it's not plausible, then what happens? Is that a matter of jurisdiction? Is that a matter of remedy? 

 

      I think that's where we can see the Court going in various directions. But if they stick to the text of the statute, it seemed like, without counting individual justices, that a plurality or a majority of the Court seemed to think that the text of the statute was pretty clear.

 

Micah Wallen:  Gotcha. And we do have three other questions that popped into the queue.

 

Tim:  Hi, yes. Thank you. A moment ago, the speaker said that the problem is what to do about climate change, not an exact quote but a pretty close paraphrase as to what you said. It sounds to me, then, like The National Association of Manufacturers, the defendants in this lawsuit or whoever, are really just fighting about policy and program rather than liability. In other words, you already conceived the game and the issue is how to get to the endzone so the other side wins and by how many points.

 

      If that's the case, and it sounds to me like that is the case, it really comes down to whether state courts in 50 states or what, 120 or 30 federal district courts, I don't know how many district courts there are, but 100-130 approximately, should be applying with that policy decision and the issue of liability having been conceded.

 

I don't see the benefit about fighting about policy issues in federal courts over state courts rather than just getting Congress to intervene and do what you say, "Figure out what to do about climate change." Again, the problem having been conceded. The issue is only what to do, how to answer the problem. So I'm rather confused. Maybe you can straighten me out.

 

Phil Goldberg:  Sure. And what's your name?

 

Tim:  My name is Tim.

 

Phil Goldberg:  Tim. Tim, thank you for the question. So I think I'll try to do my best to parse this out for you. So the liability question is not something that's being conceded at all. Selling energy to you, me, and other people is not a liability-inducing event. It's part of modern society. It is what these manufacturers do. It is what we want them to be doing. In fact, the cases themselves just claim any attempt to impact the sale or promotion of these fuels because they know that would be a non-starter.

 

      So the liability is something that we do not believe that selling energy is a liability-inducing event. That doesn’t mean that there is, to go to the next level, I think, is what needs to be done with regards to climate change and whose responsibility is to do something about climate change.

     

      The answer is this is a shared challenge and a shared responsibility where we all need to be coming together to figure out how to deal with this in a responsible way. Cities like Baltimore and the other ones bringing these cases shouldn't be trying to remove themselves from that discussion by trying to blame specific industries and blame others and say hey, you sold us these products so therefore, you need to figure this out. No, this is a situation where we all need to be in this together, and we all need to figure out what needs to happen. And the way to do that is through setting national energy policy through Congress and EPA and the other policy-making branches of government.

 

      So the end result, we believe, that makes the most sense is for these energy policy decisions to be made by the policy making branches of government, and that is Congress and the federal agencies. The question about whether these cases belong in state or federal court, which is what the issue was -- part of what was before the Court today, is these are inherently federal issues.

 

You're talking about national and international policies relating to the use of fossil fuels. And the allegations here have nothing to do with any conduct that's going on within Baltimore or within any of the other cities. This is about national-international emissions, national-international use of these fuels. And that's where the policy decisions about how we have to innovate and how we have to deal with that needs to be made is at the national-international levels.

 

So I hope that breaks out some of the -- and answers your questions in that regard. It occurred to me, Micah, while you're lining up the next question, didn't answer to Christine's question about why state versus federal court.

 

This is the second round of climate litigation. The first round ended when the U.S. Supreme Court decided AEP v. Connecticut. And it said that federal common law or federal tort claims on climate policy are displaced by the Clean Air Act. Congress gave that responsibility to the EPA to answer these very questions.

 

And so they know that the only -- they're trying to repackage this litigation in order to drive energy policies. These are political lawsuits meant to achieve a policy objective. And the only way that they can try to do that is to avoid the federal courts. And so that's why they're filing all these claims in state court because that's part of their political and legal strategy for trying to leverage these lawsuits to drive a policy objective.

 

And that, frankly, is not the proper use of the courts and why -- the subtext for why, I think, the Supreme Court granted review as looking at these issues and hopefully will provide some guidance on these broader questions, that's besides the legal issue that was before it today.

 

Micah Wallen:  We'll now move to our next caller.

 

Christine Condon:  Hi. This is Christine with the Sun again. I just had an additional question that I wanted to ask. And sorry if this question is a bit redundant. But would you mind going through if the Court doesn't in fact agree that the whole order ought to be considered when there are issues regarding federal officers and civil rights, that the whole order ought to be considered. How does that help you guys going forward? Would you mind just going through how that would be favorable?

 

Phil Goldberg:  Sure. And thanks, Christine, for that question. So the Fourth Circuit here, and several of the other circuits, when they looked at the remand orders, they said we could only look at the federal officer statutory grounds for removal. We can't look at the other grounds for removal, the other reasons why these cases belong in federal court.

 

      And because they didn't find that the defendants were acting as federal officers, they said we're not going to overturn the order to remand the cases to state court. But if you look at Judge Alsup in the San Francisco case, went through those other grounds and said these are clearly federal issues and explain how "breathtaking" the allegations are and how the use of fossil fuels was imperative to modernization over the 20th Century.

 

      And so if you look at the broader issues, that is something that should drive the courts and the appellate courts here to determine that the cases belong in federal court. And then once they get to federal court, then they can work through the issues there. But without the ability to look at all the reasons why the courts remanded the case back to state court, it's hamstringing the federal circuits and their ability to review the most salient issues before it.

 

      And so it makes sense to let the circuit courts do their job, to let them review the entirety of the order, and then make a decision about where it can proceed. They may choose federal court. They may choose state court. We think they're going to choose federal court, but there's no reason to tie their hands or, frankly, that Baltimore should afraid of what the federal circuits might determine on those other issues.

 

Micah Wallen:  We'll now move to our next caller in the queue.

 

Maryann Zaki:  Hi, yes. Good afternoon. This is Maryann Zaki. I'm an associate at Morgan Lewis, and I find this topic interesting, so I appreciate this teleforum.

 

      You've touched on it a little bit, but I think with the comments that this is an area of law that the EPA and Congress are better suited to deal with these issues, do you find the argument compelling that well, if that's the case then let's wait until Congress makes it clear in the statutory text that orders with regards to climate change or some sort of environmental pollution should be in federal court or implemented into 1447, that if court rules that it should be in a state court, that that remands order should be appealable? Do you think there's merit in that kind of argument? I know it would obviously lead to cases being tried in state court until Congress makes it clear, but do you think that might be a possibility?

 

      And also a second question. Just curious with regards to the timing. I know appellate courts and the Supreme Court especially, sometimes no telling when this might be set for decision, but do we know or have any sense of when we might expect a ruling on this? Thank you.

 

Phil Goldberg:  Sure. And, Maryann, thank you for that. I'll answer the second one first just because it's, I think, a quicker answer. We would expect that they would decide this case before they adjourn in June or the end of June. So I would expect something this Spring.

 

      On the first question, I think the statute is pretty clear on its own. And so sitting here and saying well, we should get better clarity from Congress is something that is not -- the courts have absolved themselves of the responsibility to enforce what Congress said they should do and say hey, we're not going to do that, and if Congress really wants us to do it, then they'll tell us otherwise.

 

      That's not the way the system works, and frankly, that's a good thing because we can't have each court deciding are they going to follow Congress or not follow Congress, follow or not follow a statute and say well, we're not going to follow it, but if Congress really wants us to, they'll come back and tell us. That's the kind of, I think, a recipe for lawlessness that doesn't serve anyone any good.

 

Micah Wallen:  We'll now move to our last caller in the queue.

 

Dawn Reeves:  Hi. Thanks for doing this, Phil. It's Dawn Reeves with Inside EPA. So I want to ask you a question. So you said that this is not -- I know it shouldn't be -- climate policy is important, but it shouldn't be solved in courts. It should be Congress and the Executive Branch, but I would note that NAM and many of these industry groups, they sue over any EPA rule that has to do with climate change. They lobby Congress against anything doing with climate. They say it's an international problem, not a national problem. And I'm wondering if you can just kind of -- I'm not asking you to endorse any specific policy, but just tell me why this isn't a shell game.

 

Phil Goldberg:  Well, Dawn, it's good to hear from you, and thank you for that question. These are national and international issues. They're certainly not state tort law issues. So that's something, I think, that should be clear.

 

      The fact that these various organizations are working with Congress and EPA and others to try to establish good policies on climate, it may not agree with everything that the other side would like to get done, doesn't mean that they're against any kind of action. It means that they want to drive -- that they have a maybe different opinion on what those actions should be.

 

      The inherent problem with this litigation is that the people who are trying to pursue a specific agenda on climate are saying well, we're not happy that we're not able to get our way in Congress or in federal agencies. And so we're going to try to circumvent them and file cases in state courts to try to drive those same -- the very same outcomes that they were trying to achieve through Congress and EPA and weren't successful at.

 

      The fact that a consensus has not grown around how to deal with climate and our impacts on it and what we're going to do about it indicates that this is a very complicated issue with a lot of different factors that need to be considered, and state courts hearing tort claims through rules of evidence where they can't look at the broader questions at stake here is the exact wrong place for those kinds of decisions to be decided.

 

      And so I have every confidence that if we can have real leadership at the federal level, bring people in to determine what would be meaningful solutions to the climate and what's going to actually make a difference here, we'll end up with the kind of solutions that we need and the kind of policies that we need that are going to foster the innovations that are going to help us source and use energy much more efficiently.

 

      That's got to be the end game. It's just trying to penalize the energy sector or come up with proposals that aren't going to get it done at the end of the day, doesn’t mean that just because you might oppose those, doesn’t mean that you're opposing any progress. It means you want to see progress, but that's just not the right way to get it done. And, Dawn, I hope that helps answer your question.

 

Micah Wallen:  All right. We've reached the end of our question queue for today. So, Phil, any other closing thoughts before we close?

 

Phil Goldberg:  Well, I just want to thank everybody for making the time to jump on the call today. And, obviously, we got started a little late because the argument ran a little bit longer than we were expecting. And I need to obviously gather some thoughts if I was going to get on the call here.

 

But I think where this case heads and where the larger issue of dealing where the climate heads is something that needs to be addressed and needs to be done in a very thoughtful manner and that using state tort law to drive energy policy and try to scapegoat individual industries or entities for what is truly a fared global challenge is the wrong way to go.

 

      If folks look at the Manufacturing Accountability Project website, they'll see we released a poll last week that showed the American people truly understand that this is not -- that dealing with climate change is not about pointing fingers and placing blame. It's about all of us coming together to figure out how to deal with this problem. And that's where we are headed towards, hopefully, and the dialogue and the discussion that we look forward to engaging in.

 

Micah Wallen:  Absolutely, and on behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.