By Hannah Wiles, Volume 105 Staffer
On January 19, 2021, the Supreme Court heard arguments in BP PLC v. Mayor and City of Baltimore, one of several “climate change” lawsuits currently being brought by cities, counties, and states against the fossil fuel industry. While the cases have garnered attention for their potential to impose liability for climate change harms on the fossil fuel industry, the Court in BP was not considering any substantive issues. Rather, it addressed a narrow technical question concerning appellate review of district remand orders: does 28 U.S.C. §1447(d) permit appellate review of any issue included in a district court’s remand order for a case removed to federal court if one of the grounds for removal was the Federal Officer Removal Statute? In other words, can fossil fuel companies use the Federal Officer Removal Statute to appeal an otherwise unreviewable remand order?
While the petitioners argue the plain language of the statutory text must allow appellate review of the entire remand order, this Post argues this is a legally absurd interpretation. This Post urges that the original intent of Congress was not to provide a loophole to the general prohibition on appealing remand orders, but to allow a narrow exception. Ultimately, this Post concludes that the Court should reject petitioner’s argument.
I. WHAT DOES THE FEDERAL OFFICER REMOVAL STATUTE HAVE TO DO WITH CLIMATE CHANGE LITIGATION?
Beginning in 2017, a new wave of climate change lawsuits emerged premised on consumer protection and state common law. These suits are largely in response to an investigation by Inside Climate News, which revealed that the fossil fuel industry had been aware of the science and risks behind climate change long before the general public but had suppressed that knowledge and sought to undermine legitimate climate science. Baltimore was one such city that accused the industry of deception and asserted various common law claims as well as claims premised on the Maryland Consumer Protection Act.
The fossil fuel industry has universally opposed state jurisdiction in these cases and has argued the cases should be heard in federal court. In BP, the petitioners asserted eight grounds of removal, described as a “laundry list” by the district court. Among the grounds, petitioners asserted removal was proper under the Federal Officer Removal Statute, which permits removal of claims against a federal officer or person acting under a federal officer. However, as petitioners admitted before the Supreme Court, their primary contention is that the claims arise under federal law, and therefore federal jurisdiction is proper.
Here lies the problem. Asserting removal because the claims arise under federal law is not reviewable upon remand. The order by the district court is final. The Federal Officer Removal Statute, on the other hand, does permit appellate review of a remand order. For defendants intent on federal jurisdiction, including the Federal Officer Removal Statute as a ground for removal affords an additional opportunity to appeal an adverse decision. According to the petitioners in BP, the statute goes one step further. It expands the scope of appellate review to the entire remand order, effectively allowing review of otherwise unreviewable remand orders.
II. GAMING THE FEDERAL OFFICER REMOVAL STATUTE
The proposition raised by the petitioners in BP may be perplexing to anyone unfamiliar with the text of the Federal Officer Removal Statute. Why would this narrow jurisdictional statute open the gates to appellate review so broadly? The answer, according to petitioners, lies in a textualist approach. The statute reads as follows:
“An order remanding a case to the State court . . . is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to [the Federal Officer Removal Statute] . . . shall be reviewable by appeal or otherwise.”
Petitioners argue that the word “order” in the latter half of the statute, by its plain interpretation, indicates that an entire order is reviewable if one of the grounds for removal was the Federal Officer Removal Statute.
This argument was immediately met with concern about gamesmanship. Multiple Justices posited that the broad interpretation would encourage litigants to include the Federal Officer Removal Statute in their grounds for removal to ensure appealability, even if there was little merit for it. Defendants asserted there was no evidence to suggest such gamesmanship would occur, but also reassured the Court that if it did, existing sanctions would be sufficient to deter this behavior.
Strangely, none of the Justices that day asked petitioners whether it was absurd for Congress to throw open the doors for appellate review—where such doors had been explicitly closed—simply because a remand order included the Federal Officer Removal Statute as one ground for removal. Nor did the Court turn the mirror on petitioners and wonder whether their behavior was itself an example of gamesmanship.
III. LESSONS LEARNED FROM AMELIA BEDELIA
The petitioner’s strict approach to textualism in BP implicates the absurdity doctrine. The idea is that “judges may deviate from even the clearest statutory text when a given application would otherwise produce ‘absurd’ results.” The doctrine is not unlike the children’s book character Amelia Bedelia, whose literal take on words leads to unexpected, and unintended, results. So, while petitioners reiterate that a textualist interpretation must find the statute allows total review of remand orders which include the Federal Officer Removal Statute, they ignore that a textualist argument cannot survive against an absurd outcome.
Appellate review of remand orders was eliminated to prevent cases stagnating in jurisdictional battles. Allowing review bogs down court’s dockets and mires litigation in procedural questions rather than getting to the merits of the case. Even in cases when a district court’s remand order is declared clearly erroneous, the order will stand. Why then would Congress so quietly and casually usher in appellate review where it had been cut off simply because one ground of removal was the Federal Officer Removal Statute? The commonsense answer is, it wouldn’t, and it didn’t.
The petitioner’s use of the Federal Officer Removal Statute is also an excellent example of why Congress could not have meant for the interpretation urged by the fossil fuel industry. Courts have noted there is a tenuous argument at best for removal based on the Federal Officer Removal Statute. The petitioners themselves abandoned the statute in favor of other, stronger removal claims, indicating the statute was primarily a means to appellate review—the exact gamesmanship that they denied would occur.
It is unclear whether the Court’s opinion will have a profound impact on climate change litigation. If the Court disagrees with defendants, the cases will in all likelihood remain in state courts, as district courts thus far have readily remanded. However, if the Court does adopt the defendant’s argument, it is not clear defendants would be any better situated. The petitioners would still need to argue the various grounds of removal before an appellate court, which may still agree with district courts. Contrary to what defendants argued then, a favorable outcome could only expand the jurisdictional battleground and lengthen the time spent in court on procedural issues rather than the merits.
Appellate review of remand orders was eliminated in order to avoid lengthy jurisdictional battles. It is absurd to argue that with two words Congress opened the gates to appellate review for an entire remand order if it is tainted with the Federal Officer Removal Statute. BP, a case already three years into litigation without yet reaching the merits, demonstrates the dangers of this expansive reading of 28 U.S.C. §1447(d). Commonsense interpretation should counsel the Court against petitioner’s textual interpretation which can, and has, led to jurisdictional gamesmanship.
 Mayor of Balt. v. BP P.L.C., 952 F.3d 452 (4th Cir. 2020), cert. granted, 141 S. Ct. 222 (Jan. 19, 2021) (No. 19-1189).
 Rebecca Hersher, Supreme Court Considers Baltimore Suit Against Oil Companies Over Climate Change, NPR (Jan. 19, 2021), https://www.npr.org/2021/01/19/956005206/supreme-court-considers-baltimore-suit-against-oil-companies [https://perma.cc/N7RG-GRWD].
 See, e.g., Valerie Volcovici, Minnesota Sues Exxon, Koch and API for Being ‘Deceptive’ on Climate Change, Reuters (June 24, 2020), https://www.reuters.com/article/us-usa-climatechange-oil-idUSKBN23V2XY [https://perma.cc/EN4S-S7TE].
 See Brief for the Petitioners at 3, BP P.L.C. v. Mayor of Balt., (No. 19-1189).
 Many states have consumer protection statutes that serve as the basis for the lawsuit. See, e.g., Complaint at 73–74, Minnesota v. Am. Petrol. Inst., (No. 62-CV-20-3837) (Minn. Dist. Ct. 2020).
 For example, the state of California has brought public nuisance actions against BP and others. See Complaint at 37–39, California v. BP P.L.C., (No. CGC-17-561370) (Super. Ct. Cal., 2017).
 Neela Banerjee, Lisa Song & David Hasemyer, Exxon’s Own Research Confirmed Fossil Fuel’s Role in Global Warming Decades Ago, InsideClimate News (Sept. 16, 2015) https://insideclimatenews.org/news/15092015/Exxons-own-research-confirmed-fossil-fuels-role-in-global-warming [https://perma.cc/RQ9U-U57W].
 See Complaint at 128–30, Mayor of Balt. v. BP P.L.C., (No. 24-C-18-004219) (Md. Cir. Ct. 2018).
 See, e.g., Alex Guillén & Kelsey Tamborrino, Supreme Court Weighs in On Cities’ Climate Change Lawsuits, Politico (Jan. 19, 2021), https://www.politico.com/news/2021/01/19/supreme-court-cities-climate-change-lawsuits-460341 [https://perma.cc/4MGH-67DB ] (commenting on the fossil fuel industry’s desire to be heard in federal court because of expectations the outcome will be more favorable).
 See Mayor of Balt. v. BP P.L.C., 388 F. Supp. 3d 538, 549 (D. Md. 2019).
 See 28 U.S.C. §1442.
 Transcript of Oral Argument at 21, BP P.L.C. v. Mayor of Balt., (No. 19-1189) (2021).
 See 28 U.S.C. §1447(d) (“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. . . .”).
 See id.
 See, e.g., Guillén & Tamborrino, supra note 10.
 See Transcript of Oral Argument at 4–5, BP P.L.C. v. Mayor of Balt., (No. 19-1189) (2021).
 28 U.S.C. §1447(d).
 See Transcript of Oral Argument at 4–5, BP P.L.C. v. Mayor of Balt., (No. 19-1189) (2021); Guillén & Tamborrino, supra note 10.
 Justices Breyer, Kavanaugh, and Kagan all allude to or outright state a concern over gamesmanship. See Transcript of Oral Argument at 10, 37, 56, BP P.L.C. v. Mayor of Balt., (No. 19-1189) (2021).
 See id.
 John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2388 (2003).
 See, e.g., Peggy Parish, Amelia Bedelia (1963). For example, the title character literally drew a picture of drapes when asked to “draw the drapes.”
 See Manning, supra note 23.
 See Judiciary Act of 1887; Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 237 (2007).
 Cf. Volvo of Am. Corp. v. Schwarzer, 429 U.S. 1331 (1976).
 See Mayor of Balt. v. BP P.L.C., 388 F. Supp. 3d 538, 549 (D. Md. 2019).
 See, e.g., Transcript of Oral Argument at 11, BP P.L.C. v. Mayor of Balt., (No. 19-1189) (2021).
 See id. at 58 (mentioning that all four appellate courts that have faced this question have affirmed remands).
 See id. at 5 (suggesting without elaboration that additional review would expedite rather than delay a case).