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

Supreme Court briefDec 23, 2020

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No. 19-1189

IN THE

Supreme Court of the United States

————

BP P.L.C., et al.,

Petitioners,

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

————

BRIEF OF AMICI CURIAE

CHESAPEAKE BAY FOUNDATION AND

NATURAL RESOURCES DEFENSE COUNCIL

IN SUPPORT OF RESPONDENT

————

JON A. MUELLER

BRITTANY E. WRIGHT

CHESAPEAKE BAY

FOUNDATION

6 Herndon Avenue

Annapolis, MD 21403

(443) 482-2162

jmueller@cbf.org

IAN FEIN

Counsel of Record

NATURAL RESOURCES

DEFENSE COUNCIL

111 Sutter Street, 21st Fl.

San Francisco, CA 94104

(415) 875-6100

ifein@nrdc.org

Counsel for Chesapeake

Bay Foundation

PETE HUFFMAN

NATURAL RESOURCES

DEFENSE COUNCIL

1152 15th Street NW

Washington, DC 20902

Counsel for Natural

Resources Defense Council

December 23, 2020

TABLE OF CONTENTS

Page

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

INTERESTS OF AMICI CURIAE ......................

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

ARGUMENT ........................................................

I. Removal on petitioners’ theory would be

unprecedented. ..........................................

II. Petitioners have not briefed the relevant

source of federal law for their theory of

this case: the Clean Air Act ......................

III. This action is not a controversy over

“uniquely federal” interests. .....................

A. Not all interstate disputes are

federal ..................................................

B. Respondent faces unique local

challenges ............................................

IV. Petitioners have not shown any federal

cause exists to “artfully plead” around. ...

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

American Electric Power Co. v. Connecticut,

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

Beneficial National Bank v. Anderson,

539 U.S. 1 (2003) ......................................passim

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ................................... 5, 23

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ........................... 6, 7, 10, 13

Empire Healthchoice Assur., Inc. v.

McVeigh, 547 U.S. 677 (2006) ..................

Espinoza v. Montana Department of

Revenue, 140 S. Ct. 2246 (2020) ...............

Federated Department Stores, Inc. v.

Moitie, 452 U.S. 394 (1981) ......................

Franchise Tax Board v. Constr. Laborers

Vacation Tr.,

463 U.S. 1 (1983) ............................... 4, 7, 12, 23

Franchise Tax Board v. Hyatt,

139 S. Ct. 1485 (2019) ...............................

Georgia v. Tennessee Copper Co.,

206 U.S. 230 (1907) ...................................

6, 7

Georgia v. Tennessee Copper Co.,

237 U.S. 474 (1915) ...................................

Gully v. First National Bank,

299 U.S. 109 (1936) ................................... 7, 12

Gunn v. Minton,

568 U.S. 251 (2013) ...................................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ..................................... 2, 6, 7

In re Volkswagen “Clean Diesel” Mktg.,

Sales Practices, & Prod. Liab. Litig.,

895 F.3d 597 (9th Cir. 2018), cert.

denied, 139 S. Ct. 2645 (2019) .................

International Paper Co. v. Ouellette,

479 U.S. 481 (1987) ............................... 8, 10, 11

Merrell Dow Pharm. Inc. v. Thompson,

478 U.S. 804 (1986) ...................................

Merrill Lynch, Pierce, Fenner & Smith Inc.

v. Manning,

136 S. Ct. 1562 (2016) ...............................

Murphy v. N.C.A.A.,

138 S. Ct. 1461 (2018) ...............................

Nat’l Farmers Union Ins. Companies v.

Crow Tribe of Indians,

471 U.S. 845 (1985) ...................................

O’Melveny & Myers v. F.D.I.C.,

512 U.S. 79 (1994) ....................................

Oneida Indian Nation of N. Y. State v.

County of Oneida,

414 U.S. 661 (1974) ...................................

Ouellette v. Int’l Paper Co.,

86 F.R.D. 476 (D. Vt. 1980) ......................

PPL Montana LLC v. Montana,

565 U.S. 576 (2012) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Rivet v. Regions Bank of Louisiana,

522 U.S. 470 (1998) ............................... 5, 12, 21

Texas Industries, Inc. v. Radcliff

Materials, Inc., 451 U.S. 630 (1981) 8, 12-13, 15

United States v. Standard Oil Co.,

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

Wyeth v. Levine,

555 U.S. 555 (2009) ...................................

STATUTES AND REGULATIONS

28 U.S.C. § 1331 ......................................... 2, 5, 22

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

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

Clean Air Act, 42 U.S.C.:

§ 7401(c) ....................................................

§ 7416 ........................................................

§ 7604(a) ....................................................

§ 7604(e) ....................................................

40 C.F.R. §§ 50.1–98.478 ..............................

COURT FILINGS

Hearing Tr., City of Oakland v. BP p.l.c.,

No. 17-cv-6011 (N.D. Cal.) ........................

Notice of Removal, Delaware v. BP America

Inc., Civ. No. 20-1429 (D. Del.) .................

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Baltimore Dept. of Recreation & Parks,

TreeBaltimore, https://bcrp.baltimorecity.

gov/forestry/treebaltimore ........................

Baltimore Office of Sustainability, Urban

Heat Island Sensors¸ https://www.balt

imoresustainability.org/urban-heat-islandsensors/ ......................................................

Centers for Disease Control and Prevention, Heat-Related Deaths — United States,

2004–2018, Morbidity and Mortality

Weekly Report, Vol. 69, No. 24, 730 (June

19, 2020), https://www.cdc.gov/mmwr/vol

umes/69/wr/pdfs/mm6924a1-H.pdf ...........

IPCC, FAQ Chapter 3, https://www.ipcc.

ch/sr15/faq/faq-chapter-3/ .........................

Jason Samenow, Baltimore experiences worst

coastal flooding since 2003, WASHINGTON

POST (May 1, 2020), https://wapo.st/

3aHtVsC ....................................................

Kelsey Kushner, Maryland Weather: MTA

Bus Caught in Floodwater in NE Baltimore

With Passengers On Board, CBS

BALTIMORE (July 22, 2020), https://cbsloc.

al/37Ev4PO ...............................................

McKenna Oxenden, Maryland Weather:

August is fourth wettest in history, more

rain expected this week, BALTIMORE SUN

(Sept. 1, 2020), https://bit.ly/3mEVUMc ...

TABLE OF AUTHORITIES—Continued

Page(s)

Nadja Popovich and Christopher Flavelle,

Summer in the City Is Hot, but Some

Neighborhoods Suffer More, N.Y. TIMES

(Aug 9, 2019), https://nyti.ms/3pgV5uu ...

National Institute of Environmental Health

Services, Air Pollution and Your Health,

https://www.niehs.nih.gov/health/topics/age

nts/air-pollution/index.cfm .......................

National Weather Service, Clearing the Air

on Weather and Water Quality, https://

www.weather.gov/wrn/summer-article-cle

aring-the-air ..............................................

NOAA, ‘Nuisance flooding’ an increasing

problem as coastal sea levels rise (July 28,

2014), https://www.noaa.gov/media-relea

se/noaa-nuisance-flooding-increasing-pro

blem-as-coastal-sea-levels-rise ................

NOAA, Patterns and Projections of High

Tide Flooding Along the U.S. Coastline

Using a Common Impact Threshold,

NOAA Tech. Report NOS CO-OPS 086

(2018) .........................................................

Roxanne Ready, et. al, Code Red: the Role

of Trees, Howard Center For Investigative Journalism (Sept. 3, 2019), https://

bit.ly/34DPern ...........................................

Raymond G. Naijar, et. al, Potential climatechange impacts on the Chesapeake Bay,

86 Estuarine, Coastal, and Shelf Sci. 1

(2010) .........................................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Thomas C. Peterson, Changes in weather

and climate extremes: State of knowledge

relevant to air and water quality in the

United States, 64 J. AIR AND WASTE

MGMT. ASS’N 184 (2014) ............................

U.S. Geological Survey, Factors Affecting

Long-Term Trends in Surface Water

Quality in the Gwynns Falls Watershed,

Baltimore City and County, Maryland,

1998-2016 (2018), available at https://

pubs.usgs.gov/of/2018/1038/ofr20181038.

pdf ..............................................................

Scott Dance, Baltimore, Annapolis set

records for sunny-day flooding in 2018—

and it could eventually occur every other

day, BALTIMORE SUN (July 10, 2019),

https://bit.ly/3h92Boo ................................

State of New York Office of Attorney General,

State Attorneys General and UBS AG

Settlement Agreement (Dec. 21, 2018),

available at https://ag.ny.gov/sites/defau

lt/files/ubs_settlement_agreement.pdf .....

INTERESTS OF AMICI CURIAE

Amici Curiae Chesapeake Bay Foundation, Inc.

(CBF) and Natural Resources Defense Council, Inc.

(NRDC), submit this brief to identify several failings

in petitioners’ treatment of certain environmental law

issues that petitioners raise, but which fall outside the

question presented to this Court.

CBF is a non-profit, tax exempt organization incorporated in the State of Maryland whose purpose is to

“Save the Bay” and keep it saved, as defined by

reaching a 70 on the Chesapeake Bay Foundation’s

Health Index. Climate change poses a threat to the

restoration of the unique Chesapeake Bay, including

by complicating efforts of municipalities like the City

of Baltimore to address pollution entering its waterways. CBF submits this brief to highlight these and

other localized impacts on the City of Baltimore.

NRDC is a nonprofit organization that works to

protect public health and the environment. Since its

founding in 1970, NRDC has litigated hundreds of

environmental cases in state and federal court—

including many under the Clean Air Act. E.g., Natural

Resources Defense Council v. E.P.A., 489 F.3d 1364

(D.C. Cir. 2007). The petitioners here advance a theory

of federal-question jurisdiction tied to federal pollution

law. NRDC submits this brief to explain why a

reasoned decision on federal jurisdiction would require

analysis of provisions of the Clean Air Act that the

petitioners have not put before the Court.1

This brief was not authored in whole or part by counsel for a

party. No one other than Amici made a monetary contribution to

its preparation or submission. All parties have consented to its

filing.

SUMMARY OF THE ARGUMENT

This Court granted certiorari to answer a single

question about the scope of appellate jurisdiction

under 28 U.S.C. § 1447(d) for reviewing a district court

order that remands a removed case to state court.

Petitioners now ask the Court to go further and rule

directly on the merits of removing this action to federal

court. As respondent explains, that question is

improperly presented to the Court. Resp. Br. 41–44.

Indeed, the question is also incompletely presented,

and the Court should not entertain it.

Respondent Mayor and City Council of Baltimore

sued petitioners in Maryland state court, alleging that

petitioners promoted and sold their fossil fuel products

through deceptive means while concealing known

dangers. Respondent alleges that this conduct violated

Maryland state law, giving it cause to bring a civil

action. Whether respondent is right about that is a

question of Maryland state law over which the federal

courts lack jurisdiction.

Petitioners nonetheless argue that this action is

removable to federal court because “[a]t bottom, whenever there is ‘an overriding federal interest in the need

for a uniform rule of decision’ . . . any claims

necessarily arise under federal law.” Br. 39 (quoting

Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6

(1972) (Milwaukee I)). But that is not the law.

Removal here turns on whether respondent’s pleaded

cause of action is one “arising under” federal law

within the meaning of the federal-question jurisdiction

statute, 28 U.S.C. § 1331. Petitioners purport to find

their alternative standard in various federal environmental common law cases like Milwaukee I. But none

of those cases involved federal-question jurisdiction

over a civil action pleading only state causes, and

petitioners’ theory does not account for this Court’s

cases that did.

Petitioners’ argument also relies on premises in

dispute, and they have not provided this Court with

the information necessary to resolve those disputes.

For example, they contend that federal common law

is the relevant source of law for their theory of

respondent’s action. But, in fact, under this Court’s

cases, the Clean Air Act would be the relevant source.

See American Electric Power Co. v. Connecticut, 564

U.S. 410, 423, 429 (2011) (AEP). The United States,

as amicus, agrees that the Clean Air Act displaced

federal common law, but suggests this does not

mean “the door was opened” for state tort claims.

U.S. Br. 27. The United States acknowledges, however,

that how far the door is open for state claims depends

on specific provisions of the Clean Air Act, none of

which petitioners have briefed here.

Petitioners’ foundational contention—that federal

law, whatever its source, must “exclusively govern”

this action—is also doubtful. Though in petitioners’

view this case “implicates” various broad federal

interests (e.g. Br. 42), the United States does not take

up those implications in its brief (compare U.S. Br.

26–28), and neither it nor petitioners identify any

particular provision of Maryland state law in conflict

with federal law. Maryland has the right and the

responsibility to protect the health, safety, and welfare

of its residents, and respondent has every right to

pursue available state law causes to address localized

injuries caused by petitioners’ allegedly deceptive

conduct.

The district court saw petitioners’ argument for

what it is: “a veiled complete preemption argument.”

Pet. App. 49a. Petitioners deny this, presumably

because they cannot establish the stringent

requirements for removal by complete preemption.

See, e.g., Beneficial Nat’l Bank v. Anderson, 539 U.S.

1, 8–11 (2003). But petitioners have not identified any

other plausible way in which respondent’s state law

causes of action could “arise under” federal common

law for purposes of removal.

Behind the linguistic veil, petitioners’ argument

that federal environmental common law “governs”

here is, in substance, an ordinary preemption argument: it is premised on their answer to the disputed

question of whether or not there is an irreconcilable

conflict between federal common law and the state law

that respondent seeks to enforce. State courts routinely resolve such questions in the first instance,

and if petitioners could show they were right about

the answer, the Supremacy Clause would ultimately

protect them by “directing state courts that they must

not give effect to state laws that conflict with federal

law.” Espinoza v. Montana Dep’t of Revenue, 140 S. Ct.

2246, 2262 (2020) (direct appeal) (citation omitted).

But the question of whether there is any conflict

between enforcing Maryland law and federal law

is not, itself, a federal question that creates jurisdiction. Franchise Tax Bd. v. Constr. Laborers

Vacation Tr., 463 U.S. 1, 10–12 (1983). The Court

should affirm.

ARGUMENT

Respondent sued petitioners in Maryland state

court, alleging that petitioners violated state law by

promoting their fossil fuel products using “disinformation” to conceal “the products’ known dangers.” Pet.

App. 21a–22a. Although respondent only claims causes

of action under Maryland state law, petitioners seek to

remove the action as “arising under” federal common

law.

The jurisdictional rules of removal are well defined,

and petitioners have not shown they are met. A

defendant may remove a “civil action” from state court

to federal court if the federal district court would

have original jurisdiction over the action. 28 U.S.C.

§ 1441(a). Congress has limited this original jurisdiction to those civil actions “arising under” federal law.

28 U.S.C. § 1331. Although this “arising under” language tracks the language of Article III, and “the

constitutional meaning of ‘arising under’ may extend

to all cases in which a federal question is an ingredient

of the action,” this Court “ha[s] long construed the

statutory grant of federal-question jurisdiction as conferring a more limited power.” Merrell Dow Pharm.

Inc. v. Thompson, 478 U.S. 804, 807 (1986) (citation

omitted).

For statutory purposes, the “presence or absence of

federal-question jurisdiction” depends heavily on the

plaintiff’s chosen cause of action. Rivet v. Regions

Bank of La., 522 U.S. 470, 475 (1998). The statutory

inquiry is “governed by the ‘well-pleaded complaint

rule,’” id., which looks to “the plaintiff’s statement of

his own cause of action,” Beneficial Nat’l Bank,

539 U.S. at 6 (citation omitted), recognizing that plaintiffs are entitled to “avoid federal jurisdiction by

exclusive reliance on state law.” Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987). Where, as here, a

plaintiff relies on state-law created causes of action,

the action does not arise under federal law except in

specific narrow circumstances. See Gunn v. Minton,

568 U.S. 251, 257–258 (2013) (discussing “Grable”

jurisdiction); Beneficial Nat’l Bank, 539 U.S. at 8

(discussing “complete preemption”).

Petitioners here do not situate this action within one

of these recognized exceptions. Instead, they posit that

“direct[]” application of other “longstanding precedents” shows that respondent’s action arises under

federal common law. Br. 37. As explained below, however, none of petitioners’ cases involved federal-question

jurisdiction over a civil action pleading only state

causes, and their theory fails to account for relevant

federal law and this Court’s removal precedents.

I. Removal on petitioners’ theory would be

unprecedented.

None of the cases petitioners cite in support of

removal (Br. 38–42) even addressed if a state law

claim can “arise under” federal common law. To be

sure, this Court has previously recognized the availability of causes of action under federal environmental

common law. E.g. City of Milwaukee v. Illinois, 451

U.S. 304, 309 (1981) (“Milwaukee II”). But contrary to

petitioners’ suggestion (Br. 38–39), those cases did not

hold that state claims are removable if they may

ultimately be resolved by a federal common law “rule

of decision.” None of those cases addressed whether

federal-question jurisdiction would lie over a state

created cause of action because the question was

irrelevant: federal jurisdiction was already grounded

elsewhere.

For example, in Georgia v. Tennessee Copper Co.,

plaintiff Georgia invoked this Court’s original jurisdiction—not a district court’s federal-question jurisdiction. 206 U.S. 230 (1907). Milwaukee I was also an

original action in this Court. 406 U.S. at 93. The Court

declined to exercise original jurisdiction, however,

because the dispute was not between two States and

“Illinois could appeal to federal common law” in “an

action in federal district court.” Milwaukee II, 451 U.S.

at 309. So, Illinois did, id. at 310, and jurisdiction lay

in the district court because Illinois’ complaint pled a

federal cause of action. The Milwaukee cases do not

hold—and had no reason to hold—that an action by

Illinois appealing only to state law could be removed to

federal district court as “arising under” federal law.

And although United States v. Standard Oil Co.

(Br. 38) was not an original action, federal jurisdiction

was solidly grounded because the United States was

the plaintiff. 332 U.S. 301 (1947); see Empire

Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677,

691 (2006).

Whether or not the Court “resolv[ed]” Georgia’s

claim under federal law in Tennessee Copper, or

explained considerations for choosing to apply federal

over state law in Milwaukee I (Br. 40), is beside the

point. Jurisdiction was grounded on the nature of the

parties, not the source of the plaintiff’s environmental

rights in dispute. Once a federal court has jurisdiction,

it may need to then conduct a “choice-of-law” analysis

to determine whether state or federal law (including

federal common law) will “determine the merits of the

controversy.” Empire Healthchoice, 547 U.S. at 691.

But the need to perform a “choice-of-law” analysis in

the face of a potential conflict of state and federal law

is not a source of federal-question jurisdiction. Cf.

Franchise Tax Bd., 463 U.S. at 12 (“By unimpeachable

authority, a suit brought upon state statute does not

arise under [federal law] because prohibited thereby.”)

(quoting Gully v. First Nat’l Bank, 299 U.S. 109, 116

(1936)).

Petitioners’ remaining cases (Br. 38–42) do not help

them either, because, again, the Court there was not

addressing whether a pled state cause of action “arises

under” federal law to create federal-question jurisdiction. Jurisdiction in International Paper Co. v.

Ouellette was grounded on diversity, 479 U.S. 481, 500

(1987); cf. Ouellette v. Int’l Paper Co., 86 F.R.D. 476,

478 (D. Vt. 1980), and the plaintiffs in AEP pled a

federal common law cause, 564 U.S. 410, 418 (2011).

See also, e.g., PPL Montana LLC v. Montana, 565 U.S.

576, 580–581 (2012) (direct appeal of civil action

litigated in state court involving dispute over constitutional “equal-footing” doctrine) (Br. 39). The nonenvironmental cases that petitioners cite are even further

afield, and involved plaintiffs claiming violations of

federal rights. Cf., e.g., Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 632–633 (1981) (civil

action filed in federal court alleging federal right of

contribution under federal statute); Nat’l Farmers

Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845,

849–853 (1985) (civil action filed in federal court

alleging a federal right of protection from tribal

jurisdiction).

In short, none of the cases petitioners point to

addressed whether a state law cause of action “arises

under” federal common law. Contrary to petitioners’

suggestion (Br. 4), simply “applying [those] precedents” would not answer any removal-relevant question here, and the Court should decline to try.

II. Petitioners have not briefed the relevant

source of federal law for their theory of

this case: the Clean Air Act.

Petitioners argue (Br. 43–44) that the Court should

ignore respondent’s formally pled tort claims, because

“the real nature” of the claim “seeks to regulate”

interstate pollution. “[C]laims seeking redress for

interstate pollution are governed exclusively by

federal common law,” petitioners say, such that they

“necessarily arise under federal law for purposes of

federal-question jurisdiction.” Br. 38. But even were

this an action here to regulate interstate pollution,

petitioners do not explain why federal redress—

exclusive or otherwise—would come from common law

instead of from the Clean Air Act, 42 U.S.C. §§ 7401 et

seq.

Indeed, in the court below petitioners argued that

the Clean Air Act “establishes the exclusive vehicle for

regulating nationwide emissions of air pollutants.”

Defendants’ Fourth Cir. Br. at 48. They argued that

injured parties may “petition the EPA for

rulemaking,” and highlighted that Maryland had

sought judicial redress for EPA’s failure “to regulate

emissions from . . . neighboring states.” Defendants’

Fourth Cir. Br. at 49 & n.14. After certiorari was

granted here, and shortly before submitting their

opening brief, various petitioners were still arguing to

other courts in “related cases” (Br. 6–7 n.1) that emissions regulation “is governed by the Clean Air Act”;

that the Act “provides the exclusive means for regulation of interstate emissions”; and that state “causes of

action based on the interstate emission of greenhouse

gases” are completely preempted by the Clean Air Act

because the Act provides “the exclusive cause of action

for the claim asserted” and “provides the exclusive

remedy.” E.g. Notice of Removal, at 92 ¶ 151, 108–110

¶¶ 180–182, Delaware v. BP America Inc., Civ.

No. 20-1429 (D. Del. Oct. 23, 2020). Here, in contrast,

petitioners argue that “federal common law governs

claims seeking redress for interstate air . . . pollution,”

(Br. 41), and they barely mention the Clean Air Act.

Regardless of petitioners’ current litigating position,

the Clean Air Act is indisputably relevant to any

consideration of the scope of federal rights and

immunities in the area of air pollution.

In Ouellette, this Court considered a diversity action

claiming redress for transboundary water pollution

under state common law of nuisance. 479 U.S. at 484–

485. Contrary to petitioners’ suggestion here, the

Court there did not “appl[y] federal common law to

[the] claims” (Br. 15) or “resolv[e them] by reference to

federal common law,” (Br. 9), because the federal

Clean Water Act “now occupied the field, pre-empting

all federal common law.” See 479 U.S. at 488–489

(emphasis original). “[W]hether injured parties still

had a cause of action under state law” was an “open . . .

question” in this Court. Id. at 489 (emphasis original).

To answer that open question, the Court needed to

consider “the pre-emptive scope of the Clean Water

Act.” Id. at 483.2

The Court’s detailed analysis of the Clean Water Act

in Ouellette, e.g., id. at 489–491, makes no sense under

petitioners’ theory here. If “[n]o state law exists in

this area . . . to invoke,” and all “claims alleging injury

from interstate . . . pollution . . . inherently are

federal claims” (Br. 43), the Court would not have

needed to construe and apply the Act at all. If

the Vermont plaintiffs’ state common law claims

“inherently [were] federal” common law claims, the

Court could have stopped writing after reiterating the

Milwaukee II holding that “all federal common law”

A federal statute can readily displace federal common law

while not preempting state law, because the effect of the statute

on each is evaluated under different standards, and the test for

preempting state law is significantly more stringent. See, e.g.,

AEP, 564 U.S. at 423–24; Milwaukee II, 451 U.S. at 316, 317 n.9.

was preempted. See 479 U.S. at 489. The Court’s

continued construction and application of the Clean

Water Act, id. at 489–500, only makes sense if

transboundary pollution claims under state law are

not inherently federal.

So too in AEP, where this Court considered an action

claiming redress for transboundary air pollution

under both federal common law and state tort law. 564

U.S. at 418. Only the federal common law claim was

before the Court, id. at 429, and the parties hotly

disputed whether such a claim existed, id. at 422–423.

The dispute, however, was “academic,” because the

Clean Air Act displaced “[a]ny such claim.” Id. at 423;

see also id. at 415, 424, 429. On petitioners’ theory

here, that holding should have disposed of the state

tort claims as well. But, as in Ouellette, this Court

explained that “the availability vel non of a state

lawsuit depends, inter alia, on the preemptive effect of

the federal [Clean Air] Act.” Id. at 429. Again, as in

Ouellette, the Court’s admonition to consider the

preemptive effect of the statute only makes sense if the

state tort claims were not inherently federal common

law claims.

In short, petitioners’ “inherently federal” theory is

not consistent with Ouellette and AEP. For its part, the

United States, as amicus here, accepts that the Clean

Air Act displaced federal common law in this area, but

suggests this does not mean “the door was opened” for

state tort claims. U.S. Br. 27. But it acknowledges, as

it must, that how far the door is open for state claims

depends on specific provisions of that Act (U.S. Br. 27),

none of which petitioners have briefed here.

Because petitioners seek to remove this action as

“arising under” federal law, “a right or immunity”

created by federal law “must be an element, and an

essential one, of [respondent’s] cause of action.”

Franchise Tax Board, 463 U.S. at 10–11 (quoting

Gully, 299 U.S. at 112); Rivet, 522 U.S. at 475. Under

AEP, the Clean Air Act defines the substance of

federal law—and its “rights or immunities,” if any—in

the area where petitioners would situate this action.

Because petitioners have not briefed the substance of

the Act that is necessary to an informed removal

decision, the Court should not consider their theory.

III. This action is not a controversy over

“uniquely federal” interests.

Independent of the Clean Air Act’s displacement of

federal common law, petitioners’ contention that this

action must be “governed exclusively by federal common law,” because it “implicate[s]” “uniquely federal

interests” is doubtful (Br. 38)—and they have provided

scant support for the premise. As a legal matter,

petitioners fail to explain how this action puts the

sovereign rights of different States in conflict such

that this Court would need to create federal common

law. And as a factual matter, respondent has a very

real interest in addressing the localized injuries

caused by petitioners’ alleged deception.

A. Not all interstate disputes are federal.

Suits involving parties in different jurisdictions, or

conduct that crosses national or state boundaries, or

global branding or marketing, all have “interstate” or

“international” characteristics, but do not implicate

the “conflicting rights of States” that create the

conditions for federal common lawmaking. See Texas

Indus., 451 U.S. at 641.3

Petitioners are private actors, and they do not

explain why general concepts of “coequal sovereignty”

make this action one that could implicate the conflicting rights of States. Franchise Tax Board v. Hyatt

(Br. 39), for example, involved a State’s right to

sovereign immunity from private suit in the courts of

other States. 139 S. Ct. 1485, 1492 (2019). Such a right

is patently not at issue here. Cf., e.g., O’Melveny &

Myers v. F.D.I.C., 512 U.S. 79, 88 (1994) (“uniformity

of law” governing “primary conduct on the part of

private actors” is not a significant federal interest).

Petitioners suggest this action generally puts

different States’ air pollution laws in conflict (Br. 39),

but the environmental common law cases they rely on

were all actions to enjoin operations at discrete pollution sources, where specific competing state regulation

might present identifiable conflict. E.g. Georgia v.

Tennessee Copper Co., 237 U.S. 474, 475, 477–478 (1915)

(injunction limiting smelting plant from emitting

more than 20 tons of sulphur per day); Milwaukee II,

451 U.S. at 308–309, 311–312 (injunction to “achieve

specified effluent limitations” at two sewage treatment

For example, forty state attorneys general—including for

Indiana and most of its co-amici here—settled with a Swiss bank

to resolve claims under both state and federal law concerning the

fraudulent manipulation of LIBOR, a benchmark interest rate

that affects financial instruments worth trillions of dollars and

has a far-reaching impact on global markets and consumers.

See https://ag.ny.gov/sites/default/files/ubs_settlement_agreeme

nt.pdf (last visited Dec. 22, 2020). See also, e.g., In re Volkswagen

“Clean Diesel” Mktg., Sales Prac., & Prod. Liab. Litig., 895 F.3d

597, 603 (9th Cir. 2018) (affirming approval of $10 billion settlement

between consumers and German company to resolve “a bevy of claims

under state and federal law”), cert. denied, 139 S. Ct. 2645 (2019).

plants and eliminate sewer overflows at “discrete

discharge points”). Here, petitioners do not identify

any particular source facing regulatory conflict, or

explain how such a conflict would come about.

Suppositions about the federal interest in air pollution would also need to address the Clean Air Act,

Congress’s word on the subject. The Act is dense but

opens by declaring that its “primary goal” is “to

encourage or otherwise promote reasonable Federal,

State, and local government actions, consistent with

[its] provisions . . . for pollution prevention.” 42 U.S.C.

§ 7401(c). Petitioners do not address any of these

provisions. And although a partial reading cannot

substitute for consideration of the full text, even a

quick skim of the Act calls into question petitioners’

demand for exclusively federal uniform standards.

The Act, for example, expressly provides for broad

retention of state authority, 42 U.S.C. § 7416, and then

separately authorizes citizen suits against any person

who violates federal standards, id. § 7604(a), while

expressly reserving “any right which any person” “may

have under any statute or common law to seek

enforcement of any emission standard or limitation or

to seek any other relief,” id. § 7604(e) (emphasis

added). And as amici can attest, even those pollution

standards that are set federally are rarely “uniform”

in petitioners’ sense, see generally 40 C.F.R. §§ 50.1–

98.478 (“Air Programs”), for the straightforward

reason that the causes, effects, and needed solutions

to air pollution problems are not uniform.

Finally, in petitioners’ view this case “implicates” a

list of broad federal interests (e.g. Br. 42), but they

do not identify any particular provision of federal

law in conflict with relevant Maryland state law, or

explain why a conflict would cause the action to “arise

under” federal law. The United States is here as

amicus, but it does not raise these same concerns.

Compare U.S. Br. 26–28. Further, petitioners’

proposed federal interest in “fossil-fuel production”

(Br. 15), misapprehends federal common lawmaking,

which is concerned with specific interests necessary to

a “federal system” of government. Texas Indus., 451

U.S. at 641 (emphasis added). Petitioners fail to

explain how a federal system of government necessarily depends on any of those purported interests.

B. Respondent

challenges.

faces

unique

local

To be sure, amici believe the federal government

should take action to address greenhouse gas pollution, and there are some actions only it can take. The

federal government might also take action to address

misinformation about the causes and effects of pollution, though here the states have often taken the lead.

Although petitioners will have an opportunity to

dispute in the court of first review whether respondent’s claims of a “sophisticated disinformation campaign”

are accurate, see Pet. App. 21a, deception clearly can

produce distinct harms. For example, a federal law

allowance to dispose of chemicals in a stream does not

obviously immunize the disposer against misrepresenting known health risks to a prospective downstream

community.

Action at all levels of government is both possible

and necessary, and amici can speak from experience

that the nature of pollution challenges necessitates

local action. To say that the climate is changing is not

to say that it is changing everywhere uniformly as

petitioners here suggest.4 These changes vary by

location and interact with different preexisting local

infrastructure and topology to produce uniquely local

injuries. Petitioners do not explain how a “uniform” federal solution could fully address these localized impacts.

Respondent here must continue to direct limited

resources to address local scale impacts. Among many

other climate related impacts, Baltimore is

experiencing unprecedented increases in flooding,

precipitation, extreme heat, and ground level ozone.

These impacts often fall hardest on the most

vulnerable communities within the city.

For example, as sea level rises, instances of “sunny

day flooding”—flooding of normally dry parts of the

city due simply to regular movement of the tides—

continue to increase.5 A NOAA report found that

Baltimore experienced an increase in the number of

Elsewhere, some petitioners acknowledge the true nature of

climate change. For example: “Chevron accepts the consensus of

the scientific community on climate change. That scientific consensus is embodied in the results of the Intergovernmental Panel

on Climate Change, the IPCC.” Hearing Tr., City of Oakland v.

BP p.l.c., No. 17-cv-6011 (N.D. Cal. Mar. 21, 2018) (Dkt. 189) at

80:20–24. The IPCC is an organization that convenes leading

scientific experts to “provide governments at all levels with scientific information that they can use to develop climate policies.”

https://www.ipcc.ch/about/. The misperception that climate change

is “uniform” is common enough that the IPCC has provided a

public primer in its Frequently Asked Questions: “The impacts of

climate change are being felt in every inhabited continent and in

the oceans. However, they are not spread uniformly across the

globe, and different parts of the world experience impacts

differently.” See https://www.ipcc.ch/sr15/faq/faq-chapter-3/.

Scott Dance, Baltimore, Annapolis set records for sunny-day

flooding in 2018—and it could eventually occur every other

day, BALTIMORE SUN (July 10, 2019), https://bit.ly/3h92Boo.

flood days of more than 920 percent since 1960,6 and

the agency projects that by end of the century, high

tide flooding will occur “every other day” in the region.7

In May 2020, Baltimore experienced the worst coastal

flooding since Hurricane Isabel hit in 2003.8 The

combination of high winds and rainfall flooded

Baltimore’s Inner Harbor, with a peak tide of 4.24 feet,

which equates to a tide 2.5 to 3 feet above normal and

a full foot of flooding on normally dry ground. Flooding

events like this will continue to increase, a harm with

specific local costs to Baltimore, including lack of

access to transportation and delays, impairment of

energy, water and sewage services, and closing of

businesses.9

Precipitation levels are also increasing in the

Baltimore area as a result of climate change, leading

to stronger storms, particularly in the winter

months.10 August 2020 was the one of the wettest in

NOAA, ‘Nuisance flooding’ an increasing problem as coastal

sea levels rise (July 28, 2014), https://www.noaa.gov/media-rel

ease/noaa-nuisance-flooding-increasing-problem-as-coastal-sea-lev

els-rise.

NOAA, Patterns and Projections of High Tide Flooding Along

the U.S. Coastline Using a Common Impact Threshold, NOAA

Tech. Report NOS CO-OPS 086, ix (2018).

Jason Samenow, Baltimore experiences worst coastal

flooding since 2003, WASHINGTON POST (May 1, 2020), https://wa

po.st/3aHtVsC..

Center for Integrative Environmental Research at the

University of Maryland, The US Economic Impacts of Climate

Change and the Cost of Inaction, 16–19 (2007), https://bit.ly/2W

GEyEa.

Raymond G. Naijar, et. al, Potential climate-change impacts

on the Chesapeake Bay, 86 Estuarine, Coastal, and Shelf Sci. 1, 3

Baltimore history, with the city receiving nearly

twelve inches of rainfall.11 Strong storms with heavier

than normal rainfall overwhelm infrastructure

designed for normal precipitation, and heavy rain can

cause dangerous flash flooding. Baltimore experienced

flash floods this past summer, where quickly rising

water trapped cars and even a city bus with

passengers still onboard.12 The city will continue to

experience unprecedented levels of rainfall, leading to

flooding that damages city infrastructure and that

threatens the health and safety of residents. And

respondent will continue to expend resources in

response to these local harms.

Respondent must also address the localized effects

of unprecedented temperatures. Cities are generally

warmer than other locations—known as the urban

heat island effect—because concrete and other hard

surfaces retain more heat compared to green spaces

like parks, lawns, and vegetative areas.13 On what

(2010); United States Geological Survey, Factors Affecting LongTerm Trends in Surface Water Quality in the Gwynns Falls

Watershed, Baltimore City and County, Maryland, 1998-2016, 2

(2018), https://pubs.usgs.gov/of/2018/1038/ofr20181038.pdf; see

also Fourth National Climate Assessment, Chapter 18: Northeast,

https://nca2018.globalchange.gov/chapter/18/.

McKenna Oxenden, Maryland Weather: August is fourth

wettest in history, more rain expected this week, BALTIMORE SUN

(Sept. 1, 2020), https://bit.ly/3mEVUMc.

Kelsey Kushner, Maryland Weather: MTA Bus Caught in

Floodwater in NE Baltimore With Passengers On Board, CBS

BALTIMORE (July 22, 2020), https://cbsloc.al/37Ev4PO.

See Baltimore Office of Sustainability, Urban Heat Island

Sensors¸ https://www.baltimoresustainability.org/urban-heat-isl

and-sensors/ (last visited Dec. 11, 2020); see also Roxanne Ready,

would be a hot summer day anywhere, when

neighborhoods with parks and significant tree cover

record 87 degree heat, less verdant neighborhoods

around downtown that are more vulnerable to extreme

heat may record temperatures over 101 degrees.14 The

neighborhoods experiencing the worst heat in the city

are predominantly Black communities, and often

communities with lower incomes. Extreme heat is not

just uncomfortable, it is deadly.15 To combat extreme

heat, respondent is actively working to mitigate the

urban heat island effect by planting trees, aiming to

increase the tree canopy cover in Baltimore by 40

percent.16

In Baltimore, increased heat is often directly linked

to poor air quality. Ground level ozone or smog forms

when nitrogen oxides, byproducts of combustion, react

with other organic compounds in the presence of heat

and sunlight.17 The concentration of ozone in the

air is “strongly dependent on temperature” and the

increased frequency of very hot days and heat waves

et. al, Code Red: the Role of Trees, Howard Center For Investigative Journalism, (Sept. 3, 2019), https://bit.ly/34DPern.

Nadja Popovich and Christopher Flavelle, Summer in the

City Is Hot, but Some Neighborhoods Suffer More, N.Y. TIMES

(Aug 9, 2019) (describing study to map Baltimore’s heatscape

with assistance from local volunteers), https://nyti.ms/3pgV5uu.

See, e.g., Centers for Disease Control and Prevention, HeatRelated Deaths — United States, 2004–2018, Morbidity and

Mortality Weekly Report, Vol. 69, No. 24, 730 (June 19, 2020),

https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6924a1-H.pdf.

Baltimore Dept. of Recreation & Parks, TreeBaltimore,

https://bcrp.baltimorecity.gov/forestry/treebaltimore (last visited

Dec. 16, 2020).

National Weather Service, Clearing the Air on Weather and

Water Quality, https://www.weather.gov/wrn/summer-articleclearing-the-air (last visited Dec. 11, 2020).

associated with climate change will increase ozone

concentrations.18 Poor air quality directly contributes

to higher asthma rates, and other respiratory and

cardiovascular diseases, harming residents directly

and also leading to increased hospitalizations during

periods of abnormal heat.19

These and other impacts, and the steps necessary to

mitigate them, are unique to the conditions present in

Baltimore. Respondent has borne and will continue to

bear significant costs to address these local harms.

IV. Petitioners have not shown any federal

cause exists to “artfully plead” around.

As discussed above, supra Section I, petitioners’

removal theory relies on non-removal cases which did

not address when a state law cause of action can “arise

under” federal law for jurisdictional purposes. But

petitioners also fail to show their theory is consistent

with this Court’s voluminous precedents that do

address removal. They invoke the “artful pleading”

exception to the well-pleaded complaint rule (Br. 44),

but cite no case applying it how they propose, and they

do not explain how this action possibly falls within

that exception.

Relying on a footnote in Federated Department

Stores, Inc. v. Moitie, petitioners urge the Court to

ignore the state-law causes of action in respondent’s

Thomas C. Peterson, Changes in weather and climate

extremes: State of knowledge relevant to air and water quality in

the United States, 64 J. AIR AND WASTE MGMT. ASS’N 184, 187

(2014).

National Institute of Environmental Health Services, Air

Pollution and Your Health, https://www.niehs.nih.gov/health/

topics/agents/air-pollution/index.cfm (last accessed Dec. 11, 2020).

complaint here and simply determine whether “the

real nature” is federal. (Br. 44 (citing 452 U.S. 394, 397

n.2 (1981).) But petitioners offer no standard to guide

the Court’s inquiry. Cf., e.g., Merrill Lynch, Pierce,

Fenner & Smith Inc. v. Manning, 136 S. Ct. 1562, 1575

(2016) (“Jurisdictional tests are built for more than a

single dispute.”). And they fail to acknowledge that the

footnote they rely on—inapposite here to begin with—

was “confine[d] to its specific context” by a unanimous

Court in Rivet, see 522 U.S. at 472, 477–478, a case

petitioners do not cite in their brief.

As Rivet explains, “[t]he artful pleading doctrine

allows removal where federal law completely preempts

a plaintiff’s state-law claim.” Id. at 475. To invoke it,

petitioners must show that respondent’s state law tort

causes are not “well-pleaded,” but are instead “artfully” pleaded to avoid pleading a “necessary” federal

cause, Rivet, 522 U.S. at 475, i.e., an “exclusive [federal] cause of action” whose “scope” encompasses

respondent’s “state-law cause of action,” see Beneficial

Nat’l Bank, 539 U.S. at 8.

Petitioners, and the United States as amicus,

suggest that this Court has never limited the artful

pleading exception to cases of complete preemption by

federal statute, implying that it could apply in federal

common law cases. Br. 44; U.S. Br. 28. But they cite

no example of this Court applying it under federal

common law, or in any other way than described in

Rivet, further confirming that petitioners’ theory is

novel and not an application of existing precedents.

Cf. Beneficial Nat’l Bank, 539 U.S. at 13–15 (Scalia, J.,

dissenting) (noting the Court had previously only

“twice recognized exceptions to the well-pleadedcomplaint rule,” both examples of complete preemption by federal statute). Regardless, petitioners appear

to have waived a federal common law argument on

this ground in the court below: “[We] did ‘not make a

complete-preemption argument as to federal common

law.’” Defendants’ Fourth Cir. Reply Br. at 10. So even

if complete preemption by federal common were

theoretically possible, but cf., e.g., Wyeth v. Levine, 555

U.S. 555, 565 (2009) (preemption of state law requires

clear legislative intent), it would not help petitioners

here.

Further, even if petitioners had not waived the argument, they still would need to be able to demonstrate

the requirements for complete preemption. Among

other things, complete preemption requires a federal

cause of action that respondent could sue on—and

an exclusive one at that. Beneficial Nat’l Bank, 539

U.S. at 8–9. By invoking “artful pleading,” petitioners

imply that respondent had a federal common law

cause of action available to it but declined to plead it.

But the only potential source of a federal cause—preClean Air Act common law—no longer exists, AEP, 564

U.S. at 423, and petitioners do not explain what other

cause respondent could have pled.20 In any event, it is

respondent’s right to rely only on state causes, and

having done so, removal is only available within “the

After AEP, it is not clear that a federal district court would

have federal-question jurisdiction even over a complaint that

expressly pleaded a federal common law cause of action on

transboundary air pollution. Although a federal district court

may have jurisdiction under 28 U.S.C. § 1331 to determine that

a pleaded federal cause ultimately lacks merit, it does not have

jurisdiction over a cause “foreclosed by prior decisions of this

Court,” because there is no “federal controversy” as to the existence of the foreclosed cause. See Oneida Indian Nation of N. Y.

State v. County of Oneida, 414 U.S. 661, 666–67 (1974).

Petitioners do not explain what federal cause respondent could

bring that is not foreclosed by this Court’s decision in AEP.

century-old jurisdictional framework . . . governed by

the ‘well-pleaded complaint rule,’” Caterpillar, 482

U.S. at 391–392, which petitioners barely address.

The district court correctly concluded that petitioners were presenting a “veiled complete preemption

argument.” Pet. App. 49a. Petitioners deny this—

presumably because they cannot establish the stringent

criteria for complete preemption—but they nowhere

explain why their theory is not simply one of ordinary

preemption. However styled, their argument that

federal environmental common law “governs” here is,

in substance, a preemption argument: it is premised

on answering the disputed question of whether there

is an irreconcilable conflict between federal common

law and the state law that respondent seeks to enforce.

That is a preemption question, cf. Murphy v. N.C.A.A.,

138 S. Ct. 1461, 1479–80 (2018) (state law rights are

enforceable unless they conflict with federal law), and

a lurking preemption question is not a federal question

that creates jurisdiction for removal. Franchise Tax

Bd., 463 U.S. at 14.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

JON A. MUELLER

BRITTANY E. WRIGHT

CHESAPEAKE BAY

FOUNDATION

6 Herndon Avenue

Annapolis, MD 21403

(443) 482-2162

jmueller@cbf.org

IAN FEIN

Counsel of Record

NATURAL RESOURCES

DEFENSE COUNCIL

111 Sutter Street, 21st Fl.

San Francisco, CA 94104

(415) 875-6100

ifein@nrdc.org

Counsel for Chesapeake

Bay Foundation

PETE HUFFMAN

NATURAL RESOURCES

DEFENSE COUNCIL

1152 15th Street NW

Washington, DC 20902

Counsel for

Natural Resources

Defense Council

December 23, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.