Civil procedure has the reputation of being—how do I put this delicately?—the least interesting of the first year required law school courses. I cannot tell you how many times students have told me, “I heard civpro was going to be boring.” And that doesn’t count what students don’t say to my face. To be fair, I remember that inclination as a first-year student myself. Civil procedure deals with the technical (and sometimes arcane) ways in which a case proceeds. It can be tempting to rush past that seemingly insignificant stuff and get to the goods—the merits of a case, be it property law, contract, or tort.
I, and probably every other civil procedure teacher in the country, spend a considerable amount of time trying to counteract that tendency. No, really, civil procedure matters. But despite my protestations, I can see the eyes glaze over when I suggest parsing the language of the removal statutes.
However, we now have some of the most important cases of our time underscoring the primacy of procedure. Five states and more than sixteen local governments have filed lawsuits against fossil fuel companies related to climate change. And, although the cases were largely filed several years ago, none of them have proceeded past the initial stages of litigation. Why? Civil procedure. Complicated questions of removal, federal question jurisdiction, and more have snarled these cases before they could get to the merits. Yes, that’s right, the existential threat of climate change hangs, at least in part, on the law school subject many would rather not think about after the final exam.
Consider Baltimore’s lawsuit. In 2018, the Mayor and City Council filed a complaint against twenty-six fossil fuel companies for the climate change impacts of fossil fuels. The case was deliberately filed in Maryland state court. And the complaint was deliberately framed in products liability terms, state law claims.
Those choices proved astute. The Chevron defendants immediately removed the case to federal court. The Baltimore plaintiffs sought to remand it back to state court. Both sides understood that the venue—state or federal court—was likely dispositive. A federal forum was far friendlier to the fossil fuel defendants; a state forum could be devastating.
Whether the case would remain in federal court, then, depended on how the Baltimore plaintiffs framed their case. Was there federal question subject matter jurisdiction? Did the complaint’s state law claims “necessarily raise” issues of federal law? Did federal common or statutory law displace or preempt the state law claims?
Without meticulous attention to the basics of civil procedure—What forum? What basis for subject matter jurisdiction? How will the defendants likely respond?—the Baltimore plaintiffs case could have gone awry. But the 132-page complaint was thoughtfully crafted. And that hard work paid off just this past April when the Fourth Circuit agreed that the case should be remanded to state court. In Mayor and City Council of Baltimore v. BP P.L.C., the Fourth Circuit spent 123 pages detailing how the plaintiffs’ claims did not “necessarily raise” federal issues nor were they preempted by federal common or statutory law. Baltimore’s climate case will be fought in state court.
Baltimore is not alone in paying attention to the civil procedure particulars. Similar cases across the country are bearing similar fruit. In February, the Tenth Circuit held that the Boulder County climate lawsuit should likewise be tried in state court. Just two weeks after the Fourth Circuit’s Baltimore decision, the Ninth Circuit held in the San Mateo County climate case that removal to federal court was improper. And at the end of May, the First Circuit held the same for Rhode Island’s climate lawsuit.
These are procedural victories, to be sure, but they have substantive implications. To understand just how important the forum is to the outcome, simply look at how hard the fossil fuel defendants fought in every climate case to have the merits adjudicated in federal court. Further, if the fossil fuel defendants had their way, the claims wouldn’t just be heard in federal court, they would be displaced or preempted in federal court.
That’s precisely what happened to the City of New York’s climate lawsuit. The City filed its lawsuit in federal court asserting state law nuisance and trespass claims. Both the forum and scope of the case were mistakes. In an April 2021 decision dismissing the case, the Second Circuit explained that because the case was originally filed in federal court, the “standard unique to the removability inquiry” did not apply. That meant that the court could “consider the [defendants’] preemption defense on its own terms.” Along with the case’s framing in nuisance and trespass terms, this led the court to conclude that federal law displaced the claims. Case dismissed.
Of course, in hindsight, the City’s choices are easy to criticize. And perhaps the Second Circuit is simply a less advantageous circuit in which to litigate cases of this nature. But the takeaway from the disparate results in the state-filed cases and the City’s federally-filed case is clear: civil procedure really truly matters.
