The Scope of Appellate Review and the Federal Officer Question: What They Are and Why They Matter

Energy companies targeted by public nuisance lawsuits recently asked the U.S. Ninth Circuit Court of Appeals to stay a mandate that would allow two California municipalities’ cases to proceed in state court, explaining that they plan to file a petition before the United States Supreme Court that will “raise a substantial question that has divided the circuits.” It will be the companies’ second petition requesting SCOTUS to weigh in on a technical legal issue that has recently determined in which court system these cases can proceed: the scope of appellate review.

To quickly recap, these cases have, for the most part, originated in state court. The energy companies pushed them to federal district court, which ultimately sent them back to the state level. The companies then appealed these remand orders to the appropriate U.S. Circuit Courts.

Even though the energy companies removed the cases to federal court on several separate jurisdictional grounds, three circuit courts recently allowed them to move forward in state court after considering (and rejecting) just one of the removal theories.

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