Petition for Writ of Certiorari — BP p.l.c., et al., Petitioners v. Mayor and City Council of Baltimore

No.

In the Supreme Court of the United States

BP P.L.C., ET AL., PETITIONERS

v.

MAYOR AND CITY COUNCIL OF BALTIMORE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE J. BOUTROUS, JR.

GIBSON, DUNN &

CRUTCHER LLP

333 South Grand Street

Los Angeles, CA 90071

JOSHUA S. LIPSHUTZ

GIBSON, DUNN &

CRUTCHER LLP

1050 Connecticut

Avenue, N.W.

Washington, DC 20036

ANNE CHAMPION

GIBSON, DUNN &

CRUTCHER LLP

200 Park Avenue

New York, NY 10166

DAVID C. FREDERICK

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W.,

Suite 400

Washington, DC 20036

KANNON K. SHANMUGAM

Counsel of Record

WILLIAM T. MARKS

TANYA S. MANNO

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

AGBEKO C. PETTY

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

(additional counsel

on signature page)

QUESTION PRESENTED

Section 1447(d) of Title 28 of the United States Code

generally precludes appellate review of an order remanding a removed case to state court. But Section 1447(d) expressly provides that an “order remanding a case * * *

removed pursuant to” the federal-officer removal statute,

28 U.S.C. 1442, or the civil-rights removal statute, 28

U.S.C. 1443, “shall be reviewable by appeal or otherwise.”

Some courts of appeals have interpreted Section 1447(d)

to permit appellate review of any issue encompassed in a

district court’s remand order where the removing defendant premised removal in part on the federal-officer or

civil-rights removal statutes; other courts of appeals, including the Fourth Circuit in this case, have held that appellate review is limited to the federal-officer or civilrights ground for removal. The question presented is as

follows:

Whether 28 U.S.C. 1447(d) permits a court of appeals

to review any issue encompassed in a district court’s order

remanding a removed case to state court where the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civilrights removal statute, 28 U.S.C. 1443.

(I)

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE STATEMENT

Petitioners are BP p.l.c.; BP America Inc.; BP Products North America Inc.; Chevron Corporation; Chevron

U.S.A., Inc.; CITGO Petroleum Corporation; CNX Resources Corporation; ConocoPhillips; ConocoPhillips

Company; CONSOL Energy Inc.; CONSOL Marine Terminals LLC; Crown Central LLC; Crown Central New

Holdings LLC; Exxon Mobil Corporation; ExxonMobil

Oil Corporation; Hess Corporation; Marathon Petroleum

Corporation; Phillips 66; Royal Dutch Shell plc; Shell Oil

Company; and Speedway LLC.

Petitioner BP p.l.c. has no parent corporation, and no

publicly held company holds 10% or more of its stock.

Petitioners BP America Inc. and BP Products North

America Inc. are wholly owned indirect subsidiaries of petitioner BP p.l.c.

Petitioner Chevron Corporation has no parent corporation, and no publicly held company holds 10% or more

of its stock.

Petitioner Chevron U.S.A., Inc., is a wholly owned

subsidiary of petitioner Chevron Corporation.

Petitioner CITGO Petroleum Corporation is a wholly

owned indirect subsidiary of Petróleos de Venezuela S.A.

No publicly held company holds 10% or more of Petróleos

de Venezuela S.A.’s stock.

Petitioner CNX Resources Corporation has no parent

corporation, and no publicly held company owns 10% or

more of its stock.

Petitioner ConocoPhillips has no parent corporation,

and no publicly held company holds 10% or more of its

stock.

Petitioner ConocoPhillips Company is a wholly owned

subsidiary of petitioner ConocoPhillips.

(II)

III

Petitioner CONSOL Energy Inc., has no parent corporation. BlackRock, Inc., through itself or its subsidiaries, owns 10% or more of CONSOL Energy Inc.’s stock.

Petitioner CONSOL Marine Terminals LLC is a

wholly owned indirect subsidiary of petitioner CONSOL

Energy Inc.

Petitioner Crown Central New Holdings LLC is the

sole member of petitioner Crown Central LLC. The sole

member of Crown Central New Holdings LLC is

Rosemore Holdings, Inc., a wholly owned subsidiary of

Rosemore, Inc. No publicly held company owns 10% or

more of Rosemore, Inc.’s stock.

Petitioner Exxon Mobil Corporation has no parent

corporation, and no publicly held company owns 10% or

more of its stock.

Petitioner ExxonMobil Oil Corporation is a wholly

owned indirect subsidiary of petitioner Exxon Mobil Corporation.

Petitioner Hess Corporation has no parent corporation, and no publicly held company owns 10% or more of

its stock.

Petitioner Marathon Petroleum Corporation has no

parent corporation, and no publicly held company owns

10% or more of its stock.

Petitioner Speedway LLC is a wholly owned indirect

subsidiary of Marathon Petroleum Corporation.

Petitioner Phillips 66 has no parent corporation, and

no publicly held company owns 10% or more of its stock.

Petitioner Royal Dutch Shell plc has no parent corporation, and no publicly held company owns 10% or more of

its stock.

Petitioner Shell Oil Company is a wholly owned indirect subsidiary of petitioner Royal Dutch Shell plc.

Respondent is the Mayor and City Council of Baltimore.

RELATED PROCEEDINGS

United States District Court (D. Md.):

Mayor and City Council of Baltimore v. BP p.l.c., Civ.

No. 18-2357 (June 10, 2019)

Mayor and City Council of Baltimore v. BP p.l.c., Civ.

No. 18-2357 (July 31, 2019) (order on motion for a

stay pending appeal)

United States Court of Appeals (4th Cir.):

Mayor and City Council of Baltimore v. BP p.l.c., No.

19-1644 (Oct. 1, 2019) (order on motion for a stay

pending appeal)

Mayor and City Council of Baltimore v. BP p.l.c., No.

19-1644 (Mar. 6, 2020)

United States Supreme Court:

BP p.l.c. v. Mayor and City Council of Baltimore, No.

19A368 (Oct. 22, 2019) (order on motion for a stay

pending appeal)

(IV)

TABLE OF CONTENTS

Page

Opinions below ................................................................................2

Jurisdiction ......................................................................................2

Statutory provision involved .........................................................2

Statement .........................................................................................2

A. Background ........................................................................ 4

B. Facts and procedural history ........................................... 5

Reasons for granting the petition.................................................9

A. The decision below implicates a recognized conflict

among the courts of appeals .......................................... 11

B. The decision below is incorrect ...................................... 17

C. The question presented is exceptionally important

and warrants review in this case ................................... 20

Conclusion ......................................................................................24

Appendix A ....................................................................................1a

Appendix B ..................................................................................31a

Appendix C ..................................................................................82a

Appendix D ..................................................................................95a

TABLE OF AUTHORITIES

Cases:

Alabama v. Conley, 245 F.3d 1292 (11th Cir. 2001) .... 15, 16

American Electric Power Co. v. Connecticut,

564 U.S. 410 (2011) ........................................................ 6, 23

Appalachian Volunteers v. Clark, 432 F.3d 520

(6th Cir. 1970), cert. denied, 401 U.S. 939 (1971).... 14, 19

Cannon v. University of Chicago, 441 U.S. 776 (1979) ..... 19

Carlsbad Technology, Inc. v. HIF Bio, Inc.,

556 U.S. 635 (2009) ............................................................ 21

City of Walker v. Louisiana,

877 F.3d 563 (5th Cir. 2017) ....................................... 11, 13

(V)

VI

Page

Cases—continued:

Davis v. Glanton, 107 F.3d 1044 (3d Cir.),

cert. denied, 522 U.S. 859 (1997) ..................................... 15

Decatur Hospital Authority v. Aetna Health, Inc.,

854 F.3d 292 (5th Cir. 2017) ....................................... 13, 21

Detroit Police Lieutenants & Sergeants Association

v. City of Detroit, 597 F.2d 566 (6th Cir. 1979) ............. 14

Grable & Sons Metal Products, Inc.

v. Darue Engineering & Manufacturing,

545 U.S. 308 (2005) .............................................................. 6

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) .......... 6, 23

Jacks v. Meridian Resource Co.,

701 F.3d 1224 (8th Cir. 2012) ...............................16, 17, 21

Kircher v. Putnam Funds Trust,

547 U.S. 633 (2006) ................................................12, 18, 21

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015) .................................... passim

Mays v. City of Flint, 871 F.3d 437 (6th Cir. 2017),

cert. denied, 138 S. Ct. 1557 (2018) ........................... 14, 21

Noel v. McCain, 538 F.2d 633 (4th Cir. 1976) ............8, 9, 19

Osborn v. Haley, 549 U.S. 225 (2007) .................................. 21

Patel v. Del Taco, Inc., 446 F.3d 996 (9th Cir. 2006) ......... 16

Powerex Corp. v. Reliant Energy Services, Inc.,

551 U.S. 224 (2007) ............................................................ 21

Quackenbush v. Allstate Insurance Co.,

517 U.S. 706 (1996) ........................................................ 5, 21

Robertson v. Ball, 534 F.2d 63 (5th Cir. 1976) ................... 13

Southern Pacific Co. v. Denton, 146 U.S. 202 (1892) ........ 21

State Farm Mutual Automobile Insurance Co.

v. Baasch, 644 F.2d 94 (2d Cir. 1981) ............................. 15

Tennessee v. Davis, 100 U.S. 257 (1879) ............................. 21

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976) ............................................................ 21

Things Remembered, Inc. v. Petrarca,

516 U.S. 124 (1995) ............................................................ 21

Wells Fargo Bank, N.A. v. Dey-El,

788 Fed. Appx. 857 (3d Cir. 2019) ................................... 11

VII

Page

Case—continued:

Yamaha Motor Corp., U.S.A. v. Calhoun,

516 U.S. 199 (1996) ................................................... passim

Statutes:

All Writs Act, 28 U.S.C. 1651 ............................................... 15

Civil Rights Act of 1964, Pub. L. No. 88-352,

78 Stat. 241 ........................................................................... 5

§ 901, 78 Stat. 266................................................................ 5

Class Action Fairness Act of 2005, Pub. L. No. 109-2,

119 Stat. 4 ........................................................................... 16

28 U.S.C. 1332(d)............................................................... 16

Judiciary Act of 1789, ch. 20, 1 Stat. 73 ................................. 4

§ 12, 1 Stat. 79-80 ................................................................ 4

Removal Clarification Act of 2011,

Pub. L. No. 112-51, 125 Stat. 545 ................................ 5, 19

§ 2(d), 125 Stat. 546 ....................................................... 5, 19

28 U.S.C. 1254(1) ..................................................................... 2

28 U.S.C. 1291 .......................................................................... 5

28 U.S.C. 1292(b) .......................................................... passim

28 U.S.C. 1441 ............................................................... passim

28 U.S.C. 1441(a) ................................................................... 21

28 U.S.C. 1442 ............................................................... passim

28 U.S.C. 1443 ............................................................... passim

28 U.S.C. 1444 .......................................................................... 4

28 U.S.C. 1446 .......................................................................... 4

28 U.S.C. 1447 .......................................................................... 4

28 U.S.C. 1447(c) ..................................................................... 4

28 U.S.C. 1447(d) .......................................................... passim

28 U.S.C. 1448 .......................................................................... 4

28 U.S.C. 1449 .......................................................................... 4

28 U.S.C. 1450 .......................................................................... 4

28 U.S.C. 1455 .......................................................................... 4

Miscellaneous:

Daniel R. Coquillette et al., Moore’s Federal

Practice (3d ed. 2019) ....................................................... 12

VIII

Page

Miscellaneous—continued:

Charles A. Wright et al., Federal Practice and

Procedure (2d ed. 2019).............................................. 12, 18

In the Supreme Court of the United States

No.

BP P.L.C., ET AL., PETITIONERS

v.

MAYOR AND CITY COUNCIL OF BALTIMORE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BP p.l.c.; BP America Inc.; BP Products North America Inc.; Chevron Corporation; Chevron U.S.A., Inc.;

CITGO Petroleum Corporation; CNX Resources Corporation; ConocoPhillips; ConocoPhillips Company; CONSOL Energy Inc.; CONSOL Marine Terminals LLC;

Crown Central LLC; Crown Central New Holdings LLC;

Exxon Mobil Corporation; ExxonMobil Oil Corporation;

Hess Corporation; Marathon Petroleum Corporation;

Phillips 66; Royal Dutch Shell plc; Shell Oil Company; and

Speedway LLC respectfully petition for a writ of certiorari to review the judgment of the United States Court of

Appeals for the Fourth Circuit in this case.

(1)

2

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a30a) is not yet reported. The opinion of the district court

(App., infra, 31a-81a) is reported at 388 F. Supp. 3d 538.

JURISDICTION

The judgment of the court of appeals was entered on

March 6, 2020. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 1447(d) of Title 28 of the United States Code

provides:

An order remanding a case to the State court from

which it was removed is not reviewable on appeal or

otherwise, except that an order remanding a case to

the State court from which it was removed pursuant to

section 1442 or 1443 of this title shall be reviewable by

appeal or otherwise.

STATEMENT

This case presents a recurring and indisputably important question of appellate jurisdiction that has divided

the federal courts of appeals. While a court of appeals ordinarily lacks jurisdiction to review a district court’s order

remanding a removed case to state court, 28 U.S.C.

1447(d) expressly authorizes appellate review of “an order

remanding a case * * * removed pursuant to” the federal-officer or civil-rights removal statutes.

In an opinion by Judge Easterbrook, the Seventh Circuit held that Section 1447(d) permits appellate review of

any issue encompassed in a district court’s remand order

where the removing defendant premised removal in part

on the federal-officer or civil-rights removal statutes. That court found dispositive the statutory text and

3

purpose, as well as this Court’s interpretation of an analogous jurisdictional statute. Two other courts of appeals

have recently endorsed the Seventh Circuit’s approach.

Six other courts of appeals, however, have held that Section 1447(d) permits review of only the federal-officer or

civil-rights grounds for removal in cases removed under

those statutes. The question presented is whether Section 1447(d) permits a court of appeals to review any issue

encompassed in a remand order where the removing defendant premised removal in part on the federal-officer or

civil-rights removal statutes.

Petitioners in this case are 21 domestic and foreign energy companies that extract, produce, distribute, or sell

fossil fuels around the world; respondent is the municipal

government of Baltimore, Maryland. Like a number of

other state and local governments, respondent filed this

action against petitioners in Maryland state court, seeking to recover damages under state law for harms that it

claims it has sustained and will sustain due to global climate change.

As in other similar cases, petitioners removed this

case to federal court, asserting multiple grounds for removal. Among those grounds, petitioners contended that

removal was appropriate under the federal-officer removal statute, 28 U.S.C. 1442, because respondent’s complaint encompassed petitioners’ exploration for and production of fossil fuels at the direction of federal officers.

The district court remanded the case to state court, and

petitioners appealed.

The court of appeals affirmed. It held that 28 U.S.C.

1447(d), as construed in an earlier opinion from that court,

deprived it of jurisdiction to consider any of the grounds

for removal that the district court had addressed and that

the parties had briefed and argued on appeal, except for

4

the federal-officer ground. In so holding, the court of appeals expressly acknowledged the presence of a circuit

conflict on the question whether Section 1447(d) permits

a court of appeals to review any issue encompassed in a

district court’s remand order where the removing defendant premised removal in part on the federal-officer or

civil-rights removal statutes.

This case is an ideal vehicle for resolving an entrenched conflict on an important and frequently recurring question of federal law. In fact, the question is currently pending in several other nearly identical climatechange lawsuits in courts across the Nation. The petition

for a writ of certiorari should be granted.

A. Background

In the Judiciary Act of 1789, Congress first permitted

defendants to remove to federal court certain actions initially brought in state court. See ch. 20, § 12, 1 Stat. 7980. Since then, Congress has enacted a number of removal provisions, see, e.g., 28 U.S.C. 1441-1444, and has

set forth detailed procedures for removing cases, see, e.g.,

28 U.S.C. 1446-1450, 1455.

As a general rule, once a case is removed to a federal

district court, the court must determine whether it has

subject-matter jurisdiction over the action. See 28 U.S.C.

1447(c). If it determines at any time that it lacks subjectmatter jurisdiction, it must remand the case to state court.

See ibid. The district court must also remand the case if,

after removal, a party files a timely motion identifying a

procedural defect in the removal. See ibid.

Federal courts of appeals have limited jurisdiction to

review an order remanding a removed action to state

court. The general rule, set forth in the first clause of 28

U.S.C. 1447(d), is that “an order remanding a case to

[state court] is not reviewable on appeal or otherwise.”

5

But the second clause of Section 1447(d) expressly provides that any “order remanding a case to the [s]tate court

from which it was removed pursuant to” the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights

removal statute, 28 U.S.C. 1443, is “reviewable by appeal

or otherwise.”

The provisions expressly permitting appellate review

of remand orders arose from separate legislation. Congress enacted the provision permitting appeals of cases

removed under the civil-rights removal statute as part of

the Civil Rights Act of 1964. See Pub. L. No. 88-352, § 901,

78 Stat. 266. Congress enacted the provision permitting

appeals of cases removed under the federal-officer removal statute as part of the Removal Clarification Act of

2011. See Pub. L. No. 112-51, § 2(d), 125 Stat. 546.

Those provisions, now codified together in 28 U.S.C.

1447(d), permit review “by appeal or otherwise” of the district court’s “order remanding [the] case” to state court.

Because a remand order is an appealable final decision under 28 U.S.C. 1291, see Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 714-715 (1996), federal courts of

appeals have appellate jurisdiction over an order remanding a case removed under Section 1442 or 1443.

B. Facts And Procedural History

1. In 2017, a number of state and local governments

began filing lawsuits in state courts against various energy companies, most of them nonresidents of the forum

States, alleging that the companies’ worldwide extraction,

production, sale, and promotion of fossil fuels had caused

injury by contributing to global climate change. Those

lawsuits primarily assert that the extraction, production,

sale, and promotion of fossil fuels constitute a public nui-

6

sance and give rise to product liability under state common law; the plaintiffs are seeking relief largely in the

form of compensatory and punitive damages.

The defendants removed nearly all of those lawsuits to

federal court. The defendants asserted multiple bases for

federal jurisdiction, including that the allegations in the

complaints pertain to actions petitioners took at the direction of federal officers, see 28 U.S.C. 1442; that respondent’s climate-change claims necessarily arise under federal common law, cf. American Electric Power Co. v. Connecticut, 564 U.S. 410, 420-423 (2011); Illinois v. City of

Milwaukee, 406 U.S. 91, 103 (1972); and that federal-question jurisdiction was otherwise present under Grable &

Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), and under the doctrine of

complete preemption. One district court has thus far permitted removal; others have remanded the cases to state

court for lack of subject-matter jurisdiction. Each of

those cases is currently pending on appeal. See App., infra, 1a-30a; Rhode Island v. Shell Oil Products Co., No.

19-1818 (1st Cir.); County of San Mateo v. Chevron Corp.,

No. 18-15499 (9th Cir.); City of Oakland v. BP p.l.c., No.

18-16663 (9th Cir.); Board of County Commissioners of

Boulder County v. Suncor Energy (U.S.A.) Inc., No. 191330 (10th Cir.).

2. Petitioners are 21 domestic and foreign energy

companies that extract, produce, distribute, or sell fossil

fuels around the world. In 2018, respondent filed suit in

Maryland state court against petitioners and five other

defendants. The complaint alleges that petitioners have

contributed to global climate change, which in turn has

caused or will cause harm in Baltimore. The complaint

pleads a variety of causes of action that respondent asserts arise under state law. Respondent seeks, among

7

other things, compensatory and punitive damages. App.,

infra, 2a-4a, 5a n.3.1

Petitioners removed this action to the United States

District Court for the District of Maryland. App., infra,

4a. In their notice of removal, petitioners asserted many

of the same bases for federal jurisdiction as have the defendants in other municipal climate-change lawsuits, see

p. 6, supra, including that removal is permissible under

the federal-officer removal statute and that respondent’s

claims necessarily arise under federal common law. App.,

infra, 4a-5a.

Respondent moved to remand the case to state court

based on a lack of subject-matter jurisdiction, and the district court granted the motion. App., infra, 31a-81a. The

district court acknowledged that other courts faced with

similar climate-change-related claims had “reached opposing conclusions as to removal,” id. at 46a, but it ultimately rejected each of petitioners’ bases for federalcourt jurisdiction, id. at 81a.

The district court initially stayed execution of the remand order, but then denied petitioners’ motion for a stay

pending appeal. App., infra, 82a-94a. As is relevant here,

the court agreed with petitioners that whether respondent’s claims arose under federal common law “present[ed]

a complex and unsettled legal question.” Id. at 87a. But

the court concluded that, under 28 U.S.C. 1447(d), the

scope of review on appeal would be limited to the question

whether removal was proper under the federal-officer removal statute. App., infra, 87a-90a. In the district court’s

view, petitioners were unlikely to prevail on that ground

Several petitioners contend that they are not subject to personal

jurisdiction in the Maryland courts, and they have separately moved

to dismiss the complaint on that ground. They are litigating the removal issue subject to that objection.

1

8

for removal, and the other equitable factors did not justify

a stay. Id. at 90a-94a.2

3. The court of appeals affirmed the district court’s

remand order. App., infra, 1a-30a. The court of appeals

began its analysis with the “threshold question” of the

scope of its appellate jurisdiction under Section 1447(d).

Id. at 6a. The court observed that, in Noel v. McCain, 538

F.2d 633 (4th Cir. 1976), it had held that Section 1447(d)

deprived appellate courts of “jurisdiction to review any

ground” for removal addressed in a remand order “other

than the one specifically exempted from [Section]

1447(d)’s bar on review” (which at the time was only civilrights removal, see p. 5, supra). App., infra, 7a.

While petitioners argued that subsequent changes in

the law had abrogated the Fourth Circuit’s decision in

Noel, the court of appeals disagreed. App., infra, 7a-10a.

Petitioners first relied on this Court’s decision in Yamaha

Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996).

There, the Court addressed the question whether, in an

interlocutory appeal under 28 U.S.C. 1292(b), a court of

appeals could review any issue fairly encompassed in a

district court’s certified order. Section 1292(b) permits a

court of appeals to entertain an interlocutory appeal

“from [an] order” when the district court certifies that

“such order involves a controlling question of law as to

which there is substantial ground for difference of opinion

and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” In

Yamaha, this Court held that appellate review of any issue encompassed in the certified order was permissible

The court of appeals denied petitioners’ motion for a stay pending

appeal, App. infra, 95a-96a, as did this Court, see No. 19A368 (Oct.

22, 2019).

2

9

because “it is the order that is appealable, and not the particular question formulated by the district court.” 516

U.S. at 205 (citation omitted). Acknowledging that the

Seventh Circuit had relied on Yamaha in reaching a different conclusion, the court of appeals held that it was

nevertheless bound by Noel because Yamaha involved

Section 1292(b) and not Section 1447(d). App., infra, 8a9a.

Petitioners also contended that Congress had incorporated the decision in Yamaha into Section 1447(d) by

amending that provision in 2011 while retaining the reference to remand “order[s].” App, infra, 9a-10a; see p. 5,

supra. But the court of appeals rejected that contention

for the same reason, noting that “Yamaha did not interpret the scope of [Section] 1447(d), let alone involve a remand order.” App., infra, 9a. Accordingly, the court of

appeals “dismiss[ed] th[e] appeal for lack of jurisdiction

insofar as it seeks to challenge the district court’s determination” on any ground other than federal-officer removal. Id. at 10a (internal quotation marks and citation

omitted).

The court of appeals then held that the federal-officer

removal statute did not permit removal of this case. App.,

infra, 10a-30a. The court reasoned that, to the extent that

petitioners relied on their contractual relationships with

the federal government, either petitioners were not acting

under a federal officer in carrying out those relationships,

or there was an insufficient nexus between those relationships and respondent’s claims. Id. at 14a-30a.

REASONS FOR GRANTING THE PETITION

This case presents a straightforward and developed

conflict among the courts of appeals on an important and

frequently recurring question of appellate jurisdiction. In

10

the decision below, the Fourth Circuit expressly recognized an existing conflict on the question whether 28

U.S.C. 1447(d) permits a court of appeals to review any

issue encompassed in a district court’s remand order

where the removing defendant premised removal in part

on the federal-officer or civil-rights removal statute. Nine

of the courts of appeals have already weighed in on the

issue, and the same issue is pending before three courts

of appeals in climate-change lawsuits like the one here.

The Seventh Circuit, in an opinion by Judge Easterbrook, has held that appellate review extends to any issue

encompassed in the “order remanding [the] case,” 28

U.S.C. 1447(d), when the defendant has invoked one of the

enumerated grounds for removal. Two other courts of appeals have recently agreed with the Seventh Circuit’s reasoning despite arguably conflicting precedent in those circuits that predates this Court’s decision in Yamaha Motor

Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996), on which

the Seventh Circuit principally relied. Six courts of appeals, including the Fourth Circuit in the decision below,

have held that appellate review of remand orders is limited to consideration of only a federal-officer or civilrights ground for removal.

The circuit conflict on the question presented is clear,

and it warrants the Court’s review in this case. The question is also of substantial legal and practical importance;

indeed, the question is currently arising with acute frequency in climate-change lawsuits similar to this one,

where the arguments for federal jurisdiction are compelling. This case is an optimal vehicle for consideration of

that important question. Because this case readily satisfies the criteria for certiorari, the petition should be

granted.

11

A. The Decision Below Implicates A Recognized Conflict

Among The Courts Of Appeals

The Fourth Circuit’s decision implicates a persistent

circuit conflict concerning whether 28 U.S.C. 1447(d) permits appellate review of any issue encompassed in a district court’s remand order where the removing defendant

premised removal in part on the federal-officer removal

statute, 28 U.S.C. 1442, or the civil-rights removal statute,

28 U.S.C. 1443. The Fourth Circuit expressly recognized

that conflict, as have other courts of appeals. See App.,

infra, 8a; Wells Fargo Bank, N.A. v. Dey-El, 788 Fed.

Appx. 857, 860 n.2 (3d Cir. 2019); Lu Junhong v. Boeing

Co., 792 F.3d 805, 811-812 (7th Cir. 2015); see also City of

Walker v. Louisiana, 877 F.3d 563, 567 n.3 (5th Cir. 2017).

That conflict warrants the Court’s resolution.

1. In Lu Junhong, supra, the Seventh Circuit held

that Section 1447(d) permits review of any issue encompassed in a district court’s remand order. See 792 F.3d at

811. The court grounded that conclusion in the plain text

of the statute, which permits appellate review of any “order remanding a case to the [s]tate court from which it

was removed pursuant to [S]ection 1442 or 1443.” 28

U.S.C. 1447(d) (emphasis added). “To say that a district

court’s ‘order’ is reviewable,” the Seventh Circuit explained, “is to allow appellate review of the whole order,

not just of particular issues or reasons.” 792 F.3d at 811.

In reaching that conclusion, the Seventh Circuit also

relied on this Court’s decision in Yamaha, supra, which

addressed whether, in an interlocutory appeal under 28

U.S.C. 1292(b), a court of appeals could review only the

particular question certified by a district court or could

instead address any issue encompassed in the order being

certified. See 516 U.S. at 204. The Court concluded that

“the appellate court may address any issue fairly included

12

within the certified order,” not just the particular question certified. Id. at 205. The Court explained that the

plain text of Section 1292(b) makes clear that “appellate

jurisdiction applies to the order certified to the court of

appeals[] and is not tied to the particular question formulated by the district court.” Ibid. The Seventh Circuit interpreted Section 1447(d) in the same way, “tak[ing] both

Congress and [the Court] at their word in saying that, if

appellate review of an ‘order’ has been authorized, that

means review of the ‘order.’ ” Lu Junhong, 792 F.3d at

812.

That interpretation of the statutory text, the Seventh

Circuit added, comports with the purpose underlying Section 1447(d)—namely, “to prevent appellate delay in determining where litigation will occur” when a case is removed to federal court. Lu Junhong, 792 F.3d at 813 (citing Kircher v. Putnam Funds Trust, 547 U.S. 633, 640

(2006)). The Seventh Circuit reasoned that, once Congress has permitted appellate review of a remand order,

a court of appeals “has been authorized to take the time

necessary to determine the right forum”; “[t]he marginal

delay from adding an extra issue to a case where the time

for briefing, argument, and decision has already been accepted is likely to be small.” Ibid. The Seventh Circuit

further observed that “[t]he leading treatise” on federal

jurisdiction had reached the same conclusion. Ibid.; see

15A Charles A. Wright et al., Federal Practice and Procedure § 3914.11, at 706 (2d ed. 2019) (Wright & Miller);

see also 16 Daniel R. Coquillette et al., Moore’s Federal

Practice § 107.156[2][g], at 107-527 (3d ed. 2019).

2. Two other courts of appeals have recently followed

the Seventh Circuit’s reasoning in Lu Junhong, although

there is arguably conflicting precedent in those circuits

that predates Yamaha.

13

a. In Decatur Hospital Authority v. Aetna Health,

Inc., 854 F.3d 292 (2017), the Fifth Circuit considered

whether it could review a district court’s ruling that removal was untimely in a case removed in part under the

federal-officer removal statute. The court held that it

could. See id. at 295-297. The court began by noting that

it “ordinarily lack[ed] jurisdiction to review a remand order based on” untimely removal. Id. at 296. But the defendant’s reliance on the federal-officer removal statute,

the court continued, “permit[ted] appellate review.” Ibid.

Relying on the reasoning in Lu Junhong, the Fifth Circuit

explained that its authority to review the district court’s

timeliness ruling “flow[ed] from the text of Section

1447(d)”: Congress authorized appellate review of the

“order itself,” rather than the “reasons for an order.”

Ibid. (citation omitted).

In holding that it could review the remand order, the

Fifth Circuit distinguished its earlier decision in Robertson v. Ball, 534 F.2d 63 (1976). There, the Fifth Circuit

addressed only the validity of removal under the civilrights removal statute and declined to address the validity

of removal under the general removal statute, 28 U.S.C.

1441. See 534 F.2d at 65. In Decatur Hospital Authority,

the Fifth Circuit interpreted Robertson as precluding

consideration of alternative grounds for removal but not

of other defects in removal unrelated to subject-matter jurisdiction. See 854 F.3d at 296-297. The court did not

elaborate on how that distinction could comport with its

textual interpretation of Section 1447(d). The court did

not need to resolve definitively the question whether alternative grounds for removal could be considered, however, because it concluded that the removal was in any

event untimely. See id. at 297 & n.4; see also City of

Walker, 877 F.3d at 566-567 nn.2-4.

14

b. The Sixth Circuit has also adopted the Seventh

Circuit’s reasoning in Lu Junhong. In Mays v. City of

Flint, 871 F.3d 437 (2017), cert. denied, 138 S. Ct. 1557

(2018), the defendant removed the case to federal court

under both the federal-officer removal statute and the

general removal statute. The district court remanded the

case to state court, and the defendant appealed. See 871

F.3d at 442. Citing Lu Junhong, the Sixth Circuit held

that its “jurisdiction to review the remand order” under

Section 1447(d) “also encompasses review of the district

court’s decision on the alternative ground for removal”:

i.e., removal under the general removal statute. Ibid. The

court proceeded to review both grounds for removal and

ultimately affirmed. See id. at 442-450; see also id. at 450455 (McKeague, J., dissenting) (taking the position that

the case was removable under the federal-officer removal

statute). In two uncited cases from decades earlier, however, the Sixth Circuit had declined to review grounds for

removal other than civil-rights removal (then the only

enumerated basis for appellate review of a remand order).

See Detroit Police Lieutenants & Sergeants Association

v. City of Detroit, 597 F.2d 566, 567 (1979); Appalachian

Volunteers v. Clark, 432 F.2d 530, 534 (1970), cert. denied,

401 U.S. 939 (1971).

3. In addition to the Fourth Circuit in the decision below, five courts of appeals have held that review of remand

orders under Section 1447(d) is limited to the question

whether removal is appropriate under the federal-officer

or civil-rights removal statutes. Notably, those courts

have offered little reasoning to support their conclusion.

And while most of their decisions postdate this Court’s decision in Yamaha, none of those courts has grappled with

Yamaha’s import.

15

a. In State Farm Mutual Automobile Insurance Co.

v. Baasch, 644 F.2d 94 (2d Cir. 1981), the defendant removed the case under the civil-rights and general removal

statutes. The district court determined that removal was

untimely and remanded the case to state court. On appeal, the Second Circuit held that Section 1447(d) deprived it of jurisdiction to review the district court’s ruling

that removal was untimely. See id. at 96. But “generously

assum[ing]” that the pro se defendant had presented a

theory as to why removal under the civil-rights removal

statute was timely, the court of appeals addressed and rejected the merits of the civil-rights ground for removal.

Id. at 97. The court then stated that, “[i]nsofar as the appeal challenges the denial of removal under [the general

removal statute], it is dismissed for want of appellate jurisdiction.” Ibid.

b. The Third Circuit reached a similar conclusion in

Davis v. Glanton, 107 F.3d 1044, cert. denied, 522 U.S. 859

(1997). There, the defendants removed the case under the

civil-rights and general removal statutes, as well as the All

Writs Act, 28 U.S.C. 1651. See 107 F.3d at 1046. In addressing its jurisdiction, the court of appeals observed

that Section 1447(d) “expressly authorizes appellate review of remand orders in cases that were originally removed to federal court under [the civil-rights removal

statute].” Id. at 1047. But the court concluded that “the

clear text of [Section] 1447(d)” required dismissal of the

appeal “for want of appellate jurisdiction” “insofar as [the

defendants] challenged the district court’s ruling[] under

[the general removal statute].” Ibid. The court separately declined to grant relief under the All Writs Act.

See id. at 1047 n.4.

c. In Alabama v. Conley, 245 F.3d 1292 (2001), the

Eleventh Circuit similarly noted that, in an earlier order,

16

it had dismissed the appeal “to the extent that it challenge[d] the district court’s remand order based on [the

general removal statute].” Id. at 1293 n.1. But the court

permitted the appeal to the extent that it challenged “the

district court’s implicit determination that removal based

on [the civil-rights removal statute] was improper.” Ibid.

The court proceeded to consider the merits of the civilrights ground for removal and concluded that removal

was improper. See id. at 1299.

d. The Ninth Circuit took a similar tack in Patel v.

Del Taco, Inc., 446 F.3d 996 (2006). In that case, the district court rejected the defendant’s arguments for removal under the civil-rights and general removal statutes

and remanded the case to state court. Citing the language

of Section 1447(d) (but without further elaboration), the

Ninth Circuit stated that it had jurisdiction to review only

the civil-rights ground for removal. See id. at 998.

e. Finally, the Eighth Circuit adopted the same approach in Jacks v. Meridian Resource Co., 701 F.3d 1224

(2012). There, the defendant removed the case under the

general and federal-officer removal statutes, as well as

the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d).

See 701 F.3d at 1228. The district court remanded the

case, and the defendant appealed. The Eighth Circuit

first resolved the CAFA ground for removal (which was

independently appealable) in a separate order. See id. at

1228 n.2. As to the remainder of the appeal, the plaintiff

contended that the court of appeals lacked jurisdiction to

review the district court’s ruling as to not only the general

removal statute, but also (inexplicably) the federal-officer

statute; the defendant contended that removal under both

statutes was before the court. See id. at 1228-1229. The

Eighth Circuit rejected both positions, concluding that,

17

under “the plain language of [Section 1447(d)],” its jurisdiction extended to removal under Section 1442 but not

Section 1441. Id. at 1229.

*

*

*

*

*

In short, as matters currently stand, the Seventh Circuit has held that any issue encompassed in the remand

order is subject to appellate review; the Fifth and Sixth

Circuits have endorsed the Seventh Circuit’s approach,

despite arguably conflicting earlier precedent; and the

Second, Third, Fourth, Eighth, Ninth, and Eleventh Circuits have held that only the federal-officer or civil-rights

ground for removal is subject to appellate review. Given

the persistence of the circuit conflict, it is unlikely to resolve itself without this Court’s intervention. With such a

clear conflict on an important question of federal jurisdiction, this is a paradigmatic case requiring the Court’s review.

B. The Decision Below Is Incorrect

The court of appeals erred by holding that 28 U.S.C.

1447(d) limited the scope of its review to the question

whether removal was appropriate under the federal-officer removal statute.

1. Section 1447(d) provides that “an order remanding

a case to the [s]tate court from which it was removed pursuant to [S]ection 1442 or 1443 of this title shall be reviewable by appeal or otherwise.” As the Seventh Circuit explained in construing that provision, “[t]o say that a district court’s ‘order’ is reviewable is to allow appellate review of the whole order, not just of particular issues or

reasons.” Lu Junhong, 792 F.3d at 811.

This Court’s decision in Yamaha, supra, confirms the

plain-language interpretation of the statute. As explained

18

above, see pp. 10-11, the Court there held that, in an interlocutory appeal under 28 U.S.C. 1292(b), a court of appeals may address “any issue fairly included within the

certified order.” Yamaha, 516 U.S. at 205. Relying on the

plain text of Section 1292(b), the Court reasoned that “appellate jurisdiction applies to the order certified to the

court of appeals[] and is not tied to the particular question

formulated by the district court.” Ibid.

Precisely the same reasoning applies here. Just as

Section 1292(b) authorizes review of certified “order[s],”

Section 1447(d) authorizes appellate review of remand

“order[s]” in cases removed pursuant to the federal-officer and civil-rights removal statutes. Because there is

no reason to believe that the word “order” carries different meanings in the two statutes governing appellate jurisdiction, the Seventh Circuit’s “application of Yamaha”

to Section 1447(d) was “entirely textual.” Lu Junhong,

792 F.3d at 812. Accordingly, when a district court remands a case where removal was premised in part on one

of those statutes, a court of appeals can review “any issue

fairly included within” the remand “order.” Yamaha, 516

U.S. at 205.

That result is consistent not only with the text of Section 1447(d), but also with its underlying purpose. Congress adopted the general rule limiting appellate review

in Section 1447(d) in order to avoid “prolonged litigation

of questions of jurisdiction” after removal. Kircher, 547

U.S. at 640. But once appellate review of a remand order

is permitted, “there is very little to be gained by limiting

review” to a ruling on a particular issue underlying the

order. 15A Wright & Miller § 3914.11, at 706. At that

point, the court of appeals “has been authorized to take

the time necessary to determine the right forum,” and

“[t]he marginal delay from adding an extra issue to a case

* * * is likely to be small.” Lu Junhong, 792 F.3d at

19

813. Construing Section 1447(d) to limit appellate review

to a particular ground for removal would serve only to insulate erroneous jurisdictional rulings from correction,

with little offsetting benefit. There is no evidence in either

the text or the legislative history of Section 1447(d) that

Congress intended such a counterintuitive result.

2. In the decision below, the court of appeals concluded that it was bound by its earlier decision in Noel v.

McCain, 538 F.2d 633 (4th Cir. 1976), to review only the

federal-officer ground for removal. App., infra, 7a. Yet

neither Noel nor the earlier Sixth Circuit decision on

which it relied addressed the textual or policy-based arguments in favor of broader appellate review. See Noel,

538 F.2d at 635; Appalachian Volunteers, 432 F.2d at 534.

Both decisions also long predate this Court’s decision in

Yamaha—as well as the Removal Clarification Act of

2011, which added the provision permitting removals under the federal-officer removal statute to Section 1447(d)

without altering the subsection’s reference to remand “orders.” See Pub. L. No. 112-51, § 2(d), 125 Stat. 546; cf.

Cannon v. University of Chicago, 441 U.S. 667, 697-698

(1979).

In following its earlier decision in Noel, the court of

appeals suggested that Yamaha might be distinguishable

because of the differing operation of Section 1292(b) and

Section 1447(d). App., infra, 9a. The court observed that,

while Section 1292(b) “permits appellate review of important issues before final judgment,” “it does not make

otherwise non-appealable questions reviewable,” as does

the express exception to the general rule in Section

1447(d). Ibid.

That is true as far as it goes, but it does not explain

why the word “order” would carry a different meaning in

one statute governing appellate jurisdiction than in an-

20

other. Also, Section 1447(d) does not limit appellate jurisdiction over remand orders merely for the sake of insulating those orders from review: Congress’ goal was to avoid

delay, and that goal is minimally affected by permitting

review of any issue encompassed in the remand order

once appellate review of the order has been authorized.

See p. 11, supra.

In sum, the court of appeals erred by declining to review the grounds for removal asserted by petitioners

other than the federal-officer ground. The Court should

grant review to resolve the circuit conflict regarding the

scope of appellate jurisdiction under Section 1447(d) and,

on the merits, hold that appellate review extends to all issues encompassed in a remand order in a case removed in

part under the federal-officer or civil-rights removal statutes. The Court would then have the option either to proceed to address the remaining grounds for removal and

reverse the judgment below,3 or to vacate the judgment

and direct the court of appeals to address those grounds

in the first instance.

C. The Question Presented Is Exceptionally Important

And Warrants Review In This Case

The question presented in this case is a frequently recurring one of substantial legal and practical importance.

This case, which cleanly presents the question, is an optimal vehicle for the Court’s review.

1. a. As a preliminary matter, the question presented squarely implicates an area of federal jurisdiction

to which the Court has paid particular solicitude. In a significant number of cases since the enactment of 28 U.S.C.

1447(d), the Court has addressed various aspects of the

The remaining grounds for removal were briefed at length in the

court of appeals by both petitioners and respondent. See Pet. C.A.

Br. 15-40, 48-54; Resp. C.A. Br. 21-53.

3

21

scope of appellate jurisdiction over remand orders. See

Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635,

638-641 (2009); Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 229-239 (2007); Osborn v. Haley,

549 U.S. 225, 239-244 (2007); Kircher, supra; Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 711-712

(1996); Things Remembered, Inc. v. Petrarca, 516 U.S.

124, 127-129 (1995); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 342-352 (1976). The Court has

also long recognized the “great importance” of maintaining clear and uniform rules on issues relating to removal

more generally. Tennessee v. Davis, 100 U.S. 257, 260

(1879).

The specific question presented here arises in a wide

variety of contexts across the full range of civil litigation.

The cases in the circuit conflict have involved the aviation

industry, see Lu Junhong, 792 F.3d at 807; insurance and

health-care plan administration, see Decatur Hospital

Authority, 854 F.3d at 294-295; Jacks, 701 F.3d at 12271228; the drinking-water crisis in Flint, Michigan, see

Mays, 871 F.3d at 440-442; and (as here) climate-change

litigation and other matters related to the energy sector,

see, e.g., App., infra, 2a; Parish of Plaquemines v. Chevron USA, Inc., No. 19-30492 (5th Cir.); Parish of Cameron

v. BP America Production Co., No. 19-30829 (5th Cir.).

The question presented is vitally important to defendants in civil litigation. A defendant that has properly removed a case from state court has a “right and privilege

secured * * * by the [C]onstitution and laws of the

United States” to proceed with the litigation in federal

court. Southern Pacific Co. v. Denton, 146 U.S. 202, 207

(1892); see, e.g., 28 U.S.C. 1441(a). If a district court erroneously remands the case to state court and Section

1447(d) precludes appellate review, the defendant’s right

to proceed in federal court will be lost. While Congress

22

may have been willing to accept erroneous remand orders

in some circumstances in order to obtain prompt resolution of removal issues, there is little delay to be avoided

once appellate review of the remand order has been authorized. See p. 11, supra. If an appeal is already permitted, the defendant should have the opportunity to vindicate its statutory right of removal.

If anything, the uncertainty in the lower courts on the

question presented is exacerbating the delay caused by

appeals of remand orders. In cases in which the defendant seeks review under Section 1447(d) of issues other

than federal-officer or civil-rights removal, the plaintiff

can and often does file a motion for partial dismissal of the

appeal in which it seeks to litigate the question presented

here. That can delay the ultimate resolution of the appeal

from the remand order. See, e.g., C.A. Dkt. 58, County of

San Mateo, supra (No. 18-15499) (setting briefing schedule only after panel decided to carry the motion for partial

dismissal with the merits); C.A. Order, Boulder County,

supra (No. 19-1330) (Oct. 11, 2019) (same).

b. Resolution of the question presented is particularly important in the context of the ongoing nationwide

climate-change litigation brought by state and local governments against energy companies. Like this case, a

number of those cases have been removed from state to

federal court; in some of those cases, district courts have

entered remand orders, and those orders are now on appeal in three circuits. See Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir.); County of San Mateo v.

Chevron Corp., No. 18-15499 (9th Cir.); Board of County

Commissioners of Boulder County v. Suncor Energy

(U.S.A.) Inc., No. 19-1330 (10th Cir.); cf. Parish of

Plaquemines, supra (addressing question presented in

the context of an environmental action against energy

companies); Parish of Cameron, supra (same). In some

23

of those cases, the remand orders were not stayed, and

the parties are actively litigating the underlying cases in

state court. For that reason, the resolution of the question

presented in this case would be particularly timely.

2. Finally, this case is an optimal vehicle for resolution of the question presented. That question was pressed

below, fully briefed by the parties, and passed on by the

court of appeals. And the resolution of the question could

well prove dispositive. The court of appeals’ holding on

the question presented led it to ignore petitioners’ other

compelling grounds for removal: for instance, that federal

common law necessarily governs claims related to interstate air and water pollution, including claims alleging

that energy companies caused injury by contributing to

global climate change. Cf. American Electric Power Co.

v. Connecticut, 564 U.S. 410, 421-422 (2011); Illinois v.

City of Milwaukee, 406 U.S. 91, 103 (1972).

The petition for a writ of certiorari provides the Court

with an ideal opportunity to consider and resolve the

question presented. That question is undeniably important, and the court of appeals’ answer to the question

cannot be defended. The Court should grant certiorari in

this case and reverse or vacate the judgment of the court

of appeals.

24

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

THEODORE J. BOUTROUS, JR.

GIBSON, DUNN &

CRUTCHER LLP

333 South Grand Street

Los Angeles, CA 90071

JOSHUA S. LIPSHUTZ

GIBSON, DUNN &

CRUTCHER LLP

1050 Connecticut Avenue,

N.W.

Washington, DC 20036

ANNE CHAMPION

GIBSON, DUNN &

CRUTCHER LLP

200 Park Avenue

New York, NY 10166

Counsel for Petitioners

Chevron Corporation and

Chevron U.S.A., Inc.

DAVID C. FREDERICK

BRENDAN J. CRIMMINS

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W.,

Suite 400

Washington, DC 20036

Counsel for Petitioners

Shell Oil Company and

Royal Dutch Shell plc

MARCH 2020

KANNON K. SHANMUGAM

WILLIAM T. MARKS

TANYA S. MANNO

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

AGBEKO C. PETTY

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

Counsel for Petitioners

Exxon Mobil Corporation and

ExxonMobil Oil Corporation

DANIEL B. LEVIN

MUNGER, TOLLES &

OLSON LLP

350 South Grand Avenue,

50th Floor

Los Angeles, CA 90071

KATHLEEN TAYLOR SOOY

TRACY A. ROMAN

CROWELL & MORING LLP

1001 Pennsylvania

Avenue, N.W.

Washington, DC 20004

JEROME C. ROTH

ELIZABETH A. KIM

MUNGER, TOLLES &

OLSON LLP

560 Mission Street,

27th Floor

San Francisco, CA 94105

Counsel for Petitioners

CNX Resources Corporation,

CONSOL Energy Inc., and

CONSOL Marine Terminals

LLC

Counsel for Petitioners

Shell Oil Company and

Royal Dutch Shell plc

PHILIP H. CURTIS

NANCY G. MILBURN

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

MATTHEW T. HEARTNEY

JOHN D. LOMBARDO

ARNOLD & PORTER

KAYE SCHOLER LLP

777 South Figueroa Street,

44th Floor

Los Angeles, CA 90017

Counsel for Petitioners

BP p.l.c., BP America Inc.,

and BP Products North

America Inc.

NATHAN P. EIMER

PAMELA R. HANEBUTT

LISA S. MEYER

EIMER STAHL LLP

224 South Michigan

Avenue, Suite 1100

Chicago, IL 60604

ROBERT E. DUNN

EIMER STAHL LLP

99 South Almaden

Boulevard, Suite 662

San Jose, CA 95113

RYAN J. WALSH

EIMER STAHL LLP

10 East Doty Street,

Suite 800

Madison, WI 53707

Counsel for Petitioner

CITGO Petroleum

Corporation

MICHELLE N. LIPKOWITZ

THOMAS K. PREVAS

SAUL EWING

ARNSTEIN & LEHR LLP

500 East Pratt Street,

Suite 900

Baltimore, MD 21202

Counsel for Petitioners

Crown Central LLC and

Crown Central New Holdings

LLC

SEAN C. GRIMSLEY

JAMESON R. JONES

DANIEL R. BRODY

BARTLIT BECK LLP

1801 Wewatta Street,

Suite 1200

Denver, CO 80202

STEVEN M. BAUER

MARGARET A. TOUGH

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 94111

MATTHEW J. PETERS

LATHAM AND WATKINS LLP

555 11th Street, N.W.,

Suite 1000

Washington, DC 20004

Counsel for Petitioners

ConocoPhillips and

ConocoPhillips Company

MARTHA THOMSEN

MEGAN BERGE

BAKER BOTTS L.L.P.

700 K Street, N.W.

Washington, DC 20001

SCOTT JANOE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77022

Counsel for Petitioner

Hess Corporation

SHANNON S. BROOME

HUNTON ANDREWS

KURTH LLP

50 California Street

San Francisco, CA 94111

SHAWN PATRICK REGAN

HUNTON ANDREWS

KURTH LLP

200 Park Avenue

New York, NY 10166

ANN MARIE MORTIMER

HUNTON ANDREWS

KURTH LLP

550 South Hope Street,

Suite 2000

Los Angeles, CA 90071

Counsel for Petitioners

Marathon Petroleum Corp.

and Speedway LLC

STEVEN M. BAUER

MARGARET A. TOUGH

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 94111

MATTHEW J. PETERS

LATHAM AND WATKINS LLP

555 11th Street, N.W.,

Suite 1000

Washington, DC 20004

Counsel for Petitioner

Phillips 66