Petition for Writ of Certiorari — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. Board of County Commissioners of Boulder County, et al.
Supreme Court briefJun 8, 2022
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No.
In the Supreme Court of the United States
SUNCOR ENERGY (U.S.A.) INC., ET AL., PETITIONERS
v.
BOARD OF COUNTY COMMISSIONERS
OF BOULDER COUNTY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
HUGH QUAN GOTTSCHALK
ERIC L. ROBERTSON
WHEELER TRIGG
O’DONNELL LLP
370 Seventeenth Street,
Suite 4500
Denver, CO 80202
COLIN G. HARRIS
FAEGRE BAKER
DANIELS LLP
1470 Walnut Street,
Suite 300
Boulder, CO 80302
KANNON K. SHANMUGAM
Counsel of Record
WILLIAM T. MARKS
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street, N.W.
Washington, DC 20006
(202) 223-7300
kshanmugam@paulweiss.com
THEODORE V. WELLS, JR.
DANIEL J. TOAL
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
QUESTIONS PRESENTED
1. Whether federal common law necessarily and exclusively governs claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas
emissions on the global climate.
2. Whether a federal district court has jurisdiction
under 28 U.S.C. 1331 over claims necessarily and exclusively governed by federal common law but labeled as
arising under state law.
(I)
PARTIES TO THE PROCEEDING
AND CORPORATE DISCLOSURE STATEMENT
Petitioners are Suncor Energy (U.S.A.) Inc.; Suncor
Energy Sales Inc.; Suncor Energy Inc.; and Exxon Mobil
Corporation.
Petitioner Suncor Energy Sales Inc. is wholly owned
by petitioner Suncor Energy (U.S.A.) Inc., which is wholly
owned by Suncor Energy (U.S.A.) Holdings Inc., which is
wholly owned by petitioner Suncor Energy Inc. Suncor
Energy Inc. has no parent corporation, and no publicly
held company owns 10% or more of its stock.
Petitioner Exxon Mobil Corporation has no parent
corporation, and no publicly held company owns 10% or
more of its stock.
Respondents are the Board of County Commissioners
of Boulder County; the Board of County Commissioners
of San Miguel County; and the City of Boulder.
(II)
RELATED PROCEEDINGS
United States District Court (D. Colo.):
Board of County Commissioners of Boulder County,
et al. v. Suncor Energy (U.S.A.) Inc., et al., Civ.
No. 18-1672 (Sept. 5, 2019)
United States Court of Appeals (10th Cir.):
Board of County Commissioners of Boulder County,
et al. v. Suncor Energy (U.S.A.) Inc., et al., No. 191330 (July 7, 2020) (vacated judgment)
Board of County Commissioners of Boulder County,
et al. v. Suncor Energy (U.S.A.) Inc., et al., No. 191330 (Feb. 8, 2022) (final judgment)
United States Supreme Court:
Suncor Energy (U.S.A.) Inc., et al. v. Board of County
Commissioners of Boulder County, et al., No.
19A428 (Oct. 22, 2019)
Suncor Energy (U.S.A.) Inc., et al. v. Board of County
Commissioners of Boulder County, et al., No. 20783 (June 25, 2021)
(III)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Statutory provision involved........................................................ 2
Statement ...................................................................................... 2
A. Background ................................................................... 5
B. Facts and procedural history ......................................... 7
Reasons for granting the petition ............................................. 11
A. The decision below implicates a conflict
among the courts of appeals on the first
question presented ........................................................ 11
B. The decision below deepens a conflict
among the courts of appeals on the second
question presented ........................................................ 17
C. The decision below is incorrect .................................... 24
D. The questions presented are important and
warrant the Court’s review in this case ....................... 29
Conclusion ................................................................................... 32
Appendix A .................................................................................. 1a
Appendix B ................................................................................ 60a
TABLE OF AUTHORITIES
Cases:
American Electric Power Co. v. Connecticut,
564 U.S. 410 (2011) ................................................. passim
Arbaugh v. Y&H Corp., 546 U.S. 501 (2006) ..................... 26
BP p.l.c. v. Mayor & City Council of Baltimore,
141 S. Ct. 1532 (2021) ............................................. passim
Caterpillar Inc. v. Williams,
482 U.S. 386 (1987) .............................................. 11, 20, 28
Caudill v. Blue Cross & Blue Shield
of North Carolina, 999 F.2d 74 (4th Cir. 1993) ............ 23
(V)
VI
Page
Cases—continued:
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) .............................................. 13, 26, 30
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021) ...................................... passim
City of Oakland v. BP plc:
Civ. No. 17-6011, 2018 WL 1064293
(S.D. Cal. Feb. 27, 2018) ................................................. 22
969 F.3d 895 (9th Cir. 2020),
cert. denied, 141 S. Ct. 2776 (2021).................... 21, 22, 31
County of San Mateo v. Chevron Corp.,
32 F.4th 733 (9th Cir. 2022) ........................................ 8, 22
Devils Lake Indian Sioux Tribe v. North Dakota
Public Service Commission,
896 F. Supp. 955 (D.N.D. 1995) ..................................... 18
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) ..... 6, 27
Federated Department Stores, Inc. v. Moitie,
452 U.S. 394 (1981) ............................................................ 6
Franchise Tax Board v. Construction Laborers
Vacation Trust, 463 U.S. 1 (1983) ....................... 6, 20, 28
Grable & Sons Metal Products, Inc.
v. Darue Engineering & Manufacturing,
545 U.S. 308 (2005) .............................................. 21, 22, 29
Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743 (2019) ........................................................ 5
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) .... passim
International Paper Co. v. Ouellette,
479 U.S. 481 (1987) .................................................... 24, 25
Mayor & City Council of Baltimore v. BP p.l.c.,
31 F.4th 178 (4th Cir. 2022) ................................... passim
National Farmers Union Insurance Cos.
v. Crow Tribe of Indians,
471 U.S. 845 (1985) ................................................ 6, 19, 27
Native Village of Kivalina v. ExxonMobil Corp.,
696 F.3d 849 (9th Cir. 2012) ........................................... 14
VII
Page
Cases—continued:
North Carolina Department of Administration
v. Alcoa Power Generating, Inc.,
853 F.3d 140 (4th Cir. 2017) ........................................... 23
Oneida Indian Nation v. County of Oneida,
414 U.S. 661 (1974) .......................................................... 26
Otter Tail Power Co., In re,
116 F.3d 1207 (8th Cir. 1997) ................................... 18, 19
Rhode Island v. Shell Oil Products Co.,
Civ. No. 19-1818, 2022 WL 1617206
(1st Cir. May 23, 2022) .......................................... 8, 16, 17
Sam L. Majors Jewelers v. ABX, Inc.,
117 F.3d 922 (5th Cir. 1997) ..................................... 19, 20
Tennessee v. Davis, 100 U.S. 257 (1879) ............................ 29
Texas Industries, Inc. v. Radcliff
Materials, Inc., 451 U.S. 630 (1981) ................ 6, 7, 24, 26
Torres v. Southern Peru Copper Corp.,
113 F.3d 540 (5th Cir. 1997) ........................................... 20
United States v. Lara, 541 U.S. 193 (2004)........................ 18
United States v. Standard Oil Co.,
332 U.S. 301 (1947) ...................................................... 6, 26
Vaden v. Discover Bank, 556 U.S. 49 (2009) ....................... 6
Constitution, statutes, and rule:
U.S. Const.:
Art. III, § 2......................................................................... 5
Art. III, § 2, cl. 1 ................................................................ 5
Clean Air Act, 42 U.S.C. §§ 7401-7671q .................... passim
28 U.S.C. 1254(1) .................................................................... 2
28 U.S.C. 1331 .............................................................. passim
28 U.S.C. 1441(a) ......................................................... passim
28 U.S.C. 1442 ......................................................................... 8
28 U.S.C. 1447(d) .............................................................. 2, 10
Fed. R. Civ. P. 12(b)(6) ........................................................ 15
VIII
Miscellaneous:
Richard H. Fallon, Jr., et al., Hart & Wechsler’s
Federal Courts and the Federal System
(7th ed. 2015).............................................................. 28, 29
Charles Alan Wright et al., Federal Practice and
Procedure (4th ed. 2018)................................................. 28
In the Supreme Court of the United States
No.
SUNCOR ENERGY (U.S.A.) INC., ET AL., PETITIONERS
v.
BOARD OF COUNTY COMMISSIONERS
OF BOULDER COUNTY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Suncor Energy (U.S.A.) Inc.; Suncor Energy Sales
Inc.; Suncor Energy Inc.; and Exxon Mobil Corporation
respectfully petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Tenth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a59a) is reported at 25 F.4th 1238. The opinion of the district court (App., infra, 60a-114a) is reported at 405 F.
Supp. 3d 947. A prior opinion of the court of appeals is
reported at 965 F.3d 792.
(1)
2
JURISDICTION
The judgment of the court of appeals was entered on
February 8, 2022. On April 29, 2022, Justice Gorsuch extended the time within which to file a petition for a writ of
certiorari to and including June 8, 2022. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Section 1331 of Title 28 of the United States Code provides:
The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States.
Section 1441(a) of Title 28 of the United States Code
provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States
for the district and division embracing the place where
such action is pending.
STATEMENT
This case presents two questions the Court left open
in BP p.l.c. v. Mayor & City Council of Baltimore, 141
S. Ct. 1532 (2021), involving claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate. In BP, the
Court held that a court of appeals has jurisdiction under
28 U.S.C. 1447(d) to review all grounds for removal in a
case where removal is premised in part on the federal-officer or civil-rights removal statutes. The Court declined
3
at the time to decide whether the district court had federal-question jurisdiction over such claims based on the
Court’s precedents applying federal rules of decision to
common-law claims seeking redress for injuries allegedly
caused by interstate pollution. In this case, after the
Court vacated a prior decision of the court of appeals and
remanded in light of BP, the court of appeals held that a
district court lacked jurisdiction over such claims.
The questions presented in this case are, first,
whether federal common law necessarily and exclusively
governs claims seeking redress for injuries allegedly
caused by the effect of interstate greenhouse-gas emissions on the global climate, and second, whether a federal
district court has jurisdiction under 28 U.S.C. 1331 over
claims necessarily and exclusively governed by federal
common law but labeled as arising under state law. The
circuits are in conflict on both questions.
Petitioners are energy companies that produce or sell
fossil fuels; respondents are local governments in Colorado. Like a number of other state and local governments
in similar cases across the country, respondents filed this
action against petitioners in local state court, asserting
claims purportedly arising under state law to recover for
harms that they allege they have sustained and will sustain from petitioners’ operations because of global climate
change.
As in other similar cases, petitioners removed this
case to federal district court, asserting federal subjectmatter jurisdiction on multiple grounds. Among other
grounds, petitioners contended that respondents’ claims
necessarily and exclusively arise under federal common
law, and that removal was warranted under the federalofficer removal statute because respondents’ complaint
encompassed petitioners’ exploration for and production
4
of fossil fuels at the direction of federal officers. The district court remanded the case to state court, and petitioners appealed.
The court of appeals affirmed. It initially held that it
lacked jurisdiction to review any grounds for removal
other than the federal-officer ground. It then rejected petitioners’ arguments for removal on that ground. After
this Court remanded for further consideration in light of
BP, the court of appeals once again affirmed. It proceeded to reject all of petitioners’ remaining grounds for
removal, including removal on the basis of federal common law. The court reasoned that the federal common law
of interstate emissions no longer exists because of statutory displacement by the Clean Air Act, allowing state law
to govern claims concerning interstate pollution. The
court further held that the well-pleaded complaint rule allows a plaintiff to avoid federal jurisdiction by affixing
state-law labels to claims necessarily and exclusively governed by federal common law.
The court of appeals’ decision was incorrect, and it implicates circuit conflicts on two important and recurring
questions of federal law that have arisen with particular
frequency in the numerous and materially identical climate-change cases pending in federal courts across the
Nation. This case is an ideal vehicle for resolving those
conflicts, particularly because it involves a smaller group
of defendants than the cases arising from other circuits
and is thus less likely than those cases to present recusal
issues.
Given the stakes in the climate-change litigation, the
questions presented here are some of the most consequential jurisdictional questions currently pending in the
federal courts. The time to resolve those questions is now.
The petition for a writ of certiorari should be granted.
5
A. Background
As the Court has long explained, “federal courts are
courts of limited jurisdiction.” Home Depot U.S.A., Inc.
v. Jackson, 139 S. Ct. 1743, 1746 (2019) (citation and alteration omitted). Article III, Section 2, of the Constitution
sets forth the categories of cases “over which federal judicial authority may extend.” Ibid. (citation omitted).
And the jurisdiction of lower federal courts is “further
limited to those subjects encompassed within a statutory
grant of jurisdiction.” Ibid. (citation omitted). A federal
district court thus “may not exercise jurisdiction absent a
statutory basis” for doing so. Ibid. (citation omitted).
In addition to creating jurisdiction over certain actions
originally filed in federal court, Congress also authorized
the removal to federal court of certain cases initially filed
in state court. Of particular relevance here, the general
removal statute, 28 U.S.C. 1441(a), authorizes the removal
of “any civil action brought in a [s]tate court of which the
district courts of the United States have original jurisdiction.” A defendant may thus remove a case to federal
court if the plaintiff “could have filed its operative complaint in federal court” in the first instance. Home Depot,
139 S. Ct. at 1748.
One of the most familiar statutes conferring original
jurisdiction on the district courts is the federal-question
statute, 28 U.S.C. 1331. It provides that “[t]he district
courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” Although the Constitution similarly authorizes federal jurisdiction over all cases “arising under
this Constitution, the laws of the United States, and treaties made,” Art. III, § 2, cl. 1, this Court has interpreted
the jurisdictional grant in Section 1331 to stop short of
constitutional limits. Instead, under the well-pleaded
6
complaint rule, an action arises under federal law for purposes of Section 1331 “only when the plaintiff’s statement
of his own cause of action shows that it is based upon federal law.” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009)
(citation and alteration omitted). An “actual or anticipated defense” under federal law does not give rise to jurisdiction under Section 1331. Ibid. At the same time, an
“independent corollary” to the well-pleaded complaint
rule is that “a plaintiff may not defeat removal by omitting
to plead necessary federal questions.” Franchise Tax
Board v. Construction Laborers Vacation Trust, 463 U.S.
1, 22 (1983). The well-pleaded complaint rule thus sometimes requires a federal court to “determine whether the
real nature of the claim is federal, regardless of plaintiff’s
characterization.” Federated Department Stores, Inc. v.
Moitie, 452 U.S. 394, 397 n.2 (1981) (citation omitted).
The grant of jurisdiction in Section 1331 covers not
only constitutional or statutory claims, but also those
“founded upon federal common law.” National Farmers
Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S.
845, 850 (1985). Despite this Court’s familiar pronouncement in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78
(1938), that “[t]here is no federal general common law,”
the “federal judicial power to deal with common law problems” remains “unimpaired for dealing independently,
wherever necessary or appropriate, with essentially federal matters, even though Congress has not acted affirmatively about the specific question,” United States v.
Standard Oil Co., 332 U.S. 301, 307 (1947). Of particular
relevance here, federal law necessarily supplies the rule
of decision for certain narrow categories of claims that implicate “uniquely federal interests,” including where “the
interstate or international nature of the controversy
makes it inappropriate for state law to control.” Texas
7
Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630,
640-641 (1981) (citation omitted).
One category of claims governed by federal common
law is claims seeking redress for injuries allegedly caused
by interstate pollution. Indeed, “[f]or over a century, a
mostly unbroken string of cases has applied federal law to
disputes involving” such claims. City of New York v.
Chevron Corp., 993 F.3d 81, 91 (2d Cir. 2021) (collecting
cases); see, e.g., American Electric Power Co. v. Connecticut, 564 U.S. 410, 420-423 (2011); Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972) (Milwaukee I). As the
Court has explained, federal common law must govern
such controversies because they “touch[] basic interests
of federalism” and implicate the “overriding federal interest in the need for a uniform rule of decision.” Milwaukee
I, 406 U.S. at 105 n.6. The “basic scheme of the Constitution” requires the application of a federal rule of decision,
because “borrowing the law of a particular State would be
inappropriate” to resolve such interstate disputes. American Electric Power, 564 U.S. at 421, 422.
B. Facts And Procedural History
1. In 2017, a number of state and local governments
began filing lawsuits in state courts against various energy companies, most of them nonresidents of the forum
States. The plaintiffs alleged that the companies’ worldwide production, sale, and promotion of fossil fuels led to
the emission of greenhouse gases and thereby contributed
to global climate change. The plaintiffs have primarily asserted that the production, sale, and promotion of fossil
fuels violate various state-law duties, including commonlaw nuisance; they have sought compensatory and punitive damages as well as equitable relief.
8
The defendants removed those lawsuits to federal
court. They asserted multiple bases for federal jurisdiction, including that the plaintiffs’ climate-change claims
necessarily and exclusively arise under federal common
law and that the allegations in the complaints pertain to
actions the defendants took at the direction of federal officers, see 28 U.S.C. 1442. As of the filing of this petition,
23 related cases are pending in federal courts nationwide
in which the parties are actively litigating the question of
removal, either in district court or on appeal.*
2. Respondents in this action are the Board of County
Commissioners of Boulder County, the Board of County
Commissioners of San Miguel County, and the City of
Boulder. Petitioners are Suncor Energy (U.S.A.) Inc.;
Suncor Energy Sales Inc.; Suncor Energy Inc.; and
Exxon Mobil Corporation.
See Mayor & City Council of Baltimore v. BP p.l.c., 31 F.4th 178
(4th Cir. 2022); County of San Mateo v. Chevron Corp., 32 F.4th 733
(9th Cir. 2022) (appeal consolidating six actions); Rhode Island v.
Shell Oil Products Co., Civ. No. 19-1818, 2022 WL 1617206 (1st Cir.
May 23, 2022); City & County of Honolulu v. Sunoco LP, No. 2115313 (9th Cir.) (argued Feb. 17, 2022) (consolidating two actions);
Minnesota v. American Petroleum Institute, No. 21-1752 (8th Cir.)
(argued Mar. 15, 2022); City of Hoboken v. Exxon Mobil Corp., No.
21-2728 (3d Cir.) (oral argument scheduled for June 21, 2022); Delaware v. BP America Inc., No. 22-1096 (3d Cir.) (oral argument scheduled for June 21, 2022); Connecticut v. Exxon Mobil Corp., No. 211446 (2d Cir.) (oral argument to be scheduled); Anne Arundel County
v. BP p.l.c., Civ. No. 21-1423 (D. Md.); City of Annapolis v. BP p.l.c.,
Civ. No. 21-772 (D. Md.); City of New York v. Exxon Mobil Corp., Civ.
No. 21-4807 (S.D.N.Y.); City of Oakland v. BP p.l.c., Civ. No. 17-6011
(N.D. Cal.) (consolidating two actions); County of Charleston v. Brabham Oil Co., Civ. No. 20-3579 (D.S.C.); District of Columbia v. Exxon
Mobil Corp., Civ. No. 20-1932 (D.D.C.); Pacific Coast Federation of
Fishermen’s Associations, Inc. v. Chevron Corp., Civ. No. 18-7477
(N.D. Cal.); Vermont v. Exxon Mobil Corp., Civ. No. 21-260 (D. Vt.).
*
9
In 2018, respondents filed a complaint in Colorado
state court against petitioners, alleging that petitioners
had caused or will cause harms by contributing to global
climate change. Respondents seek damages for the effect
of global climate change on public health, property, infrastructure, and agriculture, under theories of public nuisance, private nuisance, trespass, unjust enrichment, civil
conspiracy, and consumer protection. App., infra, 5a-6a,
61a-62a.
Petitioners removed this action to the United States
District Court for the District of Colorado. In their notice
of removal, petitioners raised many of the same bases for
federal jurisdiction as have the defendants in other climate-change lawsuits, including that respondents’ climate-change claims necessarily and exclusively arise under federal common law and that removal was permissible
under the federal-officer removal statute. App., infra, 6a7a.
The district court remanded the case to state court
based on a lack of subject-matter jurisdiction. App., infra,
60a-114a. With respect to federal common law as a basis
for removal, the district court reasoned that, “[w]hile [petitioners] argue that the [c]omplaint raises inherently federal questions about energy, the environment, and national security, removal is not appropriate under the wellpleaded complaint rule because these federal issues are
not raised or at issue in [respondents’] claims.” Id. at 76a.
The district court also rejected petitioners’ other grounds
for removal, including removal under the federal-officer
removal statute. Id. at 81a-114a.
3. In its initial opinion in this case, the court of appeals affirmed, addressing only the district court’s conclusion that federal jurisdiction did not lie under the federalofficer removal statute. 20-783 Pet. App. 1a-58a. The
court of appeals did not review the portions of the district
10
court’s remand order rejecting petitioners’ other grounds
for removal, reasoning that 28 U.S.C. 1447(d) deprived it
of appellate jurisdiction over those grounds. Id. at 42a.
Petitioners filed a petition for a writ of certiorari with this
Court, presenting the question whether the court of appeals’ jurisdiction was so limited. See 20-783 Pet. i.
While the petition was pending, this Court held in BP
that Section 1447(d) permits appellate review of all
grounds for removal in a case removed in part on federalofficer grounds. See 141 S. Ct. at 1538. The Court then
vacated the court of appeals’ judgment in this case and remanded for further consideration in light of BP. See 141
S. Ct. 2667 (2021).
4. On remand, the court of appeals once again affirmed the district court’s remand order. App., infra, 1a59a. As is relevant here, the court of appeals held that
respondents’ claims do not arise under federal common
law because, under this Court’s decision in American
Electric Power, supra, the Clean Air Act has displaced
any such law. Id. at 24a-31a. The court reasoned that
such displacement meant that “the federal common law of
nuisance that formerly governed transboundary pollution
suits no longer exists.” Id. at 29a.
From that premise, the court of appeals concluded
that the only remaining question was “whether the federal
act that displaced the federal common law preempted the
state-law claims”—and “ordinary preemption can never
serve as a basis for removal.” App., infra, 30a (emphasis
omitted). In the absence of preemption, the court indicated, respondents “may pursue whatever remedies
[they] may have under state law.” Ibid. (citation omitted).
The court of appeals further held that the well-pleaded
complaint rule prevents the removal of claims necessarily
and exclusively governed by federal common law but artfully pleaded under state law to avoid federal jurisdiction.
11
App., infra, 31a-33a. In the court’s view, jurisdiction
turned entirely on whether the “face of the complaint”
demonstrates that the plaintiff expressly “advanced a federal claim.” Id. at 31a. The only exception to the rule, the
court reasoned, was the doctrine of complete preemption,
under which the preemptive force of a statute is sufficiently strong so as to convert a claim arising under state
law into a federal claim for purposes of the well-pleaded
complaint rule. Ibid.; see Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987). The court concluded that federal
common law cannot have the same effect. App., infra, 32a.
REASONS FOR GRANTING THE PETITION
The court of appeals’ decision implicates a circuit conflict on the question whether federal common law necessarily and exclusively governs claims seeking redress for
injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate. The decision
also deepens an existing conflict on the question whether
federal district courts have jurisdiction under 28 U.S.C.
1331 over claims necessarily and exclusively governed by
federal common law but labeled as arising under state
law. The court of appeals reached the incorrect conclusion
on both questions. Those questions are important and frequently recurring in the ongoing climate-change litigation, and this case presents an ideal vehicle for deciding
them. The petition for a writ of certiorari should be
granted.
A. The Decision Below Implicates A Conflict Among The
Courts Of Appeals On The First Question Presented
In the decision below, the court of appeals held that
district courts lack jurisdiction under 28 U.S.C. 1331 over
claims seeking redress for injuries allegedly caused by the
effect of interstate greenhouse-gas emissions on the
global climate, on the ground that such claims are no
12
longer governed by federal common law because of displacement by the Clean Air Act. That reasoning conflicts
with the Second Circuit’s reasoning in City of New York
v. Chevron Corp., 993 F.3d 81 (2021), which held that federal common law does govern those claims and that state
law cannot, even after statutory displacement. And since
the decision below, the First and Fourth Circuits—in similar climate-change cases on remand from this Court—
also declined to permit removal based on federal common
law, expressly rejecting the Second Circuit’s reasoning.
Review of this important question—currently pending in
nearly two dozen climate-change lawsuits—is plainly warranted.
1. In City of New York, the municipal government of
New York City filed suit in federal court based on diversity jurisdiction, alleging that the defendant energy companies (including Exxon Mobil Corporation, a petitioner
here) were liable for injuries allegedly caused by the contribution of interstate greenhouse-gas emissions to global
climate change. As do respondents here, the plaintiff asserted claims for public nuisance, private nuisance, and
trespass under state law. See 993 F.3d at 88.
The question before the Second Circuit was “whether
municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by
global greenhouse gas emissions.” 993 F.3d at 85. The
Second Circuit unanimously held that “the answer is ‘no’ ”
and that claims seeking redress for global climate change
presented “the quintessential example of when federal
common law is most needed.” Id. at 92.
The Second Circuit began its analysis by noting that,
“[f]or over a century, a mostly unbroken string of cases
has applied federal law to disputes involving interstate air
or water pollution.” 993 F.3d at 91. That is because, the
Second Circuit explained, “such quarrels often implicate
13
two federal interests that are incompatible with the application of state law”: the “overriding need for a uniform
rule of decision” on matters influencing national energy
and environmental policy, and “basic interests of federalism.” Ibid. (internal quotation marks and alterations
omitted) (quoting Illinois v. City of Milwaukee, 406 U.S.
91, 105 n.6 (1972)).
And in the Second Circuit’s view, claims seeking to
hold defendants liable for injuries arising from “the cumulative impact of conduct occurring simultaneously across
just about every jurisdiction on the planet” are far too
“sprawling” for state law to govern. 993 F.3d at 91. The
court explained that application of state law to the city’s
claims would “risk upsetting the careful balance that has
been struck between the prevention of global warming, a
project that necessarily requires national standards and
global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” Id. at 93.
The Second Circuit rejected the plaintiffs’ argument
that displacement by the Clean Air Act of any remedy under federal common law allows state law to “snap back
into action.” 993 F.3d at 98. That “position is difficult to
square with the fact that federal common law governed
this issue in the first place,” the court reasoned, because
“where ‘federal common law exists, it is because state law
cannot be used.’ ” Ibid. (quoting City of Milwaukee v. Illinois, 451 U.S. 304, 313 n.7 (1981)). In the court’s view,
“state law does not suddenly become presumptively competent to address issues that demand a unified federal
standard simply because Congress saw fit to displace a
federal court-made standard with a legislative one.” Ibid.
Such an outcome, the Second Circuit concluded, is “too
strange to seriously contemplate.” Id. at 98-99.
14
2. The decision below is irreconcilable with City of
New York. The court of appeals held that jurisdiction under Section 1331 was not present because, after statutory
displacement by the Clean Air Act, the otherwise-applicable federal common law “no longer exists.” App., infra,
29a (citation and emphasis omitted). In reaching that conclusion, the court of appeals relied on the reasoning of the
concurring opinion in Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 865 (9th Cir. 2012) (Pro,
J.)—a similar case involving claims of injury from climate
change—to the effect that, “[o]nce federal common law is
displaced, state nuisance law becomes an available option
to the extent it is not preempted by federal law.” App.,
infra, 30a. Based on that reasoning, the court of appeals
held that the only analytical question remaining after statutory displacement is “whether the federal act that displaced the federal common law preempted the state-law
claims.” Ibid.
The Second Circuit reached the opposite conclusion.
It squarely held that the plaintiff’s state-law climatechange claims “must be brought under federal common
law.” 993 F.3d at 95. And it rejected the argument that
federal common law no longer exists after statutory displacement, allowing state law to govern in a context in
which it never before existed. In the Second Circuit’s
view, the applicability of federal common law determines
whether any “residual state-law claims remain,” such that
“state law does not suddenly become presumptively competent to address issues that demand a unified federal
standard simply because Congress saw fit to displace a
federal court-made standard with a legislative one.” Id.
at 95 n.7, 99.
In this case, the court of appeals attempted to distinguish City of New York on the ground that the plaintiff
15
there filed its complaint in federal court based on diversity jurisdiction. See App., infra, 32a-33a. The effect of
federal common law thus arose on a motion to dismiss for
failure to state a claim. See City of New York, 993 F.3d at
88-89; Fed. R. Civ. P. 12(b)(6). The Second Circuit
acknowledged that, unlike previous courts to address the
question whether similar climate-change claims are removable on the basis of federal common law, it was not
subject to the well-pleaded complaint rule. City of New
York, 993 F.3d at 93-94.
But that difference does not eliminate the conflict on
the first question presented. The court of appeals’ conclusion that the federal common law of interstate emissions
no longer exists has nothing to do with the well-pleaded
complaint rule; instead, it concerns the effect of statutory
displacement on the continued effect of federal common
law. The court of appeals’ conclusion on that question cannot be squared with the Second Circuit’s.
3. Like the decision below, the Fourth Circuit, on remand from this Court, declined to hold that federal common law governs claims seeking redress for injuries allegedly caused by the effect of greenhouse-gas emissions on
the global climate. See Mayor & City Council of Baltimore v. BP p.l.c., 31 F.4th 178 (2022). It did so largely on
the ground that defendants could not rely solely on this
Court’s longstanding precedent applying federal rules of
decision to common-law claims relating to interstate pollution. Instead, the Fourth Circuit reasoned that the defendants were required to satisfy this Court’s test for determining whether to create federal common law or extend it to a new area, which requires the presence of a
“significant conflict between the state-law claims before it
and the federal interests at stake.” Id. at 200-201.
In so holding, the Fourth Circuit expressly declined to
“follow City of New York.” 31 F.4th at 203. The Fourth
16
Circuit reasoned that the Second Circuit’s decision “fails
to explain a significant conflict between the state-law
claims before it and the federal interests at stake.” Ibid.
According to the Fourth Circuit, the Second Circuit had
thereby “evad[ed] the careful analysis that the Supreme
Court requires” to determine whether federal common
law applies. Id. at 202. The Fourth Circuit further departed from the Second Circuit by holding that federal
common law did not govern similar climate-change claims
because the Clean Air Act displaced any federal-commonlaw remedy. See id. at 204.
As did the court of appeals below, the Fourth Circuit
attempted to distinguish City of New York on the ground
that the Second Circuit did not need to apply the wellpleaded complaint rule because “New York City initially
filed suit in federal court.” 31 F.4th at 203. But again,
that distinction does not elide the conflict: the Fourth Circuit saw “no reason to fashion any federal common law for
[d]efendants,” ibid., whereas the Second Circuit held that
similar climate-change claims “must be brought under
federal common law,” City of New York, 993 F.3d at 92,
95.
4. In Rhode Island v. Shell Oil Products Co., No. 191818, 2022 WL 1617206 (May 23, 2022), the First Circuit
reached the same conclusion as the Fourth Circuit in another climate-change case previously before this Court.
Expressly agreeing with the Fourth Circuit’s reasoning,
the First Circuit held that the district court lacked jurisdiction on the basis of federal common law, faulting the
defendants for relying on this Court’s precedents rather
than describing “any significant conflict” between the
“federal interests” at issue and the plaintiff’s “state-law
claims.” Id. at *4.
17
The First Circuit expressly declined to rely on the Second Circuit’s reasoning to find a conflict between the application of state law to climate-change claims, on the one
hand, and the “rights of [S]tates” and “the federal government’s relations with foreign countries,” on the other.
2022 WL 1617206, at *5. It reasoned that City of New
York was “distinguishable” because the complaint there
was filed “in federal court in the first instance.” Ibid. (emphasis omitted) (citing Baltimore, 31 F.4d at 203). Like
the Fourth Circuit in Baltimore, the First Circuit did not
explain how that fact related to the distinct question of
whether federal common law governs the claims at issue.
The First Circuit next held that, even if such a conflict
were present, removal based on federal common law
would still have been improper. See 2022 WL 1617206, at
*5. The First Circuit concluded that the displacement of
federal common law by the Clean Air Act meant that no
“federal common law controls [the plaintiff’s] claims,”
even assuming that the claims implicated the type of
“transboundary pollution” at issue in this Court’s precedents. Ibid. The First Circuit’s decision thus similarly
conflicts with the Second Circuit’s decision in City of New
York on the question whether federal common law necessarily and exclusively governs claims seeking redress for
injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate.
B. The Decision Below Deepens A Conflict Among The
Courts Of Appeals On The Second Question Presented
The court of appeals further held that the well-pleaded
complaint rule precludes federal jurisdiction under 28
U.S.C. 1331 over claims necessarily and exclusively governed by federal common law but labeled as arising under
18
state law. App., infra, 31a-33a. That holding deepens another existing circuit conflict among the courts of appeals
and also warrants the Court’s review.
1. Two courts of appeals have squarely held that a
district court has jurisdiction under Section 1331 over
claims artfully pleaded under state law but necessarily
governed by federal common law.
a. In In re Otter Tail Power Co., 116 F.3d 1207
(1997), the Eighth Circuit affirmed the removal of putative state-law claims because they were governed by federal common law. At issue in Otter Tail was the effect of
a judgment in an earlier federal action concerning the
scope of an Indian tribe’s “inherent sovereignty,” which is
governed by federal common law. See Otter Tail, 116
F.3d at 1209-1210; Devils Lake Indian Sioux Tribe v.
North Dakota Public Service Commission, 896 F. Supp.
955, 961 (D.N.D. 1995); see generally United States v.
Lara, 541 U.S. 193, 207 (2004). After the first federal action ended, a party to the judgment filed a subsequent action against the tribe and other defendants in state court,
seeking to enjoin the defendants from allegedly violating
the earlier federal judgment. One of the defendants removed the case to federal court.
The Eighth Circuit held that the district court had jurisdiction over the case under 28 U.S.C. 1331 and that removal was thus proper under 28 U.S.C. 1441(a). The court
began its analysis by acknowledging that, under the wellpleaded complaint rule, removal based on federal-question jurisdiction is permitted only when the complaint establishes that “federal law creates the cause of action or
that the plaintiff’s right to relief necessarily depends on
resolution of a substantial question of federal law.” Otter
Tail, 116 F.3d at 1213 (citation omitted). It noted, however, that “[a] plaintiff ’s characterization of a claim as
19
based solely on state law is not dispositive of whether federal question jurisdiction exists.” Ibid. (citation omitted).
Turning to the complaint before it, the Eighth Circuit
concluded that removal based on federal-question jurisdiction was proper because the district court’s order in the
first action concerned “the extent of an Indian Tribe’s authority to regulate nonmembers on a reservation,” which
is “manifestly a federal question.” 116 F.3d at 1213-1214.
In reaching that conclusion, the court cited the Supreme
Court’s decision in National Farmers Union, supra,
which held that a claim concerning an Indian tribe’s sovereign powers was governed by federal common law and
thus gave rise to federal-question jurisdiction. See ibid.
b. In Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d
922 (1997), the Fifth Circuit similarly upheld the removal
of putative state-law claims on the ground that they were
governed by federal common law. There, the plaintiff
filed claims in state court for breach of contract, negligence, and violations of a state statute, seeking damages
from an airline that allegedly lost some of the plaintiff’s
goods. See id. at 924. The defendant removed the case to
federal court.
In assessing whether removal was proper, the Fifth
Circuit recognized that jurisdiction under Section 1331
exists only “when a federal question is presented on the
face of a plaintiff’s properly pleaded complaint.” 117 F.3d
at 924. The court further noted that, under Section
1441(a), “only actions that originally could have been filed
in federal court can be removed to federal court.” Ibid.
The court then reasoned that there are “three theories
that might support federal question jurisdiction” in the
case: where “the complaint raises an express or implied
cause of action that exists under a federal statute”; where
the relevant “area of law is completely preempted by the
20
federal regulatory regime”; and where “the cause of action arises under federal common law principles.” Ibid.
The court concluded that removal was proper under the
third theory, because an action against a common air carrier for lost or damaged goods “arises under federal common law.” Id. at 929; see Torres v. Southern Peru Copper
Corp., 113 F.3d 540, 542-543 (5th Cir. 1997) (permitting
removal where a state-law claim raised “substantial questions of federal common law”).
2. In the decision below, the court of appeals held
that, under the well-pleaded complaint rule, federal common law cannot provide a basis for jurisdiction under Section 1331, and removal is thus improper under Section
1441(a), where the plaintiff omits any reference to federal
law in the complaint. App., infra, 31a-33a. The court of
appeals acknowledged the principle established by this
Court that “a plaintiff may not defeat removal by omitting
to plead necessary federal questions.” Franchise Tax
Board v. Construction Laborers Vacation Trust, 463 U.S.
1, 22 (1983); see App., infra, 31a. But the court of appeals
concluded that the so-called “artful pleading” doctrine is
coextensive with the doctrine of complete preemption,
which allows the removal of a state-law claim where “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 wellpleaded complaint rule.” Caterpillar Inc. v. Williams, 482
U.S. 386, 393 (1987); see App., infra, 31a.
The court of appeals next concluded that federal common law cannot have complete preemptive effect. See
App., infra, 32a. It reasoned that complete preemption
applies only where Congress intended to permit removal
of state-law claims, and federal common law can evidence
no such intent because it is “created by the judiciary.”
Ibid. The Court thus concluded that Congress “has not
21
clearly manifested an intent that the federal common law
for transboundary pollution will completely preempt state
law.” Ibid. (internal quotation marks and citation omitted).
Under the court of appeals’ logic, a district court is limited to assessing the labels the plaintiff applies to the
claims in the complaint, even where federal common law
necessarily and exclusively governs the issues pleaded on
the face of the complaint. That conclusion conflicts with
the decisions of the Fifth and Eighth Circuits permitting
the removal of putative state-law claims necessarily and
exclusively governed by federal common law.
3. In addition to the court below, two other courts of
appeals have held—in the particular context of claims
seeking redress for injuries allegedly caused by climate
change—that Section 1331 does not permit the exercise of
jurisdiction over claims necessarily governed by federal
common law but labeled as arising under state law.
a. In City of Oakland v. BP plc, 969 F.3d 895 (2020),
cert. denied, 141 S. Ct. 2776 (2021), the Ninth Circuit
faced arguments similar to those raised here regarding
the removal of climate-change claims on the basis of federal common law. In particular, the defendants argued
that claims pleaded under state law but necessarily and
exclusively governed by federal common law were subject
to federal-question jurisdiction because they were, in fact,
federal claims. See 20-1089 Pet. at 20-22. Defendants
thus contended that removal of such claims was permissible without resort to the doctrine of Grable & Sons Metal
Products, Inc. v. Darue Engineering & Manufacturing,
545 U.S. 308 (2005), which permits the removal of statelaw claims that necessarily raise substantial and disputed
federal issues. See id. at 314; 20-1089 Pet. at 20. The district court agreed with the defendants’ approach and held
that removal based on federal common law was proper.
22
See Civ. No. 17-6011, 2018 WL 1064293, at *2-*5 (N.D.
Cal. Feb. 27, 2018).
The Ninth Circuit disagreed. 969 F.3d at 903-907. It
started from the premise that, under the well-pleaded
complaint rule, “a civil action arises under federal law for
purposes of [Section] 1331 when a federal question appears on the face of the complaint.” Id. at 903. The court
saw only two “exceptions” to that rule: removal under
Grable and complete preemption. See id. at 904-906.
Having framed the issue that way, the Ninth Circuit rejected the district court’s jurisdictional analysis without
comment. See id. at 906.
The Ninth Circuit instead addressed removal on the
basis of federal common law as part of the Grable inquiry.
See 969 F.3d at 906. And it held that, “[e]ven assuming
that the [plaintiffs’] allegations could give rise to a cognizable claim for public nuisance under federal common
law, the district court did not have jurisdiction under [Section] 1331 because the state-law claim for public nuisance
fails to raise a substantial federal question.” Ibid. (citation omitted). The Ninth Circuit reached that conclusion
on the basis that the plaintiffs’ claim neither “require[d]
an interpretation of a federal statute nor challenge[d] a
federal statute’s constitutionality.” Ibid. (citations omitted). The Ninth Circuit thus declined to permit the removal of a claim pleaded under state law but necessarily
governed by federal common law. See ibid. (opining that
it was “not clear that the claim require[d] an interpretation or application of federal law at all,” because it was unclear whether “there is a federal common law of public
nuisance relating to interstate pollution” and because the
Clean Air Act might displace any such claim); see also
County of San Mateo v. Chevron Corp., 32 F.4th 733, 747748 (9th Cir. 2022) (following City of Oakland in similar
23
climate-change cases), pet. for rehearing pending, No. 1815499 (filed May 17, 2022).
b. In Baltimore, supra, the Fourth Circuit likewise
rejected the premise that federal common law provides a
basis for removal of claims artfully pleaded under state
law. Before “nevertheless consider[ing]” whether federal
common law governed the climate-change claims at issue,
the Fourth Circuit explained that the complaint “never alleges an existing federal common law claim” and “only
brings claims originating under [state] law.” 31 F.4th at
200. The court concluded that “subject-matter jurisdiction via federal common law” does not exist where the
complaint did not “clearly seek recovery under federal
law.” Ibid. (citation omitted). In reaching that conclusion,
the Fourth Circuit distinguished two of its earlier decisions, which it recognized permitted the removal of claims
necessarily and exclusively governed by federal common
law but artfully pleaded under state law. See id. at 207208 (discussing Caudill v. Blue Cross & Blue Shield of
North Carolina, 999 F.2d 74 (1993), and North Carolina
Department of Administration v. Alcoa Power Generating, Inc., 853 F.3d 140 (2017)).
*
*
*
*
*
In sum, the decision below implicates two conflicts of
federal law among the courts of appeals. As matters currently stand, one court of appeals has held that federal
common law necessarily and exclusively governs claims
seeking redress for injuries allegedly caused by the effect
of interstate greenhouse-gas emissions on the global climate; three other courts of appeals, including the court
below, have rejected that conclusion. Two courts of appeals have held that 28 U.S.C. 1331 provides a basis for
jurisdiction over claims necessarily and exclusively governed by federal common law but labeled as arising under
24
state law; three other courts of appeals, including the
court below, have reached the opposite conclusion. Those
conflicts are developed and entrenched, and the Court’s
intervention is necessary.
C. The Decision Below Is Incorrect
The court of appeals rejected petitioners’ arguments
on both questions presented and held that this case was
not removable to federal court. That decision was erroneous.
1. The court of appeals erred by holding that federal
common law does not necessarily and exclusively govern
respondents’ claims, which allege that the combustion of
petitioners’ fossil-fuel products led to greenhouse-gas
emissions, which contributed to global climate change,
which caused harms within their jurisdictions.
a. Federal common law supplies the rule of decision
for certain narrow categories of claims that implicate
“uniquely federal interests,” including where “the interstate or international nature of the controversy makes it
inappropriate for state law to control.” Texas Industries,
Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-641
(1981) (citation omitted). For over a century, this Court
has applied uniform federal common-law rules of decision
to claims seeking redress for interstate pollution. See
City of New York, 993 F.3d at 91 (collecting cases). For
example, in Illinois v. City of Milwaukee, 406 U.S. 91
(1972) (Milwaukee I), the Court reasoned that “[f]ederal
common law,” and not the “varying common law of the individual States,” is “necessary to be recognized as a basis
for dealing in uniform standard with the environmental
rights of a State against improper impairment by sources
outside its domain.” Id. at 108 n.9 (citation omitted). In
International Paper Co. v. Ouellette, 479 U.S. 481 (1987),
the Court unambiguously reaffirmed that “the regulation
25
of interstate water pollution is a matter of federal, not
state, law.” Id. at 488 (citation omitted); see id. at 492.
And in American Electric Power Co. v. Connecticut, 564
U.S. 410 (2011)—a case involving similar claims alleging
injury from the contribution of greenhouse-gas emissions
to global climate change—the Court reiterated that federal common law “undoubtedly” governs claims involving
“air and water in their ambient or interstate aspects.” Id.
at 421 (citation omitted).
As those precedents explain, the Constitution dictates
that federal law must govern controversies over interstate pollution, because those controversies “touch[] basic
interests of federalism” and implicate the “overriding federal interest in the need for a uniform rule of decision.”
Milwaukee I, 406 U.S. at 103 n.6. The Constitution prohibits States from “regulat[ing] the conduct of out-ofstate sources” of pollution. Ouellette, 479 U.S. at 495. Because “borrowing the law of a particular State would be
inappropriate” to resolve such interstate disputes, “the
basic scheme of the Constitution” requires the application
of a federal rule of decision. American Electric Power,
564 U.S. at 421, 422.
Applying the foregoing precedents here leads to a
straightforward result: respondents’ climate-change
claims necessarily arise under federal, not state, law.
Through those claims, respondents are seeking damages
based on the interstate—and indeed international—emissions of greenhouse gases over many decades, allegedly
resulting in part from the use of fossil-fuel products produced or sold by defendants and consumed throughout
the world. See App., infra, 61a. Those claims fall squarely
within the long line of cases holding that federal common
law governs claims seeking redress for interstate air and
water pollution.
26
b. In the decision below, the court of appeals concluded that, because the Clean Air Act has displaced the
remedy for federal-common-law claims involving interstate emissions, federal common law “no longer exists” in
this context, and state law can fill the void. App., infra,
29a (emphasis omitted). That reasoning impermissibly
“conflate[s]” “jurisdiction” and “merits-related determinations.” Arbaugh v. Y&H Corp., 546 U.S. 501, 511 (2006)
(citation omitted). Whether a party can obtain a remedy
under federal common law is a distinct question from
whether federal common law applies in the first instance.
Indeed, a claim governed by federal common law arises
under federal law for “jurisdictional purposes” even if that
claim “may fail at a later stage for a variety of reasons.”
Oneida Indian Nation v. County of Oneida, 414 U.S. 661,
675 (1974); see also United States v. Standard Oil Co., 332
U.S. 301, 307, 313, 316 (1947) (deciding first whether federal common law governed and only then whether a remedy under federal common law exists).
More fundamentally, the court of appeals misunderstood the relationship between state law and federal common law. In cases that involve “interstate and international disputes implicating the conflicting rights of States
or our relations with foreign nations,” only federal law can
apply, because “our federal system does not permit the
controversy to be resolved under state law” at all. Texas
Industries, 451 U.S. at 641. In other words, where federal
common law applies, “state law cannot be used.” City of
Milwaukee v. Illinois, 451 U.S. 304, 313 n.7 (1981) (Milwaukee II).
Accordingly, there is no state law for the Clean Air Act
(or any other federal statute) to resurrect: state law did
not govern interstate emissions before Congress acted,
and the application of state law to interstate-pollution
27
claims remains inconsistent with our constitutional structure after the statutory displacement, even if federal law
provides no remedy for the particular claim alleged. As
the United States explained in its amicus brief in BP,
“[a]lthough the enactment of the Clean Air Act displace[d]
federal common law” in the area of interstate emissions,
“that alone does not mean the door was opened for tort
claims based on common law of an affected State targeting conduct in another State.” U.S. Br. at 27 (No. 19-1189)
(internal quotation marks and citation omitted).
Indeed, the court of appeals’ approach would turn the
rule of Erie on its head. For any remedy under federal
common law to be displaced, Congress must have spoken
“directly to the question at issue.” American Electric
Power, 564 U.S. at 424. It is “too strange to seriously contemplate” that Congress’s decision to address an issue by
statute so directly as to displace federal common-law remedies would result in state common-law remedies suddenly becoming viable. City of New York, 993 F.3d at 9899.
2. The court of appeals also erred by concluding that
the grant of federal-question jurisdiction in 28 U.S.C. 1331
does not extend to claims necessarily and exclusively governed by federal common law but labeled as arising under
state law, with the result that removal under 28 U.S.C.
1441(a) was improper.
Under Section 1331, federal district courts “have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” That includes claims “founded upon federal common law as well
as those of a statutory origin.” National Farmers Union,
471 U.S. at 850 (citation omitted). As a result, if the “dispositive issues stated in the complaint require the application” of a uniform rule of federal law, the action “arises
28
under” federal law for purposes of Section 1331, Milwaukee I, 406 U.S. at 100, and the case is removable to federal
court, see 28 U.S.C. 1441(a).
The court of appeals declined to permit removal on the
basis of federal common law because respondents did not
expressly plead any claims under federal common law,
and it viewed petitioners’ invocation of federal common
law as raising an ordinary preemption defense. App., infra, 30a, 32a. But federal common law is not merely a defense to respondents’ claims alleging injury from interstate and international air pollution. For the reasons explained above, see pp. 24-27, respondents’ claims do not
just implicate federal-law issues; they inherently are federal claims, arising under federal law. No state law exists
in this area for respondents to invoke.
The well-pleaded complaint rule thus does not bar removal here. That rule provides that federal-question jurisdiction exists only when “a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at 392. An “independent
corollary” of the rule, however, is that “a plaintiff may not
defeat removal by omitting to plead necessary federal
questions.” Construction Laborers Vacation Trust, 463
U.S. at 22. Put another way, a plaintiff cannot “block removal” by artfully pleading its claims in an effort to “disguise [an] inherently federal cause of action.” 14C
Charles Alan Wright et al., Federal Practice and Procedure § 3722.1, at 131-132 (4th ed. 2018).
The court of appeals held that the artful-pleading principle applies only in complete-preemption cases involving
federal statutes. App., infra, 20a-21a, 32a. But this Court
has never so held. And there is “[n]o plausible reason”
why “the appropriateness of and need for a federal forum
should turn on whether the claim arose under a federal
statute or under federal common law.” Richard H. Fallon,
29
Jr., et al., Hart & Wechsler’s Federal Courts and the Federal System 818 (7th ed. 2015). Whether one views a putative state-law claim governed by federal common law as
a disguised federal claim or as a state-law claim the elements of which each raise substantial federal questions,
see Grable, 545 U.S. at 314, such a claim is properly understood to arise under federal law.
Accordingly, district courts have federal-question jurisdiction under 28 U.S.C. 1331, and thus removal jurisdiction under 28 U.S.C. 1441(a), over claims necessarily
and exclusively governed by federal common law but labeled as arising under state law. The court of appeals
erred by reaching a contrary conclusion, and its decision
to remand this case to state court warrants further review.
D. The Questions Presented Are Important And Warrant
The Court’s Review In This Case
The questions presented in this case are recurring and
have substantial legal and practical importance. This
case, which cleanly presents the questions, is an optimal
vehicle for the Court’s review.
1. As a preliminary matter, the questions presented
squarely implicate the longstanding principle that federal
law alone necessarily governs disputes related to interstate pollution. As the Second Circuit recognized, a
“mostly unbroken string of cases” spanning a century has
applied federal law to such disputes. City of New York,
993 F.3d at 91. More broadly, whether a putative statelaw claim is removable because it arises necessarily and
exclusively under federal common law is a significant jurisdictional question that arises in several contexts of
unique federal importance, from interstate pollution to
foreign affairs to tribal relations. The Court has long recognized the “great importance” of maintaining clear and
30
uniform rules on issues relating to removal more generally. Tennessee v. Davis, 100 U.S. 257, 260 (1879).
The decision below creates particularly problematic
results in light of those precedents. Under the court of
appeals’ understanding of the operation of federal common law and federal-question jurisdiction, a claim for interstate pollution could never be removed to federal court.
The State of Illinois could thus sue the City of Milwaukee
in Illinois state court under Illinois law for interstate water pollution, and Milwaukee would be denied a federal forum in which to defend itself. Cf. Milwaukee II, 451 U.S.
304. Similarly, the State of Connecticut could bring suit
in its own state courts under its own laws against an outof-state defendant to abate interstate air pollution, and
the defendant could not remove to federal court. Cf. American Electric Power, 564 U.S. at 418-419. Such outcomes cannot be squared with this Court’s decisions holding that claims seeking redress for interstate air and water pollution arise under federal law alone and thus are
properly heard in federal court.
The decision below also opens the door to countless potentially conflicting state-court lawsuits applying state
nuisance law to claims seeking redress for the global phenomenon of climate change. Such a result would “upset[]
the careful balance that has been struck between the prevention of global warming,” on the one hand, and “energy
production, economic growth, foreign policy, and national
security,” on the other. City of New York, 993 F.3d at 93.
Resolution of the questions presented is especially important in the context of the nationwide climate-change
litigation brought by state and local governments against
energy companies. The jurisdictional questions presented here affect numerous cases currently pending in
federal courts. See p. 8 n.*, supra. The forum in which
those cases will proceed must be determined first, before
31
resolution of the merits of the claims, which defendants
are prepared to defend against at the appropriate time
and in the appropriate court.
While the Court declined to consider similar questions
in City of Oakland, supra, in the immediate aftermath of
BP, three additional courts of appeals—all of which rejected removal before BP based on an improperly narrow
view of their jurisdiction—have weighed in again since BP
and declined to follow the Second Circuit’s reasoning in
City of New York. Given the number of climate-change
cases pending and the significant stakes for the parties,
the questions presented here will continue to bedevil the
lower courts until this Court intervenes. And it will affirmatively disserve the interests of judicial economy if
cases are allowed to proceed in what turns out to be the
wrong forum.
2. This case is an optimal vehicle for resolution of the
questions presented. Those questions were pressed below, fully briefed by the parties, and passed on by the
court of appeals. And notably, this case involves a smaller
group of defendants than the cases arising from other circuits and is thus less likely to present recusal issues (such
as were present in BP, which was decided by an eightJustice Court).
For that reason, the Court may never have a better
opportunity to consider and resolve the questions presented here. Those questions are undeniably important;
they have divided the courts of appeals; and the decision
of the court of appeals was erroneous. The Court should
grant certiorari and provide clarity as to whether the climate-change cases should proceed in federal or state
court.
32
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
HUGH QUAN GOTTSCHALK
ERIC L. ROBERTSON
WHEELER TRIGG
O’DONNELL LLP
370 Seventeenth Street,
Suite 4500
Denver, CO 80202
Counsel for Petitioners
Suncor Energy (U.S.A.) Inc.,
Suncor Energy Sales Inc.,
and Suncor Energy Inc.
KANNON K. SHANMUGAM
WILLIAM T. MARKS
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street, N.W.
Washington, DC 20006
(202) 223-7300
kshanmugam@paulweiss.com
THEODORE V. WELLS, JR.
DANIEL J. TOAL
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
COLIN G. HARRIS
FAEGRE BAKER
DANIELS LLP
1470 Walnut Street,
Suite 300
Boulder, CO 80302
Counsel for Petitioner
Exxon Mobil Corporation
JUNE 2022
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