The US Court of Appeals for the Tenth Circuit affirmed a district court’s order refusing to remove a lawsuit against ExxonMobil and Suncor Energy from state to federal court on Tuesday. The lawsuit, originally filed in the District Court for the County of Boulder, Colorado in 2018, alleges that the two fossil-fuel companies are liable for the climate crisis, like “heatwaves, wildfires, droughts, and floods”, affecting the city and county of Boulder and the county of San Miguel.

In June of 2018, the defendant energy companies filed a notice of removal in an attempt to move the case to Federal court. In response, the plaintiffs filed a motion to remand the case to state court for lack of federal subject matter jurisdiction. After the district court granted the plaintiffs’ motion to remand, the defendants appealed to the Tenth Circuit Court of Appeals.

After a lengthy discussion on appellate jurisdiction, the court determined it could only review one of the defendants’ six bases for removal: federal officer jurisdiction. ExxonMobil asserted federal officer removal jurisdiction, which allows removal with private persons who “lawfully assist” federal officers “in the performance of their official [duties]”, because of its mining of the Outer Continental Shelf (OCS) under government contract. The appellate court concluded that ExxonMobil’s drilling of the OCS did not satisfy the “acting under” requirement for removal based on federal officer jurisdiction: “We agree with the district court’s determination that under the OCS leases “the government does not control the manner in which Defendants drill for oil and gas, or develop and produce the product.”

This is the second judicial loss for the fossil-fuel industry this week: a judge for the US District Court for the District of Columbia ordered the Dakota Access Pipeline (DAPL) to shut down pending an environmental impact review on Monday.