The Tenth Circuit recently held that a suit filed in Colorado state court by local governmental entities for global warming-related damages allegedly caused by oil and gas companies cannot be removed to federal court.

Plaintiffs – the City of Boulder, Boulder County and San Miguel County– filed a complaint asserting that local governments

“face substantial and rising costs to protect people and property within their jurisdictions from the threat of global warming.”

The local governments sought past and future compensatory damages to mitigate the impacts of such warming.

Defendants ExxonMobil and Suncor Energy attempted to remove the action to federal court, advancing seven bases for federal subject matter jurisdiction.  Concluding that its appellate jurisdiction was limited to just one of these bases, federal officer removal under 28 U.S.C. § 1442(a)(1), the Tenth Circuit held ExxonMobil failed to establish grounds for removal under that doctrine, and affirmed the district court’s order remanding the case to state court.

Given the perceived advantages of having the case heard in federal court, expect ExxonMobil to file a petition for rehearing en banc with the Tenth Circuit and, potentially, a petition for certiorari with the U.S. Supreme Court depending on the outcome.  A copy of the Tenth Circuit’s decision can be found here.

Author: Rudy E. Verner and Reyna Gonzalez

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