Amicus Curiae Brief — Chevron Corporation, et al., Petitioners v. City of Oakland, California, et al.

No. 20-1089

In the Supreme Court of the United States

CHEVRON CORPORATION, et al., PETITIONERS

v.

CITY OF OAKLAND, CALIFORNIA, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

MICHAEL B. SCHON

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street NW

Washington, DC 20062

ZACHARY D. TRIPP

Counsel of Record

LAUREN E. MORRIS

WEIL, GOTSHAL & MANGES LLP

2001 M Street NW

Washington, DC 20036

(202) 682-7000

zack.tripp@weil.com

SARAH M. STERNLIEB

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, NY 10153

TABLE OF CONTENTS

Interest of amicus curiae ................................................ 1

Summary of argument.................................................... 4

Argument......................................................................... 7

I. This Court should grant certiorari to determine

whether federal jurisdiction extends to these

kinds of global nuisance suits ............................... 7

A. This kind of global nuisance tort claim

necessarily arises under federal law ............... 7

B. A plaintiff cannot unilaterally defeat

federal jurisdiction over such a claim

simply through artful pleading ..................... 11

C. This issue is exceptionally important to

the business community ................................ 14

II. This Court should grant certiorari to determine

whether a plaintiff may challenge a removal

even after curing any possible jurisdictional

defect .................................................................... 17

A. The Ninth Circuit’s decision deepens two

existing circuit splits ...................................... 17

B. Ensuring certainty after curing a

jurisdictional defect is important to the

business community....................................... 20

Conclusion .................................................................... 22

(i)

(ii)

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Connecticut,

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

Barbara v. N.Y. Stock Exch., Inc.,

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

grounds by Merrill Lynch, Pierce, Fenner &

Smith, Inc. v. Manning,

136 S. Ct. 1562 (2016) .......................................... 17

Bd. of Cty. Comm’rs of Boulder Cty. v. Suncor

Energy (U.S.A.) Inc.,

965 F.3d 792 (10th Cir. 2020) ................................ 2

Bernstein v. Lin-Waldock & Co.,

738 F.2d 179 (7th Cir. 1984) .......................... 17, 18

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) .............................................. 11

Boys Mkts., Inc. v. Retail Clerks Union, Local 770,

398 U.S. 235 (1970) .............................................. 12

BP P.L.C. v. Mayor & City Council of Balt.,

952 F.3d 452 (4th Cir. 2020) .................................. 2

Briarpatch Ltd. v. Phoenix Pictures, Inc.,

373 F.3d 296 (2d Cir. 2004) ................................. 17

Brough v. United Steelworkers of Am.,

437 F.2d 748 (1st Cir. 1971) ................................ 17

Buffets, Inc. v. Leischow,

732 F.3d 889 (8th Cir. 2013) ................................ 17

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

756 F.3d 327 (5th Cir. 2014) ................................ 17

Caterpillar Inc. v. Lewis,

519 U.S. 61 (1996) ........................................ passim

(iii)

City of Modesto v. Dow Chem. Co.,

19 Cal. App. 5th 130 (Dist. Ct. App. 2018).......... 16

Cty. of San Mateo v. Chevron Corp.,

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

petition for cert. pending,

No. 20-884 (filed Jan. 4, 2020) ............................... 2

Direct Mktg. Ass’n v. Brohl,

575 U.S. 1 (2015) .................................................. 20

Gentek Bldg. Prods., Inc. v. Sherwin-Williams

Co.,

491 F.3d 320 (6th Cir. 2007) ................................ 18

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

Eng’g & Mfg.,

545 U.S. 308 (2005) .......................................... 5, 12

Hallingby v. Hallingby,

574 F.3d 51 (2d Cir. 2009) ................................... 17

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ................................................ 14

Holmes Grp., Inc. v. Vornado Air Circulation

Sys., Inc.,

535 U.S. 826 (2002) .............................................. 13

Huffman v. Saul Holdings Ltd.,

194 F.3d 1072 (10th Cir. 1999) ............................ 18

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) .................................................. 9

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) .............................................. 15

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................................ 7

Moffitt v. Res. Funding Co.,

604 F.3d 156 (4th Cir. 2010) ................................ 18

(iv)

North Dakota v. Heydinger,

825 F.3d 912 (8th Cir. 2016) .................................. 2

Ortiz v. Jordan,

562 U.S. 180 (2011) .............................................. 19

In re Otter Tail Power Co.,

116 F.3d 1207 (8th Cir. 1997) .............................. 12

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

835 F.3d 1264 (10th Cir. 2016) ............................ 18

People v. ConAgra Grocery Prods. Co.,

17 Cal. App. 5th 51 (Dist. Ct. App. 2017)............ 16

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998) .............................................. 11

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

117 F.3d 922 (5th Cir. 1997) ................................ 12

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) .............................................. 13

Thermoset Corp. v. Bldg. Materials Corp.,

849 F.3d 1313 (11th Cir. 2017) ............................ 18

Statutes

28 U.S.C. 1292(b)....................................................... 21

Clean Air Act,

42 U.S.C. 7401 et seq............................................ 10

Miscellaneous

Henry J. Friendly, In Praise of Erie—And of

the New Federal Common Law, 39 N.Y.U.

L. Rev. 383 (1964) .................................................. 9

Neal Miller, An Empirical Study of Forum

Choices in Removal Cases Under Diversity

and Federal Question Jurisdiction, 41 Am.

U. L. Rev. 369 (1992) ........................................... 20

(v)

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

Federal Courts and the Federal System (7th

ed. 2015) ............................................................... 11

13D Wright & Miller, Federal Practice &

Procedure (3d ed. 2020)........................................ 12

14C Wright & Miller, Federal Practice &

Procedure (rev. 4th ed. 2020) ............................... 11

In the Supreme Court of the United States

NO. 20-1089

CHEVRON CORPORATION, et al., PETITIONERS

v.

CITY OF OAKLAND, CALIFORNIA, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than 3 million companies and professional organizations of every

size, in every industry sector, and from every region of

the country.

Pursuant to S. Ct. Rule 37.6, counsel for all parties have consented to the filing of this brief. No counsel for a party authored this

brief in whole or in part and no person or entity other than amicus,

its members, or counsel made a monetary contribution to its preparation or submission.

1

(1)

2

One of the Chamber’s important functions is to represent the interests of its members in matters before

Congress, the Executive Branch, and the courts. To that

end, the Chamber regularly files amicus curiae briefs in

cases that raise issues of concern to the nation’s business community. The Chamber filed amicus briefs at

earlier stages in this case, as well as in several other

cases raising similar issues about the respective roles of

state and federal law and courts in this arena. See, e.g.,

BP P.L.C. v. Mayor & City Council of Balt., 952 F.3d 452

(4th Cir. 2020); Bd. of Cty. Comm’rs of Boulder Cty. v.

Suncor Energy (U.S.A.) Inc., 965 F.3d 792 (10th Cir.

2020); Cty. of San Mateo v. Chevron Corp., 960 F.3d 586

(9th Cir. 2020), petition for cert. pending, No. 20-884

(filed Jan. 4, 2020); North Dakota v. Heydinger, 825 F.3d

912 (8th Cir. 2016).

This case presents two questions of federal jurisdiction that are important to the Nation’s business community. First, businesses have a substantial interest in

whether a plaintiff can evade federal jurisdiction over

global nuisance tort suits like the ones at issue here,

simply by asserting that the claim arises under state

law even though only federal law could create such a

cause of action. To be clear, the Chamber believes that

the global climate is changing, that human activities

contribute to those changes, and that climate change

poses a serious long-term challenge that deserves serious solutions. Inaction is simply not an option. The

Chamber also believes that businesses, through technology, innovation, and ingenuity, offer the best options

for reducing greenhouse gas emissions and mitigating

the impacts of climate change. Specifically, the Chamber supports a market-based approach to accelerate

3

greenhouse gas emissions reductions across the U.S.

economy.

But greenhouse gasses and their effects do not stop

at any one State’s borders. The problem is inherently

global. Accordingly, the Chamber believes that durable

climate policy must be made by Congress. And that policy should encourage innovation and investment to ensure significant emissions reductions, while avoiding

economic harm for businesses, consumers and disadvantaged communities. This policy should include welldesigned market mechanisms that are transparent and

nationwide. U.S. climate policy should recognize the urgent need for action, while maintaining the national and

international competitiveness of U.S. industry and ensuring consistency with free enterprise and free trade

principles.

By contrast, ad hoc and unpredictable decisions of individual state courts, seeking to hold a handful of cherrypicked defendants liable for the full costs of climate

change, are not a sensible way to address this problem.

That approach threatens the Nation’s business community with a patchwork of overlapping and potentially

conflicting rules, under which businesses could face unpredictable and potentially devastating liability for conduct that was entirely lawful when and where it occurred.

The Chamber also has a strong interest in the outcome of the second question presented. Businesses are

often defendants in cases subject to removal. Yet under

the Ninth Circuit’s rule, a business that removes a case

can be put into a heads-I-win, tails-you-lose position

where the plaintiff can keep a final judgment if they win

4

but nonetheless vacate the judgment if they lose by challenging the initial removal as improper. That one-sided

rule is manifestly unfair and damaging to important interests in finality and efficiency.

SUMMARY OF ARGUMENT

This case presents two important questions involving

the relationship between the federal and state courts on

matters that are important to the business community.

This Court should grant certiorari on both.

1. This Court should grant certiorari to determine

whether putative state-law tort claims seeking to recover for the local effects of worldwide contributions to

global climate change are removable because such

claims necessarily arise under federal common law.

This case is one of many such suits across the country,

which seek to hold a handful of individual businesses

liable for the full costs of adapting to global climate

change. In a thoughtful and measured decision, the district court held that respondents’ “nuisance claims—

which address the national and international geophysical phenomenon of global warming—are necessarily

governed by federal common law” and therefore belong

in federal court. Pet. App. 48a.

The Ninth Circuit, however, allowed respondents to

send the case back to state court simply through an artifice of pleading—regardless of how strong the federal

interests are or how lacking the state’s authority to create such a nationwide (and indeed worldwide) tort. The

Ninth Circuit thought the well-pleaded complaint rule

barred removal simply because this case does not involve complete preemption by a federal statute and (it

found) that it does not fit within the “special and small

5

category” under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), for

state-law claims that nonetheless arise under federal

law because they necessarily implicate a substantial

federal question. Pet. App. 12a; see id. at 12a-16a.

The Ninth Circuit’s cramped understanding of federal-question jurisdiction warrants this Court’s review.

For the reasons set forth in the petition and the district

court’s opinion, only federal law could create the kind of

global nuisance tort claim asserted here. The claim

“would effectively allow [respondents] to govern conduct

and control energy policy on foreign soil,” Pet. App. 39a,

with the only connection to the state coming from the

undifferentiated local manifestations of global climate

change. That claim is inherently federal, regardless of

the label the plaintiff attaches to it.

The Chamber submits this brief to emphasize three

points. First, the rule the district court applied—that

the plaintiff cannot unilaterally defeat federal jurisdiction over such an inherently federal cause of action

simply by asserting that it arises under state law—is

correctly grounded in the “artful pleading” doctrine,

which is an important corollary to the well-pleaded complaint rule. Second, exercising jurisdiction over such an

inherently federal claim advances the purposes of federal-question jurisdiction without undermining the purposes of the well-pleaded complaint rule.

Third, the right answer here is vital to the business

community. Businesses frequently operate in multiple

jurisdictions, across states and countries, and predictable rules are necessary for their continued operation. It

would be untenable for businesses nationwide to be sub-

6

ject to a welter of overlapping and inconsistent laws potentially emanating from each of the 50 states. The upshot of the Ninth Circuit’s opinion, however, is that California courts may decide in the first instance whether

and how to regulate conduct in each of the other 49

states (and indeed worldwide). Enabling state-court

control over the decision to fashion such a novel global

tort unduly favors local concerns without adequately

considering the broader national interest. The Chamber

respectfully submits that federal courts, with their inherently national perspective, should make that

weighty decision in the first instance.

2. This Court should also grant certiorari to determine whether a plaintiff may unwind a valid final judgment on appeal, simply by identifying a jurisdictional

defect at the time of removal that the plaintiff has since

cured. It is undisputed that, by the time the district

court entered judgment, respondents had voluntarily

amended their complaint to add a claim that expressly

arose under federal law, thus eliminating any jurisdictional problem that could have existed at the time of removal. And in Caterpillar Inc. v. Lewis, 519 U.S. 61

(1996), this Court held “that a district court’s error in

failing to remand a case improperly removed is not fatal

to the ensuing adjudication if federal jurisdictional requirements are met at the time judgment is entered.”

Id. at 64.

The Ninth Circuit nonetheless permitted respondents to vacate the final judgment because it found that

the district court erred in failing initially to remand the

case. That decision contravenes Caterpillar’s stated rule

and deepened existing circuit splits as to whether and

when a plaintiff may dispute the propriety of removal

7

after voluntarily curing any potential jurisdictional defect. The Ninth Circuit’s approach creates a situation in

which a plaintiff can test the waters in federal court, yet

still successfully dispute jurisdiction if they lose there

on the merits, and thereafter get a second bite at the

apple in state court. That rule is one-sided and causes

serious harm to “considerations of finality, efficiency,

and economy.” Caterpillar, 519 U.S. at 76. It is also especially unfair where, as here, the district court certified

for interlocutory appeal its order denying remand, yet

the plaintiffs declined even to pursue the immediate appeal and instead added a federal claim to their complaint and litigated the case to final judgment. Respondents thus made a deliberate choice to move forward with

a federal-law claim in federal court, but nonetheless obtained a do-over after they lost on the merits.

ARGUMENT

I. This Court Should Grant Certiorari To Determine

Whether Federal Jurisdiction Extends To These Kinds

Of Global Nuisance Suits

A. This Kind Of Global Nuisance Tort Claim Necessarily

Arises Under Federal Law

The first question presented warrants this Court’s

review because of its exceptional importance. This

Court has twice granted certiorari to decide issues of

who has authority to address the problem of global climate change. See Am. Elec. Power Co. v. Connecticut,

564 U.S. 410, 421 (2011) (AEP); Massachusetts v. EPA,

549 U.S. 497 (2007). Here, the issue is whether the

courts of a single State are empowered to set worldwide

climate policy by tort.

8

This case is just one of many global nuisance tort

suits brought by States and municipalities in state

courts across the country against defendants in the energy industry, seeking to hold a handful of companies

liable for the local financial costs of adapting to global

climate change. As the district court observed, the tort

theory in these cases has a “breathtaking” reach. Pet.

App. 32a. Because emissions intermix in the atmosphere, and rising sea levels and other effects of global

climate change are felt worldwide, the tort is inherently

global. It would “reach the sale of fossil fuels anywhere

in the world, including past and otherwise lawful sales,

where the seller knew that combustion of fossil fuels

contributed to the phenomenon of global warming.”

Ibid.

The theory thus would extend beyond state and national borders and be indifferent to the legality of the

conduct in the place where it occurred. “[A]nyone who

supplied fossil fuels with knowledge of the problem

would be liable,” including if their conduct was “outside

the United States.” Pet. App. 32a. And liability would

extend to those who simply contributed to undifferentiated ill effects within the state or localities. Id. at 36a.

Because the effects of climate change are felt long after

emissions themselves, see id. at 28a, liability would be

retroactive, reaching conduct that contributed to emissions decades ago. And plaintiffs could seek “joint[] and

several[]” liability, Resps. C.A. E.R. 297, which would

expose businesses to potentially crippling liability.

As the district court explained, such global nuisance

claims “are necessarily governed by federal common

law” and create federal jurisdiction. Pet. App. 48a. Alt-

9

hough there is no general federal common law, “[e]nvironmental 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.’” AEP, 564 U.S. at 421 (quoting

Henry J. Friendly, In Praise of Erie—And of the New

Federal Common Law, 39 N.Y.U. L. Rev. 383, 421-422

(1964)); see also Pet. App. 49a-50a (“Federal common

law includes the general subject of environmental law

and specifically includes ambient or interstate air and

water pollution.”).

In Illinois v. City of Milwaukee, 406 U.S. 91 (1972),

this Court applied federal common law to a nuisance

claim challenging the local effects of pollution from outof-state sources. The Court explained that:

Federal common law and not the varying common

law of the individual States is … 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.

Id. at 107 n.9.

10

In AEP, this Court further held that because the

Clean Air Act, 42 U.S.C. 7401 et seq., regulates carbon

dioxide emissions from stationary sources, Congress

had displaced any right under federal common law to

seek abatement of such emissions because of their contribution to climate change. 564 U.S. at 424-425. But

Congress’s choice to adopt that federal regulatory

scheme does not diminish the need for a uniform federal

rule or make the tort claims here any less federal in nature. See Pet. 19. Rather, Congress’s action further underscores the importance of having a single, clear nationwide regulatory scheme. See Pet. App. 37a (respondents’ claims “require a balancing of policy concerns,” and

“[t]hrough the Clean Air Act, Congress entrusted such

complex balancing to the EPA in the first instance, in

combination with state regulators” (citation omitted)).

There is accordingly “no inconsistency” between determining that these cases necessarily arise under federal common law yet may fail on the merits. Pet. App.

45a. Federal statutes displaced the role of federal courts

in fashioning the rule of decision, but they did not vest

the state courts with novel authority to fashion extraterritorial regulatory policy that states have never possessed. Climate change “crie[s] out” for a “uniform and

comprehensive solution.” Id. at 51a. Everybody in this

case accepts the science of climate change and recognizes its dangers. But global climate change is, by definition, a global phenomenon. Respondents’ claims focusing solely on the local manifestations of that worldwide

phenomenon thus necessarily implicate the interests of

all 50 States, as well as the United States’ relationships

with all other nations. See id. at 49a-50a. Any liability

11

rule for such a claim in turn must be governed by nationwide rule, not a multiplicity of different and overlapping state laws. After all, a single State cannot “impos[e]

its regulatory policies on the entire Nation,” BMW of N.

Am., Inc. v. Gore, 517 U.S. 559, 571, 585 (1996), much

less the entire planet.

B. A Plaintiff Cannot Unilaterally Defeat Federal

Jurisdiction Over Such A Claim Simply Through

Artful Pleading

Respondents cannot evade federal jurisdiction over

such an inherently national cause of action simply by

asserting that their global nuisance claim arises under

state law. “Allied as an ‘independent corollary’ to the

well-pleaded complaint rule” is the so-called “artful

pleading doctrine,” under which “‘a plaintiff may not defeat removal by omitting necessary federal questions.’”

Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998)

(Ginsburg, J.) (citation omitted). “[A] plaintiff cannot

frustrate a defendant’s right to remove by pleading a

case without reference to any federal law when the

plaintiff’s claim is necessarily federal.” 14C Wright &

Miller, Federal Practice & Procedure § 3722.1 (rev. 4th

ed. 2020).

Although artful pleading typically involves complete

preemption by federal statute, there is “no plausible reason” why “the appropriateness of a need for a federal forum should turn on whether the claim arose under a

federal statute or under federal common law.” Richard

H. Fallon Jr., et al., Hart & Wechsler’s Federal Courts

and the Federal System 818 (7th ed. 2015). The artful

pleading doctrine thus also applies when a plaintiff

seeks to evade federal jurisdiction over claims necessarily arising under federal common law. Otherwise,

12

simply by asserting that a tort arises under “state common law,” a plaintiff could unilaterally prevent federal

court involvement, no matter how clear it is that the national or international nature of the claim leaves no

room for state law.

The whole point of the artful pleading doctrine is to

prevent that kind of superficial circumvention of federal

authority. As other circuits recognize, a “plaintiff’s characterization of a claim as based solely on state law”

therefore “is not dispositive.” In re Otter Tail Power Co.,

116 F.3d 1207, 1213 (8th Cir. 1997); see also Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 923 (5th Cir.

1997). If a cause of action could arise only under federal

common law, then it is inherently federal in nature,

making it removable regardless of whether the plaintiff

asserts (incorrectly) that it arises under state law.

Allowing removal of a claim that necessarily arises

under federal law would advance the purposes of federal-question jurisdiction without undermining the purposes undergirding the well-pleaded complaint rule.

“[F]ederal question jurisdiction is granted to provide a

federal trial forum for the vindication of federally-created rights” and to “‘resort to the experience, solicitude,

and hope of uniformity’ of the federal trial court for the

interpretation of federal law.” 13D Wright & Miller,

Federal Practice & Procedure § 3562 (3d ed. 2020 update) (quoting Grable, 545 U.S. at 312); see Boys Mkts.,

Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 246

n.13 (1970) (it “protect[s] federal rights” and “provide[s]

a forum that could more accurately interpret federal

law”). Here, there is a strong need for uniformity and a

nationwide (rather than local) perspective: Global climate change “demands to be governed by as universal a

13

rule of apportioning responsibility as is available.” Pet.

App. 56a. It is “inappropriate for state law to control”

where the “nature of the controversy” includes “interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations.” Id. at 49a (quoting Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 641 (1981)).

Conversely, allowing cases like this to proceed in

state court would not meaningfully advance the purposes of the well-pleaded complaint rule. The

“longstanding policies” underlying the rule are (1) to

make the plaintiff the “master of the complaint,” enabling the plaintiff “to have the cause heard in state

court” by “eschewing claims based on federal law”; (2) to

avoid “radically expand[ing] the class of removable

cases, contrary to the ‘[d]ue regard for the rightful independence of state governments’”; and (3) to provide a

“quick rule of thumb.” Holmes Grp., Inc. v. Vornado Air

Circulation Sys., Inc., 535 U.S. 826, 831-832 (2002) (citations omitted).

But the Ninth Circuit’s approach does not meaningfully advance the interest in making the plaintiff the

“master of the complaint.” Holmes Grp., 535 U.S. at 831.

A plaintiff that chooses to advance a tort only federal

common law could create has not actually “eschew[ed]”

a federal claim. Ibid. Rather, the plaintiff has chosen to

plead a federal common law claim the defendant has a

right to remove, notwithstanding a disclaimer to the

contrary. As such, the Ninth Circuit approach advances

gamesmanship over substance.

Second, denying federal jurisdiction would not meaningfully protect the size of the federal docket, nor the

rightful independence of the States. The artful pleading

14

doctrine only comes into play in this context when, by

definition, a state lacks the independence in the first

place to create the tort because only federal law could do

so. Furthermore, federal common law jurisdiction exists

only for the few “‘subjects within national legislative

power where Congress has so directed’ or where the

basic scheme of the Constitution so demands.” AEP, 564

U.S. at 421 (citation omitted). Thus, no federalism concern exists, because no State ever had the right to impose its will on the others.

Third, although the well-pleaded complaint rule creates a “quick rule of thumb,” applying the artful pleading doctrine to claims that could only arise under federal

common law would have, at most, a minimal impact on

that goal. The Court has made clear that federal common law is limited to narrow contexts where federal interests predominate or where State law simply cannot

apply. See, e.g., AEP, 564 U.S. at 422. This class of cases,

where the Constitution itself demands that only federal

law could supply the rule of decision, is thus particularly

small and circumscribed. Applying the artful pleading

doctrine thus will not meaningfully undermine the wellpleaded complaint rule’s general “rule of thumb.”

C. This Issue Is Exceptionally Important To The

Business Community

The business community has a strong interest in ensuring that the federal courts, not numerous different

state courts, will decide whether such an inherently national (and indeed global) tort may proceed. Businesses

frequently operate in multiple states and countries, necessitating predictable rules for their smooth operation.

Cf. Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (“Predictability is valuable to corporations making business

15

and investment decisions.”). The prospect of individual

state courts fashioning a novel nuisance tort to set national (and international) regulatory policy for other

states and countries would sharply undermine that predictability and potentially subject businesses to a welter

of overlapping and inconsistent legal obligations. See,

e.g., Int’l Paper Co. v. Ouellette, 479 U.S. 481, 497 (1987)

(allowing a non-source state to regulate out-of-state discharges via tort would make it “virtually impossible to

predict the standard for a lawful discharge into an interstate body of water” (citation omitted)). As the district court put it, subjecting businesses to overlapping

and potentially inconsistent laws from each of the 50

States—all effectively governing the same conduct elsewhere in the nation or the world—would be “unworkable.” Pet. App. 51a.

The prospect of a state court creating such a global

nuisance tort would be particularly damaging to business interests because virtually any business could be

haled into state court and threatened with liability. Virtually all economic activity can be linked to greenhouse

gas emissions, and awareness of climate change has

long been widespread. See Pet. App. 27a-28a (observing

that “alarm bells over climate change” began to sound

decades ago).

Although respondents chose to sue a handful of large

energy companies, they advance a legal theory under

which “anyone who supplied fossil fuels with knowledge

of the problem would be liable.” Pet. App. 32a. A municipality thus could equally sue the operator of a local gas

station in Corpus Christie, Texas, so long as the operator knew that its conduct (selling gas) contributes to

greenhouse gas emissions and the plaintiff asserted

16

that the claim arises under state law. And because respondents have offered no basis to limit their “universal” theory to domestic sales, see ibid., the operator of a

local gas station in Kathmandu, Nepal, would be liable

as well. Indeed, respondents below disclaimed any effort

to cabin the theory, describing their allegations of promotion of faulty science as a mere “plus factor” rather

than an element of their claim. Ibid.

Respondents have sought to analogize this case to

one involving the state’s traditional police power. In particular, they have compared (Resps. C.A. Br. 12) their

novel theory to public nuisance claims against manufacturers of lead paint used in residential housing in California, see People v. ConAgra Grocery Prods. Co., 17 Cal.

App. 5th 51 (Dist. Ct. App. 2017), or producers of drycleaning chemicals that were used in California and

then leached into the groundwater, see City of Modesto

v. Dow Chem. Co., 19 Cal. App. 5th 130 (Dist. Ct. App.

2018). Whatever the merits of those actions, the global

nuisance theory underlying this suit is different in kind.

The alleged nuisance in those cases “was caused by a

product’s use in California.” Pet. App. 52a n.2. Respondents, by contrast, disclaim any such territorial limit. See

ibid. Instead, their theory “rests on the sweeping proposition that otherwise lawful and everyday sales of fossil

fuels” anywhere in the world, “combined with an awareness that greenhouse gas emissions lead to increased

global temperatures, constitute a public nuisance” in

California. Id. at 32a.

These suits thus “seek to fundamentally reorder or

eliminate a vital sector of our economy.” Pet. 2. This

Court’s review is warranted now before state courts pursue such a dramatic innovation in American law.

17

II. This Court Should Grant Certiorari To Determine

Whether A Plaintiff May Challenge A Removal Even

After Curing Any Possible Jurisdictional Defect

This Court should also grant certiorari to determine

whether a plaintiff may challenge the propriety of a removal even after voluntarily curing any jurisdictional

defect and litigating the case to final judgment.

A. The Ninth Circuit’s Decision Deepens Two Existing

Circuit Splits

The Ninth Circuit’s decision deepened two existing

circuit conflicts. First, it deepened an existing circuit

split over whether a voluntary amendment that establishes federal jurisdiction waives the right to dispute an

earlier decision denying a remand. Compare Barbara v.

N.Y. Stock Exch., Inc., 99 F.3d 49, 56 (2d Cir. 1996) (voluntary amendment waived prior objection), abrogated

on other grounds by Merrill Lynch, Pierce, Fenner &

Smith, Inc. v. Manning, 136 S. Ct. 1562 (2016); Bernstein v. Lin-Waldock & Co., 738 F.2d 179, 185 (7th Cir.

1984) (same); Brough v. United Steelworkers of Am., 437

F.2d 748, 749 (1st Cir. 1971) (same), with Pet. App. 17a

(no waiver); Camsoft Data Sys., Inc. v. S. Elecs. Supply,

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

Second, the Ninth Circuit’s decision deepened an existing circuit conflict over whether an appellate court

may ever unwind a valid final judgment on the ground

that an earlier removal was erroneous, when the jurisdictional defect was cured before the time of judgment.

Compare Hallingby v. Hallingby, 574 F.3d 51, 56 (2d

Cir. 2009) (erroneous removal cannot provide basis for

unwinding final judgment entered after jurisdictional

defect was cured); Briarpatch Ltd. v. Phoenix Pictures,

Inc., 373 F.3d 296, 301 (2d Cir. 2004) (same); Buffets,

18

Inc. v. Leischow, 732 F.3d 889, 898 (8th Cir. 2013)

(same); Paros Props., LLC v. Colorado Cas. Ins. Co., 835

F.3d 1264, 1273 (10th Cir. 2016) (same); Huffman v.

Saul Holdings Ltd., 194 F.3d 1072, 1080 (10th Cir.

1999) (same); Moffitt v. Res. Funding Co., 604 F.3d 156,

159 (4th Cir. 2010) (same, even on interlocutory appeal),

with Pet. App. 19a (may unwind a valid final judgment

if it was entered on motion to dismiss for failure to state

a claim); Camsoft, 756 F.3d at 337-338 (same); Gentek

Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d

320, 327 (6th Cir. 2007) (may unwind depending on

whether considerations of finality are “weighty

enough”); Thermoset Corp. v. Bldg. Materials Corp., 849

F.3d 1313, 1320-1321 (11th Cir. 2017) (similar).

The Ninth Circuit’s approach is doubly wrong. First,

a voluntary amendment that cures the prior alleged jurisdictional defect is properly taken to waive a prior

statutory objection that the case should have been remanded. As the Seventh Circuit explained, if a plaintiff

is “convinced that the original action was not removable,” he can “st[i]ck by his guns” and obtain plenary review on appeal. Bernstein, 738 F.2d at 185. “But once he

decided to take advantage of his involuntary presence in

federal court to add a federal claim to his complaint he

was bound to remain there.” Ibid. “Otherwise he would

be in a position where if he won his case on the merits

in federal court he could claim to have raised the federal

question in his amended complaint voluntarily, and if

he lost he could claim to have raised it involuntarily and

to be entitled to start over in state court.” Ibid.

Second, the Ninth Circuit’s position conflicts with

this Court’s stated rule in Caterpillar. Caterpillar was a

diversity case in which complete diversity was lacking

19

at the time of removal but cured before trial by the dismissal of the non-diverse defendant. See 519 U.S. at 6667. The question presented was whether a plaintiff that

timely objected to the (improper) denial of remand could

obtain reversal even after entry of the (valid) judgment.

See id. at 64. Justice Ginsburg, writing for a unanimous

Court, concluded that the answer was no: “We hold that

a district court’s error in failing to remand a case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are met at the

time judgment is entered.” Ibid. That rule controls here.

The Ninth Circuit observed that Caterpillar involved

an appeal after a trial, and understood Caterpillar to establish a sliding-scale balancing test that depended on

how long and complex the proceedings were in federal

court before entry of final judgment. See Pet. App. 17a19a. But Caterpillar states a bright-line rule with no

such qualification: What matters is that “federal jurisdictional requirements are met at the time judgment is

entered.” Caterpillar, 519 U.S. at 64. The Ninth Circuit’s approach also overlooks Caterpillar’s focus on the

“exorbitant cost on our dual court system” of “wip[ing]

out [an] adjudication postjudgment”—not post-trial. Id.

at 77 (emphasis added). And the Ninth Circuit overlooked this Court’s description of Congress’s scheme for

obtaining review of erroneous orders denying a remand:

They may be reviewed after final judgment “if, at the

end of the day and case, a jurisdictional defect remains

uncured.” Id. at 76-77 (emphasis added). Here, however,

respondents themselves cured any possible jurisdictional defect, so there is no remaining defect to reverse

after entry of judgment. Cf. Ortiz v. Jordan, 562 U.S.

20

180 (2011) (improper denial of summary judgment is

unreviewable after entry of valid final judgment).

B. Ensuring Certainty After Curing A Jurisdictional

Defect Is Important To The Business Community

The business community has a significant interest in

the proper resolution of the cure question. Businesses

are often defendants and frequently seek to remove

cases to federal court. See Neal Miller, An Empirical

Study of Forum Choices in Removal Cases Under Diversity and Federal Question Jurisdiction, 41 Am. U. L.

Rev. 369, 391 (1992). And it is particularly important for

businesses that “[j]urisdictional rules should be clear.”

Direct Mktg. Ass’n v. Brohl, 575 U.S. 1, 14 (2015) (citation omitted). Yet the Ninth Circuit’s approach undermines the clarity of Caterpillar’s stated holding and

would replace it with an uncertain scheme under which

an improper remand order can be reviewed sometimes

(but not others) after the jurisdictional defect is cured.

The Ninth Circuit’s rule is also harmful to business

interests because it creates a heads-I-win, tails-you-lose

problem. After a disputed removal, plaintiffs could

amend their complaints to clearly establish federal jurisdiction and thereby stay in federal court if they prevail—but if they lose on the merits, they could thereafter argue that jurisdiction was not proper at the outset

and thereby get a second bite at the apple in state court.

Such a rule would encourage gamesmanship and seriously undermine the “considerations of finality, efficiency, and economy” this Court emphasized in Caterpillar, 519 U.S. at 75. In particular, businesses could be

forced to expend time and money successfully defending

a case all the way to final judgment in federal court, yet

be forced to litigate that very same case a second time

21

in state court even though there was no jurisdictional

error in the federal court’s judgment.

This case is a particularly glaring example. The district court certified its decision for interlocutory appeal

under 28 U.S.C. 1292(b), thus providing a path for immediate appellate review. See Pet. App. 56a. Yet respondents declined to pursue the certification. Respondents also declined to litigate the case in its original form

and then to appeal the final judgment, as Caterpillar

contemplated. See 519 U.S. at 76-77. Instead, they voluntarily amended their complaint to add a claim that

expressly arises under federal law and thereby cured

any conceivable jurisdictional defect. They then litigated the case until final judgment, but ultimately lost

on the merits. The Ninth Circuit, however, unfairly enabled respondents to get a complete do-over in state

court, taking away the petitioners’ favorable judgment

and transforming all of the effort by the parties and the

district court into a complete waste of time. The Ninth

Circuit thus disregarded Caterpillar’s stated rule and

caused the very harms that this Court in Caterpillar

sought to avoid.

22

CONCLUSION

For the foregoing reasons, the Court should grant

certiorari and reverse.

Respectfully submitted.

MICHAEL B. SCHON

STEPHANIE A. MALONEY

U.S. CHAMBER LITIGATION

CENTER

1615 H Street NW

Washington, DC 20062

ZACHARY D. TRIPP

Counsel of Record

LAUREN E. MORRIS

WEIL, GOTSHAL & MANGES LLP

2001 M Street NW

Washington, DC 20036

(202) 682-7000

zack.tripp@weil.com

SARAH M. STERNLIEB

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, NY 10153

MARCH 2021