The NAM filed an amicus brief in support of an application to the U.S. Supreme Court to stay a remand order transferring litigation involving “public nuisance” claims related to climate change to state court. Twenty-six energy company defendants in the case filed the stay request to allow appeals to progress on the question of which court has proper jurisdiction over the claims. The case is part of a coordinated, national litigation campaign involving over two dozen public nuisance cases filed in carefully chosen states and federal circuits by agenda-driven lawyers and activists. This issue is important to energy producers and all manufacturers because public nuisance claims involving climate change implicate federal questions and the preemption of federal laws that are appropriately heard by federal courts rather than state courts. The NAM’s amicus brief explained to the court the broader context of the plaintiffs’ legal strategy and that these suits implicate federal issues and therefore should be in federal court. Unfortunately, Chief Justice Roberts denied the stay petition. Thereafter, following the Fourth Circuit's decision to remand the case to state court, the NAM filed an amicus brief in support of BP's petition for cert. pressing the high court to resolve the circuit split regarding the scope of appellate review of remand orders involving the federal officer removal statute. Happily, on October 2, 2020, the Court granted review.
On November 23, the NAM filed an amicus brief on the merits in support of removal jurisdiction in this case, asking the Court to ensure that lower courts evaluate all grounds for removal prior to issuing remand orders.
On May 17, 2021, in a 7-1 decision with Justice Gorsuch writing for the majority, the Court reversed the Fourth Circuit’s denial of full federal appellate review of the important jurisdictional issues raised by this case and remanded the case for the Fourth Circuit to consider those issues in the first instance. Unfortunately, on April 7, 2022, the Fourth Circuit affirmed the district court's remand order, holding that none of the asserted basis for removal permit the Court to exercise jurisdiction.
On November 17, 2022, the NAM filed an amicus brief in support of the petitioners' petition to the U.S. Supreme Court for cert. The NAM's brief again argues that the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature, and that such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws.
Unfortunately, on April 24, 2023, the Court denied the petition.