Yesterday a panel of 9th Circuit judges allowed City of Oakland et al. v BP PLC et al. to continue in state courts, as opposed to having this effort to effectively create federal policy to be heard by the federal courts.
As CLW has previously noted in reply to a similar move in Colorado, the “similar cases in California, Maryland, and Rhode Island, effectively place federal energy and environmental policy — rightfully the purview of the federal political branches – into state courts to be determined under state laws.”
“The political branches’ policymaking function is outside of both judicial authority and expertise. As such this is, to say the least, a curious situation, one made more troubling by the preponderance of these cases originating in rather actively progressive jurisdictions. In short, it’s little more than forum-shopping. Sometimes that pays off, sometimes it doesn’t…
It’s almost as if federal judges are (with one exception) uniformly reluctant to take the policymaking job on — righty [sic] so, as it is the province of the other two branches of government — but.… In some cases, as with yesterday’s remand, the court passes the task on to a state judge.
The proper course is that followed by the others among those cases the judge listed, which is to respect the separation of powers. Playing the courts as a lottery, hoping for the big score to reverse disappointing outcomes via the political process is not an approach the courts should enable.”
It is unclear yet whether the defendants will seek a hearing en banc or appeal immediately to the Supreme Court — there is a petition for cert pending in BP P.L.C. et al. v. Mayor and City Council of Baltimore (Energy Policy Advocates’ damning amicus brief about what these suits now demonstrably represent is here).