Application — Suncor Energy (U.S.A.) Inc., et al., Applicants v. Board of County Commissioners of Boulder County, et al.

Supreme Court briefOct 17, 2019

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INDEX TO THE APPENDIX

Appendix A: Court of appeals order denying motion for

stay pending appeal, October 17, 2019 .............1a

Appendix B: District court order granting motion for

remand, September 5, 2019 .........................3a

Appendix C: District court order denying motion for

stay pending appeal, October 7, 2019 .............59a

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

BOARD OF COUNTY

COMMISSIONERS OF BOULDER

COUNTY; BOARD OF COUNTY

COMMISSIONERS OF SAN MIGUEL

COUNTY; CITY OF BOULDER,

FILED

United States Court of Appeals

Tenth Circuit

October 17, 2019

Elisabeth A. Shumaker

Clerk of Court

Plaintiffs - Appellees,

SUNCOR ENERGY (U.S.A.), INC.;

SUNCOR ENERGY SALES INC.;

SUNCOR ENERGY INC.; EXXON

MOBIL CORPORATION,

No. 19-1330

(D.C. No. 1:18-CV-01672-WJM-SKC)

(D. Colo.)

Defendants - Appellants.

_________________________________

ORDER

_________________________________

Before LUCERO and McHUGH, Circuit Judges.

_________________________________

Appellants request an emergency stay of the district court’s remand order pending

this court’s determination of their appeal. In deciding whether to grant a stay pending

appeal, this court considers, “(1) whether the stay applicant has made a strong showing

that he is likely to succeed on the merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay will substantially injure the other

parties interested in the proceeding; and (4) where the public interest lies.” Nken v.

Holder, 556 U.S. 418, 434 (2009) (internal quotation marks omitted). The decision

whether to grant a stay involves “an exercise of judicial discretion,” id. at 433 (internal

quotation marks omitted), and “[t]he party requesting a stay bears the burden of showing

that the circumstances justify an exercise of that discretion,” id. at 433-34.

Upon consideration, we conclude that Appellants have not made the necessary

showing to warrant entry of a stay pending appeal. Accordingly, the motion for stay is

denied. The deadline for Appellees to file a response to the motion is vacated, and

Appellants’ motion for clarification is denied as moot.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 18-cv-01672-WJM-SKC

BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY;

BOARD OF COUNTY COMMISSIONERS OF SAN MIGUEL COUNTY; and

CITY OF BOULDER,

Plaintiffs,

SUNCOR ENERGY (U.S.A.) INC.;

SUNCOR ENERGY SALES INC.;

SUNCOR ENERGY INC.; and

EXXON MOBIL CORPORATION,

Defendants.

ORDER

Plaintiffs brought Colorado common law and statutory claims in Boulder County,

Colorado District Court for injuries occurring to their property and citizens of their

jurisdictions, allegedly resulting from the effects of climate change. Plaintiffs sue

Defendants in the Amended Complaint (“Complaint”) “for the substantial role they

played and continue to play in causing, contributing to and exacerbating climate

change.” (ECF No. 7 ¶ 2.) Defendants filed a Notice of Removal (ECF No. 1) on June

29, 2018. Plaintiffs filed a Motion to Remand (ECF No. 34) on July 30, 2018.

For the reasons explained below, the Court grants Plaintiffs’ Motion to Remand.

Defendants’ Motion to Reschedule Oral Argument on Plaintiffs’ Motion to Remand (ECF

No. 67), is denied as the Court finds that a hearing is not necessary.

I. BACKGROUND

Plaintiffs assert six state law claims: public nuisance, private nuisance, trespass,

unjust enrichment, violation of the Colorado Consumer Protection Act, and civil

conspiracy. The Complaint alleges that Plaintiffs face substantial and rising costs to

protect people and property within their jurisdictions from the dangers of climate

alteration. (ECF No. 7 ¶¶ 1–4, 11, 221–320.) Plaintif fs allege that Defendants

substantially contributed to the harm through selling fossil fuels and promoting their

unchecked use while concealing and misrepresenting their dangers. (Id. ¶¶ 2, 5,

13–18, 321–435.) The fossil fuel activities have raised the emission and concentration

of greenhouse gases (“GHGs”) in the atmosphere. (Id. ¶¶ 7, 15, 123–138, 321–38.)

As a result of the climate alterations caused and contributed to by Defendants’

fossil fuel activities, Plaintiffs allege that they are experiencing and will continue to

experience rising average temperatures and harmful changes in precipitation patterns

and water availability, with extreme weather events and increased floods, drought, and

wild fires. (ECF No. 7 ¶¶ 145–179.) These changes pose a threat to health, property,

infrastructure, and agriculture. (Id. ¶¶ 1–4, 180–196.) Plaintiffs allege that they are

sustaining damage because of services they must provide and costs they must incur to

mitigate or abate those impacts. (Id. ¶¶ 1, 4–5, 221–320.) Plaintiffs seek monetary

damages from Defendants, requiring them to pay their pro rata share of the costs of

abating the impacts on climate change they have allegedly caused through

their tortious conduct. (Id. at ¶ 6.) Plaintiffs do not ask the Court to stop or regulate

Defendants’ emissions of fossil fuels (id. at ¶¶ 6, 542), and do not seek injunctive relief.

Defendants’ Notice of Removal asserts the following: (1) federal question

jurisdiction— that Plaintiffs’ claims arise under federal common law, and that this action

necessarily and unavoidably raises disputed and substantial federal issues that give

rise to jurisdiction under Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545

U.S. 308 (2005) (“Grable”); (2) complete preemption; (3) federal enclave jurisdiction; (4)

jurisdiction because the allegations arise from action taken at the direction of federal

officers; (5) jurisdiction under the Outer Continental Shelf Lands Act, 43 U.S.C.

§ 1349(b); and (6) jurisdiction under 28 U.S.C. § 1452(a) because the claim s are

related to bankruptcy proceedings.

While there are no dispositive cases from the Supreme Court, the United States

Court of Appeals for the Tenth Circuit, or other United States Courts of Appeal, United

States District Court cases throughout the country are divided on whether federal courts

have jurisdiction over state law claims related to climate change, such as raised in this

case. Compare California v. BP p.l.c. (“CA I”), 2018 WL 1064293 (N.D. Cal. Feb. 27,

2018); City of Oakland v. BP p.l.c. (“CA II), 325 F. Supp. 3d 1017 (N.D. Cal. June 25,

2018); City of New York v. BP p.l.c., 325 F. Supp. 3d 466 (S.D.N.Y. July 19, 2018) with

State of Rhode Island v. Chevron Corp., 2019 WL 3282007 (D. R.I. July 22, 2019);

Mayor and City Council of Baltimore v. BP P.L.C. (“Baltimore”), 2019 WL 2436848

(D. Md. June 10, 2019), appeal docketed, No. 19-1644 (4th Cir. June 18, 2019); and

Cnty. of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934 (N.D. Cal. 2018), appeal

docketed, No. 18-15499 (9th Cir. May 27, 2018).

II. LEGAL STANDARD

Plaintiffs’ Motion to Remand is brought pursuant to 28 U.S.C. § 1447(c). The

Motion to Remand asserts that the Court lacks subject matter jurisdiction over the

claims in this case, which Plaintiffs contend are state law claims governed by state law.

Federal courts are courts of limited jurisdiction, “possessing ‘only that power

authorized by Congress and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013)

(citation omitted). Thus, “[f]ederal subject matter jurisdiction is elemental.” Firstenberg

v. City of Santa Fe, 696 F.3d 1018, 1022 (10th Cir. 2012). “It can not be consented to or

waived, and its presence must be established” in every case in federal court. Id.

Here, Defendants predicate removal on the ground that the federal court has

original jurisdiction over the claims. 28 U.S.C. § 1441(a). Diversity jurisdiction has not

been invoked. Removal is appropriate “if, but only if, ‘federal subject-matter jurisdiction

would exist over the claim.”’ Firstenberg, 696 F.3d at 1023 (citation omitted). If a court

finds that it lacks subject matter jurisdiction at any time before final judgment is entered,

it must remand the case to state court. 28 U.S.C. § 1447(c).

The burden of establishing subject matter jurisdiction is on the party seeking

removal to federal court, and there is a presumption against its existence. Salzer v.

SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014). “Removal

statutes are to be strictly construed,. . . and all doubts are to be resolved against

removal.” Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). The

party seeking removal must show that jurisdiction exists by a preponderance of the

evidence. Dutcher v. Matheson, 840 F.3d 1183, 1189 (10th Cir. 2016).

III. ANALYSIS

Federal Question Jurisdiction

Defendants first argue that federal question jurisdiction exists. Federal question

jurisdiction exists for “all civil actions arising under the Constitution, laws, or treaties of

the United States.” 28 U.S.C. § 1331. In determ ining whether such jurisdiction exists, a

court must “look to the ‘face of the complaint’” and ask whether it is “‘drawn so as to

claim a right to recover under the Constitution and laws of the United States’[.]”

Firstenberg, 696 F.3d at 1023 (quoting Bell v. Hood, 327 U.S. 678, 681 (1946)).

“[T]he presence or absence of federal-question jurisdiction is governed by the

‘well-pleaded complaint rule’, which provides that federal jurisdiction exists only when a

federal question is presented on the face of the plaintiff’s properly pleaded complaint.”

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citation omitted). Under this rule,

a case arises under federal law ‘only when the plaintiff’s statement of his own cause of

action shows that it is based’ on federal law.” Devon Energy Prod. Co., L.P. v. Mosaic

Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir. 2012) (citation om itted). The

court need only examine “the well-pleaded allegations of the complaint and ignore

potential defenses. . . .’” Id. (citation omitted).

The well-pleaded complaint rule makes “the plaintiff the master of the claim; he

or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar,

482 U.S. at 392; see also Devon Energy, 693 F.3d at 1202 (“By omitting federal claims

from a complaint, a plaintiff can generally guarantee an action will be heard in state

court.”) (internal quotation marks omitted). While the plaintiff may not circumvent

federal jurisdiction by artfully drafting the complaint to omit federal claims that are

essential to the claim, Caterpillar, 482 U.S. at 392, the plaintiff “can elect the judicial

forum–state of federal” depending on how the plaintiff drafts the complaint.

Firstenberg, 696 F.3d at 1023. “Neither the plaintiff’s anticipation of a federal defense

nor the defendant’s assertion of a federal defense is sufficient to make the case arise

under federal law.” Id. (internal quotation marks omitted).

For a plaintiff’s well-pleaded complaint to establish that the claims arise under

federal law within the meaning of § 1331, it “must establish one of two things: ‘either

that federal law creates the cause of action or that the plaintiff’s right to relief

necessarily depends on a resolution of a substantial question of federal law.’”

Firstenberg, 696 F.3d at 1023 (citation omitted). The “creation’ test” in the first prong

accounts for the majority of suits that raise under federal law.” See Gunn, 568 U.S. at

257. However, where a claim finds its origins in state law, the Supreme Court has

identified a “‘special and small category’ of cases” in which jurisdiction lies under the

substantial question prong as they “implicate significant federal interests.” Id. at 258;

see also Grable, 545 U.S. at 312.

Defendants argue that both prongs of federal question jurisdiction are met. The

Court will address each of these arguments in turn.

Whether Federal Law Creates the Cause of Action

Defendants first assert that federal question jurisdiction exists because Plaintiffs’

claims arise under federal law; namely, federal common law, such that federal law

creates the cause of action. The Supreme Court has “held that a few areas, involving

‘uniquely federal interests,’ . . . are so committed by the Constitution and laws of the

United States to federal control that state law is pre-empted and replaced, where

necessary, by federal law of a content prescribed (absent explicit statutory directive) by

the courts—so-called ‘federal common law.’” Boyle v. United Technologies Corp., 487

U.S. 500, 504 (1988) (citations omitted); see also Nat’l Farmers Union Ins. Cos. v.

Crow Tribe of Indians, 471 U.S. 845, 850 (1985). The issue must involve “an area of

uniquely federal interest”, and federal common law will displace state law only where “a

‘significant conflict’ exists between an identifiable ‘federal policy or interest and the

[operation] of state law,’ . . or the application of state law would ‘frustrate specific

objectives’ of federal legislation.” Boyle, 487 U.S. at 507 (citations omitted).

Defendants assert that this case belongs in federal court because it threatens to

interfere with longstanding federal policies over matters of uniquely national importance,

including energy policy, environmental protection, and foreign affairs. They note that

two courts have held that claims akin to those brought by Plaintiffs are governed by

federal common law, citing the decisions in CA I, CA II, and City of New York.1

Relevant Case Law

Defendants state over the past century that the federal government has

recognized that a stable energy supply is critical for the preservation of our economy

Notably, in another case ExxonMobil appeared to argue the opposite of what it argues

here: that there is no uniquely federal interest in this type of case and a suit does not require

“‘the application of federal common law, merely because the conflict is not confined within the

boundaries of a single state.’” (See ECF No. 50-1 at 55–60) (citation omitted). Instead, it

asserted that “only suits by [states] implicating a sovereign interest in abating interstate

pollution give rise to federal common law.” (Id. at 58–60) (emphasis added).

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and national security, taken steps to promote fossil fuel production, and worked to

decrease reliance on foreign oil. The government has also worked with other nations to

craft a workable international framework for responding to global warming. This suit

purportedly challenges those decisions by requiring the court to delve into the thicket of

the “worldwide problem of global warming”— the solutions to which Defendants assert

for “sound reasons” should be “determined by our political branches, not by our

judiciary.” See CA II, 2018 WL 3109726, at *9.

Plaintiffs thus target global warming, and the transnational conduct that term

entails. (ECF No. 7 ¶¶ 125–38.) Defendants contend that the claims unavoidably

require adjudication of whether the benefits of fossil fuel use outweigh its costs—not

just in Plaintiffs’ jurisdictions, or even in Colorado, but on a global scale. They argue

that these claims do not arise out of state common law. Defendants further assert that

this is why similar lawsuits have been brought in federal court, under federal law, and

why, when those claims were dismissed, the plaintiffs made no effort to pursue their

claims in state courts. See, e.g., Am. Elec. Power Co., Inc. v. Connecticut (“AEP”), 564

U.S. 410 (2011); Kivalina v. ExxonMobil Corp. (“Kivalina”), 696 F.3d 849 (9th Cir. 2012).

Defendants thus contend that the court has f ederal question jurisdiction because

federal law creates the cause of action.

The Court first addresses the cases relied on by Defendants that address similar

claims involving injury from global warming, beginning its analysis with the Supreme

Court’s decision in AEP. The AEP plaintiffs brought suit in federal court against five

domestic emitters of carbon dioxide, alleging that by contributing to global warming,

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they had violated the federal common law of interstate nuisance, or, in the alternative,

state tort law. 564 U.S. at 418 (citation omitted). They brought both federal and state

claims, and asked for “a decree setting carbon-dioxide emission for each defendant.”

Id. The plaintiffs did not seek damages.

The Court in AEP stated what while there is no federal general common law,

there is an “emergence of a federal decisional law in areas of national concern”, the

“new” federal common law. 564 U.S. at 421 (internal quotation marks omitted). This

law “addresses ‘subjects within national legislative power where Congress has so

directed’ or where the basic scheme of the Constitution so demands.” Id. (citation

omitted). The Court found that environmental protection is “undoubtedly an area within

national legislative power, one in which federal courts may fill in statutory interstices,

and, if necessary, even fashion federal law.” Id. (internal quotation marks omitted). It

further stated that when the court “deal[s] with air and water in their ambient or

interstate aspects, there is federal common law.’” Id. (quoting Illinois v. City of

Milwaukee, 406 US. 91, 103 (1972)).

AEP also found that when Congress addresses a question previously governed

by federal common law, “‘the need for such an unusual exercise of law-making by

federal courts disappears.’” 564 U.S. at 423 (citation om itted). The test for whether

congressional legislation excludes the declaration of federal common law is “whether

the statute ‘speak[s] directly to [the] questions at issue.” Id. at 424 (citation omitted).

The Court concluded that “the Clean Air Act and the EPA actions it authoriz es displace

any federal common law right to seek abatement of carbon-dioxide emissions from

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fossil-fuel fired power plants,” i.e., the Clean Air Act spoke directly “to emissions of

carbon dioxide from the defendants’ plants.” Id. Since it found that federal common

law was displaced, AEP did not decide the scope of federal common law, or whether

the plaintiffs had stated a claim under it. Id. at 423 (describing the question as

“academic”). It also did not address the state law claims. Id. at 429.

In Kivalina, the plaintiffs alleged that massive greenhouse gas emissions by the

defendants resulted in global warming which, in turn, severely eroded the land where

the City of Kivalina sat and threatened it with imminent destruction. 696 F.3d at 853.

Relying on AEP, the Ninth Circuit found that the Clean Air Act displaced federal

common law nuisance claims for damages caused by global warming. Id. at 856. It

recognized that “federal common law includes the general subject of environmental law

and specifically includes ambient or interstate air and water pollution.” Id. at 855 (citing

City of Milwaukee, 406 US. at 103). Thus, Kivalina stated that “federal common law

can apply to transboundary pollution suits,” and noted that most often such suits are, as

in that case, founded on a theory of public nuisance. Id. The Kivalina court found that

the case was governed by AEP and the finding that Congress had “directly addressed

the issue of greenhouse gas commissions from stationary sources,” thereby displacing

federal common law. Id. at 856. The fact that the plaintiffs sought damages rather than

an abatement of emissions did not impact the analysis, according to Kivalina, because

“the type of remedy asserted is not relevant to the applicability of the doctrine of

displacement.” Id. at 857. The Kivalina court affirmed the district court’s dismissal of

plaintiffs’ claims. Id. at 858.

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Both AEP and Kivalina were brought in federal court and asserted federal law

claims. They did not address the viability of state claims involving climate change that

were removed to federal court, as is the case here. This issue was addressed by the

United States District Court for the Northern District of California in CA I and CA II. In

the CA cases, the Cities of Oakland and San Francisco asserted a state law public

nuisance claim against ExxonMobil and a number of other worldwide producers of fossil

fuels, asserting that the combustion of fossil fuels produced by the defendants had

increased atmospheric levels of carbon dioxide, causing a rise in sea levels with

resultant flooding in the cities. CA I, 2018 WL 1064293, at *1. Like the instant case,

the plaintiffs did not seek to impose liability for direct emissions of carbon dioxide.

Instead, they alleged “that—despite long-knowing that their products posed severe risks

to the global climate—defendants produced fossil fuels while simultaneously engaging

in large scale advertising and public relations campaigns to discredit scientific research

on global warming, to downplay the risks of global warming, and to portray fossil fuels

as environmentally responsible and essential to human well-being.” Id. The plaintiffs

sought an abatement fund to pay for infrastructure necessary to address rising sea

levels. Id.

CA I found that the plaintiffs’ state law “nuisance claims—which address the

national and international geophysical phenomenon of global warming—are necessarily

governed by federal common law,” citing AEP, City of Milwaukee, and Kivalina. CA I,

2018 WL 1064293, at *2–3. It stated that, as in those cases, “a unif orm standard of

decision is necessary to deal with the issues,” explaining:

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If ever a problem cried out for a uniform and comprehensive solution, it is the

geophysical problem described by the complaints, a problem centuries in the

making (and studying) with causes [including] the combustion of fossil fuels.

The range of consequences is likewise universal—warmer weather in some

places that may benefit agriculture but worse weather in others, . . . and—as

here specifically alleged—the melting of the ice caps, the rising of the

oceans, and the inevitable flooding of coastal lands. . . . [T]he scope of the

worldwide predicament demands the most comprehensive view available,

which in our American court system means our federal courts and our federal

common law. A patchwork of fifty different answers to the same fundamental

global issue would be unworkable.

Id. at *3.

The CA I court also found that federal common law applied despite the fact that

“plaintiffs assert a novel theory of liability,” i.e., against the sellers of a product rather

than direct dischargers of interstate pollutants. CA I, 2018 WL 1064293, at *3

(emphasis in original). Again, that is the situation in this case. The CA I court stated

that “the transboundary problem of global warming raises exactly the sort of federal

interests that necessitate a uniform solution,” which is no “ less true because plaintiffs’

theory mirrors the sort of state-law claims that are traditionally applied to products made

in other states and sold nationally.” Id. The court found, however, that federal common

law was not displaced by the Clean Air Act and the EPA as in AEP and Kivalina

because the plaintiffs there sought only to reach domestic conduct, whereas the

plaintiffs’ claims in CA I “attack behavior worldwide.” Id. at 4. It stated that those

“foreign emissions are outside of the EPA and Clean Air Acts’ reach.” Id. Nonetheless,

as the claims were based in federal law, the court found that federal jurisdiction existed

and denied the plaintiffs’ motions to remand. Id. at 5.

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In CA II, the court granted the defendants’ motion to dismiss. 325 F. Supp. 3d at

1019. It reaffirmed that the plaintiffs’ nuisance claims “must stand or fall under federal

common law,” including the state law claims. CA II, 325 F. Supp. 3d at 1024. It then

held that the claims must be dismissed because they ran counter to the presumption

against extraterritoriality and were “foreclosed by the need for federal courts to defer to

the legislative and executive branches when it comes to such international problems.”

Id. at 1024–25. The CA II court concluded that “[i]t may seem peculiar that an earlier

order refused to remand this action to state court on the ground that plaintiffs’ claims

were necessarily governed by federal law, while the current order concludes that federal

common law should not be extended to provide relief.” Id. at 1028. But it found “no

inconsistency,” as “[i]t remains proper for the scope of plaintiffs’ claims to be decided

under federal law, given the international reach” of the claims. Id. at 1028–29.

The City of New York case followed the rationale of CA I and CA II, and

dismissed New York City’s claims of public and private nuisance and trespass against

multinational oil and gas companies related to the sale and production of fossil fuels.

325 F. Supp. 3d at 471–76. On a m otion to dismiss, the court found that the City’s

claims were governed by federal common law, not state tort law, because they were

“based on the ‘transboundary’ emission of greenhouse gases” which “require a uniform

standard of decision.” Id. at 472 (citing CA I, 2018 WL 10649293, at *3). It also found

that to the extent the claims involved domestic greenhouse emissions, the Clean Air Act

displaced the federal common law claims pursuant to AEP. Id. To the extent the

claims implicated foreign greenhouse emissions, they were “barred by the presumption

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against extraterritoriality and the need for judicial caution in the face of ‘serious foreign

policy consequences.’” Id. at 475 (citation omitted). The court in City of New York did

not address federal jurisdiction or removal jurisdiction.

In summary, the above cases suggest that claims related to the emission or sale,

production, or manufacture of fossil fuels are governed by federal common law, even if

they are asserted under state law, but may displaced by the Clean Air Act and the EPA.

At first blush these cases appear to support Defendants’ assertion that Plaintiffs’ claims

arise under federal law and should be adjudicated in federal court, particularly given the

international scope of global warming that is at issue.

However, the Court finds that AEP and Kivalina are not dispositive. Moreover,

while the CA I decision has a certain logic, the Court ultimately finds that it is not

persuasive. Instead, the Court finds that federal jurisdiction does not exist under the

creation prong of federal question jurisdiction, consistent with San Mateo and the two

most recent cases that have addressed the applicable issues, as explained below.

The Court first notes that in AEP and Kivalina, the plaintiffs expressly invoked

federal claims, and removal was neither implicated nor discussed. Moreover, both

cases addressed interstate emissions, which are not at issue here. Finally, the cases

did not address whether the state law claims were governed by federal common law.

The AEP Court explained that “the availability vel non of a state lawsuit depend[ed],

inter alia, on the preemptive effect of the federal Act,” and left the matter open for

consideration on remand. 564 U.S. at 429. Thus, “[f]ar from holding (as the

defendants bravely assert) that state claims related to global warming are superseded

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by federal common law, the Supreme Court [in AIG] noted that the question of whether

such state law claims survived would depend on whether they are preempted by the

federal statute that had displaced federal common law (a question the Court did not

resolve).” San Mateo, 294 F. Supp. 3d at 937.

Moreover, while AEP found that federal common law governs suits brought by a

state to enjoin emitters of pollution in another state, it noted that the Court had nev er

decided whether federal common law governs similar claims to abate out-of-state

pollution brought by “political subdivisions” of a State, such as in this case. 564 U.S. at

421–22. Thus, AEP does not address whether state law claims, such as those

asserted in this case and brought by political subdivisions of a state, arise under federal

law for purposes of removal jurisdiction. The Ninth Circuit in Kivalina also did not

address this issue.

The Court disagrees with the finding in CA I that removal jurisdiction is proper

because the case arises under federal common law. CA I found that the well-pleaded

complaint rule did not apply and that federal jurisdiction exists “if the claims necessarily

arise under federal common law. 2018 WL 1064293, at *5. It based this finding on a

citation to a single Ninth Circuit case, Wayne v. DHL Worldwide Express, 294 F.3d

1179, 1184–85 (9th Cir. 2002). Id. Wayne, however, recognized the well-pleaded

complaint rule, and did not address whether a claim that arises under federal common

law is an exception to the rule. 294 F.3d at 1183-85. Moreov er, Wayne cited City of

Milwaukee in support of its finding that federal jurisdiction would exist if the claims

arose under federal law. City of Milwaukee was, however, filed in federal court and

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invoked federal jurisdiction such that the well-pleaded complaint rule was not at issue.

Thus, CA I failed to discuss or note the significance of the difference between

removal jurisdiction, which implicates the well pleaded complaint rule, and federal

jurisdiction that is invoked at the outset such as in AEP and Kivalina. This distinction

was recognized by the recent decision in Baltimore, which involved similar state law

claims as to climate change that were removed to federal court. 2019 WL 2436848, at

*1. Baltimore found CA I was “well stated and presents an appealing logic,” but

disagreed with it because the court looked beyond the face of the plaintiffs’ well

pleaded complaint. Id. at *7–8. It also noted that CA I “did not find that the plaintiffs’

state law claims fell within either of the carefully delineated exceptions to the wellpleaded complaint rule—i.e., that they were completely preempted by federal law or

necessarily raised substantial, disputed issues of federal law.” Id. at *8. Baltimore

found that the well-pleaded complaint rule was plainly not satisfied in that case because

the City did not plead any claims under federal law. Id. at *6.

The Well-Pleaded Complaint Rule as Applied to Plaintiffs’ Claims

In a case that is removed to federal court, the presence or absence of federalquestion jurisdiction is governed by the well-pleaded complaint rule, which gives rise to

federal jurisdiction only when a federal question is presented on the face of the

complaint. Caterpillar, 482 U.S. at 392. The Tenth Circuit has held that to support

removal jurisdiction, “the required federal right or immunity must be an essential

element of the plaintiff’s cause of action, and . . . the federal controversy must be

disclosed upon the face of the complaint, unaided by the answer or by the petition for

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removal.” Fajen, 683 F.2d at 333 (citation and internal quotation marks omitted).

In this case, the Complaint on its face pleads only state law claims and issues,

and no federal law or issue is raised in the allegations. While Defendants argue that

the Complaint raises inherently federal questions about energy, the environment, and

national security, removal is not appropriate under the well-pleaded complaint rule

because these federal issues are not raised or at issue in Plaintiffs’ claims. A

defendant cannot transform the action into one arising under federal law, thereby

selecting the forum in which the claim will be litigated, as to do so would contradict the

well-pleaded complaint rule. Caterpillar, 489 U.S. at 399. Defendants, “in essence,

want the Court to peek beneath the purported state-law facade of the State’s public

nuisance claim, see the claim for what it would need to be to have a chance at viability,

and convert it to that (i.e., into a claim based on federal common law) for purposes of

the present jurisdiction analysis.” State of Rhode Island, 2019 WL 3282007, at *2.

That court found nothing in the artful-pleading doctrine which sanctioned the

defendants’ desired outcome. Id.

Defendants cite no controlling authority for the proposition that removal may be

based on the existence of an unplead federal common law claim—much less based on

one that is questionable and not settled under controlling law. Defendants rely on the

Supreme Court’s holding that the statutory grant of jurisdiction over cases arising under

the laws of the United States “will support claims founded upon federal common law.”

Nat’l l Farmers Union Ins. Cos., 471 U.S. at 850–53. However, the plaintiffs invoked

federal jurisdiction in that case. The same is true in other cases cited by Defendants,

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including City of Milwaukee and Boyle, both of which were filed by plaintiffs in federal

court and invoked federal jurisdiction. See, e.g., State of Rhode Island, 2019 WL

3282007, at *2 n. 2 (Boyle “does not help Defendants” as it “was not a removal case,

but rather one brought in diversity”); Arnold by and Through Arnold v. Blue Cross &

Blue Shield, 973 F. Supp. 726, 737 (S.D. Tex. 1997) (Boyle did not address removal

jurisdiction, nor did it modify the Caterpillar rule that federal preemption of state law,

even when asserted as an inevitable defense to a . . . state law claim, does not provide

a basis for removal”), overruled on other grounds, Winters v. Diamond Shamrock

Chem. Co., 149 F.3d 387 (5th Cir. 1997). Removal based on federal common law

being implicated by state claims was not discussed or sanctioned in Defendants’ cases.

A thoughtful analysis of the limits that removal jurisdiction poses on federal

question jurisdiction was conducted in E. States Health & Welfare Fund v. Philip Morris,

Inc., 11 F. Supp. 2d 384 (S.D.N.Y. 1998). That court noted that removal jurisdiction is

“a somewhat different animal than original federal question jurisdiction—i.e., where the

plaintiff files originally in federal court.” Id. at 389. It explained:

When a plaintiff files in federal court, there is no clash between the principle

that the plaintiff can control the complaint—and therefore, the choice

between state and federal forums—and the principle that federal courts have

jurisdiction over federal claims; the plaintiff, after all, by filing in a federal

forum is asserting reliance upon both principles, and the only question a

defendant can raise is whether plaintiff has a federal claim.

On the other hand, when a plaintiff files in state court and purports to only

raise state law claims, for the federal court to assert jurisdiction it has to look

beyond the complaint and partially recharacterize the plaintiffs’

claims—which places the assertion of jurisdiction directly at odds with the

principle of plaintiff as the master of the complaint. It is for this reason that

removal jurisdiction must be viewed with a somewhat more skeptical eye; the

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fact that a plaintiff in one case chooses to bring a claim as a federal one and

thus invoke federal jurisdiction does not mean that federal removal

jurisdiction will lie in an identical case if the plaintiff chooses not to file a

federal claim.

Id. at 389–90. The Court agrees with this well-reasoned analysis.

The cases cited by Defendants from other jurisdictions that found removal of

state law claims to federal court was appropriate because the claims arose under or

were necessarily governed by federal common law are not persuasive. See Wayne,

294 F.3d at 1184–85; Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 926 (5th Cir.

1997); CA I, 2018 WL 1064293, at *2; Blanco v. Fed. Express Corp., No. 16-561, 2016

WL 4921437, at *2–3 (W .D. Okla. Sept. 15, 2016). Those cases contradict Caterpillar

and the tenets of the well-pleaded complaint rule. They also fail to cite any Supreme

Court or other controlling authority authorizing removal based on state law claims

implicating federal common law. While many of those cases relied on City of

Milwaukee as authority for their holdings, the plaintiff in that case invoked federal

common law and federal jurisdiction. City of Milwaukee does not support a finding that

a defendant can create federal jurisdiction by re-characterizing a state claim.

Ordinary Preemption

Ultimately, Defendants’ argument that Plaintiffs’ state law claims are governed by

federal common law appears to be a matter of ordinary preemption which—in contrast

to complete preemption, which is discussed in Section III.B, infra,–would not provide a

basis for federal jurisdiction. See Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1352

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(11th Cir. 2003) (cited with approval in Devon Energy, 693 F.3d at 1203). 2 “Ordinary

preemption ‘regulates the interplay between federal and state laws when they conflict or

appear to conflict . . . .’” Baltimore, 2019 WL 2436848, at *6 (citation omitted). The

distinction between ordinary and complete preemption “is important because if

complete preemption does not apply, but the plaintiff’s state law claim is arguably

preempted . . . the district court, being without removal jurisdiction, cannot resolve the

dispute regarding preemption.” Colbert v. Union Pac. R. Co., 485 F. Supp. 2d 1236,

1243 (D. Kan. 2007) (internal quotation marks omitted).

When ordinary preemption applies, the federal court “‘lacks the power to do

anything other than remand to the state court where the preemption issue can be

addressed and resolved.’” Colbert, 485 S. Supp. 2d at 1243 (citation om itted).

Ordinary preemption is thus a defense to the complaint, and does not render a statelaw claim removable to federal court. Hansen v. Harper Excavating, Inc., 641 F.3d

1216, 1221 (10th Cir. 2011); see also Caterpillar, 482 U.S. at 392–93 (under the wellpleaded complaint rule, courts must ignore potential defenses such as preemption).

Thus, the fact that a defendant asserts that federal common law is applicable

“does not mean the plaintiffs’ state law claims ‘arise under’ federal law for purposes of

jurisdictional purposes.” E. States Health, 11 F. Supp. 2d at 394. As that court

explained, “[c]ouch it as they will in ‘arising under’ language, the defendants fail to

explain why their assertion that federal common law governs . . . is not simply a

The three forms of preemption that are frequently discussed in judicial opinions—

express preemption, conflict preemption, and field preemption—are characterized as ordinary

preemption. Devon Energy, 693 F.3d at 1203 n. 4.

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preemption defense which, while it may very well be a winning argument on a motion to

dismiss in the state court, will not support removal jurisdiction.” Id.

This finding is consistent with the decision in Baltimore. The court there found

the defendants’ assertion that federal question jurisdiction existed because the City’s

nuisance claim “is in fact ‘governed by federal common law’” was “‘a cleverly veiled

[ordinary] preemption argument.” Baltimore, 2019 WL 2436848, at *6 (citing Boyle, 487

U.S. at 504). As the Baltimore defendants’ argument amounted to an ordinary

preemption defense, it did “not allow the Court to treat the City’s public nuisance claim

as if it had been pleaded under federal law for jurisdictional purposes.” Id. The court

also found that the CA I ruling was “at odds with the firmly established principle that

ordinary preemption does not give rise to federal question jurisdiction.” Id. at *8.

Because an ordinary preemption defense does not support remand, Defendants’

federal common law argument could only prevail under the doctrine of complete

preemption. Unlike ordinary preemption, complete preemption “is so ‘extraordinary’ that

it ‘converts an ordinary state law common-law complaint into one stating a federal claim

for purposes of the well-pleaded complaint rule.’” Caterpillar, 482 U.S. at 393 (citation

omitted).

Whether Plaintiffs’ Right to Relief Necessarily Depends on Resolution of

a Substantial Question of Federal Law (Grable Jurisdiction)

Defendants also argue that federal jurisdiction exists under the second prong of

the “arising under” jurisdiction, as Plaintiffs’ claims necessarily depend on a resolution

of a substantial question of federal law under Grable. They contend that the Complaint

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raises federal issues under Grable “because it seeks to have a court determine for the

entire United States, as well as Canada and other foreign actors, the appropriate

balance between the production, sale, and use of fossil fuels and addressing the risks

of climate change.” (ECF No. 1 ¶ 37.) Such an inquiry, according to Defendants,

“necessarily entails the resolution of substantial federal questions concerning important

federal regulations, contracting, and diplomacy.” (Id.) Thus, they assert that the “statelaw claim[s] necessarily raise a stated federal issue, actually disputed and substantial,

which a federal forum may entertain without disturbing . . . federal and state judicial

responsibilities.” Grable, 545 U.S. at 313–14.

The substantial question doctrine “captures the commonsense notion that a

federal court ought to be able to hear claims recognized under state law that

nonetheless turn on substantial questions of federal law, and thus justify resort to the

experience, solicitude, and hope of uniformity that a federal forum offers on federal

issues.” Grable, 545 U.S. at 312. To invoke this branch of federal question jurisdiction,

the Defendants must show that “a federal issue is: (1) necessarily raised, (2) actually

disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting

the federal-state balance approved by Congress.” Gunn, 568 U.S. at 258.

Jurisdiction under the substantial question doctrine “is exceedingly narrow—a

special and small category of cases.” Firstenberg, 696 F.3d at 1023 (citation and

internal quotation marks omitted). “[M]ere need to apply federal law in a state-law claim

will not suffice to open the ‘arising under’ door” of jurisdiction. Grable, 545 U.S. at 313.

Instead, “‘federal jurisdiction demands not only on a contested federal issue, but a

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substantial one, indicating a serious federal interest in claiming the advantages thought

to be inherent in a federal forum.’” Id. (citation omitted).

Necessarily Raised

The Court finds that the first prong of substantial question jurisdiction is not met

because Plaintiffs’ claims do not necessarily raise or depend on issues of federal law.

The discussion of this issue in Baltimore is instructive. In that case, the defendants

contended that Grable jurisdiction existed because the claims raised a host of federal

issues. Baltimore, 2019 WL 2436848, at *9. For example, the defendants asserted

that the claims “‘intrude upon both foreign policy and carefully balanced regulatory

considerations at the national level, including the foreign affairs doctrine.’” Id. (citation

omitted). They also asserted that the claims “‘have a significant impact on foreign

affairs,’ ‘require federal-law-based cost-benefit analyses,’” and “‘amount to a collateral

attack on federal regulatory oversight of energy and the environment.’” Id. (citation

omitted). These allegations are almost identical to what Defendants assert in this case.

(See ECF No. 48 at 22—“Plaintiffs’ claims gravely impact foreign affairs”;

24—“Plaintiffs’ claims require reassessment of cost-benefit analyses committed to, and

already conducted by the Government”; 26—the claims “are a collateral attack on

federal regulatory oversight of energy and the environment”).

Baltimore found that these issues were not “‘necessarily raised’ by the City’s

claims, as required for Grable jurisdiction.” 2019 WL 2436848, at *9–10. As to the

alleged significant effect on foreign affairs, the court agreed that “[c]limate change is

certainly a matter of serious national and international concern.” Id. at *10. But it found

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that defendants did “not actually identify any foreign policy that was implicated by the

City's claims, much less one that is necessarily raised.” Id. “They merely point out that

climate change ‘has been the subject of international negotiations for decades.’” Id.

Baltimore found that “defendants’ generalized references to foreign policy wholly fail to

demonstrate that a federal question is ‘essential to resolving’ the City’s state law

claims.” Id. (citation omitted).

The Court finds the analysis in Baltimore equally persuasive as to Defendants’

reliance on foreign affairs in this case, as they point to no specific foreign policy that is

essential to resolving the Plaintiffs’ claims. Instead, they cite only generally to nonbinding, international agreements that do not apply to private parties, and do not

explain how this case could supplant the structure of such foreign policy arrangements.

Certainly Defendants have not shown that any interpretation of foreign policy is an

essential element of Plaintiffs’ claims. Gilmore v. Weatherford, 694 F.3d 1160, 1173

(10th Cir. 2012).

The CA I and City of New York decisions do not support Defendants’ argument

that the foreign policy issues raise substantial questions of law. Defendants note, for

example, that the City of New York court dismissed the claims there on the merits “for

severely infring[ing] upon the foreign-policy decisions that are squarely within the

purview of the political branches of the U.S. Government.” 325 F. Supp. 3d at 476. But

as Defendants have acknowledged, at least at this stage of these proceedings, the

Court is not considering the merits of Plaintiffs’ claims or whether they would survive a

motion to dismiss, only whether there is a basis for federal jurisdiction. (See ECF No. 1

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¶ 20.) While CA I and City of New York may ultimately be relevant to whether Plaintiffs’

claims should be dismissed, they do not provide a basis for Grable jurisdiction. See

Becker v. Ute Indian Tribe of the Uintah and Ouray Reservation , 770 F.3d 944, 948

(10th Cir. 2014) (federal law that is alleged as a barrier to the success of a state law

claim “is not a sufficient basis from which to conclude that the questions are

‘necessarily raised’”) (citation omitted).

Baltimore also rejected cost-benefit analysis and collateral attack arguments as a

basis for Grable jurisdiction, finding that they “miss[ ] the mark.” 2019 WL 2436848, at

*10. This is because the nuisance claims were, as here, based on the “extraction,

production, promotion, and sale of fossil fuel products without warning consumers and

the public of their known risks”, and did “not rely on any federal statutes or regulations”

or violations thereof. Id. “Although federal laws and regulations governing energy

production and air pollution may supply potential defenses,” the court found that federal

law was “plainly not an element” of the City’s state law nuisance claims. Id.

The same analysis surely applies here. Plaintiffs’ state law claims do not have

as an element any aspect of federal law or regulations. Plaintiffs do not allege that any

federal regulation or decision is unlawful, or a factor in their claims, nor are they asking

the Court to consider whether the government’s decisions to permit fossil fuel use and

sale are appropriate.

As to jurisdiction under Grable, the Baltimore court concluded that, “[t]o be sure,

there are federal interests in addressing climate change.” 2019 WL 2436848, at *11

(emphasis in original). “Defendants have failed to establish, however, that a federal

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issue is a ‘necessary element’ of the City’s state law claims.” Id. (citation omitted)

(emphasis in original). Thus, even without considering the remaining requirements for

Grable jurisdiction, the Baltimore court rejected the defendants’ assertion that the case

fell within “the ‘special and small category’ of cases in which federal question

jurisdiction exists over a state law claim. Id. (citation omitted).

Two other courts have recently arrived at the same conclusion. The court in

State of Rhode Island found that the defendants had not shown that federal law was

“‘an element and an essential one, of the [State]’s cause[s] of action.’” 2019 WL

3282007, at *4 (citation omitted). Instead, the court noted that the State’s claim s “are

thoroughly state-law claims”, and “[t]he rights, duties, and rules of decision implicated

by the complaint are all supplied by state law, without reference to anything federal.” Id.

The court concluded:

By mentioning foreign affairs, federal regulations, and the navigable waters

of the United States, Defendants seek to raise issues that they may press in

the course of this litigation, but that are not perforce presented by the State's

claims. . . .These are, if anything, premature defenses, which even if

ultimately decisive, cannot support removal.

Id. (internal citations omitted).

Similarly, the court in San Mateo found that the defendants had not pointed to a

specific issue of federal law that necessarily had to be resolved to adjudicate the state

law claims. 294 F. Supp. 3d at 938. Instead, “the def endants mostly gesture to federal

law and federal concerns in a generalized way.” Id. The court found that “[t]he mere

potential for foreign policy implications”, the “mere existence of a federal regulatory

regime”, or the possibility that the claims involved a weighing of costs and benefits did

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not raise the kind of actually disputed, substantial federal issue necessary for Grable

jurisdiction. Id. San Mateo concluded, “[o]n the defendants’ theory, many (if not all)

state tort claims that involve the balancing of interests and are brought against federally

regulated entities would be removable”, and “Grable does not sweep so broadly.” Id.

The Court agrees with the well-reasoned analyses in Baltimore, State of Rhode

Island, and San Mateo, and adopts the reasoning of those decisions. To the extent

Defendants raise other issues not addressed in those cases, the Court f inds that they

also are not necessarily raised in Plaintiffs’ Complaint.

Defendants here assert that Plaintiffs’ claims raise a significant issue under

Grable because they attack the decision of the federal government to enter into

contracts with Defendant ExxonMobil to develop and sell fossil fuels. (ECF No. 1 ¶ 43.)

Further, they argue that the Complaint seeks to deprive the federal government of a

mechanism for carrying out vital governmental functions, and frustrates federal

objectives. (Id. ¶ 44.)

Plaintiffs’ claims, however, assert no rights under the contracts referenced by

Defendants. Nor do they challenge the contracts’ validity, or require a court to interpret

their meaning or importance. The Complaint does not even mention the contracts.

Defendants’ argument appears to be based solely on their unsupported speculation

about the potential impact that Plaintiffs’ success would have on the government’s

ability to continue purchasing fossil fuels. (Id. ¶¶ 43–44.) Even if Defendants’

speculation was well-founded, this would be relevant only to the substantiality prong of

the Grable analysis. See Bennett v. Sw. Airlines Co., 484 F.3d 907, 910 (10th Cir.

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2007). Defendants have not established the first requirement—that the issue is

necessarily raised by the Plaintiffs.

Substantiality

The Court also finds that the second prong, substantiality, is not met. To

determine substantiality, courts “look[] to whether the federal law issue is central to the

case.” Gilmore, 694 F.3d at 1175. Courts distinguish “between ‘a nearly pure issue of

law’ that would govern ‘numerous’ cases and issues that are ‘fact-bound and situationspecific.’” Id. at 1174 (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547

U.S. 677, 700–11 (2006)). W hen a case “‘involve[s] substantial questions of state as

well as federal law,’ this factor weighs against asserting federal jurisdiction.” Id. at 1175

(citation omitted).

The Court finds that the issues raised by Defendants are not central to Plaintiffs’

claims, and the claims are “rife with legal and factual issues that are not related” to the

federal issues. See Stark-Romero v. Nat’l R.R. Passenger Co. (Amtrak), No. CIV-09295, 2010 WL 11602777, at *8 (D.N.M. Mar. 31, 2010). This case is quite different

from those where jurisdiction was found under the substantial question prong of

jurisdiction. For example, in Grable, “the meaning of the federal statute . . . appear[ed]

to be the only legal or factual issue contested in the case.” 545 U.S. at 315. Sim ilarly,

in a Tenth Circuit case finding jurisdiction under Grable, “construction of the federal

land grant” at issue “appear[ed] to be the only legal or factual issue contested in the

case.” Nicodemus v. Union Pac. Corp., 440 F.3d 1227, 1236 (10th Cir. 2006). Here, it

is plainly apparent that the federal issues raised by Defendants are not the only legal or

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factual issue contested in the case. Plaintiffs’ claims also do not involve a discrete legal

question, and are “fact-bound and situation-specific,” unlike Grable. See Empire

Healthchoice Assurance, 547 U.S. at 701; Bennett, 484 F.3d at 910–11. Finally, the

case does not involve a state-law cause of action that “is ‘brought to enforce’ a duty

created by [a federal statute],” where “the claim’s very success depends on giving effect

to a federal requirement.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning, ___

U.S. ___, 136 S. Ct. 1562, 1570 (2016).

The cases relied upon by Defendants are distinguishable, as Plaintiffs have

shown in their briefing. For example, while Defendants cite Crosby v. National Foreign

Trade Council, 530 U.S. 363 (2000), that case involved preemption under the

Supremacy Clause because of a conflict between a state law and Congress’s

imposition of sanctions. It did not address Grable jurisdiction, and thus does not

support Defendants’ assertion that it is “irrelevant” to the jurisdictional issue that the

“foreign agreements are not ‘essential elements of any claim.’” (ECF No. 48 at 23.)

Based on the foregoing, the Court finds that federal jurisdiction does not exist

under the second prong of the “arising under” jurisdiction, because Plaintiffs’ claims do

not necessarily depend on a resolution of a substantial question of federal law. As

Defendants have not met the first two prongs of the test for such jurisdiction under

Grable, the Court need not address the remaining prongs.

Jurisdiction Through Complete Preemption

Defendants also rely on the doctrine of complete preemption to authorize

removal. Defendants argue that Plaintiffs’ claims are completely preempted by the

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government’s foreign affairs power and the Clean Air Act, which they claim govern the

United States’ participation in worldwide climate policy efforts and national regulation of

GHG emissions.

The complete preemption doctrine is an “independent corollary’” to the wellpleaded complaint rule. Caterpillar, 482 U.S. at 393. “Once an area of state law has

been completely pre-empted, any claim purportedly based on that pre-empted claim is

considered, from its inception, a federal claim, and therefore arises under federal law.”

Id. The complete preemption exception to the well-pleaded complaint rule is “quite

rare,” Dutcher, 733 F.3d at 985, representing “extraordinary pre-emptive power.” Metro.

Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987). The Supreme Court and the Tenth

Circuit have only recognized statutes as the basis for complete preemption. See, e.g.,

Caterpillar, 482 U.S. at 393 (the doctrine “is applied primarily in cases raising claims

pre-empted by § 301 of the” Labor Management Relations Act (“LMRA”)); Devon

Energy, 693 F.3d at 1204–05 (complete preemption is “so rare that the Supreme Court

has recognized compete preemption in only three areas: § 301 of the [LMRA], § 502 of

[the Employee Retirement Income Security Act],” and actions for usery under the

National Bank Act).

Complete preemption is ultimately a matter of Congressional intent. Courts

must decipher whether Congress intended a statute to provide the exclusive cause of

action. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 9 (2003); Metro. Life Ins.

Co., 481 U.S. at 66 (“the touchstone of the federal district court’s removal jurisdiction is

not the ‘obviousness’ of the pre-emption defense, but the intent of Congress”). If

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Congress intends preemption “completely to displace ordinarily applicable state law,

and to confer federal jurisdiction thereby, it may be expected to make that atypical

intention clear.” Empire Healthchoice Assurance, 547 U.S. at 698.

“Thus, a state claim may be removed to federal courts in only two

circumstances”: “when Congress expressly so provides,. . . or when a federal statute

wholly displaces the state law cause of action through complete pre-emption.”

Beneficial Nat’l Bank, 539 U.S. at 8. The court must ask, first, whether the federal

question at issue preempts the state law relied on by the plaintiff and, second, whether

Congress intended to allow removal in such a case, as manifested by the provision of a

federal cause of action. Devon Energy, 693 F.3d at 1205.

Complete Preemption Based on Emissions Standards

Defendants argue that Congress allows parties to seek stricter nationwide

emissions standards by petitioning the EPA, which is the exclusive means by which a

party can seek such relief. See 42 U.S.C. § 7426(b). They assert that Plaintiffs’ claims

go far beyond the authority that the Clean Air Act reserves to states to regulate certain

emissions within their own borders; Plaintiffs seek instead to impose liability for global

emissions. Because these claims do not duplicate, supplement, or supplant federal

law, Aetna Health, Inc. v. Davila, 542 U.S. 200, 209 (2004), Defendants argue they are

completely preempted.

The Court rejects Defendants’ argument. First, Defendants mischaracterize

Plaintiffs’ claims. Plaintiffs do not challenge or seek to impose federal emissions

regulations, and do not seek to impose liability on emitters. They are also not seeking

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review of EPA regulatory actions related to GHGs, even those emissions created by the

burning of Defendants’ products, and are not seeking injunctive relief. Plaintiffs sue for

harms caused by Defendants’ sale of fossil fuels. The Clean Air Act is silent on that

issue; it does not remedy Plaintiffs’ harms or address Defendants’ conduct. And neither

EPA action, nor a cause of action against EPA, could provide the compensation

Plaintiffs seek for the injuries suffered as a result of Defendants’ actions.

For a statute to form the basis for complete preemption, it must provide a

“replacement cause of action” that “substitute[s]” for the state cause of action.

Schmeling v. NORDAM, 97 F.3d 1336, 1342–43 (10th Cir. 1996). “[T ]he federal

remedy at issue must vindicate the same basic right or interest that would otherwise be

vindicated under state law.” Devon Energy, 693 F.3d at 1207. The Clean Air Act

provides no federal cause of action for damages, let alone one by a plaintiff claiming

economic losses against a private defendant for tortious conduct. Moreover, the Clean

Air Act expressly preserves many state common law causes of action, including tort

actions for damages. See 42 U.S.C. § 7604(e) (“Nothing in this section shall restrict

any right . . . under any statute or common law to seek enforcement of any emission

standard or limitation or to seek any other relief”). From this, it is apparent that

Congress did not intend the Act to provide exclusive remedies in these circumstances,

or to be a basis for removal under the complete preemption doctrine.

To the extent Defendants rely on AEP, the Supreme Court there held only that

the Clean Air Act displaced federal common law nuisance action related to climate

change; it did not review whether the Clean Air Act would preempt state nuisance law.

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564 U.S. at 429. In fact, the Court stated that “[n]one of the parties have briefed

preemption or otherwise addressed the availability of a claim under state nuisance law,”

and the Court thus left “the matter open for consideration” by the state court on remand.

Id. Every court that has considered complete preemption in this type of climate change

case has rejected it, including the Baltimore, State of Rhode Island, and San Mateo

courts.

In Baltimore, the court stated that while the Clean Air Act provides for private

enforcement in certain situations, there was “an absence of any indication that

Congress intended for these causes of action . . . to be the exclusive remedy for injuries

stemming from air pollution.” 2019 WL 2436848, at *13. To the contrary, it noted that

the Clean Air Act “contains a savings clause that specifically preserves other causes of

action.” Id.

Similarly, the State of Rhode Island court stated, “statutes that have been found

to completely preempt state-law causes of action . . . all do two things: They ‘provide[]

the exclusive cause of action for the claim asserted and also set forth procedures and

remedies governing that cause of action.’” 2019 WL 3282007, at *3 (citation omitted).

The court found that the defendants failed to show that the Clean Air Act does these

things, and stated that “[a]s far as the Court can tell, the [Act] authorizes nothing like the

State’s claims, much less to the exclusion of those sounding in state law.” Id. Further,

it noted that the Act “itself says that controlling air pollution is ‘the primary responsibility

of States and local governments,’” and that the Act has a savings clause for citizen

suits. Id. at *3–4 (citation omitted). The court concluded:

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A statute that goes so far out of its way to preserve state prerogatives cannot

be said to be an expression of Congress’s ‘extraordinary pre-emptive power’

to convert state-law claims into federal-law claims. Metro. Life Ins. Co., 481

U.S. at 65. No court has so held, and neither will this one.

Id. at *4.

Finally, the San Mateo court noted that the defendants did “not point to any

applicable statutory provision that involves complete preemption.” 294 F. Supp. 3d at

938. To the contrary, the Clean Air Act and the Clean W ater Act both contain savings

clauses that preserve state causes of action and suggest that Congress did not intend

the federal causes of action under those statutes ‘to be exclusive.’” Id. (citations

omitted).

Other courts have held similarly, rejecting federal jurisdiction on the basis of

complete preemption of state law claims by the Clean Air Act. The United States

District Court for the Southern District of New York held that the Clean Air Act did not

completely preempt the plaintiffs’ state law claims for temporary nuisance, trespass,

and negligence arising from alleged contamination from a steel mill, and thus did not

provide a basis for federal jurisdiction. Keltner v. SunCoke Energy, Inc., 2015 WL

3400234, at *4–5 (S.D. Ill. May 26, 2015). Similarly, the Northern District of Alabama

found that federal jurisdiction did not exist because the Clean Air Act did not completely

preempt the plaintiff’s state law claims arising out of the operation of a coke plant.

Morrison v. Drummond Co., 2013 WL 1345721, at *3–4 (N.D. Ala. Mar. 23, 2015). See

also Cerny v. Marathon Oil Corp., 2013 WL 5560483, at *3–8 (W.D. Tex. Oct. 7, 2013)

(complete preemption did not apply to the plaintiffs’ state law claims arising from the

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defendants’ oil field operations so as to create federal jurisdiction).

While Defendants argue that Plaintiffs are attempting to do indirectly what they

could not do directly, i.e., “regulate the conduct of out-of-state sources,” Int’l Paper Co.

v. Oulette, 479 U.S. 481, 495 (1987), that is not an accurate characteriz ation of the

Plaintiffs’ claims. Plaintiffs do not seek to regulate the conduct of the Defendants or

their emissions, nor do they seek injunctive relief to induce Defendants to take action to

reduce emissions. Defendants also rely on Oulette in arguing that suits such as this

seeking damages, whether punitive or compensatory, can compel producers to “adopt

different or additional means of pollution control” than those contemplated by

Congress’s regulatory scheme. 479 U.S. at 498 n.19. For these reasons, Def endants

assert that the Supreme Court recognized in Oulette that damages claims against

producers of interstate products would be “irreconcilable” with the Clean Water Act

(which Defendants analogize to the Clean Air Act), and the uniquely federal interests

involved in regulating interstate emissions. Id.

Oulette appears to involve only ordinary preemption, however, as there is no

discussion of complete preemption.3 The same is true of another case relied on by

Defendants, North Carolina v. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010).

Indeed, the Fourth Circuit stated that it “need not hold f latly that Congress has entirely

preempted the field of emissions regulation.” Id. at 302. Moreover, Oulette allowed

state law claims based on the law of the source state under the saving clause, since the

“Complete preemption is a term of art for an exception to the well-pleaded complaint

rule.” Meyer v. Conlon, 162 F.3d 1264, 1268 n. 2 (10th Cir. 1998). The Tenth Circuit has held

that the doctrines of ordinary and complete preemption are not fungible. Id.

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Clean Water Act expressly allows source states to enact more stringent standards. 479

U.S. at 498–99.

Here, Defendants have not cited to any portion of the Clean Air Act or other

statute that regulates the conduct at issue or allows states to enact more stringent

regulations, such that similar restrictions on application of state law would apply. And

Plaintiffs note that there no federal programs that govern or dictate how much fossil fuel

Defendants produce and sell, or whether they can mislead the public when doing do.

Plaintiffs assert that the EPA does not determine how much fossil fuel is sold in the

United States or how it is marketed, nor does it issue permits to companies that market

or sell fossil fuels. Rather, the EPA regulates sources that emit pollution and sets

emission “floors,” which states can exceed. See 42 U.S.C. § 7416. Defendants have

not shown that the conduct alleged in this case conflicts with any of those efforts.

Plaintiffs’ claims also do not relate to or impact Defendants’ emissions, and the

claims for monetary relief presents no danger of inconsistent state (or state and federal)

emission standards. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 489 n. 7 (2008)

(“private claims for economic injury do not threaten similar interference with federal

regulatory goals,” unlike cases where nuisance claims seeking injunctive relief

amounted to arguments for discharge standards different that those provided by

statute). In any event, the issues raised by Defendants need to be resolved in

connection with an ordinary preemption defense, a matter that does not give rise to

federal jurisdiction.

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Complete Preemption Based on the Foreign Affairs Doctrine

Defendants also argue that complete preemption is appropriate based on the

foreign affairs doctrine. They assert that litigating inherently transnational activities

intrudes on the government’s foreign affairs power. See Am. Ins. Assoc. v. Garamendi,

539 U.S. 396, 418 (2003) (“[S]tate action with more than incidental effect on foreign

affairs is preempted, even absent any affirmative federal activity in the subject area of

the state [action], and hence without any showing of conflict.”).

Defendants also cite California v. GMC, 2007 WL 2726871, at *14 (N.D. Cal.

Sept. 17, 2007) (dismissing claims where the government “ha[d] made foreign policy

determinations regarding the [U.S.’s] role in the international concern about global

warming,” and stating, a “global warming nuisance tort would have an inextricable effect

on . . . foreign policy”); CA II, 2018 WL 3109726, at *7 (“[n]uisance suits in various

United States judicial districts regarding conduct worldwide are far less likely to solve

the problem and, indeed, could interfere with reaching a worldwide consensus.”); and

New York City, 2018 WL 3475470, at *6 (“[T]he City’s claims are barred by the

presumption against extraterritoriality and the need for judicial caution in the face of

serious foreign policy consequences.”). Complete preemption is implicated, according

to Defendants, because the government has exclusive power over foreign affairs.

The Court finds that Defendants’ argument is without merit. First, none of the

above cases cited by Defendants dealt with or addressed complete preemption, and

they do not support Defendants’ arguments. The Supreme Court in Garamendi

discussed only conflict or field preemption. 539 U.S. at 419. As the Baltimore court

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noted, those types of preemption are “forms of ordinary preemption that serve only as

federal defenses to a state law claim.” 2019 WL 2436848, at *5 (internal quotation

marks omitted). In addition, the GMC, CA II, and City of New York cases did not

address preemption at all, and certainly not complete preemption as providing a basis

for removal jurisdiction.

Moreover, Garamendi is distinguishable. It dealt with the executive authority of

the President to decide the policy regarding foreign relations and to make executive

agreements with foreign countries or corporations. 539 U.S. at 413–15. T he Court

found that federal executive power preempted state law where, as in that case, “there is

evidence of clear conflict between the policies adopted by the two.” Id. at 420–21. The

Court stated, “[t]he question relevant to preemption in this case is conflict, and the

evidence here is ‘more than sufficient to demonstrate that the state Act stands in the

way of [the President’s] diplomatic objectives.’” Id. at 427 (citation omitted). Here, no

executive action is at issue, and Defendants have not demonstrated a clear conflict

between Plaintiffs’ claims and any particular foreign policy.

Accordingly, Defendants have not met their burden of showing that complete

preemption applies based on the foreign affairs doctrine. While they suggest there

might be an unspecified conflict with some unidentified specific policy, they have not

shown that Congress expressly provided for complete preemption under the foreignaffairs doctrine, or that a federal statute wholly displaces the state law cause of action

on this issue. Beneficial Nat’l Bank, 539 U.S. at 8.

The Court’s finding that the foreign affairs doctrine does not completely preempt

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Plaintiffs’ claims is also supported by the Baltimore and State of Rhode Island cases.

In Baltimore, the court held that the foreign affairs doctrine is “inapposite in the

complete preemption context.” 2019 WL 2436848, at *12. It explained that “complete

preemption occurs only when Congress intended for federal law to provide the

‘exclusive cause of action’ for the claim asserted.” Id. “That does not exist here.” Id.

“That is, there is no congressional intent regarding the preemptive force of the judiciallycrafted foreign affairs doctrine, and the doctrine obviously does not supply any

substitute causes of action.” Id. The State of Rhode Island court also rejected

complete preemption under the foreign affairs doctrine, relying on Baltimore and finding

the argument to be “without a plausible legal basis.” 2019 WL 3282007, at *4 n. 3.

Complete Preemption Under Federal Common Law

Finally, while Defendants do not rely on federal common law as the basis for

their complete preemption argument, federal common law would not provide a ground

for such preemption. As one court persuasively noted, “[w]hen the defendant asserts

that federal common law preempts the plaintiff’s claim, there is no congressional intent

which the court may examine—and therefore congressional intent to make the action

removable to federal court cannot exist.” Merkel v. Fed. Express Corp., 886 F. Supp.

561, 566 (N.D. Miss. 1995) (emphasis omitted); see also Singer v. DHL Worldwide

Express, Inc., No. 06-cv-61932, 2007 U.S. Dist. LEXIS 37120, at *13-14 (S.D. Fla. May

22, 2007) (same).

Based on the foregoing, the Court rejects complete preemption as a basis for

federal jurisdiction.

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Federal Enclave Jurisdiction

Causes of action “which arise from incidents occurring in federal enclaves” may

also be removed as a part of federal question jurisdiction. Akin v. Ashland Chem. Co.,

156 F.3d 1030, 1034 (10th Cir. 1998). “The United States has power and exclusive

authority ‘in all Cases whatsoever . . . over all places purchased’ by the government ‘or

the erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings.’”

Id. (quoting U.S. Const. art. I, § 8, cl. 17.) These are federal enclaves within which the

United States has exclusive jurisdiction. Id.

Here, Plaintiffs seek relief for injuries occurring “within their respective

jurisdictions” (ECF No. 7 ¶ 4), and allege that they “do not seek damages or abatement

relief for injuries to or occurring on federal lands.” (Id. at ¶ 542.) Plaintiffs assert that

ends the inquiry. See, e.g., Washington v. Monsanto Co., 274 F. Supp. 3d 1125, 1132

(W.D. Wash. 2017) (because plaintiff “assert[ed] that it does not seek damages for

contamination to waters and land within federal territory, . . . none of its claims arise on

federal enclaves”).

Defendants argue, however, that Plaintiffs have alleged injuries in federal

enclaves including: (i) an insect infestation across Rocky Mountain National Park (ECF

No. 7 ¶183), that Defendants assert is partially within Boulder County; (ii) increased

flood risk in the San Miguel River in San Miguel County (id. ¶¶ 31, 236), which

Defendants assert is located in the Uncompahgre National Forest (“Uncompahgre”);

and (iii) “heat waves, wildfires, droughts, and floods” which Defendants assert occur in

Rocky Mountain National Park and Uncompahgre (id. ¶¶ 3, 162–63). Plaintiffs do not

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dispute that Rocky Mountain National Park and Uncompahgre are federal enclaves, but

argue that the injury they have alleged did not occur there such that there is no f ederal

enclave jurisdiction.

The Court finds that Defendants have not met their burden of showing that

subject matter jurisdiction exists under the federal enclave doctrine. Uncompahgre

National Forest is not mentioned in the Complaint. Rocky Mountain National Park is

referenced only as a descriptive landmark (see ECF No. 7 ¶¶ 20, 30, 35), and to

provide an example of the regional trends that have resulted from Defendants’ climate

alteration. (Id. ¶ 183.) The actual injury for which Plaintiffs seek compensation is injury

to “their property” and “their residents,” occurring “within their respective jurisdictions.”

(See, e.g., id. ¶¶ 1-4, 10, 11, 532-33.) They specifically allege that they “do not seek

damages or abatement relief for injuries to or occurring to federal lands.” (Id. ¶ 542

(emphasis in original).)

“[T]he location where Plaintiff was injured” determines whether “the right to

removal exists.” Ramos v. C. Ortiz Corp., 2016 WL 10571684, at *3 (D.N.M. May 20,

2016). It is not the defendant’s conduct, but the injury, that matters. See Akin, 156

F.3d at 1034–35 & n.5 (action against chemical manufacturers fell within enclave

jurisdiction where the claimed exposure to the chemicals, not their manufacture or sale,

“occurred within the confines” of U.S. Air Force base); Baltimore, 2019 WL 2436848, at

*15 (“courts have only found that claims arise on federal enclaves, and thus fall within

federal question jurisdiction, when all or most of the pertinent events occurred there”).

Federal enclave jurisdiction thus does not exist here because Plaintiffs’ claims

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and injuries are alleged to have arisen exclusively on non-federal land. That the alleged

climate alteration by Defendants may have caused similar injuries to federal property

does not speak to the nature of Plaintiffs’ alleged injuries for which they seek

compensation, and does not provide a basis for removal. See State of Rhode Island,

2019 WL 3282007, at *5 (finding no federal enclave jurisdiction because while federal

land that met the definition of a federal enclave in Rhode Island and elsewhere “may

have been the site of Defendants’ activities, the State’s claims did not arise there,

especially since its complaint avoids seeking relief for damages to any federal lands”);

Baltimore, 2019 WL 2436848, at *15 (“The Complaint does not contain any allegations

concerning defendants’ conduct on federal enclaves and in fact, it expressly defines the

scope of injury to exclude any federal territory . . . . [I]t cannot be said that federal

enclaves were the ‘locus’ in which the City’s claims arose merely because one of the

twenty-six defendants . . . conducted some operations on federal enclaves for some

unspecified period of time.”).

Federal Officer Jurisdiction

Defendants also argue that removal is appropriate under 28 U.S.C. § 1442

because the conduct that forms the basis of Plaintiffs’ claims was undertaken at the

direction of federal officers. Section 1442(a)(1) provides that a civil action that is

commenced in a State Court may be removed to the district court of the United States if

the suit is “against or directed to . . . the United States or any agency thereof or any

officer (or any person acting under that officer) of the United States or of any agent

thereof in an official or individual capacity, for or related to any act under color of such

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office. . . .”

For § 1442(a)(1) to constitute a basis for removal, a private corporation must

show: “(1) that it acted under the direction of a federal officer; (2) that there is a causal

nexus between the plaintiff’s claims and the acts the private corporation performed

under the federal officer’s direction; and (3) that there is a colorable federal defense to

the plaintiff’s claims.” Greene v. Citigroup, Inc., 2000 WL 647190, at *6 (10th Cir. May

19, 2000). “The words ‘acting under’ are broad,” and § 1442(a)(1) must be construed

liberally. Watson v. Phillip Morris Co., Inc., 551 U.S. 142, 147 (2007). “At the very

least, it is broad enough to cover all cases where federal officers can raise a colorable

defense arising out of their duty to enforce federal law.” Willingham v. Morgan, 395

U.S. 402, 406–07 (1969).

Thus, the federal officer removal statute should not be read in a “narrow”

manner, nor should the policy underlying it “be frustrated by a narrow, grudging

interpretation.” Willingham, 395 U.S. at 406; Jefferson Cnty., Ala. v. Acker, 527 U.S.

423, 431 (1999). Under the statute, “suits against federal officers may be removed

despite the nonfederal cast of the complaint; the federal-question element is met if the

defense depends on federal law.” Acker, 527 U.S. at 431. Such jurisdiction is thus an

exception to the rule that the federal question ordinarily must appear on the face of a

properly pleaded complaint. Id. “Federal jurisdiction rests on a ‘federal interest in the

matter’, . . . the very basic interest in the enforcement of federal law through federal

officials.” Willingham, 395 U.S. at 406.

Private actors invoking the statute bear a special burden of establishing the

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official nature of their activities. See Freiberg v. Swinerton & Walberg Prop. Servs., 245

F. Supp. 2d 1144, 1150 (D. Colo. 2002). T he federal officer removal statute “authorizes

removal by private parties ‘only’ if they were ‘authorized to act with or for [federal

officers or agents] in affirmatively executing duties under . . . federal law.” Watson, 551

U.S. at 151 (quoting City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966)). “That

relationship typically involves ‘subjection, guidance, or control.’” Id. (citation omitted).

“[T]he private person’s ‘acting under’ must involve an effort to assist, or to help carry

out, the duties or tasks of the federal superior.” Id. at 152 (emphasis in original). This

“does not include simply complying with the law.” Id. (emphasis in original). As the

Watson court stated:

it is a matter of statutory purpose. When a company subject to a regulatory

order (even a highly complex order) complies with the order, it does not

ordinarily create a significant risk of state-court “prejudice.”. . . . Nor is a

state-court lawsuit brought against such a company likely to disable federal

officials from taking necessary action to enforce federal law. . . . Nor is such

a lawsuit likely to deny a federal forum to an individual entitled to assert a

federal claim of immunity.

Id. (internal citations omitted).

Here, Defendants assert that the conduct at issue in Plaintif fs’ claims was

undertaken, in part, while acting under the direction of federal officials. Specifically,

Defendants assert that federal officers exercised control over ExxonMobil through

government leases issued to it. (See ECF No. 1 ¶¶ 60, 69, 70–73, Exs. B and C.)

Under these leases, ExxonMobil contends that it was required to explore, develop, and

produce fossil fuels. (ECF No 1, Ex. C § 9.)

For example, Defendants assert that leases related to the outer Continental

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Shelf (”OCS”) obligated ExxonMobil to diligently develop the leased area, which

included—under the direction of Department of the Interior (“DOI”) officials—carrying

out exploration, development, and production activities for the express purpose of

maximizing the ultimate recovery of hydrocarbons from the leased area. 4 Defendants

argue that those leases provide that ExxonMobil “shall” drill for oil and gas pursuant to

government-approved exploration plans (ECF No. 1, Ex. C § 9), and that the DOI may

cancel the leases if ExxonMobil does not comply with federal terms governing land use.

Given these directives and obligations, Defendants submit that ExxonMobil has acted

under a federal officer’s direction within the meaning of § 1442(a)(1).

The Court rejects Defendants’ argument, finding that Defendants have not

shown that they acted under the direction of a federal officer, or that there is a causal

connection between the work performed under the leases and Plaintiffs’ claims. The

federal leases were commercial leases whereby ExxonMobil contracted “for the

exclusive right to drill for, develop, and produce oil and gas resources. . . .” (See ECF

No. 1, Ex. B, p. 1) While the leases require that ExxonMobil, like other OCS lessees,

comply with federal law and regulations (see ECF No. 1, Ex. B ¶ 10, Ex. C §§ 10, 11),

compliance with federal law is not enough for “acting under” removal, even if the

company is “subjected to intense regulation.” Watson, 551 U.S. at 152-53. Defendants

also point to the fact that the leases require the timely drilling of wells and production

Defendants cite California v. Watt, 668 F.2d 1290, 1316 (D.C. Cir. 1981) (the Outer

Continental Shelf Lands Act “has an objective—the expeditious development of OCS

resources”). They further note that the Secretary of the Interior must develop serial leasing

schedules that “he determines will best meet national energy needs for the five-year period”

following the schedule’s approval. 43 U.S.C. §1344(a).

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(ECF No. 1, Ex. B ¶ 10, Ex. C §§ 10, 11), but the government does not control the

manner in which Defendants drill for oil and gas, or develop and produce the product.

Similarly, Defendants have not shown that a federal officer instructed them how

much fossil fuel to sell or to conceal or misrepresent the dangers of its use, as alleged

in this case. They also have not shown that federal officer directed them to market

fossil fuels at levels they knew would allegedly cause harm to the environment. At

most, the leases appear to represent arms-length commercial transactions whereby

ExxonMobil agreed to certain terms (that are not in issue in this case) in exchange for

the right to use government-owned land for their own commercial purposes.

Defendants have not shown that this is sufficient for federal officer jurisdiction.

Defendants have also not shown that this lawsuit is “likely to disable federal officers

from taking necessary action designed to enforce federal law”, or “to deny a federal

forum to an individual entitled to assert a federal claim of immunity.” Watson, 551 U.S.

at 152.

To the extent Defendants claim there is jurisdiction because ExxonMobil is

“helping the government to produce an item that it needs,” Watson, 551 U.S. at 153,

this also does not suffice to provide jurisdiction in this Court. Federal officer jurisdiction

requires an “unusually close” relationship between the government and the contractor.

In Watson, the Supreme Court noted an example of a company that produced a

chemical for the government for use in a war. Id. (discussing Winters v. Diamond

Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998)). As Winters explained in more

detail, the Defense Department contracted with chemical companies “for a specific

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mixture of herbicides, which eventually became known as Agent Orange”; required the

companies to produce and provide the chemical “under threat of criminal sanctions”;

“maintained strict control over the development and subsequent production” of the

chemical; and required that it “be produced to its specifications.” 149 F.3d at 398–99.

The circumstances in Winters were far different than the circumstances in this case,

and Defendants have thus not shown an unusually close relationship between

ExxonMobil and the government.

Defendants also cite no support for their assertion that the government

“specifically dictated much of ExxonMobil’s production, extraction, and refinement of

fossil fuels” (ECF No. 48 at 35), much less that it rises to the level of government

control set forth in Winters. As Plaintiffs note, under Defendants’ argument, “any state

suit against a manufacturer whose product has at one time been averted and adapted

for [government] use . . . would potentially be subject to removal, seriously undercutting

the power of state courts to hear and decide basic tort law.” See Ryan v. Dow Chem.

Co., 781 F. Supp. 934, 951 (E.D.N.Y. 1992).

Baltimore also counsels against finding federal jurisdiction under the federal

officer removal statute. It found that the defendants failed plausibly to show that the

charged conduct was carried out “for or relating to” the alleged official authority, as they

did not show “that a federal officer controlled their total production and sales of fossil

fuels, nor is there any indication that the federal government directed them to conceal

the hazards of fossil fuels or prohibited them from providing warnings to consumers.”

Baltimore, 2019 WL 2436848, at *17. The court concluded, “[c]ase law makes clear

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that this attenuated connection between the wide array of conduct for which defendants

have been sued and the asserted official authority is not enough to support removal

under § 1442(a).” Id.; see also State of Rhode Island, 2019 WL 3282007, at *5 (finding

no causal connection between any actions Defendants took while “acting under” federal

officers or agencies, and thus no grounds for federal-officer removal); San Mateo, 294

F. Supp. 3d at 939 (defendants failed to show a “causal nexus” between the work

performed under federal direction and the plaintiffs’ claims for injuries stemming from

climate change because the plaintiffs' claims were “based on a wider range of

conduct”).

Jurisdiction Under the Outer Continental Shelf Lands Act

Defendants next argue that Plaintiffs’ claims arise out of Defendants’ operations

on the OCS. Federal courts have jurisdiction “of cases and controversies rising out of,

or in connection with (A) any operation conducted on the [OCS] which involves

exploration, development, or production of the minerals, of the subsoil and seabed of

the [OCS], or which involves rights to such minerals. . . .” 43 U.S.C. § 1349(b)(1).

When assessing jurisdiction under the Outer Continental Shelf Lands Act (“OCSLA”),

courts consider whether “(1) the activities that caused the injury constituted an

operation conducted on the [OCS] that involved the exploration and production of

minerals, and (2) the case arises out of, or in connection with the operation.” In Re

Deepwater Horizon, 745 F.3d 157, 163 (5th Cir. 2014) (internal quotation marks

omitted).

Here, Defendants assert that jurisdiction is established because the case arises

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out of or in connection with an operation conducted on the OCS in connection w ith the

OCSLA leasing program in which ExxonMobil participated. Plaintiffs seek potentially

billions of dollars in abatement funds that inevitably would, according to Defendants,

discourage OCS production and substantially interfere with the congressionally

mandated goal of recovery of the federally-owned minerals. ExxonMobil has

participated in the OCSLA leasing program for decades, and continues to conduct oil

and gas operations on the OCS. By making all of Defendants’ conduct the subject of

their lawsuit, Defendants argue that Plaintiffs necessarily sweep in ExxonMobil’s

activities on the OCS. Plaintiffs purportedly do not dispute that ExxonMobil operates

extensively on the OCS, and Plaintiffs’ claims do not distinguish between fossil fuels

extracted from the OCS and those found elsewhere. Thus, Defendants assert that at

least some of the activities at issue arguably came from an operation conducted on the

OCS. The Court rejects Defendants’ argument, as they have not shown that the case

arose out of, or in connection with an operation conducted on the OCS.

The Court agrees with Plaintiffs that for jurisdiction to lie, a case must arise

directly out of OCS operations. For example, courts have found OCSLA jurisdiction

where a person is injured on an OCS oil rig “exploring, developing or producing oil in

the subsoil and seabed of the continental shelf.” Various Plaintiffs v. Various

Defendants (“Oil Field Cases”), 673 F. Supp. 2d 358, 370 (E.D. Pa. 2009); where oil

was spilled from such a rig, Deepwater Horizon, 745 F.3d at 162, or in contract disputes

directly relating to OCS operations, Laredo Offshore Constructors, Inc. v. Hunt Oil Co.,

754 F.2d 1223, 1225 (5th Cir. 1985); cf. Fairfield Indus., Inc. v. EP Energy E&P Co.,

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2013 WL 12145968, at *5 (S.D. Texas May 2, 2013) (finding claims involving

performance of contracts “would not influence activity on the OCS, nor require either

party to perform physical acts on the OCS”, and that the claims thus did not “have a

sufficient nexus to an operation on the OCS to fall within the jurisdictional reach of

OCSLA”). The fact that some of ExxonMobil’s oil was apparently sourced from the

OCS does not create the required direct connection.

As the Baltimore court found, “[e]ven under a ‘broad’ reading of the OCSLA

jurisdictional grant endorsed by the Fifth Circuit [in Deepwater Horizon], defendants fail

to demonstrate that OCSLA jurisdiction exists.” 2019 WL 2436848, at *16.

“Defendants were not sued merely for producing fossil fuel products, let alone for

merely producing them on the OCS.” Id. “Rather, the City’s claims are based on a

broad array of conduct, including defendants’ failure to warn consumers and the public

of the known dangers associated with fossil fuel products, all of which occurred

globally.” Id. The defendants there offered “no basis to enable th[e] Court to conclude

that the City’s claims for injuries stemming from climate change would not have

occurred but for defendants’ extraction activities on the OCS.” Id.; see also San Mateo,

294 F. Supp. 3d at 938–39 (“Removal under OCSLA was not warranted because even

if some of the activities that caused the alleged injuries stemmed from operations on

the [OCS], the defendants have not shown that the plaintiffs’ causes of action would not

have accrued but for the defendants’ activities on the shelf” (emphasis in original)).

Defendants cite no case authority holding that injuries associated with

downstream uses of OCS-derived oil and gas products creates OCSLA jurisdiction.

53a

The cases cited by Defendants instead involved a more direct connection. See, e.g.,

Amoco Prod. Co. v. Sea Robin Pipeline Co., 844 F.2d 1202, 1210 (5th Cir. 1988)

(finding that the exercise of take-or-pay rights, minimum-take rights, or both, by Sea

Robin necessarily and physically had an immediate bearing on the production of the

particular well at issue, “certainly in the sense of the volume of gas actually produced”,

and would have consequences as to production of the well).

Moreover, as Plaintiffs note, jurisdiction under OCSLA makes little sense for

injuries in a landlocked state that are alleged to be caused by conduct that is not

specifically related to the OCS. No court has read OCSLA so expansively. Defendants’

argument would arguably lead to the removal of state claims that are only “tangentially

related” to the OCS. See Plains Gas Solutions, LLC v. Tenn. Gas Pipeline Co., 46

F. Supp. 3d 701, 704–05 (S.D. Texas 2014) (recognizing that the “but-for” test

articulated by the Fifth Circuit in the Deepwater Horizon case “is not limitless,” and that

“a blind application of this test would result in federal court jurisdiction over all state law

claims even tangentially related to offshore oil production on the OCS”; “Defendants’

argument that the ‘but-for’ test extends jurisdiction to any claim that would not exist but

for offshore production lends itself to absurd results”).

The downstream impacts of fossil fuels produced offshore also does not create

jurisdiction under OCSLA because Plaintiffs do not challenge conduct on any offshore

“submerged lands.” 43 U.S.C. § 1331(a). Defendants’ argument that there is federal

jurisdiction if any oil sourced from the OCS is some part of the conduct that creates the

injury would, again, dramatically expand the statute’s scope. Any spillage of oil or

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gasoline involving some fraction of OCS-sourced oil—or any commercial claim over

such a commodity—could be removed to federal court. It cannot be presumed that

Congress intended such an absurd result. Plaintiffs’ claims concern Defendants’

overall conduct, not whatever unknown fraction of their fossil fuels was produced on the

OCS. No case holds removal is appropriate if some fuels from the OCS contribute to

the harm. A case cannot be removed under OCSLA based on speculative impacts;

immediate and physical impact is needed. See Amoco Prod. Co., 844 F.2d at

1222–23. Accordingly, the Court does not have jurisdiction under OCSLA.

Jurisdiction as the Claims Relate to Bankruptcy Proceedings

Finally, Defendants argue that this Court has jurisdiction and this action is

removable because Plaintiffs’ claims are related to bankruptcy proceedings within the

meaning of 28 U.S.C. §§ 1452(a). Subject to certain exceptions, that statute allows a

party to remove any claim or cause of action in a civil action . . . to the district court

where such civil action is pending, if such district court has jurisdiction of such claim or

cause of action under section 1334 of this title.” Section 1334(b) of the Bankruptcy

Code states that “the district courts shall have original but not exclusive jurisdiction of all

civil proceedings arising under title 11, or arising in or related to cases under title 11.”

The Tenth Circuit has held that an action is “related to” bankruptcy if it “‘could

conceivably have any effect on the estate being administered in bankruptcy.’” In re

Gardner, 913 F.2d 1515, 1518 (10th Cir. 1990) (citation om itted). “Although the

proceeding need not be against the debtor or his property, the proceeding is related to

the bankruptcy if the outcome could alter the debtor’'s rights, liabilities, options, or

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freedom of action in any way, thereby impacting on the handling and administration of

the bankruptcy estate.” Id. Removal is proper even after a bankruptcy plan has been

confirmed if the case would impact a creditor’s recovery under the reorganization plan.

In re CF & I Fabricators of Utah, Inc., 150 F.3d 1233, 1237 (10th Cir. 1998).

Defendants assert that Plaintiffs’ claims relate to ongoing bankruptcy

proceedings because they could impact the estates of other bankrupt entities that are

necessary and indispensable parties to this case. They note in that regard that 134 oil

and gas producers filed for bankruptcy in the United States between 2015 and 2017.

Peabody Energy and Arch Coal (“Peabody”), in particular, is alleged to have emerged

from Chapter 11 bankruptcy in 2016. Defendants argue that the types of claims

brought by Plaintiffs are irreconcilable with the “implementation,” “execution,” and

“administration” of Peabody’s “confirmed plan,” citing In Re Wiltshire Courtyard, 729

F.3d 1279, 1289 (9th Cir. 2013). Defendants thus assert that this case is related to a

bankruptcy proceeding and is therefore removable.

The Court, too, rejects Defendants’ final argument. As the Ninth Circuit noted in

the Wiltshire Courtyard case, “‘to support jurisdiction, there must be a close nexus

connecting a proposed [bankruptcy proceeding] with some demonstrable effect on the

debtor or the plan of reorganization.’” 729 F.3d at 1289 (citation omitted). “[A] close

nexus exists between a post-confirmation matter and a closed bankruptcy proceeding

sufficient to support jurisdiction when the matter ‘affect[s] the interpretation,

implementation, consummation, execution, or administration of the confirmed plan.’” Id.

(citation omitted).

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Here, none of the Defendants have filed for bankruptcy. To the extent

Defendants argue that this case may effect other oil and gas producers who filed for

bankruptcy, including Peabody or other unspecified bankrupt entities, this is entirely

speculative. Defendants have not shown any nexus, let alone a close nexus, between

the claims in this case and a bankruptcy proceeding. Thus, Defendants offer no

evidence of how Plaintiffs’ claims relate to any estate or affect any creditor’s recovery,

including Peabody. Defendants suggest bankrupt entities are indispensable parties,

but joint tortfeasors are not indispensable. See Temple v. Synthes Corp., 498 U.S. 5, 7

(1990). Nor would it matter if Defendants have third-party claims against bankruptcy

estates. See Pacor, Inc. v. Higgins, 743 F.2d 984, 995 (3d Cir. 1984); Union Oil Co. of

California v. Shaffer, 563 B.R. 191, 198–200 (E.D. La. 2016). Plaintif fs do not seek any

relief from a debtor in bankruptcy, advantage over creditors, or to protect any interest in

the debtor’s property. City & Cnty. of San Francisco v. PG & E Corp., 433 F.3d 1115,

1124–25 (9th Cir. 2006). Thus, Defendants have failed to show that jurisdiction is

proper under the bankruptcy removal statute.

As discussed in Baltimore, “Defendants fail to demonstrate that there is a ‘close

nexus’ between this action and any bankruptcy proceedings . . . at most, defendants

have only established that some day a question might arise as to whether a previous

bankruptcy discharge precludes the enforcement of a portion of the judgment in this

case against” the defendant. 2019 WL 2436848, at *19 (emphasis in original). “This

remote connection does not bring this case within the Court's “related to” jurisdiction

under 28 U.S.C. § 1334(b). Id.

57a

Moreover, one of the exceptions to removal are proceedings “by a governmental

unit to enforce such governmental unit’s police or regulatory powers.” 28 U.S.C.

§ 1452(a). Baltimore noted that an action such as this where the plaintiffs “assert

claims for injuries stemming from climate change” are actions “on behalf of the public to

remedy and prevent environmental damage, punish wrongdoers, and deter illegal

activity.” 2019 WL 2436848, at *19. It found that “[a]s other courts have recognized,

such an action falls squarely within the police or regulatory exception to § 1452.” Id.

See also Rhode Island, 2019 WL 3282007, at *5; San Mateo, 294 F. Supp. 3d at 939.

This Court agrees and adopts the Baltimore court’s analysis on this point. Accordingly,

removal is also inappropriate because this case is a proceeding “by a governmental unit

to enforce such governmental unit’s police or regulatory powers.” 28 U.S.C. § 1452.

IV. CONCLUSION

Plaintiffs’ claims implicate important issues involving global climate change

caused in part by the burning of fossil fuels. While Defendants assert, maybe correctly,

that this type of case would benefit from a uniform standard of decision, they have not

met their burden of showing that federal jurisdiction exists. Accordingly, the Court

ORDERS as follows:

Defendants’ Motion to Reschedule Oral Argument on Plaintiffs’ Motion to

Remand (ECF No. 67) is DENIED.

Plaintiffs’ Motion to Remand (ECF No. 34) is GRANTED; and

The Clerk shall REMAND this case to Boulder County District Court, and shall

terminate this action.

58a

Dated this 5th day of September, 2019.

BY THE COURT:

_______________________

William J. Martínez

United States District Judge

59a

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 18-cv-01672-WJM-SKC

BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY;

BOARD OF COUNTY COMMISSIONERS OF SAN MIGUEL COUNTY; and

CITY OF BOULDER,

Plaintiffs,

SUNCOR ENERGY (U.S.A.) INC.;

SUNCOR ENERGY SALES INC.;

SUNCOR ENERGY INC.; and

EXXON MOBIL CORPORATION,

Defendants.

ORDER

This matter is before the Court on Defendants’ Motion for a Stay of the Remand

Order Pending Appeal filed September 13, 2019 (ECF No. 75). Defendants seek to

stay this Court’s Order of September 5, 2019 (ECF No. 69) that granted Plaintiffs’

Motion to Remand and ordered that the case be remanded to Boulder County District

Court, Colorado. Plaintiffs filed a response to the motion on September 19, 2019 (ECF

No. 77), and Defendants filed a Reply on September 23, 2019 (ECF No. 78). For the

reasons explained below, Defendants’ Motion for a Stay of the Remand Order Pending

Appeal is denied.

I. BACKGROUND

Plaintiffs filed suit in Boulder County asserting state law claims of public

nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado

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Consumer Protection Act, and civil conspiracy. The claims arise from Plaintiffs’

contention that they face substantial and rising costs to protect people and property

within their jurisdictions from the dangers of climate alteration. Plaintiffs allege that

Defendants substantially contributed to climate alteration through selling fossil fuels and

promoting their unchecked use while concealing and misrepresenting their dangers.

Plaintiffs seek monetary damages from Defendants, requiring them to pay their pro rata

share of the costs of abating the impacts on climate change they have allegedly caused

through their tortious conduct.

Defendants filed a Notice of Removal (ECF No. 1) on June 29, 2018. Plaintiffs

filed a Motion to Remand (ECF No. 34) on July 30, 2018.

The Court recognized in its Order granting Plaintiffs’ Motion to Remand that

Plaintiffs’ claims implicate important issues involving climate change caused in part by

the burning of fossil fuels. (ECF No. 69 at 55.) It found, however, that Defendants did

not meet their burden of showing that federal jurisdiction exists on the six grounds upon

which they based their removal: (1) federal question jurisdiction—that Plaintiffs’ claims

arise under federal common law, and that this action necessarily and unavoidably

raises disputed and substantial federal issues that give rise to jurisdiction under Grable

& Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005); (2) complete

preemption; (3) federal enclave jurisdiction; (4) jurisdiction because the allegations arise

from action taken at the direction of federal officers; (5) jurisdiction under the Outer

Continental Shelf Lands Act, 43 U.S.C. § 1349(b); and (6) jurisdiction under 28 U.S.C.

§ 1452(a) because the claims are related to bankruptcy proceedings.

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Defendants assert that the Court should stay its remand order pending an

appeal to the United States Court of Appeals for the Tenth Circuit. They note that

courts have disagreed about whether climate change tort claims necessarily arise under

federal common law, permitting removal to federal court. They further note that after

the filing of the notice of appeal in this case, cases presenting this disputed question

are now pending in four federal courts of appeals.

Defendants argue in support of their motion that the conflict of authority on this

complex legal question and the state of climate change litigation nationwide justify the

entry of a stay of this Court’s remand order pending the appeal. Such a stay will protect

Defendants’ appellate rights while providing the Tenth Circuit with an opportunity to

weigh in on issues that other federal courts of appeals are considering. Defendants

argue that the lack of a stay, by contrast, will irreparably harm them because they will

be subject to duplicative proceedings in federal and state court, and could effectively

lose their right to appeal. Finally, Defendants argue that given the nature of Plaintiffs’

claims related to climate change and the public interests involved, the balance of harms

tilts decidedly in Defendants’ favor.

II. ANALYSIS

The Jurisdictional Grounds Subject to Appellate Review

“Generally speaking, federal courts of appeals may not review district court

remand orders.” BP Am., Inc. v. Oklahoma ex rel. Edmondson, 613 F.3d 1029, 1032

(10th Cir. 2010). This is mandated by 28 U.S.C. § 1447(d), which states that “[a]n order

remanding a case to the State court from which is was removed is not reviewable on

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appeal or otherwise.” Section 1447(d) “generally prohibits appellate review of remand

orders based on a district court’s lack of subject matter jurisdiction,” as here. City and

Council of Baltimore v. BP P.L.C. [“Baltimore”], 2019 WL 3464667, at *3 (D. Md. July

31, 2019) (citing Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 230

(2007)). Congress’s purpose in limiting appellate review of remand orders in § 1447(d)

“is to avoid ‘prolonged litigation on threshold nonmerits questions.’” Id. (quoting

Powerex, 551 U.S. at 237.) As the Baltimore court noted, “[t]his rule is strict; it bars

review ‘even if the remand order is manifestly, inarguably erroneous,’ . . . and even if

the ‘erroneous remand[ ] has undesirable consequences’ for federal interests.” Id.

(quoting Powerex Corp., 551 U.S. at 237; In Re Norfolk S. Ry. Co., 756 F.3d 282, 287

(4th Cir. 2014)).

Based on the foregoing, appellate review would be foreclosed as to almost every

basis under which Defendants relied in their Notice of Removal based on the Court’s

finding of lack of subject matter jurisdiction. Section 1447(d) does, however, contain

exceptions to the bar of appellate review for claims brought under 28 U.S.C. §§ 1442

and 1443. Here, since Defendants asserted federal officer jurisdiction under § 1442, an

appeal of the remand order is appropriate on that ground. Defendants argue that since

an appeal is appropriate as to federal officer jurisdiction, the United States Court of

Appeals of the Tenth Circuit may review the entire order and all grounds for removal

addressed there. Plaintiffs argue, on the other hand, that the rem aining grounds for

removal other than federal officer jurisdiction are plainly unreviewable pursuant to

§ 1447(d).

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There is a split of authority on that issue, and the Tenth Circuit has not

definitively decided the issue. Eight Circuits have found, consistent with Plaintiffs’

argument, that appellate jurisdiction is limited to the portion of the remand order tied to

an express exception in § 1447(d). 1 Accord Baltimore, 2019 WL 3464667, at *4 (noting

majority rule in holding that “only the issue of federal officer removal would be subject to

review on defendants’ appeal of the remand”). The Tenth Circuit also found to this

effect in an unpublished decision. Sanchez v. Onuska, 1993 WL 307897, at *1 (10th

Cir. 1993) (“the portion of the remand order in this case concerning the § 1441(c)

removal is not reviewable and must be dismissed for lack of jurisdiction”). Only the

Sixth and Seventh Circuits have found that the entire order is reviewable in that

instance.2 This Court finds it likely that the Tenth Circuit will follow the weight of

authority and find that the only ground subject to appeal is federal officer jurisdiction

under § 1442, consistent with its unpublished opinion in Sanchez.

See City of Walker v. Louisiana, 877 F.3d 563, 567 n.2 (5th Cir. 2017); Jacks v.

Meridian Res. Co., LLC, 701 F.3d 1224, 1229 (8th Cir. 2012); Alabama v. Conley, 245 F.3d

1292, 1293 n.1 (11th Cir. 2001); State Farm Mutual Auto. Ins. Co. v. Baasch, 644 F.2d 94, 96,

97 (2d Cir. 1981); Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997); Noel v. McCain, 538

F.2d 633, 635 (4th Cir. 1976); Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530, 534 (6th Cir.

1970); Patel v. Del Taco Inc, 446 F.3d 996, 998 (9th Cir. 2006).

See Lu Junhong v. Boeing Co., 792 F.3d 805, 813 (7th Cir. 2015); Mays v. City of Flint,

871 F.3d 437, 442 (6th Cir. 2017). The Sixth Circuit in Mays did not, however, acknowledge a

previous Sixth Circuit decision in Appalachian Volunteers, Inc. v. Clark, 432 F.3d 530, 534 (6th

Cir. 1970), that followed the majority rule, and the parties conceded in Mays that the entire

remand order was reviewable. Another decision cited by Defendants, Decatur Hosp. Auth. v.

Aetna Health, Inc., 854 F.3d 292 (5th Cir. 2017), does not necessarily support their argument.

Decatur held only that a remand based on a procedural defect (timeliness) was reviewable in its

entirety where it included a Section 1442 argument. Id. at 296. Decatur acknowledged that the

court “cannot review a remand order (or a portion thereof) expressly based on a Section

1447(c) ground when the basis for removal is a statute that, like Section 1441, Section 1447(d)

does not specifically exempt from Section 1447(c)’s bar.”

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Defendants rely, however, on the Tenth Circuit’s decision in Coffey v. Freeport

McMoran Copper & Gold, 581 F.3d 1240, 1247 (10th Cir. 2009), arguing it “strongly

suggests” the Tenth Circuit would review the Court’s “entire order” (ECF No. 75 at 6).

They also rely on the Supreme Court’s decision in decision in Yamaha Motor Corp. v.

Calhoun, 516 U.S. 199 (1996). The Court finds these cases unpersuasive.

Unlike Sanchez, which turned on the Tenth Circuit’s reading of Section 1447(d),

Coffey analyzed the language in the Class Action Fairness Act (“CAFA”). CAFA

provides that “notwithstanding section 1447(d), a court of appeals may accept an

appeal from an order of a district court granting or denying a motion to remand.” 581

F.3d at 1247 (quoting 28 U.S.C. § 1453(c)(1)). Coffey observed that § 1453(c)(1)

contained “no language limiting the court’s consideration solely to the CAFA issues in

the remand order,” and expressly authorized appellate review. Id. Here, by contrast,

the plain language of Section 1447(d) makes remand orders “not reviewable,” with two

narrow exceptions.

Further, even though the Tenth Circuit in Coffey found it had discretion to review

the whole order, it declined to do so, reasoning that since there would have been no

appellate jurisdiction over the remand order absent the CAFA issue, review of the nonCAFA issue would “not fit within the reasons behind §1453(c)(2),” i.e. to “develop a

body of appellate law interpreting [CAFA] without unduly delaying the litigation of class

actions.” Id. Accord Parson v. Johnson & Johnson, 749 F.3d 879, 892-93 (10th Cir.

2014) (declining to exercise discretion to review non-CAFA basis of remand order in

part because “absent our jurisdiction over the CAFA remand order, there would have

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been no freestanding appellate jurisdiction to review the district court’s ruling on

diversity jurisdiction”). Thus, Coffey suggests the Tenth Circuit would be unlikely to

review aspects of a remand order that would otherwise be unreviewable.

In Yamaha, the Supreme Court addressed the question whether, in an

interlocutory appeal under 28 U.S.C. § 1292(b), a court of appeals could review only the

particular question certified by the district court, or could instead address any issue

encompassed in the district court’s certified order. The Court concluded that a court of

appeals may address “any issue fairly included within the certified order,” and not only

the particular question certified. Yamaha, 516 U.S. at 205. It observed that “the text of

§ 1292(b) indicates” that “appellate jurisdiction applies to the order certified to the court

of appeals, and is not tied to the particular question formulated by the district court.” Id.

It is questionable whether this analysis would apply to § 1447(d), as § 1292(b)

expressly authorizes appellate review of orders certified by the district court, while

§ 1447(d) explicitly bars review of any kind, with only two specified, narrow exceptions.

Also, as the Tenth Circuit noted in Coffey, Yamaha’s holding that appellate

jurisdiction extended to the entire order certified for interlocutory appeal (rather than the

particular issue certified) was discretionary. Coffey, 581 F.3d at 1247 (“the appellate

court may address any issue fairly included within the certified order”) (quoting Yamaha,

516 U.S. at 205) (emphasis added). So even if Defendants are correct that Yamaha

authorizes the Tenth Circuit to review issues beyond the federal officer statute, Yamaha

does not require such consideration. And Coffey suggests that the Tenth Circuit is

unlikely to go beyond review of the issue that gives it jurisdiction. That suggestion

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seems particularly apt in this case given the fact that there are so many substantive

arguments for jurisdiction which would need to be addressed. Unlike the situation in

Junhong, where ‘the marginal delay from adding an extra issue to case where the time

for briefing, argument, and decision has already been accepted” would be small, 792

F.3d at 813, the time needed to address the numerous additional jurisdictional issues

presented in this case would be significant.

Whether a Stay of the Remand Order is Appropriate

The power to grant a stay pending review of an appeal has been described as

“part of a court’s ‘traditional equipment for the administrative of justice.’” Nken v.

Holder, 556 U.S. 418, 427 (2009) (citation omitted). It is “‘firmly imbedded in our judicial

system,’ . . . and ‘a power as old as the judicial system.’” Id. (citation omitted).

Similarly, the power to “hold an order in abeyance” is “inherent”, and allows a court “to

act responsibly.” Id. at 426–27.

On the other hand, a court “may not resolve a conflict between considered

review and effective relief by reflexively holding a final order in abeyance pending

review.” Nken, 556 U.S. at 427. “A stay is an ‘intrusion into the ordinary processes of

administrative and judicial review’ . . . and accordingly ‘is not a matter of right, even if

irreparable injury might otherwise result. . . .’” Id. (internal and external citations

omitted). “The parties and the public, while entitled to both careful review and a

meaningful decision, are also generally entitled to the prompt execution of orders. . . .”

Id.

A stay is ultimately “‘an exercise of judicial discretion,’ and ‘[t]he propriety of its

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issue is dependent upon the circumstances of the particular case.’” Nken, 556 U.S. at

433 (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672–73 (1926)). “The

party requesting a stay bears the burden of showing that the circumstances justify an

exercise of that discretion.” Id.

A court must consider four factors in determining whether a stay is warranted

under the standard test: “‘(1) whether the stay applicant has made a strong showing

that he is likely to succeed on the merits; (2) whether the applicable will be irreparably

injured absent a stay; (3) whether issuance of the say will substantially injure the other

parties interested in the proceeding; and (4) where the public risk lies.’” Nken, 556 U.S.

at 434 (quoting Hilton v. Braunskill, 481 U.S. at 770 (1987)). The Supreme Court noted

in Nken that there is substantial overlap between these and the factors governing

preliminary injunctions “because similar concerns arise whenever a court order may

allow or disallow anticipated action before the legality of that action has been

conclusively determined.” Id.; see also Warner v. Gross, 776 F.3d 721, 728 (10th Cir.

2015).

The first two factors are the most critical. Nken, 556 U.S. at 434. Defendants

argue that “[i]n cases where the appealing party demonstrates that ‘the three ‘harm’

factors tip decidedly in its factor,’ it need only show that the appeal will raise issues ‘so

serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and

deserving of more deliberate investigation.’” (ECF No. 75 at 3 (quoting F.T.C. v.

Mainstream Mktg. Servs., Inc. (“Mainstream II”), 345 F.3d 850, 852 (10th Cir. 2003)

(internal quotation marks omitted)).) The Tenth Circuit has recently clarified in

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connection with the appeal of a preliminary injunction that “any modified test which

relaxes one of the prongs” and “thus deviates from the standard test is impermissible.”

Diné Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276, 1282 (10th Cir.

2016). This holding has been interpreted to also apply to a stay pending an appeal,

given the substantially same standards governing grants of preliminary injunctions and

stays pending appeal. Grogan v. Renfrow, 2019 WL 2764404, at *4 (N.D. Okla. July 2,

2019); Pueblo of Pojoaque v. New Mexico, 233 F. Supp. 3d 1021, 1113–15 (D.N.M.

2017).

Likelihood of Success on the Merits

The Court turns to the first factor—whether Defendants have made a strong

showing of likelihood of success on the merits. To satisfy this standard it is “not enough

that the chance of success on the merits be “‘better than negligible.’” Nken, 556 U.S. at

434 (citation omitted). The Court finds that Defendants have not made such a showing

as to federal officer jurisdiction under 28 U.S.C. § 1442.

While Defendants argue that this case raises “complex and novel questions

regarding jurisdiction” that have “divided multiple district courts” (ECF No. 75 at 7), this

is not true as to the issue of federal officer removal jurisdiction. Defendants have cited

no case that has accepted this argument in the context of climate change claims

against companies, such as Defendants, that market and sell fossil fuels. Moreover, in

the cases cited by Defendants, federal control was obvious for substantial periods of

time, and the defendants in those cases established the necess ary causal nexus

between a significant period of federal control and the claims that is wholly absent here.

The cases demonstrate the high degree of federal control needed to provide jurisdiction

69a

under this statute. See, e.g., Fina Oil & Chem. Co., 995 F. Supp. 705, 712 (E.D. Tex.

1998); Lalonde v. Delta Field Erection, 1998 U.S. Dist. LEXIS 23946, at *29-30, 20

(M.D. La. Aug. 5, 1998). Defendants’ essentially “attempt to re-hash the same

argument(s)” as to why they believe they have a substantial basis for federal officer

jurisdiction, which “does not demonstrate a likelihood of success on appeal.”

Mainstream Mktg. Servs., Inc. v. F.T.C. (“Mainstream I”), 284 F. Supp. 2d 1266, 1275

(D. Colo. 2003).

It is a closer question as to whether Defendants have demonstrated a likelihood

of success if the Tenth Circuit were to review the other bases for federal jurisdiction,

particularly in regard to the issue of whether Plaintiffs’ claims arise under federal

common law. This is the one jurisdictional ground that federal district courts are divided

on, with two courts finding that jurisdiction exists on this basis and three courts finding

that jurisdiction does not. Compare California v. BP p.l.c. (“CA I”), 2018 WL 1064293

(N.D. Cal. Feb. 27, 2018); City of Oakland v. BP p.l.c. (“CA II), 325 F. Supp. 3d 1017

(N.D. Cal. June 25, 2018); and City of New York v. BP p.l.c., 325 F. Supp. 3d 466

(S.D.N.Y. July 19, 2018); with State of Rhode Island v. Chevron Corp., 2019 WL

3282007 (D. R.I. July 22, 2019); Mayor and City Council of Baltimore v. BP P.L.C.

(“Baltimore”), 2019 WL 2436848 (D. Md. June 10, 2019), appeal docketed, No. 19-1644

(4th Cir. June 18, 2019); and Cnty. of San Mateo v. Chevron Corp., 294 F. Supp. 3d

934 (N.D. Cal. 2018), appeal docketed, No. 18-15499 (9th Cir. May 27, 2018).

Given this split of authority, Defendants may have shown that this issue is so

“‘serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and

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deserving of more deliberate investigation.’” Mainstream II, 345 F.3d at 852. However,

the Court finds that Defendants have not shown a strong likelihood of success on the

merits on this issue, which is the applicable test. Nken, 556 U.S. at 434. The United

States District Court for the Northern District of California that decided CA I and CA II

(and which the City of Oakland court relied on) cited American Electric Power Co., Inc.

v. Connecticut, 564 U.S. 410 (2011), and Kivalina v. Exxon Mobil Corp., 696 F.3d 849

(9th Cir. 2012), in support of its finding of federal question jurisdiction. However, the

plaintiffs in those cases expressly invoked federal claims, unlike this case which

involves only state law claims asserted in state court, and those cases appear to be

inapplicable. Moreover, as noted in this Court’s Order of Remand, CA I, CA II, and City

of Oakland did not address the well pleaded complaint rule, under which this Court

found that federal jurisdiction did not exist. Defendants have not made any new

argument that suggests they have a strong likelihood of success on the merits on this

issue. Defendants also do not make any meaningful showing that there is federal

question jurisdiction under Grable, or on any of the other grounds upon which they

assert federal jurisdiction, and no cases have found jurisdiction under such arguments.

Irreparable Injury

“To constitute irreparable harm, an injury must be certain, great, actual ‘and not

theoretical.’” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)

(citation omitted). “Irreparable harm is not harm that is merely ‘serious or substantial.’”

Id. (citation omitted). “[S]imply showing some ‘possibility of irreparable injury’” also fails

to show irreparable injury. Nken, 556 U.S. at 434–35 (citation omitted).

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The Court finds that Defendants have failed to establish this element.

Defendants first argue that they will suffer irreparable harm if a stay is not granted

because they will be forced to litigate this same case before the Tenth Circuit and in

Colorado state court, and could face burdensome discovery in state court. The Court

rejects this argument. The Supreme Court has made clear that “injuries, however

substantial, in terms of money, time and energy necessarily expended in the absence

of a stay, are not enough” to show irreparable harm. Sampson v. Murray, 415 U.S. 61,

90 (1974); see also Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24

(1974) (“[m]ere litigation expense, even substantial and unrecoupable cost, does not

constitute irreparable injury”); Washington v. Monsanto Co., 2018 U.S. Dist. LEXIS

48501 (W.D. Wash. Mar. 23, 2018) (finding in a similar case where a private

corporation was arguing removability under the federal officer statute that there was no

irreparable injury even though “Defendants will incur some additional costs of pursuing

an appeal without a stay”).

Defendants also argue that state court proceedings could be potentially

duplicative, mooted or otherwise wasteful if the Tenth Circuit rules in their favor.

Similarly, they assert that the appeal could become moot if the state court enters

judgment before the appeal is resolved, meaning that they would lose their appeal

rights. Again, these arguments are “simply too speculative to rise to the level of

‘irreparable injury.’” Phoenix Glob. Ventures, Inc. v. Phoenix Hotel Assocs ., Ltd., 2004

WL 24079, at *8 (S.D.N.Y. Nov. 23, 2004) (quoting Jayaraj v. Scappini, 66 F.3d 36, 39

(2d Cir. 1995)); see also Baltimore, 2019 WL 3464667, at *5; Hall v. Dixon, 2011 WL

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767173, at *8-9 (S.D. Tex. Feb. 25, 2011).

Similarly, Defendants’ argument that discovery could be unduly burdensome in

state court is speculative. Moreover, Defendants would be subject to similar discovery

if they were proceeding in federal court, and “the interim proceedings in state court may

well advance the resolution of the case in federal court.” Baltimore, 2019 WL 3464667,

at *6; see also Cesca Therapeutics, Inc. v. SynGen Inc., 2017 WL 1174062, at *4–5

(E.D. Cal. Mar. 30, 2017) (finding that an argument as to “the loss of financial resources

and time spent on discovery during the pendency” of the appeal “is not convincing”, and

noting that where, as here, a case is “in its earliest stages,” “the risk of harm” to

Defendants “if discovery proceeds is low”).

Nor would state court rulings present “issues of comity.” (See ECF No. 75 at 9.)

It is not unusual for cases to be removed after substantial state litigation. 28 U.S.C.

§ 1450 recognizes this, and provides that “[a]ll injunctions, orders and other

proceedings” in state court prior to removal remain in force unless “dissolved or

modified” by the district court.

Finally, Defendants argue irreparable injury because “it is not entirely clear ‘how

procedurally, [this case] would make [its] way from state court back to federal court and

whether [its] doing so would offend the Anti-[I]njunction Act, 28 U.S.C. § 2283, or the

notions of comity underpinning it.’’’ (ECF No. 75 at 10 (quoting Barlow v. Colgate

Palmolive Co, 772 F.3d 1001, 1014 n. 2 (4th Cir. 2014) (W ynn J., concurring in part and

dissenting in part)).) This argument is rejected. Justice Wynn’s partial concurring

opinion made no finding that returning from the state court to federal court would

actually offend the Anti-Injunction Act or the notions of comity; he only noted that the

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majority opinion had not addressed the issue or the procedure f or how the case would

make its way back to state court. Barlow, 772 F.3d at 1014. It is this Court’s view that

federal courts are fully capable of ensuring that the proceeding in state court returns to

federal court if a remand order is vacated, including by enjoining state proceedings if

the state court failed to give effect to the decision reversing remand. See Bryan v.

BellSouth Communcs., Inc., 492 F.3d 231, 240 (4th Cir. 2007); In re Meyerland Co.,

910 F.2d 1257, 1263 (5th Cir. 1990). 3

Whether Plaintiffs Would Be Substantially Injured if a Stay is Entered and

the Public Risk

The last two factors merge and are considered together when the party opposing

a stay is a governmental body, as here. See Nken, 556 U.S. at 435. Defendants argue

that a stay will not permanently deprive Plaintiffs of access to state court, it will only

delay the vindication of their claim. They also argue that the Complaint demonstrates

the lack of harm, as a substantial portion of the damages Plaintiffs seek stems from

purported costs that they have not yet incurred and may not incur for decades.

Defendants assert that this does not counsel against a stay. Defendants also assert

that Plaintiffs “‘would actually be served by granting a stay,’ because they would not

‘incur additional expenses from simultaneous litigation before a definitive ruling on

appeal is issued.’” (ECF No. 75 at 11 (quoting Raskas v. Johnson & Johnson, 2013 WL

The Tenth Circuit’s decision in Chandler v. O’Bryan, 445 F.2d 1045 (10th Cir. 1971),

cited by Defendants, does not say otherwise. It held only that the Tenth Circuit could not enjoin

a case that had been remanded to state court in a prior federal proceeding. Id. at 1057–58.

Similarly, the First Circuit’s decision in FDIC v. Santiago Plaza, 598 F.2d 634, 636 (1st Cir.

1979), is inapposite, as it held only that a district court cannot enjoin a state court proceeding

once it has remanded the case to state court as it lacks jurisdiction.

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1818133, at *2 (E.D. Mo. Apr. 29, 2013)).)

The Court disagrees, finding that the last two factors also weigh against a stay.

As the District of Maryland found in the Baltimore case, “[t]his case is in its earliest

stages and a stay pending appeal would further delay litigation on the merits” of the

claims. 2019 WL 3464667, at *6. Plaintiffs’ claims in this case were filed over a year

ago. The Court agrees with Baltimore’s finding that “[t]his favors denial of a stay,

particularly given the seriousness of the [Plaintiffs’] allegations and the amount of

damages at stake.” Id. Moreover, the public interest is furthered by the timely

conclusion of legal disputes, Desktop Images v. Ames, 930 F. Supp. 1450, 1452

(D. Colo. 1996), and not by the interference with state court proceedings, Maui Land &

Pineapple Co. v. Occidental Chem. Corp., 24 F. Supp. 2d 1083, 1087 (D. Haw. 1998).

III. CONCLUSION

Based on the foregoing, Defendant’s request for a stay of the remand order is

denied. Defendants have not shown a likelihood of success or irreparable injury, or that

the other factors weigh in favor of a stay. Accordingly, the Court ORDERS as follows:

Defendant’s Motion for Stay of Remand Pending Appeal filed September 13,

2019 (ECF No. 75) is DENIED; and

The Clerk shall REMAND this case to Boulder County District Court, and shall

terminate this action.

75a

Dated this 7th day of October, 2019.

BY THE COURT:

_______________________

William J. Martínez

United States District Judge

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