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, et al.,

Respondents.

____________________________________

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the

Ninth Circuit

____________________________________

BRIEF OF INDIANA, ALABAMA, ALASKA,

ARKANSAS, GEORGIA, KANSAS, KENTUCKY,

LOUISIANA, MISSISSIPPI, MISSOURI,

MONTANA, NEBRASKA, OKLAHOMA, SOUTH

CAROLINA, SOUTH DAKOTA, TEXAS, UTAH,

AND WYOMING AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

____________________________________

Office of the

THEODORE E. ROKITA

Attorney General

Attorney General

302 W. Washington St. THOMAS M. FISHER*

Indianapolis, IN 46204 Solicitor General

(317) 232-6255

KIAN J. HUDSON

Tom.Fisher@atg.in.gov

Deputy Solicitor General

JULIA C. PAYNE

*Counsel of Record

Deputy Attorney General

Counsel for Amici States

Additional counsel listed with signature blocks

i

QUESTION PRESENTED

Whether putative state-law tort claims alleging

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

ii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... i

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

INTEREST OF THE AMICI STATES .................... 1

SUMMARY OF THE ARGUMENT ......................... 2

ARGUMENT ............................................................ 4

I.

The Decision Below Remanding the Case

Back to State Court Contravenes the Court’s

Decisions on Federal Common Law ................ 4

A. Federal common law must govern any

common-law claims to abate global

climate change ............................................ 4

B. Because the Cities’ public-nuisance claim

is governed by federal common law, it

necessarily arises under federal law and

removal was therefore proper .................. 14

II.

The Decision Below Puts the Country’s ClimateChange Policy in the Hands of California State

Courts and Thereby Raises an Issue of

Nationwide Importance ................................. 18

CONCLUSION ....................................................... 22

iii

TABLE OF AUTHORITIES

CASES

American Electric Power Co. v. Connecticut,

564 U.S. 410 (2011) ........................................... 10

Avco Corp. v. Aero Lodge No. 735,

390 U.S. 557 (1968) ........................................... 16

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ............................... 4, 5, 6, 17

Boyle v. United Tech. Corp.,

487 U.S. 500 (1988) .................................... passim

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ........................................... 15

Clearfield Trust Co. v. United States,

318 U.S. 363 (1943) ............................................. 5

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) ............................................... 4

Hinderlider v. La Plata River Co.,

304 U.S. 92 (1938) ........................................... 4, 5

Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743 (2019) ............................... 2, 3, 14

Illinois v. City of Milwaukee,

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

Martin v. Franklin Capital Corp.,

546 U.S. 132 (2005) ............................................. 2

iv

CASES [CONT’D]

New SD, Inc. v. Rockwell Int’l Corp.,

79 F.3d 953 (9th Cir. 1996)................... 16, 19, 20

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998) ..................................... 15, 16

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

117 F.3d 922 (5th Cir. 1997)................. 16, 17, 19

San Carlos Apache Tribe v. United States,

272 F. Supp. 2d 860 (D. Ariz. 2003) ................. 15

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) ............................................. 5

United States v. Standard Oil Co.,

332 U.S. 301 (1947) ............................................. 6

STATUTES

28 U.S.C. § 1331 ..................................................... 14

28 U.S.C. § 1441 ....................................................... 2

42 U.S.C. § 7401 .............................................. 20, 21

42 U.S.C. § 7410 ..................................................... 20

42 U.S.C. § 7412 ..................................................... 20

42 U.S.C. § 7416 ..................................................... 21

42 U.S.C. § 7661a ................................................... 21

v

OTHER AUTHORITIES

19 Charles Alan Wright & Arthur R. Miller,

Federal Common Law, Fed. Prac. &

Proc. Juris. § 4514 (3d ed. 2020). ..................... 14

Henry J. Friendly, In Praise of Erie–and of

the New Federal Common Law, 39

N.Y.U. L. Rev. 383 (1964) ................................... 7

Supreme Court Rule 10 ......................................... 18

Supreme Court Rule 37.2 ........................................ 1

1

INTEREST OF THE AMICI STATES

The States of Indiana, Alabama, Alaska, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma,

South Carolina, South Dakota, Texas, Utah, and Wyoming respectfully submit this brief as amici curiae in

support of petitioners.

The decision below permits plaintiffs to keep in

state court common-law public-nuisance claims premised on global climate change. Amici States file this

brief to explain why this decision is incorrect and why

it presents an issue of enormous importance that deserves the Court’s consideration.

The Court’s decisions squarely establish that the

defendants had a right to remove this case to federal

court, for the plaintiffs’ public-nuisance claim seeks

redress for pollution of “air . . . in [its] ambient or interstate aspects,” and thus necessarily arises under

“federal common law.” Illinois v. City of Milwaukee,

406 U.S. 91, 103 (1972). By rejecting federal-court jurisdiction here, the decision below contravenes the

Court’s precedents and threatens to give California

state courts the power to set climate-change policy for

the entire country. The Court should grant the petition and reverse this decision.



Pursuant to Supreme Court Rule 37.2(a), counsel of record for

all parties received notice of Amici States’ intention to file this

brief at least ten days prior to the due date of this brief.

2

SUMMARY OF THE ARGUMENT

This case presents an issue of extraordinary importance to Amici States. Here the Cities of San Francisco and Oakland seek judicial resolution of one of

the most complicated and contentious issues confronting policymakers today—global climate change. The

Cities allege injuries they claim are caused by global

climate change, which they in turn argue is caused by

greenhouse gases emitted by countless entities

around the world. Yet in this suit the Cities take aim

at just a handful of companies: They contend these

companies, by producing fossil fuels and promoting

their use, have broken the law—but not law enacted

by a legislature, promulgated by a government

agency, or negotiated by a President. Rather, the law

the Cities invoke is the common law: They claim the

production and promotion of fossil fuels constitutes a

“public nuisance” such that courts may impose on

these defendants all the costs of remedying the Cities’

alleged climate-change injuries. Federal law gives the

defendants a right to have this common-law publicnuisance claim heard by a federal court. The Ninth

Circuit’s contrary conclusion contravenes this Court’s

precedents and demands this Court’s intervention.

1. For more than 230 years federal law has in certain circumstances “grant[ed] defendants a right to a

federal forum.” Martin v. Franklin Capital Corp., 546

U.S. 132, 137 (2005). Today, the general removal statute, 28 U.S.C. § 1441, entitles a defendant to remove

a case filed in state court if the state-court “action

could have been brought originally in federal court”—

3

such as when the case “raises claims arising under

federal law” under the federal-question statute. Home

Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748

(2019).

Here, the defendant companies were entitled to remove the case because the Cities’ common-law publicnuisance claim arises under federal law. This Court

has long held that federal common law must govern

disputes over interstate pollution: “When we deal

with air and water in their ambient or interstate aspects, there is a federal common law.” Illinois v. City

of Milwaukee, 406 U.S. 91, 103 (1972). And the dispute for which the Cities’ public-nuisance claim seeks

judicial resolution pertains not merely to interstate

air pollution, but to international air pollution. This

public nuisance claim asks courts to craft rules of decision assigning liability for global climate change—

an incredibly complex, value-laden question that affects every State and every citizen in the country. The

Cities’ public-nuisance claim thus necessarily arises

under federal common law, and they cannot evade

federal-court jurisdiction by merely affixing a statelaw label to what is in truth a federal-law claim. The

district court thus correctly concluded that it had jurisdiction over this case.

2. The Ninth Circuit, however, reversed the district court and disclaimed federal-court jurisdiction.

And in doing so the decision below makes California

state courts arbiters of America’s climate-change policy. The decision thereby excludes other States from

4

the climate-change policymaking process and threatens to undermine the cooperative federalism model

our country has long used to address environmental

problems. For these reasons, the Court should grant

the petition and reverse the decision below.

ARGUMENT

I. The Decision Below Remanding the Case

Back to State Court Contravenes the Court’s

Decisions on Federal Common Law

A. Federal law must govern any commonlaw claims to abate global climate change

1. In Erie Railroad Co. v. Tompkins the Court recognized that federal courts have no power to supplant

state common law with “federal general common law,”

304 U.S. 64, 78 (1938) (emphasis added). The Court

soon made it clear, however, that this principle does

not prevent specialized federal common law from governing exclusively areas implicating unique federal

interests. “[I]n an opinion handed down the same day

as Erie and by the same author, Mr. Justice Brandeis,

the Court declared, ‘For whether the water of an interstate stream must be apportioned between the two

States is a question of “federal common law” . . . .’”

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,

426 (1964) (quoting Hinderlider v. La Plata River Co.,

304 U.S. 92, 110 (1938)); see also Hinderlider, 304

U.S. at 110 (“Jurisdiction over controversies concerning rights in interstate streams is not different from

5

those concerning boundaries. These have been recognized as presenting federal questions.”).

Indeed, it was less than five years after Erie that

the Court issued its seminal decision in Clearfield

Trust Co. v. United States, 318 U.S. 363 (1943), holding that federal common law should determine

whether the United States could obtain reimbursement for a stolen check it had issued and that a bank

had cashed over a forged endorsement. Id. at 364–66.

The district court applied state law and concluded

that the United States had unreasonably delayed giving notice of the forgery and was therefore barred

from recovery, but this Court held that federal, not

state, law governed: “The rights and duties of the

United States on commercial paper which it issues

are governed by federal rather than local law,” because “[t]he authority to issue the check had its origin

in the Constitution and the statutes of the United

States and was in no way dependent on the laws of

Pennsylvania or of any other state.” Id. at 366.

In the nearly eighty years since Clearfield, the

Court has held that federal common law necessarily

and exclusively governs disputes in numerous other

areas as well. See, e.g., United States v. Kimbell

Foods, Inc., 440 U.S. 715, 726 (1979) (holding that

“the priority of liens stemming from federal lending

programs must be determined with reference to federal law”); Banco Nacional de Cuba, 376 U.S. at 425–

427 (holding, in light of “the potential dangers were

6

Erie extended to legal problems affecting international relations,” that “the scope of the act of state doctrine must be determined according to federal law”).

In United States v. Standard Oil Co., for example,

the Court held that federal common law applied to the

federal government’s claims against an oil company

whose driver had struck and injured an American soldier. 332 U.S. 301, 302 (1947). The Court observed

that Erie did not alter the longstanding rule that federal law—including federal common law—must apply

to “matters exclusively federal, because made so by

constitutional or valid congressional command, or

others so vitally affecting interests, powers and relations of the Federal Government as to require uniform

national disposition rather than diversified state rulings.” Id. at 307. Rather, “federal judicial power . . .

remained unimpaired for dealing independently,

wherever necessary or appropriate, with essentially

federal matters, even though Congress has not acted

affirmatively about the specific question.” Id. In light

of the federal government’s “exclusive power to establish and define the [military] relationship” and the

fact that “the Government’s purse is affected,” the

Court held that “[a]s in the Clearfield case, . . . the

matter in issue is neither primarily one of state interest nor exclusively for determination by state law

within the spirit and purpose of the Erie decision.” Id.

at 306–07.

More recently, in Boyle v. United Technologies

Corp., the Court held that federal common law gov-

7

erns design-defect claims brought against manufacturers of military equipment. 487 U.S. 500, 512

(1988). The Court explained that “procurement of

equipment by the United States is an area of uniquely

federal interest” and that in this context “the application of state law would frustrate specific objectives of

federal legislation.” Id. at 507 (internal alterations,

quotation marks, and citations omitted). In particular, the Court emphasized the practical problems with

inevitably conflicting state laws in this area: “[P]ermitting second-guessing” of the federal government’s

military-equipment-design decisions “through state

tort suits against contractors would produce the same

effect sought to be avoided by” the Federal Tort

Claims Act. Id. at 511. “The financial burden of judgments against the contractors would ultimately be

passed through, substantially if not totally, to the

United States itself, since defense contractors will

predictably raise their prices to cover, or to insure

against, contingent liability for the Government-ordered designs.” Id. at 511–12. Because of the unique

federal concerns pertaining to military procurement

and the potential for significant conflicts with federal

policy, federal common law, not state common law,

governs such design-defect claims.

In sum, the “clarion yet careful pronouncement of

Erie, ‘There is no federal general common law,’

opened the door for what, for want of a better term,

we may call specialized federal common law.” Henry

J. Friendly, In Praise of Erie–and of the New Federal

Common Law, 39 N.Y.U. L. Rev. 383, 405 (1964). And

it is now well established that this specialized federal

8

common law applies to the “few areas, involving

‘uniquely federal interests,’” that “are so committed

by the Constitution and laws of the United States to

federal control” that they must be “governed exclusively by federal law.” Boyle, 487 U.S. at 504 (quoting

Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.

630, 640 (1981)).

2. Of particular relevance here, for nearly half a

century the Court has held that one area of “uniquely

federal interest” to which federal common law must

apply is interstate pollution: “When we deal with air

and water in their ambient or interstate aspects,

there is a federal common law.” Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972). For this reason, federal common law governs the Cities’ public-nuisance

claim—which alleges that the defendant companies’

production and promotion of fossil fuels caused interstate pollution (in the form of greenhouse gases emitted by countless entities worldwide) that contributed

to global climate change, which in turn caused the injuries for which the Cities seek abatement. See Pet.

App. 3a. If the complex and controversial policy questions underlying such claims are going to be resolved

by courts at all, those defending against these claims

are entitled to have federal courts answer these questions by applying federal common law.

The Court held that federal common law governed

the interstate-pollution dispute in Illinois, and federal common law is all the more applicable here. As

here, Illinois involved a suit brought to abate interstate pollution that the plaintiff claimed constituted a

9

public nuisance. Invoking the Court’s original jurisdiction, Illinois claimed that several Wisconsin cities

had polluted Lake Michigan with raw or inadequately

treated sewage: “The cause of action alleged is pollution by the defendants of Lake Michigan, a body of interstate water,” and Illinois asked the Court to “abate

this public nuisance.” Illinois, 406 U.S. at 93. The

Court recognized that because Illinois had sued an

out-of-state entity the case fell within its original jurisdiction, but it observed that if the case could have

instead been brought “in a federal district court, [its]

original jurisdiction is not mandatory.” Id. at 98. The

Court thus proceeded to consider “whether pollution

of interstate or navigable waters creates actions arising under the ‘laws’ of the United States within the

meaning of § 1331(a) [the federal-question statute].”

Id. at 99.

The Court held “that it does.” Id. It explained that

an earlier Tenth Circuit decision had “stated the controlling principle”—“‘the ecological rights of a State in

the improper impairment of them from sources outside the State’s own territory. . . [is] a matter having

basis and standard in federal common law and so directly constituting a question arising under the laws

of the United States.’” Id. at 99–100 (quoting Texas v.

Pankey, 441 F.2d 236 (10th Cir. 1971)). Further, the

Court analogized interstate-pollution disputes to disputes “concerning interstate waters,” which Hinderlider more than three decades prior had “‘recognized

as presenting federal questions.’” Id. at 105 (quoting

Hinderlider, 304 U.S. at 110). Hinderlider—which

“was written by Mr. Justice Brandeis who also wrote

10

for the Court in Erie, the two cases being decided the

same day”—foreclosed the argument “that state law

governs” interstate-pollution disputes; it established

that federal common law governs such disputes instead. Id. at 105 n.7 (internal citations omitted). At

bottom, cases, like Illinois, that arise from interstate

pollution implicate “an overriding federal interest in

the need for a uniform rule of decision” and “touch[]

basic interests of federalism,” and in such cases the

Court has therefore “fashioned federal common law.”

Id. at 105 n.6 (citing Banco Nacional de Cuba, 376

U.S. at 421–27).

In American Electric Power Co. v. Connecticut, the

Court reiterated Illinois’s conclusion that “[w]hen we

deal with air and water in their ambient or interstate

aspects, there is a federal common law.” 564 U.S. 410,

421 (2011) (quoting Illinois, 406 U.S. at 103). Justice

Ginsburg’s opinion for the Court reaffirmed precisely

the Court’s reasoning in Illinois: Specialized federal

common law governs “‘subjects within national legislative power where Congress has so directed’ or where

the basic scheme of the Constitution so demands.” Id.

(quoting Friendly, supra, at 408 n.119, 421–22). And

because the “‘national legislative power’” includes the

power to adopt “environmental protection” laws addressing interstate pollution, federal courts can, “if

necessary, even ‘fashion federal law’” in this area. Id.

(quoting Friendly, supra, at 421–422).

Illinois held that claims to abate public nuisance

in interstate waters arise under federal common law,

11

and it expressly extended this conclusion to the parallel situation of disputes involving “air . . . in their

ambient or interstate aspects” as well. Illinois, 406

U.S. at 103. That definitively establishes that federal—not state—common law governs the Cities’

claim to abate public nuisance in interstate air. What

is more, the reasons the Court cited for applying federal common law in Illinois apply with even greater

force here, where the Cities seek to bring a purportedly California-common-law claim against energy

companies for injuries allegedly produced by a long

chain of conduct—including conduct of third parties—

that occurred all over the globe.

3. Indeed, this case powerfully illustrates why the

Court has held that, in areas of unique federal interests, any common-law rules of decision must be articulated by federal—not state—courts.

The Cities urge California state courts to determine—under the auspices of the common law of public nuisance—whether “the gravity of the harm [of fossil fuels] outweighs [their] utility.” Pet. App. 42a

(quoting Restatement (Second) of Torts § 826 (1979)).

That is, the Cities ask California courts to weigh the

costs and benefits of fossil fuels and then decide how

to regulate them—quintessentially legislative judgments. As the district court below aptly pointed out in

exercising jurisdiction over and dismissing the Cities’

public-nuisance claims, such weighing of costs and

benefits “falls squarely within the type of balancing

best left to Congress (or diplomacy).” Id. at 41a.

12

Exacerbating the problem, the Cities have sued

just a handful of energy companies for conduct that

occurred not only outside California, but outside the

country—conduct the Cities concede to be injurious

only in conjunction with others’ use of fossil fuels the

defendants (and others) produce and sell. Id. at 36a

(“[D]efendants stand accused, not for their own emissions of greenhouse gases, but for their sale of fossil

fuels to those who eventually burn the fuel.”). The Cities seek, from these few disfavored companies, abatement of all the harm they have allegedly suffered

from global climate change, even though many other

actors, through conduct occurring in many other

States and countries, are—on the Cities’ own account—responsible for much of that alleged harm. As

the district court observed below, the “scope of plaintiffs’ theory is breathtaking,” for it “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.”

Id. at 32a. This theory “would reach the sale of fossil

fuels anywhere in the world,” and “[w]hile 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.” Id.

State courts have no business deciding how global

climate change should be addressed and who—among

all the countless actors around the world whose conduct contributes to it—bears legal responsibility for

creating it. In addition to the obvious potential for

13

gross unfairness, such state-court-created commonlaw rules would inevitably “present a ‘significant conflict’ with federal policy.” Boyle, 487 U.S. at 512.

Among many other problems, state-common-law

rules would undermine the regulatory authority

States themselves have under carefully calibrated cooperative-federalism programs—programs that are

administered by politically accountable officials at the

federal, state, and local levels. See infra Part II.

Making matters still worse, the Cities are not

alone in urging state courts to impose judicially created regulations on the worldwide production of fossil

fuels. Many other jurisdictions have filed similar public-nuisance claims urging state courts to hold fossil

fuel companies liable for the costs of global climate

change. See, e.g., Pet. App. 43a n.9. Chances are that

state courts in at least some of these actions will be

receptive to the claims, which will ultimately lead to

a patchwork of conflicting standards purporting to

create liability for the same extraterritorial conduct.

Ultimately, therefore, all this and other similar lawsuits have to offer is regulatory chaos.

Any worldwide allocation of responsibility for remediation of climate change requires national or international action, not ad hoc intervention by individual state courts acting at the behest of a handful of

local governments. It is precisely for this reason that

the Court long ago held that if plaintiffs are going to

ask courts to give common-law answers to questions

14

of interstate pollution, defendants have a right to ensure that any such courts are federal courts applying

federal common law. See Illinois, 406 U.S. at 103.

B. Because the Cities’ public-nuisance claim

is governed by federal common law, it

necessarily arises under federal law and

removal was therefore proper

That federal common law governs the Cities’ public-nuisance claim necessarily means this case is removable to federal court. The federal-question statute

gives district courts jurisdiction to hear claims sounding in federal common law. The Cities’ action thus

“could have been brought originally in federal court,”

Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743,

1748 (2019), and accordingly “the general removal

statute . . . permits” the defendant companies “to remove that action to federal court,” id. at 1746. For

these reasons, the district court was correct to deny

the Cities’ remand motion, and the Ninth Circuit contravened Supreme Court precedents in reversing and

ordering the case remanded.

1. The federal-question statute gives federal district courts “original jurisdiction” over “all civil actions arising under the Constitution, laws, or treaties

of the United States.” 28 U.S.C. § 1331(a). And a “case

‘arising under’ federal common law presents a federal

question and as such is within the original subject

matter jurisdiction of the federal courts.” 19 Charles

Alan Wright & Arthur R. Miller, Federal Common

Law, Fed. Prac. & Proc. Juris. § 4514 (3d ed. 2020).

15

The Court has recognized on multiple occasions

“‘the statutory word ‘laws’ includes court decisions’”

and “embrace[s] claims founded on federal common

law.” Illinois, 406 U.S. at 99 (quoting Romero v. International Terminal Operating Co., 358 U.S. 354, 393

(opinion of Brennan, J.)); see also id. (acknowledging

that lower courts have reached this same conclusion);

San Carlos Apache Tribe v. United States, 272 F.

Supp. 2d 860, 882 (D. Ariz. 2003), aff’d, 417 F.3d 1091

(9th Cir. 2005) (“Jurisdiction exists over violations to

the federal common law as well as those of statutory

origin, and, therefore, this Court has subject matter

jurisdiction over Plaintiffs’ common law nuisance

claim.”). In Illinois, for example, the Court determined that, as here, a claim seeking abatement of interstate pollution “creates an action that arises under

the ‘laws’ of the United Sates within the meaning of

1331(a).” 406 U.S. at 99.

2. Crucially, the district court had jurisdiction over

this case because the Cities’ public-nuisance claim

necessarily arises under federal common law—not

merely subject to a federal-law defense. And that

means the Cities cannot simply stamp their publicnuisance claim with a state-law label and thereby deprive federal courts of jurisdiction.

Generally, of course, a plaintiff is “the master of

the claim” and “may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Yet, “[a]llied as an

‘independent corollary’” to the well-pleaded complaint

rule “is the further principle that ‘a plaintiff may not

16

defeat removal by omitting to plead necessary federal

questions.’” Rivet v. Regions Bank of La., 522 U.S.

470, 475 (1998) (quoting Franchise Tax Bd. of Cal. v.

Construction Laborers Vacation Trust for S. Cal., 463

U.S. 1, 22 (1983)). Plaintiffs cannot evade the reach of

federal law or federal courts by declaring unilaterally

that their claims arise under state law. “If a court concludes that a plaintiff has ‘artfully pleaded’ claims in

this fashion, it may uphold removal even though no

federal question appears on the face of the plaintiff's

complaint.” Id. In other words, when a plaintiff raises

a nominal state-law claim that is in reality governed

by federal law, removal is proper.

Such was the foundation, for example, of the

Court’s holding in Avco Corp. v. Aero Lodge No. 735,

which held that an action to enforce a provision of a

collective bargaining agreement was “controlled by

federal substantive law even though it is brought in a

state court”—and was therefore removable to federal

court—because the case necessarily stated a claim

“arising under the ‘laws of the United States’ within

the meaning of the removal statute.” 390 U.S. 557,

560 (1968) (quoting 28 U.S.C. § 1441(b)). Lower

courts, too, have applied this reasoning to uphold removal of cases raising purportedly state-common-law

claims that in truth arise under federal common law.

See New SD, Inc. v. Rockwell Int’l Corp., 79 F.3d 953,

955 (9th Cir. 1996) (declaring that federal, rather

than state, common law provides the rule of decision—and a basis for federal question jurisdiction—to

a dispute over a federal defense contract); Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 926–28 (5th

17

Cir. 1997) (citing Illinois and holding that, notwithstanding plaintiff’s nominal plea of a state law claim,

federal common law applied to—and conferred federal-question jurisdiction over—an air-transit lostcargo claim because Congress preserved a “federal

common law cause of action against air carriers for

lost shipments”).

Indeed, allowing artful pleading to avert removal

of claims governed by federal common law would put

state courts in the position of creating federal common-law. And that would undermine the very purpose

of federal common law, which is to ensure that in “a

few areas, involving uniquely federal interests,” the

rules of decision “are governed exclusively by federal

law.” Boyle, 487 U.S. at 504 (internal quotation marks

and citations omitted). Where, as here, the rules of

decision “must be determined according to federal

law,” “state courts [are] not left free to develop their

own doctrines.” Banco Nacional de Cuba, 376 U.S. at

426–27.

In contrast with disputes over the meaning of federal statutory or constitutional provisions, commonlaw cases require courts to make difficult judgments

about what “seems to [them] sound policy,” Boyle, 487

U.S. at 513, which is why state-court common-law decisions are usually understood to announce (and perhaps inherently do announce) state common law. Permitting plaintiffs to compel state-court adjudication

of federal-common-law claims, therefore, would put

state courts in the position of discerning federal judi-

18

cial policy—or else guess what policy judgments regarding “uniquely federal interests” this Court would

adopt. The Court’s decisions, however, hold that in

certain areas, such as those involving interstate pollution, any common-law rules must be crafted by federal judges—that is, judges appointed by a nationally

elected president and confirmed by a Senate in which

every State is entitled to equal representation.

It is therefore essential to permit removal of

claims that, while pleaded in state-law terms, in fact

sound in federal common law. And here, the Cities’

common-law public-nuisance claim must be governed

by federal common-law rules of decision articulated

by federal courts. The district court thus had jurisdiction to consider this claim, and the defendant companies were therefore entitled to remove the case to federal court.

II. The Decision Below Puts the Country’s

Climate-Change Policy in the Hands of

California State Courts and Thereby Raises

an Issue of Nationwide Importance

The Ninth Circuit’s mistaken denial of federalcourt jurisdiction here allows plaintiffs to keep in

state court claims seeking judicial answers to the vexing policy questions presented by global climate

change. That decision affects companies, consumers,

and policymakers around the country—in fact,

around the world—and thus presents an important

question of federal law that warrants resolution by

this Court. See Sup. Ct. R. 10.

19

Notably, the decision below places the Ninth Circuit in conflict with at least one other circuit court: In

Sam L. Majors Jewelers v. ABX, Inc., the Fifth Circuit

upheld removal in a similar situation—as here, the

plaintiff’s state-court complaint raised purportedly

state-law common-law tort claims, and the defendant

removed on the ground that the claims were “governed by federal law.” 117 F.3d 922, 924 (5th Cir.

1997). The Fifth Circuit began by noting that while

federal-question jurisdiction turns on whether “a federal question is presented on the face of a plaintiff's

properly pleaded complaint,” “jurisdiction may be asserted”—regardless of the complaint’s use of a statelaw label—where “the cause of action arises under

federal common law principles.” Id.; see also id. at 926

(citing Illinois v. City of Milwaukee, 406 U.S. 91, 100

(1972), for the proposition that “[f]ederal jurisdiction

exists if the claims in this case arise under federal

common law”). It then applied the reasoning in Illinois and this Court’s other specialized-common-law

cases to conclude that the common-law claim at issue

there “arises under federal common law” and thus

federal courts had “jurisdiction over this action.” Id.

at 928–29.

Indeed, in addition to creating an inter-circuit conflict, the decision below creates an internal conflict

within the Ninth Circuit itself. In New SD, Inc. v.

Rockwell International Corp., the Ninth Circuit upheld removal of an action initially filed in state court

“because federal law control[led]” the contract claims

to which the complaint had attached a state-law label.

79 F.3d 953, 954 (9th Cir. 1996). The Ninth Circuit

20

first determined that federal common law governed

and then concluded—in direct contradiction to the decision below—that “[w]hen federal law applies, . . . it

follows that the question arises under federal law,

and federal question jurisdiction exists.” Id. at 955.

Moreover, beyond this lower-court split, the decision below threatens to have serious nationwide consequences. By preventing defendants from removing

climate-change public-nuisance cases to federal court,

the decision below threatens to give a small band of

state courts effective authority over the national

framework regulating the production, promotion, and

use of energy—a regulatory framework that has, of

course, long endorsed and encouraged the extraction

and use of fossil fuels.

Notably, this national regulatory system is one in

which all States play a critical policymaking role. The

Clean Air Act, for example, assigns States a significant role in tailoring and enforcing the statute’s requirements, with state officials, subject to review by

federal officials, holding authority to craft state-specific solutions to the difficult questions surrounding

air-pollution regulation. See, e.g., 42 U.S.C.

§ 7401(a)(3) (finding that controlling air pollution “at

its source is the primary responsibility of States and

local governments”); id. § 7410(a) (requiring States to

adopt implementation plans to achieve federal ambient air quality standards and permitting variation in

light of local circumstances); id. § 7412(l) (authorizing

States to implement federal hazardous air pollutant

standards and allowing modifications to meet local

21

needs); id. § 7416 (authorizing States to impose statelaw requirements more stringent than federal standards); id. § 7661a (requiring States to adopt permitting programs tailored to state needs).

Congress identified the Clean Air Act’s purpose as

promoting both the country’s “public health and welfare and the productive capacity of its population.” Id.

§ 7401(b)(1) (emphasis added). And it has endorsed

different regulatory approaches in different States because it recognizes that pursuing both of these goals—

balancing health and environmental considerations

against the value of economic activity, including energy production—is an inherently political undertaking that must be responsive to local conditions. And,

critically, each State is afforded regulatory autonomy

because other States’ policy prerogatives stop at the

state line. The Cities’ lawsuit, in stark contrast, asks

state courts impose a single, one-size-fits-all policy for

the entire country.

***

For decades this Court has recognized that in certain “area[s] of uniquely federal interest,” if there is

going to be policymaking via common-law adjudication, it must be done in accordance with federal common law. Boyle v. United Technologies Corp., 487 U.S.

500, 507 (1988). This rule does more than protect the

integrity of federal regulatory schemes. It also preserves the place of all States in the policymaking process, for it prevents the courts of a single State from

22

making common law for the entire country—and ensures any judge-made rules are crafted by jurists appointed by a president elected by the nation’s voters

and confirmed by a senate in which each State has an

equal voice. The decision below, however, undermines

this rule: It allows a plaintiff to avoid federal-court

scrutiny of common-law claims by simply declaring

that the claims arise under state law. Every State has

an interest in seeing the Court correct this decision.

The Court should do so.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition and reverse the decision below.

Respectfully submitted,

Office of the

Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER*

Solicitor General

KIAN J. HUDSON

Deputy Solicitor General

JULIA C. PAYNE

Deputy Attorney General

Counsel for Amici States

Dated: March 11, 2021

23

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

LYNN FITCH

Attorney General

State of Mississippi

TREG R. TAYLOR

Attorney General

State of Alaska

ERIC SCHMITT

Attorney General

State of Missouri

LESLIE RUTLEDGE

Attorney General

State of Arkansas

AUSTIN KNUDSEN

Attorney General

State of Montana

CHRISTOPHER M. CARR

Attorney General

State of Georgia

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

DEREK SCHMIDT

Attorney General

State of Kansas

MIKE HUNTER

Attorney General

State of Oklahoma

DANIEL CAMERON

Attorney General

Commonwealth of

Kentucky

ALAN WILSON

Attorney General

State of South

Carolina

JEFF LANDRY

Attorney General

State of Louisiana

JASON R. RAVNSBORG

Attorney General

State of South Dakota

24

KEN PAXTON

Attorney General

State of Texas

BRIDGET HILL

Attorney General

State of Wyoming

SEAN D. REYES

Attorney General

State of Utah

Counsel for Amici States