Petition for Writ of Certiorari — Chevron Corporation, et al., Petitioners v. City of Oakland, California, et al.

Supreme Court briefJan 8, 2021

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No. 20IN THE

Supreme Court of the United States

___________

CHEVRON CORPORATION, et al.,

CITY OF OAKLAND, et al.,

___________

Petitioners,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

KANNON K. SHANMUGAM

JUSTIN ANDERSON

WILLIAM T. MARKS

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K St. NW

Washington, DC 20006

THEODORE V. WELLS, JR.

DANIEL J. TOAL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

Counsel for Exxon Mobil

Corporation

January 8, 2021

PETER D. KEISLER*

VIRGINIA A. SEITZ

C. FREDERICK BECKNER III

RYAN C. MORRIS

TOBIAS S. LOSS-EATON

SIDLEY AUSTIN LLP

1501 K St. NW

Washington, DC 20005

(202) 736-8000

pkeisler@sidley.com

THEODORE J. BOUTROUS, JR.

THOMAS G. HUNGAR

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave. NW

Washington, DC 20036

Counsel for Chevron Corporation

* Counsel of Record

[Additional Counsel Listed On Inside Cover]

M. RANDALL OPPENHEIMER

DAWN SESTITO

O’MELVENY & MYERS LLP

400 South Hope St.

Los Angeles, CA 90071

Counsel for Exxon Mobil

Corporation

DAVID C. FREDERICK

BRENDAN J. CRIMMINS

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

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

1615 M St. NW

Suite 400

Washington, DC 20036

Counsel for Royal Dutch

Shell plc

SEAN C. GRIMSLEY

JAMESON R. JONES

DANIEL R. BRODY

BARTLIT BECK LLP

1801 Wewatta St.

Suite 1200

Denver, CO 80202

Counsel for ConocoPhillips

NANCY G. MILBURN

ARNOLD & PORTER KAYE

SCHOLER LLP

250 West 55th St.

New York, NY 10019

JONATHAN W. HUGHES

MATTHEW T. HEARTNEY

JOHN D. LOMBARDO

ARNOLD & PORTER KAYE

SCHOLER LLP

Three Embarcadero Center,

10th Floor

San Francisco, CA 94111

ETHAN G. SHENKMAN

ARNOLD & PORTER KAYE

SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

Counsel for BP p.l.c.

QUESTIONS PRESENTED

Two coastal California cities brought this case in

state court, seeking to hold five energy companies liable for an alleged state law “public nuisance”—

global climate change—based on their production and

sale of fossil fuels. The cities say this case is “about

shifting the costs of abating sea level rise . . . back onto the companies.” To date, over twenty state and local governments have brought similar cases in state

courts across the country, each seeking to apply its

own State’s law to conduct in the other States and

abroad. The energy companies removed this case to

federal court, asserting that federal common law governs tort claims based on interstate or international

pollution. The district court upheld removal, holding

that such claims arise exclusively under federal law.

After the cities amended their complaints to add federal claims, the court dismissed the case for failure to

state a claim. But the Ninth Circuit held that removal was improper under the well-pleaded complaint rule because the claims were labeled as statelaw claims, and the cities’ amended complaints adding federal claims did not cure that defect.

The questions presented are:

I. Whether putative state-law tort claims alleging

harm from global climate change are removable because they arise under federal law.

II. Whether a plaintiff is barred from challenging

removal on appeal after curing any jurisdictional defect and litigating the case to final judgment in the

district court.

(i)

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioners are Chevron Corporation, BP p.l.c.,

ConocoPhillips, Exxon Mobil Corporation, and Royal

Dutch Shell plc. No petitioner has a parent corporation, and no publicly held corporation owns 10% or

more of any petitioner’s stock.

Respondents are the City of Oakland, a Municipal

Corporation, and the People of the State of California,

acting by and through the Oakland City Attorney;

and the City and County of San Francisco, a Municipal Corporation, and the People of the State of California, acting by and through the San Francisco City

Attorney Dennis J. Herrera.

iii

RULE 14.1(b)(iii) STATEMENT

This case directly relates to these proceedings:

People of the State of California v. BP, P.L.C., No.

CGC17561370, San Francisco County Superior

Court (removed October 20, 2017);

People of the State of California v. BP, P.L.C., No.

RG17875889, Alameda County Superior Court (removed October 20, 2017);

City of Oakland v. BP P.L.C., No. C 17-06011 WHA,

U.S. District Court for the Northern District of California (judgment entered July 27, 2018);

City and County of San Francisco v. BP P.L.C., No.

C 17-06012 WHA, U.S. District Court for the

Northern District of California (judgment entered

July 27, 2018); and

City of Oakland v. BP P.L.C., No. 18-16663, U.S.

Court of Appeals for the Ninth Circuit (judgment

entered May 26, 2020; opinion amended and rehearing denied August 12, 2020).

No other proceedings in state or federal trial or appellate courts, or in this Court, directly relate to this

case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................................... i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ................................................. ii

RULE 14.1(b)(iii) STATEMENT ................................iii

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

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 1

JURISDICTION........................................................... 1

FEDERAL STATUTES INVOLVED .......................... 1

INTRODUCTION ........................................................ 2

STATEMENT OF THE CASE..................................... 7

A. The cities’ public nuisance theory. ................... 7

B. The district court’s denial of remand. .............. 8

C. The district court’s dismissal opinion. ........... 10

D. The Ninth Circuit’s ruling. ............................. 11

E. The pending Baltimore case. .......................... 13

REASONS FOR GRANTING THE PETITION ........ 14

I. The Ninth Circuit’s rejection of federalcommon-law jurisdiction warrants review. ......... 14

A. The Ninth Circuit’s conclusion that federal

common law does not govern interstatepollution claims conflicts with this Court’s

decisions. ......................................................... 14

(iv)

TABLE OF CONTENTS—continued

Page

B. The Ninth Circuit’s application of the wellpleaded complaint rule conflicts with

decisions of this Court and other circuits. ..... 20

II. The Ninth Circuit deepened a circuit split by

letting the cities contest removal after amending

their complaint to assert federal claims and

litigating those claims to judgment. .................... 27

III.The questions presented are important, and

this case is an excellent vehicle. .......................... 31

CONCLUSION .......................................................... 33

APPENDICES

APPENDIX A: Opinion, City of Oakland v. BP

PLC, 960 F.3d 570 (9th Cir. 2020), amended

& superseded on denial of reh’g, No. 18-16663,

2020 WL 4678380 (9th Cir. Aug. 12, 2020) ...... 1a

APPENDIX B: Order Granting Motion to Dismiss Amended Complaints, City of Oakland

v. BP P.L.C., 325 F. Supp. 3d 1017 (N.D.

Cal. 2018), vacated and remanded sub nom.

City of Oakland v. BP PLC, No. 18-16663,

2020 WL 2702680 (9th Cir. May 26, 2020)....... 24a

APPENDIX C: Order Denying Motions to Remand, California v. BP p.l.c., No. C 17-06011

WHA, 2018 WL 1064293 (N.D. Cal. Feb. 27,

2018), vacated and remanded sub nom. City

of Oakland v. BP PLC, No. 18-16663, 2020

WL 2702680 (9th Cir. May 26, 2020) .............. 46a

APPENDIX D: Order Denying Rehearing, City

of Oakland v. BP PLC, No. 18-16663, 2020

WL 4678380 (9th Cir. Aug. 12, 2020) ............. 57a

TABLE OF AUTHORITIES

CASES

Page

Am. Elec. Power Co. v. Connecticut, 564

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

Banco Nacional de Cuba v. Sabbatino, 376

U.S. 398 (1964) ........................................... 4, 17

Barbara v. N.Y. Stock Exch., Inc., 99 F.3d 49

(2d Cir. 1996), abrogated on other grounds

by Merrill Lynch, Pierce, Fenner & Smith

Inc. v. Manning, 136 S. Ct. 1562 (2016) .....

Battle v. Seibels Bruce Ins. Co., 288 F.3d

596 (4th Cir. 2002) .....................................

Bernstein v. Lin-Waldock & Co., 738 F.2d

179 (7th Cir. 1984) ................................... 28, 29

Brough v. United Steelworkers of Am., 437

F.2d 748 (1st Cir. 1971) .............................

Camsoft Data Sys., Inc. v. S. Elecs. Supply,

Inc., 756 F.3d 327 (5th Cir. 2014) ............ 28, 29

Caterpillar Inc. v. Williams, 482 U.S. 386

(1987) ........................................................ 21, 23

Caterpillar, Inc. v. Lewis, 519 U.S. 62

(1996) .................................................. 27, 29, 30

Caudill v. Blue Cross & Blue Shield of N.C.,

999 F.2d 74 (4th Cir. 1993) .................. 5, 24, 25

City of Milwaukee v. Illinois, 451 U.S. 304

(1981) ..................................................... 3, 15, 21

City of New York v. BP P.L.C., 325 F. Supp.

3d 466 (S.D.N.Y. 2018), appeal docketed,

No. 18-2188 (2d Cir. July 26, 2018) ...........

North Carolina ex rel. Cooper v. Tenn. Valley

Auth., 615 F.3d 291 (4th Cir. 2010) ............ 6, 32

Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124

(2015) ..........................................................

Ellingsworth v. Vermeer Mfg. Co., 949 F.3d

1097 (8th Cir. 2020) ...................................

vii

TABLE OF AUTHORITIES—continued

Page

Empire Healthchoice Assurance, Inc. v.

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

Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ... 4, 15

Federated Dep’t Stores, Inc. v. Moitie, 452

U.S. 394 (1981) ...........................................

Franchise Tax Bd. v. Constr. Laborers

Vacation Tr., 463 U.S. 1 (1983) .................

Gentek Bldg. Prods., Inc. v. SherwinWilliams Co., 491 F.3d 320 (6th Cir.

2007) ...........................................................

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

Eng’g & Mfg., 545 U.S. 308 (2005) ............

Hinderlider v. La Plata River & Cherry

Creek Ditch Co., 304 U.S. 92 (1938) .......... 4, 16

Illinois v. City of Milwaukee, 406 U.S. 91

(1972) ...................................................... passim

Int’l Paper Co. v. Ouellette, 479 U.S. 481

(1987) ..........................................................

Kansas v. Colorado, 206 U.S. 46 (1907) .......

Kurns v. R.R. Friction Prods. Corp., 565

U.S. 625 (2012) ...........................................

Massachusetts v. EPA, 549 U.S. 497 (2007) .

Moffitt v. Residential Funding Co., 604 F.3d

156 (4th Cir. 2010) .....................................

Nat’l Farmers Union Ins. Cos. v. Crow

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

Native Vill. of Kivalina v. ExxonMobil

Corp., 696 F.3d 849 (9th Cir. 2012) ...........

Newton v. Capital Assurance Co., 245 F.3d

1306 (11th Cir. 2001) .................................

In re Otter Tail Power Co., 116 F.3d 1207

(8th Cir. 1997) ............................................ 5, 25

Paros Props., LLC v. Colo. Cas. Ins. Co.,

835 F.3d 1264 (10th Cir. 2016) ..................

viii

TABLE OF AUTHORITIES—continued

Page

Republic of Phil. v. Marcos, 806 F.2d 344

(2d Cir. 1986) .......................................... 25, 26

Sam L. Majors Jewelers v. ABX, Inc., 117

F.3d 922 (5th Cir. 1997) ............................. 5, 24

Sosa v. Alvarez-Machain, 542 U.S. 692

(2004) ..........................................................

Tex. Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) .................................. 19, 21

Thermoset Corp. v. Bldg. Materials Corp.,

849 F.3d 1313 (11th Cir. 2017) ..................

Torres v. S. Peru Copper Corp., 113 F.3d

540 (5th Cir. 1997) .....................................

Treiber & Straub, Inc. v. UPS, Inc., 474

F.3d 379 (7th Cir. 2007) .............................

United States v. Standard Oil Co. of Cal.,

332 U.S. 301 (1947) .............................. 4, 15, 23

United States v. Swiss Am. Bank, Ltd., 191

F.3d 30 (1st Cir. 1999) ...............................

In re Wireless Tel. Fed. Cost Recovery Fees

Litig., 396 F.3d 922 (8th Cir. 2005) ...........

STATUTES

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

§ 1441(a) ........................................ 1, 21

SCHOLARLY AUTHORITY

Bradford R. Clark, Federal Common Law: A

Structural Reinterpretation, 144 U. Pa. L.

Rev. 1245 (1996) .........................................

TABLE OF AUTHORITIES—continued

OTHER AUTHORITIES

Neta C. Crawford, Pentagon Fuel Use,

Climate Change, and the Costs of War,

Watson Inst. Int’l & Pub. Affairs (rev.

Nov. 13, 2019) .............................................

Richard H. Fallon, Jr. et al., Hart &

Wechsler’s the Federal Courts and the

Federal System (7th ed. 2015) ...................

Eugene Gressman et al., Supreme Court

Practice (9th ed. 2007) ...............................

Restatement (Second) of Torts (1979) ..........

14C Wright & Miller, Federal Practice and

Procedure: Jurisdiction (rev. 4th ed.

2020) ...........................................................

19 Wright & Miller, Federal Practice and

Procedure: Jurisdiction (3d ed. 2020)........

Page

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at 960 F.3d

570 and reproduced at App. 1a–23a. The order denying rehearing and amending the opinion is published

at 969 F.3d 895 and reproduced at App. 58a–59a.

The district court’s dismissal opinion is reported at

325 F. Supp. 3d 1017 and reproduced at App. 24a–

45a. The district court’s opinion denying remand is

available at 2018 WL 1064293 and reproduced at

App. 46a–56a.

JURISDICTION

The Ninth Circuit issued its opinion on May 26,

2020 and its amended opinion and order denying rehearing on August 12, 2020. 28 U.S.C. § 1254(1) provides jurisdiction.

FEDERAL STATUTES INVOLVED

28 U.S.C. § 1331 provides:

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution,

laws, or treaties of the United States.

28 U.S.C. § 1441(a) provides:

Except as otherwise expressly provided by Act of

Congress, any civil action brought in a State court

of which the district courts of the United States

have original jurisdiction, may be removed by the

defendant or the defendants, to the district court of

the United States for the district and division embracing the place where such action is pending.

INTRODUCTION

Plaintiffs across the country are asking state courts

to regulate worldwide fossil-fuel production and sales

through “public nuisance” suits seeking massive

monetary judgments for the effects of global climate

change. These claims, as this Court’s decisions show,

necessarily arise under federal law because the Constitution prohibits applying state law in certain narrow areas involving uniquely federal interests—

including interstate and international pollution. The

Ninth Circuit nonetheless rejected federal jurisdiction here. That rejection conflicts with this Court’s

rulings and with other circuits’ decisions affirming

removal of putative state-law claims that arise in exclusively federal areas. This case also raises a separate removal question that has split the circuits:

Whether and when plaintiffs can contest removal on

appeal after they cure any jurisdictional defect and

litigate the case to judgment in federal court. As the

United States explained in urging rehearing en banc

below, both are “issue[s] of exceptional importance,”

U.S. Reh’g Br. 3, 13 (ECF 198)—especially given that

these cases seek to fundamentally reorder or eliminate a vital sector of our economy.

Here, the Cities of San Francisco and Oakland seek

to impose monetary liability on five energy companies

for future harms they allege global climate change

will cause, including “global warming-induced sea

level rise.” App. 3a. The cities sued under California

“public nuisance” law, which would require a court to

decide whether global fossil-fuel production and sales

are “unreasonable”—and thus tortious—by weighing

their value against their harms. State trial judges

and juries, constrained only by the “vague and indeterminate” standards of common-law public nuisance,

City of Milwaukee v. Illinois, 451 U.S. 304, 317

(1981), would thus resolve critical national and international policy issues—and potentially impose devastating extraterritorial liability for lawful conduct encouraged by Congress, other states, and foreign governments alike.

The district court rightly described this theory as

“breathtaking” in scope. App. 32a. And the theory is

not limited to these plaintiffs and defendants, or even

the parties in the many similar cases pending elsewhere. On the cities’ view, any party affected by climate change could sue—in state court, under state

law—“anyone who supplied fossil fuels with

knowledge of” climate change. Id. A patchwork of

conflicting state-law tort rules would inevitably result. And while this particular case was filed in California, it seeks recovery based not only on the companies’ production and sales there, but on all production and sales across the nation and “worldwide.”

CA9 Excerpts of Record (ER) 297 (ECF 29-1). California’s courts would thus use California law to make

energy policy for, and impose liability for conduct occurring in, the other 49 States and many foreign nations.

The district court correctly upheld removal because

these claims necessarily arise under federal law. It

then dismissed them on the merits. The Ninth Circuit, however, rejected federal jurisdiction. It held

that it was “not clear” that these claims implicate any

federal-law questions, and that, in any event, the

well-pleaded complaint rule barred the district court

from looking past the complaints’ state-law labels.

See App. 10a–12a. Both aspects of that ruling clash

with this Court’s decisions, and the second also conflicts with rulings from other circuits.

The cities’ claims, based on the effects of global climate change, arise in an area “undoubtedly” governed by federal law, where state law cannot reach:

“When we deal with air and water in their ambient or

interstate aspects, there is a federal common law.”

Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 421

(2011) (AEP); Illinois v. City of Milwaukee, 406 U.S.

91, 103 (1972). This is not the general federal common law that ended with Erie Railroad v. Tompkins,

304 U.S. 64 (1938), but a limited and specialized body

of law that arises from the constitutional structure,

see AEP, 564 U.S. at 421. The Constitution’s allocation of sovereignty between the States and the federal

government, and among the States themselves, precludes applying state law in certain narrow areas

whose inherently interstate nature requires uniform

national rules of decision. Just as “state courts [are]

not left free to develop their own doctrines” of foreign

relations, Banco Nacional de Cuba v. Sabbatino, 376

U.S. 398, 426 (1964), or to decide disputes with

neighboring states, e.g., Hinderlider v. La Plata River

& Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938),

neither can they make rules that govern interstate or

international pollution. In these areas, “there is an

overriding federal interest in the need for a uniform

rule of decision,” Illinois, 406 U.S. at 105 n.6, so the

“federal judicial power” must supply any rules necessary “to deal with common-law problems,” United

States v. Standard Oil Co. of Cal., 332 U.S. 301, 307

(1947).

In turn, when a plaintiff brings a claim in one of

these exclusively federal areas, that claim necessarily

arises under federal law, creating federal jurisdiction.

That is true even if the claim is couched in state-law

terms, because no state law exists for the plaintiff to

invoke. The Ninth Circuit’s contrary ruling is, as the

United States explained below, “irreconcilable with

the constitutional commitment of such matters to the

national government and the relative rights and obligations of the national government and States under

the structure of the Constitution.” U.S. Reh’g Br. 12.

Nor does it matter whether the claim is ultimately

cognizable under federal law; this Court made clear

in Standard Oil and reiterated in AEP that whether

a federal court has jurisdiction over such a claim does

not depend on whether that claim is viable.

The ruling below also conflicts with other circuits’

view that a “putative state-law claim is . . . removable

if alleged in a field that is properly governed by federal common law such that a cause of action, if any, is

necessarily federal in character.” U.S. Reh’g Br. 2, 5.

In these areas, the “uniquely federal interest [is] so

important that the ‘federal common law’ supplants

state law.” Caudill v. Blue Cross & Blue Shield of

N.C., 999 F.2d 74, 77 (4th Cir. 1993). Thus, a “plaintiff’s characterization of a claim as based solely on

state law is not dispositive.” In re Otter Tail Power

Co., 116 F.3d 1207, 1213 (8th Cir. 1997); see also Sam

L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 923

(5th Cir. 1997).

The Ninth Circuit also erred—and deepened a separate circuit split—by rejecting an alternative basis

to affirm the district court’s exercise of jurisdiction.

The district court certified its order denying remand

for interlocutory review, but the cities declined to appeal. Instead, they amended their complaints to assert federal claims, added new plaintiffs, and litigated the case to judgment. The Ninth Circuit recognized that the amendment “cured any subject-matter

jurisdiction defect,” but it still allowed the cities to

challenge removal because the case ended with a motion to dismiss, not a trial. App. 16a–19a. That ruling implicates circuit splits on whether and when (a)

filing an amended complaint creating federal jurisdiction waives the right to dispute removal and (b) a

challenge to removal is mooted when the federal

court enters final judgment without a trial.

The importance of these cases supports review now.

They cast a shadow over the entire energy sector that

will lengthen if they are allowed to run their long,

slow course in state court, where they do not belong.

The accompanying exposure to vast, indeterminate

monetary relief will deter investment and employment across the industry and the broader economy.

This “economic disruption” and the resulting effect on

“our Nation’s energy needs” warrant prompt intervention. See AEP, 564 U.S. at 427.

These cases will also disrupt and impede the political branches’ international climate-change initiatives

and negotiations. And if they reach judgment, they

will inevitably produce a patchwork of conflicting tort

standards asserting control over global production

and emissions under the laws of multiple States. Allowing state-court judges and juries to regulate production and the resulting emissions based on state

common-law nuisance standards, “whose content

must await the uncertain twists and turns of litigation[,] will leave whole states and industries at sea

and potentially expose them to a welter of conflicting

court orders across the country.” North Carolina ex

rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291, 301

(4th Cir. 2010).

Before state courts across the nation set about deciding whether worldwide fossil-fuel production is unlawful—and thus whether a vital sector of the economy must be shuttered or remade—this Court should

first decide whether these cases are in the right forum and governed by the right law. This Court has

twice granted certiorari to address which governmental bodies have the authority to address global climate change, noting the “unusual importance” of the

issue. Massachusetts v. EPA, 549 U.S. 497, 506

(2007); see AEP, 564 U.S. at 420. And petitioners in

a pending merits case have asked this Court to decide

whether tort claims like these necessarily arise under

federal law. See Br. for Petitioners 38–45, BP p.l.c. v.

Mayor & City Council of Baltimore, No. 19-1189. The

Court should make clear—if not in Baltimore, then

here—that this issue “demands to be governed by as

universal a rule . . . as is available,” which in our system means federal law. App. 56a.

STATEMENT OF THE CASE

A. The cities’ public nuisance theory.

Over twenty governmental bodies, including five

States and the District of Columbia, have brought

suits like this one against a handful of energy companies. These suits seek to compel the companies to

pay to climate-change-proof five entire States, at

least seven large coastal cities, and many other municipalities. The theory pressed here could be asserted by anyone who can allege climate change will

eventually affect them. The total damages available

under this theory are thus incalculable.

Oakland and San Francisco each asserted a publicnuisance claim in California state court, seeking to

require the energy companies “to abate the global

warming-induced sea level rise nuisance to which

they have contributed by funding an abatement program.” E.g., ER 297. Their theory is global—it depends on “worldwide” greenhouse gas emissions since

the Nineteenth Century. See id. They seek to hold

five energy companies liable for “accelerated sea level

rise,” “causing flooding of low-lying areas . . . , increased shoreline erosion, and salt water impacts.”

Id. at 293.

A public nuisance is generally “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts § 821B (1979).

This formulation requires “weighing . . . the gravity of

the harm against the utility of the conduct.” Id. cmt.

e. And the cities urge a more aggressive test, arguing

that California public-nuisance law does not even

“require proof that the harms caused by the use of

Defendants’ fossil-fuel products outweigh the benefits

of that use.” CA9 Reply Br. 21 (ECF 118). In their

view, they need only show “a hazardous condition

that substantially and unreasonably interferes with a

public right.” Id. at 14. And while they recognize

that climate change necessarily flows from the cumulative emissions of all global sources over decades,

they claim these five energy companies are “jointly

and severally liable” for all its effects. ER 297.

B. The district court’s denial of remand.

The energy companies removed the cases to the district court, which addressed them together. Among

other grounds for removal, the companies argued that

the cities’ claims arise under federal law because they

“implicate[ ] uniquely federal interests” and thus can

only be “governed by federal common law, and not

state common law.” ER 206–07.

Judge Alsup agreed that these claims “are necessarily governed by federal common law” and denied

remand. App. 48a. District courts have original jurisdiction over “claims brought under federal common

law.” Id. And federal common law applies if “a federal rule of decision is ‘necessary to protect uniquely

federal interests.’” Id. at 49a. Under AEP and Illinois, that “includes the general subject of environmental law and specifically includes ambient or interstate air and water pollution.” Id. at 49a–50a.

The court explained that the cities’ claims fall in

such an exclusively federal area: “If ever a problem

cried out for a uniform and comprehensive solution, it

is the geophysical problem” of global climate change.

App. 51a. “Taking the complaints at face value, the

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.” Id. And for similar reasons, a “patchwork of fifty different answers to the

same fundamental global issue would be unworkable.” Id. Climate change also “necessarily involves

the relationships between the United States and all

other nations.” Id. at 55a–56a. Thus, “Plaintiffs’

claims for public nuisance, though pled as state-law

claims,” arise under federal law. Id. at 55a.

Addressing the cities’ counterarguments, the court

held that “the well-pleaded complaint rule does not

bar removal” because “a claim ‘arises under’ federal

law if the dispositive issues stated in the complaint

require the application of federal common law.” App.

55a (quoting Illinois, 406 U.S. at 100). And jurisdiction does not depend on whether the claims have

merit: Whether “plaintiffs’ claims, if any, are governed by federal common law” is a separate question

from “whether (or not) plaintiffs have stated claims

for relief.” Id. at 56a.

Although the district court certified its order for

immediate interlocutory appeal, App. 56a, the cities

declined that option, instead amending their complaints to add new plaintiffs and “to plead a separate

claim for public nuisance under federal common law,”

id. at 31a.

C. The district court’s dismissal opinion.

Having resolved the “threshold issue” of “whether

federal common law should govern,” the district court

turned to whether the cities’ allegations stated a

claim. App. 30a–31a. Its answer was no. The issue,

the court explained, “is not over science,” but whether

plaintiffs stated a cognizable federal-common-law

claim based on the theory “that defendants’ sale of

fossil fuels leads to their eventual combustion, which

leads to more carbon dioxide in the atmosphere,

which leads to more global warming and consequent

ocean rise.” Id. at 31a.

This theory is “breathtaking”: “It would reach the

sale of fossil fuels anywhere in the world, including

all past and otherwise lawful sales, where the seller

knew that the combustion of fossil fuels contributed

to the phenomenon of global warming.” App. 32a. As

a result, “anyone who supplied fossil fuels with

knowledge of the problem would be liable.” Id. And

since the cities “seek billions of dollars each,” it

seemed to the district court “a near certainty” that

success for these and similarly situated plaintiffs

“would make the continuation of defendants’ fossil

fuel production ‘not feasible.’” Id. at 42a–43a.

The court concluded that federal common law does

not confer a cause of action. App. 37a. Rather, the

necessary “balancing” is “best left to Congress (or diplomacy).” Id. at 41a. These claims raise “questions

of how to appropriately balance [climate change’s]

worldwide negatives against the worldwide positives

of the energy itself, and of how to allocate the pluses

and minuses among the nations of the world.” Id. at

40a. The claims thus “demand the expertise of our

environmental agencies, our diplomats, our Executive, and at least the Senate.” Id. “Nuisance 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.” Id.

In particular, the global scope of the cities’ theory

counseled against recognizing a cause of action: The

theory rests on “production and sale of fossil fuels

worldwide,” even though that activity is “lawful in

every nation”—and indeed is “actively support[ed]” by

“many foreign governments.” App. 39a. “Nevertheless, plaintiffs would have a single judge or jury in

California impose an abatement fund as a result of

such overseas behavior,” which “would effectively allow plaintiffs to govern conduct and control energy

policy on foreign soil.” Id. The court thus dismissed

the case for failure to state a claim (and dismissed

the claims against four defendants for lack of personal jurisdiction).

D. The Ninth Circuit’s ruling.

The cities appealed, arguing that the well-pleaded

complaint rule precluded removal. On their view,

“the correct order of analysis” is “to determine, first,

whether a particular federal cause of action is available, and only then to determine whether Congress intended that federal law to completely preempt the

state law claim.” CA9 Opening Br. 12 (ECF 30).

The Ninth Circuit agreed, vacating both the denial

of remand and the dismissal. It started from the

premise that, under the well-pleaded complaint rule,

“a civil action arises under federal law for purposes of

§ 1331 when a federal question appears on the face of

the complaint.” App. 7a. The panel saw only two

“exceptions”: (i) “state-law claims that arise under

federal law for purposes of § 1331 ‘because federal

law is ‘a necessary element of the . . . claim for relief,’” exemplified by Grable & Sons Metal Products,

Inc. v. Darue Engineering & Manufacturing, 545 U.S.

308 (2005), see App. 7a; and (ii) statutory complete

preemption, which occurs when “the pre-emptive

force of [a federal] statute is so ‘extraordinary’ that it

converts an ordinary state common-law complaint into one stating a federal claim,” App. 10a.

Having framed the issue that way, the court rejected the district court’s jurisdictional analysis without

further discussion. It then addressed the federalcommon-law issue as part of the Grable inquiry, asking whether the cities’ claims “require resolution of a

substantial question of federal law.” App. 12a. The

court’s answer was no: “Even assuming that the Cities’ allegations could give rise to a cognizable claim

for public nuisance under federal common law, the

district court did not have jurisdiction under § 1331

because the state-law claim for public nuisance fails

to raise a substantial federal question.” Id. (citation

omitted). In the Ninth Circuit’s view, it was “not

clear that the claim requires an interpretation or application of federal law at all, because the Supreme

Court has not yet determined that there is a federal

common law of public nuisance relating to interstate

pollution, and we have held that federal publicnuisance claims aimed at imposing liability on energy

producers . . . are displaced by the Clean Air Act.” Id.

at 13a (citation omitted). The court also rejected removal based on complete preemption under the Clean

Air Act. Id. at 14a–16a.

Finally, the Ninth Circuit acknowledged that “the

Cities cured any subject-matter jurisdiction defect by

amending their complaints to assert a claim under

federal common law” after the denial of remand, and

that they then litigated the case to judgment. App.

16a–17a. But the court held that “considerations of

finality, efficiency, and economy” do not outweigh a

plaintiff’s challenge to removal when a case is resolved by a motion to dismiss, rather than after

summary judgment or trial. Id. at 19a.

The Ninth Circuit thus vacated the district court’s

judgment and remanded the case “to determine

whether there was an alternative basis for jurisdiction,” emphasizing that “if there was not subjectmatter jurisdiction at the time of removal, the cases

must proceed in state court.” App. 22a–23a. The

companies sought rehearing, supported by the United

States, which emphasized that the panel’s “jurisdictional rulings” clashed with other circuits’ decisions

on issues “of exceptional importance.” U.S. Reh’g Br.

2. The court denied rehearing.

E. The pending Baltimore case.

The City of Baltimore brought one of the other climate-change nuisance cases in Maryland court. As

here, the defendants removed on several grounds, including federal common law. But the district court

remanded and the Fourth Circuit affirmed, reading

28 U.S.C. § 1447(d) to restrict appellate review to the

issue authorizing the appeal (there, federal-officer

removal). This Court granted certiorari and scheduled oral argument in January 2021. Petitioners

there ask the Court to hold that (i) § 1447(d) allows

an appellate court to review the district court’s entire

remand order and (ii) the case was properly removed

because Baltimore’s claims necessarily arise under

federal common law. See Br. for Petitioners 16–45,

No. 19-1189.

REASONS FOR GRANTING THE PETITION

I. The Ninth Circuit’s rejection of federalcommon-law jurisdiction warrants review.

The Ninth Circuit’s jurisdictional ruling contradicts

this Court’s precedent in two respects and conflicts

with other circuits’ decisions. First, the court concluded that the cities’ tort claims alleging harm from

interstate and global pollution implicated no substantial federal-law questions. But as this Court has explained, the Constitution’s federal structure requires

that claims in a few narrow areas be governed exclusively by uniform federal rules of decision. And interstate pollution is “undoubtedly” such an area.

AEP, 564 U.S. at 421. Second, the Ninth Circuit held

that, in any event, putative state-law claims are removable under 28 U.S.C. §§ 1331 and 1441 only if

they satisfy Grable or are completely preempted by

federal statute. But this Court’s decisions establish

another path for removal: Because federal law exclusively governs interstate-pollution claims, such a

claim necessarily arises under federal law and is removable to federal court—even if the claim is framed

under state law, and even if federal law does not ultimately provide a cause of action that would allow

the claim to proceed. Other circuits have properly

recognized these principles in various contexts. Review is warranted to resolve this lopsided conflict.

A. The Ninth Circuit’s conclusion that federal common law does not govern interstate-pollution claims conflicts with this

Court’s decisions.

The Ninth Circuit believed it was “not clear” that

the cities’ claims implicated any federal-law issues,

“because the Supreme Court has not yet determined

that there is a federal common law of public nuisance

relating to interstate pollution.” App. 13a. But this

Court has made very clear that interstate pollution is

one of the few areas that, given the constitutional

structure, must be governed by federal law to the exclusion of state law. The Ninth Circuit thus “disregarded a longstanding line of Supreme Court cases

holding that claims involving interstate air and water

pollution arise directly under federal common law.”

U.S. Reh’g Br. 2. The cities’ claims do not just implicate federal-law issues—they are federal claims.

After Erie, there “is no federal general common

law.” 304 U.S. at 78. But Erie did not question federal authority over “matters . . . so vitally affecting

interests, powers and relations of the Federal Government as to require uniform national disposition

rather than diversified state rulings.” Standard Oil,

332 U.S. at 307. The “federal judicial power to deal

with common-law problems” thus “remain[s] unimpaired for dealing independently, wherever necessary

or appropriate, with essentially federal matters, even

though Congress has not acted affirmatively about

the specific question.” Id. In these specialized areas,

“where there is an overriding federal interest in the

need for a uniform rule of decision,” Illinois, 406 U.S.

at 105 n.6, “state law cannot be used,” Milwaukee,

451 U.S. at 313 n.7.

Interstate pollution is such an area. Illinois held,

and AEP reiterated, that claims based on ambient,

cross-border pollution arise under federal common

law. “Environmental protection is undoubtedly an

area . . . in which federal courts may . . . ‘fashion federal law.’” AEP, 564 U.S. at 421. In particular,

“[w]hen we deal with air and water in their ambient

or interstate aspects, there is a federal common law.”

Id. (quoting Illinois, 406 U.S. at 103). Likewise, “the

regulation of interstate water pollution is a matter of

federal, not state, law.” Int’l Paper Co. v. Ouellette,

479 U.S. 481, 488 (1987). And “the various federal

environmental protection statutes will not necessarily mark the outer bounds of the federal common law”

in this area. Illinois, 406 U.S. at 103 n.5. So as Illinois explained: “Federal common law and not the

varying common law of the individual States is . . .

necessary to be recognized as a basis for dealing in

uniform standard with the environmental rights of a

State against improper impairment by sources outside its domain.” Id. at 107 n.9. Such claims thus

“aris[e] under the laws of the United States.” Id. at

100.

The conclusion that federal law must apply here,

and state law cannot, flows directly from the constitutional structure. As the Court explained on the

same day it decided Erie, an interstate environmental

dispute necessarily presents “a question of ‘federal

common law’ upon which neither the statutes nor the

decisions of either State can be conclusive.” Hinderlider, 304 U.S. at 110 (citing, e.g., Kansas v. Colorado,

206 U.S. 46, 97 (1907)). Allowing state law to govern

such claims would permit one state to “impose its

own legislation on . . . the others,” violating the “cardinal” principle that “[e]ach State stands on the same

level with all the rest.” Kansas, 206 U.S. at 97; see

also Bradford R. Clark, Federal Common Law: A

Structural Reinterpretation, 144 U. Pa. L. Rev. 1245,

1322–24 (1996) (federal-common-law rules governing

interstate claims “implement the constitutional

equality of the states”). As several States recently

told this Court in Baltimore, “each State is afforded

regulatory autonomy because other States’ policy prerogatives stop at the state line.” Br. of Indiana et al.

as Amici Curiae 25, No. 19-1189. Thus, courts in a

single State cannot make a “one-size-fits-all policy”

for the whole Nation. Id. In turn, as the United

States explained, “putative tort claims that seek to

apply the law of an affected State to conduct in another State . . . arise under ‘federal, not state, law.’”

Br. for the United States as Amicus Curiae 27, No.

19-1189.

Federal law also exclusively governs claims that

implicate the federal division of sovereignty between

the States and the United States. Foreign affairs is

the most obvious example, presenting “uniquely federal” questions. See Sabbatino, 376 U.S. at 424.

Thus, “an issue concerned with . . . ordering our relationships with other members of the international

community must be treated exclusively as an aspect

of federal law.” Id. at 425. In this area, “state courts

[are] not left free to develop their own doctrines.” Id.

at 426; see 19 Wright & Miller, Federal Practice and

Procedure: Jurisdiction § 4514 (3d ed. 2020). The

Constitution’s exclusive allocation of foreign affairs

authority to the federal government “reflect[s] a concern for uniformity in this country’s dealings with

foreign nations and indicat[es] a desire to give matters of international significance to the jurisdiction of

federal institutions.” Sabbatino, 376 U.S. at 427

n.25.

These principles apply fully here. As the district

court recognized, the “global” scope of the cities’

claims “implicat[es] the conflicting rights of States

[and] our relations with foreign nations.” App. 49a–

50a. By “seek[ing] to impose liability for conduct occurring on and impacting federal property and in

other States,” these claims attempt to impose California’s law beyond its borders. See U.S. Reh’g Br.

11.

Beyond these structural limitations, the Ninth Circuit’s approach would create significant policy con-

flicts, both domestically and internationally. State

courts would inevitably reach differing answers in

these cases, producing a “patchwork of fifty different

answers to the same fundamental global issue.” App.

51a; cf. Indiana et al. Reh’g Br. 18 (ECF 186) (“Each

State’s policy reflects a State-specific balancing of the

costs and benefits of climate change regulation.”).

And by “bring[ing] claims against defendants for having put fossil fuels into the flow of international

commerce,” the cities “attack behavior worldwide”:

“While some of the fuel produced by defendants is

certainly consumed in the United States . . . , greenhouse gases emanating from overseas sources are

equally guilty (perhaps more so) of causing plaintiffs’

harm.” App. 54a. The cities’ theory thus “would effectively allow plaintiffs to govern conduct and control energy policy on foreign soil.” Id. at 39a. These

claims therefore “involve[ ] the relationships between

the United States and all other nations.” Id. at 55a–

56a.

Further, as the United States explained below, “the

federal interests in the subject matter are acute”:

“federal law and policy” have long treated fossil fuels

as “strategically important domestic resources.” U.S.

Reh’g Br. 10 (citing 42 U.S.C. § 15927(b)(1), (c)). The

cities’ attempt to end domestic production would

make the United States dependent on foreign fossil

fuels. What is more, the U.S. military “is the world’s

largest institutional user of petroleum and correspondingly, the single largest institutional producer

of greenhouse gases.” Neta C. Crawford, Pentagon

Fuel Use, Climate Change, and the Costs of War 2,

Watson Inst. Int’l & Pub. Affairs (rev. Nov. 13, 2019).

The military would be severely impacted if domestic

production were massively curtailed, as the cities

seek.

For all these reasons, there is “an overriding federal interest in the need for a uniform rule of decision”

here. See Illinois, 406 U.S. at 105 n.6; City of New

York v. BP P.L.C., 325 F. Supp. 3d 466, 471 (S.D.N.Y.

2018) (holding that materially identical claims are

“exactly the type of ‘transboundary pollution suit[ ]’ to

which federal common law should apply”), appeal

docketed, No. 18-2188 (2d Cir. July 26, 2018).

The Ninth Circuit’s contrary conclusion misunderstands the interaction between state and federal

common law. The cities argued below that, because

AEP and Native Village of Kivalina v. ExxonMobil

Corp., 696 F.3d 849 (9th Cir. 2012), held that “the

federal common law governing greenhouse-gas emissions has been entirely displaced by the Clean Air

Act” (CAA), state common law is available unless the

CAA preempts it. CA9 Opening Br. 14, 17. The

Ninth Circuit appeared to agree, suggesting that “a

state-law nuisance claim” might be viable. App. 13a–

14a. But in cases that involve “interstate and international disputes implicating the conflicting rights of

States or our relations with foreign nations,” only

federal law can apply because “our federal system

does not permit the controversy to be resolved under

state law” at all. Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981). Thus, whether the

CAA would preempt state law is irrelevant—no state

law exists here. See Br. for the United States as

Amicus Curiae 27, No. 19-1189.

Nor can the cities avoid federal law by asserting

claims nominally aimed at fossil-fuel production and

“deceptive[ ]” marketing rather than emissions. App.

52a & n.2. The cities do not claim harm from production or sales alone. Rather, their alleged harms—the

effects of global climate change—all flow from greenhouse-gas emissions. Id.; see City of New York, 325

F. Supp. 3d at 471–72. Indeed, their theory of harm

depends on all these emissions, across the globe,

since the industrial revolution. E.g., ER 297. On this

theory, production and sales alone would create no

liability. And it does not matter that the cities seek

monetary instead of injunctive relief; damages regulate conduct too, particularly in the amounts contemplated. E.g., Kurns v. R.R. Friction Prods. Corp., 565

U.S. 625, 637 (2012).

The cities thus seek to regulate interstate and international greenhouse-gas emissions—precisely the

sort of claim federal law exclusively governs. The

Ninth Circuit’s contrary conclusion conflicts with this

Court’s decisions.

B. The Ninth Circuit’s application of the

well-pleaded complaint rule conflicts

with decisions of this Court and other

circuits.

The Ninth Circuit also erred by holding that the

well-pleaded complaint rule bars removal of putative

state-law claims unless they satisfy Grable or are

completely preempted by federal statute.

This

Court’s precedents show—and other circuits hold—

that claims governed exclusively by federal common

law are removable, however the plaintiff labels them

and whether or not they are cognizable under federal

law.

1. It is “well settled” that § 1331’s “grant of ‘jurisdiction will support claims founded upon federal

common law.’” Nat’l Farmers Union Ins. Cos. v. Crow

Tribe, 471 U.S. 845, 850 (1985). District courts thus

have original jurisdiction whenever “the dispositive

issues stated in the complaint require the application

of federal common law.” Illinois, 406 U.S. at 100; see

also Sosa v. Alvarez-Machain, 542 U.S. 692, 745 n.*

(2004) (Scalia, J., concurring) (noting that a post-Erie

“federal-common-law cause of action . . . ‘arise[s] under’ the laws of the United States, not only for purposes of Article III but also for purposes of statutory

federal-question jurisdiction”). In turn, such cases

are removable from state court. See 28 U.S.C.

§ 1441(a) (allowing removal of “any civil action” within the district courts’ “original jurisdiction”).

The Ninth Circuit failed to apply this rule because

it misunderstood the relationship between state law

and federal common law. To be sure, plaintiffs can

usually avoid removal by pleading only state-law

claims, even if federal claims are available. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). But in

an area that the Constitution instructs is governed

exclusively by federal law, state law cannot apply. As

just explained, “if federal common law exists, it is because state law cannot be used.” Milwaukee, 451

U.S. at 313 n.7. In turn, a plaintiff asserting claims

in one of these “narrow areas” cannot choose between

state and federal law because no state law exists. See

Tex. Indus., 451 U.S. at 641. “As a matter of constitutional structure, any claims asserted in this area

are inherently federal.” U.S. Reh’g Br. 5.

The Ninth Circuit was thus wrong to hold that the

well-pleaded complaint rule barred removal. App. 6a.

An “independent corollary of the well-pleaded complaint rule” holds “that a plaintiff may not defeat removal by omitting to plead necessary federal questions.” Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 22 (1983) (emphasis added).

That is, “a plaintiff cannot frustrate a defendant’s

right to remove by pleading a case without reference

to any federal law when the plaintiff’s claim is necessarily federal.” See 14C Wright & Miller, Federal

Practice and Procedure: Jurisdiction § 3722.1 (rev.

4th ed. 2020). As a result, a federal court must sometimes “determine whether the real nature of the

claim is federal, regardless of plaintiff’s characterization.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.

394, 397 n.2 (1981). While the Court has applied this

artful-pleading principle in complete-preemption cases involving federal statutes, there is “[n]o plausible

reason” why “the appropriateness of and need for a

federal forum should turn on whether the claim arose

under a federal statute or under federal common

law.” Richard H. Fallon, Jr. et al., Hart & Wechsler’s

the Federal Courts and the Federal System 818 (7th

ed. 2015); Br. for the United States as Amicus Curiae

28, No. 19-1189. The Ninth Circuit thus contradicted

this Court’s precedent by treating the cities’ state-law

label as dispositive.

The Ninth Circuit was also wrong to suggest that a

claim cannot be removed unless a viable federal cause

of action exists. App. 45a. The cities argued that

federal jurisdiction is lacking “[w]hen a federal law

arguably eliminates a state law claim without substituting rights and remedies of its own.” CA9 Opening

Br. 11. The Ninth Circuit apparently agreed, questioning whether “the Cities’ allegations could give

rise to a cognizable claim for public nuisance under

federal common law.” App. 12a (emphasis added).

But the court of appeals “confused the question

whether the subject matter of the claims asserted is

governed by federal common law with the [question]

whether federal law ultimately provides a cause of

action on the merits.” U.S. Reh’g Br. 8. These questions are distinct: “Recognition that a subject is meet

for federal law governance . . . does not necessarily

mean that federal courts should create the controlling

law.” AEP, 564 U.S. at 422.

Standard Oil shows the proper two-step analysis.

At the first (jurisdictional) step, this Court held that

federal common law, not state law, controlled the “essentially federal” question of whether the government

could recover for the hospital costs and lost services

of a soldier hurt in a traffic accident. 332 U.S. at 307.

But that did not mean the government had a viable

cause of action. At the second (merits) step, this

Court emphasized its “modest” capacity “to create

new common-law liabilities,” and held that establishing the claim was a task for Congress, “not for any

creative power of ours.” Id. at 313–14, 316. The

claim thus arose under federal common law even

though no federal cause of action existed.

So, as the First Circuit has aptly summarized

Standard Oil’s analysis: “As long as the source of the

rule to be applied is federal, the . . . case is one ‘arising under’ federal law . . . regardless of what the . . .

substance [of the federal rule] eventually may prove

to be.” United States v. Swiss Am. Bank, Ltd., 191

F.3d 30, 45 (1st Cir. 1999). Indeed, in the statutory

complete-preemption context, this Court has rejected

the argument that “a case may not be removed to federal court . . . unless the federal cause of action relied

upon provides the plaintiff with a remedy.” Williams,

482 U.S. at 391 n.4. In turn, while the district court

ultimately held—correctly, in Petitioners’ view—that

the cities lack a viable federal cause of action, that

question is not relevant to the jurisdictional question

this petition presents.

2. The decision below conflicts with decisions from

other circuits. In several contexts involving uniquely

federal interests, courts have recognized that claims

asserted in an exclusively federal area arise under

federal common law and create federal jurisdiction—

no matter how they are pled.

The Fifth and Seventh Circuits have upheld “federal question jurisdiction based on the federal common

law that controls an action seeking to recover damages against an airline for lost or damaged shipments.”

Majors Jewelers, 117 F.3d at 923. Majors Jewelers

affirmed the removal of putative state-law claims

filed in state court against an airline for lost luggage.

The Fifth Circuit explained—contrary to the decision

below, App. 7a—that a case is removable in three situations: (i) if there is a federal statutory cause of action; (ii) if the subject “is completely preempted”; or

(iii) “if the cause of action arises under federal common law.” 117 F.3d at 924. And the plaintiff’s

claims, while pled as state-law claims, see id.,

“ar[ose] under federal common law,” id. at 929. They

were thus removable even though they did “not arise

under a federal statute and . . . jurisdiction [was] not

supported by complete preemption.” Id. at 926.

The Seventh Circuit endorsed Majors Jewelers in

another air-carrier case. Treiber & Straub, Inc. v.

UPS, Inc., 474 F.3d 379 (7th Cir. 2007). Although

Treiber & Straub was filed in federal court, the plaintiff did not invoke federal common law, instead invoking jurisdiction under inapplicable federal statutes,

and asserted state-law claims. Id. at 383. The court

held that a claim in this area “arises under federal

common law and thus falls within the district court’s

federal question jurisdiction.” Id. at 384. And because the claim arose under federal common law,

there was no “separate state [law] theory left.” Id. at

384, 387.

The Fourth Circuit has affirmed removal of a statecourt complaint alleging a putative “state law claim

for breach of [a federal health] insurance contract.”

Caudill, 999 F.2d at 77. The court explained that

“some areas involving ‘uniquely federal interests’ may

be so important to the federal government that a ‘federal common law’ related to those areas will supplant

state law . . . regardless of whether Congress has

shown any intent to preempt the area.” Id. at 78.

And the court held that this test was satisfied by the

federal health-benefit contracts at issue. See id. at

78–79. While this Court later disagreed that uniform

federal-common-law rules govern federal healthbenefit contracts, see Empire Healthchoice Assurance,

Inc. v. McVeigh, 547 U.S. 677, 693 (2006), it did not

disturb Caudill’s independent holding that putative

state-law claims are removable if they arise in an area implicating uniquely federal interests.

The Eighth Circuit has similarly found federal jurisdiction over a removed state-court complaint that

raised putative state-law claims. Otter Tail, 116 F.3d

at 1215. The complaint “raise[d] important questions

of federal law requiring interpretation of treaties,

federal statutes, and the federal common law of inherent tribal sovereignty.” Id. In that situation, the

“plaintiff’s characterization of a claim as based solely

on state law is not dispositive” because the complaint

“necessarily presents a federal question,” and removal is proper. Id. at 1213–14.

Likewise, the Second Circuit has upheld federal jurisdiction over claims governed by the federal common law of foreign relations. In Republic of Philippines v. Marcos, the Philippine government sought an

injunction in state court against its former president’s transfer of properties. 806 F.2d 344, 346 (2d

Cir. 1986). Although “the face of the complaint” asserted a claim “akin to a state cause of action for conversion,” the Second Circuit held that removal was

proper: The “action arises under federal law” because

it “necessarily require[s] determinations that will directly and significantly affect American foreign rela-

tions,” see id. at 352–54. In such a case, “federal

common law” should “displace a purely state cause of

action,” id. at 354, and “there is federal question jurisdiction,” id. at 353. In any event, removal was

proper because the claim raised “a federal question to

be decided with uniformity as a matter of federal law,

and not separately in each state.” Id. at 354.

Other cases uphold federal jurisdiction over claims

implicating federal common law using a Grable-type

analysis. These cases ask, as the Ninth Circuit did,

whether the complaint raises a “substantial question

of federal law.” But the outcome of these cases conflicts with the Ninth Circuit’s view that plaintiffs can

opt to plead only state-law claims, and thus avoid

removal, in an area where federal common law exclusively governs.

For example, the Fourth Circuit reversed the remand of a homeowner’s state-law claims against his

flood insurer. Battle v. Seibels Bruce Ins. Co., 288

F.3d 596, 598 (4th Cir. 2002). Although the complaint did not invoke federal law, federal jurisdiction

existed because “federal common law alone governs

the interpretation” of flood insurance policies. Id. at

607 & n.17; see also Newton v. Capital Assurance Co.,

245 F.3d 1306, 1309 (11th Cir. 2001) (similar). And

the Fifth Circuit has affirmed removal of “state-law

tort claims” against a foreign company—despite the

plaintiffs’ invocation of “the well-pleaded complaint

rule”—because the case “raise[d] substantial questions of federal common law by implicating important

foreign policy concerns.” Torres v. S. Peru Copper

Corp., 113 F.3d 540, 542–43 (5th Cir. 1997).

Each of these other circuits recognizes that claims

asserted in an area governed exclusively by federal

common law arise under federal law and create fed-

eral jurisdiction—however they are pled, and whatever approach to federal jurisdiction applies.

II. The Ninth Circuit deepened a circuit split

by letting the cities contest removal after

amending their complaint to assert federal

claims and litigating those claims to judgment.

The Ninth Circuit erred in a second, independent

respect. After the district court denied remand, the

cities “cured any subject-matter jurisdiction defect by

amending their complaints to assert a claim under

federal common law” and then litigated the case to

final judgment. App. 16a–17a; see id. at 31a. Yet the

court still let the cities contest removal on appeal. Id.

at 16a–22a. That ruling conflicts with decisions of

this Court and widens two independent circuit splits.

First, the circuits are divided on whether, and

when, a post-removal amendment that establishes

federal jurisdiction waives the plaintiff’s right to keep

challenging whether jurisdiction existed at the time

of removal. Second, courts disagree about whether,

and when, a plaintiff’s challenge to removal is mooted

if the case reaches final judgment in federal court,

based mainly on differing readings of Caterpillar, Inc.

v. Lewis, 519 U.S. 62 (1996). Both questions arise

frequently; both have substantial implications for

economy, efficiency, and fairness. Yet in an area related to jurisdiction, where clarity is vital, the circuits

remain divided.

1. The decision below widened the split on waivers

of challenges to removal. The Ninth Circuit held that

the cities did not waive their removal challenge when

they added federal claims and new plaintiffs. App.

16a–22a. That decision tracks the Fifth Circuit’s

view. See Camsoft Data Sys., Inc. v. S. Elecs. Supply,

Inc., 756 F.3d 327, 338 (5th Cir. 2014).

Three other circuits disagree. For example, the

Second Circuit has explained that “if a district court

erroneously exercises removal jurisdiction over an action, and the plaintiff voluntarily amends the complaint to allege federal claims, we will not remand for

want of jurisdiction.” Barbara v. N.Y. Stock Exch.,

Inc., 99 F.3d 49, 56 (2d Cir. 1996), abrogated on other

grounds by Merrill Lynch, Pierce, Fenner & Smith

Inc. v. Manning, 136 S. Ct. 1562 (2016). Likewise,

the Seventh Circuit declined to remand an improperly removed case because the plaintiff added an “unmistakable federal cause of action,” thus “thr[o]w[ing]

in the towel” on jurisdiction. Bernstein v. LinWaldock & Co., 738 F.2d 179, 185 (7th Cir. 1984).

See also Brough v. United Steelworkers of Am., 437

F.2d 748, 749–50 (1st Cir. 1971) (“Clearly plaintiff

cannot be permitted to invoke the jurisdiction of the

federal court, and then disclaim it when he loses.”).1

The Ninth Circuit’s rule—allowing plaintiffs to exploit the federal forum but return to state court if

they lose on the merits—wastes resources and encourages gamesmanship. Under this rule, a plaintiff

“would be in a position where if he won his case on

the merits in federal court he could claim to have

raised the federal question in his amended complaint

voluntarily, and if he lost he could claim to have

raised it involuntarily and to be entitled to start over

1 Some circuits do not find waiver if the amendment is “invol-

untary”—if, for example, the court orders the plaintiff to amend

or face dismissal. See In re Wireless Tel. Fed. Cost Recovery Fees

Litig., 396 F.3d 922, 929 (8th Cir. 2005). No such argument applies here. Indeed, although the district court certified the remand order for immediate appeal, App. 56a, the cities declined

and instead amended their complaint to add a federal claim.

in state court.” Bernstein, 738 F.2d at 185. This

Court should resolve the conflict and hold that voluntarily amending a complaint to add federal claims

waives the right to challenge removal.

2. The decision below widened an entrenched split

on whether plaintiffs may challenge removal on appeal even when federal jurisdiction indubitably exists

at final judgment. This split reflects divergent readings of Caterpillar, which explained that “a district

court’s error in failing to remand a case improperly

removed is not fatal to the ensuing adjudication if

federal jurisdictional requirements are met at the

time judgment is entered.” 519 U.S. at 64. Here, the

Ninth Circuit decided that, despite the district court’s

undisputed jurisdiction at final judgment, the cities’

removal challenge was not moot because the case had

been resolved on a motion to dismiss, not after trial

or other extensive proceedings. App. 19a.

In doing so, the Ninth Circuit effectively joined the

Fifth Circuit, which interprets Caterpillar’s teachings

about the mootness of a removal challenge to apply

only after trial. See Camsoft, 756 F.3d at 338. Similarly, the Sixth Circuit has found that Caterpillar

had “its limits” and that a pretrial judgment may not

be “weighty enough” to overcome a plaintiff’s objection to improper removal. Gentek Bldg. Prods., Inc. v.

Sherwin-Williams Co., 491 F.3d 320, 327 (6th Cir.

2007). Following the Fifth Circuit, the Sixth Circuit

reasoned that Caterpillar should not apply when the

final judgment results from a motion to dismiss. Id.

(Caterpillar’s application is “greatly influenced” by

whether there is a “trial on the merits”); see also

Thermoset Corp. v. Bldg. Materials Corp., 849 F.3d

1313, 1321 (11th Cir. 2017) (finding summary judgment an insufficient basis to deny remand under Caterpillar).

In contrast, several circuits hold that “Caterpillar applies not only after a trial but also when ‘judgment is based on . . . a district court’s ruling on a dispositive motion.’” Paros Props., LLC v. Colo. Cas. Ins.

Co., 835 F.3d 1264, 1273 (10th Cir. 2016). Indeed,

the Eighth Circuit reads Caterpillar to state “a categorical rule” that a case should not be remanded if

the court had jurisdiction at final judgment, “not a

case-by-case inquiry into how much time was spent

litigating.” Ellingsworth v. Vermeer Mfg. Co., 949

F.3d 1097, 1100 (8th Cir. 2020). And the Fourth Circuit reads Caterpillar to moot challenges to remand

even before judgment, because “[r]equiring pointless

movement between state and federal court before a

case is tried on the merits can likewise impose significant costs on both courts and litigants.” Moffitt v.

Residential Funding Co., 604 F.3d 156, 160 (4th Cir.

2010).

The erroneous approach embraced by the Fifth,

Sixth, Ninth, and Eleventh Circuits—that a final

judgment granting a motion to dismiss does not trigger the Caterpillar rule—yields unpredictable and

arbitrary results. Lines that determine jurisdiction

should be bright and incorporate appropriate incentives. See Direct Mktg. Ass’n v. Brohl, 135 S. Ct.

1124, 1133 (2015). Caterpillar decided that removal

defects are “not fatal . . . if federal jurisdictional requirements are met at the time judgment is entered.”

519 U.S. at 64. And while this Court cited efficiency

and economy considerations, it also emphasized finality: “To wipe out the adjudication postjudgment, and

return to state court a case now satisfying all federal

jurisdictional requirements, would impose an exorbitant cost on our dual court system, a cost incompatible with the fair and unprotracted administration of

justice.” Id. at 77.

This Court should confirm the bright-line rule that,

where federal jurisdiction exists at final judgment,

challenges to removal are moot. Pointless movement

between federal and state courts is inefficient for

courts and parties. Under the proper rule, the Ninth

Circuit erred by allowing the cities to dispute jurisdiction on appeal.

The Court should grant review to resolve these conflicts and, on these independent grounds, hold that

the cities waived their challenges to removal or that

those challenges were moot.

III. The questions presented are important, and

this case is an excellent vehicle.

1. The questions presented are important and recurring. Climate change is a serious issue, and addressing that issue is one of the most pressing public

policy challenges today. But neither governing law

nor common sense supports resolving this complex,

difficult issue through potentially countless and conflicting state-court nuisance actions. As the United

States argued in AEP, “[t]he confluence in this case of

several factors—including countless potential plaintiffs and defendants, the lack of judicial manageability, and the unusually broad range of underlying policy judgments that would need to be made—

demonstrates that plaintiffs’ concerns about climate

change should be resolved by the representative

Branches.” Br. for TVA as Resp’t Supporting Pet’rs

20, No. 10-174. The decision below “would encourage

courts to use vague public nuisance standards to

scuttle the nation’s carefully created system for accommodating the need for energy production and the

need for clean air,” leading to “a confused patchwork

of standards, to the detriment of industry and the en-

vironment alike.” North Carolina, 615 F.3d at 296.

In fact, the district court concluded that, if the cities’

theory were viable, the resulting mess of litigation

and conflicting state-court rules could render continued fossil-fuel production “not feasible.” App. 42a.

The potential impact of this litigation thus favors

immediate review.

Indeed, as the Baltimore petitioners explained, the

Court should hold that Baltimore’s claims were

properly removed because (as here) they necessarily

arise under federal law. But if the Court does not

reach that question in Baltimore, it should do so here.

More broadly, whether a purported state-law claim

is removable because it arises exclusively under federal common law is a significant jurisdictional question that warrants review—especially given the

Ninth Circuit’s departure from the rule so many other circuits apply. This issue arises in several contexts

of unique federal importance, from interstate pollution to foreign affairs to tribal relations. Likewise,

questions of whether and when a plaintiff can challenge removal on appeal after the removal defect has

been cured arise often and have split the circuits.

This Court has reviewed “many cases” “involving federal jurisdiction,” including removal jurisdiction. Eugene Gressman et al., Supreme Court Practice § 4.15

(9th ed. 2007). It should do so here too.

2. This case is an excellent vehicle to resolve the

questions presented. Both questions are squarely

presented, and both were pressed and passed upon

below. The Court should not wait for a state trial

court to decide a public nuisance claim based on global climate change and then for the state appellate

courts to review its judgment before determining

whether these many cases belong in federal or state

court. Throughout that process, the specter of liabil-

ity and the harm caused by persistent uncertainty

will hang over the energy industry and the economy.

And the political branches’ ongoing international climate-change efforts will be disrupted or stymied.

Nor is a trial needed to see that this issue is not fit

for regulation-by-litigation, let alone under multiple,

varying state tort standards. Climate change calls

for uniform national and international standards.

This Court granted review in AEP in a similar posture.

CONCLUSION

The Court should hold this petition for Baltimore,

No. 19-1189. If that case does not decide the first

question presented here in petitioners’ favor, the

Court should grant this petition.

Respectfully submitted,

KANNON K. SHANMUGAM

JUSTIN ANDERSON

WILLIAM T. MARKS

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K St. NW

Washington, DC 20006

PETER D. KEISLER*

VIRGINIA A. SEITZ

C. FREDERICK BECKNER III

RYAN C. MORRIS

TOBIAS S. LOSS-EATON

SIDLEY AUSTIN LLP

1501 K St. NW

Washington, DC 20005

(202) 736-8000

pkeisler@sidley.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP THEODORE J. BOUTROUS, JR.

1285 Avenue of the Americas THOMAS G. HUNGAR

New York, NY 10019

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave. NW

M. RANDALL OPPENHEIMER

Washington, DC 20036

DAWN SESTITO

O’MELVENY & MYERS LLP

Counsel for Chevron Corporation

400 South Hope St.

SEAN C. GRIMSLEY

Los Angeles, CA 90071

JAMESON R. JONES

DANIEL R. BRODY

Counsel for Exxon Mobil

Corporation

BARTLIT BECK LLP

1801 Wewatta St.

DAVID C. FREDERICK

Suite 1200

BRENDAN J. CRIMMINS

Denver, CO 80202

DANIEL S. SEVERSON

Counsel for ConocoPhillips

KELLOGG, HANSEN,

TODD, FIGEL &

NANCY G. MILBURN

FREDERICK, P.L.L.C.

ARNOLD & PORTER KAYE

1615 M St. NW

SCHOLER LLP

Suite 400

250 West 55th St.

Washington, DC 20036

New York, NY 10019

Counsel for Royal

JONATHAN W. HUGHES

Dutch Shell plc

MATTHEW T. HEARTNEY

JOHN D. LOMBARDO

ARNOLD & PORTER KAYE

SCHOLER LLP

Three Embarcadero Center,

10th Floor

San Francisco, CA 94111

ETHAN G. SHENKMAN

ARNOLD & PORTER KAYE

SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

Counsel for BP p.l.c.

January 8, 2021

* Counsel of Record

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