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

APPENDIX

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

————

No. 18-16663

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CITY OF OAKLAND, a Municipal Corporation, and The

People of the State of California, acting by and

through the Oakland City Attorney; 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,

Plaintiffs-Appellants,

v.

BP PLC, a public limited company of England and

Wales; CHEVRON CORPORATION, a Delaware

corporation; CONOCOPHILLIPS, a Delaware

corporation; EXXON MOBIL CORPORATION, a New

Jersey corporation; ROYAL DUTCH SHELL PLC, a

public limited company of England and Wales; DOES,

1 through 10,

Defendants-Appellees.

————

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding,

D.C. Nos.

3:17-cv-06011-WHA

3:17-cv-06012-WHA

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Argued and Submitted February 5, 2020

Pasadena, California

Filed May 26, 2020

————

Before: Sandra S. Ikuta, Morgan Christen,

and Kenneth K. Lee, Circuit Judges.

————

OPINION

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IKUTA, Circuit Judge:

Two California cities brought actions in state court

alleging that the defendants’ production and promotion of fossil fuels is a public nuisance under California law, and the defendants removed the complaints

to federal court. We hold that the state-law claim for

public nuisance does not arise under federal law for

purposes of 28 U.S.C. § 1331, and we remand to the

district court to consider whether there was an alternative basis for subject-matter jurisdiction.

I

In September 2017, the city attorneys for the City

of Oakland and the City and County of San Francisco

filed complaints in California state court asserting a

California public-nuisance claim against five of the

world’s largest energy companies: BP p.l.c., Chevron

Corporation, ConocoPhillips, Exxon Mobil Corporation, and Royal Dutch Shell plc.1 The complaints

1 Under California law, a city attorney may bring an action to

abate a public nuisance “in the name of the people of the State of

California,” Cal. Civ. Proc. Code § 731, and so the complaints

were brought in the name of the people of the State of Califor-

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claim that the defendants are liable for causing or

contributing to a public nuisance under California

law. See Cal. Civ. Code §§ 3479, 3480, 3491, 3494;

Cal. Civ. Proc. Code § 731. We refer to the plaintiffs

collectively as the “Cities” and to the defendants collectively as the “Energy Companies.”

According to the complaints, the Energy Companies’ “production and promotion of massive quantities

of fossil fuels” caused or contributed to “global warming-induced sea level rise,” leading to coastal flooding

of low-lying shorelines, increased shoreline erosion,

salt-water impacts on the Cities’ wastewater treatment systems, and interference with stormwater infrastructure, among other injuries. The complaints

further allege that the Cities are incurring costs to

abate these harms and expect the injuries will become more severe over the next 80 years. Accordingly, the Cities seek an order of abatement requiring

the Energy Companies to fund a “climate change adaptation program” for Oakland and San Francisco

“consisting of the building of sea walls, raising the

elevation of low-lying property and buildings and

building such other infrastructure as is necessary for

[the Cities] to adapt to climate change.”

In October 2017, the Energy Companies removed

the Cities’ complaints to federal court. The Energy

Companies identified seven different grounds for subject-matter jurisdiction in their notices of removal,

including that the Cities’ public-nuisance claim was

governed by federal common law because the claim

implicates “uniquely federal interests.”2 After removnia, acting by and through the city attorneys of Oakland and

San Francisco.

2 The notice of removal also asserted that the complaints are

removable because the Cities’ claim: (1) raises disputed and substantial federal issues, see Grable & Sons Metal Prods., Inc v.

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al, the cases were assigned to the same district judge,

Judge William H. Alsup.3

The Cities moved to remand the cases to state court

on the ground that the district court lacked subjectmatter jurisdiction. The district court denied the motion, concluding that it had federal-question jurisdiction under 28 U.S.C. § 1331 because the Cities’ claim

was “necessarily governed by federal common law.”

The district court reasoned that the Cities’ publicnuisance claim raised issues relating to “interstate

and international disputes implicating the conflicting

rights of States or . . . relations with foreign nations”

and that these issues had to be resolved pursuant to

a uniform federal standard.

In response to the district court’s ruling, the Cities

amended their complaints to include a publicnuisance claim under federal common law.4 The

Darue Eng’g & Mfg., 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d

257 (2005); (2) is “completely preempted” by federal law; (3)

arises out of operations on the outer Continental Shelf, see 43

U.S.C. § 1349(b); (4) implicates actions that the Energy Companies took “pursuant to a federal officer’s directions,” see 28

U.S.C. § 1442(a)(1); (5) arose on “federal enclaves”; and (6) is

related to bankruptcy cases, see 28 U.S.C. §§ 1334(b), 1452(a).

3 Other cities and counties in California filed similar cases

against the Energy Companies and a number of other energy

companies. Those cases were filed in California state court and

removed to federal court, where they were assigned to Judge

Vince G. Chhabria. Judge Chhabria remanded those cases to

state court based on a lack of subject-matter jurisdiction. See

Cty. of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934, 939

(N.D. Cal. 2018). We resolve the appeal from that remand order

in a concurrently filed opinion. See Cty. of San Mateo v. Chevron

Corp., 960 F.3d 586 (9th Cir. 2020).

4 The Cities added the City of Oakland and the City and

County of San Francisco as plaintiffs because federal law, unlike

California law, does not allow a city attorney to bring a public-

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amended complaints stated that the federal claim

was added “to conform to the [district court’s] ruling”

and that the Cities “reserve[d] all rights with respect

to whether jurisdiction [is] proper in federal court.”

The Energy Companies moved to dismiss the amended complaints.

In June 2018, the district court held that the

amended complaints failed “to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

The district court first determined that it would be

inappropriate to extend federal common law to provide relief because “federal courts should exercise

great caution before fashioning federal common law

in areas touching on foreign affairs,” and the Cities’

claims “implicate[d] the interests of countless governments, both foreign and domestic.” The district

court then dismissed the state-law claim on the

ground that it “must stand or fall under federal common law.” The district court therefore dismissed the

amended complaints for failure to state a claim. On

the same day, the district court requested a joint

statement from the parties regarding whether it was

necessary to reach the pending motions to dismiss for

lack of personal jurisdiction. See Fed. R. Civ. P.

12(b)(2). After BP, ConocoPhillips, Exxon, and Shell

requested a ruling on the issue, the district court

ruled that it lacked personal jurisdiction over those

defendants and dismissed them. The district court

then entered judgments in favor of the Energy Companies and against the Cities.

The Cities appeal the denial of their motions to remand, the dismissal of their complaints for failure to

state a claim, and the district court’s personalnuisance action in federal court in the name of the people of the

State of California.

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jurisdiction ruling. We have jurisdiction under 28

U.S.C. § 1291. We review questions of statutory construction and subject-matter jurisdiction de novo.

Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1315 (9th

Cir. 1998). “[S]tatutes extending federal jurisdiction . . . are narrowly construed so as not to reach beyond the limits intended by Congress.” Phillips v. Osborne, 403 F.2d 826, 828 (9th Cir. 1968).

II

We first consider the Cities’ argument that the district court erred in determining that it had federalquestion jurisdiction under 28 U.S.C. § 1331. In undertaking this analysis, we consider only “the pleadings filed at the time of removal without reference to

subsequent amendments.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1085 n.1

(9th Cir. 2009) (citation omitted).

A

Federal-question jurisdiction stems from a congressional enactment, 28 U.S.C. § 1331, which provides

that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution,

laws, or treaties of the United States.” The scope of

this statutory grant of jurisdiction is a matter of congressional intent, and the Supreme Court has determined that Congress conferred “a more limited power” than the full scope of judicial power accorded in

the Constitution. Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 807, 106 S.Ct. 3229, 92 L.Ed.2d

650 (1986).5 The general rule, referred to as the “well5 Article III of the Constitution provides that “[t]he judicial

Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” U.S.

Const. art. III, § 2. “[T]he constitutional meaning of ‘arising un-

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pleaded complaint rule,” is that a civil action arises

under federal law for purposes of § 1331 when a federal question appears on the face of the complaint.

Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107

S.Ct. 2425, 96 L.Ed.2d 318 (1987). Because federal

jurisdiction “depends solely on the plaintiff’s claims

for relief and not on anticipated defenses to those

claims,” ARCO Envtl. Remediation, L.L.C. v. Dep’t of

Health & Envtl. Quality of Mont., 213 F.3d 1108,

1113 (9th Cir. 2000), “a case may not be removed to

federal court on the basis of a federal defense, including the defense of preemption, even if the defense is

anticipated in the plaintiff’s complaint, and even if

both parties concede that the federal defense is the

only question truly at issue,” Caterpillar, 482 U.S. at

393, 107 S.Ct. 2425. Therefore, as the “master of the

claim,” the plaintiff can generally “avoid federal jurisdiction by exclusive reliance on state law.” Id. at

392, 107 S.Ct. 2425.

There are a few exceptions to the well-pleadedcomplaint rule, however.

1

First, in a line of cases, beginning with Northern

Pacific Railway Co. v. Soderberg, 188 U.S. 526, 23

S.Ct. 365, 47 L.Ed. 575 (1903), and extending most

recently to Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125

S.Ct. 2363, 162 L.Ed.2d 257 (2005), the Supreme

Court has recognized a “special and small category” of

state-law claims that arise under federal law for purposes of § 1331 “because federal law is ‘a necessary

der’ may extend to all cases in which a federal question is ‘an

ingredient’ of the action.” Merrell Dow Pharm., 478 U.S. at 807,

106 S.Ct. 3229 (quoting Osborn v. Bank of U.S., 22 U.S. (9

Wheat.) 738, 823, 6 L.Ed. 204 (1824)).

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element of the . . . claim for relief.’” Empire

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

699, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) (citation

omitted). Only a few cases have fallen into this “slim

category,” id. at 701, 126 S.Ct. 2121, including: (1) a

series of quiet-title actions from the early 1900s that

involved disputes as to the interpretation and application of federal law, see Hopkins v. Walker, 244 U.S.

486, 489, 37 S.Ct. 711, 61 L.Ed. 1270 (1917) (federal

jurisdiction was proper because “it [was] plain” that

the case involved “a controversy respecting the construction and effect of” federal mining laws); Wilson

Cypress Co. v. Pozo, 236 U.S. 635, 642–43, 35 S.Ct.

446, 59 L.Ed. 758 (1915) (federal jurisdiction was

proper because the plaintiffs relied “upon [a] treaty

with Spain and laws of the United States . . . to defeat [the] defendant’s claim of title”); Soderberg, 188

U.S. at 528, 23 S.Ct. 365 (federal jurisdiction was

proper because the plaintiff’s claim“depend[ed] upon

the proper construction of an act of Congress”); (2) a

shareholder action seeking to enjoin a Missouri corporation from investing in federal bonds on the

ground that the federal act pursuant to which the

bonds were issued was unconstitutional, see Smith v.

Kan. City Title & Tr. Co., 255 U.S. 180, 201, 41 S.Ct.

243, 65 L.Ed. 577 (1921); and (3) a state-quiet title

action claiming that property had been unlawfully

seized by the Internal Revenue Service (IRS) because

the notice of the seizure did not comply with the Internal Revenue Code, see Grable, 545 U.S. at 311, 125

S.Ct. 2363. In other cases where parties have sought

to invoke federal jurisdiction for state-law claims, the

Court has concluded that jurisdiction was lacking,

even when the claims were premised on violations of

federal law, see Merrell Dow Pharm., 478 U.S. at

805–07, 106 S.Ct. 3229; Moore v. Chesapeake & Ohio

Ry. Co., 291 U.S. 205, 210, 54 S.Ct. 402, 78 L.Ed. 755

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(1934), required remedies “contemplated by a federal

statute,” Empire Healthchoice, 547 U.S. at 690, 126

S.Ct. 2121, or required the interpretation and application of a federal statute in a hypothetical case underlying a legal malpractice claim, see Gunn v. Minton, 568 U.S. 251, 259, 133 S.Ct. 1059, 185 L.Ed.2d

72 (2013).

The Court has articulated a test for deciding when

this exception to the well-pleaded-complaint rule applies. As explained in Grable and later in Gunn, federal jurisdiction over a state-law claim will lie if 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, 133 S.Ct. 1059 (citing Grable, 545 U.S. at 314,

125 S.Ct. 2363). All four requirements must be met

for federal jurisdiction to be proper. Id.

The Court has often focused on the third requirement, the question whether a case “turn[s] on substantial questions of federal law.” Grable, 545 U.S. at

312, 125 S.Ct. 2363. This inquiry focuses on the importance of a federal issue “to the federal system as a

whole.” Gunn, 568 U.S. at 260, 133 S.Ct. 1059. An issue has such importance when it raises substantial

questions as to the interpretation or validity of a federal statute, see Smith, 255 U.S. at 201, 41 S.Ct. 243;

Hopkins, 244 U.S. at 489–90, 37 S.Ct. 711, or when it

challenges the functioning of a federal agency or program, see Grable, 545 U.S. at 315, 125 S.Ct. 2363

(holding there was federal jurisdiction to address an

action challenging the IRS’s ability to satisfy tax delinquencies by seizing and disposing of property); cf.

Bennett v. Sw. Airlines Co., 484 F.3d 907, 911 (7th

Cir. 2007) (holding that federal jurisdiction was lacking because, among other reasons, the plaintiffs did

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not “challenge the validity of any federal agency’s or

employee’s action”). Moreover, an issue may qualify

as substantial when it is a “pure issue of law,” Empire Healthchoice, 547 U.S. at 700, 126 S.Ct. 2121 (citation omitted), that directly draws into question “the

constitutional validity of an act of Congress,” Smith,

255 U.S. at 201, 41 S.Ct. 243, or challenges the actions of a federal agency, see Grable, 545 U.S. at 310,

125 S.Ct. 2363, and a ruling on the issue is “both dispositive of the case and would be controlling in numerous other cases,” Empire Healthchoice, 547 U.S.

at 700, 126 S.Ct. 2121 (citing Grable, 545 U.S. at 313,

125 S.Ct. 2363). By contrast, a federal issue is not

substantial if it is “fact-bound and situation-specific,”

see id. at 701, 126 S.Ct. 2121, or raises only a hypothetical question unlikely to affect interpretations of

federal law in the future, see Gunn, 568 U.S. at 261,

133 S.Ct. 1059. A federal issue is not substantial

merely because of its novelty, see id. at 262, 133 S.Ct.

1059, or because it will further a uniform interpretation of a federal statute, see Merrell Dow Pharm., 478

U.S. at 815–16, 106 S.Ct. 3229.

2

A second exception to the well-pleaded-complaint

rule is referred to as the “artful-pleading doctrine.”

This doctrine “allows removal where federal law completely preempts a plaintiff’s state-law claim,” Rivet

v. Regions Bank of La., 522 U.S. 470, 475, 118 S.Ct.

921, 139 L.Ed.2d 912 (1998), meaning that “the preemptive force of the statute is so ‘extraordinary’ that

it ‘converts an ordinary state common-law complaint

into one stating a federal claim for purposes of the

well-pleaded complaint rule,’” Caterpillar, 482 U.S. at

393, 107 S.Ct. 2425 (quoting Metro. Life Ins. Co. v.

Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55

(1987)). To have this effect, a federal statute must

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“provide[ ] the exclusive cause of action for the claim

asserted and also set forth procedures and remedies

governing that cause of action.” Beneficial Nat’l Bank

v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156

L.Ed.2d 1 (2003).

The Supreme Court has identified only three statutes that meet this criteria: (1) § 301 of the Labor

Management Relations Act (the LMRA), 29 U.S.C.

§ 185, which “displace[s] entirely any state cause of

action ‘for violation of contracts between an employer

and a labor organization,’” Franchise Tax Bd. of Cal.

v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S.

1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (citation

omitted); (2) § 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§ 1132(a), which preempts state-law claims asserting

improper processing of a claim for benefits under an

employee-benefit plan regulation by ERISA, Metro.

Life Ins., 481 U.S. at 65–66, 107 S.Ct. 1542; and (3)

§§ 85 and 86 of the National Bank Act, 12 U.S.C.

§§ 85, 86, which provide the “exclusive cause of action

for usury claims against national banks,” Beneficial

Nat’l Bank, 539 U.S. at 9, 123 S.Ct. 2058. In light of

these cases, we have held that complete preemption

for purposes of federal jurisdiction under § 1331 exists when Congress: (1) intended to displace a statelaw cause of action, and (2) provided a substitute

cause of action. Hansen v. Grp. Health Coop., 902

F.3d 1051, 1057 (9th Cir. 2018) (citing Beneficial

Nat’l Bank, 539 U.S. at 8, 123 S.Ct. 2058); accord

Hunter v. United Van Lines, 746 F.2d 635, 642–43

(9th Cir. 1984).

B

We now consider whether the district court erred in

concluding it had jurisdiction over the Cities’ complaints under § 1331. At the time of removal, each

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complaint asserted only a single cause of action for

public nuisance under California law. Under the wellpleaded-complaint rule, the district court lacked federal-question jurisdiction unless one of the two exceptions to the well-pleaded-complaint rule applies.

1

We first consider whether the Cities’ state-law

claim for public nuisance falls within the “special and

small category” of state-law claims that arise under

federal law. Empire Healthchoice, 547 U.S. at 699,

126 S.Ct. 2121. The gist of the Cities’ claim is that

the Energy Companies’ production and promotion of

fossil fuels has resulted in rising sea levels, causing

harm to the Cities. Under the Court’s test, we must

determine whether, by virtue of this claim, 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, 133

S.Ct. 1059 (citing Grable, 545 U.S. at 314, 125 S.Ct.

2363).

Even assuming that the Cities’ allegations could

give rise to a cognizable claim for public nuisance under federal common law, cf. Am. Elec. Power Co. v.

Connecticut (“AEP”), 564 U.S. 410, 423, 131 S.Ct.

2527, 180 L.Ed.2d 435 (2011), the district court did

not have jurisdiction under § 1331 because the statelaw claim for public nuisance fails to raise a substantial federal question. Adjudicating the claim does not

require resolution of a substantial question of federal

law: the claim neither requires an interpretation of a

federal statute, cf. Grable, 545 U.S. at 310, 125 S.Ct.

2363; Hopkins, 244 U.S. at 489, 37 S.Ct. 711, nor

challenges a federal statute’s constitutionality, cf.

Smith, 255 U.S. at 199, 41 S.Ct. 243. The Energy

Companies also do not identify a legal issue neces-

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sarily raised by the claim that, if decided, will “be

controlling in numerous other cases.” Empire

Healthchoice, 547 U.S. at 700, 126 S.Ct. 2121 (citing

Grable, 545 U.S. at 313, 125 S.Ct. 2363). Indeed, it is

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, see AEP, 564 U.S. at 423, 131 S.Ct. 2527,

and we have held that federal public-nuisance claims

aimed at imposing liability on energy producers for

“acting in concert to create, contribute to, and maintain global warming” and “conspiring to mislead the

public about the science of global warming,” Native

Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849,

854 (9th Cir. 2012), are displaced by the Clean Air

Act, id. at 858.

Rather than identify a legal issue, the Energy

Companies suggest that the Cities’ state-law claim

implicates a variety of “federal interests,” including

energy policy, national security, and foreign policy.6

The question whether the Energy Companies can be

held liable for public nuisance based on production

and promotion of the use of fossil fuels and be required to spend billions of dollars on abatement is no

doubt an important policy question, but it does not

raise a substantial question of federal law for the

purpose of determining whether there is jurisdiction

under § 1331. Cf. Empire Healthchoice, 547 U.S. at

701, 126 S.Ct. 2121 (holding that the federal government’s “overwhelming interest in attracting able

workers to the federal workforce” and “in the health

6 We do not address whether such interests may give rise to

an affirmative federal defense because such a defense is not

grounds for federal jurisdiction. See, e.g., Caterpillar, 482 U.S.

at 393, 107 S.Ct. 2425.

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and welfare of the federal workers upon whom it relies to carry out its functions” was insufficient to

transform a “state-court-initiated tort litigation” into

a “federal case”). Finally, evaluation of the Cities’

claim that the Energy Companies’ activities amount

to a public nuisance would require factual determinations, and a state-law claim that is “fact-bound and

situation-specific” is not the type of claim for which

federal-question jurisdiction lies. Id.; see also Bennett,

484 F.3d at 910 (holding that federal jurisdiction was

lacking when the case required “a fact-specific application of rules that come from both federal and state

law rather than a context-free inquiry into the meaning of a federal law”).

Given that the Cities’ state-law claim does not raise

a substantial federal issue, the claim does not fit

within the “slim category Grable exemplifies,” Empire

Healthchoice, 547 U.S. at 701, 126 S.Ct. 2121, and we

need not consider the remaining requirements articulated in Grable.

2

The Energy Companies also argue that the Cities’

state-law claim for public nuisance arises under federal law because it is completely preempted by the

Clean Air Act. This argument also fails.

The Clean Air Act is not one of the three statutes

that the Supreme Court has determined has extraordinary preemptive force. See Ansley v. Ameriquest

Mortg. Co., 340 F.3d 858, 862 (9th Cir. 2003). Rather,

the Supreme Court has left open the question whether the Clean Air Act preempts a state-law nuisance

claim under ordinary preemption principles. AEP,

564 U.S. at 429, 131 S.Ct. 2527 (“In light of our holding that the Clean Air Act displaces federal common

law, the availability vel non of a state [nuisance] law-

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suit depends, inter alia, on the preemptive effect of

the federal Act.”). Nor does the Clean Air Act meet

either of the two requirements for complete preemption. See, e.g., Hansen, 902 F.3d at 1057.

First, the statutory language does not indicate that

Congress intended to preempt “every state law cause

of action within the scope” of the Clean Air Act. In re

NOS Commc’ns, MDL No. 1357, 495 F.3d 1052, 1058

(9th Cir. 2007); see also Beneficial Nat’l Bank, 539

U.S. at 11, 123 S.Ct. 2058 (holding that federal law

provides the exclusive cause of action for usury

claims against national banks such that there is “no

such thing as a state-law claim of usury against a national bank”). Rather, the statute indicates that Congress intended to preserve state-law causes of action

pursuant to a saving clause, 42 U.S.C. § 7416,7 which

“makes clear that states retain the right to ‘adopt or

enforce’ common law standards that apply to emissions” and preserves “[s]tate common law standards . . . against preemption,” Merrick v. Diageo Ams.

Supply, Inc., 805 F.3d 685, 690, 691 (6th Cir. 2015)

(citation omitted). When a federal statute has a saving clause of this sort, Congress did not intend complete preemption, because “there would be nothing . . . to ‘save’” if Congress intended to preempt every state cause of action within the scope of the statute. In re NOS, 495 F.3d at 1058. Moreover, the

7 Section 7416 provides, “Except as otherwise provided in

[statutory exceptions not applicable here] nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution,” except

that no state or local government may “adopt or enforce any

emission standard or limitation which is less stringent than the

standard or limitation” provided for by the Clean Air Act and its

implementing plan. 42 U.S.C. § 7416.

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Clean Air Act’s statement that “air pollution control

at its source is the primary responsibility of States

and local governments,” 42 U.S.C. § 7401(a)(3),

weighs against a conclusion that Congress intended

to displace state-law causes of action.

Second, the Clean Air Act does not provide the Cities with a “substitute[ ]” cause of action, Hansen, 902

F.3d at 1057, that is, a cause of action that would allow the Cities to “remedy the wrong [they] assert[ ]

[they] suffered,” Hunter, 746 F.2d at 643. While the

Clean Air Act allows a plaintiff to file a petition to

seek judicial review of certain actions taken by the

Environmental Protection Agency, 42 U.S.C.

§ 7607(b)(1), it does not provide a federal claim or

cause of action for nuisance caused by global warming. Moreover, the Clean Air Act’s citizen-suit provision, § 7604, permits actions for violations of the

Clean Air Act, but it does not provide the Cities with

a free-standing cause of action for nuisance that allows for compensatory damages, see § 7604(a); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148,

150 & n.3 (4th Cir. 1994). Thus, the Clean Air Act

satisfies neither requirement for complete preemption.

*

*

*

In sum, because neither exception to the wellpleaded-complaint rule applies to the Cities’ original

complaints, the district court erred in holding that it

had jurisdiction under 28 U.S.C. § 1331 at the time of

removal.

III

Although the district court lacked jurisdiction under 28 U.S.C. § 1331 at the time of removal, that does

not end our inquiry. This is because the Cities cured

any subject-matter jurisdiction defect by amending

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their complaints to assert a claim under federal

common law. See Pegram v. Herdrich, 530 U.S. 211,

215 n.2, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000) (holding that there was “jurisdiction regardless of the correctness of the removal” because the “amended complaint alleged ERISA violations, over which the federal courts have jurisdiction”); Singh v. Am. Honda

Fin. Corp., 925 F.3d 1053, 1070 (9th Cir. 2019); Retail

Prop. Tr. v. United Bhd. of Carpenters & Joiners of

Am., 768 F.3d 938, 949 & n.6 (9th Cir. 2014).8 Thus,

at the time the district court dismissed the Cities’

complaints, there was subject-matter jurisdiction because the operative pleadings asserted a claim “arising under” federal common law. 28 U.S.C. § 1331.

Based on this cure, the Energy Companies raise two

arguments as to why we can affirm the district

court’s dismissals, even if there was no subjectmatter jurisdiction at the time of removal.

First, the Energy Companies argue that the Cities

waived the argument that the district court erred in

refusing to remand the cases to state court because

the Cities amended their complaints to assert a claim

under federal common law. We disagree. The Cities

moved for remand and stated, in their amended complaints, that they included a federal claim “to conform

to the [district court’s] ruling” and that they “reserve[d] all rights with respect to whether jurisdiction is proper in federal court.” This was sufficient to

preserve the argument that removal was improper.

See Caterpillar Inc. v. Lewis, 519 U.S. 61, 73–74, 117

8 We reject the Cities’ argument that any subject-matter jurisdiction defect was not cured because they acted involuntarily

when they added a federal claim to their complaints. Once a

plaintiff asserts a federal claim, regardless whether the plaintiff

does so under protest, the district court has subject-matter jurisdiction. Cf. Pegram, 530 U.S. at 215 n.2, 120 S.Ct. 2143.

18a

S.Ct. 467, 136 L.Ed.2d 437 (1996); Singh, 925 F.3d at

1066.

Second, the Energy Companies argue that any impropriety with respect to removal can be excused because “considerations of finality, efficiency, and economy,” Lewis, 519 U.S. at 75, 117 S.Ct. 467, weigh in

favor of affirming the district court’s dismissal of the

Cities’ complaints. Again, we disagree.

Section 1441(a) requires that a case be “fit for federal adjudication at the time [a] removal petition is

filed.” Id. at 73, 117 S.Ct. 467.9 Because a party violates § 1441(a) if it removes a case that is not fit for

federal adjudication, a district court generally must

remand the case to state court, even if subsequent actions conferred subject-matter jurisdiction on the district court. See, e.g., O’Halloran v. Univ. of Wash., 856

F.2d 1375, 1380–81 (9th Cir. 1988) (directing a district court to remand a complaint to state court even

though the plaintiff amended her complaint to assert

violations of federal law after the district court denied

a motion to remand).

There is, however, a narrow exception to this rule

that takes into account “considerations of finality, efficiency, and economy.” Singh, 925 F.3d at 1065

(quoting Grupo Dataflux v. Atlas Glob. Grp., L.P., 541

U.S. 567, 574, 124 S.Ct. 1920, 158 L.Ed.2d 866

(2004)). Specifically, when a jurisdictional defect has

been cured after removal and the case has been tried

9 Section 1441(a) provides, in relevant part:

[A]ny 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.

28 U.S.C. § 1441(a).

19a

in federal court, a violation of § 1441(a) can be excused if remanding the case to state court would be

inconsistent “with the fair and unprotracted administration of justice.” Id. (quoting Lewis, 519 U.S. at

77, 117 S.Ct. 467).

The decision to excuse a violation of § 1441(a) depends on the stage of the underlying proceedings.

When a case “has been tried in federal court,” “considerations of finality, efficiency, and economy become overwhelming,” Lewis, 519 U.S. at 75, 117 S.Ct.

467, and in those circumstances, the Supreme Court

has refused to “wipe out the adjudication postjudgment” so long as the there was jurisdiction when the

district court entered judgment, id. at 77, 117 S.Ct.

467; see also Grubbs v. Gen. Elec. Credit Corp., 405

U.S. 699, 702, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972).

For instance, in Lewis, the Court excused a violation

of § 1441(a) when the case was litigated in federal

court for over three years, culminating in a six-day

jury trial. 519 U.S. at 66–67, 117 S.Ct. 467. “Requiring [remand] after years of litigation,” the Court explained, “would impose unnecessary and wasteful

burdens on the parties, judges, and other litigants

waiting for judicial attention.” Id. at 76, 117 S.Ct. 467

(quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490

U.S. 826, 836, 109 S.Ct. 2218, 104 L.Ed.2d 893

(1989)). We have extended this reasoning to cases

where the district court resolves “state law issues on

the merits” at summary judgment. Singh, 925 F.3d at

1071.10 For instance, we excused a violation of

10 We have held that this rule does not apply when we reverse

the grant of summary judgment, such that there is no longer a

“judgment on the merits.” Prize Frize, Inc. v. Matrix (U.S.) Inc.,

167 F.3d 1261, 1266 (9th Cir. 1999), superseded by statute on

other grounds as recognized in Abrego Abrego v. Dow Chem. Co.,

443 F.3d 676, 681 (9th Cir. 2006); accord Emard v. Hughes Air-

20a

§ 1441(a) when, after extensive motion practice and

discovery, the district court granted summary judgment in favor of the defendants. Id. at 1061–62. We

reasoned that the case was sufficiently analogous to

one in which there was a trial on the merits and

therefore held that “[c]onsiderations of finality, efficiency, and economy” counseled in favor of excusing

the violation of § 1441(a). Id. at 1071 (quoting Lewis,

519 U.S. at 75, 117 S.Ct. 467).

This reasoning, however, generally will not apply

when a district court dismisses a complaint for failure

to state a claim under Rule 12(b)(6). That rule is designed “to enable defendants to challenge the legal

sufficiency of complaints without subjecting themselves to discovery,” the cost of which can be “prohibitive.” Rutman Wine Co. v. E. & J. Gallo Winery, 829

F.2d 729, 738 (9th Cir. 1987). “[T]he purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of . . . [a] claim for relief; the motion is not a

procedure for resolving a contest between the parties

about the facts or the substantive merits of the plaintiff’s case.” 5B Arthur R. Miller et al., Federal Practice & Procedure § 1356 (3d ed. 2020). In contrast, a

motion for summary judgment is designed to “test

whether there is a genuine issue of material fact” and

“often involves the use of pleadings, depositions, answers to interrogatories, and affidavits.” Id. Moreover, summary judgment is appropriate only if the

“movant is entitled to judgment as a matter of law,”

Fed. R. Civ. P. 56(a), whereas “the usual course of action upon granting a defendant’s Rule 12(b)(6) motion

is to allow a plaintiff to amend his or her complaint,”

Waste Control Specialists, LLC v. Envirocare of Tex.,

craft Co., 153 F.3d 949, 962 (9th Cir. 1998), abrogated on other

grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141,

146, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001).

21a

Inc., 199 F.3d 781, 786 (5th Cir.), opinion withdrawn

and superseded in part on reh’g, 207 F.3d 225 (5th

Cir. 2000).

In light of these differences, we agree with the Fifth

Circuit that a dismissal under Rule 12(b)(6), unlike a

grant of summary judgment, is generally “insufficient

to forestall an otherwise proper remand.” Camsoft

Data Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d 327,

338 (5th Cir. 2014). We have recognized that the

“concern for judicial economy” is slight when a case is

pending for under a year, the plaintiff engages in no

discovery, and the district court dismisses the case

“at an early stage, prior to trial on the merits.” Dyer

v. Greif Bros., 766 F.2d 398, 399, 401 (9th Cir. 1985),

superseded by statute on other grounds as stated in

Beeman v. Olson, 828 F.2d 620, 621 (9th Cir. 1987). A

case consumes a “minimum of judicial resources” if it

is pending for only a few months before it is dismissed under Rule 12(b)(6). Waste Control Specialists, 199 F.3d at 787. Likewise, the Sixth Circuit has

recognized that “concerns for judicial economy” are

insignificant when dismissal comes “so early in the

pleadings stage that there has been minimal investment of the parties’ time in discovery or of the court’s

time in judicial proceedings or deliberations.” Chivas

Prods. Ltd. v. Owen, 864 F.2d 1280, 1286–87 (6th Cir.

1988), abrogated on other grounds by Tafflin v. Levitt,

493 U.S. 455, 461, 110 S.Ct. 792, 107 L.Ed.2d 887

(1990). In short, “considerations of finality, efficiency,

and economy” are rarely, if ever, “overwhelming”

when a district court dismisses a case at the pleading

stage before the parties have engaged in discovery.11

11 In Parrino v. FHP, Inc., we held that a defendant’s failure

to comply with a judge-made procedural requirement for removal did not warrant reversal of a dismissal under Rule 12(b)(6)

and “remand of the matter to state court.” 146 F.3d 699, 703

22a

In this case, “considerations of finality, efficiency,

and economy” are far from “overwhelming.” Lewis,

519 U.S. at 75, 117 S.Ct. 467. When the district court

entered judgments, the cases had been on its docket

for less than a year—just over eight months. The parties engaged in motion practice under Rule 12, and

there had been no discovery. Although the district

court held hearings and the parties presented a “tutorial” on global warming, that is a relatively modest

use of judicial resources as compared to, for example,

three years of litigation, culminating in a six-day jury

trial. See id. at 66–67, 117 S.Ct. 467. Because the district court dismissed these cases at the pleading

stage, after they were pending for less than a year

and before the parties engaged in discovery, we conclude that “considerations of finality, efficiency, and

economy” are not “overwhelming.” Id. at 75, 117 S.Ct.

467; see Camsoft Data Sys., 756 F.3d at 338; Waste

Control Specialists, 199 F.3d at 786; Dyer, 766 F.2d at

401; Chivas Prods., 864 F.2d at 1286–87. Accordingly,

if there was not subject-matter jurisdiction at the

time of removal, the cases must proceed in state

court.

IV

The district court did not address the alternative

bases for removal asserted in the Energy Companies’

notices of removal. And we generally do not consider

issues “not passed upon below.” Am. President Lines,

Ltd. v. Int’l Longshore &Warehouse Union, Alaska

Longshore Div., Unit 60, 721 F.3d 1147, 1157 (9th

Cir. 2013) (quoting Singleton v. Wulff, 428 U.S. 106,

(9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego, 443 F.3d at 681. But Parrino is not applicable when a case is removed in violation of § 1441(a), resulting in a “statutory defect” with respect to removal. Grupo Dataflux, 541 U.S. at 574, 124 S.Ct. 1920.

23a

120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)). Accordingly, we remand these cases to the district court to determine whether there was an alternative basis for

jurisdiction.12 If there was not, the cases should be

remanded to state court.13 This panel will retain jurisdiction for any subsequent appeals arising from

these cases.

VACATED AND REMANDED.14

12 The district court requested supplemental briefing on how

the concept of the “‘navigable waters of the United States’ . . .

relates to the removal jurisdiction issue in th[e] case.” As the

Cities pointed out, however, the Energy Companies waived any

argument related to admiralty jurisdiction by not invoking it in

their notices of removal. See 28 U.S.C. § 1446(a) (notice of removal must “contain[ ] a short and plain statement of the

grounds for removal”); ARCO, 213 F.3d at 1117 (notice of removal “cannot be amended to add a separate basis for removal

jurisdiction after the thirty day period” (citation omitted));

O’Halloran, 856 F.2d at 1381 (same). Thus, the district court

should confine its analysis to the bases for jurisdiction asserted

in the notices of removal.

13 We do not reach the question whether the district court

lacked personal jurisdiction over four of the defendants. If, on

remand, the district court determines that the cases must proceed in state court, the Cities are free to move the district court

to vacate its personal-jurisdiction ruling. Cf. Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 587–88, 119 S.Ct. 1563, 143

L.Ed.2d 760 (1999) (stating that in most instances “expedition

and sensitivity to state courts’ coequal stature should impel [a]

federal court to dispose of [subject-matter jurisdiction] issue[s]

first”); Cerner Middle E. Ltd. v. Belbadi Enters. LLC, 939 F.3d

1009, 1014 (9th Cir. 2019) (holding that the case should be remanded to state court based on a lack of subject-matter jurisdiction and declining to reach the issue of personal jurisdiction);

Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 994–95 (9th

Cir. 2004).

14 Each party shall bear its own costs on appeal.

24a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

————

No. C 17-06011 WHA

and

No. C 17-06012 WHA

————

CITY OF OAKLAND, a Municipal Corporation, and THE

PEOPLE OF THE STATE OF CALIFORNIA, acting by and

through Oakland City Attorney BARBARA J. PARKER,

Plaintiffs,

v.

BP P.L.C., a public limited company of England and

Wales, CHEVRON CORPORATION, a Delaware

corporation, CONOCOPHILLIPS, a Delaware

corporation, EXXON MOBIL CORPORATION, a New

Jersey corporation, ROYAL DUTCH SHELL PLC, a

public limited company of England and Wales, DOES,

1 through 10,

Defendants

AND RELATED CASE.

————

Signed June 25, 2018

————

ORDER GRANTING MOTION TO

DISMISS AMENDED COMPLAINTS

————

WILLIAM ALSUP, United States District Judge:

25a

INTRODUCTION

In these “global warming” actions asserting claims

for public nuisance, defendants move to dismiss for

failure to state a claim. For the following reasons, the

motion is GRANTED.

STATEMENT

These actions arise out of a vital function of our

atmosphere—its thermostat function—that is, keeping the temperature of our planet within a habitable

range. The atmosphere hosts water vapor and certain

trace gases without which heat at Earth’s surface

would excessively radiate into space, leaving our

planet too cold for life. One of those trace gases is

carbon dioxide, a gas produced by, among other

things, animal and human respiration, volcanoes

and, more significantly here, combustion of fossil

fuels like oil and natural gas. As heat radiates skyward, some of it passes close enough to molecules of

carbon dioxide to be absorbed. These molecules then

re-radiate the energy in all directions, including back

toward Earth’s surface. The more carbon dioxide in

the air, the more this absorption and re-radiation

process warms the surface. It turns out that even

trace amounts of carbon dioxide in the air suffice to

warm the atmosphere.1

The science dates back 120 years. In 1896, building

on the findings by Irish scientist (and mountaineer)

John Tyndall that carbon dioxide absorbed heat

(whereas oxygen and nitrogen did not), Swedish scientist Svante Arrhenius published calculations that

connected increases in the air’s carbon dioxide with

1 Our case involves all greenhouse gases, including methane,

but “[c]arbon dioxide is by far the most important greenhouse

gas” (Amd. Compls. ¶ 74).

26a

increased global temperatures. Arrhenius, however,

had no concern over global warming. Rather, his focus remained solving the mystery of the ice ages and

their causes (Amd. Compls. ¶ 76; Svante Arrhenius,

On the Influence of Carbonic Acid in the Air Upon the

Temperature of the Ground, 41 Phil. Mag. & J. Sci.

237 (1896)).2

In 1938, scientist Guy Stewart Callendar published

graphs plotting the warming of Earth using temperature records from around the world. One graph

showed a 0.07 Centigrade rise in the mean temperatures of the planet from 1910 to 1930, while another

showed a six to eight-percent rise in carbon dioxide in

the air over the same period. Given Tyndall’s earlier

finding, Callendar concluded that one rise had caused

the other, namely that more carbon dioxide had

trapped more heat and caused the temperature to

rise. Callendar, like Arrhenius, was not alarmed over

the possibility of global warming. Guy S. Callendar,

The Artificial Production of Carbon Dioxide and Its

Influence on Temperature, 64 Q. J. Royal Meteorological Soc’y 223 (1938).

In 1957, oceanographer Roger Revelle and chemist

Hans Suess published a critique of a then prevailing

view that the oceans would absorb excessive airborne

carbon dioxide and thus reduce the risk of an atmospheric buildup of carbon dioxide. Referring to the on2 In 1859–1861, Tyndall discovered that the main gases in the

atmosphere, nitrogen and oxygen, were transparent to infrared

radiation but that carbon dioxide was opaque, meaning carbon

dioxide absorbed infrared radiation. Tyndall recognized that

carbon dioxide kept Earth warmer than would be the case without it. John Tyndall, On the Absorption and Radiation of Heat

by Gases and Vapours, and on the Physical Connexion of Radiation, Absorption, and Conduction, 151 Phil. Trans. Royal Soc’y

London 1 (1861).

27a

going combustion of fossil fuels and release of carbon

dioxide, they concluded: “[h]uman beings are now

carrying out a large scale geophysical experiment of a

kind that could not have happened in the past nor be

reproduced in the future” (Amd. Compls. ¶ 77).

Revelle later obtained funding to measure the

buildup of carbon dioxide in the atmosphere, arranging for scientist Charles David Keeling to reside on

Mauna Loa in Hawaii to measure and graph the realtime concentrations of carbon dioxide. This project

produced the famous Keeling Curve, a graph that

shows a steady rise in atmospheric carbon dioxide,

year after year, like clockwork (id. ¶ 78; see also

NOAA, EARTH SYSTEMS RESEARCH LABORATORY, GLOBAL MONITORING DIVISION, https://

www.esrl.noaa.gov/gmd/ccgg/trends/full.html (last

visited June 15, 2018)).

From this brief history up to the Sixties, it would be

wrong to conclude that scientists had sounded alarm

bells for global warming. Arrhenius was more concerned with global cooling than warming. Revelle

said a large-scale, one-time experiment was in progress, but he sounded no alarm bells at the time.

But alarm bells over climate change eventually did

sound. In 1988, the United Nations established the

Intergovernmental Panel on Climate Change

(“IPCC”). Its main objective was to prepare—based on

the best available scientific information—periodic assessments regarding all aspects of climate change,

with a view of formulating realistic response strategies. The IPCC had three working groups: Working

Group I assessed the scientific aspects of climate

change, Working Group II assessed the vulnerability

and adaptation of socioeconomic and natural systems

to climate change, and Working Group III assessed

28a

the mitigation options for limiting greenhouse gas

emissions (Amd. Compls. ¶¶ 82–86).

The IPCC completed its first assessment report in

1990. The report made a persuasive case for anthropogenic interference with the climate system, and

each subsequent report (about five to six years apart)

incorporated advancements in measurements, observations, and modeling—and each presented a more

precise picture of how our climate has changed, and

what has changed it. The fifth assessment report, released in 2013, was abundantly clear:

Warming of the climate system is unequivocal,

and since the 1950s, many of the observed

changes are unprecedented over decades and

millennia. The atmosphere and ocean have

warmed, the amounts of snow and ice have diminished, sea level has risen, and the concentrations of greenhouse gases have increased.

The report was also clear as to the cause, stating that

it was “extremely likely” that “human influence has

been the dominant cause of the observed warming

since the mid-20th century” (ibid.).3

The science acknowledges that causes beyond the

burning of fossil fuels are also at work. Deforestation

has been and remains a significant contributor to the

rise in carbon dioxide. Others include volcanoes and

wildfires in greater numbers. Nevertheless, even acknowledging these other contributions, climate scientists are in vast consensus that the combustion of fossil fuels has, in and of itself, materially increased

carbon dioxide levels, which in turn has materially

increased the median temperature of the planet,

3 The IPCC anticipates the release of a special report in October 2018 and the sixth assessment report in 2021.

29a

which in turn has accelerated ice melt and raised

(and continues to raise) the sea level.

In sum, in the last 120 years, the amount of carbon

dioxide (and methane) in the air has increased, with

most of the increase having come in recent decades.

During that time, the median temperature of Earth

has increased 1.8 degrees Fahrenheit. Glaciers

around the world have been shrinking. Ice sheets

over Greenland and Antarctica have been melting.

The sea level has risen by about seven centimeters

since 1993 (about seven to eight inches since 1900).

As our globe warms and the seas rise, coastal lands in

Oakland and San Francisco will, without erection of

seawalls and other infrastructure, eventually become

submerged by the navigable waters of the United

States (id. ¶¶ 86–90, 124–36).

Defendants Chevron Corporation, Exxon Mobil

Corporation, BP p.l.c., Royal Dutch Shell plc, and

ConocoPhillips are the five largest investor-owned (as

opposed to state-owned) producers of fossil fuels in

the world, as measured by the greenhouse gas emissions allegedly generated from the use of the fossil

fuels they have produced. They are the first (Chevron), second (Exxon), fourth (BP), sixth (Shell) and

ninth (ConocoPhillips) largest cumulative producers

of fossil fuels worldwide and are collectively responsible for over eleven percent of all carbon dioxide and

methane pollution that has accumulated in the atmosphere since the Industrial Revolution (id. ¶ 94).

Defendants have allegedly long known the threat

fossil fuels pose to the global climate. Nonetheless,

they continued to extract and produce them in massive amounts while engaging in widespread advertising and communications campaigns meant to promote the sale of fossil fuels. These campaigns portrayed fossil fuels as environmentally responsible and

30a

essential to human well-being and downplayed the

risks of global warming by emphasizing the uncertainties of climate science or attacking the credibility

of climate scientists (id. ¶¶ 95–123).

In September 2017, Oakland and San Francisco

commenced these actions in state court. The original

complaints each asserted a single claim for public

nuisance under California law. After defendants removed the actions to this district, an order dated February 27, 2018, denied plaintiffs’ motions to remand

(Dkt. Nos. 1, 134).4

Given the international scope of plaintiffs’ claims

and that the very instrumentality of the anticipated

coastal flooding is uniquely federal—namely, the navigable waters of the United States—one threshold issue presented by these cases was whether federal

common law should govern (rather than state law).

The February 27 order concluded:

Plaintiffs’ claims for public nuisance, though pled

as state-law claims, depend on a global complex

of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere). It necessarily involves the relationships

between the United States and all other nations.

It demands to be governed by as universal a rule

of apportioning responsibility as is available.

This order does not address whether (or not)

plaintiffs have stated claims for relief. But plaintiffs’ claims, if any, are governed by federal

common law. Federal jurisdiction is therefore

proper.

4 All docket numbers herein refer to the docket in Case No.

17-cv-06011-WHA.

31a

Plaintiffs have since amended their complaints to

plead a separate claim for public nuisance under federal common law. The amended complaints also substituted defendant ConocoPhillips for its subsidiary,

ConocoPhillips Company, and added the City of Oakland and the City and County of San Francisco as

plaintiffs to the federal nuisance claims, among other

additions. On March 21, to standing room only, counsel and their experts conducted a science tutorial for

the undersigned judge. Defendants now move to dismiss the amended complaints for failure to state a

claim (Dkt. Nos. 174, 199, 225). This order follows full

briefing, oral argument, and supplemental briefing.5

ANALYSIS

The issue is not over science. All parties agree that

fossil fuels have led to global warming and ocean rise

and will continue to do so, and that eventually the

navigable waters of the United States will intrude

upon Oakland and San Francisco. The issue is a legal

one—whether these producers of fossil fuels should

pay for anticipated harm that will eventually flow

from a rise in sea level.

The sole claim for relief is for “public nuisance,” a

claim governed by federal common law. The specific

nuisance is global-warming induced sea level rise.

Plaintiffs’ theory, to repeat, is 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.

5 At the Court’s invitation, the United States submitted an

amicus brief on the question of whether or not (and the extent to

which) federal common law affords the relief requested by plaintiffs. The Attorneys General of eighteen States also submitted

amicus briefs (Dkt. Nos. 224, 236, 245).

32a

The scope of plaintiffs’ 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. While these actions are brought against the first,

second, fourth, sixth and ninth largest producers of

fossil fuels, anyone who supplied fossil fuels with

knowledge of the problem would be liable. At one

point, counsel seemed to limit liability to those who

had promoted allegedly phony science to deny climate

change. But at oral argument, plaintiffs’ counsel clarified that any such promotion remained merely a

“plus factor.” Their theory rests on the sweeping

proposition that otherwise lawful and everyday sales

of fossil fuels, combined with an awareness that

greenhouse gas emissions lead to increased global

temperatures, constitute a public nuisance.6

A public nuisance under federal common law, both

sides agree, is an “unreasonable interference with a

right common to the general public,” as set forth in

the Restatement (Second) of Torts § 821B(1) (1979).

Putting aside momentarily the important issue of

displacement, a successful public nuisance claim

therefore requires proof that a defendant’s activity

unreasonably interferes with the use or enjoyment of

a public right and thereby causes the public-at-large

substantial and widespread harm. Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 855 (9th

6 This clarification seems to have been aimed at avoiding the

Noerr-Pennington doctrine and other free speech issues inherent

in predicating liability on publications designed to influence

public policy. See E. R. R. Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965).

33a

Cir. 2012) (citing Missouri v. Illinois, 200 U.S. 496,

521 (1906)).

No plaintiff has ever succeeded in bringing a nuisance claim based on global warming. But courts that

have addressed such claims, as well as the parties

here, have turned to the Restatement to analyze

whether the common law tort of nuisance can be applied in this context.7

Section 821B of the Restatement sets forth three

tests for whether an interference with a public right

is unreasonable:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the

public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature

or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to

know, has a significant effect upon the public

right.

To be held liable for a public nuisance, a defendant’s interference with a public right can either be

intentional, or unintentional and otherwise actiona7 Although plaintiffs analogize these actions to earlier lawsuits against “Big Tobacco,” only one court has ever sustained a

public nuisance theory against a tobacco company. Evans v. Lorillard Tobacco Co., No. 04-2840A, 2007 WL 796175 (Mass. Super. Ct. Feb. 7, 2007). Every other court to reach the issue, however, has rejected a public nuisance theory. See, e.g., Allegheny

Gen. Hosp. v. Phillip Morris, 228 F.3d 429, 446 (3d Cir. 2000);

Texas v. Am. Tobacco Co., 14 F. Supp. 2d 956, 972–73 (E.D. Tex.

1997).

34a

ble under principles controlling liability for negligence, recklessness, or abnormally dangerous activities. Restatement § 821B cmt. e. Where, as alleged

here, the interference is intentional, “it must also be

unreasonable.” Ibid. This determination, in turn, involves “the weighing of the gravity of the harm

against the utility of the conduct,” guidance for which

is set forth in Sections 826 through 831 of the Restatement. Ibid. If the interference was unintentional, the principles governing negligence, recklessness,

or abnormally dangerous activities also “embody in

some degree the concept of unreasonableness.” Ibid.

The commentary to Sections 826 through 831 explain, among other things, that “in determining

whether the gravity of the interference with the public right outweighs the utility of the actor’s conduct, it

is necessary to consider the extent and character of

the interference, the social value that the law attaches to it, the character of the locality involved and the

burden of avoiding the harm placed upon members of

the public.” Id. at § 827 cmt. a. Relatedly, in evaluating the utility of the conduct, “it is necessary to consider the social value that the law attaches to the

primary purpose of the conduct, the suitability of the

conduct to the character of the locality and the impracticality of preventing or avoiding the invasion.”

Id. at § 828 cmt. a.

With respect to balancing the social utility against

the gravity of the anticipated harm, it is true that

carbon dioxide released from fossil fuels has caused

(and will continue to cause) global warming. But

against that negative, we must weigh this positive:

our industrial revolution and the development of our

modern world has literally been fueled by oil and

coal. Without those fuels, virtually all of our monumental progress would have been impossible. All of

35a

us have benefitted. Having reaped the benefit of that

historic progress, would it really be fair to now ignore

our own responsibility in the use of fossil fuels and

place the blame for global warming on those who

supplied what we demanded? Is it really fair, in light

of those benefits, to say that the sale of fossil fuels

was unreasonable?

This order recognizes but does not resolve these

questions, for there is a more direct resolution from

the Supreme Court and our court of appeals, next

considered.8

1. DISPLACEMENT.

The Supreme Court has held that the Clean Air Act

and the EPA’s authority thereunder to set emission

standards have displaced federal common law nuisance claims to enjoin a defendant’s emission of

greenhouse gases. Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410 (2011) (“AEP”). In Kivalina,

our court of appeals extended the Clean Air Act displacement rule to claims for damages based on an oil

producer’s past emissions. 696 F.3d 849. In other

words, Congress has vested in the EPA the problem

8 Another problem involves timing. Although plaintiffs allege

that global warming has already caused sea level rise, Oakland

and San Francisco have yet to build a seawall or other infrastructure for which they seek reimbursement. The United States

Army Corps of Engineers has already proposed projects to address the problem and is likely to help protect plaintiffs’ property and residents. Oakland and San Francisco may eventually

incur expense over and above federal outlays, but that is neither

certain nor imminent. If and when those expense items are actually incurred, defendants will still be in business and will be

good for any liability. Requiring them to pay now into an anticipatory “abatement fund” would be like walking to the pay window before the race is over.

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of greenhouse gases and has given it plenary authority to solve the problem at the point of emissions.

Here, by contrast, defendants stand accused, not for

their own emissions of greenhouse gases, but for their

sale of fossil fuels to those who eventually burn the

fuel. Is this distinction enough to avoid displacement

under AEP and Kivalina? The harm alleged by our

plaintiffs remains a harm caused by fossil fuel emissions, not the mere extraction or even sale of fossil

fuels. This order holds that, were this the only distinction, AEP and Kivalina would still apply. If an oil

producer cannot be sued under the federal common

law for their own emissions, a fortiori they cannot be

sued for someone else’s.

The amended complaints, however, add another

dimension not addressed in AEP or Kivalina, namely

that the conduct and emissions contributing to the

nuisance arise outside the United States, although

their ill effects reach within the United States. Specifically, emissions from the use of defendants’ fossil

fuels abroad send greenhouse gases into our atmosphere, warm our globe, melt its ice, raise sea levels,

and, via the navigable waters of the United States,

threaten coastal flooding in Oakland and San Francisco. The February 27 order concluded that because

plaintiffs’ nuisance claims centered on defendants’

placement of fossil fuels into the flow of international

commerce, and because foreign emissions are out of

the EPA and Clean Air Act’s reach, the Clean Air Act

did not necessarily displace plaintiffs’ federal common law claims. Nevertheless, these claims are foreclosed by the need for federal courts to defer to the

legislative and executive branches when it comes to

such international problems, as now explained.

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2. INTERFERENCE WITH SEPARATION OF

POWERS AND FOREIGN POLICY.

The Supreme Court has given us caution in formulating new claims under federal common law. Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004). Sosa and earlier decisions “cast doubt on the authority of courts to

extend or create private causes of action even in the

realm of domestic law, where [the Supreme Court]

has ‘recently and repeatedly said that a decision to

create a private right of action is one better left to

legislative judgment in the great majority of cases.’”

Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402

(2018) (citing Sosa, 542 U.S. at 727). The Supreme

Court has also “remain[ed] mindful that it does not

have the creative power akin to that vested in Congress.” AEP, 564 U.S. at 422. One consideration

weighing in favor of judicial caution is where “modern

indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity.” Sosa, 542 U.S. at

728.

As explained above, plaintiffs’ claims require a balancing of policy concerns—including the harmful effects of greenhouse gas emissions, our industrialized

society’s dependence on fossil fuels, and national security. Through the Clean Air Act, Congress “entrust[ed] such complex balancing to the EPA in the

first instance, in combination with state regulators.”

AEP, 564 U.S. at 427. And, not long ago, the problem

wasn’t too much oil, but too little, and our national

policy emphasized the urgency of reducing dependence on foreign oil. In enacting the Energy Policy Act

of 1992, for example, Congress expressed that it was

“the goal of the United States in carrying out energy

supply and energy conservation research and development . . . to strengthen national energy security by

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reducing dependence on imported oil.” 42 U.S.C.

§ 13401. In our industrialized and modern society, we

needed (and still need) oil and gas to fuel power

plants, vehicles, planes, trains, ships, equipment,

homes and factories. Our industrial revolution and

our modern nation, to repeat, have been fueled by

fossil fuels.

In light of AEP, plaintiffs shift their focus to sales

of fossil fuels worldwide, beyond the reach of the EPA

and the Clean Air Act. This shift to foreign lands,

however, runs counter to another cautionary restriction, the presumption against extraterritoriality.

The Supreme Court has cautioned that where recognizing a new claim for relief under federal common

law could affect foreign relations, courts should be

“particularly wary of impinging on the discretion of

the Legislative and Executive Branches in managing

foreign affairs.” Sosa, 542 U.S. at 727. In Kiobel v.

Royal Dutch Petroleum Co., 569 U.S. 108 (2013), the

Supreme Court held that the principles underlying

the presumption against extraterritoriality also constrain courts considering claims brought under the

Alien Tort Statute. The presumption “serves to protect against unintended clashes between our laws

and those of other nations” and “helps ensure that

the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.” Id. at 115–16 (citations and internal quotation

marks omitted). While courts “typically apply the

presumption to discern whether an Act of Congress

regulating conduct applies abroad,” Kiobel recognized

that “the danger of unwarranted judicial interference

in the conduct of foreign policy is magnified” where

“the question is not what Congress has done but instead what courts may do.” Id. at 116. And where a

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claim “reaches conduct within the territory of another

sovereign,” concerns of “unwarranted judicial interference” in foreign policy “are all the more pressing.”

Id. at 117. Importantly, “[t]he political branches, not

the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Jesner, 138 S. Ct. at 1403.

Here, plaintiffs seek to impose liability on five companies for their production and sale of fossil fuels

worldwide. These claims—through which plaintiffs

request billions of dollars to abate the localized effects of an inherently global phenomenon—

undoubtedly implicate the interests of countless governments, both foreign and domestic. The challenged

conduct is, as far as the complaints allege, lawful in

every nation. And, as the United States aptly notes,

many foreign governments actively support the very

activities targeted by plaintiffs’ claims (USA Amicus

Br. at 18). Nevertheless, plaintiffs would have a single judge or jury in California impose an abatement

fund as a result of such overseas behavior. Because

this relief would effectively allow plaintiffs to govern

conduct and control energy policy on foreign soil, we

must exercise great caution.

Global warming is already the subject of international agreements. The United States is also engaged

in active discussions with other countries as to

whether and how climate change should be addressed

through a coordinated framework (ibid.). The Montreal Protocol on Substances that Deplete the Ozone

Layer, signed by 197 countries to eliminate chlorofluorocarbons (CFCs), demonstrates that global cooperation can work, even if getting there remains difficult. Everyone has contributed to the problem of

global warming and everyone will suffer the conse-

40a

quences—the classic scenario for a legislative or international solution.

This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially

increased atmospheric carbon dioxide levels, which in

turn has increased the median temperature of the

planet and accelerated sea level rise. But questions of

how to appropriately balance these 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, demand the expertise

of our environmental agencies, our diplomats, our

Executive, and at least the Senate. 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.

Plaintiffs argue against this result on several

grounds. First, plaintiffs argue that adjudication of

plaintiffs’ claims would not infringe on the role of the

political branches because the undersigned judge

need not weigh or consider the social utility of defendants’ conduct. The commentary to Section 826 of

the Restatement explains that in some scenarios

harm may be “so severe” that the conduct becomes

unreasonable “as a matter of law,” and that in such

situations monetary recovery is available “regardless

of the utility of the activity in the abstract.” Restatement § 826 cmt. b. Plaintiffs similarly rely on Section

829A, which provides:

An intentional invasion of another’s interest in

the use and enjoyment of land is unreasonable if

the harm resulting from the invasion is severe

and greater than the other should be required to

bear without compensation.

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Plaintiffs claim that the harm alleged in these actions is “undeniably severe” such that global warming

constitutes a nuisance as a matter of law. But in

AEP, the Supreme Court addressed public nuisance

claims based on similar allegations of harm, and

nonetheless cautioned that policy questions concerning global warming require an “informed assessment

of competing interests” and that “[a]long with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic

disruption must weigh in the balance.” 564 U.S. at

427.

Plaintiffs next cite to Section 821B, comment i (entitled “Action for damages distinguished from one for

injunction”) which provides:

In determining whether to award damages, the

court’s task is to decide whether it is unreasonable to engage in the conduct without paying for

the harm done. Although a general activity may

have great utility it may still be unreasonable to

inflict the harm without compensating for it. In

an action for injunction the question is whether

the activity itself is so unreasonable that it must

be stopped. It may be reasonable to continue an

important activity if payment is made for the

harm it is causing, but unreasonable to continue

it without paying.

This question of reasonableness nevertheless falls

squarely within the type of balancing best left to

Congress (or diplomacy). Judge Martin Jenkins rejected a similar argument in People of the State of

California v. General Motors Corp., No. 06-cv-05755,

2007 WL 2726871 (N.D. Cal. Sept. 17, 2007). There,

the State of California sued several automakers for

contributing to global warming. California argued

that because it sought damages, resolution of its fed-

42a

eral common law public nuisance claim would not require the district court to determine whether the defendants’ actions had been unreasonable, but rather

whether the interference suffered by California was

unreasonable. Id. at *8. Judge Jenkins disagreed that

this distinction would allow him to avoid making policy determinations, explaining that “regardless of the

relief sought, the Court is left to make an initial decision as to what is unreasonable in the context of carbon dioxide emissions.” Ibid. So too here.

Finally, plaintiffs point to Section 826, which provides:

An intentional invasion of another’s interest in

the use and enjoyment of land is unreasonable if

(a) the gravity of the harm outweighs the utility

of the actor’s conduct, or (b) the harm caused by

the conduct is serious and the financial burden of

compensating for this and similar harm to others

would not make the continuation of the conduct

not feasible.

Plaintiffs claim that they can be compensated pursuant to subsection (b), which does not require weighing the utility of defendants’ conduct. The commentary to this section is clear, however, that “[i]f imposition of this financial burden would make continuation

of the activity not feasible, the weighing process for

determining unreasonableness is similar to that in a

suit for injunction.” Restatement § 826 cmt. f. In

these actions alone, two plaintiffs seek billions of dollars each in the form of an abatement fund. It seems

a near certainty that judgments in favor of the plaintiffs who have brought similar nuisance claims based

on identical conduct (let alone those plaintiffs who

have yet to file suit) would make the continuation of

defendants’ fossil fuel production “not feasible.” This

order accordingly disagrees that it could ignore the

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public benefits derived from defendants’ conduct in

adjudicating plaintiffs’ claims. In the aggregate, the

adjustment of conflicting pros and cons ought to be

left to Congress or diplomacy.9

Second, plaintiffs point to the Court of Appeals for

the Second Circuit’s decision in AEP, where the court

held that a global-warming nuisance claim did not

present non-justiciable political questions, a conclusion affirmed by an equally-divided Supreme Court.

AEP, 564 U.S. at 420 n.6. As previously explained,

however, AEP addressed different claims. To be sure,

the Second Circuit disagreed that it had been asked

“to fashion a comprehensive and far-reaching solution

to global climate change, a task that arguably falls

within the purview of the political branches.” Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 325 (2d

Cir. 2009), rev’d on other grounds, 564 U.S. 410

(2011). But in doing so, the court highlighted that the

plaintiffs there sought only to limit emissions from

six domestic coal-fired electricity plants, and that “[a]

decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place).” Ibid. (emphasis

9 The parties have identified seven similar actions brought by

cities and counties across the country. Cty. of San Mateo v.

Chevron Corp., et al., No. 17-cv-4929 (N.D. Cal.); City of Imperial Beach v. Chevron Corp., et al., No. 17-cv-4934 (N.D. Cal.); Cty.

of Marin v. Chevron Corp., et al., No. 17-cv-4935 (N.D. Cal.); Cty.

of Santa Cruz v. Chevron Corp., et al., No. 18-cv-450 (N.D. Cal.);

City of Santa Cruz v. Chevron Corp., et al., No. 18-cv-458 (N.D.

Cal.); City of Richmond v. Chevron Corp., et al., No. 18-cv-732

(N.D. Cal.); City of New York v. BP P.L.C., et al., No. 18-cv-182

(S.D.N.Y.); King Cty. v. BP P.L.C., et al., No. 18-2-11859-0 (Sup.

Ct. King Cty., Wash.).

44a

in original). Here, the claims are plainly not so limited.

Third, plaintiffs argue that Sosa and its progeny

are not instructive because those decisions arose in

the context of the Alien Tort Statute. The Alien Tort

Statute simply provides that “[t]he district courts

shall have original jurisdiction of any civil action by

an alien for a tort only, committed in violation of the

law of nations or a treaty of the United States.” 28

U.S.C. § 1350. “The statute provides district courts

with jurisdiction to hear certain claims, but does not

expressly provide any causes of action.” Kiobel, 569

U.S. at 114–15. This grant of jurisdiction is “read as

having been enacted on the understanding that the

common law would provide a cause of action for [a]

modest number of international law violations.” Sosa,

542 U.S. at 724. Federal courts may therefore “recognize private claims [for such violations] under federal

common law.” Id. at 732. The broader point made by

the Supreme Court in these decisions is that federal

courts should exercise great caution before fashioning

federal common law in areas touching on foreign affairs. For the reasons explained above, such concerns

of caution are squarely presented here. The federal

common law claims must be dismissed.

*

*

*

The foregoing disposes of the federal common law

claims in their entirety. The amended complaints also

assert a state law claim for public nuisance. For the

reasons stated in the February 27 order denying remand, however, plaintiffs’ nuisance claims must

stand or fall under federal common law. Accordingly,

plaintiffs’ state law claims must also be dismissed.

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CONCLUSION

It 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. There is, however, no inconsistency. It

remains proper for the scope of plaintiffs’ claims to be

decided under federal law, given the international

reach of the alleged wrong and given that the instrumentality of the alleged harm is the navigable

waters of the United States. Although the scope of

plaintiffs’ claims is determined by federal law, there

are sound reasons why regulation of the worldwide

problem of global warming should be determined by

our political branches, not by our judiciary.

In sum, this order accepts the science behind global

warming. So do both sides. The dangers raised in the

complaints are very real. But those dangers are

worldwide. Their causes are worldwide. The benefits

of fossil fuels are worldwide. The problem deserves a

solution on a more vast scale than can be supplied by

a district judge or jury in a public nuisance case.

While it remains true that our federal courts have

authority to fashion common law remedies for claims

based on global warming, courts must also respect

and defer to the other co-equal branches of government when the problem at hand clearly deserves a

solution best addressed by those branches. The Court

will stay its hand in favor of solutions by the legislative and executive branches. For the reasons stated,

defendants’ motion to dismiss is GRANTED.

IT IS SO ORDERED.

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APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

————

No. C 17-06011 WHA

No. C 17-06012 WHA

————

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

v.

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

Defendants.

————

Signed February 27, 2018

————

ORDER DENYING MOTIONS TO REMAND

————

WILLIAM ALSUP, United States District Judge:

INTRODUCTION

In these “global warming” actions asserting claims

for public nuisance under state law, plaintiff municipalities move to remand. For the following reasons,

the motions are DENIED.

STATEMENT

Oakland and San Francisco brought these related

actions in California Superior Court against defendants BP p.l.c, Chevron Corporation, ConocoPhillips

Company, Exxon Mobil Corporation, and Royal Dutch

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Shell plc. Defendants are the first (Chevron), second

(Exxon), fourth (BP), sixth (Shell) and ninth (ConocoPhillips) largest cumulative producers of fossil fuels

worldwide (Compls. ¶ 10).

Burning fossil fuels adds carbon dioxide to that already naturally present in our atmosphere. Plaintiffs

allege that the combustion (by others) of fossil fuels

produced by defendants has increased atmospheric

levels of carbon dioxide and, as a result, raised global

temperatures and melted glaciers to cause a rise in

sea levels, and thus caused flooding in Oakland and

San Francisco (Oakl. Compl. ¶¶ 38, 48, 50; SF Compl.

¶¶ 38, 49, 51).

The complaints do not seek to impose liability for

direct emissions of carbon dioxide, which emissions

flow from combustion in worldwide machinery that

use such fuels, like automobiles, jets, ships, train engines, powerplants, heating systems, factories, and so

on. Rather, plaintiffs’ state law nuisance claims are

premised on the theory 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 wellbeing (Oakl. Compl. ¶¶ 11, 62–83; SF Compl. ¶¶ 11,

63–84).

The complaints further allege that accelerated sea

level rise has and will continue to inundate public

and private property in Oakland and San Francisco.

Although plaintiffs (and the federal government

through the Army Corps of Engineers) have already

taken action to abate the harm of sea level rise, the

magnitude of such actions will continue to increase.

48a

The complaints stress that a severe storm surge, coupled with higher sea levels, could result in loss of life

and extensive damage to public and private property

(Oakl. Compl. ¶¶ 84–92; SF Compl. ¶¶ 85–93).

Based on these allegations, each complaint asserts

a single cause of action under California public nuisance law. As relief, such complaints seek an abatement fund to pay for seawalls and other infrastructure needed to address rising sea levels (Oakl. Compl.

¶¶ 93–98; SF Compl. ¶¶ 94–99, Relief Requested ¶ 2).

Defendants removed these actions. Plaintiffs now

move to remand to state court. This order follows full

briefing and oral argument.1

ANALYSIS

Plaintiffs’ nuisance claims—which address the national and international geophysical phenomenon of

global warming—are necessarily governed by federal

common law. District courts have original jurisdiction

over “all civil actions arising under the Constitution,

laws, or treaties of the United States,” including

claims brought under federal common law. Nat’l

Farmers Union Ins. Cos. v. Crow Tribe of Indians,

471 U.S. 845, 850 (1985) (citing 28 U.S.C. § 1331).

Federal jurisdiction over these actions is therefore

proper.

Federal courts, unlike state courts, do not possess a

general power to develop and apply their own rules of

1 Six similar actions, filed by the County of San Mateo, City of

Imperial Beach, County of Marin, County of Santa Cruz, City of

Santa Cruz and City of Richmond, respectively, are pending in

this district before Judge Vince Chhabria (Case Nos. 17-cv-4929,

17-cv-4934, 17-cv-4935, 18-cv-0450, 18-cv-0458, 18-cv-0732). In

comparison to the instant cases, these actions assert additional

claims (including product liability, negligence, and trespass)

against additional defendants.

49a

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

312 (1981) (“Milwaukee II”). Federal common law is

appropriately fashioned, however, where a federal

rule of decision is “necessary to protect uniquely federal interests.” Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981). While not all federal interests fall into this category, uniquely federal

interests exist in “interstate and international disputes implicating the conflicting rights of States or

our relations with foreign nations.” Id. at 641. In such

disputes, the “nature of the controversy makes it inappropriate for state law to control.” Ibid.

In Illinois v. City of Milwaukee, 406 U.S. 91, 107

n.9 (1972) (“Milwaukee I”), for example, the Supreme

Court applied federal common law to an interstate

nuisance claim, explaining that:

Federal common law and not the varying common law of the individual States is, we think, entitled and 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. The

more would this seem to be imperative in the

present era of growing concern on the part of a

State about its ecological conditions and impairments of them. In the outside sources of such

impairment, more conflicting disputes, increasing assertions and proliferating contentions

would seem to be inevitable. Until the field has

been made the subject of comprehensive legislation or authorized administrative standards, only

a federal common law basis can provide an adequate means for dealing with such claims as alleged federal rights.

The Supreme Court has continued to affirm that,

post-Erie, federal common law includes the general

50a

subject of environmental law and specifically includes

ambient or interstate air and water pollution. Am.

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

(2011) (“AEP”). Both our court of appeals and the Supreme Court have addressed the viability of the federal common law of nuisance to address global warming. The parties sharply contest the import of these

decisions.

The plaintiffs in AEP brought suit against five domestic emitters of carbon dioxide, alleging that by

contributing to global warming, those defendants had

violated the federal common law of interstate nuisance, or, in the alternative, state tort law. 564 U.S.

at 418. The Supreme Court recognized 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. at 421 (internal quotes

and citations omitted). It held, however, that because

the Clean Air Act “[spoke] directly” to the issue of

carbon-dioxide emissions from domestic power-plants,

the Act displaced any federal common law right to

seek an abatement of defendants’ emissions. Id. at

424–25. AEP did not reach the plaintiffs’ state law

claims. Instead, Justice Ginsburg 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.

Id. at 429.

Our court of appeals addressed similar claims in

Native Village of Kivalina v. ExxonMobil Corp., 696

F.3d 849 (9th Cir. 2012) (“Kivalina”). Citing to AEP,

the appellate court held that the Clean Air Act also

displaced federal common law nuisance claims for

damages caused by global warming. Id. at 856. Kivalina underscored that “federal common law can ap-

51a

ply to transboundary pollution suits,” and that most

often such suits are—as here—founded on a theory of

public nuisance. Id. at 855. But Kivalina also failed to

reach the plaintiffs’ state law claims, which the district court had dismissed without prejudice to their

re-filing in state court. Id. at 858; Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863,

882–83 (N.D. Cal. 2009) (Judge Saundra Brown Armstrong).

Here, as in Milwaukee I, AEP, and Kivalina, a uniform standard of decision is necessary to deal with

the issues raised in plaintiffs’ complaints. 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 ranging from volcanoes, to

wildfires, to deforestation to stimulation of other

greenhouse gases—and, most pertinent here, to 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, e.g., worse hurricanes, more drought, more

crop failures and—as here specifically alleged—the

melting of the ice caps, the rising of the oceans, and

the inevitable flooding of coastal lands. 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. A

patchwork of fifty different answers to the same fundamental global issue would be unworkable. This is

not to say that the ultimate answer under our federal

common law will favor judicial relief. But it is to say

that the extent of any judicial relief should be uniform across our nation.

52a

Plaintiffs raise three primary arguments in seeking

to avoid federal common law. None are persuasive.

First, plaintiffs argue that—in contrast to earlier

transboundary pollution suits such as AEP and Kivalina—plaintiffs’ nuisance claims are brought

against sellers of a product rather than direct dischargers of interstate pollutants. Extending federal

common law to the current dispute, plaintiffs caution,

would extend the scope of federal nuisance law well

beyond its original justification. To be sure, plaintiffs

raise novel theories of liability. And it is also true, of

course, that the development of federal common law

is necessary only in a “few and restricted instances.”

Milwaukee II, 451 U.S. at 313. As explained above,

however, the transboundary problem of global warming raises exactly the sort of federal interests that necessitate a uniform solution. This is no less true because plaintiffs assert a novel theory of liability, nor

is it 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.2

Plaintiffs’ reliance on National Audubon Society v.

Department of Water, 869 F.2d 1196 (9th Cir. 1988),

is also misplaced. There, our court of appeals held

2 Notably, in support of their theory of liability plaintiffs cite

decisions where the alleged nuisance was caused by a product’s

use in California. In People v. ConAgra Grocery Products Company, 17 Cal. App. 5th 51 (2017), the plaintiffs sued producers

and manufacturers of lead paint, arguing that the defendants

deceptively minimized its dangers and promoted its use. The

plaintiffs there, however, sought abatement only with respect to

products used in California buildings. Similarly, the claims in

Ileto v. Glock Inc., 349 F.3d 1191 (9th Cir. 2003), concerned the

manufacture and marketing of firearms but stemmed from the

shooting of six individuals in Los Angeles. Plaintiffs’ claims

here, by contrast, are not localized to California and instead

concern fossil fuel consumption worldwide.

53a

that federal nuisance law did not extend to claims

concerning a California agency’s diversion of water

from a lake wholly within the state. Although the water diversion may have led to air pollution in both

California and Nevada, our court of appeals found

that it was “essentially a domestic dispute” in which

application of state law would not be inappropriate.

Id. at 1204–05. The court underscored, however, that

the Supreme Court does consider the application of

state law inappropriate (and the application of federal law appropriate) in “those interstate controversies

which involve a state suing sources outside of its own

territory.” Id. at 1205.

Second, plaintiffs contend that—even if their claims

are tantamount to the interstate pollution claims

raised in AEP and Kivalina—the Clean Air Act displaces such federal common law claims. Moreover,

they argue, International Paper Company v. Ouellette, 479 U.S. 481 (1987), held that once federal

common law is displaced, state law once again governs.

This order presumes that when congressional action displaces federal common law, state law becomes

available to the extent it is not preempted by statute.

AEP, 564 U.S. at 429. But while AEP and Kivalina

left open the question of whether nuisance claims

against domestic emitters of greenhouse gases could

be brought under state law, they did not recognize

the displacement of the federal common law claims

raised here. Emissions from domestic sources are certainly regulated by the Clean Air Act, but plaintiffs

here have fixated on an earlier moment in the train of

industry, the earlier moment of production and sale

of fossil fuels, not their combustion.

Through the Clean Air Act, Congress established a

comprehensive state and federal scheme to control air

54a

pollution in the United States. 42 U.S.C. § 7401 et

seq. The central elements of this comprehensive

scheme are (1) the Act’s provisions for uniform national standards of performance for new stationary

sources of air pollution, § 7411, (2) the Act’s provisions for uniform national emission standards for certain air pollutants, § 7412, (3) the Act’s promulgation

of primary and secondary national ambient air quality standards, §§ 7408–09, and (4) the development of

national ambient air quality standards for motor vehicle emissions, § 7521. The Clean Air Act displaced

the nuisance claims asserted in Kivalina and AEP

because the Act “spoke directly” to the issues presented—domestic emissions of greenhouse gases. The

same cannot be said here.

Plaintiffs’ nuisance claims center on an alleged

scheme to produce and sell fossil fuels while deceiving the public regarding the dangers of global warming and the benefits of fossil fuels. Plaintiffs do not

bring claims against emitters, but rather bring claims

against defendants for having put fossil fuels into the

flow of international commerce. Importantly, unlike

AEP and Kivalina, which sought only to reach domestic conduct, plaintiffs’ claims here attack behavior

worldwide. While some of the fuel produced by defendants is certainly consumed in the United States

(emissions from which are regulated by the Clean Air

Act), greenhouse gases emanating from overseas

sources are equally guilty (perhaps more so) of causing plaintiffs’ harm. Yet these foreign emissions are

out of the EPA and Clean Air Act’s reach.

For displacement to occur, “[t]he existence of laws

generally applicable to the question is not sufficient;

the applicability of displacement is an issue-specific

inquiry.” Kivalina, 696 F.3d at 856. In Milwaukee I,

the Supreme Court considered multiple statutes po-

55a

tentially affecting the federal question but ultimately

concluded that no statute directly addressed the

question and accordingly held that the federal common law public nuisance claim had not been displaced. 406 U.S. at 101–03. Here, the Clean Air Act

does not provide a sufficient legislative solution to the

nuisance alleged to warrant a conclusion that this

legislation has occupied the field to the exclusion of

federal common law.

Third, the well-pleaded complaint rule does not bar

removal of these actions. Federal jurisdiction exists

in this case if the claims necessarily arise under federal common law. Wayne v. DHL Worldwide Express,

294 F.3d 1179, 1184 (9th Cir. 2002). Plaintiffs concede that our court of appeals recognized this rule,

but contend that it should be ignored as dicta. To the

contrary, in support Wayne cited Milwaukee I, where

the Supreme Court explained that a claim “‘arises

under’ federal law if the dispositive issues stated in

the complaint require the application of federal common law.” 406 U.S. at 100.3

Plaintiffs’ claims for public nuisance, though pled

as state-law claims, depend on a global complex of

geophysical cause and effect involving all nations of

the planet (and the oceans and atmosphere). It necessarily involves the relationships between the United

3 Plaintiffs’ remaining authorities on this point are inapposite.

Contrary to plaintiffs, our court of appeals found that it lacked

subject-matter jurisdiction over the state-law claims asserted in

Patrickson v. Dole Food Company because it was merely possible

that “the federal common law of foreign relations might arise as

an issue.” 251 F.3d 795, 803 (9th Cir. 2001) (emphasis added).

Similarly, the complaint in Provincial Government of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1090 (9th Cir. 2009),

did not raise federal law on its face, but rather implicated it “only defensively.”

56a

States and all other nations. It demands to be governed by as universal a rule of apportioning responsibility as is available. This order does not address

whether (or not) plaintiffs have stated claims for relief. But plaintiffs’ claims, if any, are governed by

federal common law. Federal jurisdiction is therefore

proper.

The foregoing is sufficient to deny plaintiffs’ motions for remand. It is worth noting, however, that

other issues implicated by plaintiffs’ claims also

demonstrate the proprietary of federal common law

jurisdiction. Importantly, the very instrumentality of

plaintiffs’ alleged injury—the flooding of coastal

lands—is, by definition, the navigable waters of the

United States. Plaintiffs’ claims therefore necessarily

implicate an area quintessentially within the province of the federal courts. See Michigan v. U.S. Army

Corps of Eng’rs, 667 F.3d 765, 772 (7th Cir. 2011).

This issue was not waived, as defendants timely invoked federal common law as a grounds for removal.

CONCLUSION

For the foregoing reasons, plaintiffs’ motions for

remand are DENIED.

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

The district court hereby certifies for interlocutory

appeal the issue of whether plaintiffs’ nuisance

claims are removable on the ground that such claims

are governed by federal common law. This order finds

that this is a controlling question of law as to which

there is substantial ground for difference of opinion

and that its resolution by the court of appeals will

materially advance the litigation. (This certification,

however, is not itself a stay of proceedings.)

IT IS SO ORDERED.

57a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

————

No. 18-16663

————

CITY OF OAKLAND, a Municipal Corporation, and The

People of the State of California, acting by and

through the Oakland City Attorney; 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,

Plaintiffs-Appellants,

v.

BP PLC, a public limited company of England and

Wales; CHEVRON CORPORATION, a Delaware

corporation; CONOCOPHILLIPS, a Delaware

corporation; EXXON MOBIL CORPORATION, a New

Jersey corporation; ROYAL DUTCH SHELL PLC, a

public limited company of England and Wales; DOES,

1 through 10,

Defendants-Appellees.

————

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding,

D.C. Nos.

3:17-cv-06011-WHA

3:17-cv-06012-WHA

————

58a

Argued and Submitted February 5, 2020

Pasadena, California

Filed May 26, 2020

Amended August 12, 2020

————

Before: Sandra S. Ikuta, Morgan Christen,

and Kenneth K. Lee, Circuit Judges.

————

ORDER

————

The opinion filed on May 26, 2020, appearing at

960 F.3d 570 (9th Cir. 2020), is amended as follows:

At page 585, footnote 12, replace:

<The district court requested supplemental briefing

on how the concept of the “ ‘navigable waters of the

United States’ … relates to the removal jurisdiction

issue in th[e] case.” As the Cities pointed out, however, the Energy Companies waived any argument related to admiralty jurisdiction by not invoking it in

their notices of removal. See 28 U.S.C. § 1446(a) (notice of removal must “contain[ ] a short and plain

statement of the grounds for removal”); ARCO, 213

F.3d at 1117 (notice of removal “cannot be amended

to add a separate basis for removal jurisdiction after

the thirty day period” (citation omitted)); O’Halloran,

856 F.2d at 1381 (same). Thus, the district court

should confine its analysis to the bases for jurisdiction asserted in the notices of removal.>

with

<The Energy Companies identified six alternate

bases for subject-matter jurisdiction in their notices

of removal. See supra note 2. On appeal, the Energy

59a

Companies identified admiralty jurisdiction, 28

U.S.C. § 1333, as a seventh alternate basis for jurisdiction. As the Cities point out, however, the Energy

Companies waived any argument related to admiralty jurisdiction by not invoking it in their notices of

removal. See 28 U.S.C. § 1446(a) (notice of removal

must “contain[ ] a short and plain statement of the

grounds for removal”); ARCO, 213 F.3d at 1117 (notice of removal “cannot be amended to add a separate

basis for removal jurisdiction after the thirty day period” (citation omitted)); O’Halloran, 856 F.2d at 1381

(same). Because the deadline for amending the notices of removal has passed, the Energy Companies may

not rely on admiralty jurisdiction as a basis for removal on remand. Moreover, the Energy Companies’

related argument that there is federal-question jurisdiction, 28 U.S.C. § 1331, because “the instrumentality of the alleged harm is the navigable waters of the

United States,” fails for the reasons set forth in Part

II, supra.>

***

With this amendment, the panel has unanimously

voted to deny Defendants-Appellees’ Petition for Panel Rehearing and/or Rehearing En Banc (ECF No.

175).

The full court has been advised of the Petition for

Panel Rehearing and/or Rehearing En Banc, and no

Judge has requested a vote on whether to rehear the

matter en banc. Fed. R. App. P. 35.

The Petition for Panel Rehearing and/or Rehearing

En Banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed.