Litigation Update: BP P.L.C. v. Mayor and City Council of Baltimore

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In 2018, the City of Baltimore filed climate change litigation in state court against multiple energy companies seeking damages from the impact of climate change. The energy companies moved the lawsuit to federal court, arguing it was the proper venue; however, the U.S. District Court for the District of Maryland disagreed and ruled the case belonged in state court. The Fourth Circuit Court of Appeals in Richmond, Virginia affirmed the lower court’s decision and the energy companies appealed to the United States Supreme Court. Last October, the justices granted their petition for writ of certiori requesting review of the Fourth Circuit’s ruling remanding the case to state court. Oral arguments are set for Tuesday, January 19th.

Indiana Solicitor General Tom Fisher joins us to preview this pivotal hearing, the implications for similar litigation around the country and his role in leading a 15-state coalition that is taking a stand against climate change litigation.

Featuring:

Thomas M. Fisher, Indiana Solicitor General

Moderator: Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center 

 

This call is open to the public - please dial 888-752-3232 to access the call.

Event Transcript

[Music]

 

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.

 

 

Nick Marr:  Welcome, everyone, to The Federalist Society's Teleforum Conference Call. This afternoon, January 14, 2021, we have a litigation update on a case titled BP P.L.C. v. Mayor and City Council of Baltimore. I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that expressions of opinion on today's call are those of our experts.

 

      I'm just going to introduce our moderator, and she'll take it from there.

 

      We're very pleased, this afternoon, to be joined by Ms. Karen Harned. She's the Executive Director of the National Federation of Independent Business Small Business Legal Center. And so, after Ms. Harned introduces our speaker and they have a bit of moderated discussion, we'll have a period at the end for audience questions, so be thinking of those as we go along; have them in mind for when we get to that portion of the call.

 

      Thanks very much for being with us today, Karen. I hand the floor off to you.

 

Karen Harned:  Great. Thanks so much for having me, today. We are so excited to have Tom Fisher talk to us about this important [BP P.L.C. v. Mayor and City Council of Baltimore] case that the Supreme Court's going to be hearing oral arguments on next week. I believe they are scheduled for Tuesday the 19th.

 

      Tom Fisher is probably known, I hope, to most of you. He is the Solicitor General for Indiana, and he was -- he's held that post, I guess, since 2005. He handles high-profile litigation for the state, defends state statutes against constitutional attacks, advises the Attorney General on a range of legal policy issues, and manages the state's U.S. Supreme Court docket. He is a very skilled attorney. He's won, twice, the National Association of Attorneys General Best Brief Award for Excellence in the U.S. Supreme Court brief writing; he's argued four times before the nation's highest court, including -- his most recent case, I guess, was Timbs v. Indiana.

 

      I'm going to let Tom talk about this case in which he and a number of states did file a brief. Again, it's [BP P.L.C. v. Mayor and City Council of Baltimore] -- I think I've got it in the right order; maybe it's the other order. But, anyway, it's an interesting case. And, Tom, take it away. After that, I'll ask you some questions, and then we'll go to the audience for more questions.

 

Thomas Fisher:  Thanks very much, Karen, and thanks to The Federalist Society for having me on this teleconference.

 

      Across the country, cities and states have filed more than 15 common-law public nuisance lawsuits against a few major fossil fuel energy producers, including BP, Marathon, Chevron, Exxon Mobil, ConocoPhillips, and Royal Dutch Shell. These lawsuits, typically filed in state court, allege that global climate change is a public nuisance caused by the defendant energy companies who must, in turn, abate the nuisance, principally by paying billions of dollars to the plaintiffs.

 

      In BP v. Mayor and City Council of Baltimore, which the Supreme Court will consider at oral argument next week, we have one of those lawsuits. There, the City seeks to hold the energy companies liable for "a rise in sea level on Maryland's coast as well as an increase in storms, floods, heat waves, drought, extreme precipitation, and other conditions." This case and others like it ask courts to weight the costs and benefits of fossil fuels and then decide how to regulate them — quintessentially, legislative judgments.

 

      Chances are, whether in the Baltimore case or elsewhere, some state courts will prove receptive to public nuisance claims targeting energy producers, leading to a patchwork of conflicting standards and, ultimately, regulatory chaos. Common-law public nuisance is useful for compelling abatement of specific localized environmental harms, but it is wholly inapt for assigning liability for global climate change, which is among the most complex and contentious issues confronting policymakers today and which affects every state and every citizen in the country.

 

      As it happens, nearly 50 years ago, the Supreme Court addressed what body of law applies to claims that, as in these climate-change cases, seek to redress interstate environmental harms. When Illinois sued Milwaukee over discharge of sewage into Lake Michigan, the Supreme Court held that federal common law must govern. Under that precedent, federal common law must apply to Baltimore's common-law public nuisance claims in this case, and that means the energy company defendants have grounds for removing these cases to federal court, which would reduce the opportunity for Balkanized, judge-made regulatory policies. But getting to that result requires an arduous procedural journey, so bear with me as I walk you through the details.

 

      The general removal statute, 28 U.S. Code § 1441, entitles a defendant to remove a case filed in state court if the state court plaintiff could have brought it in federal district court originally, such as when the case is a civil action arising under the laws of the United States under 28 U.S. Code § 1331, which is the general federal question statute. Federal law authorizes removal of other cases, as well, such as cases brought against federal officers or by private persons who allege that they were acting under the direction of federal officers. Also, removal is appropriate in cases where the defendant is denied the protections of specified federal civil rights laws.

 

      The energy company defendants in the Baltimore case and other cases have sought to remove the public nuisance climate change cases on multiple such grounds. They argue that the federal officer statute justifies removal because, in undertaking some of the energy producing conduct at issue, they are acting under federal agencies — in particular, the U.S. Navy and the Department of Interior. The defendants have also invoked the general removal statute based on multiple theories of federal question jurisdiction, including that the public nuisance claims necessarily arise under federal common law. The district court in the Baltimore case, however, rejected each of the grounds for removal, concluding that the case must be remanded under 28 U.S. Code § 1447(c).

 

      The energy companies have appealed the remand order, but federal procedural law says that, when a district court concludes that a case is not removable and should thus be remanded to state court, its decision is generally not reviewable on appeal, subject to two very important exceptions:  namely, that any order remanding a case removed pursuant to the federal officer or civil rights removal statutes is appealable. What about a case where the defendants remove on multiple grounds? In the Baltimore case, the Fourth Circuit refused to consider all the grounds the defendants raised for removal. Instead, it concluded that 1447(d) limits appellate review to the district court's application of the federal officer removal statute, concluding that appellate jurisdiction does not extend to consider the other removal grounds.

 

      The lower courts are split on the issue, however, so the energy companies filed a cert petition and, in the BP case to be argued next week, the Supreme Court will decide whether, where a case is removed to federal court on both federal question and federal officer grounds, appellate courts may consider both grounds or whether they're restricted to considering the federal officer ground only. As Karen may have mentioned, we have taken a lead in this case by writing an amicus brief supporting BP and arguing in favor of appellate jurisdiction to consider whether federal common law applies. Also joining with Indiana in that brief are Alabama, Alaska, Georgia, Kansas, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Texas, and Utah.

 

      In our view, under 1447(d), once an appellate court has jurisdiction to review a remand order, its jurisdiction encompasses all grounds for removal. This provision does not limit appellate jurisdiction to particular grounds; rather, it provides that remand orders are reviewable on appeal. Namely, in the language of 1447(d), it covers orders remanding the case to the state court from which it was removed. As Judge Easterbrook explained when writing for the Seventh Circuit, "The adoption of this interpretation of 1447(d) to say that a district court's order is reviewable is to allow appellate review of the whole order, not just of particular issues or reasons."

 

      Indeed, in a case called Yamaha v. Calhoun in 1996, the Supreme Court already said that, regarding a similarly worded provision of the permissive interlocutory appeal statute, 28 U.S. Code § 1292(b), that "When appellate jurisdiction applies to the order, the appellate court case may address any issue fairly included within that order." Undeniably, this is an esoteric procedural question that only professors of appellate practice, like me, could love. Yet, behind it lie much larger and more significant issues. What business do state courts have addressing global climate change, and who, among all the countless actors who contribute to global climate change, bears responsibility for it?

 

      Accordingly, in our amicus brief, we urge the Court to address not only the permissible scope of appellate review, but also the federal question jurisdiction issue — i.e., whether removal was proper because federal question jurisdiction exists over Baltimore's claims. In our view, the general removal statute authorized removal here because Baltimore's public nuisance claim necessarily arises under federal common law.

 

      Now, earlier, I mentioned the Supreme Court's decision in the Illinois v. Milwaukee case that we think means the case is covered by federal common law. But allow me to put that in a little bit broader context. We all remember from civil procedure class that in Erie Railroad Company v. Tompkins, the Court recognized that federal courts have no power to supplant state common law with federal general common law. The Court soon made it clear, however, that this principle does not prevent specialized federal common law from exclusively governing areas implicating unique federal interests. Justice Brandeis wrote the majority opinion in Erie, and, in another opinion he wrote and handed down the same day in a case called Banco Nacional de Cuba v. Sabbatino, the Court declared, "For, whether the water of an interstate stream must be apportioned between two states is a question of federal common law." So, on the same day, two different decisions acknowledging the existence of federal common law in a specific area but not generally.

 

      Over the years, the Court has held that federal common law necessarily and exclusively governs disputes in numerous other areas, including the priority of liens stemming from federal lending programs, the scope of the active state doctrine, and, in United States v. Standard Oil Company, the federal government's claims against an oil company whose driver had struck and injured an American soldier. In Standard Oil, the Court observed that Erie did not alter the longstanding rule that federal law, including federal common law, must apply to matters exclusively federal because made so by constitutional or valid congressional command or others so vitally affecting the interest, powers, and relation to the federal government as to require uniform national disposition rather than diversified state rulings. Rather, federal judicial powers remained unimpaired for dealing independently, wherever necessary or appropriate, with essentially federal matters, even though Congress had not acted affirmatively about the specific question.

 

      Later, in Boyle v. United Technologies Corporation, the Court held that federal common law governs design defect claims brought against manufacturers of military equipment. The Court explained that procurement of equipment by the United States is an area of uniquely federal interest that, in that context, the application of state law would frustrate specific objectives of federal legislation. It is, therefore, by now well established that this specialized common law applies to the few areas involving uniquely federal interests that are so committed by the Constitution and laws of the United States to federal control that they must be governed exclusively by federal law.

 

      Now, that brings us back to the Illinois v. Milwaukee case that I mentioned earlier, where the Court said that one area of uniquely federal interest to which federal common law must apply is to public nuisance cases involving interstate pollution. There, claims that several Wisconsin cities had polluted Lake Michigan with raw sewage. Said the Court:  "When we deal with air and water and their ambient or interstate aspects, there is a federal common law." Critically, while the Court recognized that the case fell within its original jurisdiction, it also considered whether pollution of interstate or navigable waters creates actions arising under the laws of the United States within the meaning of Section 1331, which, of course, is the federal question statute. The Court held that it does, which shows us how federal question removal is justified in the Baltimore case that's at issue next week.

 

      The reason that the Court cited for applying federal common law in Illinois applied with even greater force given that Baltimore seeks to bring a purportedly Maryland law claim against energy companies for injuries allegedly produced by a long chain of conduct, including conduct of third parties that occur all over the globe. That is, the dispute for which Baltimore's public nuisance claims seeks judicial resolution pertains not merely to interstate air pollution, but to international air pollution. Baltimore's public nuisance claim asks courts to craft rules and decisions assigning liability for global climate change, which not only is among the most complicated and contentious issues in the world, but, again, which affects every state and every citizen in the country.

 

      Exacerbating the problem, Baltimore has sued just a handful of energy companies for conduct that occurred not only outside of Maryland but outside the country — conduct Baltimore concedes to be injurious only in conjunction with others' use of fossil fuels that the defendant and others produce and sell. In other words, Baltimore is seeking from a few disfavored companies abatement of all the harm it has allegedly suffered from global climate change, even through many other actors, through conduct occurring in many other states and countries, are, on Baltimore's own account, responsible for much of that alleged harm.

 

      Yet, the argument for removal on federal question grounds must contend with yet another procedural hurdle:  the well-pleaded complaint rule. Generally, of course, a plaintiff is the master of the claim and may avoid federal jurisdiction by exclusive reliance on state law. Yet, as the Supreme Court said in 1998 in a case called Rivet v. Regions Bank of Louisiana, "'An independent corollary' to the well-pleaded complaint rule is the further principle that 'a plaintiff may not defeat removal by omitting to plead necessary federal questions.'" Plaintiffs cannot evade the reach of federal law or federal courts by declaring, unilaterally, that their claims arise under state law. The Court concludes, "If a plaintiff has 'artfully pleaded' claims in this fashion, it may uphold removal, even though no federal question appears on the face of the plaintiff's complaint," the Court said in Rivet.

 

      In other words, when a plaintiff raises a nominal state law claim that is in fact governed by federal law, removal is proper. Indeed, allowing artful pleadings to avert removal of claims necessarily governed by federal common law would put state courts in the position of creating federal common law, and that would undermine the very purpose of federal common law, which, as the Supreme Court said in Boyle, is to ensure that, in a few areas involving uniquely federal interest, the rules of decision are governed exclusively by federal law.

 

      In contrast with disputes over the meaning of federal statutory or constitutional provisions, common-law cases require courts to make difficult judgments about what seems to them sound policy, which is why state court common-law decisions are usually understood to announce — and perhaps inherently do announce — state common law. Permitting plaintiffs to compel state court adjudication of federal common-law claims, therefore, would put states in the position of discerning federal judicial policy, or else they would have to guess what policy judgments regarding uniquely federal interests the U.S. Supreme Court would adopt.

 

      The Supreme Court's decisions, however, hold that, in certain areas, such as those involving interstate pollution, any common-law rules must be crafted by federal judges — that is, judges appointed by a nationally elected president and confirmed by its senate in which every state is entitled to equal representation.

 

      Ultimately, then, if courts are going to give common-law answers to the problem of global climate change, they should be federal courts articulating and applying federal common law. Any worldwide allocation of responsibility for remediating climate change requires national or international actions, not ad hoc intervention by individual state courts. State courts have no business deciding how global climate change should be addressed and who, among all the countless actors around the world whose conduct contributes to it, bears legal responsibility for creating it.

 

      In addition to the obvious potential for gross unfairness, such state-court-created common-law rules would inevitably present a significant conflict with federal policy and indeed would undermine the regulatory authority states themselves exercise under carefully calibrated cooperative federalism programs, including the Clean Air Act and the Clean Water Act — programs administered by politically accountable federal and state officials. Really, all this and other similar laws have to offer, absence of federal jurisdiction, is regulatory chaos. Fortunately, the Baltimore case provides a chance to pretermit that chaos, which is why Indiana has led a coalition of states urging the Supreme Court to pave the way for federal appellate consideration of whether federal common law governs global climate change claims.

 

      Indeed, the Court should go even further and rule that only federal common law applies to such claims. Such a ruling would preclude Balkanized climate directives arising from multiple state-court public nuisance cases and strike a blow for political accountability over energy regulation.

 

      With that, I'm eager to take any questions you might have, Karen, or answer questions from others.

 

Karen Harned:  Yeah, that is great, Tom. Thanks so much for that summary of this important case.

 

      I thought I'd ask a few questions and then turn it over to the audience.

 

      My first question concerns the broader issues that you really focused your remarks on relating to this case in your push on the federal common law issue, because we've seen -- climate change is definitely an area we've seen this, but it does seem like the trial bar has tried to regulate through litigation. And I guess my question is:  If BP prevails in this case, do you think any rule the Court writes will help cut down on that kind of regulation-through-litigation tactic of, "They don't like what the feds are doing, so they're going to try to do it themselves" kind of thing?

 

Thomas Fisher:  Yeah. I think that that's a great possibility. If the Court rules, here, that the only possible common law that could apply to these claims is federal common law, then that, right there, I think, ultimately builds in a possibility for a unified result in the sense that any determination of what federal common law means would wind up back at the U.S. Supreme Court if the lower courts were split. The problem — among the many problems — of permitting these kinds of cases to percolate around the country in state courts is that, not only will various state trial courts come up with who-knows-what common-law rules to govern pollution and energy extraction and distribution, but that, ultimately, those rules will stop at state supreme courts. And so you'll have however many states -- right now, there are 15 different cases; it could be up to 50; who knows how many courts will rule in favor of plaintiffs. But you could have multiple sets of rules and a really chaotic kind of structure of regulation by litigation. So, no matter what the federal common-law rule is, the buck will stop with the Supreme Court, and so I think there's a great hope there that, ultimately, there will be -- whatever the outcome is, there will be a unified outcome on federal law.

 

Karen Harned:  You've mentioned a lot about the federal common law. And, I guess, in looking at a lot of the pleading, do you -- a lot of it really does focus just, though, on this question of, if you're using the federal officer removal statute -- or, I think, was it the civil rights statute -- to remove to federal court, that does the federal appellate court get to look at the whole order or just those two provisions? I guess my question to you is:  Do you think -- what is your sense of how far the Court is going to be willing to go in this particular case?

 

Thomas Fisher:  Yeah, I mean, the precise issue is this really kind of esoteric procedural question about the scope of appellate review in a remand case, and can you look at the order as a whole and consider all grounds for removal that were plead, or are you limited to the federal officer, in this case -- or in another case, maybe, the civil rights removal? Now, I think all of the groundwork has been laid for the Court to consider not only that issue and hopefully rule in favor of a more expansive appellate jurisdiction, but also, then, to proceed to the federal question issue — is this a federal common-law case — or possibly remand back to the court of appeals to consider that in the first instance?

 

      The parties have urged the Court to reverse outright the remand order, and so order that removal was appropriate under federal common law, and the Court at times will take an opportunity, where the efficiency of the case would dictate it, to go to that next level. But as we know, it's a little difficult to predict those things. So we're hopeful that, with the case fully briefed in front of it on these issues, the Court will embrace that broader question of whether federal common law applies. But, if it doesn't, then there will other cases because, as I've said, there are so many of these pending around the country.

 

Karen Harned:  Right. And then I also noticed that there were a number of other states and state and local governments that fall on the other side of this issue, and clearly there are -- and they, smartly, you know, focus on federalism as a primary issue there. I guess my question is:  How do you think the Federalists on the Court are going to react to this particular issue? Do you have a sense?

 

Thomas Fisher:  Yeah. And I think it's important to bear in mind, also, that this isn't the first time that the Court has been confronted with issues revolving around public nuisance and climate change and the need to regulate greenhouse gases. In the AEP v. Connecticut case a few years ago, the Court was asked to look at whether federal public nuisance common law was available to address emission, given that we have the existence of the Clean Air Act, and the Court said, "No"; in that circumstance, the Clean Air Act displaced the federal public nuisance law. So I think we have to bear in mind that there is already a sense in which the Court has talked about this issue and the need for clarity of the law and not to have different voices coming in with different pronouncements about what the law in this area should be.

 

      Now, that same Clean Air Act, as I mentioned, is not simply a federal directive; it is a cooperative federalist law. It brings in state governments and state policymakers into the administration of emissions law and permitting, and the like, so you already have this way of handling federalism in the context of managing the environmental regulatory effort that Congress has prescribed. So I think, in some areas, the plea for federalism and deference to state sovereignty gets a lot of traction. I think it has substantially less traction here, though, where states have already placed their bets, in a sense. All states have subscribed to the Clean Air Act and participated. It's, of course, not mandatory — you can't mandate a state do that — but all have done that. So, really, permitting state common-law claims in this area to go forward would only undermine the policy choices already made by state governments.

 

Karen Harned:  Oh yeah, that's a really good point.

 

      Nick, I think if you want to go ahead and open it up for questions, and then, while we're waiting for people to get online -- I'll let you make that announcement, and then, while we're letting people get online, I can ask one more question.

 

Nick Marr:  Great. I'll hand the floor back to you, Karen, for another question.

 

Karen Harned:  Okay, great.

 

      Then I guess my other question is, again, going back to maybe trying to predict what's going to happen here. You know, Roberts is -- he tends to like to only do the work that's right before him. However, as you said, this issue is coming up a lot, and I think that case was made a lot by the other amici that are before them. Do you think -- I guess the question is:  Do you think, if they go big and do what you all are suggesting and deal with this federal common-law issue, that that will necessarily mean that you're looking at a 5:4 split? And, if they decide not to do that, do you think you're going to -- on just the textual, esoteric, "here's how this removal statute should work" issue, it would be a bigger margin of 6:3, or something like that, and is that something you think would end up in the favor of your side?

 

Thomas Fisher:  Yeah, it's tempting to think that way. And, certainly, if you were to present, without any context, a very dry question for the Court over the scope of appellate jurisdiction, yeah, I would think you might very well expect a rather -- if not unanimous, a rather lopsided vote. Whereas, if you were to just present, without context, the narrower federal common-law question -- let's take it out of global climate change, and let's just say it's over interstate pollution; does federal common law govern? Yeah, you'd probably have a narrower vote, but you might still have more than 5:4.

 

      But, boy, you put that with the overlay of global climate change, and it really changes the way the case looks on both issues. So I guess I'm not completely convinced that the spread, if you will, for one issue is going to be that much different than the spread for both issues. But I think it's going to be difficult at many levels to get this case out of the climate-change litigation context. I hope for the best; I really do. But I think we've all seen where, sometimes, we worry that the nature of the underlying issue can kind of upset how people look at the technical, procedural side of a case.

 

Karen Harned:  Right. Nick, do we have any questions?

 

Nick Marr:  We do. We've got two in the queue right now, so we'll go to our first questioner, now.

 

Christopher Garvey:  Hi. This is Chris Garvey. Can you hear me well -- from New York?

 

Thomas Fisher:  Yeah, I can you hear you.

 

Christopher Garvey:  Okay. Good. It seems to me that, if there were such a thing as CO2-induced global warming, the jurisdictional case is much better for Baltimore. But, if the merits are explored, and it turns out that there is really no -- that global warming has to do with the fact that, when the sun gets hotter, the Earth gets hotter, then the merits of even bringing this case argue against this worldwide jurisdiction of Baltimore's alleged harm, because the sea level is rising because the sun is melting more ice.

 

      And so, I mean, I've got research from Dr. Sallie Baliunas — I don't know if you're familiar with that — who studied 1,400 years of tree-ring data and found that when the tree rings are thicker, meaning the sun is hotter, the Earth gets warmer; and when the rings are thin and there's -- and the CO2 is in there. The CO2 concentration can be determined in those tree rings. There's plenty of research that shows that 1,400 years in the tree rings and another 10,000 years in the ice cores -- that show that carbon dioxide doesn't relate to Earth's temperature. What causes the Earth's temperature to rise is when the sun gets hotter. And the correlation there is dead on.

 

      Has anybody tried to raise these issues as part of the jurisdictional question? You can see this research at my website, by the way — votegarvey.org — and you can see a song about, [sings] "When solar output increases, the Earth responds by heating; and when the sun goes cooling off, Earth's temperature's decreasing," and so it goes on for about six minutes. [Laughs]

 

Thomas Fisher:  Great. I'm sure it's a great song. I think what you're getting at here is that these are really, really challenging scientific questions; and the last thing, I think, that would be good for society is to have dozens or even hundreds of trial court judges in state courts around the country coming to different conclusions in that regard; and we have a way of kind of sorting through the science on this, really, and it ought to be through Congress, not through the judiciary.

 

      A good step in the right direction, then, is, I think, for the Court to say that, if any common law is going to apply, it's federal common law. And then the question is:  Okay, what is that federal common law, and how is it affected by the existence of the Clean Air Act and other federal congressional directives on the environment? And I think the Court, hopefully, will understand that, if we end up sending these cases back to state court, the exact kind of science you're talking about is going to become the focus, and it's just going to be out of control and chaotic.

 

Christopher Garvey:  I think you'll want the next question.

 

Karen Harned:  Yeah. Nick, are we ready?

 

Nick Marr:  We'll go to the next question, now.

 

Bob Fitzpatrick:  Hi. Bob Fitzpatrick, here, in D.C. Two quick questions:  Is there a federal common law of public nuisance, and, if so, is it dramatically different than whatever the Maryland common-law public nuisance may be? And, I assume, win or lose on this issue — or, I guess, only if you win — if you go back down, I think I hear you, in the references to the Clean Air Act, the argument's going to be preemption regardless of what federal common law -- if there is any -- may be with respect to Maryland common law. So I guess there are two questions:  Is there a big difference between federal and state common law in this subject, and secondly, aren't you going to argue preemption, in any event?

 

Thomas Fisher:  Yeah. I think part of it is you've got -- under the common-law public nuisance at the federal level, you're going to have the identification of what in the public interest -- you're going to have the identification of what the harms are and then the weighing of those things, and you might well have federal precedents that give a different weight or that give a different way of looking at each of those sides of the scale. Now, I think, yeah, there's going to be a substantial argument that -- as the Court said in the AEP case -- that there is displacement by the Clean Air Act that gets in the way of the substantive adjudication, but that is still a matter of federal common law. It's not to say there is no federal common law; it's merely an assessment of what that law is.

 

Karen Harned:  Great. Nick, are there other questions?

 

Nick Marr:  We, actually, just have a new question. Go ahead.

 

Christopher Garvey:  Hi. It's Chris Garvey, again, at votegarvey.org, where you can find that stuff. Yeah. I just want to say that, here I am staying warm in Amityville, with heat, and Baltimore -- what are they going to do:  turn off my gas heat in Amityville so that their sea level doesn't rise? This seems to be a huge interstate question.

 

Thomas Fisher:  Yeah, exactly, I think. And, as the Court said in that Illinois and Milwaukee case, when you dump sewage into Lake Michigan, it doesn't affect only Milwaukee; it affects everybody, really, to wherever the Great Lakes go; and that is obviously true here. And it's not simply a national issue; it's an international issue, and, really, needs to be left at that kind of policy accountability level with Congress and with negotiated treaties and whatever we have on that front. It's really not something that judges, especially state court judges -- as much as I love state courts and state court judges, it's just not something that they're going to be well positioned to evaluate per their institutional limits.

 

Christopher Garvey:  Well, I think, also, the evidence, here, that CO2 causes global warming -- none of the global warming models have ever predicted anything, but the solar model predicts beautifully for 10,000 years. So I think a little bit of evidence in the procedural aspect of this thing, even if it's in the Supreme Court — and it's all procedural here — bringing in a little factual evidence on this might be very helpful.

 

Nick Marr:  We'll go to our next questioner, now.

 

Caller 4:  Hi. I'm curious. The Court has before it a litany of what I'll call confessions from plaintiffs -- parties affiliated with the plaintiffs' side that this litigation, from AEP through the Boulder case through others, are really about bringing the defendants to the table to negotiate on policy with them. What impact do you think that will have in the argument, the ruling; how do you see that affecting the case?

 

Thomas Fisher:  Yeah. I think that that's a — I would hope, at least — the sort of thing that the Court would, kind of, give the back of the hand to. I mean, since when do we use the courts as a tool to coerce negotiation? That is, I think, an insult to the use of the judiciary as much as anything else. There is a very perfectly capable political forum. I think people oftentimes don't like the outputs that come from those political fora, but that's why they're there. And courts shouldn't be used as coercive means to get people to negotiate in a better posture than maybe you have them right now. So I guess I'm pretty optimistic that that argument, at least, will not be terribly persuasive to all but maybe one or two justices — I hope no justices. But I think the vast majority will not think that that's a good way to think about the case.

 

Karen Harned:  Great. Nick, do we have any other questions?

 

Nick Marr:  We don't right now. Otherwise, Karen, I'll send it back to you. I know you've got a few more questions.

 

Karen Harned:  Right. I'll just ask one more question, and then, if we don't have any questions ‑‑ so for those of you that want to ask, now is the time. Then, if we don't have other questions, I'll turn it over to Tom for any closing remarks that he might have.

 

      I did notice, in the briefing in this case on the other side, that there was a concern raised that, if the Court went with the interpretation that you're describing, especially with regards to esoteric on when removal is triggered, that the exception would overtake the rule, and I just was curious if you have any thoughts on that.

 

Thomas Fisher:  Yeah. I think that the concern -- that's always going to be a concern where you're trying to think about how to balance the obvious limits that they were trying to put in place versus the permissive appeal that they were putting in place. But, if it proves to be a scenario where there's too many appeals, then Congress and the Court can always go back -- or Congress, if it's a statute -- Congress can go back and change the [inaudible 00:39:07]. But it makes a lot of sense, it seems to me, to have the word "order" being used differently here versus, for example, in 1292(b) where the Court has said, "order means order, and you can consider anything within it." It's just a much cleaner way to understand statutory text and doesn't put the courts in a position of trying to guess exactly where the balance ought to be and what the real purpose is behind everything. So, yeah, there's no perfect system, I suppose, but -- for interpreting statutes -- but paying attention to the text and what it's meant in similar statutes is a pretty good way to start.

 

Karen Harned:  Yeah. I think that's a strong argument. And I also think -- I just have to think you all win the efficiency argument. I don't know how you start dividing things up between different courts and how that would work out well when it comes to judicial expediency, but maybe I'm wrong.

 

      Nick, do we have any other questions?

 

Nick Marr:  We do. We just had one queue up, so we'll go to it now.

 

Caller 5:  Yes. Mr. Fisher, a big fan of your work. Two quick questions — one is:  I was curious as to the lineup of state AGs who are assisting you in your effort. I didn't catch all of the states, but it did strike me that you do have some other manufacturing-heavy states that seem to be Red states. I'm wondering whether there were some states that were resisting to any [inaudible 00:40:31]. And, second, going to the question that the first caller raised, did you, in your briefing, use the phrase "climate change," or did you use something maybe a little more neutral like "global warming" or "the theory of climate change" or something like that? Thanks very much.

 

Thomas Fisher:  Yes. Thank you, caller. I'm a big fan of your work, as well.

 

      I think, as to that second question, what you always strive for in a brief like this that's on such a controversial issue, where you want to make sure that you get the Court's attention exactly on where it needs to be and without distraction, is you want to make sure the terminology you're using isn't going to be distracting. I think, here, using the term "climate change" or in talking about this case — especially when we're just in the pleading stage and we're not really at a point where these things have been resolved substantially — putting too much weight on the idea of allegation and theory, etc., really starts to get, I think, people polarized and potentially starts to kind of make people choose up sides before they even get to the real question, and that's what we want to avoid. We want to make sure that, if there's any chance of getting any of the centrists on our side, that we don't somehow push them away by using the language in a way that's perhaps not to their liking, so we're trying to write a brief that's going to get the focus on the issue before the Court.

 

      As to which states join the brief, in my experience with state amicus practice, it's always difficult. It's like every state that you've got underneath this brief is a challenge. Every state, every AG has their own interests and their own reasons, their own assessment that they're making of the case and its merits and where their interests lie. What do we have here? We have Indianapolis -- one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen ‑‑ fourteen states on this case. That's pretty good. Any time we get above ten, especially on something that's, at once, kind of esoteric on the procedural side and then controversial on the substance side, that's a pretty good showing. Who knows? As the cases go on, as we get farther away from an election year, maybe we'll get more states on board. But we feel pretty good about this, and we're hopeful that the brief will have an impact.

 

Karen Harned:  Well, that is great. Nick, are there any other questions?

 

Nick Marr:  No questions at this time, Karen, so we can go ahead and wrap up, if you'd like, with some closing remarks if anyone has them.

 

Karen Harned:  Great. Well, I would just echo the last comment or two. I mean, Tom, you just do such a great job, and we really appreciate your service and all that you've done to help with the law nationwide, quite frankly, beyond just Indiana. With that, I would just turn it over to you if you have any closing remarks, and then we can close out the call.

 

Thomas Fisher:  Well, thanks, Karen. We appreciate all that you do, as well, and it's always been a pleasure working with you over the years on a number of issues. And thanks again to The Federalist Society for having me. It's quite an honor to be here, to be able to speak to this audience.

 

      I think, in closing, it's important to keep a perspective on these cases. There are many of them out there. This case comes up first in the Supreme Court on a fairly narrow procedural issue with the potential for being something even bigger. If it ends up not getting to that next level, there's going to be at least one case coming right up behind involving the City of Oakland that presents essentially the same issue on federal common law, and there's going to be multiple chances for the Court to address this. If the cases keep going forward around the country, there are going to be all kinds of legal issues that crop up. And, yet, we still will have to worry about will -- ultimately, whether it's federal courts or state courts -- will there be some Balkanization of the standard applicable to energy producers when it comes to liability for climate change. I think, as always, we look to Congress to set national policy — it has done so here under the Clean Air Act. Ultimately, I think that's going to be where we avoid chaos is by applying congressionally enacted law, not looking to any courts — but especially state courts — to sort through the evidence and come up with their own assessment of where the costs and benefits lie on energy production and use versus environmental harm. So this case is the first step, and we'll see how far it takes us.

 

      Thanks again, very much.

 

Nick Marr:  Thanks very much, all. And, on behalf of The Federalist Society, I want to thank you both for the benefit of your valuable time and expertise this afternoon and to our audience for calling in, your good questions.

 

      As always, we welcome your feedback by email at info@fedsoc.org. Be keeping an eye on your emails and our website for announcements about upcoming Teleforum calls. We have one tomorrow and then some more next week, so we hope to see you there.

 

      Thank you all for joining us this afternoon. We are adjourned.

 

[Music]

 

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.