Toxic Tort & Environmental Litigation

Updated from May 18, 2021 post.

On May 17, 2021, the United States Supreme Court issued a decision in the climate change litigation affecting the fossil fuel industry. In a 7-1 decision (Justice Alito recused), the Court held that an appellate court must consider all grounds for removal when an appeal is taken pursuant to 28 U.S.C. § 1447(d), a provision that specifically authorizes interlocutory appeal of an order remanding a case removed pursuant to the federal officer removal statute.
Continue Reading United States Supreme Court Issues First Decision in Climate Litigation

On February 3, 2021, the Fourth Circuit Court of Appeal affirmed a trial court’s ruling that granted a summary judgment motion finding plaintiffs failed to submit specific evidence of asbestos exposure necessary to create a genuine issue of material fact. Steib v. Lamorak Ins. Co., et al., 20-0424 (La. App. 4 Cir. 2/3/21).

Yesterday, the United States Supreme Court heard oral arguments in the climate change lawsuit filed by the City of Baltimore in 2018 against energy companies. This case is one of a number of cases brought by states, cities, and other municipalities against energy companies alleging that the companies contributed to climate change. By granting certiorari and hearing oral arguments, the Supreme Court has agreed to review the Fourth Circuit Court of Appeals’ decision remanding the suit to state court after rejecting the energy companies’ contention that they were acting as federal officers pursuant to historical contracts with the federal government.
Continue Reading It’s Heating Up: United States Supreme Court Hears Arguments on Proper Jurisdiction for Climate-Change Lawsuit

Today, the United States Supreme Court granted a Petition for Certiorari filed by energy companies in Baltimore’s climate change lawsuit.  By granting the petition, the Supreme Court has agreed to review the Fourth Circuit Court of Appeals’ decision remanding the suit to state court after rejecting the energy companies’ contention that they were acting as federal officers pursuant to historical contracts with the federal government.
Continue Reading U.S. Supreme Court To Review Scope of Appellate Review for Federal Officer Removal in Climate Change Litigation

Amidst historically low oil prices and economic shutdowns, fossil fuel companies continue to defend against lawsuits brought by state and local governments claiming climate-change related damages.  In two companion cases, a panel of the United States Court of Appeals for the Ninth Circuit decided whether a federal district court could properly exercise jurisdiction over climate change suits brought against energy companies by cities and counties in California.  In County of San Mateo et al. v. Chevron Corporation et al., Docket No. 18-15499, the Ninth Circuit held that 28 U.S.C. § 1447(d) limited appellate review of an order to remand to the extent the order addressed whether removal was proper under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).  The Ninth Circuit further held that the district court did not err in finding that it lacked subject matter jurisdiction under the federal-officer removal statute.  In City of Oakland et al. v. BP PLC et al., Docket No. 18-16663, the Ninth Circuit vacated the district court’s order denying remand and sent the case back to the federal district court with instructions to consider whether alternative grounds for subject-matter jurisdiction exist.
Continue Reading Climate Change Jurisdiction: U.S. Court of Appeals for the Ninth Circuit Kicks Climate Change Case Back to State Court

This week, in a split 7-2 opinion authored by Chief Justice Roberts, the Supreme Court held that Montana state law claims brought by private landowners against Atlantic Richfield Company (“ARCO”) for alleged impacts from the Anaconda Smelter Superfund site are not preempted by CERCLA and are not precluded by ARCO’s settlement of EPA’s CERCLA claims; however, any restoration damages awarded to the landowners must be spent on actual restoration of the property, as required by Montana state law, and restoration must be conducted in a manner either approved by the EPA or consistent with the EPA’s already-approved remedial action plan.


Continue Reading ARCO v. Christian: Supreme Court Allows State Law Claims for Restoration Damages in Excess of EPA Superfund Cleanup, but EPA Must Approve Any Additional Remedial Action

The Fifth Circuit recently issued an en banc opinion in Latiolais v. Huntington Ingalls, Inc.,[1] a case previously featured on the Blog, overruling “extraordinarily confused” precedent and establishing a new removal test under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1).  This new test is likely to have significant impact on future removals to federal court.


Continue Reading En Banc Fifth Circuit Issues Long-Awaited Ruling on Federal Officer Removal

Since the initiation of climate change litigation several years ago, various state governments and interest groups have filed lawsuits against fossil fuel companies and governing authorities.  The current landscape consists of (1) two lawsuits brought by state governments against an oil and gas company alleging investor fraud; (2) numerous cities, counties, and other local governments seeking compensation from fossil fuel companies for climate change related damages; and (3) nine lawsuits brought by a non-profit law firm, through children, against governments for failing to protect them from fossil fuel emissions.  Below we take a closer look at each category of lawsuits and provide an update on where they stand today.


Continue Reading U.S. Climate Change Litigation: 2020 Update

In a stark reminder of the sanctity of Coast Guard investigations, and the consequences of impeding such investigations, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently took action against a maritime employer for allegedly retaliating against a seaman who cooperated with the Coast Guard in connection with its investigation of a maritime casualty.  On October 20, 2017, Bouchard Transportation’s ATB BUSTER BOUCHARD/B. NO. 255 suffered an explosion and fire while transporting roughly 2,000 barrels of oil off Port Aransas, Texas.  Two crewmembers perished as a result of the casualty.  The brother of one of the deceased crewmembers, who also happened to be a Bouchard Transportation employee, cooperated with the Coast Guard in the ensuing investigation.  Three months later, the surviving brother was terminated without explanation.  OSHA found the termination constituted a retaliatory discharge in violation of the Seaman’s Protection Act (46 U.S.C. §2114) (the “SPA”).  In broad terms, the SPA prohibits maritime employers from terminating or discriminating against seamen who cooperate with Coast Guard, Department of Labor or National Transportation Safety Board investigations.  The obvious intent of the SPA is to guaranty “that, when seamen provide information of dangerous situations to the Coast Guard, they will be free from the “debilitating threat of employment reprisals for publicly asserting company violations” of maritime statutes or regulations.”  Gaffney v. Riverboat Services of Indiana, Inc., 451 F.3d 424, 444 (7th Cir. 2006).  In 2010, Congress empowered OSHA to administer claims arising under the SPA.


Continue Reading OSHA Awards Damages for Retaliatory Discharge of Jones Act Seaman in Violation of Seaman’s Protection Act

Today the United States Supreme Court issued its decision in this landmark case concerning punitive damages.  The six justices in the majority opinion reversed the Ninth Circuit and resolved a circuit split on this issue.  The question presented was whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.  Justice Alito wrote the majority opinion, joined by Chief Justice Roberts, Justices Thomas, Kagan, Gorsuch, and Kavanaugh.  Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.


Continue Reading SCOTUS Decides Dutra Group v. Batterton