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

Supreme Court briefMar 11, 2021

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No. 20-1089

IN THE

Supreme Court of the United States

CHEVRON CORPORATION, ET AL.,

Petitioners,

CITY OF OAKLAND, CALIFORNIA, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE

AMERICAN PETROLEUM INSTITUTE

AS AMICUS CURIAE

SUPPORTING PETITIONERS

PAUL G. AFONSO

JOHN P. WAGNER

AMERICAN PETROLEUM

INSTITUTE

200 Massachusetts Ave., NW

Washington, DC 20001

March 11, 2021

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

wjay@goodwinlaw.com

(202) 346-4000

TABLE OF CONTENTS

PAGE

INTEREST OF THE AMICUS CURIAE.................... 1

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

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

II.

This Court should grant certiorari now

to consider whether federal common law

allows claims of interstate pollution and

nuisance to be removed to federal court. ......... 4

Courts are uncertain about

whether federal common law or

state law governs climate change

cases involving global emissions,

and that uncertainty will only get

worse if this Court fails to

consider the question now. .................... 7

The question presented should be

resolved now, before—not after—

this case and others make their

way through the state courts............... 11

The Ninth Circuit’s decision is contrary

to this Court’s treatment of interstate

pollution and nuisance claims........................ 12

CONCLUSION .......................................................... 20

TABLE OF AUTHORITIES

PAGE(S)

CASES

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ...................... 2, 5, 9, 11, 14, 18

Am. Nat’l Red Cross v. S.G.,

505 U.S. 247 (1992) .............................................. 12

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

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

405 F. Supp. 3d 947 (D. Colo. 2019) ...................... 9

Beneficial Nat’l Bank v. Anderson,

539 U.S. 1 (2003) .................................................. 12

Breuer v. Jim’s Concrete of Brevard, Inc.,

538 U.S. 691 (2003) .............................................. 12

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ............................ 16, 17, 18, 19

City of N.Y. v. BP P.L.C.,

325 F. Supp. 3d 466 (S.D.N.Y. 2018) ........... 8, 9, 13

Cleveland v. Beltman N. Am. Co.,

30 F.3d 373 (2d Cir. 1994) ................................... 19

Cty. of San Mateo v. Chevron Corp.,

294 F. Supp. 3d 934 (N.D. Cal. 2018) .................... 9

Erie R. Co. v. Tompkins,

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

People ex rel. Gallo v. Acuna,

929 P.2d 596 (Cal. 1997) ...................................... 15

Grable & Sons Metal Products, Inc. v.

Darue Eng’g & Mfg.,

545 U.S. 308 (2005) ............................................ 2, 9

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) .................. 4, 5, 6, 11, 14, 17, 20

Illinois v. Outboard Marine Corp.,

680 F.2d 473 (7th Cir. 1982) ................................ 19

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) .............................................. 14

Merrill Lynch, Pierce, Fenner & Smith

Inc. v. Manning,

136 S. Ct. 1562 (2016) .......................................... 11

Murphy Bros., Inc. v.

Michetti Pipe Stringing, Inc.,

526 U.S. 344 (1999) .............................................. 12

Nat’l Farmers Union Ins. Cos. v.

Crow Tribe of Indians,

471 U.S. 845 (1985) ................................................ 5

Native Village of Kivalina v.

ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) ............................ 5, 18

North Carolina ex rel. Cooper v.

Tenn. Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ................................ 16

iii

Tex. Indus., Inc. v.

Radcliff Materials, Inc.,

451 U.S. 630 (1981) .............................. 5, 14, 17, 20

United States v.

Standard Oil Co. of Cal.,

332 U.S. 301 (1947) .................................... 3, 18, 19

OTHER AUTHORITIES

Jonathan H. Adler,

A Tale of Two Climate Cases,

121 Yale L.J. Online 109 (2011) .......................... 15

Phil Goldberg et al.,

The Liability Engine That Could

Not: Why the Decades-Long

Litigation Pursuit of Natural

Resource Suppliers Should Grind to

a Halt,

12 J.L. Econ. & Pol’y 47 (2016) ............................ 16

INTEREST OF THE AMICUS CURIAE1

The American Petroleum Institute (“API”) is a

nationwide, non-profit trade association that

represents approximately 600 companies involved in

every aspect of the petroleum and natural gas

industry.

Its members range from the largest

integrated companies to the smallest independent oil

and gas producers. API’s members include producers,

refiners, suppliers, marketers, pipeline operators, and

marine transporters, as well as service and supply

companies that support the industry. API is also the

worldwide leading body for establishing standards that

govern the oil and natural gas industry.

This case is one of many that have been brought

against the petroleum and natural gas industry,

almost all by state and local governments suing in

their home courts, many represented by the same

outside plaintiffs’ counsel. Although API is not a party

to this specific case, governmental plaintiffs have

named API as a defendant in several subsequent cases,

seeking to impose tort liability for API’s exercise of its

First Amendment rights to advocate for its members

and petition the government. API has been among the

defendants removing these cases to federal court,

relying in part on the federal common law that governs

environmental tort claims of an interstate and

international nature. See, e.g., Minnesota v. Am.

Petroleum Inst., No. 20-cv-1636 (D. Minn. removed

1 All parties have consented to the filing of this brief.

Amicus

curiae timely provided notice of intent to file this brief to all

parties. No counsel for a party authored any part of this brief,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus curiae, its members, or its counsel made

a monetary contribution to the brief’s preparation or submission.

July 27, 2020); Delaware ex rel. Jennings v. BP Am.

Inc., No. 20-cv-1429 (D. Del. removed Oct. 23, 2020).

Accordingly, API has a concrete stake in ensuring that

claims that ought to be governed by federal law are

heard in federal court.

API has extensive familiarity with the uniquely

federal interests that this litigation implicates. This

case, like the cases that similar plaintiffs and their

outside counsel have brought against API, raises crossborder issues that have always been the subject of

federal, not state, common law. Because these claims

arise under federal law, plaintiffs cannot insist that

they stay in state court.

SUMMARY OF ARGUMENT

I. The decisions below reflect a sharp divide

regarding whether nuisance claims alleging localized

harm from global climate change and worldwide

emissions arise under federal law for jurisdictional

purposes. The district court in this case said yes,

applying the principle that, “[w]hen we deal with air

and water in their ambient or interstate aspects, there

is a federal common law.” Am. Elec. Power Co. v.

Connecticut (“AEP”), 564 U.S. 410, 421 (2011) (citation

omitted). The court of appeals said no, concluding

that, even if federal common law provided a claim of

public nuisance, the pleaded state-law claim would not

“require resolution of a substantial question of federal

law,” and thus federal jurisdiction was lacking under

Grable & Sons Metal Products, Inc. v. Darue

Engineering and Manufacturing, 545 U.S. 308 (2005).

Pet. App. 12a. By focusing on whether the state-law

claim incorporated federal law, the Ninth Circuit failed

to recognize that state law cannot apply here at all. It

reasoned that the Clean Air Act is so comprehensive

that it displaces any federal common law—yet may still

leave room for state courts to fashion their own common

law remedies, with no avenue to remove to federal

court. In so holding, it confused the availability of

federal causes of action or remedies (which is what

displacement addresses) with whether a case is federal

in nature because only federal law can govern the

alleged claims. These are two distinct questions under

this Court’s precedents. United States v. Standard Oil

Co. of Cal., 332 U.S. 301, 307, 313-16 (1947).

Unless this Court acts now to answer the

underlying question of federal jurisdiction, this divide

will only get worse. Respondents’ suits were one of 14

that governmental plaintiffs filed between 2017 and

2018. And there are at least six more suits working

their way through the federal courts. Without this

Court’s immediate intervention, questions of tort

liability for global climate change will be decided by

federal courts in some instances, and, in others, by

state courts that are being asked to apply different

local laws to address an international problem. This

Court has granted certiorari in a variety of cases in an

interlocutory procedural posture. It should grant

certiorari here to address an important jurisdictional

question: whether federal courts have jurisdiction over

suits that seek to address global climate change and

develop appropriate solutions for them.

II. The Ninth Circuit erred by failing to recognize

that federal common law provides a basis for federal

jurisdiction and removal in this case. After expressing

uncertainty as to whether federal common law applied

at all, it suggested that (1) federal common law would

be displaced by the Clean Air Act anyway, and (2) in

light of that displacement, a state-law nuisance claim

remained viable. Pet. App. 13a-14a. But respondents’

allegations are classic claims of transboundary

pollution—the very sort of interstate claims for which

this Court has unflinchingly held that federal common

law must govern.

The court of appeals was also wrong about the effect

of displacement. Holding that the Clean Air Act

displaces the federal common law that would otherwise

govern respondents’ claims would only strengthen the

case for federal jurisdiction. The reason federal

common law governs interstate disputes is that

applying a single state’s law to interstate claims is

antithetical to our constitutional structure, which gives

federal courts jurisdiction over disputes crossing state

lines. That is no less true when a federal common law

remedy is displaced by statute. A congressional

decision to displace federal common law in favor of a

comprehensive federal regulatory scheme is not a grant

of permission to 50 state courts to write their own

common-law rules. Rather, statutory displacement

means that Congress has occupied the field, and a

plaintiff is left with only those causes of action or

remedies (if any) that Congress expressly prescribes.

And whatever those remedies, any claim in this area

can only be a federal one.

ARGUMENT

I. This Court should grant certiorari now to

consider whether federal common law allows claims of interstate pollution and nuisance to be removed to federal court.

“There is no federal general common law,” Erie R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938) (emphasis added), but federal courts may “fashion federal law” in limited areas “where federal rights are concerned.” Illinois v. City of Milwaukee (Milwaukee I), 406 U.S. 91,

103 (1972) (citation omitted). The air and water that

cross state lines implicate just such federal rights:

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

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

(citing Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971));

accord AEP, 564 U.S. at 421 (citation omitted). “Environmental protection” is, after all, “an area ‘within national legislative power,’” and thus, it is appropriate for

federal courts to “fill in ‘statutory interstices,’ and, if

necessary, even ‘fashion federal law.’” AEP, 564 U.S.

at 421 (citation omitted). By contrast, allowing states

to apply their own varying common-law rules to environmental concerns crossing state lines would mean

“more conflicting disputes, increasing assertions and

proliferating contentions” about the standards for adjudging claims of “improper impairment.” Milwaukee I,

406 U.S. at 107 n.9 (quoting Pankey, 441 F.2d at 241).

Because of the “uniquely federal interests” at stake

in claims of interstate pollution, “our federal system

does not permit the controversy to be resolved under

state law,” as the “interstate or international nature of

the controversy makes it inappropriate for state law to

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

451 U.S. 630, 641 & n.13 (1981); Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 855 (9th Cir.

2012) (“[F]ederal common law can apply to transboundary pollution suits. Most often . . . those suits

are founded on a theory of public nuisance.”). And

where, as here, a claim falls within an area that is exclusively federal in nature, the case falls within federal

jurisdiction. Nat’l Farmers Union Ins. Cos. v. Crow

Tribe of Indians, 471 U.S. 845, 850, 852 (1985) (“Federal common law as articulated in rules that are fash-

ioned by court decisions are ‘laws’ as that term is used

in § 1331.”); Pet. 21-22.

The Ninth Circuit’s holding—that claims nominally

based on state law cannot be removed to federal

court—will invite fragmentation in an area where a

unified federal approach is essential: the very problem

that federal common law is meant to avoid. If the decision is left to stand, and to be followed by other courts,

there will no longer be a federal common law for “air

. . . in [its] ambient or interstate aspects,” but rather a

patchwork of divergent judge-made local laws. Governmental plaintiffs like respondents here have

brought a flurry of lawsuits claiming virtually the

same thing—that petitioners are responsible for interstate and international emissions that have harmed

the plaintiff states, counties, or cities. Instead of having a “uniform standard” of federal common law to address these claims of “improper impairment by sources

outside [of the localities’] domain,” Milwaukee I, 406

U.S. at 107 n.9 (citation omitted), environmental harm

will be addressed by 50 state courts applying remedies

provided by 50 sets of state laws. That is hardly appropriate for an issue that requires a uniform approach

under our constitutional structure, which commits disputes that are interstate in nature to federal law.

This Court should intervene now and make clear

that these cases must proceed in federal court. Neither

petitioners nor the state courts should be put through

the process of hashing out the content of 50 state-law

rules. This Court can spare them that unnecessary

task by holding, now, that these cases are federal in

character and belong in federal court.

A. Courts are uncertain about whether federal common law or state law governs

climate change cases involving global

emissions, and that uncertainty will only

get worse if this Court fails to consider

the question now.

In 2017 and 2018, 13 state and local governments,

including respondents, filed lawsuits in their respective

home state courts against petitioners, alleging that petitioners created both a public and a private nuisance

under state law through their “production, marketing,

and sale of fossil fuels.”2 C.A. E.R. 160 ¶ 94(c). The alleged conduct is international and interstate in scope.

Here, respondents allege that the fossil fuels traceable

to petitioners cause, or at least contribute to, a rise in

the sea level induced by global warming. C.A. E.R. 161

¶ 94(e)-(f). Respondents seek to impose liability for fossil fuels consumed “worldwide from the mid Nineteenth

2 Rhode Island v. Chevron Corp., No. PC-2018-4716 (R.I. Super.

Ct. July 2, 2018); King Cty. v. BP p.l.c., No. 18-2-11859-0 (Wash.

Super. Ct. May 9, 2018); Bd. of Cty. Comm’rs of Boulder Cty. v.

Suncor Energy (U.S.A.) Inc., No. 2018CV030349 (Colo. Dist. Ct.

Apr. 17, 2018) (on behalf of Boulder County, San Miguel County,

and the City of Boulder); City of Richmond v. Chevron Corp., No.

C18-00055 (Cal. Super. Ct. Jan. 22, 2018); Mayor & City Council

of Balt. v. BP p.l.c., No. 24-C-18-004219 (Md. Cir. Ct. July 20,

2018); City of Imperial Beach v. Chevron Corp., No. C17-01227

(Cal. Super. Ct. July 17, 2017); Cty. of Marin v. Chevron Corp.,

No. CIV1702586 (Cal. Super. Ct. July 17, 2017); Cty. of San Mateo

v. Chevron Corp., No. 17CIV03222 (Cal. Super. Ct. July 17, 2017);

City of Santa Cruz v. Chevron Corp., No. 17CV03243 (Cal. Super.

Ct. Dec. 20, 2017); Cty. of Santa Cruz v. Chevron Corp., No.

17CV03242 (Cal. Super. Ct. Dec. 20, 2017); Cal. ex rel. Herrera v.

BP p.l.c., No. CGC-17-561370 (Cal. Super. Ct. Sept. 19, 2017) (San

Francisco); Cal. ex rel. Oakland City Att’y v. BP p.l.c., No.

RG17875889 (Cal. Super. Ct. Sept. 19, 2017) (Oakland).

Century to present,” particularly for “the usage of

. . . fuels [that] has accumulated in the atmosphere

since 1980.” C.A. E.R. 160 ¶ 94(b)-(c), E.R. 297. Respondents do not (and could not) assert that the emissions occurred exclusively or even substantially within

their municipal borders. Rather, a defendant’s connection to the locality usually consists of little more than a

retail presence, and perhaps a refinery or a terminal—

operations that are not alleged to have any significant

effect on global warming at all. See, e.g., C.A. E.R. 138141 ¶¶ 32-37. Governmental plaintiffs like respondents seek to tie petitioners to the plaintiffs’ locales by

pointing to the injuries allegedly caused by global

emissions from fossil fuels—specifically, the use and

combustion of those fuels. Put simply, respondents

claim that a global problem is a local nuisance.

Petitioners removed to federal court because the international and interstate nature of the governmental

plaintiffs’ claims meant that any common-law rule can

only be federal in nature. But courts are splintered on

whether federal common law applies. Some federal

courts addressing the issue and exercising federal jurisdiction, including the district court here, have determined that tort claims like petitioners’ are “exactly

the type of ‘transboundary pollution suit’ to which federal common law should apply.” City of N.Y. v. BP

P.L.C., 325 F. Supp. 3d 466, 471 (S.D.N.Y. 2018) (citation omitted), appeal docketed, No. 18-2188 (2d Cir. July 26, 2018); Pet App. 51a. These courts reason that,

however a particular plaintiff’s claims are framed, it is

ultimately “seeking damages for global-warming related injuries resulting from greenhouse gas emissions,

and not only the production of . . . fossil fuels.” City of

N.Y., 325 F. Supp. 3d at 471-72. And because these

claims are “ultimately based on the ‘transboundary’

emission of greenhouse gases,” courts applying federal

law have determined that the claims should be decided

“under federal common law and require a uniform

standard of decision.” Id. at 472.

Other courts have remanded cases like this one, offering a variety of reasons for doing so. At least two

courts have questioned whether, in the words of the

court of appeals here, “there is a federal common law of

public nuisance relating to interstate pollution.” Pet.

App. 13a; Bd. of Cty. Comm’rs of Boulder Cty. v. Suncor

Energy (U.S.A.), Inc., 405 F. Supp. 3d 947, 962 (D. Colo. 2019) (application of federal common law is “questionable and not settled under controlling law”), aff’d in

part, appeal dismissed in part, 965 F.3d 792 (10th Cir.

2020), petition for cert. pending, No. 20-783 (filed Dec.

4, 2020). Instead of addressing whether federal common law applies, these courts focus on whether the

complaints overtly make federal policies an ingredient

in the claims, such that federal jurisdiction is appropriate under Grable. By focusing only on the importance of the federal interests in “energy policy, environmental protection, and foreign affairs,” Suncor, 405

F. Supp. 3d at 957, and not the role of federal common

law, these courts provide an opening for governmental

plaintiffs to plead around federal law. E.g., Pet. App.

13a-14a. And despite this Court’s holding in AEP, one

court has gone so far as to conclude that federal common law governing interstate pollution has been “displaced” by the Clean Air Act; that it thus “no longer exists”; and that state law fills the gap. Cty. of San

Mateo v. Chevron Corp., 294 F. Supp. 3d 934, 937 (N.D.

Cal. 2018), aff’d in part, appeal dismissed in part, 960

F.3d 586 (9th Cir. 2020), petition for cert. pending, No.

20-884 (filed Dec. 30, 2020).

Federal courts are thus left with no clear direction

on whether federal common law or the individual laws

of the 50 states should govern what are, at bottom,

claims of interstate and international pollution. And

courts need guidance: at least one district court has

stayed its proceedings for further clarity on whether

federal common law applies to claims like respondents’.

See King Cty. v. BP P.L.C., No. 18-cv-758, ECF No. 138

(W.D. Wash. Oct. 17, 2018).

The divide will only get worse. In the last two

years, at least six governmental entities have filed similar lawsuits that have been removed to federal court.

Two are now on appeal, and the others have remand

motions under submission. Order Granting Motion to

Remand, Cty. of Maui v. Sunoco LP, No. 20-cv-470 (D.

Haw. Feb. 12, 2021), ECF No. 99, appeal docketed, No.

21-15318 (9th Cir. Feb. 23, 2021); Order Granting Motion to Remand, City & Cty. of Honolulu v. Sunoco LP,

No. 20-cv-163 (D. Haw. Feb. 12, 2021), ECF No. 128,

appeal docketed, No. 21-15313 (9th Cir. Feb. 23, 2021);

Minnesota v. Am. Petroleum Institute, No. 20-cv-1636

(D. Minn.); City of Charleston v. Brabham Oil Co., No.

20-cv-3579 (D.S.C.); City of Hoboken v. Exxon Mobil

Corp., No. 20-cv-14243 (D.N.J.); Delaware v. BP Am.,

Inc., No. 20-cv-1429 (D. Del.). The trend is likely to

continue,3 especially within the Ninth Circuit, whose

rejection of federal jurisdiction in this case is likely to

prompt more filings in the many state courts within

that circuit.

3 New cases continue to be filed.

E.g., City of Annapolis v. BP

PLC, No. C-02-CV-21-000250 (Md. Cir. Ct. filed Feb. 22, 2021).

Unless this Court intervenes and grants certiorari

to address whether claims of alleged harm caused by

the effects of global emissions are subject to federal

common law (and thus removable to federal court), how

these claims will be resolved may be left entirely at the

mercy of the district court to which a case is removed,

especially if there is no other basis for removal. Some

courts will retain federal jurisdiction based on the

unique federal interests that this Court recognized in

AEP and Milwaukee I. Others will remand the cases

back to the original state court, leaving claims of interstate and international pollution to be decided by the

laws of a single state. Unless this Court takes this opportunity to grant review, the inconsistency will persist.

B. The question presented should be resolved now, before—not after—this case

and others make their way through the

state courts.

The federal-versus-state issue is squarely presented

in this case. Without review by this Court, the federal

case is over; the litigation would then proceed through

the three levels of the state judiciary—pointlessly, if

petitioners are right about the jurisdictional question

presented. This Court has regularly granted review of

appellate decisions ordering a case back to state court.

It should do the same here.

This Court has often granted certiorari to answer

questions of federal jurisdiction presented in cases in a

similar posture, i.e., after the district court finds federal jurisdiction but the court of appeals orders the case

remanded to state court. E.g., Merrill Lynch, Pierce,

Fenner & Smith Inc. v. Manning, 136 S. Ct. 1562, 1567

(2016) (whether section 27 of the Exchange Act applies

only to those claims that would satisfy the “arising under” standard of the federal question statute); Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 4-5 (2003)

(whether state-law usury claims against a national

bank are completely preempted by the National Bank

Act, such that removal is appropriate); Breuer v. Jim’s

Concrete of Brevard, Inc., 538 U.S. 691, 693 (2003)

(whether the Fair Labor Standards Act bars removal of

a state court action to federal court); Murphy Bros.,

Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 34748 (1999) (whether service of process is required to

start the 30-day removal period under 28 U.S.C.

§ 1446(b)); Am. Nat’l Red Cross v. S.G., 505 U.S. 247,

254, 259 (1992) (whether the “sue or be sued” provision

in the Red Cross’s charter confers a basis for federal

jurisdiction). That posture presents the jurisdictional

question squarely, because the answer determines

whether the case will proceed in federal or state court.

As in those cases, the petition here presents an excellent vehicle for considering the jurisdictional question

presented.

In theory, in any one of those cases, this Court could

have waited for the case to be litigated all the way up

through the state court system. That is not what the

Court did. Rather, in case after case, it answered the

key question—state or federal court? It should do the

same here.

II. The Ninth Circuit’s decision is contrary to

this Court’s treatment of interstate pollution and nuisance claims.

The court of appeals determined that the district

court should have remanded respondents’ suits back to

California state court because the suits implicated only

federal policies, not a “substantial federal issue.” Pet.

App. 14a. In so holding, the Ninth Circuit concluded

that the Clean Air Act displaced federal public nuisance claims based on emissions contributing to global

warming. Pet. App. 13a. The Ninth Circuit therefore

treated these claims as pure state-law claims.

That determination was wrong for two reasons.

First, notwithstanding the Ninth Circuit’s equivocation, the only body of law that governs nuisance claims

based on interstate pollution is federal law. Second,

even if the court of appeals were correct in observing

that the Clean Air Act displaces federal common law

claims of nuisance in this case, that does not mean respondents’ suits lost their federal character and could

proceed under state law. Displacement means that

federal common law provides neither a remedy nor a

cause of action, but it does not mean that plaintiffs are

free to litigate under state law. In other words, displacement addresses the merits of a claim; it does not

surrender jurisdiction to consider the claim.

A. Climate change is an international and interstate phenomenon. As alleged by respondents here,

climate change requires a confluence of different

events by different actors to occur all around the world.

See Pet. App. 29a (noting allegation that petitioners

are “collectively responsible for over eleven percent of

all carbon dioxide and methane pollution that has accumulated in the atmosphere since the Industrial Revolution”); see also City of N.Y., 325 F. Supp. 3d at 472.

The emissions at the center of respondents’ suits are

the subject of international treaties and a host of federal laws. Pet. 15-18. Respondents’ claims are thus

not only about “air and water in their ambient or inter-

state aspects,” a quality that “undoubtedly” calls for

the application of federal common law, AEP, 564 U.S.

at 421 (citation omitted); Milwaukee I, 406 U.S. at 103;

they also implicate foreign policy and the United

States’ sovereign interests, which, too, call out for federal common law. Tex. Indus., 451 U.S. at 641 (identifying instances where “our federal system does not

permit [a] controversy to be resolved under state law,

. . . because the interstate or international nature of

the controversy makes it inappropriate for state law to

control”).

The state and local governments bringing climate

change suits like respondents’ can hardly be said to

have a unique geographic tie to the events giving rise

to global climate change. These plaintiffs may allege

that some commercial activity occurs within their jurisdictions, but that activity is not the basis of their

claims, which are by no means local. Moreover, that

limited activity hardly justifies allowing the law of one

state to decide a sweeping claim concerning emissions

that cross interstate and international lines. And none

of the plaintiffs alleges that emissions in their particular locality caused the alleged harms of global warming. They could not credibly do so; as this Court explained in AEP, “emissions in New Jersey may contribute no more to flooding in New York than emissions

in China.” 564 U.S. at 422.

Thus, a patchwork of state nuisance laws governing

largely out-of-state emissions would only hinder efforts

to address climate change; this Court has recognized

that state nuisance laws are poor apparatuses for “regulat[ing] the conduct of out-of-state sources.” Int’l Paper Co. v. Ouellette, 479 U.S. 481, 495 (1987); id. at

495-96 (noting that the “[a]pplication of an affected

State’s law to an out-of-state source also would undermine the important goals of efficiency and predictability in the [Clean Water Act’s] permit system”); see also

Jonathan H. Adler, A Tale of Two Climate Cases, 121

Yale L.J. Online 109, 112 (2011) (“[T]he application of

variable state standards to matters of a global, interjurisdictional concern could further frustrate the development of a coherent climate change policy.”).

Respondents will doubtless claim that there is no

basis for applying federal common law because their

claims are not about transboundary pollution, but rather about how fossil fuels were marketed and promoted to the public. But their claim is one of public nuisance, i.e., harm to the enjoyment of life or property by

a community at large. People ex rel. Gallo v. Acuna,

929 P.2d 596, 604 (Cal. 1997). As the district court

aptly observed, harm is not alleged to occur because of

the marketing and promotion of oil and natural gas

products. Rather, respondents here conceded that the

promotion is “merely a ‘plus factor,’” and the real cause

of the harm, as alleged, is the production and use of

fossil fuels. Pet. App. 32a; see also Pet. App. 47a

(“Plaintiffs allege that the combustion (by others) of

fossil fuels produced by defendants has increased atmospheric levels of carbon dioxide . . . .”); C.A. E.R. 59

¶ 3 (alleging that “[m]ost of the carbon dioxide now in

the atmosphere as a result of combustion of Defendants’ fossil fuels is likely attributable to their recent

production”).

Leaving claims of global and interstate emissions to

be decided by disparate state laws on public nuisance

will lead to fragmentation of judicial decisionmaking

that will hamper an effective federal response to climate change. That fragmentation is inevitable given

that public nuisance is a longstanding but amorphous

cause of action, “often vague and indeterminate.” City

of Milwaukee v. Illinois (“Milwaukee II”), 451 U.S. 304,

317 (1981).

Even if every state were to follow a uniform standard of public nuisance—which is extremely unlikely—

state courts can still disagree as to what the articulated standard requires, and how to account for the

State’s sovereign interests. As a result, if state courts

were to rely on “the vagaries of public nuisance doctrine” to decide cases involving interstate emissions, “it

would be increasingly difficult for anyone to determine

what standards govern.” North Carolina ex rel. Cooper

v. Tenn. Valley Auth., 615 F.3d 291, 298 (4th Cir.

2010).

And those courts would be charged with implementing remedies that would have national and international consequences, with only the limited toolbox of a

state court applying state law; that would, in turn,

leave state courts in the unenviable position of serving

as global environmental regulators. Phil Goldberg et

al., The Liability Engine That Could Not: Why the

Decades-Long Litigation Pursuit of Natural Resource

Suppliers Should Grind to a Halt, 12 J.L. Econ. & Pol’y

47, 74 (2016) (explaining that courts using public nuisance laws “to address risks associated with natural

resources” would “effectively be regulating how these

resources can be extracted and used,” and that, “courts

do not have the tools to do this job”). “Energy policy

cannot be set, and the environment cannot prosper, in

this way.” Cooper, 615 F.3d at 298.

B. The Ninth Circuit erred in concluding that, because the Clean Air Act displaced the federal common

law that applies to respondents’ nuisance claims, those

claims could not justify removal jurisdiction. Pet. App.

13a-14a. In so holding, the court of appeals conflated

two distinct inquiries—(1) whether federal common

law governs plaintiffs’ claims to the exclusion of state

law, and (2) whether a federal statute displaces any

causes of action or remedies that might have been

available under federal common law.

When a federal court concludes that a claim is governed only by federal common law, that conclusion

leaves no room for the application of state law. Milwaukee II, 451 U.S. at 313 n.7 (“[I]f federal common

law exists, it is because state law cannot be used.”). In

those cases, federal common law applies because the

dispute is of such an international and interstate nature that a single state’s law is incapable of fairly or

adequately deciding it. Tex. Indus., 451 U.S. at 641

(federal common law applies where “our federal system

does not permit [a] controversy to be resolved under

state law” because of its “interstate or international

nature”); Milwaukee I, 406 U.S. at 107 n.9 (observing

that the application of state law to interstate environmental disputes would lead to “more conflicting disputes, increasing assertions and proliferating contentions” about the governing standards (quoting Pankey,

441 F.2d at 241)).

Despite the Ninth Circuit’s suggestion to the contrary, Pet. App. 13a, statutory displacement does not

change the federal character of respondents’ claims.

Even if the Ninth Circuit were correct in concluding

that the federal common law is displaced by the Clean

Air Act in this case, that displacement does not extinguish federal jurisdiction. This Court has always recognized that the question whether subject matter is ex-

clusively federal is distinct from whether particular

federal causes of action or remedies are available for

particular plaintiffs to pursue. E.g., Standard Oil, 332

U.S. at 307, 313-16. Even if the answer to the second

question is no, the case retains its federal character.

See id.; AEP, 564 U.S. at 422 (noting that the fact that

“a subject is meet for federal law governance . . . does

not necessarily mean that federal courts should create

the controlling law”). While federal common law must

always yield to Congress’s express statutory intent, as

it is for “Congress . . . to articulate the appropriate

standards to be applied as a matter of federal law,”

Milwaukee II, 451 U.S. at 317, it does not follow that

displacement requires yielding to state law, unless

Congress so directs.

When a federal statute displaces federal common

law, it merely eliminates the causes of action or remedies that might have been available under the common

law—it does not permit state-law claims into an area

that is exclusively federal in character. In AEP, this

Court explained that the scope of the displacement was

determined by the “reach of remedial provisions” available in the displacing statute. 564 U.S. at 425 (citing

Cty. of Oneida v. Oneida Indian Nation of N.Y., 470

U.S. 236, 237-39 (1985)). Similarly, in Milwaukee II,

this Court observed that Congress’s changes to the

Clean Water Act meant “no federal common-law remedy was available.” 451 U.S. at 332. The courts of appeals have likewise understood statutory displacement

as the displacement of causes of action or remedies, not

of federal jurisdiction. E.g., Kivalina, 696 F.3d at 856

(displacement means federal common law “does not

provide a remedy”); id. at 857 (“displacement of a federal common law right of action means displacement of

remedies”); Illinois v. Outboard Marine Corp., 680 F.2d

473, 476 (7th Cir. 1982) (considering whether amendments to the Federal Water Pollution Control Act “displaced the federal common law remedy for nuisances

resulting from the discharge of pollutants”); Cleveland

v. Beltman N. Am. Co., 30 F.3d 373, 381 (2d Cir. 1994)

(noting that, due to the Carmack Amendment, “a federal common law cause of action—even assuming such

exists—is displaced by the Act that has established

those remedies Congress deems appropriate in the

field”).

Displacement means that a plaintiff is left with only the statutory causes of action or remedies that Congress has prescribed in the statutory and regulatory

scheme that it has selected for the field. See Milwaukee II, 451 U.S. at 324 (“The question is whether the

field has been occupied, not whether it has been occupied in a particular manner.”). When a state law claim

is impermissible because of the federal nature of the

interests at stake, and federal common law is displaced

by a federal statute, the case continues to arise under

federal law and establish federal jurisdiction.

The Ninth Circuit’s version of displacement is unrecognizable, not just unfaithful to this Court’s cases.

The court thought that (1) a federal statute does not

specifically address an interstate problem that could

have been addressed by federal common law, and thus

(2) state law causes of action should fill the gap, and

jurisdiction should be returned back to the state courts.

That reasoning looks nothing like displacement by

Congress; it is replacement of Congress—by state

courts. See Standard Oil, 332 U.S. at 316 (“[E]xercise

of judicial power to establish the new liability not only

would be intruding within a field properly within Con-

gress’s control and as to a matter concerning which it

has seen fit to take no action.”). After all, the ill-fitting

and inadequate nature of state law to address an interstate problem is what justifies the invocation of federal

common law in the first place. Tex. Indus., 451 U.S. at

641; Milwaukee I, 406 U.S. at 107 n.9.

* * * * *

Plaintiffs’ claims are disruptive because they ask

judges—state judges—to take over climate policy from

the national legislature. The Ninth Circuit’s reasoning

is even more disturbing: it treats Congress’s action,

precluding federal district judges from formulating

federal common law in this area, as permitting 50 state

courts’ judges to do the same thing. That reasoning

cannot stand; the Court should act to keep this case,

and those like it, in federal court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.