Petition for Writ of Certiorari — Shell Oil Products Co., L.L.C., et al., Petitioners v. Rhode Island

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APPENDIX A

United States Court of Appeals

For the First Circuit

October 29, 2020

______________________

No. 19-1818

STATE OF RHODE ISLAND,

Plaintiff, Appellee,

v.

SHELL OIL PRODUCTS CO., L.L.C.; CHEVRON

CORP.; CHEVRON USA, INC.; EXXONMOBIL

CORP.; BP, PLC; BP AMERICA, INC.,; BP

PRODUCTS NORTH AMERICA, INC.; ROYAL

DUTCH SHELL P.L.C.; MOTIVA ENTERPRISES,

L.L.C.; CITGO PETROLEUM CORP.;

CONOCOPHILLIPS; CONOCOPHILLIPS CO.;

PHILLIPS 66; MARATHON OIL CO.; MARATHON

PETROLEUM CORP.; MARATHON PETROLEUM

CO., L.P.; SPEEDWAY, L.L.C.; HESS CORP.;

LUKOIL PAN AMERICAS L.L.C.; AND DOES 1100,

Defendants, Appellants,

GETTY PETROLEUM MARKETING, INC.

Defendant.

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______________________

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, Chief U.S. District Judge]

______________________

Before

Howard, Chief Judge

*

and Thompson, Circuit Judge.

______________________

Theodore J. Boutrous, Jr., with whom Joshua S.

Lipshutz, Anne Champion, Gibson, Dunn & Crutcher

LLP, Gerald J. Petros, Robin L. Main, Ryan M. Gainor, Hinckley, Allen & Snyder LLP, Neal S. Manne,

Susman Godfrey LLP, John A. Tarantino, Patricia K.

Rocha, Nicole J. Benjamin, Adler Pollock & Sheehan

P.C., Philip H. Curtis, Nancy G. Milburn, Matthew T.

Heartney, Arnold & Porter Kaye Scholer LLP, Matthew T. Oliverio, Oliverio & Marcaccio LLP, Theodore

V. Wells, Jr., Daniel J. Toal, Jaren Janghorbani, Kannon Shanmugam, Paul, Weiss, Rifkind, Wharton,

Garrison LLP, Jeffrey S. Brenner, Nixon Peabody

LLP, David C. Frederick, Brendan J. Crimmins,

Grace W. Knofczynski, Kellogg, Hansen, Todd, Figel

& Frederick, P.L.L.C., Daniel B. Levin, Jerome C.

Roth, Elizabeth A. Kim, Munger, Tolles & Olson LLP,

John E. Bulman, Stephen J. MacGillivray, Pierce Atwood LLP, Nathan P. Eimer, Pamela R. Hanebutt,

Lisa S. Meyer, Raphael Janove, Ryan J. Walsh, Eimer

Stahl LLP, Michael J. Colucci, Olenn & Penza, LLP,

*

Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance

of the panel’s opinion in this case. The remaining two panelists

therefore issued the opinion pursuant to 28 U.S.C. § 46(d).

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Sean C. Grimsley, Jameson R. Jones, Bartlit Beck

LLP, Robert G. Flanders, Jr., Timothy K. Baldwin,

Whelan, Corrente, Flanders, Kinder & Siket LLP, Steven M. Bauer, Margaret A. Tough, Latham & Watkins

LLP, Jeffrey B. Pine, Patrick C. Lynch, Lynch & Pine,

Shannon S. Broome, Shawn Patrick Regan, Ann Marie Mortimer, Hunton Andrews Kurth LLP, Jason C.

Preciphs, Roberts, Carroll, Feldstein & Peirce, INC.,

J. Scott Janoe, Matthew Allen, Megan Berge, Baker

Botts L.L.P., Lauren Motola-Davis, Samuel A. Kennedy-Smith, Lewis Brisbois Bisgaard & Smith LLP,

Jeffrey S. Brenner, Nixon Peabody LLP, Stephen M.

Prignano, Mcintyre Tate LLP, James Stengel, Robert

Reznick, and Orrick, Herrington & Sutcliffe, LLP,

were on brief for appellants.

Victor M. Sher, with whom Matthew K. Edling,

Sher Edling LLP, and Neil F.X. Kelly, Assistant Attorney General, were on brief for appellee.

Steven P. Lehotsky, U.S. Chamber Litigation

Center, Peter D. Keisler, Tobias S. Loss-Eaton, and

Sidley Austin LLP, on brief for Chamber of Commerce

of The United States of America, amicus curiae.

Patrick Parenteau, Vermont Law School, Harold

Hongju Koh, Conor Dwyer Reynolds, Peter Gruber

Rule of Law Clinic, and Yale Law School, on brief for

Former U.S. Government Officials, amicus curiae.

Gerson H. Smoger, Smoger & Associates, P.C.,

Anthony Tarricone, and Kreindler & Kreindler, LLP,

on brief for Senator Sheldon Whitehouse, Senator

Jack Reed, and Senator Edward Markey, amicus curiae.

Scott L. Nelson, Allison M. Zieve, and Public Citizen Litigation Group, were on brief for Public Citizen,

amicus curiae.

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Robert S Peck and Center For Constitutional Litigation, P.C., on brief for The National League of Cities; The U.S. Conference of Mayors; and The International Municipal Lawyers Association, amicus curiae.

Amy Williams-Derry, Daniel P. Mensher, Alison

S. Gaffney, and Keller Rohrback L.L.P., on brief for

Robert Brulle, Center for Climate Integrity, Justin

Farrell, Benjamin Franta, Stephan Lewandowsky,

Naomi Oreskes, Geoffrey Supran, and The Union of

Concerned Scientists, amicus curiae.

William A. Rossbach and Rossbach Law, PC on

brief for Mario J. Molina, Michael Oppenheimer, Robert E. Kopp, Friederike Otto, Susanne C. Moser, Donald J. Wuebbles, Gary B. Griggs, Peter C. Frumhoff

and Kristina Dahl, amicus curiae.

Peter Huffman on brief for Natural Resources Defense Council, amicus curiae.

Xavier Becerra, Attorney General for the State of

California, David A. Zonana, Supervising Deputy Attorney General, Erin Ganahl, Deputy Attorney General, Heather Leslie, Deputy Attorney General,

Maura Healey, Attorney General for the Commonwealth of Massachusetts, Seth Schofield, Senior Appellate Counsel, William Tong, Attorney General of

Connecticut, Kathleen Jennings, Attorney General of

Delaware, Clare E. Connors, Attorney General of Hawaii, Aaron M. Frey, Attorney General of Maine,

Brian E. Frosh, Attorney General of Maryland, Keith

Ellison, Attorney General of Minnesota, Gurbir S.

Grewal, Attorney General of New Jersey, Letitia

James, Attorney General of New York, Ellen F. Rosenblum, Attorney General of Oregon, Thomas J. Donovan, Attorney General of Vermont, and Robert W.

Ferguson, Attorney General of Washington on brief

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for Commonwealth of Massachusetts, State of California, State of Connecticut, State of Delaware, State of

Hawaii, State of Maine, State of Maryland, State of

Minnesota, State of New Jersey, State of New York,

State of Oregon, State of Vermont, and State of Washington, amicus curiae.

Matthew D. Hardin on brief for Energy Policy Advocates, amicus curiae.

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THOMPSON, Circuit Judge. Rhode Island is

salty about losing its already limited square footage to

rising sea levels caused by climate change. Facing

property damage from extreme weather events and

otherwise losing money to the effects of climate

change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while

those companies misled the public about their products’ true risks.

Because those claims were state law claims,

Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island

opposed removal and asked that the district court

kindly return the lawsuit to state court. The district

court obliged and allowed Rhode Island’s motion for

remand.

The oil companies appealed the district court’s order to us and a heated debate ensued over the scope of

our review. After careful consideration, we conclude

that 28 U.S.C. § 1447(d) permits our review of remand

orders only to the extent that the defendant’s grounds

for removal are federal-officer jurisdiction, pursuant

to 28 U.S.C. § 1442 or civil rights jurisdiction, pursuant to 28 U.S.C. § 1443. The oil companies make no

argument that this is a civil rights case and we conclude the allegations in Rhode Island’s state court

complaint do not give rise to federal-officer jurisdiction. Having jurisdiction to review no more than that

question, we affirm the district court’s remand order.

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BACKGROUND

Rhode Island’s State Court Case

We summarize Rhode Island’s claims, taking all

well-pleaded allegations in its state court complaint

as true for the purposes of our analysis. Ten Taxpayer

Citizens Grp. v. Cape Wind Assocs., LLC, 373 F.3d

183, 186 (1st Cir. 2004).

In 2018, faced with rising sea levels, higher average temperatures and extreme heat days, more frequent and severe floods, tropical storms, hurricanes,

and droughts, Rhode Island sued, in state court,

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nearly every oil and gas company under the sun. According to Rhode Island, the companies knew that

their fossil fuel products were hazardous to the planet

and concealed those risks, instead opting to market

their products in Rhode Island and promote “antiscience campaigns.” The oil companies actively worked

to muddy the waters of scientific consensus, collecting

decades of detailed research into the global impact of

fossil fuels but hiding the results.

All of this left the state up the creek without a

paddle once the effects of fossil fuels became more

clear, working to combat the effects of a warming

planet and an extreme climate. And those effects are

no joke. Most Rhode Island cities and towns are below

the floodplain and New England as a whole is losing

ground to the ocean at a rate three to four times faster

than the global average (and Rhode Island is hardly

big enough to sacrifice so much of its land). Those rising sea levels have already increased erosion and the

damage of storm surges along Rhode Island’s coast.

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The defendants are unified in their arguments about the issues before us, so we treat them as one group in our analysis.

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On top of the work it has already done to respond to

these environmental crises, Rhode Island anticipates

that the costs will only grow as it responds to more

frequent and extreme flooding and other storm damage.

Rhode Island therefore brought this lawsuit “to

ensure that the parties who have profited from externalizing the responsibility for [climate change] bear

the costs of those impacts on Rhode Island.” Or, as

the district court aptly summarized: “Climate change

is expensive, and the State wants help paying for it.”

Rhode Island v. Chevron Corp., 393 F. Supp. 3d 142,

146 (D.R.I. 2019).

The state court complaint lists state causes of action: public nuisance, various products liability

claims, trespass, impairment of public trust resources,

and violation of the state’s Environmental Rights Act.

The theories of liability vary to fit each cause of action,

but at its core, Rhode Island’s claim is simple: the oil

companies knew what fossil fuels were doing to the

environment and continued to sell them anyway, all

while misleading consumers about the true impact of

the products.

District Court Litigation

The oil companies removed the case to the district

court, arguing that it falls within federal jurisdiction

under a variety of theories. The oil companies contended that removal was proper pursuant to 28 U.S.C.

§ 1441, which permits removal of any cases that could

have been originally brought in federal court. To

support that ground for removal, the oil companies in

turn argued that the district court could have had jurisdiction over the case from the start per 28 U.S.C.

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§ 1331 because the complaint presents a federal question. The oil companies also argued that any of a flock

of specific jurisdiction statutes provided the necessary

hook to keep the case in federal court, citing the federal-officer removal statute, the Outer Continental

Shelf Lands Act, federal-enclave jurisdiction, the

bankruptcy-removal statute, and admiralty jurisdiction.

Rhode Island disagreed with all of these arguments and moved for the case to be remanded to state

court.

The district court evaluated each of the oil companies’ claims and saw no federal jurisdiction lurking

within Rhode Island’s state causes of action. Accordingly, the district court ordered the case remanded to

state court.

Questions on Appeal

The oil companies appealed the remand order to

us. As we detail below, Rhode Island argues that our

appellate jurisdiction is limited by 28 U.S.C. § 1447(d)

to considering only whether the district court was

wrong about federal-officer removal and forsaking the

other grounds for removal claimed below. Rhode Island, of course, contends the district court was correct

to reject the federal-officer removal theory. The oil

companies read § 1447(d) to authorize appellate review of the entire remand order and tell us that, were

we to review the entire order, we would find that the

district court improperly remanded the case. Should

we limit our review only to the federal-officer jurisdiction question, the oil companies are confident we will

still find federal jurisdiction.

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OUR TAKE

The first question we must resolve is the scope of

our review of this appeal under 28 U.S.C. § 1447(d).

Is our appellate jurisdiction limited to the types of removal listed in § 1447(d) or may we examine every basis for removal alleged by the oil companies and rejected by the district court? We begin with the statute

and then detail our interpretation of it, peppering our

discussion with each side’s contentions along the way.

Concluding that our review is cabined to the question

of whether the district court has jurisdiction over this

case pursuant to federal officer removal, we then analyze whether Rhode Island’s complaint meets that

threshold, and ultimately conclude it does not.

Scope of Appellate Review

Section 1447(d) of Title 28 United States Code,

provides:

An order remanding a case to the State court

from which it was removed is not reviewable

on appeal or otherwise, except that an order

remanding a case to the State court from

which it was removed pursuant to section

1442 or 1443 of this title shall be reviewable

by appeal or otherwise.

Section 1442, in turn, authorizes defendants to remove from state court cases involving “[f]ederal officers or agencies” and § 1443 permits removal of civil

rights cases. The parties dispute whether this provision means we only have appellate jurisdiction over

the portion of the remand order rejecting federal-officer jurisdiction or whether the entire remand order

falls within our purview.

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Rhode Island argues that § 1447(d) only permits

us to review the district court’s order so far as it applies to the federal-officer jurisdiction argument.

Though our Circuit has held that § 1447(d) generally

prohibits review of remand orders with only narrow

exceptions, see Ochoa Realty Corp. v. Faria, 815 F.2d

812, 815 (1st Cir. 1987), we have not yet addressed the

precise question presented here. Though this is not a

popularity contest, Rhode Island counts among its

friends nearly all of the circuits that have weighed in

on the topic and have limited appellate review to federal officer or civil rights removal. See Bd. of Cty.

Commissioners of Boulder Cty. v. Suncor Energy

(U.S.A.) Inc., 965 F.3d 792, 802 (10th Cir. 2020);

Mayor & City Council of Baltimore v. BP P.L.C., 952

F.3d 452, 459 (4th Cir. 2020), cert. granted sub nom.

BP P.L.C. v. Mayor & City Council Baltimore, No. 191189 (U.S. Oct. 2, 2020); Cty. of San Matteo v. Chevron Corp., 960 F.3d 586, 595-96 (9th Cir. 2020), Jacks

v. Meridian Resource Co., 701 F.3d 1224, 1229 (8th

Cir. 2012); Patel v. Del Taco, Inc., 446 F.3d 996, 998

(9th Cir. 2006); Alabama v. Conley, 245 F.3d 1292,

1293 n.1 (11th Cir. 2001); Davis v. Glanton, 107 F.3d

1044, 1047 (3d Cir. 1997); State Farm Mut. Auto

Ins.

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Co. v. Baasch, 644 F.2d 94, 97 (2d Cir. 1981).

The oil companies tell us that a plain text reading

of § 1447(d) easily answers this question. In short, the

word “order” means the district court’s entire remand

order both times that it appears in § 1447(d), so we

have appellate jurisdiction to review the entirety of

the remand order and consider whether any of the

grounds asserted below for jurisdiction are sufficient

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The Supreme Court recently granted a writ of certiorari to

resolve the circuit split on this question. BP P.L.C. v. Mayor &

City Council Baltimore, No. 19-1189 (U.S. Oct. 2, 2020).

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to keep this suit in federal court. They lean on the

Seventh Circuit’s decision in Lu Junhong v. Boeing

Co., which adopted this interpretation. 792 F.3d 805,

811 (7th Cir. 2015).

In Lu Junhong, the Seventh Circuit evaluated the

provision at issue here and concluded that “to say that

a district court’s ‘order’ is reviewable is to allow appellate review of the whole order, not just of particular

issues or reasons.” 792 F.3d at 811. In its analysis,

the Seventh Circuit primarily relied on the Supreme

Court’s decision in Yamaha Motor Corp., U.S.A. v.

Calhoun, 516 U.S. 199 (1996). In Yamaha, the Court

examined the scope of appellate jurisdiction over a

district court order during an interlocutory appeal under 28 U.S.C. § 1292(b). 516 U.S. at 205. For its part,

§ 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise appealable under

this section, shall be of the opinion that such

order involves a controlling question of law as

to which there is substantial ground for difference of opinion and that an immediate appeal

from the order may materially advance the ultimate termination of the litigation, he shall

so state in writing in such order. The Court of

Appeals . . . may thereupon, in its discretion,

permit an appeal to be taken from such order[.]

28 U.S.C. § 1292(b) (emphasis added); see Yamaha

Motor Corp., 516 U.S. at 205 (quoting section and emphasizing same language). The Yamaha Court held

that the language of § 1292(b) permitted an appellate

court to review the entire order, rather than being

bound by the district court’s framing of the “controlling question.” 516 U.S. at 205. The Seventh Circuit

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reasoned that Yamaha’s understanding of “order” was

the same interpretation called for in § 1447(d).

Seeing all of this, the oil companies rely on Lu

Junhong and Yamaha for their conclusion that the entirety of the district court’s remand order is fair game.

The Seventh Circuit pronounced its interpretation of

the word “order” in Lu Junhong to be “entirely textual,” 792 F.3d at 812, and so the oil companies would

have us resolve this question with the same allegedly

textual approach.

We agree, of course, that we begin with the language of the statute. In re Fin. Oversight & Mgmt.

Bd. for Puerto Rico, 919 F.3d 121, 128 (1st Cir. 2019),

cert. denied sub nom. Assured Guar. Corp. v. Fin.

Oversight & Mgmt. Bd. for Puerto Rico, 140 S. Ct. 855

(2020). But a plain text interpretation (of the sort the

oil companies promote) is only appropriate where the

statutory language that applies to the word “order” is

unambiguous. See Babb v. Wilkie, 140 S. Ct. 1168,

1177 (2020) (“Where . . . the words of a statute are unambiguous, the judicial inquiry is complete.”) (internal quotation marks and citation omitted) (alteration

adopted). “The plainness or ambiguity of statutory

language is determined by reference to the language

itself, the specific context in which that language is

used, and the broader context of the statute as a

whole.” In re Fin. Oversight & Mgmt. Bd. for Puerto

Rico, 919 F.3d at 128 (quoting Robinson v. Shell Oil

Co., 519 U.S. 337, 341 (1997)).

The first phrase of § 1447(d) (“[a remand] order

. . . is not reviewable on appeal or otherwise”) is clear

that the section is an overall prohibition on appellate

review of remand orders. The second phrase is where

things get cloudy. Section 1447(d) provides for exceptions to that general prohibition on review (“except

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that an order remanding a case to the State court from

which it was removed pursuant to section 1442 or

1443 of this title shall be reviewable by appeal or otherwise”), but is latently ambiguous because § 1447(d)

“does not expressly contemplate the situation in

which removal is done pursuant to [federal officer removal] and other grounds.” Suncor Energy (U.S.A.)

Inc., 965 F.3d at 805 (emphasis in original). In that

circumstance (which is the case here), the provision

leaves open whether the entire remand order or only

the part that rejects federal-officer removal is reviewable.

Seeing this ambiguity, we are unmoved by the

Seventh Circuit’s reasoning in Lu Junhong because

the “entirely textual” analysis there was premised on

clarity that § 1447(d) lacks. See 792 F.3d at 812. The

Tenth Circuit examined the same question we are

faced with here and noted that to make its textual

analysis function in Lu Junhong, the Seventh Circuit

had to bend the rules.

The Lu Junhong court impliedly conceded

[that there is ambiguity § 1447(d)] in asserting that “Section 1447(d) itself authorizes review of the remand order, because the case

was removed (in part) pursuant to § 1442.”

792 F.3d at 811 (emphasis added). In other

words, to convey its point that the plain language of § 1447(d) creates plenary review of a

remand order upon invocation of a federal officer removal basis, the Seventh Circuit was

forced to modify that language with a clarifying parenthetical entirely absent from the

statutory text.

Suncor Energy (U.S.A.) Inc., 965 F.3d at 805. We are

similarly unwilling, when faced with an ambiguous

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provision, to force an interpretation in the name of

simplicity. Instead, we will conduct a more holistic

analysis.

Beginning with the overall purpose of the statute,

we note that the Supreme Court has weighed in on

§ 1447 when answering a different question, so we are

not starting our work from scratch. See Powerex

Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224

(2007). We know that “[t]he authority of appellate

courts to review district-court orders remanding removed cases to state court is substantially limited by

[§ 1447]” and that if a district court says that it is remanding a case for lack of subject-matter jurisdiction

(as it did here), we should only review whether that

“characterization was colorable.” Powerex Corp., 551

U.S. at 229, 234. Another strike against a broad reading yielding a searching review of the district court’s

remand order.

Turning to the structure of the provision, the point

of § 1447(d), by its text, is to limit appellate review.

The provision begins with a complete ban on our review of the remand order and then pivots to two precise exceptions. See § 1447(d) (“a remand order . . . is

not reviewable”). This general ban is because, despite

our best efforts, appeals can move at a glacial pace and

“[l]engthy appellate disputes . . . would frustrate the

purpose of § 1447(d).” Powerex Corp., 551 U.S. at 234.

The oil companies tell us that it would not take much

longer to review the entire order if we were already

wading into the waters of the federal-officer removal

question, but even if that were true here (and we are

not confident it is) that does not change the section’s

purpose. See Christopher v. Stanley-Bostitch, Inc.,

240 F.3d 95, 99 (1st Cir. 2001) (“[Section 1447(d)’s]

limitation is intended to prevent prolonged litigation

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of the remand issue, and to minimize interference in

state court proceedings by the federal courts, for reasons of comity.”) (citation omitted).

Considering all of this, we are persuaded that to

allow review of every alleged ground for removal rejected in the district court’s order would be to allow

§ 1447(d)’s exception clause to swallow the general

rule prohibiting review and, thus, a narrow construction is appropriate. See Suncor Energy (U.S.A.) Inc.,

965 F.3d at 805 (interpreting the same provision and

citing Comm’r of Internal Revenue v. Clark, 489 U.S.

726, 739 (1989) (“In construing provisions . . . in which

a general statement of policy is qualified by an exception, we usually read the exception narrowly in order

to preserve the primary operation of the provision.”)).

One more thing: we assume Congress is “‘aware

of the universality of th[e] practice’ of denying appellate review of remand orders when Congress creates a

new ground for removal.” Things Remembered, Inc.

v. Petrarca, 516 U.S. 124, 128 (1995) (alteration in

original) (citation omitted) (addressing § 1447(d)).

The final feather in the cap of this analysis then is

that Congress amended this section as recently as

2011 and yet again refrained from

clearly permitting

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plenary review of remand orders. See Removal Clarification Act of 2011, Pub. L. No. 11251, 125 Stat. 545

(2011).

3

Prior to its most recent amendment, § 1447(d) provided:

An order remanding a case to the State court

from which it was removed is not reviewable on

appeal or otherwise, except that an order remanding a case to the State court from which it

was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.

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This is where the oil companies’ Yamaha argument resurfaces. Prior to the 2011 amendment to

§ 1447(d), Yamaha interpreted “order” to mean everything decided by the district court. 516 U.S. at 205.

So, the reasoning goes, the relative Congressional inaction on § 1447(d) in 2011 was actually Congress ratifying the Yamaha understanding of the word “order”

rather than the decades-long deluge of appellate court

interpretations of § 1447 generally. See, e.g., Powerex

Corp., 551 U.S. at 229; Christopher, 240 F.3d at 99.

But Yamaha was interpreting the word “order” in a

different provision, § 1292(b), and in a different procedural posture, an interlocutory appeal. No branch of

statutory interpretation says that we should assume

Congress is silently adopting court-determined definitions from other statutes when the law in question has

its own long history of application and we are not going to plant that seed now.

To sum this up: we read § 1447(d) as prohibiting

appellate review of district court orders remanding

cases for lack of subject matter jurisdiction, except for

the components of those orders, should they exist,

where the district court rejects a defendant’s attempt

to remove a case under federal-officer removal or civil

rights removal.

Federal-Officer Removal

With the question of our jurisdiction resolved, we

turn to the merits that are within our purview: did

the district court err when it concluded that it did not

have subject-matter jurisdiction over this case pursu-

28 U.S.C. § 1447 (1996). Congress added the phrase “section

1442 or” to the exception clause and left the provision otherwise

untouched.

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ant to 28 U.S.C. § 1442(a)(1), the federal-officer removal statute? We review de novo a “district court’s

decision to remand a case to state court,” Amoche v.

Guarantee Tr. Life Ins. Co., 556 F.3d 41, 48 (1st Cir.

2009), “and, thus, [the district court’s] underlying conclusion[s]” as to subject matter jurisdiction, Rhode Island Fishermen’s All., Inc. v. Rhode Island Dep’t of

Envtl. Mgmt., 585 F.3d 42, 47 (1st Cir. 2009).

Private actors sued in state court can remove the

case to federal court where the private actor is “acting

under [any federal officer], for any act under color of

such office.” 28 U.S.C. § 1442(a)(1); accord Camacho

v. Autoridad de Telefonos de Puerto Rico, 868 F.2d

482, 486-87 (1st Cir. 1989). “Acting under” connotes

“subjection, guidance, or control” and involves “an effort to assist, or to help carry out, the duties or tasks

of the federal superior.” Watson v. Phillip Morris

Companies, Inc., 551 U.S. 142, 152 (2007) (citations

omitted).

To succeed in their argument that federal-officer

removal is proper in this case, the oil companies must

show that they were acting under a federal officer’s

authority, that they will assert a colorable federal defense to the suit, and that there exists “a nexus” between the allegations in the complaint and conduct

undertaken at the behest of a federal officer. Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999) (internal quotation marks and citations omitted). If the

oil companies cannot demonstrate all three of these

elements, they cannot remove the case to federal court

under § 1442.

To support their argument, the oil companies

point us to three contracts with the federal government related to the production of oil and argue that

they were “acting under” a federal officer because they

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“help[ed] the Government to produce an item that it

needs.” See Watson, 551 U.S. at 153. Specifically,

these contracts involved (1) oil extraction from the Elk

Hills Naval Petroleum Reserve, (2) oil extraction under the Outer Continental Shelf Land Act (“OCSLA”),

and (3) CITGO fuel supply agreements. In the Elk

Hills Reserve Contract, Standard Oil, a predecessor of

Chevron, and the U.S. Navy entered into a contract

whereby Standard would limit its extraction to ensure

adequate reserves for the Navy, but Standard “could

dispose of the oil they extracted as they saw fit.”

County of San Mateo v. Chevron Corp., 960 F.3d 586,

602 (9th Cir. 2020). In the OCSLA leases, some of the

oil companies agreed to mineral leases with the U.S.

Government to extract oil and natural gas from the

Outer Continental Shelf, but there appears to be no

“close supervision” of this extraction or production of

oil “specially conformed to government use.” See Suncor (U.S.A.), Inc., 965 F.3d at 822, 825. And finally,

CITGO entered into a contract to provide oil to the Naval Exchange Service Command (“NEXCOM”) service

stations on naval bases. County of San Mateo, 960

F.3d at 600-01.

At first glance, these agreements may have the

flavor of federal officer involvement in the oil companies’ business, but that mirage only lasts until one remembers what Rhode Island is alleging in its lawsuit.

Rhode Island is alleging the oil companies produced

and sold oil and gas products in Rhode Island that

were damaging the environment and engaged in a

misinformation campaign about the harmful effects of

their products on the earth’s climate. The contracts

the oil companies invoke as the hook for federal-officer

jurisdiction mandate none of those activities. See

Camacho, 868 F.2d at 486 (jurisdiction clearly proper

20a

where defendants were under “express orders, control[,] and directions of federal officers”). The Elk

Hills Reserve contract and OCSLA lease address extraction, not distribution or marketing, and the

NEXCOM contract only implicates any of those activities on Naval bases, which are explicitly not a part of

Rhode Island’s case. There is simply no nexus between anything for which Rhode Island seeks damages and anything the oil companies allegedly did at

the behest of a federal officer. Accordingly, we conclude that the district court properly found that there

is no subject-matter jurisdiction under the federal-officer removal statute.

CONCLUSION

Solely having appellate jurisdiction to review the

district court’s remand order to the extent that it denies federal-officer removal, we affirm.

Costs

awarded to Rhode Island.

21a

APPENDIX B

United States Court of Appeals

For the First Circuit

November 5, 2020

______________________

No. 19-1818

STATE OF RHODE ISLAND,

Plaintiff, Appellee,

v.

SHELL OIL PRODUCTS CO., L.L.C.; CHEVRON

CORP.; CHEVRON USA, INC.; EXXONMOBIL

CORP.; BP, PLC; BP AMERICA, INC.,; BP

PRODUCTS NORTH AMERICA, INC.; ROYAL

DUTCH SHELL P.L.C.; MOTIVA ENTERPRISES,

L.L.C.; CITGO PETROLEUM CORP.;

CONOCOPHILLIPS; CONOCOPHILLIPS CO.;

PHILLIPS 66; MARATHON OIL CO.; MARATHON

PETROLEUM CORP.; MARATHON PETROLEUM

CO., L.P.; SPEEDWAY, L.L.C.; HESS CORP.;

LUKOIL PAN AMERICAS L.L.C.; AND DOES 1100,

Defendants, Appellants,

GETTY PETROLEUM MARKETING, INC.

Defendant.

______________________

22a

ERRATA SHEET

The opinion of this Court issued on October 29,

2020, is amended as follows:

On page 4, line 2, replace “there is ambiguity

§ 1447(d)” with “there is ambiguity in § 1447(d).”

23a

APPENDIX C

United States Court of Appeals

For the First Circuit

October 29, 2020

______________________

No. 19-1818

STATE OF RHODE ISLAND,

Plaintiff, Appellee,

v.

SHELL OIL PRODUCTS CO., L.L.C.; CHEVRON

CORP.; CHEVRON USA, INC.; EXXONMOBIL

CORP.; BP, PLC; BP AMERICA, INC.,; BP

PRODUCTS NORTH AMERICA, INC.; ROYAL

DUTCH SHELL P.L.C.; MOTIVA ENTERPRISES,

L.L.C.; CITGO PETROLEUM CORP.;

CONOCOPHILLIPS; CONOCOPHILLIPS CO.;

PHILLIPS 66; MARATHON OIL CO.; MARATHON

PETROLEUM CORP.; MARATHON PETROLEUM

CO., L.P.; SPEEDWAY, L.L.C.; HESS CORP.;

LUKOIL PAN AMERICAS L.L.C.; AND DOES 1100,

Defendants, Appellants,

GETTY PETROLEUM MARKETING, INC.

Defendant.

______________________

24a

JUDGMENT

This cause came on to be heard on appeal from the

United States District Court for the District of Rhode

Island and was argued by counsel.

Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The district

court’s remand order, to the extent that it denies federal-officer removal, is affirmed. Costs are awarded

to Rhode Island.

By the Court:

Maria R. Hamilton,

Clerk

cc: Neil F. X. Kelly, Corrie J. Yackulic, Matthew Kendall Edling, Victor Marc Sher, Jeffrey S. Brenner, David Charles Frederick, Brendan J. Crimmins, Grace

W. Knofczynski, Neal S. Manne, Gerald J. Petros,

Robin-Lee Main, Joshua S. Lipshutz, Theodore J.

Boutrous Jr., Matthew Thomas Oliverio, Kannon K.

Shanmugam, William Thomas Marks, Daniel J. Toal,

Theodore V. Wells Jr., Jaren Janghorbani, John A.

Tarantino, Patricia K. Rocha, Nicole J. Benjamin,

Nancy Gordon Milburn, Philip H. Curtis, Matthew T.

Heartney, John E. Bulman, Stephen John MacGillivray, Lisa S. Meyer, Nathan P. Eimer, Pamela R.

Hanebutt, Raphael Janove, Ryan Walsh, Michael J.

Colucci, Robert G. Flanders Jr., Timothy K. Baldwin,

Jameson R. Jones, Margaret Tough, Sean C.

Grimsley, Steven Mark Bauer, Robert P. Reznick, Stephen M. Prignano, James L. Stengel, Patrick C.

Lynch, Jeffrey B. Pine, Shawn Patrick Regan, Shannon S. Broome, Ann Marie Mortimer, Jonathan A.

Shapiro, Jason Christopher Preciphs, Jacob Scott

Janoe, Evan Young, Matthew B. Allen, Megan Berge,

Steven Paul Lehotsky, Peter D. Keisler, Tobias Loss-

25a

Eaton, Patrick Parenteau, Robert S. Peck, Seth

Schofield, William M. Tong, Amy Christine WilliamsDerry, Anthony Tarricone, Gerson H. Smoger, Peter

Huffman, William A. Rossbach, Scott Lawrence Nelson, Matthew Hardin

26a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

July 22, 2019

STATE OF RHODE

ISLAND,

Plaintiff,

v.

CHEVRON CORP.

et al.,

Defendants.

)

)

)

) C.A. No. 18-395 WES

)

)

)

)

)

)

OPINION AND ORDER

WILLIAM E. SMITH, Chief Judge.

The State of Rhode Island brings this suit against

energy companies it says are partly responsible for

our once and future climate crisis. It does so under

state law and, at least initially, in state court. Defendants removed the case here; the State asks that it go

back. Because there is no federal jurisdiction under

the various statutes and doctrines adverted to by Defendants, the Court GRANTS the State’s Motion to

Remand, ECF No. 40.

27a

I.

Background

1

Climate change is expensive, and the State wants

help paying for it. Compl. ¶¶ 8, 12. Specifically from

Defendants in this case, who together have extracted,

advertised, and sold a substantial percentage of the

fossil fuels burned globally since the 1960s. Id. ¶¶ 7,

12, 19, 97. This activity has released an immense

amount of greenhouse gas into the Earth’s atmosphere, id., changing its climate and leading to all

kinds of displacement, death (extinctions, even), and

destruction, id. ¶¶ 53, 89–90, 199–213, 216. What is

more, Defendants understood the consequences of

their activity decades ago, when transitioning from

fossil fuels to renewable sources of energy would have

saved a world of trouble. Id. ¶¶ 106–46; 184–96. But

instead of sounding the alarm, Defendants went out

of their way to becloud the emerging scientific consensus and further delay changes – however existentially

necessary – that would in any way interfere with their

multibillion-dollar profits. Id. ¶¶ 147–77. All while

quietly readying their capital for the coming fallout.

Id. ¶¶ 178–83.

Pleading eight state-law causes of action, the

State prays in law and equity to relieve the damage

Defendants have and will inflict upon all the non-federal property and natural resources in Rhode Island.

Id. ¶¶ 225–315. Casualties are expected to include

the State’s manmade infrastructure, its roads,

bridges, railroads, dams, homes, businesses, and electric grid; the location and integrity of the State’s expansive coastline, along with the wildlife who call it

1

As given in the State’s complaint. See Ten Taxpayer Citizens

Grp. v. Cape Wind Assocs., 373 F.3d 183, 186 (1st Cir. 2004).

28a

home; the mild summers and the winters that are already barely tolerable; the State fisc, as vast sums are

expended to fortify before and rebuild after the increasing and increasingly severe weather events; and

Rhode Islanders themselves, who will be injured or

worse by these events. Id. ¶¶ 8, 12, 15–18, 88–93,

197–218. The State says it will have more to bear

than most: Sea levels in New England are increasing

three to four times faster than the global average, and

many of the State’s municipalities lie below the floodplain. Id. ¶¶ 59–61, 76.

This is, needless to say, an important suit for both

sides. The question presently before the Court is

where in our federal system it will be decided.

II. Discussion

Invented to protect nonresidents from state-court

tribalism, 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3721 (rev. 4th

ed. 2018), the right to remove is found in various statutes, which courts have taken to construing narrowly

and against removal. Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108–09 (1941); Esposito v. Home

Depot U.S.A., Inc., 590 F.3d 72, 76 (1st Cir. 2009);

Rosselló-González v. Calderón-Serra, 398 F.3d 1, 11

(1st. Cir. 2004). Defendants cite several of these in

their notice as bases for federal-court jurisdiction. Notice of Removal, ECF No. 1. None, however, allows

Defendants to carry their burden of showing the case

belongs here. See Wilson v. Republic Iron & Steel Co.,

257 U.S. 92, 97 (1921) (“[D]efendant must take and

carry the burden of proof, he being the actor in the removal proceeding.”).

29a

A. General Removal

The first Defendants invoke is the general removal statute. 28 U.S.C. § 1441. Section 1441 allows

a defendant to remove “any civil action brought in a

State court of which the district courts of the United

States have original jurisdiction.” The species of original jurisdiction Defendants claim exists in this case

is federal-question jurisdiction. 28 U.S.C. § 1331.

They argue, in other words, that Plaintiff’s case arises

under federal law. Whether a case arises under federal law is governed by the well-pleaded complaint

rule. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009).

The rule states that removal based on federal-question jurisdiction is only proper where a federal question appears on the face of a well-pleaded complaint.

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

This rule operationalizes the maxim that a plaintiff is

the master of her complaint: She may assert certain

causes of action and omit others (even ones obviously

available), and thereby appeal to the jurisdiction of

her choice. Merrell Dow Pharm. Inc. v. Thompson,

478 U.S. 804, 809 n.6 (1986); Caterpillar Inc., 482 U.S.

at 392 (“[Plaintiff] may avoid federal jurisdiction by

exclusive reliance on state law.”).

The State’s complaint, on its face, contains no federal question, relying as it does on only state-law

causes of action. See Compl. ¶¶ 225–315. Defendants

nevertheless insist that the complaint is not wellpleaded, and that if it were, it would, in fact, evince a

federal question on which to hang federal jurisdiction.

Here they invoke the artful-pleading doctrine. “[A]n

independent corollary of the well-pleaded complaint

rule that a plaintiff may not defeat removal by omitting to plead necessary federal questions in a com-

30a

plaint,” Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 22 (1983), the artfulpleading doctrine is “designed to prevent a plaintiff

from unfairly placing a thumb on the jurisdictional

scales,” López-Muñoz v. Triple-S Salud, Inc., 754 F.3d

1, 5 (1st Cir. 2014). See Wright & Miller, supra,

§ 3722.1. According to Defendants, the State uses two

strains of artifice in an attempt to keep its case in

state court: one based on complete preemption, the

other on a substantial federal question. See Wright &

Miller, supra, § 3722.1 (discussing the three types of

case in which the artful pleading doctrine has applied).

1. Complete Preemption

Taking these in turn, Defendants first argue – and

two district courts have recently held – that a state’s

public-nuisance claim premised on the effects of climate change is “necessarily governed by federal common law.” California v. BP P.L.C., Nos. C 17-06011

WHA, C 17-06012 WHA, 2018 WL 1064293, at *2

(N.D. Cal. Feb. 27, 2018); accord City of New York v.

BP P.L.C., 325 F. Supp. 3d 466, 471–72 (S.D.N.Y.

2018). Defendants, in essence, want the Court to peek

beneath the purported state-law façade of the State’s

public-nuisance claim, see the claim for what it would

need to be to have a chance at viability, and convert it

to that (i.e., into a claim based on federal common law)

for purposes of the present jurisdictional analysis.

The problem for Defendants is that there is nothing in

the artful-pleading doctrine that sanctions this particular transformation.

The closest the doctrine gets to doing so is called

complete preemption. Compare Defs.’ Opp’n to Pl.’s

Mot. to Remand 9, ECF No. 87 (“[T]he Complaint

31a

pleads claims that arise, if at all, under federal common law . . . .”) and id. at 19 (“[Plaintiff’s claims] are

necessarily governed by federal common law.”), with

Franchise Tax Bd., 463 U.S. at 24 (“[I]f a federal cause

of action completely preempts a state cause of action

any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal

law.”); see also Mayor of Balt. v. BP P.L.C., Civil Action No. ELH-18-2357, 2019 WL 2436848, at *6–7 (D.

Md. June 20, 2019). Complete preemption is different

from ordinary preemption, which is a defense and

therefore does not provide a basis for removal, “even

if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense

is the only question truly at issue in the case.” Fran2

chise Tax Bd., 463 U.S. at 14, 24. It is a difference of

kind, moreover, not degree: complete preemption is

jurisdictional. López-Muñoz, 754 F.3d at 5; Lehmann

v. Brown, 230 F.3d 916, 919–920 (7th Cir. 2000);

Wright & Miller, supra, § 3722.2. When a state-law

cause of action is completely preempted, it “transmogrifies” into, Lawless v. Steward Health Care Sys.,

2

Defendants cite Boyle v. United Technologies Corp. early in

their brief, and highlighted it at oral argument, as recommending that this Court consider the State’s suit as one implicating

“uniquely federal interests” and consequently governed by federal common law. 487 U.S. 500, 504 (1988). Boyle was not a

removal case, but rather one brought in diversity, where the

Court held that federal common law regarding the performance

of federal procurement contracts preempts, in the ordinary

sense, state tort law. Id. at 502, 507–08, 512. Boyle therefore

does not help Defendants. And although of no legal moment, it

is nonetheless a matter of historical interest that out of all his

opinions, Boyle was the one Justice Scalia would have most liked

to have had back. Gil Seinfeld, The Good, the Bad, and the Ugly:

Reflections of a Counterclerk, 114 Mich. L. Rev. First Impressions 111, 115 & n. 9 (2016).

32a

LLC, 894 F.3d 9, 17–18 (1st Cir. 2018), or less dramatically, “is considered, from its inception, a federal

claim, and therefore arises under federal law,” Caterpillar Inc., 482 U.S. at 393. The claim is then removable pursuant to Section 1441. Beneficial Nat’l Bank

v. Anderson, 539 U.S. 1, 8 (2003).

Congress, not the federal courts, initiates this “extreme and unusual” mechanism. Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 47–49 (1st Cir. 2008);

see, e.g., Beneficial Nat’l Bank, 539 U.S. at 8

(“[W]here this Court has found complete pre-emption

. . . the federal statutes at issue provided the exclusive

cause of action for the claim asserted and also set forth

procedures and remedies governing that cause of action.” (emphasis added)); Caterpillar Inc., 482 U.S. at

393 (“On occasion, the Court has concluded that the

pre-emptive force of a statute is so extraordinary that

it converts an ordinary state common-law complaint

into one stating a federal claim for purposes of the

well-pleaded complaint rule.” (quotation marks omitted) (emphasis added)); Metro. Life Ins. Co. v. Taylor,

481 U.S. 58, 63–64 (1987) (“Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily

federal in character.” (emphasis added)); LópezMuñoz, 754 F.3d at 5 (“The linchpin of the complete

preemption analysis is whether Congress intended

that federal law provide the exclusive cause of action

for the claims asserted by the plaintiff.” (emphasis

added)); Fayard, 533 F.3d at 45 (“Complete preemption is a shorthand for the doctrine that in certain

matters Congress so strongly intended an exclusive

federal cause of action that what a plaintiff calls a

state law claim is to be recharacterized as a federal

claim.” (first emphasis added)); Marcus v. AT&T

Corp., 138 F.3d 46, 55 (2d Cir. 1998) (“[T]here is no

33a

complete preemption without a clear statement to

that effect from Congress.” (emphasis added)); Wright

& Miller, supra, § 3722.2 (“In concluding that a claim

is completely preempted, a federal court finds that

Congress desired not just to provide a federal defense

to a state-law claim but also to replace the state-law

claim with a federal law claim . . . .” (emphasis

added)). Without a federal statute wielding – or authorizing the federal courts to wield – “extraordinary

preemptive power,” there can be no complete preemption. Metro. Life Ins. Co., 481 U.S. at 65.

Defendants are right that transborder air and water disputes are one of the limited areas where federal

common law survived Erie R. Co. v. Tompkins, 304

U.S. 64, 78 (1938). See, e.g., Am. Elec. Power Co. v.

Connecticut, 564 U.S. 410, 420–21 (2011); Illinois v.

City of Milwaukee, 406 U.S. 91, 103 (1972) (“When we

deal with air and water in their ambient or interstate

aspects, there is a federal common law.”). At least

some of it, though, has been displaced by the Clean

Air Act (“CAA”). See Am. Elec. Power Co., 564 U.S.

at 424 (holding that “the Clean Air Act and the EPA

actions it authorizes displace any federal common law

right to seek abatement of carbon-dioxide emissions

from fossil-fuel fired power plants”); Native Village of

Kivalina v. ExxonMobil Corp., 696 F.3d 849, 856–58

(9th Cir. 2012). But whether displaced or not, environmental federal common law does not – absent congressional say-so – completely preempt the State’s

public-nuisance claim, and therefore provides no basis

for removal. Cf. Marcus, 138 F.3d at 54 (“After Metropolitan Life, it would be disingenuous to maintain

that, while the [Federal Communications Act of 1934]

does not preempt state law claims directly, it manages

to do so indirectly under the guise of federal common

law.”).

34a

With respect to the CAA, Defendants argue it too

completely preempts the State’s claims. The statutes

that have been found to completely preempt state-law

causes of action – the Employee Retirement Income

Security Act, for example, see Metro. Life Ins. Co., 481

U.S. at 67 – all do two things: They “provide[] the exclusive cause of action for the claim asserted and also

set forth procedures and remedies governing that

cause of action.” Beneficial Nat’l Bank, 539 U.S. at 8;

Fayard, 533 F.3d at 47 (“For complete preemption, the

critical question is whether federal law provides an

exclusive substitute federal cause of action that a federal court (or possibly a federal agency) can employ for

the kind of claim or wrong at issue.”). Defendants fail

to point to where in the CAA this happens. As far as

the Court can tell, the CAA authorizes nothing like

the State’s claims, much less to the exclusion of those

sounding in state law. In fact, the CAA itself says that

controlling air pollution “is the primary responsibility

of States and local governments.”

42 U.S.C.

§ 7401(a)(3); see Am. Elec. Power Co., 564 U.S. at 428

(“The Act envisions extensive cooperation between

federal and state authorities . . . .”); EPA v. EME

Homer City Generation, L.P., 572 U.S. 489, 537 (2014)

(Scalia, J., dissenting) (“Down to its very core, the

Clean Air Act sets forth a federalism-focused regulatory strategy.”).

Furthermore, in its section providing for citizen

suits, the CAA saves “any right which any person (or

class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief.” 42 U.S.C.

§ 7604(e). One circuit court has taken this language

as an indication that “Congress did not wish to abolish

state control” over remediating air pollution. Her

Majesty the Queen in Right v. City of Detroit, 874 F.2d

35a

332, 343 (6th Cir. 1989); see also Am. Fuel & Petrochemical Mfrs. v. O’Keefe, 903 F.3d 903 (9th Cir. 2018)

(“Air pollution prevention falls under the broad police

powers of the states, which include the power to protect the health of citizens in the state.” (quotation

marks omitted)). Elsewhere, the Act protects “the

right of any State or political subdivision thereof to

adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution

. . . .” 42 U.S.C. § 7416. A statute that goes so far out

of its way to preserve state prerogatives cannot be

said to be an expression of Congress’s “extraordinary

pre-emptive power” to convert state-law into federallaw claims. Metro. Life Ins. Co., 481 U.S. at 65. No

3

court has so held, and neither will this one.

2. Grable Jurisdiction

There is, as mentioned above, a second brand of

artful pleading of which Defendants accuse the State.

They aver the State has hid within their state-law

claims a “federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable &

Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545

U.S. 308, 314 (2005). If complete preemption is a

state-law cloche covering a federal-law dish, Grable

jurisdiction is a state-law recipe requiring a federallaw ingredient. Although the latter, like the former,

3

Defendants toss in an argument that the foreign-affairs doctrine completely preempts the State’s claims. The Court finds

this argument without a plausible legal basis. See Mayor of

Balt., 2019 WL 2436848, at *12 (“[T]he foreign affairs doctrine is

inapposite in the complete preemption context.” (quotation

marks omitted)).

36a

is rare. See Empire Healthchoice Assurance, Inc. v.

McVeigh, 547 U.S. 677, 699 (2006) (describing Grable

jurisdiction as lying in a “special and small category”

of cases). And it too does not exist here, because Defendants have not located “a right or immunity created by the Constitution or laws of the United States”

that is “an element and an essential one, of the

[State]’s cause[s] of action.” Gully v. First Nat. Bank

in Meridian, 299 U.S. 109, 112 (1936).

The State’s are thoroughly state-law claims.

Compl ¶¶ 225–315. The rights, duties, and rules of

decision implicated by the complaint are all supplied

by state law, without reference to anything federal.

See id. Defendants’ best cases are all distinguishable

on this point. See Gunn v. Minton, 568 U.S. 251, 259

(2013) (finding Grable jurisdiction lies where “[t]o prevail on his legal malpractice claim . . . [plaintiff] must

show that he would have prevailed in his federal patent infringement case . . . [which] will necessarily require application of patent law to the facts of [his]

case”); Grable, 545 U.S. at 314–15 (same where plaintiff “premised its superior title claim on a failure by

the IRS to give it adequate notice, as defined by federal law”); Bd. of Comm’rs v. Tenn. Gas Pipeline Co.,

850 F.3d 714, 722 (5th Cir. 2017) (same where “[plaintiff’s] complaint draws on federal law as the exclusive

basis for holding [d]efendants liable for some of their

actions”); One & Ken Valley Hous. Grp. v. Me. State

Hous. Auth., 716 F.3d 218, 225 (1st Cir. 2013) (same

where “the “dispute . . . turn[s] on the interpretation

of a contract provision approved by a federal agency

pursuant to a federal statutory scheme” (quotation

marks omitted)); R.I. Fishermen’s All., Inc. v. R.I.

Dep’t of Envtl. Mgmt., 585 F.3d 42, 50 (1st Cir. 2009)

(same where the federal question “is inherent in the

37a

state-law question itself because the state statute expressly references federal law”).

By mentioning foreign affairs, federal regulations,

and the navigable waters of the United States, Defendants seek to raise issues that they may press in

the course of this litigation, but that are not perforce

presented by the State’s claims. Accord Cty. of San

Mateo v. Chevron Corp., 294 F. Supp. 3d 934, 938

(N.D. Cal. 2018) (declining to exercise Grable jurisdiction where “defendants have not pointed to a specific

issue of federal law that must necessarily be resolved

to adjudicate the state law claims” and instead

“mostly gesture to federal law and federal concerns in

a generalized way”); cf. R.I. Fishermen’s All., 585 F.3d

at 49 (upholding exercise of Grable jurisdiction where

it was “not logically possible for the plaintiffs to prevail on [their] cause of action without affirmatively

answering the embedded question of . . . federal law”).

These are, if anything, premature defenses, which

even if ultimately decisive, cannot support removal.

See Merrell Dow, 478 U.S. at 808 (“A defense that

raises a federal question is inadequate to confer federal jurisdiction.”); Franchise Tax Bd., 463 U.S. at 13

(holding that state-law claim did not support federal

jurisdiction where “California law establish[ed] . . .

[the relevant] set of conditions, without reference to

federal law . . . [which would] become[] relevant only

by way of a defense to an obligation created entirely

by state law, and then only if appellant has made out

a valid claim for relief under state law”). Nor, for that

matter, can the novelty of this suite of issues as applied to claims like the State’s. Merrell Dow, 478 U.S.

at 817.

38a

B. Less-General Removal

The Court will be brief in dismissing Defendants’

arguments under bespoke jurisdictional law. The

Outer Continental Shelf Lands Act does not grant federal jurisdiction here, see 43 U.S.C. § 1349(b): Defendants’ operations on the Outer Continental Shelf

may have contributed to the State’s injuries; however,

Defendants have not shown that these injuries would

not have occurred but for those operations. See In re

DEEPWATER HORIZON, 745 F.3d 157, 163–64 (5th

Cir. 2014). There is no federal-enclave jurisdiction:

Although federal land used “for the Erection of Forts,

Magazines, Arsenals, dock-Yards, and other needful

Buildings,” U.S. Const. art. I, § 8, cl. 17, exists in

Rhode Island, and elsewhere may have been the site

of Defendants’ activities, the State’s claims did not

arise there, especially since its complaint avoids seeking relief for damages to any federal lands. See

Washington v. Monsanto Co., 274 F. Supp. 3d 1125,

1132 (W.D. Wash. 2017) (holding that exercise of federal-enclave jurisdiction improper where “Washington avowedly does not seek relief for [toxic-chemical]

contamination of federal territories”).

No causal connection between any actions Defendants took while “acting under” federal officers or agencies and the allegations supporting the State’s claims

means there are not grounds for federal-officer removal, 28 U.S.C. § 1442(a)(1): Defendants cannot

show the alleged promotion and sale of fossil fuels

abetted by a sophisticated misinformation campaign

were “justified by [their] federal duty.” Mesa v. California, 489 U.S. 121, 131–32 (1989). They are also unable to show removal is proper under the bankruptcyremoval statute, 28 U.S.C. § 1452(a), or because of ad-

39a

miralty jurisdiction, 28 U.S.C. § 1333(1). Not the former because this is an action “designed primarily to

protect the public safety and welfare.” McMullen v.

Sevigny (In re McMullen), 386 F.3d 320, 325 (1st Cir.

2004); see 28 U.S.C. § 1452(a) (excepting from bankruptcy removal any “civil action by a governmental

unit to enforce such governmental unit’s police or regulatory power”); In re Methyl Tertiary Butyl Ether

(“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 133 (2d

Cir. 2007) (rejecting bankruptcy removal in cases

whose “clear goal . . . [was] to remedy and prevent environmental damage with potentially serious consequences for public health, a significant area of state

policy”). And not the latter either because state-law

claims cannot be removed based solely on federal admiralty jurisdiction. See, e.g., Coronel v. AK Victory,

1 F. Supp. 3d 1175, 1187–88 (W.D. Wash. 2014); Gonzalez v. Red Hook Container Terminal LLC, 16-CV5104 (NGG) (RER), 2016 WL 7322335, at *3 (E.D.N.Y.

Dec. 15, 2016) (relying on “longstanding precedent

holding that admiralty issues, standing alone, are insufficient to make a case removable”).

III. Conclusion

Federal jurisdiction is finite. See, e.g., U.S. Const.

art. III, § 2, cl. 1. So while this Court thinks itself a

fine place to litigate, the law is clear that the State

can take its business elsewhere if it wants – by pleading around federal jurisdiction – unless Defendants

provide a valid reason to force removal under statutes

“strictly construed.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002); Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280 (1918) (“[A] suit commenced

in a state court must remain there until cause is

shown for its transfer under some act of Congress.”).

Because Defendants’ attempts in this regard fall

40a

short, the State’s Motion to Remand, ECF No. 40, is

GRANTED. The remand order shall be stayed for

sixty days, however, giving the parties time to brief

and the Court to decide whether a further stay pending appeal is warranted.

IT IS SO ORDERED.

/s/ William E. Smith

William E. Smith

Chief Judge

Date: July 22, 2019