In a lawsuit filed in state court against major oil companies, the County of Boulder alleged that the companies had concealed the climate hazards associated with the production and use of their fossil-fuel products. The companies removed the cases to federal district court, arguing, among other things, that they were entitled to remove under the “federal officer removal” statute, which allows persons sued or prosecuted in a state court for acts taken under the direction of a federal officer and under color of federal office to remove a case from state court to federal court. The companies asserted that this statute authorized removal of the case because certain contracts they had with the federal government required them to take some of the actions for which they were sued. The district court held that none of the grounds for removal asserted by the oil companies was proper and remanded the case to state court.
The companies appealed to the U.S. Court of Appeals for the Tenth Circuit. In the Tenth Circuit. Public Citizen filed a brief as amicus curiae supporting the County. The brief explains that commercial relationships such as those the oil companies had with the federal government do not transform the companies into agents acting on behalf of federal officers and do not entitle them to remove cases brought against them in state court.
On July 7, 2020, the Tenth Circuit ruled that the oil companies were not acting under federal officers within the meaning of the federal officer removal statute. The court affirmed the district courts remand order, becoming the third court of appeals (following the Fourth Circuit in the Baltimore case and the Ninth Circuit in the San Mateo case) to reject the oil companies’ efforts to remove climate-change lawsuits to federal court. In a subsequent opinion addressing the companies’ other grounds for removal, the court of appeals again affirmed the district court, holding that none of the companies’ arguments had merit.