Amicus Curiae Brief — BP p.l.c., et al., Petitioners v. Mayor and City Council of Baltimore

No. 19-1189

IN THE

Supreme Court of the United States

____________________________________

BP P.L.C. et al.,

Petitioners,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

____________________________________

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

____________________________________

BRIEF OF INDIANA, ALABAMA, ALASKA,

GEORGIA, KANSAS, MISSISSIPPI,

MISSOURI, NEBRASKA, NORTH DAKOTA,

SOUTH CAROLINA, SOUTH DAKOTA,

TEXAS, AND UTAH AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

____________________________________

Office of the

CURTIS T. HILL, JR.

Attorney General

Attorney General

302 W. Washington St. THOMAS M. FISHER*

Indianapolis, IN 46204 Solicitor General

(317) 232-6255

KIAN J. HUDSON

Tom.Fisher@atg.in.gov

Deputy Solicitor General

CORRINE L. YOUNGS

*Counsel of Record

JULIA C. PAYNE

Deputy Attorneys General

Counsel for Amici States

Additional counsel listed with signature block

i

QUESTION PRESENTED

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 civil-rights removal statute, 28 U.S.C.

§ 1443.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... i

TABLE OF AUTHORITIES ................................... iii

INTEREST OF THE AMICI STATES .................... 1

SUMMARY OF THE ARGUMENT ......................... 2

ARGUMENT ............................................................ 6

I.

Lawful Appeal of a Remand Order

Encompasses All Grounds for Removal .......... 6

II.

Removal Was Proper Because Baltimore’s

Public-Nuisance Claim Necessarily Arises

Under Federal Law ........................................ 16

A. Federal common law must govern any

common-law claims to abate the results

of global climate change ........................... 16

B. Because Baltimore’s public-nuisance

claim is governed by federal common law,

the claim arises under federal law and

removal was therefore proper .................. 26

CONCLUSION ....................................................... 31

iii

TABLE OF AUTHORITIES

CASES

Am. Electric Power Co. v. Connecticut,

564 U.S. 410 (2011) ........................................... 22

Appalachian Volunteers, Inc. v. Clark,

432 F.2d 530 (6th Cir. 1970)............................. 14

Avco Corp. v. Aero Lodge No. 735,

390 U.S. 557 (1968) ........................................... 29

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ..........................16, 17, 18, 30

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) ..........................19, 20, 24, 30

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ........................................... 28

Clark v. Martinez,

543 U.S. 371 (2005) ........................................... 13

Clearfield Trust Co. v. United States,

318 U.S. 363 (1943) ........................................... 17

Cyan, Inc. v. Beaver Cty. Emp. Ret. Fund,

138 S. Ct. 1061 (2018)................................. 14, 15

Erie Railroad Co. v. Tompkins,

304 U.S. 64 (1938) ............................................. 16

iv

CASES [CONT’D]

Grable & Sons Metal Prod., Inc. v. Darue

Eng’g & Mfg.,

545 U.S. 308 (2005) ................................. 2, 26, 27

Hinderlider v. La Plata River Co.,

304 U.S. 92 (1938) ............................................. 17

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ...................................... passim

Johnson v. Mississippi,

421 U.S. 213 (1975) ............................................. 8

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015)................. 10, 11, 15

Martin v. Franklin Capital Corp.,

546 U.S. 132 (2005) ............................................. 2

Mays v. City of Flint,

871 F.3d 437 (6th Cir. 2017)............................. 14

New SD, Inc. v. Rockwell Int’l Corp.,

79 F.3d 953 (9th Cir. 1996)............................... 29

Noel v. McCain,

538 F.2d 633 (4th Cir. 1976)............................. 14

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

551 U.S. 224 (2007) ............................... 12, 13, 15

Reno v. Bossier Parish Sch. Bd.,

528 U.S. 320 (2000) ........................................... 13

v

CASES [CONT’D]

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998) ........................................... 28

Rodriguez v. United States,

480 U.S. 522 (1987) ........................................... 15

Sam L. Majors Jewelers v. ABX, Inc.,

117 F.3d 922 (5th Cir. 1997)............................. 29

San Carlos Apache Tribe v. United States,

272 F. Supp. 2d 860 (D. Ariz. 2003) ................. 27

Thermtron Prod., Inc. v. Hermansdorfer,

423 U.S. 336 (1976) ............................................. 7

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) ..................................... 17, 18

United States v. Standard Oil Co.,

332 U.S. 301 (1947) ........................................... 18

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

516 U.S. 199 (1996) ..............................4, 5, 11, 12

STATUTES

1 Stat. 73, c. 20, § 12 ................................................ 6

28 U.S.C. § 1292 ....................................................... 4

28 U.S.C. § 1331 ..................................................... 27

28 U.S.C. § 1441 ....................................................... 2

vi

STATUTES [CONT’D]

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

28 U.S.C. § 1443 ....................................................... 2

28 U.S.C. § 1446 ....................................................... 9

28 U.S.C. § 1447 .............................................. passim

42 U.S.C. § 7401 et seq. .......................................... 24

42 U.S.C. § 7401 .................................................... 25

42 U.S.C. § 7410 ..................................................... 25

42 U.S.C. § 7412 ..................................................... 25

42 U.S.C. § 7416 ..................................................... 25

42 U.S.C. § 7661a ................................................... 25

Act of March 3, 1875, c. 137, § 2 .............................. 7

Act of March 3, 1875, c. 137, § 5 .............................. 7

Civil Rights Act of 1964, 78 Stat. 266 ..................... 8

Pub. L. 112-51 .......................................................... 8

OTHER AUTHORITIES

14C Charles Alan Wright et al., Federal

Practice & Procedure (Rev. 4th ed.) ............. 7, 11

19 Charles Alan Wright et al., Federal

Practice & Procedure (3d ed.) ........................... 27

vii

OTHER AUTHORITIES [CONT’D]

Henry J. Friendly, In Praise of Erie - and of

the New Federal Common Law, 39

N.Y.U. L. Rev. 383 (1964) ........................... 19, 20

Rhonda Wasserman, Rethinking Remand:

Proposed Amendments to the Federal Removal Statute, 43 Emory L.J. 83 (1994) ............ 7

1

INTEREST OF THE AMICI STATES

The States of Indiana, Alabama, Alaska, Georgia,

Kansas, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Texas, and Utah

respectfully submit this brief as amici curiae in support of petitioners.

As litigants who often find themselves on either

side of motions to remand cases back to state court,

Amici States have a strong interest in the scope of appellate review of remand orders. Amici States file this

amicus brief to urge the Court to respect the plain

meaning of the statutory text and hold that when a

case has been “removed pursuant to” the federal-officer or civil-rights removal statutes, appellate review

of “an order remanding” the case encompasses all

grounds for removal. 28 U.S.C. § 1447(d). Because the

Fourth Circuit’s decision below considered only the

federal-officer ground for removal, the decision should

be reversed.

Here, furthermore, the Fourth Circuit’s refusal to

consider all grounds for removal caused it to fail to see

that removal was in fact warranted. Because one of

the plaintiff’s common law claims necessarily arises

under federal common law, the district court had federal-question jurisdiction over this case and should

not have remanded it to state court. Accordingly, this

Court should reverse the decision below and instruct

the district court to retain jurisdiction over the case.

2

SUMMARY OF THE ARGUMENT

For more than 230 years federal law has in certain

circumstances “grant[ed] defendants a right to a federal forum.” Martin v. Franklin Capital Corp., 546

U.S. 132, 137 (2005). Today, the general removal statute, 28 U.S.C. § 1441, entitles a defendant to remove

a case filed in state court if the state-court plaintiff

“could have brought it in federal district court originally”—such as when the case is “a civil action ‘arising under the Constitution, laws, or treaties of the

United States’” under the federal-question statute.

Grable & Sons Metal Prod., Inc. v. Darue Eng’g &

Mfg., 545 U.S. 308, 312 (2005) (quoting 28 U.S.C.

§ 1331). Federal law authorizes removal of other cases

as well, such as cases brought against federal officers

(or private persons “acting under” such officers), 28

U.S.C. § 1442(a)(1), and cases where the defendant is

denied the protections of specified federal civil-rights

laws, id. § 1443.

When a district court concludes a case is not removable and should thus be remanded to state court,

its decision is generally “not reviewable” on appeal,

subject to two important exceptions: Any “order remanding a case . . . removed pursuant to [the federalofficer or civil-rights removal statutes] shall be reviewable by appeal or otherwise.” 28 U.S.C. § 1447(d).

Here, the Mayor and City Council of Baltimore

sued a group of multinational oil and gas companies

in Maryland state court, seeking to hold them liable

3

for “extracting, producing, promoting, refining, distributing, and selling fossil fuel products (i.e., coal, oil,

and natural gas).” Pet. App. 31a–32a. Baltimore

claims this conduct increased “greenhouse gas pollution” and thereby contributed to global climate

change—and is thus partly responsible for “a rise in

sea level along Maryland’s coast, as well as an increase in storms, floods, heatwaves, drought, extreme

precipitation, and other conditions.” Pet. App. 32a (internal quotation marks and citations omitted). And

Baltimore seeks to recover for these various “‘climatechange-related injuries’” on the basis of several theories—all of which it says arise under state laws, and

one of which is a common law public-nuisance claim.

Pet. App. 32a (quoting complaint).

In response, some defendants filed a notice of removal based on several grounds, including, among

others, the federal-officer removal statute and the

general removal statute. See Pet. App. 32a–33a. They

argued the federal-officer statute justified removal

because, in undertaking some of the conduct at issue,

they were “acting under,” 28 U.S.C. § 1442(a)(1), federal agencies—in particular, the U.S. Navy and the

Department of the Interior, see Pet. App. 70a. And the

defendants invoked the general removal statute

based on multiple theories of federal-question jurisdiction, including that Baltimore’s public-nuisance

claim necessarily arises under federal common law.

See Pet. App. 33a. The district court rejected each of

the grounds for removal, concluding “that the case

was not properly removed to federal court” and that

4

“the case must be remanded . . . pursuant to 28 U.S.C.

§ 1447(c).” Pet. App. 81a.

On appeal of the district court’s remand order, the

Fourth Circuit refused to consider all the grounds the

defendants raised for removal. Instead, it thought

1447(d) limited appellate review to the district court’s

application of the federal-officer removal statute, 28

U.S.C. § 1442, concluding that appellate “jurisdiction

does not extend to the non-§ 1442 grounds that were

considered and rejected by the district court,” Pet.

App. 6a. The Fourth Circuit thus read 1447(d) to require federal appellate courts to parse among the various grounds for removal rejected in a single remand

order: Appellate courts, it concluded, “only have jurisdiction to review those grounds for removal that are

specifically enumerated in § 1447(d).” Pet. App. 10a.

The Fourth Circuit’s decision should be reversed.

Under 1447(d), once an appellate court has jurisdiction to review a remand order, its jurisdiction encompasses all grounds for removal. This provision does

not limit appellate courts’ jurisdiction to particular

grounds for removal. Rather, it provides that certain

remand orders are reviewable on appeal—namely,

those “remanding a case to the State court from which

it was removed pursuant to section 1442 or 1443.” 28

U.S.C. § 1447(d). And as this Court has explained in

the course of interpreting the similarly worded permissive-interlocutory-appeal statute (28 U.S.C.

§ 1292(b)), when “appellate jurisdiction applies to the

order . . . the appellate court may address any issue

5

fairly included within” that order. Yamaha Motor

Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996).

In short, no one contests that the defendants removed this case “pursuant to section 1442.” The

Fourth Circuit therefore had appellate jurisdiction to

review the remand order, and authority to consider

every basis for reversing it.

What is more, the Fourth Circuit’s refusal to consider every ground for removal led it to affirm a remand order that should have been reversed. The general removal statute authorized removal here because

Baltimore’s public-nuisance claim necessarily arises

under federal common law. The Court has long held

that federal common law must govern disputes over

interstate pollution: “When we deal with air and water in their ambient or interstate aspects, there is a

federal common law.” Illinois v. City of Milwaukee,

406 U.S. 91, 103 (1972). And the dispute for which

Baltimore’s public-nuisance claim seeks judicial resolution pertains not merely to interstate air pollution,

but to international air pollution. Baltimore’s public

nuisance claim asks courts to craft rules of decision

assigning liability for global climate change—which

not only is among the most complicated and contentious issues confronting policymakers today, but

which also affects every State and every citizen in the

country. Under this Court’s precedents, if courts are

going to give common-law answers to the problem of

global climate change, they should be federal courts

articulating and applying federal common law.

6

ARGUMENT

I. Lawful Appeal of a Remand Order

Encompasses All Grounds for Removal

Subsection 1447(d) provides that in general an “order remanding a case to the State court from which it

was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d) (emphasis added). This provision affords two crucial exceptions, however. “[A]n

order remanding a case to the State court from which

it was removed pursuant to section 1442 or 1443 of

this title [the federal-officer and civil-rights removal

statutes, respectively] shall be reviewable by appeal

or otherwise.” Id. (emphasis added). The meaning of

this language is plain. Because 1447(d) specifically

uses the term “order,” it obliges circuit courts exercising appellate jurisdiction over a remand order to review the order itself, not a mere subset of the legal

conclusions offered in the opinion accompanying the

order; and evaluating the remand order’s lawfulness

necessarily requires considering every ground for removal. Both the statutory text and the Court’s precedents compel this conclusion.

1. Congress has authorized federal courts to hear

cases removed from state court since the Judiciary

Act of 1789 first established the federal-court system.

See 1 Stat. 73, c. 20, § 12 (authorizing removal of

state-court cases against aliens and nonresident defendants as well as state-court cases involving competing land grants issued by different States). And for

7

nearly as long as federal courts have possessed authority to hear cases removed from state court, litigants have been disputing what constitutes proper

grounds for exercising that authority—and have been

seeking appellate review of decisions with which they

disagree. Until 1875, erstwhile state-court defendants

could freely obtain review of remand decisions. See

Rhonda Wasserman, Rethinking Remand: Proposed

Amendments to the Federal Removal Statute, 43

Emory L.J. 83, 90 nn.28–29 (1994) (collecting cases).

But that year Congress expanded the class of removable cases and authorized review of remand orders by

writ of error or appeal to this Court. See Act of March

3, 1875, c. 137, §§ 2, 5, 18 Stat. 470–72. Twelve years

later, Congress reversed course: It narrowed the scope

of removal, authorized remand where removal was

improper (on jurisdictional grounds or otherwise),

and foreclosed appellate review of remand orders. See

14C Charles Alan Wright et al., Federal Practice &

Procedure § 3721 (Rev. 4th ed.) (citing Act of March 3,

1887, c. 373, 24 Stat. 552); Thermtron Prod., Inc. v.

Hermansdorfer, 423 U.S. 336, 347 (1976) (“[N]o appeal or writ of error from the decision of the circuit

court so remanding such cause shall be allowed.”

(quoting same)).

These provisions authorizing remand orders and

prohibiting their appellate review have for the most

part endured. The text now codified at subsections

1447(c) and (d) “represent the 1948 recodification” of

the 1887 enactments. Id. at 349–50 & n.15. And seventy-two years later, 1447(c) continues to authorize

remands for “any defect” (including jurisdiction) while

8

1447(d) continues to deem such remand orders to be

generally “not reviewable on appeal or otherwise.”

Importantly, however, Congress has twice

amended 1447(d) to carve out exceptions from its general bar on appellate review. The Civil Rights Act of

1964 amended 1447(d) to authorize review, “by appeal

or otherwise,” of any “order remanding a case to the

State court from which it was removed pursuant to

section 1443,” 78 Stat. 266—that is, cases removed

under the civil-rights removal statute, which authorizes removal in cases where state law denies the defendant rights secured by federal laws “‘providing for

specific civil rights stated in terms of racial equality,’”

see Johnson v. Mississippi, 421 U.S. 213, 219–20

(1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792

(1966)). And in 2011 Congress authorized appellate

review of remand orders in cases removed pursuant

to section 1442—the federal-officer removal statute,

which authorizes removal of cases involving federal

officers or agencies, as well as private persons acting

under such federal officers or agencies. See Pub. L.

112-51 (inserting “1442 or” before 1443 in 1447(d)).

Crucially, these two exceptions to the general bar

on appealability provide 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 on appeal or otherwise.” 28 U.S.C. § 1447(d)

(emphasis added). This language specifies (1) when an

appeal is permissible (when a case is “removed pursuant to section 1442 or 1443”) and (2) what the subject

of such an appeal is (the “order remanding” the case).

9

The clear consequence is that when a defendant removes a case pursuant to the federal-officer or civilrights removal statutes, appellate courts have jurisdiction to review the district court’s remand order, not

merely the district court’s resolution of a single, isolated ground for removal.

The surrounding statutory framework confirms

this straightforward interpretation. The removal process begins when “defendants desiring to remove any

civil action from a State court” file “a notice of removal” that contains “a short and plain statement of

the grounds for removal.” 28 U.S.C. § 1446(a).

“[P]romptly after the filing of such notice of removal,”

the defendant gives notice to adverse parties and files

“a copy of the notice with the clerk of such State

court.” 28 U.S.C. § 1446(d). Notably, the filing of this

removal notice with the state court “shall effect the removal and the State court shall proceed no further unless and until the case is remanded”—that is, the case

is “removed” as soon as the state-court notice is filed.

Id. Accordingly, when a removal notice includes several grounds for removal, one of which proceeds under

the federal-officer or civil-rights removal statutes, the

case “was removed pursuant to section 1442 or 1443”

the moment the removal notice was filed. 28 U.S.C.

§ 1447(d).

Here, because the removal notice raised the federal-officer removal statute as a ground for removal,

see Joint App. 225–31, the case was “removed pursuant to section 1442,” thereby triggering 1447(d)’s appealability exception. It appears this much, at least,

10

is uncontested. After all, if the defendants’ additional,

non-federal-officer grounds for removal were to cause

the case not to be “removed pursuant to section 1442,”

1447(d) would bar appellate review entirely, even of

the federal-officer ground alone. And neither Baltimore nor the Fourth Circuit—nor any court for that

matter—have taken this position.

It is therefore clear that the district court’s remand order is appealable under 1447(d). And it is

equally clear that the scope of the appeal encompasses every ground for removal: The subject of the

appeal is the “order remanding [such] a case to the

State court from which it was removed.” Id. (emphasis

added). Subsection 1447(d) thus authorizes appeal of

the order—without limitation.

Accordingly, when a remand order rejecting removal on federal-officer or civil-rights grounds is appealed under 1447(d), the appellate court has jurisdiction to consider all grounds raised in favor of removal—including those for which the defendant

would not otherwise be able to obtain appellate review. As Judge Easterbrook explained in the course of

adopting this interpretation of 1447(d), “[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 v. Boeing Co., 792

F.3d 805, 811 (7th Cir. 2015). For this reason, “if appellate review of an ‘order’ has been authorized, that

means review of the ‘order.’ Not particular reasons for an order, but the order itself.” Id. at 812 (emphasis in original).

11

Reading 1447(d) this way not only makes the best

sense of the statutory text, but also makes the best

use of litigants’ and courts’ time. After all, “once Congress has authorized appellate review of a remand order”—as it has when the state-court defendant relies

on the federal-officer or civil-rights removal statutes—“[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.” Lu Junhong, 792 F.3d at 813. The leading federal-courts treatise agrees: “Review should . . . be extended to all possible grounds for removal underlying

the order. Once an appeal is taken there is very little

to be gained by limiting review . . . .” 14C Charles Alan

Wright et al., Federal Practice & Procedure § 3914.11

(Rev. 4th ed.).

2. This “whole order” interpretation of 1447(d) is

further supported by the Court’s prior decisions. In

Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199

(1996), the Court construed the permissive-interlocutory-appeal statute, which, like 1447(d), authorizes

appeals of a particular class of orders. That statute

provides that when a district court determines that

an “‘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,’” a circuit court has discretion to “‘permit an appeal to be taken from such order.’” Id. at

204–05 (quoting 28 U.S.C. § 1292(b) (emphasis in

original)). The Court underscored the importance of

Congress’s choice of the word “order,” observing that

12

“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.” Id. at 205

(emphasis in original). It thus held that an appellate

court “may address any issue fairly included within

the certified order because it is the order that is appealable, and not the controlling question identified

by the district court.” Id. (emphasis in original; internal quotation marks and citations omitted). That is,

when an order is appealed under 1292(b), the “scope

of review [includes] all issues material to the order in

question.” Id. (alteration in original; internal quotation marks and citations omitted). Subsection 1447(d)

provides no textual (or historical) basis for differing

treatment of an “order” appealed under its authority.

In fact, the Court’s decision in Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224 (2007), confirms that in 1447(d) “order” means order—not “issue.” There, the Ninth Circuit purported to divide a

single remand order into two sorts of issues—the nonreviewable question of removal jurisdiction and a reviewable set of “merits determinations that precede

remand.” Id. at 235–36. This Court squarely rejected

that approach and said that, insofar as 1447(d) generally bars appeal of an “order remanding a case to

the State court from which it was removed” (i.e.,

where no exception applies), it precludes review of

every discrete issue within that order. 28 U.S.C.

§ 1447(d). Even if antecedent “merits determinations”

could have avoided the 1447(d) appeal bar if they had

been the subject of a separate order, a singular remand order must be treated as a whole: The statute

13

“does not permit an appeal” of any stand-alone issues

“when there is no order separate from the unreviewable remand order.” Id. at 236 (emphasis in original)

(citing Kircher v. Putnam Funds Tr., 547 U.S. 633,

645–46 n.13 (2006)).

Subsection 1447(d)’s identically worded exception

for any “order remanding a case to the State court

from which it was removed pursuant to section 1442

or 1443” should be read the same way. Just as the

general prohibition of appealability applies to the

whole order, so the authorization of appealability applies to the whole order. 28 U.S.C. § 1447(d). “To give

these same words a different meaning . . . would be to

invent a statute rather than interpret one. . . . [A single phrase] cannot . . . be interpreted to do both

[things] at the same time.” Clark v. Martinez, 543

U.S. 371, 378 (2005). The Court should refuse, as it

has many times before, “to adopt a construction that

would attribute different meanings to the same

phrase in the same sentence, depending on which object it is modifying.” Reno v. Bossier Parish Sch. Bd.,

528 U.S. 320, 329 (2000) (citing Bankamerica Corp. v.

United States, 462 U.S. 122, 129 (1983)).

In sum, the Court’s decisions establish that

1447(d) does not permit appellate courts to slice and

dice the often-numerous legal issues that may underlie a remand order. A remand order is either appealable or not. If it is, the entire order is reviewable on

appeal.

14

3. Rather than accept that 1447(d) authorizes appeals of orders, the Fourth Circuit’s decision mistakenly limited the scope of appellate review to only reasons for removal resting on the federal-officer or civilrights removal statutes. Pet. App. 7a. The Fourth Circuit based this conclusion upon its earlier decision in

Noel v. McCain, 538 F.2d 633, 635 (4th Cir. 1976), and

that decision’s discussion of the issue consists entirely

of a citation to the Sixth Circuit’s half-century-old decision in Appalachian Volunteers, Inc. v. Clark, 432

F.2d 530, 533 (6th Cir. 1970).

And far from supporting the Fourth Circuit’s reading of 1447(d), Appalachian Volunteers——which the

Sixth Circuit has since implicitly repudiated, see

Mays v. City of Flint, 871 F.3d 437, 442 (6th Cir. 2017)

(citing Lu Junhong, 792 F.3d at 811–13)—illustrates

precisely why it is wrong. Appalachian Volunteers—

which appears to be the first published decision to address the question, and the origin of this mistaken

view—reached its result by prioritizing purpose over

text. It assumed that 1447(d)’s “obvious purpose . . . is

to avoid the delays which would result if appeals from

remand orders were permitted,” and reasoned that

“even when removal is based on 28 U.S.C. § 1443 and

an appeal is authorized, the review of issues other

than those directly related to the propriety of the remand order itself would frustrate the clear Congressional policy of expedition.” 432 F.2d at 533.

This Court, however, “has long rejected the notion

that ‘whatever furthers the statute’s primary objective must be the law.’” Cyan, Inc. v. Beaver Cty. Emp.

15

Ret. Fund, 138 S. Ct. 1061, 1073 (2018) (quoting Rodriguez v. United States, 480 U.S. 522, 526 (1987) (per

curiam)). After all, courts “do not generally expect

statutes to fulfill 100% of all of their goals.” Id. Indeed, 1447(d)’s federal-officer and civil-rights exceptions to the general appealability bar are themselves

examples of Congress choosing to set aside one goal

(preventing prolonged disputes over where a case will

be litigated) for the sake of another (protecting defendants’ right to a federal forum). It was entirely sensible for Congress to decide that some remand orders

should be appealable and that the scope of review of

such orders should include all grounds for removal: As

noted, “[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.” Lu Junhong, 792 F.3d at 813.

“Where, as here, the language of a provision is sufficiently clear in its context and not at odds with the

legislative history, there is no occasion to examine the

additional considerations of policy that may have influenced the lawmakers in their formulation of the

statute.” Rodriguez, 480 U.S. at 526 (internal alterations, quotation marks, and citations omitted). Here

the statute says that because the case “was removed

pursuant to section 1442,” the “order remanding the

case . . . shall be reviewable”—period. 28 U.S.C.

§ 1447(d). The statute does not impose any limitations

on the scope of appellate review, and “supposition of

what Congress really wanted” is no reason for courts

to do so in its stead. Powerex, 551 U.S. at 237. The

statute is clear. It should be enforced as written.

16

II. Removal Was Proper Because Baltimore’s

Public-Nuisance Claim Necessarily Arises

Under Federal Law

The Fourth Circuit’s misinterpretation of 1447(d)

did not just affect its analysis of the remand order; it

affected its ultimate judgment as well. Because it

considered only whether the federal-officer removal

statute provided grounds for removal, the Fourth

Circuit missed a ground for removal that should have

caused it to reverse the district court’s remand:

Baltimore’s public-nuisance claim necessarily arises

under federal common law, which means the federalquestion statute conferred jurisdiction and that the

defendants were therefore entitled to removal.

A. Federal common law must govern any

common-law claims to abate the results of

global climate change

1. In Erie Railroad Co. v. Tompkins the Court recognized that federal courts have no power to supplant

state common law with “federal general common law,”

304 U.S. 64, 78 (1938) (emphasis added). The Court

soon made it clear, however, that this principle does

not prevent specialized federal common law from exclusively governing areas implicating unique federal

interests. In “an opinion handed down the same day

as Erie and by the same author, Mr. Justice Brandeis,

the Court declared, ‘For whether the water of an interstate stream must be apportioned between the two

States is a question of ‘federal common law’ . . . .’”

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,

17

426–27 (1964) (quoting Hinderlider v. La Plata River

Co., 304 U.S. 92, 110 (1938)); see also Hinderlider, 304

U.S. at 110 (“Jurisdiction over controversies concerning rights in interstate streams is not different from

those concerning boundaries. These have been recognized as presenting federal questions.”).

And less than five years after Erie, the Court issued its seminal decision in Clearfield Trust Co. v.

United States, 318 U.S. 363 (1943), holding that federal common law should determine whether the

United States could obtain reimbursement for a stolen check it had issued and that a bank had cashed

over a forged endorsement. Id. at 364–66. The district

court applied state law and concluded that the United

States had unreasonably delayed giving notice of the

forgery and was therefore barred from recovery, but

this Court held that federal, not state, law governed:

“The rights and duties of the United States on commercial paper which it issues are governed by federal

rather than local law,” because “[t]he authority to issue the check had its origin in the Constitution and

the statutes of the United States and was in no way

dependent on the laws of Pennsylvania or of any other

state.” Id. at 366.

In the nearly eighty years since Clearfield, the

Court has held that federal common law necessarily

and exclusively governs disputes in numerous other

areas as well. See, e.g., United States v. Kimbell

Foods, Inc., 440 U.S. 715, 726 (1979) (holding that

“the priority of liens stemming from federal lending

18

programs must be determined with reference to federal law”); Banco Nacional, 376 U.S. at 425–427

(holding, in light of “the potential dangers were Erie

extended to legal problems affecting international relations,” that “the scope of the act of state doctrine

must be determined according to federal law”).

In United States v. Standard Oil Co., for example,

the Court held that federal common law applied to the

federal government’s claims against an oil company

whose driver had struck and injured an American soldier. 332 U.S. 301, 302 (1947). The Court observed

that Erie did not alter the longstanding rule that federal law—including federal common law—must apply

to “matters exclusively federal, because made so by

constitutional or valid congressional command, or

others so vitally affecting interests, powers and relations of the Federal Government as to require uniform

national disposition rather than diversified state rulings.” Id. at 307. Rather, “federal judicial powers . . .

remained unimpaired for dealing independently,

wherever necessary or appropriate, with essentially

federal matters, even though Congress has not acted

affirmatively about the specific question.” Id. In light

of the federal government’s “exclusive power to establish and define the [military] relationship” and the

fact that “the Government’s purse is affected,” the

Court held that “[a]s in the Clearfield case, . . . the

matter in issue is neither primarily one of state interest nor exclusively for determination by state law

within the spirit and purpose of the Erie decision.” Id.

at 306–07.

19

More recently, in Boyle v. United Technologies

Corp., the Court held that federal common law governs design-defect claims brought against manufacturers of military equipment. 487 U.S. 500, 512

(1988). The Court explained that “procurement of

equipment by the United States” is “an area of

uniquely federal interest” and that in this context “the

application of state law would frustrate specific objectives of federal legislation.” Id. at 507 (internal alterations, quotation marks, and citations omitted). In

particular, the Court emphasized the practical problems with inevitably conflicting state laws in this

area: “[P]ermitting second-guessing” of the federal

government’s military-equipment-design decisions

“through state tort suits against contractors would

produce the same effect sought to be avoided by” the

Federal Tort Claims Act. Id. at 511. “The financial

burden of judgments against the contractors would

ultimately be passed through, substantially if not totally, to the United States itself, since defense contractors will predictably raise their prices to cover, or

to insure against, contingent liability for the Government-ordered designs.” Id. at 512. Because of the

unique federal concerns pertaining to military procurement and the potential for significant conflicts

with federal policy, federal common law, not state

common law, governed the claim.

In sum, the “clarion yet careful pronouncement in

Erie, ‘There is no federal general common law,’

opened the door for what, for want of a better term,

we may call specialized federal common law.” Henry

J. Friendly, In Praise of Erie - and of the New Federal

20

Common Law, 39 N.Y.U. L. Rev. 383, 405 (1964). And

it is by now well established that this specialized common law applies to the “few areas, involving ‘uniquely

federal interests,’” that “are so committed by the Constitution and laws of the United States to federal control” that they must be “governed exclusively by federal law.” Boyle, 487 U.S. at 506 (quoting Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630,

640 (1981)).

2. Of particular relevance here, for nearly half a

century the Court has held that one area of “uniquely

federal interest” to which federal common law must

apply is interstate pollution: “When we deal with air

and water in their ambient or interstate aspects,

there is a federal common law.” Illinois v. City of Milwaukee, Wis., 406 U.S. 91, 103 (1972). And for this

reason, federal common law necessarily applies to

Baltimore’s public-nuisance claim—which alleges

that the defendants’ production and promotion of fossil fuels caused interstate pollution (in the form of

greenhouse gases emitted by countless entities worldwide) that contributed to global climate change,

which in turn caused the injuries for which Baltimore

seeks abatement. See Joint App. 145–146. If the complex and controversial policy questions underlying

such a claim are going to be resolved by courts at all,

they should be federal courts applying federal common law.

The Court held that federal common law governed

the interstate-pollution dispute in Illinois, and federal common law is all the more applicable here. As

21

here, Illinois involved a suit brought to abate interstate pollution that the plaintiff claimed constituted a

public nuisance. Invoking the Court’s original jurisdiction, Illinois claimed that several Wisconsin cities

had polluted Lake Michigan with raw or inadequately

treated sewage: “The cause of action alleged is pollution by the defendants of Lake Michigan, a body of interstate water,” and Illinois asked the Court to “abate

this public nuisance.” Illinois, 406 U.S. at 93. The

Court recognized that because Illinois had sued an

out-of-state entity the case fell within its original jurisdiction, but it observed that if the case could have

instead been brought “in a federal district court, our

original jurisdiction is not mandatory.” Id. at 98. The

Court thus proceeded to consider “whether pollution

of interstate or navigable waters creates actions arising under the ‘laws’ of the United States within the

meaning of s 1331(a) [the federal-question statute].”

Id. at 99.

The Court held “that it does.” Id. It explained that

an earlier Tenth Circuit decision had “stated the controlling principle”—“‘the ecological rights of a State in

the improper impairment of them from sources outside the State’s own territory. . . [is] a matter having

basis and standard in federal common law and so directly constituting a question arising under the laws

of the United States.’” Id. at 99–100 (quoting Texas v.

Pankey, 441 F.2d 236 (10th Cir. 1971)). Further, the

Court analogized interstate-pollution disputes to disputes “concerning interstate waters,” which Hinderlider more than three decades prior had “‘recognized

as presenting federal questions.’” Id. at 105 (quoting

22

Hinderlider, 304 U.S. at 110). Hinderlider—which

“was written by Mr. Justice Brandeis who also wrote

for the Court in Erie, the two cases being decided the

same day”—foreclosed the argument “that state law

governs” interstate-pollution disputes; it established

that federal common law such disputes instead. Id. at

105 n.7 (internal citations omitted). In sum, “where

there is an overriding federal interest in the need for

a uniform rule of decision or where the controversy

touches basic interests of federalism, [the Court has]

fashioned federal common law.” Id. at 105 n. 6 (citing

Banco Nacional, 376 U.S. 398).

In American Electric Power Co. v. Connecticut, the

Court reiterated Illinois’s conclusion that “‘[w]hen we

deal with air and water in their ambient or interstate

aspects, there is a federal common law.” 564 U.S. 410,

421 (2011) (quoting Illinois, 406 U.S. at 103). Justice

Ginsburg’s opinion for the Court reaffirmed precisely

the Court’s reasoning in Illinois: Specialized federal

common law governs “‘subjects within national legislative power where Congress has so directed’ or where

the basic scheme of the Constitution so demands.” Id.

(quoting Friendly, supra, at 408 n. 119, 421–422). And

because the “national legislative power” includes the

power to adopt “environmental protection” laws addressing interstate pollution, federal courts can, “if

necessary, even ‘fashion federal law’” in this area. Id.

(quoting Friendly, supra, at 421–422).

Illinois held that claims to abate public nuisance

in interstate waters arise under federal common law,

23

and it expressly extended this conclusion to the parallel situation of disputes involving “air . . . in their

ambient or interstate aspects” as well. Illinois, 406

U.S. at 103. That definitively establishes that federal—not state—common law applies to Baltimore’s

claim to abate public nuisance in interstate air. What

is more, the reasons the Court cited for applying federal common law in Illinois apply with even greater

force here, where Baltimore seeks to bring a purportedly Maryland-law claim against energy companies

for injuries allegedly produced by a long chain of conduct—including conduct of third parties—that occurred all over the globe.

3. Indeed, this case powerfully illustrates why the

Court has held that, in areas of unique federal interests, any common-law rules of decision must be articulated by federal—not state—courts.

Baltimore urges Maryland state courts to determine—under the auspices of the common law of public nuisance—whether “the harm [of fossil fuels] outweighs any offsetting benefit,” Joint App. 156, including whether “the social benefit of placing fossil fuels

into the stream of commerce is outweighed by the

availability of other sources of energy,” Joint App.

159. That is, it asks Maryland courts to weigh the

costs and benefits of fossil fuels and then decide how

to regulate them—quintessentially legislative judgments.

Exacerbating the problem, Baltimore has sued

just a handful of energy companies for conduct that

24

occurred not only outside Maryland, but outside the

country—conduct Baltimore concedes to be injurious

only in conjunction with others’ use of the fossil fuels

the defendants (and others) produce and sell. In other

words, Baltimore is seeking, from a few disfavored

companies, abatement of all the harm it has allegedly

suffered from global climate change, even though

many other actors, through conduct occurring in

many other States and countries, are—on Baltimore’s

own account—responsible for much of that alleged

harm. See Joint App. 145-146, 160-161.

State courts have no business deciding how global

climate change should be addressed and who—among

all the countless actors around the world whose conduct contributes to it—bears legal responsibility for

creating it. In addition to the obvious potential for

gross unfairness, such state-court-created commonlaw rules would inevitably “present a ‘significant conflict’ with federal policy.” Boyle, 487 U.S. at 512.

Among many other problems, state-common-law

rules would undermine the regulatory authority

States themselves have under carefully calibrated cooperative-federalism programs—programs that are

administered by politically accountable officials at the

federal, state, and local levels.

The Clean Air Act, 42 U.S.C. § 7401 et seq., for example, assigns States a significant role in tailoring

and enforcing the statute’s requirements, with state

officials, subject to review by federal officials, holding

authority to craft state-specific solutions to the difficult questions surrounding air-pollution regulation.

25

See, e.g., id. § 7401(a)(3) (finding that controlling air

pollution “at its source is the primary responsibility of

States and local governments”); id. § 7410(a) (requiring States to adopt implementation plans to achieve

federal ambient air quality standards and permitting

variation in light of local circumstances); id. § 7412(l)

(authorizing States to implement federal hazardous

air pollutant standards and allowing modifications to

meet local needs); id. § 7416 (authorizing States to impose state-law requirements more stringent than federal standards); id. § 7661a (requiring States to adopt

permitting programs tailored to state needs).

Congress identified the Clean Air Act’s purpose as

promoting both the country’s “public health and welfare and the productive capacity of its population.” 42

U.S.C. § 7401(b)(1) (emphasis added). And it has endorsed different regulatory approaches in different

States because it recognizes that pursuing both of

these goals—balancing health and environmental

considerations against the value of economic activity,

including energy production—is an inherently political undertaking that must be responsive to local conditions. And, critically, each State is afforded regulatory autonomy because other States’ policy prerogatives stop at the state line. Baltimore’s lawsuit, in

stark contrast, would purport to impose a single,

state-court-created, one-size-fits-all policy.

Making matters still worse, Baltimore is not alone

in urging its state courts to impose judicially created

regulations on the worldwide production of fossil

26

fuels. Many other jurisdictions have filed similar public-nuisance claims urging state courts to hold fossil

fuel companies liable for the costs of global climate

change. See Pet. Br. 6–7 & n.1. Chances are that

courts in at least some of these actions will be receptive to the claims, which will ultimately lead to a

patchwork of conflicting standards purporting to create liability for the same extraterritorial conduct. Ultimately, therefore, all this and other similar lawsuits

have to offer is regulatory chaos.

Any worldwide allocation of responsibility for remediation of climate change requires national or international action, not ad hoc intervention by individual state courts acting at the behest of a handful of

local governments. It is precisely for this reason that

the Court long ago held that if questions of interstate

pollution are going to be settled by courts, they should

be federal courts applying federal common law. See

Illinois, 406 U.S. at 103.

B. Because

Baltimore’s

public-nuisance

claim is governed by federal common law,

the claim arises under federal law and

removal was therefore proper

That federal common law governs Baltimore’s

public-nuisance claim necessarily means this case is

removable to federal court. The federal-question statute gives district courts jurisdiction to hear claims

sounding in federal common law; Baltimore thus

“could have brought [this case] in federal district

27

court originally” and the defendants were thus “entitled to remove” the case. Grable & Sons Metal Prod.,

Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005).

The Fourth Circuit should therefore have reversed

the district court’s remand order.

1. The federal-question statute gives federal district courts “original jurisdiction” over “all civil actions arising under the Constitution, laws, or treaties

of the United States.” 28 U.S.C. § 1331(a). And it is

well-settled that a “case ‘arising under’ federal common law presents a federal question and as such is

within the original subject matter jurisdiction of the

federal courts.” 19 Charles Alan Wright et al., Federal

Practice & Procedure § 4514 (3d ed.).

The Court has recognized on multiple occasions

“‘the statutory word ‘law’ includes court decisions’”,

and “embrace[s] claims founded on federal common

law.” Illinois, 406 U.S. at 99 (quoting Romero v. International Terminal Operating Co., 358 U.S. 354, 393

(opinion of Brennan, J.)); see also id. (acknowledging

that lower courts have reached this same conclusion);

San Carlos Apache Tribe v. United States, 272 F.

Supp. 2d 860, 882 (D. Ariz. 2003), aff’d, 417 F.3d 1091

(9th Cir. 2005) (“Jurisdiction exists over violations to

the federal common law as well as those of statutory

origin, and, therefore, this Court has subject matter

jurisdiction over Plaintiffs’ common law nuisance

claim.”). As here, in Illinois the Court determined

that a claim seeking abatement of interstate pollution

“creates an action that arises under the ‘laws’ of the

28

United Sates within the meaning of 1331(a).” 406 U.S.

at 99.

Accordingly, because Baltimore’s public-nuisance

claim necessarily sounds in federal common law, the

district court had jurisdiction over this case and its

remand motion should have been reversed.

2. Crucially, the district court had jurisdiction over

this case because Baltimore’s claim necessarily arises

under federal common law—not merely subject to a

federal-law defense. And that means Baltimore cannot deprive federal courts of jurisdiction simply by affixing a state-law label to its public-nuisance claim.

Generally, of course, a plaintiff is “the master of

the claim” and “may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Yet, “[a]llied as an

‘independent corollary’” to the well-pleaded complaint

rule “is the further principle that ‘a plaintiff may not

defeat removal by omitting to plead necessary federal

questions.’” Rivet v. Regions Bank of La., 522 U.S.

470, 475 (1998) (quoting Franchise Tax Bd. of Cal. v.

Construction Laborers Vacation Trust for Southern

Cal., 463 U.S. 1, 22 (1983)). Plaintiffs cannot evade

the reach of federal law or federal courts by declaring

unilaterally that their claims arise under state law.

“If a court concludes that a plaintiff has ‘artfully

pleaded’ claims in this fashion, it may uphold removal

even though no federal question appears on the face

of the plaintiff's complaint.” Id. In other words, when

29

a plaintiff raises a nominal state-law claim that is in

fact governed by federal law, removal is proper.

Such was the foundation, for example, of the

Court’s holding in Avco Corp. v. Aero Lodge No. 735,

which held that an action to enforce a provision of a

collective bargaining agreement was “controlled by

federal substantive law even though it is brought in a

state court” —and was therefore removable to federal

court—because the case necessarily stated a claim

“arising under the ‘laws of the United States’ within

the meaning of the removal statute.” 390 U.S. 557,

560 (1968) (quoting 28 U.S.C. § 1441(b)). Lower

courts, too, have applied this reasoning to uphold removal of cases raising purportedly state-common-law

claims that are in truth governed by federal common

law. See New SD, Inc. v. Rockwell Int’l Corp., 79 F.3d

953, 955 (9th Cir. 1996) (declaring that federal, rather

than state, common law provides the rule of decision—and a basis for federal question jurisdiction—to

a dispute over a federal defense contract); Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 926–28 (5th

Cir. 1997) (citing Illinois and holding that, notwithstanding plaintiff’s nominal plea of a state law claim,

federal common law applied to—and conferred federal-question jurisdiction over—an air-transit lostcargo claim because Congress preserved a “federal

common law cause of action against air carriers for

lost shipments”).

30

Indeed, allowing artful pleading to avert removal

of claims necessarily governed by federal common law

would put state courts in the position of creating federal common-law. And that would undermine the very

purpose of federal common law, which is to ensure

that in “a few areas, involving uniquely federal interests,” the rules of decision “are governed exclusively

by federal law.” Boyle, 487 U.S. at 504 (internal quotation marks and citations omitted). Where, as here,

the rules of decision “must be determined according to

federal law,” “state courts [are] not left free to develop

their own doctrines.” Banco Nacional, 376 U.S. at

426–27.

In contrast with disputes over the meaning of federal statutory or constitutional provisions, commonlaw cases require courts to make difficult judgments

about what “seems to [them] sound policy,” Boyle, 487

U.S. at 513, which is why state-court common law decisions are usually understood to announce (and perhaps inherently do announce) state common law. Permitting plaintiffs to compel state-court adjudication

of federal-common-law claims, therefore, would put

state courts in the position of discerning federal judicial policy—or else guess what policy judgments regarding “uniquely federal interests” this Court would

adopt. The Court’s decisions, however, hold that in

certain areas, such as those involving interstate pollution, any common-law rules must be crafted by federal judges—that is, judges appointed by a nationally

elected president and confirmed by a Senate in which

every State is entitled to equal representation.

31

It is therefore essential to permit removal of

claims that, while pleaded in state law terms, in fact

sound in federal common law. And here, Baltimore’s

common-law public-nuisance claim must be governed

by federal common-law rules of decision articulated

by federal courts. The district court had jurisdiction

to consider this claim, and the defendants were therefore entitled to removal.

CONCLUSION

For the foregoing reasons, the decision below

should be reversed.

Respectfully submitted,

Office of the

Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

CURTIS T. HILL, JR.

Attorney General

THOMAS M. FISHER*

Solicitor General

KIAN J. HUDSON

Deputy Solicitor General

CORRINE L. YOUNGS

JULIA C. PAYNE

Deputy Attorneys General

Counsel for Amici States

Dated: November 23, 2020

32

ADDITIONAL COUNSEL

Counsel for Amici States

STEVE MARSHALL

Attorney General

State of Alabama

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

CLYDE SNIFFEN, JR.

Acting Attorney General

State of Alaska

WAYNE STENEHJEM

Attorney General

State of North Dakota

CHRISTOPHER M. CARR

Attorney General

State of Georgia

ALAN WILSON

Attorney General

State of South Carolina

DEREK SCHMIDT

Attorney General

State of Kansas

JASON R. RAVNSBORG

Attorney General

State of South Dakota

LYNN FITCH

Attorney General

State of Mississippi

KEN PAXTON

Attorney General

State of Texas

ERIC SCHMITT

Attorney General

State of Missouri

SEAN D. REYES

Attorney General

State of Utah