Petition for Writ of Certiorari — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. Board of County Commissioners of Boulder County, et al.

APPENDIX

TABLE OF CONTENTS

Appendix A:

Appendix B:

Court of appeals opinion,

February 8, 2022............................................ 1a

District court opinion,

September 5, 2019 ....................................... 60a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 19-1330

BOARD OF COUNTY COMMISSIONERS OF BOULDER

COUNTY; BOARD OF COUNTY COMMISSIONERS OF SAN

MIGUEL COUNTY; CITY OF BOULDER,

PLAINTIFFS-APPELLEES,

v.

SUNCOR ENERGY (U.S.A.) INC.; SUNCOR ENERGY SALES

INC.; SUNCOR ENERGY INC.; EXXON MOBIL

CORPORATION, DEFENDANTS-APPELLANTS.

Filed: February 8, 2022

Before: HOLMES, LUCERO, and McHUGH, Circuit

Judges.

McHUGH, Circuit Judge.

This matter is before us on remand from the United

States Supreme Court. Suncor Energy (U.S.A.) Inc. v.

Bd. of Cnty. Comm’rs of Boulder Cnty., 141 S. Ct. 2667

(2021) (Mem.). The case originally came to us as an appeal

of the district court’s order remanding the action to state

court. Pursuant to 28 U.S.C. § 1447(d), orders remanding

removed cases to state court are not appealable “except

(1a)

2a

that an order remanding a case to the State court from

which it was removed pursuant to section 1442 [federal officer removal] or 1443 [civil rights cases] of this title shall

be reviewable by appeal or otherwise.” In our prior decision, we held § 1447(d) limited our appellate jurisdiction

to review of only the federal officer basis for removal,

which was one of six grounds of federal subject-matter jurisdiction advanced in support of removal on appeal. Bd.

of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy

(U.S.A.) Inc., 965 F.3d 792, 819 (10th Cir. 2020), vacated

and remanded by 141 S. Ct. 2667 (2021) (Mem.).

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

the Supreme Court rejected that position, holding that

when a removal action is appealed under the limited

grounds listed in 28 U.S.C. § 1447(d), the appellate court

has subject-matter jurisdiction over all grounds for removal addressed in the district court’s order. 141 S. Ct.

1532, 1543 (2021). The Court then granted certiorari in

this case, vacated our prior decision, and remanded for

further consideration in light of its decision in BP v.

Mayor & City Council of Baltimore. Suncor Energy

(U.S.A.) Inc. v. Bd. of Cnty. Comm’rs of Boulder Cnty.,

141 S. Ct. 2667 (2021) (Mem.).

We undertake that further consideration now. For the

following reasons, we hold that none of the six grounds

asserted support federal removal jurisdiction. Accordingly, we affirm the district court’s order remanding the

action to state court.

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I. BACKGROUND

A. Factual History

1. The Energy Companies and Climate Change1

Stated broadly, this is a lawsuit about damages related

to climate change. The Board of County Commissioners

of Boulder County, the Board of County Commissioners

of San Miguel County, and the City of Boulder (collectively, the “Municipalities”) say they have experienced

and will continue to experience harm because of climate

change caused by fossil-fuel consumption and rising levels

of carbon dioxide in the atmosphere. They also allege they

have spent and will continue spending millions of dollars

to mitigate this harm.

The Municipalities contend that Suncor Energy

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

Inc., and ExxonMobil Corporation (“Exxon”) (collectively, the “Energy Companies”) have contributed significantly to the changing climate in Colorado by producing,

marketing, and selling fossil fuels. And the Municipalities

allege the Energy Companies have continued their fossilfuel activities even though they knew these activities

would change the climate dramatically. The Municipalities further allege the Energy Companies concealed

and/or misrepresented the dangers associated with the

burning of fossil fuels despite having been aware of those

dangers for decades.

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When courts review a notice of removal for jurisdiction, they may

consider the complaint as well as documents attached to the notice of

removal. See McPhail v. Deere & Co., 529 F.3d 947, 955–56 (10th Cir.

2008). Thus, we take these facts from the Amended Complaint and

the other documents attached to the Notice of Appeal.

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2. Exxon’s Outer Continental Shelf Leases

On appeal, the Energy Companies contend there is

federal jurisdiction over the Municipalities’ claims, in

part, because Exxon and/or its affiliated companies have

leased and continue to lease portions of the outer continental shelf of the United States (“OCS”) pursuant to the

Outer Continental Shelf Lands Act (“OCSLA”) to extract

fossil fuels. Accordingly, we include relevant background

information about the OCS leases.

The OCS “is a vast underwater expanse” that begins

several miles off the coastline and extends seaward for

roughly two hundred miles. Ctr. for Sustainable Econ. v.

Jewell, 779 F.3d 588, 592 (D.C. Cir. 2015). The “subsoil

and seabed” of the OCS “appertain to the United States

and are subject to its jurisdiction and control.” 43 U.S.C.

§ 1331(a). “Billions of barrels of oil and trillions of cubic

feet of natural gas lie beneath the OCS.” Jewell, 779 F.3d

at 592.

Pursuant to the OCSLA, the Department of Interior

(“DOI”) administers a federal leasing program to develop

and make use of the OCS’s oil and gas resources. See 43

U.S.C. §§ 1334–1356b. The Interior Secretary “is authorized to grant to the highest responsible qualified bidder or

bidders by competitive bidding . . . any oil and gas lease”

on these submerged lands. 43 U.S.C. § 1337(a)(1). For

decades, Exxon has participated in this competitive leasing program, and it continues to conduct operations under

OCS leases.

By the terms of its OCS leases, Exxon is required to

conduct drilling “in accordance with” federally approved

exploration, development, and production plans and conditions. App. at 64 § 9. These plans must “conform to

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sound conservation practices to preserve, protect, and develop minerals resources and maximize the ultimate recovery of hydrocarbons from the leased area.” Id. § 10.

Exxon is obligated to “exercise diligence in the development of the leased area and in the production of wells located thereon;” “prevent unnecessary damage to, loss of,

or waste of leased resources;” and “comply with all applicable laws, regulations and orders related to diligence,

sound conservation practices and prevention of waste.”

Id. Earlier OCS leases further provided, “[a]fter due notice in writing, the Lessee shall drill such wells and produce at such rates as the Lessor may require in order that

the leased area or any part thereof may be properly and

timely developed and produced in accordance with sound

operating principles.” Id. at 50 § 10. That provision is not

included in the current leases.

The leases provide DOI officials reserve the right to

obtain “prompt access” to facilities and records of private

OCS lessees for the purpose of federal safety, health, or

environmental inspections. Id. at 64 § 12. The government

reserves a right of first refusal to purchase all materials

“[i]n time of war or when the President of the United

States shall so prescribe.” Id. at 68 § 15(d). The government also requires that 20% of all crude or natural gas

produced pursuant to drilling leases be offered “to small

or independent refiners.” Id. § 15(c).

B. Procedural History

1. The Claims

In this action, the Municipalities sue for damages allegedly caused by climate change. They assert a variety of

claims under Colorado law, both common law and statutory, against the Energy Companies. Specifically, the Mu-

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nicipalities allege claims of public nuisance; private nuisance; trespass; unjust enrichment; violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. § 6-1105(1), et seq.; and civil conspiracy. They do not allege any

federal claims.

The Municipalities seek compensatory damages, remediation and/or abatement, treble damages, and costs

and attorney fees. The Municipalities also ask that the

Energy Companies be held jointly liable under Colorado

Revised Statutes § 13-21-111.5(4) for “consciously

conspir[ing] and deliberately pursu[ing] a common plan to

commit tortious acts.” Id. at 194–95. The Municipalities

expressly do not seek to interfere with or impose liability

based on the Energy Companies’ speech; to “enjoin any

oil and gas operations or sales in the State of Colorado, or

elsewhere, or to enforce emissions controls of any kind;”

to recover “damages or abatement relief for injuries to or

occurring on federal lands;” or to impose liability based on

any act potentially deemed lobbying or petitioning. Id. at

193. That is, the Municipalities do not ask the court “to

stop or regulate” fossil-fuel production or emissions “in

Colorado or elsewhere.” Id. at 74. They instead request

that the Energy Companies “help remediate the harm

caused by their intentional, reckless and negligent conduct, specifically by paying their share of the costs [the

Municipalities] have incurred and will incur because of

[the Energy Companies’] contribution to alteration of the

climate.” Id.

2. The Notice of Removal and the District Court’s Remand Order

After the Municipalities filed their Amended Complaint in Colorado state court, the Energy Companies

filed a Notice of Removal in the United States District

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Court for the District of Colorado. In that Notice, they asserted seven grounds for removal. Five of those grounds

were under the general removal statute, 28 U.S.C.

§ 1441(a), allowing for removal of “any civil action brought

in a State court of which the district courts of the United

States have original jurisdiction.” Specifically, the Energy

Companies contended that 28 U.S.C. § 1331 conferred

original jurisdiction over the claims because (1) the Municipalities’ claims arose only under federal common law;

(2) the Clean Air Act (“CAA”) completely preempted the

state-law claims; (3) the claims implicated disputed and

substantial “federal issues” under Grable & Sons Metal

Products, Inc. v. Darue Engineering & Manufacturing,

545 U.S. 308 (2005); (4) the claims arose from incidents

that occurred in federal enclaves within the Municipalities’ borders; and (5) original federal jurisdiction exists

under the OCSLA. In addition, the Energy Companies asserted original federal jurisdiction was available under

(6) the federal officer removal statute, 28 U.S.C. § 1442(a),

and (7) the bankruptcy removal statute, 28 U.S.C.

§ 1452(a).

The Municipalities timely filed a Motion to Remand

pursuant to 28 U.S.C. § 1447(c). In a detailed opinion, the

district court rejected all asserted grounds for removal

and remanded the action to state court.

3. The Appeal

The Energy Companies appealed the district court’s

remand order on six grounds, including the federal officer

removal statute, 28 U.S.C. § 1442, pursuant to 28 U.S.C.

§ 1447(d). They argued that appealing the remand order

under the federal officer removal statute gave this court

jurisdiction to consider all the grounds for removal asserted, not just federal officer removal. On plenary re-

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view, we disagreed and held that our jurisdiction was limited to the federal officer removal question. Suncor Energy, 965 F.3d at 819. Concluding that the requirements

for federal officer removal had not been satisfied, we affirmed the district court’s remand order without considering the other grounds for removal. Id. at 827.

The Supreme Court has now clarified that in circumstances such as the present, where federal officer removal

is one of multiple grounds for removal, the entire order of

remand is reviewable on appeal. BP v. Mayor & City

Council of Balt., 141 S. Ct. at 1543. Thus, our jurisdiction

extends beyond the federal officer removal statute to all

grounds advanced for federal jurisdiction over the action.

The Court vacated our opinion and remanded to us for reconsideration. See Suncor Energy, 141 S. Ct. at 2667.

On remand from the Supreme Court, we requested

supplemental briefing from the parties. The Municipalities seek affirmance of the district court’s decision remanding the action to Colorado state court, and the Energy Companies again claim removal is proper.

II. DISCUSSION

On appeal, the Energy Companies challenge the district court’s remand order, relying on six grounds for federal jurisdiction under § 1442, the federal officer removal

statute, and § 1441, the general removal statute. Under

§ 1442, the Energy Companies contend Exxon acted under a federal officer, which establishes (1) federal officer

removal. And under § 1441, they contend there is original

federal jurisdiction over the Municipalities’ claims because (2) the claims arise under federal common law; (3)

the CAA completely preempts the Municipalities’ statelaw claims; (4) the claims necessarily raise substantial federal issues; (5) there is federal enclave jurisdiction; and

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(6) the OCSLA establishes original federal jurisdiction

over these claims.

We begin our analysis with a discussion of the relevant

standard of review. Then, we discuss the merits of each

proposed basis of federal subject-matter jurisdiction. Ultimately, we conclude the district court correctly rejected

each ground, and we affirm the district court’s remand order.

A. Standard of Review

“Only state-court actions that originally could have

been filed in federal court may be removed to federal

court by the defendant.” Caterpillar Inc. v. Williams, 482

U.S. 386, 392 (1987). “‘Federal courts are courts of limited

jurisdiction.’” Gunn v. Minton, 568 U.S. 251, 256 (2013)

(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994)). So “there is a presumption against

our jurisdiction.” Merida Delgado v. Gonzales, 428 F.3d

916, 919 (10th Cir. 2005) (quotation marks omitted).

The presumption against jurisdiction is manifested in

“the deeply felt and traditional reluctance of th[e Supreme] Court to expand the jurisdiction of the federal

courts through a broad reading of jurisdictional statutes.”

Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 379

(1959), superseded on other grounds by statute, The Jones

Act, 45 U.S.C. § 59, as recognized in Miles v. Apex Marine Corp., 498 U.S. 19 (1990). Thus, “statutes conferring

jurisdiction on federal courts are to be strictly construed,

and doubts resolved against federal jurisdiction.” United

States ex rel. King v. Hillcrest Health Ctr., Inc., 264 F.3d

1271, 1280 (10th Cir. 2001) (quotation marks omitted). The

Energy Companies, as the parties removing to federal

court, bear the burden of establishing jurisdiction by a

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preponderance of the evidence. Dutcher v. Matheson, 733

F.3d 980, 985 (10th Cir. 2013).

“We review the district court’s ruling on the propriety

of removal de novo.” Frederick v. Hartford Underwriters

Ins. Co., 683 F.3d 1242, 1245 (10th Cir. 2012). We also apply de novo review to questions of federal subject-matter

jurisdiction. Navajo Nation v. Dalley, 896 F.3d 1196, 1203

(10th Cir. 2018).

B. Grounds Asserted for Federal Jurisdiction

In our prior decision, we rejected the Energy Companies’ reliance on § 1442, the federal officer removal statute. Suncor Energy, 965 F.3d at 819–27. Because the Supreme Court vacated our prior decision, we again consider

that issue here. Then, we address each of the other

grounds advanced for federal subject-matter jurisdiction,

including a discussion of the district court’s ruling on each

issue.

1. 28 U.S.C. § 1442(a): Federal Officer Removal Jurisdiction

The Energy Companies argue there is federal jurisdiction and this action is removable because Exxon acted

under a federal officer pursuant to its OCS leases.2 The

district court held that any control exercised by federal

officers over Exxon’s operations through the issuance of

government leases to develop fossil fuels on the OCS was

Exxon is the only party that allegedly acted under a federal officer. Section 1442, however, allows for independent removal of an entire case by “only one of several named defendants.” Akin v. Ashland

Chem. Co., 156 F.3d 1030, 1034 (10th Cir. 1998). Thus, if Exxon can

show it acted under a federal officer such that this case is removable

under § 1442, the entire case is removable.

2

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insufficient to trigger federal jurisdiction under § 1442.

We agree.

The federal officer removal statute permits removal of

a state court civil action “that is against or directed to . . .

any officer (or any person acting under that officer) of the

United States or of any agency thereof . . . for or relating

to any act under color of such office.” 28 U.S.C.

§ 1442(a)(1). The statute’s “‘basic purpose’ is to protect

against the interference with federal operations that

would ensue if a state were able to arrest federal officers

and agents acting within the scope of their authority and

bring them to trial in a state court for an alleged state-law

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

(Baltimore II), 952 F.3d 452, 461 (4th Cir. 2020) (quoting

Watson v. Phillip Morris Cos., Inc., 551 U.S. 142, 150

(2007)), vacated and remanded on other grounds by 141

S. Ct. 1532 (2021).3 Unlike other removal statutes, it

should “be liberally construed to give full effect to th[at]

purpose[].” Colorado v. Symes, 286 U.S. 510, 517 (1932).

Section 1442(a)(1) removal can apply to private persons “who lawfully assist” federal officers “in the performance of [their] official dut[ies],” Davis v. South Carolina, 107 U.S. 597, 600 (1883), meaning the private person

must be “‘authorized to act with or for [federal officers or

agents] in affirmatively executing duties under . . . federal

law,’” Watson, 551 U.S. at 151 (alterations in original)

This is the appellate court’s decision reviewing Mayor & City

Council of Balt. v. BP, P.L.C. (Baltimore I), 388 F. Supp. 3d 538, 565

(D. Md. 2019), aff’d in part by 952 F.3d 452 (4th Cir. 2020), which we

cite later in this opinion. Because other cases we cite also name BP

P.L.C. as a party, we distinguish these two cases by referring to the

district court’s opinion as Baltimore I and the appellate court’s opinion as Baltimore II.

3

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(quoting City of Greenwood v. Peacock, 384 U.S. 808, 824

(1966)). And § 1442(a)(1) also allows removal by private

corporations. Isaacson v. Dow Chem. Co., 517 F.3d 129,

135–36 (2d Cir. 2008). In either case, private defendants

may remove under § 1442(a)(1) if they can show (1) they

acted under the direction of a federal officer, (2) the claim

has a connection or association with government-directed

conduct, and (3) they have a colorable federal defense to

the claim or claims. 28 U.S.C. § 1442(a)(1); Latiolais v.

Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir.

2020); Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254

(4th Cir. 2017); see also Greene v. Citigroup, Inc., No. 991030, 2000 WL 647190, at *2 (10th Cir. May 19, 2000) (unpublished) (applying a similar three-part test for federal

officer removal jurisdiction). Exxon has failed to establish

the first element of federal officer removal jurisdiction.

“The statutory phrase ‘acting under’ describes ‘the

triggering relationship between a private entity and a federal officer.’” Baltimore II, 952 F.3d at 462 (quoting Watson, 551 U.S. at 149). “The words ‘acting under’ are

broad,” but “not limitless.” Watson, 551 U.S. at 147. In

this context, “under” describes a relationship between

private entity and federal superior typically involving

“‘subjection, guidance, or control.’” Id. at 151 (quoting

WEBSTER’S NEW INTERNATIONAL DICTIONARY 2765 (2d

ed. 1953)). Thus, a “private person’s ‘acting under’ must

involve an effort to assist, or to help carry out, the duties

or tasks of the federal superior.” Id. at 152. This “help or

assistance necessary to bring a private person within the

scope of the statute does not include simply complying

with the law[] . . . , even if the regulation is highly detailed

and even if the private firm’s activities are highly supervised and monitored.” Id. at 152–53. Rather, “there must

exist a ‘special relationship’ between” the private firm and

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the federal superior. Isaacson, 517 F.3d at 137 (quoting

Watson, 551 U.S. at 157).

In Watson, “the Court considered whether the Philip

Morris Companies were ‘acting under’ a federal officer or

agency when they tested and advertised their cigarettes

in compliance with the Federal Trade Commission’s

[(“FTC”)] detailed regulations.” Id. at 136. The defendants highlighted various lower court cases holding that

government contractors could invoke § 1442 removal “at

least when the relationship between the contractor and

the [g]overnment is an unusually close one involving detailed regulation, monitoring, or supervision.” Watson,

551 U.S. at 153. The Court unanimously rejected this attempt to equate the sufficiency of “close supervision” over

private contractors to “intense regulation” of firms who

are not operating under a governmental contract. Id.

The Court explained, “the private contractor [that is

subject to sufficiently close supervision] is helping the

[g]overnment to produce an item that it needs,” unlike

Phillip Morris, which was simply conducting its operations in compliance with federal law. Id. In other words,

“[t]he assistance that private contractors provide federal

officers goes beyond simple compliance with the law and

helps officers fulfill other basic governmental tasks.” Id.

In Watson, the Court illustrated a sufficient special relationship with the facts in Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir. 1998), overruled

on other grounds by Latiolais, 951 F.3d at 296. Id. at 153–

54. Winters involved tort claims against Dow Chemical

premised on the production of Agent Orange under a Department of Defense contract for use in the Vietnam War.

149 F.3d at 398. The Fifth Circuit determined that Dow

satisfied the “acting under” element for federal officer removal based on “the government’s detailed specifications

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concerning the make-up, packaging, and delivery of

Agent Orange, the compulsion to provide the product to

the government’s specifications, and the on-going supervision the government exercised over the formulation,

packaging, and delivery of Agent Orange.” Id. at 400. Dow

“provid[ed] the [g]overnment with a product that it used

to help conduct a war,” and “at least arguably, . . . performed a job that, in the absence of a contract with a private firm, the [g]overnment itself would have had to perform.” Watson, 551 U.S. at 154. As such, it had a “special

relationship” with the government whereby it “help[ed]

carry out[] the duties or tasks of the federal superior.” Id.

at 152, 157 (emphasis omitted); see also Isaacson, 517

F.3d at 137 (holding the “acting under” prong satisfied because Dow “received delegated authority” from the Pentagon “to provide a product [Agent Orange] that the

[g]overnment was using during war” and that it would

otherwise need to produce itself); cf. Sawyer, 860 F.3d at

255 (holding a private contractor “acted under” a federal

superior by manufacturing boilers for use in U.S. Navy

vessels).

Watson addressed one other “important” argument

advanced in favor of § 1442 removal by a private corporation—that the FTC delegated testing authority to an industry-financed laboratory and that Philip Morris was

“acting pursuant to that delegation.” 551 U.S. at 153–54.

The Court disagreed, finding “no evidence of any delegation of legal authority from the FTC to the industry association to undertake testing on the [g]overnment agency’s

behalf.” Id. at 156. “Without evidence of some such special

relationship, Philip Morris’ analogy to [g]overnment contracting br[oke] down.” Id. at 157.

This analysis of Watson and related caselaw indicates

which types of contracts between federal superiors and

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private firms are special enough to satisfy the “acting under” prong for § 1442 removal. The private firm must go

beyond mere compliance with contractual terms, even if

complex, and agree to help carry out the duties or tasks of

the federal superior under that superior’s strict guidance

or control. And this closely supervised work must help

federal officers fulfill basic government needs, accomplish

key government tasks, or produce essential government

products—that is, it must stand in for critical efforts the

federal superior would need to undertake itself in the absence of a private contract. Wartime production is the paradigmatic example for this special relationship. Alternately, the “acted under” element may be established

through the explicit contractual delegation of legal authority to act on the federal superior’s behalf.

Here, Exxon’s contractual relationship with the DOI

does not meet these guidelines. By winning bids for leases

to extract fossil fuels from federal land in exchange for

royalty payments, Exxon is not assisting the government

with essential duties or tasks. See Baltimore II, 952 F.3d

at 465 (expressing skepticism “that the willingness to

lease federal property or mineral rights to a private entity

for the entity’s own commercial purposes, without more,

could ever be characterized as the type of assistance that

is required to trigger the government-contractor analogy”). Critically, the leases do not obligate Exxon to make

a product specially for the government’s use, as in Winters, Isaacson, and Sawyer.

The government can (and does) purchase some of the

fuel produced by Exxon via its OCS leases, as it does from

others in the marketplace. But the OCS leases do not require Exxon to tailor fuel production to detailed government specifications aimed at satisfying pressing federal

needs. Compare Winters, 149 F.3d at 399 (referencing

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precise government specifications for Agent Orange that

“included use of the two active chemicals in unprecedented quantities for the specific purpose of stripping”

vegetation), with Washington v. Monsanto Co., 738 F.

App’x 554, 555 (9th Cir. 2018) (unpublished) (explaining

the government’s off-the-shelf purchase of a defendant’s

product does not show that the government “supervised

[the defendant’s] manufacture . . . or directed [the defendant] to produce [the product] in a particular manner, so as

to come within the meaning of ‘act[ed] under’” (quoting 28

U.S.C. § 1442(a)(1))). Nor do the leases obligate Exxon to

perform services for the government.

Additionally, the OCS leases do not appear to contemplate the type of “close supervision of the private entity

by the [g]overnment” needed to bring a government contractor relationship within the meaning of § 1442. Isaacson, 517 F.3d at 137. As the district court reasoned, “the

government does not control the manner in which [Exxon]

drill[s] for oil and gas, or develop[s] and produce[s] the

product,” nor has Exxon “shown that a federal officer instructed [it] how much fossil fuel to sell.” App. at 242; accord Baltimore II, 952 F.3d at 466 (noting that “the leases

do not appear to dictate that [the d]efendants extract fossil fuels in a particular manner,” “vest the government

with control over the composition of oil or gas to be refined

and sold to third parties,” or “affect the content or methods of [the d]efendants’ communications with customers,

consumers, and others about [the d]efendants’ fossil-fuel

products” (citations and quotation marks omitted)). Furthermore, many of the terms in the OCS leases “are mere

iterations of the OCSLA’s regulatory requirements,” and

compliance with such requirements, no matter their level

of complexity, cannot by itself trigger the “acting under”

relationship. Baltimore II, 952 F.3d at 465; see also Watson, 551 U.S. at 152.

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The Energy Companies attack these conclusions by

contending that “the operative leases explicitly afford the

federal government the right to control the rates of mining and production.” Appellants Br. at 40. The support for

this argument comes from a provision in the 1979 lease,

which states, “[a]fter due notice in writing, the Lessee

shall drill such wells and produce at such rates as the Lessor may require in order that the leased area . . . may be

properly and timely developed . . . .” App. 50 § 10. But

there is also no allegation that the government ever actually directed Exxon’s drilling activity or rates of production through its OCS land leases.

The same goes for the Energy Companies’ citation to

the government’s wartime right of first refusal. Even if

the exercise of these clauses would create the requisite

level of federal supervision, the Energy Companies cite no

authority for the proposition that the simple reservation

of such rights by the government, without exercising

those rights, places a contractor in the special relationship

needed for a private firm to invoke the removal statute.

See Mays v. City of Flint, 871 F.3d 437, 447 (6th Cir. 2017)

(disagreeing with the “argument that this ability to intervene [by the federal government] supports the[] invocation of federal-officer removal” in the absence of actual intervention).

Last, Exxon cannot show the type of legal delegation

that the Watson Court hypothesized would be sufficient

to conclude a private corporation was “acting under” a

government superior. None of the provisions of the OCS

leases “establish the type of formal delegation that might

authorize [defendants] to remove the case.” Watson, 551

U.S. at 156. And “neither Congress nor federal agencies

normally delegate legal authority to private entities without saying that they are doing so.” Id. at 157.

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Because Exxon has not established that it acted under

a federal officer by complying with the terms of its OCS

leases, we do not need to reach the remaining elements

for federal officer removal. We hold that the Energy Companies have not established federal officer removal jurisdiction and affirm the district court on this removal

ground.

2. 28 U.S.C. § 1441: Original Jurisdiction

The Energy Companies also contend that removal is

available pursuant to 28 U.S.C. § 1441(a), the general removal statute, which allows for removal of “any civil action

brought in a State court of which the district courts of the

United States have original jurisdiction.” As relevant

here, Congress has provided that federal “district courts

shall have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. A defendant can remove an action provided at least one claim falls within original federal jurisdiction. 28 U.S.C. § 1367(a); Exxon Mobil Corp.

v. Allapattah Servs., Inc., 545 U.S. 546, 563 (2005).

On appeal, the Energy Companies claim federal jurisdiction exists under § 1441 and § 1331 on five separate

grounds. First, they contend the Municipalities’ claims

arise under federal common law. Second, they claim federal jurisdiction exists because the CAA completely

preempts the state-law claims. Third, the Energy Companies argue the Municipalities’ claims necessarily raise

substantial issues of federal policy. Fourth, they assert

federal enclave jurisdiction. Fifth, they argue there is

original federal jurisdiction under the OCSLA. We begin

with an overview of the limitations of § 1331 jurisdiction,

then we discuss how those principles apply to each of the

five grounds asserted for federal jurisdiction.

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a. 28 U.S.C. § 1331

Although § 1331 mirrors the “arising under” jurisdictional grant in Article III, statutory federal-question jurisdiction is interpreted more restrictively than its constitutional counterpart, which extends jurisdiction to all

cases where a federal question is “‘an ingredient’” of the

action. See Merrell Dow Pharms. Inc. v. Thompson, 478

U.S. 804, 807 (1986) (quoting Osborn v. Bank of the U.S.,

22 U.S. 738, 823 (1824) (Marshall, C.J.)). “In exploring the

outer reaches of § 1331,” the Court has emphasized that

“determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power,

and the federal system.” Id. at 810. And it has “forcefully

reiterated” that this jurisdictional inquiry necessitates

“prudence and restraint.” Id.

i. The well-pleaded complaint rule

The Supreme Court has cabined jurisdiction under

§ 1331 by application of the well-pleaded complaint rule,

which provides “that the federal question must appear on

the face of a well-pleaded complaint and may not enter in

anticipation of a defense.” Verlinden B.V. v. Cent. Bank of

Nigeria, 461 U.S. 480, 494 (1983). As a result, the wellpleaded complaint rule is a “powerful doctrine” that “severely limits the number of cases in which state law ‘creates the cause of action’ that may be initiated in or removed to federal district court.” Franchise Tax Bd. of

Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S.

1, 9–10 (1983).

The rule is premised on the notion that the plaintiff is

the “master of the claim” and may “avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar, 482

U.S. at 392. Under the well-pleaded complaint rule, it has

long been held that a “plaintiff may by the allegations of

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his complaint determine the status with respect to removability.” Great N. Ry. Co. v. Alexander, 246 U.S. 276, 282

(1918). And the defendant’s assertion of a defense based

on federal law does not transform claims based on state

law into a removable federal question. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152–54 (1908). Indeed, a federal defense, including preemption, cannot support removal “even if the defense is anticipated in the

plaintiff’s complaint, and even if both parties admit that

the federal defense is the only question truly at issue in

the case.” Franchise Tax Bd., 463 U.S. at 14.

“[F]ederal jurisdiction attaches when federal law creates the cause of action asserted.” Merrill Lynch, Pierce,

Fenner & Smith Inc. v. Manning, 578 U.S. 374, 383

(2016). The creation test “accounts for the vast bulk of

suits that arise under federal law.” Gunn, 568 U.S. at 257.

But there are two exceptions to the well-pleaded complaint rule: (1) the state-law claims are artfully

pleaded/completely preempted by federal law and (2) the

state-law claims necessarily raise a substantial, disputed

federal question. Devon Energy Prod. Co., L.P. v. Mosaic

Potash Carlsbad, Inc., 693 F.3d 1195, 1203–04 (10th Cir.

2012). Because the exceptions are relevant to this appeal,

we describe them here.

ii. Complete preemption/artful pleading exception

Complete preemption is a term of art for an exception

(or an independent corollary) to the well-pleaded complaint rule. Schmeling v. NORDAM, 97 F.3d 1336, 1339

(10th Cir. 1996). Sometimes complete preemption is also

known as artful pleading. “If a court concludes that a

plaintiff has ‘artfully pleaded’ claims” by excluding necessary federal questions from the pleadings, “it may uphold

removal even though no federal question appears on the

face of the plaintiff’s complaint.” Rivet v. Regions Bank of

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La., 522 U.S. 470, 475 (1998). The Supreme Court treats

the “artful pleading” and “complete preemption” doctrines as indistinct. See id.4 Thus, “[t]he artful pleading

doctrine allows removal where federal law completely

preempts an asserted state-law claim.” Id.

Complete preemption applies when “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.’” Caterpillar, 482 U.S. at 393 (quoting Metro. Life

Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). When this happens, the state-law cause of action becomes “purely a

creature of federal law, notwithstanding the fact that

state law would provide a cause of action in the absence

of” the federal law. Franchise Tax Bd., 463 U.S. at 23.

Upon the doctrine’s proper invocation, “a complaint alleging only a state law cause of action may be removed to

federal court on the theory that federal preemption makes

the state law claim ‘necessarily federal in character.’”

Schmeling, 97 F.3d at 1339 (quoting Metro. Life, 481 U.S.

at 63–64).

To determine whether a state-law claim is completely

preempted by federal law, we apply a two-step analysis:

“first, we ask whether the federal question at issue

preempts the state law relied on by the plaintiff; and second, whether Congress intended to allow removal in such

“The absence from Justice Ginsburg’s [Rivet] opinion of any reference to a category of artful pleading that is conceptually distinct

from the complete preemption doctrine hints that completely

preempted claims may be the only claims to which the artful-pleading

doctrine should apply.” 14C CHARLES A. WRIGHT ET AL., FEDERAL

PRACTICE & PROCEDURE § 3722.1 (Rev. 4th ed. 2021).

4

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a case, as manifested by the provision of a federal cause of

action.” Dutcher, 733 F.3d at 985–86 (quotation marks

omitted). Because the first prong implicates the merits of

an ordinary preemption defense, which cannot support removal, the removal analysis begins with the second prong.

See Metro. Life, 481 U.S. at 66 (“[T]he touchstone of the

federal district court’s removal jurisdiction is not the ‘obviousness’ of the pre-emption defense but the intent of

Congress.”).

A part of the congressional intent analysis is whether

there is “a potential federal cause of action,” the existence

of which “is critical” because “complete preemption is not

the same as preemption.” Dutcher, 733 F.3d at 986. “That

is, a state cause of action may not be viable because it is

preempted by a federal law—but only if federal law provides its own cause of action does the case raise a federal

question that can be heard in federal court.” Id. To completely preempt, “the federal cause of action need not provide the same remedy as the state cause of action.”

Schmeling, 97 F.3d at 1343. However, “the federal remedy at issue must vindicate the same basic right or interest that would otherwise be vindicated under state law.”

Devon Energy, 693 F.3d at 1207.

“‘Complete preemption is a rare doctrine.’” Id. at 1204

(quoting Cmty. State Bank v. Strong, 651 F.3d 1241, 1260

n.16 (11th Cir. 2011)). The Supreme Court has recognized

it in just three statutory contexts: § 301 of the Labor Management Relations Act, § 502 of ERISA, and usury actions under the National Bank Act. Devon Energy, 693

F.3d at 1204–05. This circuit has also recognized the complete preemptive effect of the Securities Litigation Uniform Standards Act. See Anderson v. Merrill Lynch

Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1283–84

(10th Cir. 2008).

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iii. Substantial federal-question jurisdiction (Grable

jurisdiction)

The Supreme Court has instructed that “a federal

court ought to be able to hear claims recognized under

state law that nonetheless turn on substantial questions of

federal law.” Grable, 545 U.S. at 312. This is true “[e]ven

though state law creates [a plaintiff’s] causes of action”

because a “case might still ‘arise under’ the laws of the

United States if a well-pleaded complaint established that

its right to relief under state law requires resolution of a

substantial question of federal law in dispute between the

parties.” Franchise Tax Bd., 463 U.S. at 13. But this circumstance describes a “special and small category” of

cases. Empire Healthchoice Assurance, Inc. v. McVeigh,

547 U.S. 677, 699 (2006).

A federal court can exercise federal-question jurisdiction over an action that pleads only state-law claims if

those claims “require[] resolution of a substantial question of federal law in dispute between the parties.” Franchise Tax Bd., 463 U.S. at 13. The Supreme Court set out

the standard for substantial question jurisdiction in Grable. The Court explained that the relevant question is,

“does a state-law claim necessarily raise a stated 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, 545 U.S. at 314.

Like complete preemption, “[t]he ‘substantial question’ branch of federal question jurisdiction is exceedingly

narrow.” Gilmore v. Weatherford, 694 F.3d 1160, 1171

(10th Cir. 2012). It is not triggered by a “mere need to apply federal law in a state-law claim.” Grable, 545 U.S. at

313. Nor can it be triggered solely by a federal defense, in

keeping with the well-pleaded complaint rule. Becker v.

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Ute Indian Tribe of the Uintah & Ouray Rsrv., 770 F.3d

944, 947 (10th Cir. 2014).

***

Having discussed the limits of § 1331 federal jurisdiction, we now turn to the Energy Companies’ grounds for

removal jurisdiction under § 1331: (1) the claims arise under federal common law, (2) the CAA completely

preempts the claims, (3) the claims raise a substantial federal issue, (4) there is federal enclave jurisdiction, and (5)

there is original jurisdiction under the OCSLA.

b. Claims arise under federal common law

The Energy Companies argue there is federal-question jurisdiction over the Municipalities’ state-law claims

because they are governed by federal common law. The

district court concluded federal common law did not create the cause of action because a federal common law

claim was not alleged on the face of the Amended Complaint. Additionally, the district court determined that the

federal common law did not completely preempt the statelaw claims. The district court held that, at best, the argument that the Municipalities’ “state law claims are governed by federal common law [would] be a matter of ordinary preemption,” which is “a defense to the complaint,

and does not render a state-law claim removable.” App. at

215–16.

It is undisputed that the Municipalities did not explicitly allege a claim under federal common law in the

Amended Complaint. But the Energy Companies contend

the Municipalities drafted their Amended Complaint to

conceal the federal character of their claims. We begin by

considering whether federal common law governs claims

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related to climate change, as the Energy Companies contend. Then, we turn to the question of whether the federal

common law creates the Municipalities’ causes of action.

i. Relevant case law

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

Co. v. Tompkins, 304 U.S. 64, 78 (1938), but there remain

limited areas of “‘specialized federal common law,’” Am.

Elec. Power Co., Inc. v. Connecticut (AEP), 564 U.S. 410,

421 (2011) (quoting Friendly, In Praise of Erie—And of

the New Federal Common Law, 39 N.Y.U. L. REV. 383,

405 (1964)). “The cases in which federal courts may engage in common lawmaking are few and far between.” Rodriguez v. FDIC, 140 S. Ct. 713, 716 (2020). Among them

is when “a federal rule of decision is ‘necessary to protect

uniquely federal interests.’” Tex. Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 640 (1981) (quoting Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964)).

The Energy Companies assert that the Municipalities’

claims here are governed by the federal common law of

transboundary pollution. Accordingly, we begin with a

discussion of the primary caselaw on which the Energy

Companies rely.

In Illinois v. City of Milwaukee (Milwaukee I), 406

U.S. 91, 93 (1972), Illinois filed an original complaint in the

Supreme Court on a theory of public nuisance against Milwaukee and several other Wisconsin cities for allegedly

polluting Lake Michigan. The Court first held that cases

arising under federal common law fall under the ambit of

§ 1331. Id. at 100. While ultimately declining to exercise

original jurisdiction over the substantive claims, the

Court stated, “there is a federal common law” concerning

“air and water in their ambient or interstate aspects.” Id.

at 103. In this area, “federal law governs,” and “state statutes or decisions are not conclusive.” Id. at 105, 107. But

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the Court projected “that new federal laws and new federal regulations may in time pre-empt the field of federal

common law of nuisance.” Id. at 107.

In the 1970s, Congress passed major updates to the

Clean Water Act. City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304, 308 (1981). After these amendments,

Illinois and Michigan filed a separate suit in federal district court under federal common law, seeking abatement

of the public nuisance allegedly created by Lake Michigan

sewage discharges. Id. at 310. The district court resolved

the action in Illinois’s favor. Id. at 312. The Seventh Circuit agreed that the federal common law of nuisance survived the 1972 amendments to the Water Pollution Control Act but held that courts should look to the amendments’ “‘policies and principles for guidance.’” Id. at 312

(quoting Illinois v. City of Milwaukee, 599 F.2d 151, 164

(7th Cir. 1979), vacated & remanded by 451 U.S. 304). The

defendants appealed, and in Milwaukee II, the Court considered “the effect of this legislation on the previously recognized cause of action.” Id. at 308. As detailed below, the

Supreme Court disagreed about the effects of the amendments and vacated the Seventh Circuit’s decision.

The Court explained that in the absence of congressional action, “and when there exists a ‘significant conflict

between some federal policy or interest and the use of

state law,’ the Court has found it necessary, in a ‘few and

restricted’ instances, to develop federal common law.” Id.

at 313 (first quoting Wallis v. Pan Am. Petrol. Corp., 384

U.S. 63, 68 (1966); and then quoting Wheeldin v. Wheeler,

373 U.S. 647, 651 (1963)). This exercise is only “a ‘necessary expedient,’” however, “and when Congress addresses a question previously governed by a decision

rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears.”

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Id. at 314 (quoting Comm. for Consideration of Jones

Falls Sewage Sys. v. Train, 539 F.2d 1006, 1008 (4th Cir.

1976)). The Court ruled that the “self-consciously comprehensive” water pollution amendments left “no room for

courts to attempt to improve on that program with federal

common law.” Id. at 319.

In rejecting Illinois’s argument that the Act’s savings

provision, § 510, preserved federal common law, the Court

further stated,

It is one thing . . . to say that States may adopt more

stringent limitations through state administrative processes, or even that States may establish such limitations through state nuisance law, and apply them to

in-state discharges. It is quite another to say that the

States may call upon federal courts to employ federal

common law to establish more stringent standards applicable to out-of-state dischargers.

Id. at 327–28 (first emphasis added). Thus, the amendments to the Clean Water Act displaced the federal common law for water-based transboundary pollution.

What Milwaukee II did to the federal common law of

interstate water pollution, AEP did to the federal common

law of interstate air pollution. In AEP, several states sued

a few power companies and the Tennessee Valley Authority in federal court, asserting the companies’ CO2 emissions contributed to global warming and interfered with

public rights in violation of the federal common law of interstate nuisance, or, in the alternative, state tort law. 564

U.S. at 418. They sought injunctive relief in the form of

emissions caps. Id. at 419. The Second Circuit held the

plaintiffs had stated a claim under the “‘federal common

law of nuisance,’” but the Court reversed. Id. (quoting

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Connecticut v. Am. Elec. Power Co., Inc., 582 F.3d 309,

358, 371 (2d Cir. 2009), rev’d by 564 U.S. 410).

The Court first noted the history of “federal commonlaw suits brought by one State to abate pollution emanating from another State,” where “borrowing the law of a

particular State would be inappropriate.” Id. at 421–22.

But it said determining whether “the plaintiffs could state

a federal common-law claim for curtailment of greenhouse

gas emissions because of their contribution to global

warming” was now “an academic question,” because “the

[CAA] and the EPA actions it authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired powerplants.” Id. at

423–24.

In closing, the Court briefly addressed the plaintiffs’

state-law nuisance claims. It first noted that if a case

“should be resolved by reference to federal common law[,]

. . . state common law [is] pre-empted.” Id. at 429 (quoting

Int’l Paper Co. v. Ouellette, 479 U.S. 481, 488 (1987)).

Thus, due to the Court’s “holding that the [CAA] displaces

federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the

federal Act.” Id. (citing Ouellette’s “holding that the Clean

Water Act does not preclude aggrieved individuals from

bringing a ‘nuisance claim pursuant to the law of the

source State’” (quoting 479 U.S. at 497)). But because no

party briefed preemption or “the availability of a claim under state nuisance law,” the Court left the matter open.

Id.

The Ninth Circuit applied AEP in Native Village of

Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir.

2012). There, an Alaskan village sued various energy producers, including Exxon, for climate change-related

harms in federal district court, alleging violation of the

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federal common law of nuisance. Id. at 854. Kivalina’s

claims were slightly different than those of the AEP plaintiffs: it sought damages for harm caused by past emissions

rather than emissions abatement. Id. at 857. But “the type

of remedy asserted is not relevant to the applicability of

the doctrine of displacement.” Id. “When Congress has

acted to occupy the entire field”—as it did through the

CAA in regard to domestic greenhouse gas emissions—

“that action displaces any previously available federal

common law action.” Id. “Thus, AEP extinguished Kivalina’s federal common law public nuisance damage action, along with the federal common law public nuisance

abatement actions.” Id. In other words, the federal common law of nuisance that formerly governed transboundary pollution suits no longer exists due to Congress’s displacement of that law through the CAA.5 “Simply put,”

Even if the pre-AEP federal common law of transboundary pollution remained viable, however, it is unclear whether our case is

properly placed within that realm. In AEP, the Court recognized this

“specialized federal common law” as applying to “suits brought by

one State to abate pollution emanating from another State,” and did

not decide “whether private citizens . . . or political subdivisions . . . of

a State may invoke the federal common law of nuisance to abate outof-state pollution.” Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S.

410, 421–22 (2011) (emphasis added). Thus, it is an “open question”

whether the Municipalities are “the type of part[ies] that can bring a

federal common law nuisance claim.” Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 866 (9th Cir. 2012) (Pro, J., concurring).

It is also unsettled whether the federal common law of interstate pollution covers suits brought against product sellers rather than emitters—suits in which “out-of-state third-party emitters” are only

“steps in the causal chain.” Appellee Br. at 27. While several district

courts have held it does, basing removal on an unsettled question of

federal common law would cut against “the need for careful judgments about the exercise of federal judicial power in an area of uncertain jurisdiction.” Merrell Dow Pharms. Inc. v. Thompson, 478 U.S.

804, 814 (1986).

5

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this case could “not have been removed to federal court on

the basis of federal common law that no longer exists.”

Cnty. of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934,

937 (N.D. Cal. 2018), aff’d in part, 960 F.3d 586 (9th Cir.

2020), vacated on other grounds, 141 S. Ct. 2666 (2021)

(Mem.).

Kivalina also brought a state-law nuisance claim,

which the district court dismissed without prejudice, and

without being addressed by the Ninth Circuit majority. In

a concurring opinion, Judge Pro stressed that Kivalina

may have retained its causes of action under state law:

“Once federal common law is displaced, state nuisance law

becomes an available option to the extent it is not

preempted by federal law.” Kivalina, 696 F.3d at 866 (relying upon AEP’s statement that “the availability vel non

of a state lawsuit depends, inter alia, on the preemptive

effect of the federal Act” (quoting 564 U.S. at 429)). Judge

Pro therefore concluded that “Kivalina may pursue whatever remedies it may have under state law to the extent

their claims are not preempted.” Id.

Thus, the question is whether the federal act that displaced the federal common law preempted the state-law

claims. And because ordinary preemption can never

serve as a basis for removal, a state lawsuit brought under

state law in the transboundary pollution context could be

removed by means of a federal question only through the

doctrine of complete preemption.

In sum, the Energy Companies’ argument that the

Municipalities’ claims “arise under” federal common law

fails because the reliance on only state-law claims leaves

complete preemption as the sole path for federal removal

jurisdiction. As instructed in AEP and supported by Kivalina, we look to the federal act that displaced the federal common law to determine whether the state claims

31a

are preempted. In this case, that would be the CAA. Before considering whether the CAA completely preempts

the field, however, we pause to address the Energy Companies argument that the Municipalities artfully pleaded

their state-law claims to avoid the federal nature of their

federal common law claims.

ii. Artful pleading/complete preemption

The Energy Companies assert that despite stating

only state-law claims, it is nonetheless clear from the face

of the complaint that “federal common law supplies the

rule of decision for th[e]se claims.” Appellants Br. at 26.

For the reasons we now explain, we reject this argument.

While the Energy Companies assert their argument is

“not merely a question of pleading,” Reply Br. at 7, they

essentially contend the Municipalities have engaged in

“artful pleading” by attempting to conceal the federal

character of their claims in state garb, see Appellants Br.

at 26 (citing a portion of a district court opinion that references “artful pleading”); Reply Br. at 7–8 (quoting a

section of Wright & Miller’s treatise titled “Removal

Based on Artful Pleading” for the proposition that “a

plaintiff cannot ‘block removal’ by attempting to ‘disguise

[an] inherently federal cause of action’” (quoting 14C

CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND

PROCEDURE § 3722.1 (2d ed. 2019))). This reliance on the

“artful pleading” exception to the well-pleaded complaint

rule, however, is misplaced. For purposes of federal subject-matter jurisdiction, we look to the face of the complaint and assess whether the plaintiff has advanced a federal claim. Verlinden, 461 U.S. at 494. It is only when the

merits of a defense based on “complete preemption” are

considered that the court is free to look behind the plaintiff’s chosen claims to determine whether federal law has

completely preempted the area.

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As noted, complete preemption requires congressional

intent. See Metro. Life, 481 U.S. at 65–66. Because federal

common law is created by the judiciary—not Congress—

Congress has not “clearly manifested an intent” that the

federal common law for transboundary pollution will completely preempt state law. Id. at 66. Therefore, the federal

common law for transboundary pollution cannot completely preempt the Municipalities’ state-law claims. See

Marcus v. AT&T Corp., 138 F.3d 46, 54 (2d Cir. 1998) (applying the same reasoning and holding that “federal common law does not completely preempt state law claims in

the area of interstate telecommunications”).

The importance of the procedural posture of the lawsuit for purposes of removal jurisdiction was recently emphasized by the Second Circuit in City of New York v.

Chevron Corp., 993 F.3d 81 (2d Cir. 2021). There, the city

brought state nuisance claims against various multi-national oil companies, alleging the companies were liable

for damages caused by global warming. Id. at 88. Importantly, the city initiated the action in federal court, and

thus, the issues before the district court and the circuit

were not within the context of removal. Id. Instead, the

district court granted the oil companies’ motions to dismiss the action under Federal Rule of Civil Procedure

12(b)(6) because the CAA displaced the city’s common law

claims with respect to domestic emissions, and “judicial

caution counseled against” entertaining the city’s claims

based on foreign greenhouse emissions. Id. at 88–89.

On appeal, the Second Circuit affirmed on the same

grounds. Id. at 89–103. Importantly for our purposes, the

circuit court acknowledged and explained the tension between its conclusion that federal common law displaced

the city’s state-law claims and the “parade of recent opinions holding that ‘state-law claims for public nuisance

33a

brought against fossil-fuel producers do not arise under

federal law.’” Id. at 93 (quoting City of Oakland v. BP

P.L.C., 960 F.3d 570, 575 (9th Cir. 2020), amended & superseded on denial of reh’g, 969 F.3d 895 (9th Cir. 2020)).

The court explained that each of the decisions that concluded federal common law did not preempt the plaintiff’s

state-law claims had done so in different procedural context—removal. Id. Unlike in the removal context, the Second Circuit was permitted to consider the defendants’ ordinary preemption defense when analyzing whether the

city had failed to state a claim.

In the removal context, however, only complete

preemption can support removal. And because the federal

common law does not completely preempt state law, removal is not warranted under the artful pleading or complete preemption exception to the well-pleaded complaint

rule. The Municipalities have pleaded only state-law

causes of action. And at this stage of the proceedings, we

do not look behind those allegations.6

The Energy Companies raise an alternative basis for jurisdiction

under the federal common law in their supplemental brief. First, they

assert that “the Ninth Circuit erred by analyzing the federal-common-law argument under the Grable framework” in City of Oakland

v. BP PLC, 969 F.3d 895, 906 (9th Cir. 2020), cert. denied, 141 S. Ct.

2776 (2021). Appellants Supp. Br. at 13. But they also say, “[e]ven if

the Ninth Circuit were correct to invoke the Grable framework” in

relation to the federal common law, it would support removal. Id. The

Energy Companies did not raise this argument in their opening brief.

They also failed to raise this argument in their Notice of Removal,

and they do not argue that plain error would result if we did not reverse the district court on this ground. Thus, the Energy Companies

waived this argument. See Sawyers v. Norton, 962 F.3d 1270, 1286

(10th Cir. 2020) (“Issues not raised in the opening brief are deemed

abandoned or waived.” (quotation marks omitted)); United States v.

Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (“When an appellant fails

to preserve an issue and also fails to make a plain-error argument on

6

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c. CAA Complete Preemption

Having determined that the federal common law does

not completely preempt the state-law claims, we now consider whether the federal act that displaced the federal

common law—the CAA—completely preempts them. The

district court held that it does not, reasoning that the CAA

does not govern the sale of fossil fuels, and it “expressly

preserves many state common law causes of action.” App.

at 228. “From this,” the district court determined “Congress did not intend the [CAA] to provide exclusive remedies in these circumstances, or to be a basis for removal

under the complete preemption doctrine.” Id. The district

court explained that the preemption argument based on

emissions standards must “be resolved in connection with

an ordinary preemption defense, a matter that does not

give rise to federal jurisdiction.” Id. at 232.

The Energy Companies point to two provisions of the

CAA they claim completely preempt the state-law claims.

First, they highlight the CAA’s citizen-suit provision authorizing private challenges to rulemakings, or the absence of such rulemakings, by the EPA. See 42 U.S.C.

§ 7604(a). Second, they rely on the CAA’s “path for private parties to petition EPA to undertake new rulemakings, the response to which is reviewable in federal

appeal, we ordinarily deem the issue waived.”). For this reason, we

decline to consider Grable jurisdiction as it relates to the federal common law in this appeal. See 14C CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3733 (Rev. 4th ed. 2021) (explaining

“defendants may not add completely new grounds for removal . . . ,

and the court will not, on its own motion, retain jurisdiction on the

basis of a ground that is present but that defendants have not relied

upon” in their notice of removal).

35a

court.” Appellants Br. at 35 (citing 42 U.S.C. § 7607(b)(1)

and 5 U.S.C. § 553(e)). But neither provision establishes

complete preemption.

The Energy Companies acknowledge complete

preemption applies when “a federal statutory scheme

‘provide[s] the exclusive cause of action for the claim asserted.’” Appellants Br. at 34 (quoting Beneficial Nat’l

Bank v. Anderson, 539 U.S. at 8) (emphasis added). But

the CAA does not provide an exclusive federal cause of

action for suits against private polluters, nor does it completely displace all state law in that area. To the contrary,

§ 7604 says “[n]othing in this section shall restrict any

right which any person . . . 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). Indeed, we have recognized that “[t]he purpose

of the [CAA] is to control and improve the nation’s air

quality through a combination of state and federal regulation.” Ariz. Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1118

(10th Cir. 2009) (emphasis added). In other words, the

CAA is designed to provide a floor upon which state law

can build, not a ceiling to stunt complementary state-law

actions. See 42 U.S.C. § 7416 (stating nothing in the CAA

“shall preclude or deny the right of any State or political

subdivision thereof” to adopt an emissions standard or

limitation more stringent than the federal version); id.

§ 7412(r)(11) (similar provision regarding “prevention of

accidental releases”). “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 federal-law claims.”

Rhode Island v. Chevron Corp., 393 F. Supp. 3d 142, 150

(D.R.I. 2019) (quoting Metro. Life, 481 U.S. at 65).

36a

Even setting aside this savings clause, § 7604(a) creates causes of action against private companies only in

specified circumstances that are not present here. Section

7604(a)(1) allows a private action for the violation of a

CAA emissions standard, a limitation established by the

CAA, or the violation of an official order; § 7604(a)(2) allows a private action against the Administrator for failing

to perform a nondiscretionary act or duty; and

§ 7604(a)(3) permits a private suit for the construction (or

proposed construction) of an emitting facility without the

required federal permit, or for the violation of the conditions of such a permit. The Municipalities’ claims do not

concern CAA emissions standards or limitations, government orders regarding those standards or limitations, or

federal air pollution permits. Indeed, their suit is not

brought against emitters. Rather, the Municipalities’

claims are premised on the Energy Companies’ activities

of “knowingly producing, promoting, refining, marketing

and selling a substantial amount of fossil fuels used at levels sufficient to alter the climate, and misrepresenting the

dangers.” App. at 173. Section 7604(a) expressly does not

“vindicate the same basic right or interest” as the Municipalities’ state-law claims, Devon Energy, 693 F.3d at

1207, and thus cannot completely preempt those claims.

The same is true with respect to § 7607(b)(1), which

governs judicial review of administrative proceedings.

This section lays out the procedure for filing in a federal

court “[a] petition for review of action of the [EPA] Administrator” taken under the CAA. As such, it does not

“vindicate the same basic right or interest” as the Municipalities’ state-law claims, Devon Energy, 693 F.3d at

1207, nor do those claims “duplicate[], supplement[], or

supplant[]” § 7607(b)(1), Aetna Health Inc. v. Davila, 542

U.S. 200, 209 (2004). Indeed, § 7607(b)(1) does not allow

for suits against private parties at all.

37a

In Devon Energy, we held the availability of judicial

review of federal administrative action does not displace

comparable state-law claims against private parties. 693

F.3d at 1207. There, Devon, an oil and gas producer, mistakenly drilled a well at a location in New Mexico’s “Potash Area”—a mineral-rich reserve managed by the federal Bureau of Land Management (“BLM”)—without

BLM permission. Id. at 1198. BLM subsequently reviewed and approved the placement of Devon’s Apache

Well. Id. at 1199. Mosaic, a potash mining company,

claimed that Devon’s initial mistaken placement of the

Apache Well had wasted resources and caused Mosaic

damage. Id. Unable to reach a settlement, Devon sued

Mosaic in federal court, seeking “a declaratory judgment

that federal law completely preempted Mosaic’s anticipated state-law claims emanating from Devon’s unauthorized drilling.” Id. at 1198. Devon asserted that Mosaic’s

only available remedies were “the federal administrative

and judicial remedies under the Administrative Procedure Act.” Id. at 1200 (quotation marks omitted).

This court disagreed: “While Mosaic may have been

able to appeal the BLM’s approval of the Apache Well, the

availability of an administrative remedy against the BLM

has no bearing on whether Mosaic’s state law claims

against Devon have been completely supplanted by a private federal cause of action.” Id. at 1207 (quotation marks

omitted). Mosaic was not challenging federal agency action or inaction but rather those actions taken by the private party, Devon, that resulted in injury to Mosaic.

“Thus, even if pursuing relief through the APA might ultimately have resulted in the Apache Well being plugged

and abandoned, it would not have compensated Mosaic for

any damages stemming from Devon’s initial act of drilling

at an unapproved well site.” Id. As a result, the APA did

38a

not provide a federal cause of action comprehensive

enough to completely preempt related state-law claims.

This logic bars § 7607(b)(1) from serving to completely

preempt the Municipalities’ state-law claims. Even if

those claims could be characterized as challenges to the

air quality and emissions standards covered by the CAA,

the availability of an administrative remedy against EPA

would have no bearing on whether the Municipalities’

state-law claims against the Energy Companies are completely preempted by a private federal cause of action.

And even if pursuing relief against EPA through

§ 7607(b)(1) might ultimately lead to lower emissions in

Colorado, it would not compensate the Municipalities for

damages stemming from the Energy Companies’ allegedly tortious fossil-fuel activities, which is the compensation they seek in this suit.7

The courts that have considered this question agree

the CAA does not completely preempt this type of climate

change action.8 We agree with these well-reasoned decisions and affirm the district court’s rejection of complete

preemption by the CAA as a basis for federal jurisdiction.

Because neither of the CAA provisions highlighted by the Energy

Companies “vindicate the same basic right or interest” as the Municipalities’ state-law claims, Devon Energy Prod. Co., L.P. v. Mosaic

Potash Carlsbad, Inc., 693 F.3d 1195, 1207 (10th Cir. 2012), it is unnecessary to address the significance of the absence of any cause of

action for damages in the CAA.

7

See City of Oakland v. BP PLC, 969 F.3d at 907–08 (9th Cir. 2020)

(“Thus, the [CAA] satisfies neither requirement for complete

preemption.”); Rhode Island v. Chevron Corp., 393 F. Supp. 3d 142,

150 (D.R.I. 2019) (“[T]he CAA authorizes nothing like the State’s

claims, much less to the exclusion of those sounding in state law.”);

Baltimore I, 388 F. Supp. 3d at 562 (explaining “the absence of any

indication that Congress intended for these causes of action in the

8

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d. Substantial federal-question jurisdiction (Grable

jurisdiction)

Next, the Energy Companies argue that the Municipalities’ state-law claims necessarily raise disputed, substantial federal issues suitable for federal court resolution—both because the claims relate to the federal government’s conduct of foreign affairs and because they

“amount to a collateral attack on cost-benefit analyses

committed to, and already performed by, the federal government.” Appellants Br. at 28. The elements for substantial federal question—or Grable—jurisdiction are that the

“federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S. at 258.

The district court rejected the Energy Companies’ argument that the Municipalities’ “claims necessarily depend on a resolution of a substantial question” of federal

policy. App. at 217. It determined that the Energy Companies had not cited any binding foreign policies or explained how this case would interfere with the policies

they did cite. The district court also held that the policies

the Energy Companies cited failed to satisfy two of the

four elements for Grable jurisdiction: they were neither

“necessarily raised” nor “substantial.” Id. at 219–25. As

discussed below, we similarly conclude the federal issues

CAA to be the exclusive remedy for injuries stemming from air pollution” is “[f]atal to defendants’ argument”); Cnty. of San Mateo v.

Chevron Corp., 294 F. Supp. 3d 934, 938 (N.D. Cal. 2018) (“[T]he

[CAA] and the Clean Water Act both contain savings clauses that preserve state causes of action and suggest that Congress did not intend

the federal causes of action under those statutes ‘to be exclusive.’”

(quoting Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 9 n.5 (2003))).

40a

asserted are neither necessary to the Municipalities’

claims nor substantial to the federal system. As a result,

this case does not fit within that “slim category” of statelaw disputes that merit removal based on the presence of

a substantial federal question. Gunn, 568 U.S. at 258.

i. Necessarily raised

“To determine whether an issue is ‘necessarily’ raised,

the Supreme Court has focused on whether the issue is an

‘essential element’ of a plaintiff’s claim.” Gilmore, 694

F.3d at 1173 (quoting Grable, 545 U.S. at 315). For example, in Grable, the Court exerted federal-question jurisdiction over a state court action because the meaning of a

federal statute “appear[ed] to be the only legal or factual

issue contested.” 545 U.S. at 315. Likewise, in Smith v.

Kansas City Title & Trust Co., “[t]he decision depend[ed]

upon the determination of” “the constitutional validity of

an act of Congress which [was] directly drawn in question,” 255 U.S. 180, 201 (1921). And in Merrill Lynch, the

Court confirmed federal-question jurisdiction would lie

over a state court action brought to enforce a federal duty

“because the claim’s very success depends on giving effect

to a federal requirement.” 578 U.S. at 384.

The Energy Companies contend that the Municipalities’ suit “implicates federal issues” because it “interfere[s] with” the federal government’s longstanding “policy of pursuing economic growth rather than imposing

emissions limits under imbalanced international agreements.” Appellants Br. at 29–30. The Energy Companies

attempt to establish this specific foreign policy by citing

multiple federal sources from different branches of government that span four decades and feature different levels of binding legal effect. Id. at 28–30 (citing remarks by

Presidents Ford and Trump, an executive order from

President Reagan, a Senate resolution responding to

41a

President Clinton’s signing of the Kyoto Protocol, and

several laws passed in the wake of that signing). Setting

aside whether this asserted foreign policy can be pieced

together from such a miscellaneous patchwork, the Energy Companies have not shown how the alleged foreign

policy forms a necessary element of the Municipalities’

claims.

The Energy Companies also argue that the Municipalities’ nuisance claims necessarily raise a collateral attack

on the federal government’s “weighing of the costs and

benefits of fossil-fuel production and use” and upset the

“appropriate balance” regarding that delicate issue

struck under federal administrative law. Appellants Br. at

30–31 (citing 42 U.S.C. § 13384, 43 C.F.R. § 3162.1(a), and

Exec. Order No. 12,866 (1993)). This argument, however,

also fails to show how these regulatory cost-benefit determinations are an essential element of the Municipalities’

claims. As the district court reasoned, the Municipalities

“do not allege that any federal regulation or decision is

unlawful, or a factor in their claims, nor are they asking

the [c]ourt to consider whether the government’s decisions to permit fossil fuel use and sale are appropriate.”

App. at 221. Rather, any implied conflict between the Municipalities’ state-law claims and federal cost-benefit determinations speaks to a potential defense on the merits

of those claims, specifically a preemption defense, rather

than to the jurisdictional issue.

The Energy Companies argue the Municipalities “aim

to achieve through state tort law what they could not

achieve in the federal legislative and regulatory process—

namely, a determination that [the Energy Companies’]

activities are unreasonable.” Appellants Br. at 31. But this

is simply a description of our federalist system, not a reason to override state sovereignty. That state common law

42a

might provide redress for harm caused by certain private

actors, and thereby create remedies unavailable to a

plaintiff through the federal legislative or regulatory process, is entirely unremarkable. Allowing any mismatch in

the priorities evinced through state and federal law to

warrant removal, in the absence of a substantial federal

issue necessarily raised in the complaint, would lead to a

major diminution in the power of state courts to enforce

their own laws. It would also deny a tenet of dual sovereignty—that state courts “have inherent authority, and

are thus presumptively competent” to address federal issues, including federal defenses. Tafflin v. Levitt, 493 U.S.

455, 458 (1990).9

The Municipalities assert state-law claims—for nuisance, trespass, unjust enrichment, civil conspiracy, and

violation of Colorado’s consumer protection law—based

on the Energy Companies’ knowing promotion and sale of

fossil fuels at levels that allegedly caused damage in Colorado. Far from the situation where the meaning of federal law is “the only legal or factual issue contested,” Grable, 545 U.S. at 315 (emphasis added), here none of the

issues the Municipalities raise pertain to the meaning of

these policy statements and federal regulations. The Municipalities can prevail on their claims without proving any

issue of federal law because the success of those claims is

grounded in traditional state-law causes of action and

9

“And, of course, the absence of original jurisdiction does not mean

that there is no federal forum in which a pre-emption defense may be

heard. If the state courts reject a claim of federal preemption, that

decision may ultimately be reviewed on appeal by this Court.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463

U.S. 1, 12 n.12 (1983).

43a

does not depend on any federal policy or regulation. And

the decision in this suit does not “depend[] upon the determination of” any federal policy, order, or regulation

that is “directly drawn in question.” Smith, 255 U.S. at

201. If these federal issues are raised, it will be by the Energy Companies as potential defenses, which cannot create a basis for removal. See Becker, 770 F.3d at 947 (stating substantial question jurisdiction cannot depend solely

on a federal defense).

To be sure, there is a federal interest in promoting energy development. The Energy Companies, however,

have failed to establish that a federal issue is a necessary

element of the Municipalities’ state-law claims.

ii. Substantial

Even if the Energy Companies have identified a federal issue that is a necessary element of the Municipalities’ claims, however, the Energy Companies would still

have to show that the federal issues are sufficiently substantial. The Supreme Court has applied two tests to determine whether a federal issue is sufficiently substantial.

As explained in Grable and Gunn, courts should look to

the importance of the issue to the federal system to determine whether it is substantial. Gunn, 568 U.S. at 260; Grable, 545 U.S. at 310. The Supreme Court suggested in

Merrell Dow that courts should also consider whether the

relevant federal law provides a private right of action or

preempts state causes of action. See 478 U.S. at 812.10 We

The Energy Companies cite a three-part test from Nicodemus v.

Union Pacific Corp., 440 F.3d 1227, 1236 (10th Cir. 2006), for when

“[a] case should be dismissed for want of a substantial federal question.” Appellants Br. at 32; Reply Br. at 15. We have since recognized

that the “sweeping language” in Nicodemus “regarding substantiality . . . may no longer be good law” after the Supreme Court’s decision

in Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677,

10

44a

consider each substantiality test in turn, ultimately concluding the Energy Companies have failed to establish the

federal issues are sufficiently substantial under either

test.

1) Grable/Gunn substantiality

To satisfy Grable’s “substantial” prong, “it is not

enough that the federal issue be significant to the particular parties in the immediate suit.” Gunn, 568 U.S. at 260.

“The substantiality inquiry under Grable looks instead to

the importance of the issue to the federal system as a

whole.” Id.; see Grable, 545 U.S. at 310 (holding “that the

national interest in providing a federal forum for federal

tax litigation is sufficiently substantial to support the exercise of federal-question jurisdiction.” (emphasis

added)). Such importance to the system can be evaluated

by assessing whether the federal issue “would be controlling in numerous other cases.” McVeigh, 547 U.S. at 700.

For example, “Grable presented a nearly ‘pure issue of

law,’ one ‘that could be settled once and for all and thereafter would govern numerous . . . cases.” Id. (quoting R.

Fallon, et al., HART & WECHSLER’S THE FEDERAL

COURTS AND THE FEDERAL SYSTEM 65 (2005 Supp.)). In

contrast, resolution of claims that are “fact-bound and situation-specific” would not have this precedential effect

and would be insufficiently substantial. Id. at 701.

The important national interest test is not satisfied

here. A prerequisite to establish a case as having importance “to the federal system as a whole” is to identify

690, 700 (2006). Gilmore v. Weatherford, 694 F.3d 1160, 1175 n.3 (10th

Cir. 2012). As such, we do not apply the test in Nicodemus and instead

rely on the substantiality tests applied by the Supreme Court.

45a

a concrete federal law or regulation that the case definitively implicates, which the Energy Companies have neglected to do. Gunn, 568 U.S. at 260. The Energy Companies broadly argue that this state suit “sits at the intersection of federal energy and environmental regulation and

necessarily implicates foreign policy and national security.” Appellants Br. at 32. But it is difficult to comprehend how the suit’s resolution could have controlling effect across the federal system regarding any of these substantial issues when the Energy Companies fail to adequately tether their “national interest” argument to any

specific federal law or laws.

It follows from this fundamental failure that this case,

unlike Grable, does not present “a nearly ‘pure issue of

[federal] law’” for definitive resolution, McVeigh, 547 U.S.

at 700, (quoting R. Fallon et al., HART AND WECHSLER’S

THE FEDERAL COURTS AND THE FEDERAL SYSTEM 65

(2005 Supp.)), or “a context-free inquiry into the meaning

of a federal law,” Bennett, 484 F.3d at 910. To the contrary, the resolution of the Municipalities’ state-law

claims promises to be “fact-bound”—because it is dependent on analyzing the fossil-fuel activities of the Energy

Companies over a period of decades— and “situation-specific”—because it is dependent on establishing the damage to natural environment and property in Colorado due

to climate change. McVeigh, 547 U.S. at 701. To the extent

federal issues may be injected into the proceedings, it is

nevertheless likely that state issues will still predominate

because the Municipalities have pleaded only state-law

claims. See Bennett, 484 F.3d at 910. Regardless, the injection of those federal issues would at most require “a

fact-specific application of rules that come from both federal and state law.” Id. Such a case fails the important national interest test for substantiality.

46a

2) Merrell Dow substantiality

A federal issue may also be substantial when the relevant federal law provides a private right of action or

preempts state remedies. Grable, 545 U.S. at 316 (citing

Merrell Dow, 478 U.S. at 812). Merrell Dow’s analysis of

§ 1331 substantiality in the context of a state court tort

suit is pertinent here.

In Merrell Dow, the plaintiffs sued a drug manufacturer in state court, alleging that use of Bendectin during

pregnancy led to birth deformities. 478 U.S. at 805. Five

of the six claims were common-law tort claims, and one

claim alleged misbranding in violation of the Food, Drug,

and Cosmetic Act (“FDCA”). Id. at 805–06. The complaint

also alleged that the defendant’s promotion of the relevant drug violated the FDCA, amounting to a rebuttable

presumption of negligence, and that the defendant’s

FDCA violations directly and proximately caused the injuries. Id. at 806. The defendant removed the case based

on this injection of federal law into the complaint, and the

Sixth Circuit upheld jurisdiction.

The Supreme Court reversed. It reasoned the FDCA

provided no federal private cause of action and the plaintiffs’ tort cause of action was “a subject traditionally relegated to state law.” Id. at 810–11. “Given the significance

of the assumed congressional determination to preclude

federal private remedies, the presence of the federal issue

as an element of the state tort is not the kind of adjudication for which jurisdiction would serve congressional purposes and the federal system.” Id. at 814. The Court further explained that Congress’s decision not to include a

federal remedy for a violation of the FDCA “is tantamount to a congressional conclusion that the presence of

a claimed violation of the statute as an element of a state

47a

cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.” Id.

The Court rejected the defendant’s argument “that

there is a powerful federal interest in seeing that the federal statute is given uniform interpretations, and that federal review is the best way of insuring such uniformity.”

Id. at 815. “To the extent that petitioner is arguing that

state use and interpretation of the FDCA pose a threat to

the order and stability of the FDCA regime,” the Court

determined that a preemption defense, not an attempted

removal under § 1331, was the defendant’s proper recourse. Id. at 816. And it also rejected the argument that

“whether a particular claim arises under federal law depends on the novelty of the federal issue.” Id. at 817. It

determined that this would lead to inconsistencies across

the federal courts. Id.

The Merrell Dow opinion also included an important

footnote that attempted to reconcile the seemingly conflicting holdings on § 1331 substantial question removal in

Smith, 255 U.S. 180, and Moore v. Chesapeake & Ohio

Railway Co., 291 U.S. 205 (1934). Id. at 814 n.12. The

Court saw the difference in results “as manifestations of

the differences in the nature of the federal issues at

stake.” Id. In Smith, where the Court found federal jurisdiction, “the issue was the constitutionality of an important federal statute.” Id. Conversely, in Moore, where

the Court did not find federal jurisdiction, “the Court emphasized that the violation of the federal standard as an

element of state tort recovery did not fundamentally

change the state tort nature of the action.” Id.

The Grable Court clarified that Merrell Dow did not

create a bright-line rule prohibiting substantial-question

jurisdiction from being premised on a federal statute that

48a

contained no private right of action. 545 U.S. at 317–18.

Grable explained the import of Merrell Dow’s reasoning:

The absence of any federal cause of action affected

Merrell Dow’s result two ways. The Court saw the fact

as worth some consideration in the assessment of substantiality. But its primary importance emerged when

the Court treated the combination of no federal cause

of action and no preemption of state remedies for misbranding as an important clue to Congress’s conception of the scope of jurisdiction to be exercised under

§ 1331. The Court saw the missing cause of action not

as a missing federal door key, always required, but as

a missing welcome mat, required in the circumstances,

when exercising federal jurisdiction over a state misbranding action would have attracted a horde of original filings and removal cases raising other state claims

with embedded federal issues.

Id. at 318.

Here, none of the sources of federal law upon which

the Energy Companies premise their attempted substantial-question removal contain a private cause of action,

and none would be likely to preempt any of the Municipalities’ state-law claims.11 Absence of a congressionally

crafted remedy, or of a single federal statute, regulation,

It is doubtful the federal provisions cited by the Energy Companies in their cost-benefit argument would preempt state law. Both 42

U.S.C. § 13384 and Exec. Order No. 12,866 impose only inter- and

intra-branch directives, respectively. And 43 C.F.R. § 3162.1(a)

simply requires federal oil and gas lessees to drill in a way that maximizes economic recovery and minimizes waste. The same is true of

the cited laws relating to the Kyoto protocol. And the cited presidential statements and joint resolutions lack the power to preempt.

11

49a

or other law that speaks directly to the alleged important

federal issues, reveals the absence of the “welcome mat”

required for a federal court to confidently accept jurisdiction over these state-law tort claims. Id.

This case also falls within Merrell Dow’s conception of

a federal interest not critical enough to trigger substantial-question jurisdiction because, as in Moore, whatever

federal issues exist “d[o] not fundamentally change the

state tort nature of the action.” 478 U.S. at 814 n.12; see

Moore, 291 U.S. at 216–17 (reasoning that the presence of

a federal statute as an element of the state-law cause of

action did not confer federal jurisdiction, because “‘the

right of the plaintiff to recover was left to be determined

by the law of the state’” (quoting Minneapolis, St. Paul &

Sault Ste. Marie R. Co. v. Popplar, 237 U.S. 369, 372

(1915))). Finally, Merrell Dow rejects the argument that

uniformity of interpretation is a sufficient reason to demand a federal forum to protect the federal interest when

a preemption defense can be ably pursued in the state

court action.

In summary, the standards set forth in Grable, Gunn,

and Merrell Dow indicate that the Energy Companies’ asserted federal interests are not substantial enough to support federal jurisdiction. Because these federal interests

are neither “necessarily raised” nor sufficiently “substantial,” we affirm the district court’s rejection of this basis

for removal.

e. Federal enclave jurisdiction

State-law “actions which arise from incidents occurring in federal enclaves may be removed to federal district

court as a part of federal question jurisdiction.” Akin v.

Ashland Chem. Co., 156 F.3d 1030, 1034 (10th Cir. 1998).

The Energy Companies contend this doctrine allows for

50a

removal of the Municipalities’ claims because the

Amended Complaint alleges injuries within federal enclaves. Specifically, they point to allegations of an insect

infestation across Rocky Mountain National Park, an increased flood risk to San Miguel River in Uncompahgre

National Forest, and “heat waves, wildfires, droughts,

and floods” in both locations. Appellants Br. at 44 (quoting

App. at 73, 80, 111, 116, 127). The district court held federal enclave jurisdiction does not support removal because although injury may have occurred to those federal

enclaves, “[t]he actual injury for which [the Municipalities] seek compensation is injury to ‘their property’ and

‘their residents,’ occurring ‘within their respective jurisdictions’” and not within the federal enclaves. App. at 237

(quoting id. at 73, 75, 193). We agree.

As the Municipalities note, Uncompahgre National

Forest is mentioned nowhere in the Amended Complaint.

And San Miguel River is not a federal enclave. The river

runs through southwest Colorado for approximately 81

miles. San-Miguel River, AMERICAN RIVERS, https://

www.americanrivers.org/river/san-miguel-river/ (last visited Jan. 1, 2022). The majority of that distance is outside

Uncompahgre Forest’s borders. The river crosses

through the forest at only two brief junctures, each well

under a mile. See San Miguel River, GOOGLE MAPS,

http://www.google.com/maps/place/San+Miguel+River/

(last visited January 12, 2022). An increased flood risk to

the San Miguel River thus cannot credibly be deemed an

injury within a federal enclave.

It is true that the Amended Complaint references

damage in Rocky Mountain National Park, but it does so

only in passing, and not as the site of any injury that might

trigger federal enclave jurisdiction. For example, the

51a

Amended Complaint alleges “more severe insect outbreaks” across Colorado resulting from climate change,

as evidenced in part by a recent outbreak in Rocky Mountain National Park that “was the most severe ever seen”

in the state. App. 116. As the district court reasoned, the

insect outbreak in the national park is referenced only “to

provide an example of the regional trends that have resulted from [the Energy Companies’] climate alteration,”

id. at 237, with the actual alleged injury being “the bark

beetle epidemics seen across Colorado,” id. 116 (emphasis

added).

The Energy Companies also argue the allegation that

climate change will bring “heat waves, wildfires,

droughts, and floods to the State” is an allegation of injury

to Rocky Mountain and Uncompahgre because those enclaves exist within Colorado. Id. At 73. This theory sweeps

far too broadly. The doctrine of federal enclave jurisdiction generally requires “that all pertinent events t[ake]

place on a federal enclave.” Rosseter v. Indus. Light &

Magic, No. C 08-04545 WHA, 2009 WL 210452, at *1

(N.D. Cal. Jan. 27, 2009) (emphasis added); accord Mayor

& City Council of Balt. v. BP, P.L.C. (Baltimore I), 388

F. Supp. 3d 538, 565 (D. Md. 2019) (“[C]ourts have only

found that claims arise on federal enclaves, and thus fall

within federal question jurisdiction, when all or most of

the pertinent events occurred there.” (collecting cases)).

And even if we were to credit the Energy Companies’ allencompassing theory, the Municipalities expressly disclaimed any “damages or abatement relief for injuries to

or occurring on federal lands.” App. 195. Rather, they

sought relief for only the negative “impacts within their

respective jurisdictions.” Id. at 73.

“That the alleged climate alteration by [the Energy

Companies] may have caused similar injuries to federal

52a

property does not speak to the nature of [the Municipalities’] alleged injuries,” which are all “alleged to have

arisen exclusively on non-federal land.” App. at 238. We

agree with the district court that there is no viable claim

of federal enclave jurisdiction and affirm its rejection of

removal based on that doctrine.

f. Outer Continental Shelf Lands Act

The Energy Companies assert federal jurisdiction exists under the OCSLA due to Exxon’s decades-long OCS

fossil-fuel operations pursuant to federal leases. The district court denied this argument, holding that “[a] case

cannot be removed under OCSLA based on speculative

impacts; immediate and physical impact is needed.” App.

at 248. Thus, the district court concluded, “[t]he fact that

some of Exxon[]’s oil was apparently sourced from the

OCS does not create the required direct connection.” Id.

at 246 (emphasis added). And it held the OCSLA was not

grounds for federal jurisdiction.

The OCSLA provides that federal courts “shall have

jurisdiction of cases and controversies arising out of, or in

connection with . . . any operation conducted on the [OCS]

which involves exploration, development, or production of

[OCS] minerals.” 43 U.S.C. § 1349(b)(1). To determine

whether there is OCSLA jurisdiction, we consider

“whether (1) the activities that caused the injury constituted an ‘operation’ ‘conducted on the [OCS]’ that involved

the exploration and production of minerals, and (2) the

case ‘arises out of, or in connection with’ the operation.”

In re Deepwater Horizon, 745 F.3d 157, 163 (5th Cir.

2014) (quoting 43 U.S.C. § 1349(b)(1)). The second prong

of that test “require[s] only a but-for connection.” Id. (internal quotation marks omitted).

53a

The dispute here focuses on this second prong:

whether the case arises out of or in connection with the

OCS operation. Exxon argues this question should be answered in the affirmative because the Municipalities’

claims “arise in part from [Exxon]’s operations on the

[OCS].” Appellants Br. at 47. In response, the Municipalities argue OCSLA jurisdiction is founded on only “injuries arising directly out of physical activities on the OCS

or disputes directly involving OCS activities.” Appellee

Br. at 52. We agree with the Municipalities.

The § 1349(b) jurisdictional test is designed to cover a

“‘wide range of activity occurring beyond the territorial

waters of the states,’” Barker v. Hercules Offshore, Inc.,

713 F.3d 208, 213 (5th Cir. 2013) (quoting Texaco Expl. &

Prod., Inc. v. AmClyde Engineered Prods. Co., 448 F.3d

760, 768 (5th Cir. 2006), amended on reh’g, 453 F.3d 652

(5th Cir. 2006)), and to encompass “the entire range of legal disputes that [Congress] knew would arise relating to

resource development on the [OCS],” Laredo Offshore

Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1228

(5th Cir. 1985). But while “[u]se of the but-for test implies

a broad jurisdictional grant under § 1349,” Tenn. Gas.

Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 155 (5th

Cir. 1996), its use “is not limitless” because a “blind application of this test would result in federal court jurisdiction

over all state law claims even tangentially related to offshore oil production on the OCS,” Plains Gas Sols., LLC

v. Tenn. Gas Pipeline Co., 46 F. Supp. 3d 701, 704–05

(S.D. Tex. 2014).

The district court similarly reasoned that a strict application of the but-for test would “dramatically expand

the statute’s scope,” creating removal jurisdiction regarding “[a]ny spillage of oil or gasoline involving some fraction of OCS-sourced-oil” or “any commercial claim over

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such a[n OCS-sourced] commodity.” App. at 247–48. The

court concluded that § 1349 is not constructed so expansively in practice, and instead read OCSLA as requiring a

case to “arise directly out of OCS operations.” Id. at 245.

Again, we agree with the district court’s thoughtful analysis.

Indeed, caselaw bears out this interpretation. The decisions finding jurisdiction under § 1349 all involve a significantly more direct connection between OCS operations and the relevant lawsuit than that which exists

here.12 They each feature either claims with a direct phys-

See In re Deepwater Horizon, 745 F.3d 157, 161 (5th Cir. 2014)

(removal jurisdiction over action for oil-spill damages to wildlife stemming from catastrophic blowout of OCS drilling rig); Barker v. Hercules Offshore, Inc., 713 F.3d 208, 211 (5th Cir. 2013) (removal jurisdiction over claims stemming from accidental death of worker “on a

jack-up rig attached to the [OCS]”); Tenn. Gas Pipeline v. Houston

Cas. Ins. Co., 87 F.3d 150, 152 (5th Cir. 1996) (removal jurisdiction

over claims stemming from a vessel’s collision “with a platform secured to the [OCS]”); Amoco Prod. Co. v. Sea Robin Pipeline Co., 844

F.2d 1202, 1203, 1209 n.23 (5th Cir. 1988) (removal jurisdiction over

dispute regarding take-or-pay obligations in contracts for the sale

and purchase o natural gas extracted from OCS wells); Ronquille v.

Aminoil Inc., No. 14-164, 2014 WL 4387337, at *2 (E.D. La. Sept. 4,

2014) (removal jurisdiction over tort claims of plaintiff whose asbestos

exposure arose at least in part from provision of “direct support for

Shell Oil’s rigs,” including “the unloading and loading of barges, other

boats, and trucks that transported equipment and pipe from OCS

platforms”); Oil Field Cases, 673 F. Supp. 2d 358, 370 (E.D. Pa. 2009)

(removal jurisdiction over claims “based on injuries sustained while

working on oil rigs” that were attached to the OCS); see also EP Operating Ltd. P’ship v. Placid Oil Co., 26 F.3d 563, 565 (5th Cir. 1994)

(original jurisdiction over suit filed to partition property located on

the OCS); Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754

F.2d 1223, 1225 (5th Cir. 1985) (original “jurisdiction over a contract

12

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ical connection to an OCS operation (collision, death, personal injury, loss of wildlife, toxic exposure) or a contract

or property dispute directly related to an OCS operation.

See, e.g., Barker, 713 F.3d at 213 (“By his own admission

Barker’s employment on the jack-up rig was directly related to the development of minerals or other natural resources on the OCS.”); Amoco Prod. Co. v. Sea Robin

Pipeline Co., 844 F.2d 1202, 1210 (5th Cir. 1988) (stating

that the contract rights at issue “necessarily and physically ha[d] an immediate bearing on the production of the

particular [OCS oil] well,” thus bringing the dispute

within the “arising out of, or in connection with” language

(quoting 43 U.S.C. § 349(b)(1))). Despite the seemingly

broad “but-for” test, courts “have made it clear that a dispute must have a sufficient nexus to an operation on the

OCS to fall within the jurisdictional reach of the OCSLA.”

Fairfield Indus., Inc. v. EP Energy E&P Co., L.P., No.

H-12-2665, 2013 WL 12145968, at *4 (S.D. Tex. May 2,

2013) (collecting cases).

Here, there is not such a nexus between the dispute

and Exxon’s OCS operations. The Fifth Circuit has sanctioned OCSLA jurisdiction over disputes “one step removed from the actual transfer of minerals to shore” such

as “a contractual dispute over the control of an entity

which operates a gas pipeline.” United Offshore Co. v. S.

Deepwater Pipeline Co., 899 F.2d 405, 407 (5th Cir. 1990).

But the relationship between Exxon’s OCS operations

and the Municipalities’ claims is removed several steps

dispute involving the construction of a stationary offshore platform

on the [OCS]”).

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beyond that. The Municipalities largely challenge the Energy Companies’ sale and deceptive promotion of fossil

fuels, activities that have no direct connection to Exxon’s

production of fossil fuels on the OCS. See App. at 147–72.

To be sure, the Energy Companies characterize the Municipalities’ claims as “targeting defendants’ worldwide

fossil-fuel business,” which it contends “necessarily sweep

in [Exxon’s OCS] operations.” Reply Br. at 25. Even under the broader scope of its global operations, however,

the extent to which Exxon’s OCS activities contributed to

the downstream injuries alleged by the Municipalities in

Colorado is too attenuated to sustain OCSLA removal jurisdiction where none of those Colorado-sited injuries are

alleged to arise directly from OCS operations or OCS-extracted oil. As the district court noted, “jurisdiction under

OCSLA makes little sense for injuries in a landlocked

state that are alleged to be caused by conduct that is not

specifically related to the OCS.” App. at 247. Indeed, we

have found no prior citations to 43 U.S.C. § 1349(b)(1) in

any opinion from the fully landlocked Tenth Circuit.

The decision in Parish of Plaquemines v. Total Petrochemical & Refining USA, Inc., 64 F. Supp. 3d 872, 898

(E.D. La. 2014), supports this conclusion. While that case

dealt with the first prong of the Fifth Circuit’s § 1349(b)

test, its analysis is nonetheless pertinent here. In Total

Petrochemical, a Louisiana parish sued various oil companies for engaging in unpermitted local operations that

damaged parish land and waterbodies. Id. at 877–78. In

seeking removal under § 1349(b), the defendants argued

that “some of the complained-of activity . . . pertains to

pipelines that carry oil and gas from the OCS to the [Parish], and that some of the facilities at issue in the [Parish]

service oil and gas development on the OCS and co-mingle

production with offshore sources.” Id. at 894.

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The defendants claimed jurisdiction was proper “because [the] action ‘involve[d]’ operations on the OCS, and

it therefore ar[o]se[] in connection with OCS operations.”

Id. at 896. The court rejected this argument, holding that

“the relationship between the injuries in this case and the

activities that cause[d] them and any operations on the

OCS [was] simply too remote and attenuated.” Id. at 898.

Just as “the ‘mere connection’ between the claims asserted and an OCS operation [was] ‘too remote’ to establish federal jurisdiction” in Total Petrochemical, id., it is

likewise too remote to establish federal jurisdiction here.

Even under the technical reading of the Fifth Circuit’s

jurisdictional test advocated by Exxon, there is no indication that Exxon’s OCS operations were a pure “but-for”

cause of the Municipalities’ claims. None of the Energy

Companies offer any basis to conclude that absent the

OCS activities the injuries complained of would not have

occurred. Accordingly, the OCS activities are not the

“but-for” cause of the Municipalities’ injuries.

As the Baltimore I court reasoned, “[the d]efendants

were not sued merely for producing fossil fuel products,

let alone for merely producing them on the OCS.” 388 F.

Supp. 3d at 566. “Rather, the City’s claims are based on a

broad array of conduct, including [the] defendants’ failure

to warn consumers and the public of the known dangers

associated with fossil fuel products, all of which occurred

globally.” Id. Consequently, the Municipalities’ Coloradobased injuries and attendant state-law claims could have

arisen even if whatever slice of Exxon’s fossil-fuel production attributable to its operations on the OCS was removed from consideration. This failure to establish “butfor” causation leaves the Energy Companies’ jurisdictional burden of proof unsatisfied.

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Finally, the Energy Companies argue that the statutory purpose of OCSLA’s jurisdictional grant would be

frustrated if this suit is not heard in federal court because

an award of the billions of dollars in damages sought by

the Municipalities “would substantially discourage production on the [OCS] and would jeopardize the future viability of the federal [OCS] leasing program.” Appellants

Br. at 47–48. But it is difficult to see how such a prospective theory of negative economic incentives—flowing from

a lawsuit that does not directly attack OCS exploration,

resource development, or leases—is anything other than

contingent and speculative. And, as the district court

noted, “[a] case cannot be removed under OCSLA based

on speculative impacts; immediate and physical impact is

needed.” App. at 248; cf. Texas v. United States, 523 U.S.

296, 300 (1998) (“A claim is not ripe for adjudication if it

rests upon ‘contingent future events that may not occur as

anticipated, or indeed may not occur at all.’” (quoting

Thomas v. Union Carbide Agricultural Prods. Co., 473

U.S. 568, 580–81 (1985))).

The defendants in Total Petrochemical made a similar

policy argument, contending that the imposition of state

court liability based on injuries to the land andwaterbodies of a Louisiana parish would “have a significant adverse

impact on oil and gas production on the OCS because the

OCS and onshore oil and gas systems do not operate independently but rather extensively overlap and share infrastructure.” 64 F. Supp. 3d at 894. The district court

found that the state court lawsuit could negatively impact

the defendants’ OCS operations but held that such impact

was too speculative to support jurisdiction. Id. at 897–98.

The same logic applies here. The chain of contingencies

that connects the initiation of this case in state court to an

eventual “impair[ment of] the total recovery of the federally[] owned materials from the” OCS is too uncertain,

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speculative, and hypothetical to serve as a jurisdictional

hook. Amoco Prod., 844 F.2d at 1210. Thus, we affirm the

district court’s rejection of OCSLA’s jurisdictional provision as a basis for federal subject-matter jurisdiction over

the Municipalities’ claims.

III. CONCLUSION

For the reasons explained, we hold that none of the six

grounds the Energy Companies assert for removal on appeal are sufficient to establish federal jurisdiction over the

Municipalities’ state-law claims. We therefore AFFIRM

the district court’s order remanding the action to the state

court.

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 18-cv-01672-WJM-SKC

BOARD OF COUNTY COMMISSIONERS OF BOULDER

COUNTY; BOARD OF COUNTY COMMISSIONERS OF SAN

MIGUEL COUNTY; AND CITY OF BOULDER,

PLAINTIFFS,

v.

SUNCOR ENERGY (U.S.A.) INC.; SUNCOR ENERGY SALES

INC.; SUNCOR ENERGY INC.; AND EXXON MOBIL

CORPORATION, DEFENDANTS.

Filed: September 5, 2019

ORDER

MARTINEZ, United States District Judge.

Plaintiffs brought Colorado common law and statutory

claims in Boulder County, Colorado District Court for injuries occurring to their property and citizens of their jurisdictions, allegedly resulting from the effects of climate

change. Plaintiffs sue Defendants in the Amended Complaint (“Complaint”) “for the substantial role they played

and continue to play in causing, contributing to and exacerbating climate change.” (ECF No. 7 ¶ 2.) Defendants

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filed a Notice of Removal (ECF No. 1) on June 29, 2018.

Plaintiffs filed a Motion to Remand (ECF No. 34) on July

30, 2018.

For the reasons explained below, the Court grants

Plaintiffs’ Motion to Remand. Defendants’ Motion to Reschedule Oral Argument on Plaintiffs’ Motion to Remand

(ECF No. 67), is denied as the Court finds that a hearing

is not necessary.

I. BACKGROUND

Plaintiffs assert six state law claims: public nuisance,

private nuisance, trespass, unjust enrichment, violation of

the Colorado Consumer Protection Act, and civil conspiracy. The Complaint alleges that Plaintiffs face substantial

and rising costs to protect people and property within

their jurisdictions from the dangers of climate alteration.

(ECF No. 7 ¶¶ 1–4, 11, 221–320.) Plaintiffs allege that Defendants substantially contributed to the harm through

selling fossil fuels and promoting their unchecked use

while concealing and misrepresenting their dangers. (Id.

¶¶ 2, 5, 13–18, 321–435.) The fossil fuel activities have

raised the emission and concentration of greenhouse

gases (“GHGs”) in the atmosphere. (Id. ¶¶ 7, 15, 123–138,

321–38.)

As a result of the climate alterations caused and contributed to by Defendants’ fossil fuel activities, Plaintiffs

allege that they are experiencing and will continue to experience rising average temperatures and harmful

changes in precipitation patterns and water availability,

with extreme weather events and increased floods,

drought, and wild fires. (ECF No. 7 ¶¶ 145–179.) These

changes pose a threat to health, property, infrastructure,

and agriculture. (Id. ¶¶ 1–4, 180–196.) Plaintiffs allege

that they are sustaining damage because of services they

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must provide and costs they must incur to mitigate or

abate those impacts. (Id. ¶¶ 1, 4–5, 221–320.) Plaintiffs

seek monetary damages from Defendants, requiring them

to pay their pro rata share of the costs of abating the impacts on climate change they have allegedly caused

through their tortious conduct. (Id. at ¶ 6.) Plaintiffs do

not ask the Court to stop or regulate Defendants’ emissions of fossil fuels (id. at ¶¶ 6, 542), and do not seek injunctive relief.

Defendants’ Notice of Removal asserts the following:

(1) federal question jurisdiction— that Plaintiffs’ claims

arise under federal common law, and that this action necessarily and unavoidably raises disputed and substantial

federal issues that give rise to jurisdiction under Grable

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

U.S. 308 (2005) (“Grable”); (2) complete preemption; (3)

federal enclave jurisdiction; (4) jurisdiction because the

allegations arise from action taken at the direction of federal officers; (5) jurisdiction under the Outer Continental

Shelf Lands Act, 43 U.S.C. § 1349(b); and (6) jurisdiction

under 28 U.S.C. § 1452(a) because the claims are related

to bankruptcy proceedings.

While there are no dispositive cases from the Supreme

Court, the United States Court of Appeals for the Tenth

Circuit, or other United States Courts of Appeal, United

States District Court cases throughout the country are divided on whether federal courts have jurisdiction over

state law claims related to climate change, such as raised

in this case. Compare California v. BP p.l.c. (“CA I”), 2018

WL 1064293 (N.D. Cal. Feb. 27, 2018); City of Oakland v.

BP p.l.c. (“CA II), 325 F. Supp. 3d 1017 (N.D. Cal. June

25, 2018); City of New York v. BP p.l.c., 325 F. Supp. 3d

466 (S.D.N.Y. July 19, 2018) with State of Rhode Island v.

Chevron Corp., 2019 WL 3282007 (D. R.I. July 22, 2019);

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Mayor and City Council of Baltimore v. BP P.L.C. (“Baltimore”), 2019 WL 2436848 (D. Md. June 10, 2019), appeal

docketed, No. 19-1644 (4th Cir. June 18, 2019); and Cnty.

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

Cal. 2018), appeal docketed, No. 18-15499 (9th Cir. May

27, 2018).

II. LEGAL STANDARD

Plaintiffs’ Motion to Remand is brought pursuant to

28 U.S.C. § 1447(c). The Motion to Remand asserts that

the Court lacks subject matter jurisdiction over the claims

in this case, which Plaintiffs contend are state law claims

governed by state law.

Federal courts are courts of limited jurisdiction, “possessing ‘only that power authorized by Congress and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (citation

omitted). Thus, “[f]ederal subject matter jurisdiction is elemental.” Firstenberg v. City of Santa Fe, 696 F.3d 1018,

1022 (10th Cir. 2012). “It cannot be consented to or

waived, and its presence must be established” in every

case in federal court. Id.

Here, Defendants predicate removal on the ground

that the federal court has original jurisdiction over the

claims. 28 U.S.C. § 1441(a). Diversity jurisdiction has not

been invoked. Removal is appropriate “if, but only if, ‘federal subject-matter jurisdiction would exist over the

claim.”’ Firstenberg, 696 F.3d at 1023 (citation omitted).

If a court finds that it lacks subject matter jurisdiction at

any time before final judgment is entered, it must remand

the case to state court. 28 U.S.C. § 1447(c).

The burden of establishing subject matter jurisdiction

is on the party seeking removal to federal court, and there

is a presumption against its existence. Salzer v. SSM

Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir.

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2014). “Removal statutes are to be strictly construed,. . .

and all doubts are to be resolved against removal.” Fajen

v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.

1982). The party seeking removal must show that jurisdiction exists by a preponderance of the evidence. Dutcher v.

Matheson, 840 F.3d 1183, 1189 (10th Cir. 2016).

III. ANALYSIS

A. Federal Question Jurisdiction

Defendants first argue that federal question jurisdiction exists. Federal question jurisdiction exists for “all

civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. In determining whether such jurisdiction exists, a court must “look to

the ‘face of the complaint’” and ask whether it is “‘drawn

so as to claim a right to recover under the Constitution

and laws of the United States’[.]” Firstenberg, 696 F.3d at

1023 (quoting Bell v. Hood, 327 U.S. 678, 681 (1946)).

“[T]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule’,

which provides that federal jurisdiction exists only when

a federal question is presented on the face of the plaintiff’s

properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citation omitted). Under

this rule, a case arises under federal law ‘only when the

plaintiff’s statement of his own cause of action shows that

it is based’ on federal law.” Devon Energy Prod. Co., L.P.

v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th

Cir. 2012) (citation omitted). The court need only examine

“the well-pleaded allegations of the complaint and ignore

potential defenses. . . .’” Id. (citation omitted).

The well-pleaded complaint rule makes “the plaintiff

the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar,

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482 U.S. at 392; see also Devon Energy, 693 F.3d at 1202

(“By omitting federal claims from a complaint, a plaintiff

can generally guarantee an action will be heard in state

court.”) (internal quotation marks omitted). While the

plaintiff may not circumvent federal jurisdiction by artfully drafting the complaint to omit federal claims that are

essential to the claim, Caterpillar, 482 U.S. at 392, the

plaintiff “can elect the judicial forum–state of federal” depending on how the plaintiff drafts the complaint. Firstenberg, 696 F.3d at 1023. “Neither the plaintiff’s anticipation of a federal defense nor the defendant’s assertion of

a federal defense is sufficient to make the case arise under

federal law.” Id. (internal quotation marks omitted).

For a plaintiff’s well-pleaded complaint to establish

that the claims arise under federal law within the meaning

of § 1331, it “must establish one of two things: ‘either that

federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on a resolution of

a substantial question of federal law.’” Firstenberg, 696

F.3d at 1023 (citation omitted). The “creation’ test” in the

first prong accounts for the majority of suits that raise under federal law.” See Gunn, 568 U.S. at 257. However,

where a claim finds its origins in state law, the Supreme

Court has identified a “‘special and small category’ of

cases” in which jurisdiction lies under the substantial

question prong as they “implicate significant federal interests.” Id. at 258; see also Grable, 545 U.S. at 312.

Defendants argue that both prongs of federal question

jurisdiction are met. The Court will address each of these

arguments in turn.

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1. Whether Federal Law Creates the Cause of

Action

Defendants first assert that federal question jurisdiction exists because Plaintiffs’ claims arise under federal

law; namely, federal common law, such that federal law

creates the cause of action. The Supreme Court has “held

that a few areas, involving ‘uniquely federal interests,’ . . .

are so committed by the Constitution and laws of the

United States to federal control that state law is preempted and replaced, where necessary, by federal law of

a content prescribed (absent explicit statutory directive)

by the courts—so-called ‘federal common law.’” Boyle v.

United Technologies Corp., 487 U.S. 500, 504 (1988) (citations omitted); see also Nat’l Farmers Union Ins. Cos. v.

Crow Tribe of Indians, 471 U.S. 845, 850 (1985). The issue

must involve “an area of uniquely federal interest”, and

federal common law will displace state law only where “a

‘significant conflict’ exists between an identifiable ‘federal

policy or interest and the [operation] of state law,’ . . or

the application of state law would ‘frustrate specific objectives’ of federal legislation.” Boyle, 487 U.S. at 507 (citations omitted).

Defendants assert that this case belongs in federal

court because it threatens to interfere with longstanding

federal policies over matters of uniquely national importance, including energy policy, environmental protection, and foreign affairs. They note that two courts have

held that claims akin to those brought by Plaintiffs are

governed by federal common law, citing the decisions in

CA I, CA II, and City of New York.1

Notably, in another case ExxonMobil appeared to argue the opposite of what it argues here: that there is no uniquely federal interest

in this type of case and a suit does not require “‘the application of

1

67a

a. Relevant Case Law

Defendants state over the past century that the federal government has recognized that a stable energy supply is critical for the preservation of our economy and national security, taken steps to promote fossil fuel production, and worked to decrease reliance on foreign oil. The

government has also worked with other nations to craft a

workable international framework for responding to

global warming. This suit purportedly challenges those

decisions by requiring the court to delve into the thicket

of the “worldwide problem of global warming”— the solutions to which Defendants assert for “sound reasons”

should be “determined by our political branches, not by

our judiciary.” See CA II, 2018 WL 3109726, at *9.

Plaintiffs thus target global warming, and the transnational conduct that term entails. (ECF No. 7 ¶¶ 125–38.)

Defendants contend that the claims unavoidably require

adjudication of whether the benefits of fossil fuel use outweigh its costs—not just in Plaintiffs’ jurisdictions, or

even in Colorado, but on a global scale. They argue that

these claims do not arise out of state common law. Defendants further assert that this is why similar lawsuits have

been brought in federal court, under federal law, and why,

when those claims were dismissed, the plaintiffs made no

effort to pursue their claims in state courts. See, e.g., Am.

Elec. Power Co., Inc. v. Connecticut (“AEP”), 564 U.S. 410

(2011); Kivalina v. ExxonMobil Corp. (“Kivalina”), 696

F.3d 849 (9th Cir. 2012). Defendants thus contend that the

federal common law, merely because the conflict is not confined

within the boundaries of a single state.’” (See ECF No. 50-1 at 55–60)

(citation omitted). Instead, it asserted that “only suits by [states] implicating a sovereign interest in abating interstate pollution give rise

to federal common law.” (Id. at 58–60) (emphasis added).

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court has federal question jurisdiction because federal law

creates the cause of action.

The Court first addresses the cases relied on by Defendants that address similar claims involving injury from

global warming, beginning its analysis with the Supreme

Court’s decision in AEP. The AEP plaintiffs brought suit

in federal court against five domestic emitters of carbon

dioxide, alleging that by contributing to global warming,

they had violated the federal common law of interstate

nuisance, or, in the alternative, state tort law. 564 U.S. at

418 (citation omitted). They brought both federal and

state claims, and asked for “a decree setting carbon-dioxide emission for each defendant.” Id. The plaintiffs did not

seek damages.

The Court in AEP stated what while there is no federal general common law, there is an “emergence of a federal decisional law in areas of national concern”, the “new”

federal common law. 564 U.S. at 421 (internal quotation

marks omitted). This law “addresses ‘subjects within national legislative power where Congress has so directed’

or where the basic scheme of the Constitution so demands.” Id. (citation omitted). The Court found that environmental protection is “undoubtedly an area within national legislative power, one in which federal courts may

fill in statutory interstices, and, if necessary, even fashion

federal law.” Id. (internal quotation marks omitted). It

further stated that when the court “deal[s] with air and

water in their ambient or interstate aspects, there is federal common law.’” Id. (quoting Illinois v. City of Milwaukee, 406 US. 91, 103 (1972)).

AEP also found that when Congress addresses a question previously governed by federal common law, “‘the

need for such an unusual exercise of law-making by federal courts disappears.’” 564 U.S. at 423 (citation omitted).

69a

The test for whether congressional legislation excludes

the declaration of federal common law is “whether the

statute ‘speak[s] directly to [the] questions at issue.” Id.

at 424 (citation omitted). The Court concluded 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,”

i.e., the Clean Air Act spoke directly “to emissions of carbon dioxide from the defendants’ plants.” Id. Since it

found that federal common law was displaced, AEP did

not decide the scope of federal common law, or whether

the plaintiffs had stated a claim under it. Id. at 423 (describing the question as “academic”). It also did not address the state law claims. Id. at 429.

In Kivalina, the plaintiffs alleged that massive greenhouse gas emissions by the defendants resulted in global

warming which, in turn, severely eroded the land where

the City of Kivalina sat and threatened it with imminent

destruction. 696 F.3d at 853. Relying on AEP, the Ninth

Circuit found that the Clean Air Act displaced federal

common law nuisance claims for damages caused by

global warming. Id. at 856. It recognized that “federal

common law includes the general subject of environmental law and specifically includes ambient or interstate air

and water pollution.” Id. at 855 (citing City of Milwaukee,

406 US. at 103). Thus, Kivalina stated that “federal common law can apply to transboundary pollution suits,” and

noted that most often such suits are, as in that case,

founded on a theory of public nuisance. Id. The Kivalina

court found that the case was governed by AEP and the

finding that Congress had “directly addressed the issue of

greenhouse gas commissions from stationary sources,”

thereby displacing federal common law. Id. at 856. The

fact that the plaintiffs sought damages rather than an

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abatement of emissions did not impact the analysis, according to Kivalina, because “the type of remedy asserted is not relevant to the applicability of the doctrine of

displacement.” Id. at 857. The Kivalina court affirmed the

district court’s dismissal of plaintiffs’ claims. Id. at 858.

Both AEP and Kivalina were brought in federal court

and asserted federal law claims. They did not address the

viability of state claims involving climate change that were

removed to federal court, as is the case here. This issue

was addressed by the United States District Court for the

Northern District of California in CA I and CA II. In the

CA cases, the Cities of Oakland and San Francisco asserted a state law public nuisance claim against ExxonMobil and a number of other worldwide producers of

fossil fuels, asserting that the combustion of fossil fuels

produced by the defendants had increased atmospheric

levels of carbon dioxide, causing a rise in sea levels with

resultant flooding in the cities. CA I, 2018 WL 1064293, at

*1. Like the instant case, the plaintiffs did not seek to impose liability for direct emissions of carbon dioxide.

Instead, they alleged “that—despite long-knowing

that their products posed severe risks to the global climate—defendants produced fossil fuels while simultaneously engaging in large scale advertising and public relations campaigns to discredit scientific research on global

warming, to downplay the risks of global warming, and to

portray fossil fuels as environmentally responsible and essential to human well-being.” Id. The plaintiffs sought an

abatement fund to pay for infrastructure necessary to address rising sea levels. Id.

CA I found that the plaintiffs’ state law “nuisance

claims—which address the national and international geophysical phenomenon of global warming—are necessarily governed by federal common law,” citing AEP, City

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of Milwaukee, and Kivalina. CA I, 2018 WL 1064293, at

*2–3. It stated that, as in those cases, “a uniform standard

of decision is necessary to deal with the issues,” explaining:

If ever a problem cried out for a uniform and comprehensive solution, it is the geophysical problem described by the complaints, a problem centuries in the

making (and studying) with causes [including] the

combustion of fossil fuels. The range of consequences

is likewise universal—warmer weather in some places

that may benefit agriculture but worse weather in others, . . . and—as here specifically alleged—the melting

of the ice caps, the rising of the oceans, and the inevitable flooding of coastal lands. . . . [T]he scope of the

worldwide predicament demands the most comprehensive view available, which in our American court

system means our federal courts and our federal common law. A patchwork of fifty different answers to the

same fundamental global issue would be unworkable.

Id. at *3.

The CA I court also found that federal common law

applied despite the fact that “plaintiffs assert a novel theory of liability,” i.e., against the sellers of a product rather

than direct dischargers of interstate pollutants. CA I,

2018 WL 1064293, at *3 (emphasis in original). Again, that

is the situation in this case. The CA I court stated that “the

transboundary problem of global warming raises exactly

the sort of federal interests that necessitate a uniform solution,” which is no “ less true because plaintiffs’ theory

mirrors the sort of state-law claims that are traditionally

applied to products made in other states and sold nationally.” Id. The court found, however, that federal common

law was not displaced by the Clean Air Act and the EPA

as in AEP and Kivalina because the plaintiffs there

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sought only to reach domestic conduct, whereas the plaintiffs’ claims in CA I “attack behavior worldwide.” Id. at 4.

It stated that those “foreign emissions are outside of the

EPA and Clean Air Acts’ reach.” Id. Nonetheless, as the

claims were based in federal law, the court found that federal jurisdiction existed and denied the plaintiffs’ motions

to remand. Id. at 5.

In CA II, the court granted the defendants’ motion to

dismiss. 325 F. Supp. 3d at 1019. It reaffirmed that the

plaintiffs’ nuisance claims “must stand or fall under federal common law,” including the state law claims. CA II,

325 F. Supp. 3d at 1024. It then held that the claims must

be dismissed because they ran counter to the presumption

against extraterritoriality and were “foreclosed by the

need for federal courts to defer to the legislative and executive branches when it comes to such international

problems.” Id. at 1024–25. The CA II court concluded that

“[i]t may seem peculiar that an earlier order refused to

remand this action to state court on the ground that plaintiffs’ claims were necessarily governed by federal law,

while the current order concludes that federal common

law should not be extended to provide relief.” Id. at 1028.

But it found “no inconsistency,” as “[i]t remains proper for

the scope of plaintiffs’ claims to be decided under federal

law, given the international reach” of the claims. Id. at

1028–29.

The City of New York case followed the rationale of

CA I and CA II, and dismissed New York City’s claims of

public and private nuisance and trespass against multinational oil and gas companies related to the sale and production of fossil fuels. 325 F. Supp. 3d at 471–76. On a motion to dismiss, the court found that the City’s claims were

governed by federal common law, not state tort law, because they were “based on the ‘transboundary’ emission

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of greenhouse gases” which “require a uniform standard

of decision.” Id. at 472 (citing CA I, 2018 WL 10649293, at

*3). It also found that to the extent the claims involved domestic greenhouse emissions, the Clean Air Act displaced

the federal common law claims pursuant to AEP. Id. To

the extent the claims implicated foreign greenhouse emissions, they were “barred by the presumption against extraterritoriality and the need for judicial caution in the

face of ‘serious foreign policy consequences.’” Id. at 475

(citation omitted). The court in City of New York did not

address federal jurisdiction or removal jurisdiction.

In summary, the above cases suggest that claims related to the emission or sale, production, or manufacture

of fossil fuels are governed by federal common law, even

if they are asserted under state law, but may displaced by

the Clean Air Act and the EPA. At first blush these cases

appear to support Defendants’ assertion that Plaintiffs’

claims arise under federal law and should be adjudicated

in federal court, particularly given the international scope

of global warming that is at issue.

However, the Court finds that AEP and Kivalina are

not dispositive. Moreover, while the CA I decision has a

certain logic, the Court ultimately finds that it is not persuasive. Instead, the Court finds that federal jurisdiction

does not exist under the creation prong of federal question

jurisdiction, consistent with San Mateo and the two most

recent cases that have addressed the applicable issues, as

explained below.

The Court first notes that in AEP and Kivalina, the

plaintiffs expressly invoked federal claims, and removal

was neither implicated nor discussed. Moreover, both

cases addressed interstate emissions, which are not at issue here. Finally, the cases did not address whether the

state law claims were governed by federal common law.

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The AEP Court explained that “the availability vel non of

a state lawsuit depend[ed], inter alia, on the preemptive

effect of the federal Act,” and left the matter open for consideration on remand. 564 U.S. at 429. Thus, “[f]ar from

holding (as the defendants bravely assert) that state

claims related to global warming are superseded by federal common law, the Supreme Court [in AIG] noted that

the question of whether such state law claims survived

would depend on whether they are preempted by the federal statute that had displaced federal common law (a

question the Court did not resolve).” San Mateo, 294 F.

Supp. 3d at 937.

Moreover, while AEP found that federal common law

governs suits brought by a state to enjoin emitters of pollution in another state, it noted that the Court had never

decided whether federal common law governs similar

claims to abate out-of-state pollution brought by “political

subdivisions” of a State, such as in this case. 564 U.S. at

421–22. Thus, AEP does not address whether state law

claims, such as those asserted in this case and brought by

political subdivisions of a state, arise under federal law for

purposes of removal jurisdiction. The Ninth Circuit in Kivalina also did not address this issue.

The Court disagrees with the finding in CA I that removal jurisdiction is proper because the case arises under

federal common law. CA I found that the well-pleaded

complaint rule did not apply and that federal jurisdiction

exists “if the claims necessarily arise under federal common law. 2018 WL 1064293, at *5. It based this finding on

a citation to a single Ninth Circuit case, Wayne v. DHL

Worldwide Express, 294 F.3d 1179, 1184–85 (9th Cir.

2002). Id. Wayne, however, recognized the well-pleaded

complaint rule, and did not address whether a claim that

arises under federal common law is an exception to the

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rule. 294 F.3d at 1183-85. Moreover, Wayne cited City of

Milwaukee in support of its finding that federal jurisdiction would exist if the claims arose under federal law. City

of Milwaukee was, however, filed in federal court and invoked federal jurisdiction such that the well-pleaded complaint rule was not at issue.

Thus, CA I failed to discuss or note the significance of

the difference between removal jurisdiction, which implicates the well pleaded complaint rule, and federal jurisdiction that is invoked at the outset such as in AEP and

Kivalina. This distinction was recognized by the recent

decision in Baltimore, which involved similar state law

claims as to climate change that were removed to federal

court. 2019 WL 2436848, at *1. Baltimore found CA I was

“well stated and presents an appealing logic,” but disagreed with it because the court looked beyond the face of

the plaintiffs’ well pleaded complaint. Id. at *7–8. It also

noted that CA I “did not find that the plaintiffs’ state law

claims fell within either of the carefully delineated exceptions to the well-pleaded complaint rule—i.e., that they

were completely preempted by federal law or necessarily

raised substantial, disputed issues of federal law.” Id. at

*8. Baltimore found that the well-pleaded complaint rule

was plainly not satisfied in that case because the City did

not plead any claims under federal law. Id. at *6.

b. The Well-Pleaded Complaint Rule as Applied to Plaintiffs’ Claims

In a case that is removed to federal court, the presence

or absence of federal-question jurisdiction is governed by

the well-pleaded complaint rule, which gives rise to federal jurisdiction only when a federal question is presented

on the face of the complaint. Caterpillar, 482 U.S. at 392.

The Tenth Circuit has held that to support removal jurisdiction, “the required federal right or immunity must be

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an essential element of the plaintiff’s cause of action, and

. . . the federal controversy must be disclosed upon the

face of the complaint, unaided by the answer or by the petition for removal.” Fajen, 683 F.2d at 333 (citation and

internal quotation marks omitted).

In this case, the Complaint on its face pleads only state

law claims and issues, and no federal law or issue is raised

in the allegations. While Defendants argue that the Complaint raises inherently federal questions about energy,

the environment, and national security, removal is not appropriate under the well-pleaded complaint rule because

these federal issues are not raised or at issue in Plaintiffs’

claims. A defendant cannot transform the action into one

arising under federal law, thereby selecting the forum in

which the claim will be litigated, as to do so would contradict the well-pleaded complaint rule. Caterpillar, 489 U.S.

at 399. Defendants, “in essence, want the Court to peek

beneath the purported state-law facade 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 jurisdiction analysis.” State of Rhode Island,

2019 WL 3282007, at *2. That court found nothing in the

artful-pleading doctrine which sanctioned the defendants’

desired outcome. Id.

Defendants cite no controlling authority for the proposition that removal may be based on the existence of an

unplead federal common law claim—much less based on

one that is questionable and not settled under controlling

law. Defendants rely on the Supreme Court’s holding that

the statutory grant of jurisdiction over cases arising under the laws of the United States “will support claims

founded upon federal common law.” Nat’l Farmers Union

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Ins. Cos., 471 U.S. at 850–53. However, the plaintiffs invoked federal jurisdiction in that case. The same is true in

other cases cited by Defendants, including City of Milwaukee and Boyle, both of which were filed by plaintiffs

in federal court and invoked federal jurisdiction. See, e.g.,

State of Rhode Island, 2019 WL 3282007, at *2 n. 2 (Boyle

“does not help Defendants” as it “was not a removal case,

but rather one brought in diversity”); Arnold by and

Through Arnold v. Blue Cross & Blue Shield, 973 F.

Supp. 726, 737 (S.D. Tex. 1997) (Boyle did not address removal jurisdiction, nor did it modify the Caterpillar rule

that federal preemption of state law, even when asserted

as an inevitable defense to a . . . state law claim, does not

provide a basis for removal”), overruled on other grounds,

Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387

(5th Cir. 1997). Removal based on federal common law being implicated by state claims was not discussed or sanctioned in Defendants’ cases.

A thoughtful analysis of the limits that removal jurisdiction poses on federal question jurisdiction was conducted in E. States Health & Welfare Fund v. Philip Morris, Inc., 11 F. Supp. 2d 384 (S.D.N.Y. 1998). That court

noted that removal jurisdiction is “a somewhat different

animal than original federal question jurisdiction—i.e.,

where the plaintiff files originally in federal court.” Id. at

389. It explained:

When a plaintiff files in federal court, there is no clash

between the principle that the plaintiff can control the

complaint—and therefore, the choice between state

and federal forums—and the principle that federal

courts have jurisdiction over federal claims; the plaintiff, after all, by filing in a federal forum is asserting

reliance upon both principles, and the only question a

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defendant can raise is whether plaintiff has a federal

claim.

On the other hand, when a plaintiff files in state court

and purports to only raise state law claims, for the federal court to assert jurisdiction it has to look beyond

the complaint and partially recharacterize the plaintiffs’ claims—which places the assertion of jurisdiction

directly at odds with the principle of plaintiff as the

master of the complaint. It is for this reason that removal jurisdiction must be viewed with a somewhat

more skeptical eye; the fact that a plaintiff in one case

chooses to bring a claim as a federal one and thus invoke federal jurisdiction does not mean that federal

removal jurisdiction will lie in an identical case if the

plaintiff chooses not to file a federal claim.

Id. at 389–90. The Court agrees with this well-reasoned

analysis.

The cases cited by Defendants from other jurisdictions that found removal of state law claims to federal

court was appropriate because the claims arose under or

were necessarily governed by federal common law are not

persuasive. See Wayne, 294 F.3d at 1184–85; Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 926 (5th Cir.

1997); CA I, 2018 WL 1064293, at *2; Blanco v. Fed. Express Corp., No. 16-561, 2016 WL 4921437, at *2–3 (W.D.

Okla. Sept. 15, 2016). Those cases contradict Caterpillar

and the tenets of the well-pleaded complaint rule. They

also fail to cite any Supreme Court or other controlling

authority authorizing removal based on state law claims

implicating federal common law. While many of those

cases relied on City of Milwaukee as authority for their

holdings, the plaintiff in that case invoked federal common

law and federal jurisdiction. City of Milwaukee does not

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support a finding that a defendant can create federal jurisdiction by re-characterizing a state claim.

c. Ordinary Preemption

Ultimately, Defendants’ argument that Plaintiffs’

state law claims are governed by federal common law appears to be a matter of ordinary preemption which—in

contrast to complete preemption, which is discussed in

Section III.B, infra,–would not provide a basis for federal

jurisdiction. See Geddes v. Am. Airlines, Inc., 321 F.3d

1349, 1352 (11th Cir. 2003) (cited with approval in Devon

Energy, 693 F.3d at 1203).2 “Ordinary preemption ‘regulates the interplay between federal and state laws when

they conflict or appear to conflict . . . .’” Baltimore, 2019

WL 2436848, at *6 (citation omitted). The distinction between ordinary and complete preemption “is important

because if complete preemption does not apply, but the

plaintiff’s state law claim is arguably preempted . . . the

district court, being without removal jurisdiction, cannot

resolve the dispute regarding preemption.” Colbert v. Union Pac. R. Co., 485 F. Supp. 2d 1236, 1243 (D. Kan. 2007)

(internal quotation marks omitted).

When ordinary preemption applies, the federal court

“‘lacks the power to do anything other than remand to the

state court where the preemption issue can be addressed

and resolved.’” Colbert, 485 S. Supp. 2d at 1243 (citation

omitted). Ordinary preemption is thus a defense to the

complaint, and does not render a state- law claim removable to federal court. Hansen v. Harper Excavating, Inc.,

641 F.3d 1216, 1221 (10th Cir. 2011); see also Caterpillar,

2

The three forms of preemption that are frequently discussed in

judicial opinions— express preemption, conflict preemption, and field

preemption—are characterized as ordinary preemption. Devon Energy, 693 F.3d at 1203 n. 4.

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482 U.S. at 392–93 (under the well-pleaded complaint rule,

courts must ignore potential defenses such as preemption).

Thus, the fact that a defendant asserts that federal

common law is applicable “does not mean the plaintiffs’

state law claims ‘arise under’ federal law for purposes of

jurisdictional purposes.” E. States Health, 11 F. Supp. 2d

at 394. As that court explained, “[c]ouch it as they will in

‘arising under’ language, the defendants fail to explain

why their assertion that federal common law governs . . .

is not simply a preemption defense which, while it may

very well be a winning argument on a motion to dismiss in

the state court, will not support removal jurisdiction.” Id.

This finding is consistent with the decision in Baltimore. The court there found the defendants’ assertion

that federal question jurisdiction existed because the

City’s nuisance claim “is in fact ‘governed by federal common law’” was “‘a cleverly veiled [ordinary] preemption

argument.” Baltimore, 2019 WL 2436848, at *6 (citing

Boyle, 487 U.S. at 504). As the Baltimore defendants’ argument amounted to an ordinary preemption defense, it

did “not allow the Court to treat the City’s public nuisance

claim as if it had been pleaded under federal law for jurisdictional purposes.” Id. The court also found that the CA

I ruling was “at odds with the firmly established principle

that ordinary preemption does not give rise to federal

question jurisdiction.” Id. at *8.

Because an ordinary preemption defense does not

support remand, Defendants’ federal common law argument could only prevail under the doctrine of complete

preemption. Unlike ordinary preemption, complete

preemption “is so ‘extraordinary’ that it ‘converts an ordinary state law common-law complaint into one stating a

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federal claim for purposes of the well-pleaded complaint

rule.’” Caterpillar, 482 U.S. at 393 (citation omitted).

2. Whether Plaintiffs’ Right to Relief Necessarily Depends on Resolution of a Substantial Question of Federal Law (Grable Jurisdiction)

Defendants also argue that federal jurisdiction exists

under the second prong of the “arising under” jurisdiction, as Plaintiffs’ claims necessarily depend on a resolution of a substantial question of federal law under Grable.

They contend that the Complaint raises federal issues under Grable “because it seeks to have a court determine for

the entire United States, as well as Canada and other foreign actors, the appropriate balance between the production, sale, and use of fossil fuels and addressing the risks

of climate change.” (ECF No. 1 ¶ 37.) Such an inquiry, according to Defendants, “necessarily entails the resolution

of substantial federal questions concerning important federal regulations, contracting, and diplomacy.” (Id.) Thus,

they assert that the “state-law claim[s] necessarily raise a

stated federal issue, actually disputed and substantial,

which a federal forum may entertain without disturbing

. . . federal and state judicial responsibilities.” Grable, 545

U.S. at 313–14.

The substantial question doctrine “captures the commonsense notion that a federal court ought to be able to

hear claims recognized under state law that nonetheless

turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.”

Grable, 545 U.S. at 312. To invoke this branch of federal

question jurisdiction, the Defendants must show that “a

federal issue is: (1) necessarily raised, (2) actually dis-

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puted, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S. at 258.

Jurisdiction under the substantial question doctrine

“is exceedingly narrow—a special and small category of

cases.” Firstenberg, 696 F.3d at 1023 (citation and internal quotation marks omitted). “[M]ere need to apply federal law in a state-law claim will not suffice to open the

‘arising under’ door” of jurisdiction. Grable, 545 U.S. at

313. Instead, “‘federal jurisdiction demands not only on a

contested federal issue, but a substantial one, indicating a

serious federal interest in claiming the advantages

thought to be inherent in a federal forum.’” Id. (citation

omitted).

a. Necessarily Raised

The Court finds that the first prong of substantial

question jurisdiction is not met because Plaintiffs’ claims

do not necessarily raise or depend on issues of federal law.

The discussion of this issue in Baltimore is instructive. In

that case, the defendants contended that Grable jurisdiction existed because the claims raised a host of federal issues. Baltimore, 2019 WL 2436848, at *9. For example,

the defendants asserted that the claims “‘intrude upon

both foreign policy and carefully balanced regulatory considerations at the national level, including the foreign affairs doctrine.’” Id. (citation omitted). They also asserted

that the claims “‘have a significant impact on foreign affairs,’ ‘require federal-law-based cost-benefit analyses,’”

and “‘amount to a collateral attack on federal regulatory

oversight of energy and the environment.’” Id. (citation

omitted). These allegations are almost identical to what

Defendants assert in this case. (See ECF No. 48 at 22—

“Plaintiffs’ claims gravely impact foreign affairs”; 24—

“Plaintiffs’ claims require reassessment of cost-benefit

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analyses committed to, and already conducted by the Government”; 26—the claims “are a collateral attack on federal regulatory oversight of energy and the environment”).

Baltimore found that these issues were not “‘necessarily raised’ by the City’s claims, as required for Grable

jurisdiction.” 2019 WL 2436848, at *9–10. As to the alleged

significant effect on foreign affairs, the court agreed that

“[c]limate change is certainly a matter of serious national

and international concern.” Id. at *10. But it found that

defendants did “not actually identify any foreign policy

that was implicated by the City’s claims, much less one

that is necessarily raised.” Id. “They merely point out that

climate change ‘has been the subject of international negotiations for decades.’” Id. Baltimore found that “defendants’ generalized references to foreign policy wholly

fail to demonstrate that a federal question is ‘essential to

resolving’ the City’s state law claims.” Id. (citation omitted).

The Court finds the analysis in Baltimore equally persuasive as to Defendants’ reliance on foreign affairs in this

case, as they point to no specific foreign policy that is essential to resolving the Plaintiffs’ claims. Instead, they

cite only generally to non-binding, international agreements that do not apply to private parties, and do not explain how this case could supplant the structure of such

foreign policy arrangements. Certainly Defendants have

not shown that any interpretation of foreign policy is an

essential element of Plaintiffs’ claims. Gilmore v. Weatherford, 694 F.3d 1160, 1173 (10th Cir. 2012).

The CA I and City of New York decisions do not support Defendants’ argument that the foreign policy issues

raise substantial questions of law. Defendants note, for

example, that the City of New York court dismissed the

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claims there on the merits “for severely infring[ing] upon

the foreign-policy decisions that are squarely within the

purview of the political branches of the U.S. Government.” 325 F. Supp. 3d at 476. But as Defendants have

acknowledged, at least at this stage of these proceedings,

the Court is not considering the merits of Plaintiffs’ claims

or whether they would survive a motion to dismiss, only

whether there is a basis for federal jurisdiction. (See ECF

No. 1 ¶ 20.) While CA I and City of New York may ultimately be relevant to whether Plaintiffs’ claims should be

dismissed, they do not provide a basis for Grable jurisdiction. See Becker v. Ute Indian Tribe of the Uintah and

Ouray Reservation, 770 F.3d 944, 948 (10th Cir. 2014)

(federal law that is alleged as a barrier to the success of a

state law claim “is not a sufficient basis from which to conclude that the questions are ‘necessarily raised’”) (citation

omitted).

Baltimore also rejected cost-benefit analysis and collateral attack arguments as a basis for Grable jurisdiction,

finding that they “miss[ ] the mark.” 2019 WL 2436848, at

*10. This is because the nuisance claims were, as here,

based on the “extraction, production, promotion, and sale

of fossil fuel products without warning consumers and the

public of their known risks”, and did “not rely on any federal statutes or regulations” or violations thereof. Id. “Although federal laws and regulations governing energy production and air pollution may supply potential defenses,”

the court found that federal law was “plainly not an element” of the City’s state law nuisance claims. Id.

The same analysis surely applies here. Plaintiffs’ state

law claims do not have as an element any aspect of federal

law or regulations. Plaintiffs do not allege that any federal

regulation or decision is unlawful, or a factor in their

claims, nor are they asking the Court to consider whether

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the government’s decisions to permit fossil fuel use and

sale are appropriate.

As to jurisdiction under Grable, the Baltimore court

concluded that, “[t]o be sure, there are federal interests in

addressing climate change.” 2019 WL 2436848, at *11

(emphasis in original). “Defendants have failed to establish, however, that a federal issue is a ‘necessary element’

of the City’s state law claims.” Id. (citation omitted) (emphasis in original). Thus, even without considering the remaining requirements for Grable jurisdiction, the Baltimore court rejected the defendants’ assertion that the

case fell within “the ‘special and small category’ of cases

in which federal question jurisdiction exists over a state

law claim. Id. (citation omitted).

Two other courts have recently arrived at the same

conclusion. The court in State of Rhode Island found that

the defendants had not shown that federal law was “‘an

element and an essential one, of the [State]’s cause[s] of

action.’” 2019 WL 3282007, at *4 (citation omitted). Instead, the court noted that the State’s claims “are thoroughly state-law claims”, and “[t]he rights, duties, and

rules of decision implicated by the complaint are all supplied by state law, without reference to anything federal.”

Id. The court concluded:

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. . . .These are, if anything, premature defenses, which even if ultimately decisive, cannot support removal.

Id. (internal citations omitted).

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Similarly, the court in San Mateo found that the defendants had not pointed to a specific issue of federal law

that necessarily had to be resolved to adjudicate the state

law claims. 294 F. Supp. 3d at 938. Instead, “the def

endants mostly gesture to federal law and federal concerns in a generalized way.” Id. The court found that

“[t]he mere potential for foreign policy implications”, the

“mere existence of a federal regulatory regime”, or the

possibility that the claims involved a weighing of costs and

benefits did not raise the kind of actually disputed, substantial federal issue necessary for Grable jurisdiction. Id.

San Mateo concluded, “[o]n the defendants’ theory, many

(if not all) state tort claims that involve the balancing of

interests and are brought against federally regulated entities would be removable”, and “Grable does not sweep

so broadly.” Id.

The Court agrees with the well-reasoned analyses in

Baltimore, State of Rhode Island, and San Mateo, and

adopts the reasoning of those decisions. To the extent Defendants raise other issues not addressed in those cases,

the Court finds that they also are not necessarily raised in

Plaintiffs’ Complaint.

Defendants here assert that Plaintiffs’ claims raise a

significant issue under Grable because they attack the decision of the federal government to enter into contracts

with Defendant ExxonMobil to develop and sell fossil

fuels. (ECF No. 1 ¶ 43.) Further, they argue that the

Complaint seeks to deprive the federal government of a

mechanism for carrying out vital governmental functions,

and frustrates federal objectives. (Id. ¶ 44.)

Plaintiffs’ claims, however, assert no rights under the

contracts referenced by Defendants. Nor do they challenge the contracts’ validity, or require a court to interpret their meaning or importance. The Complaint does

87a

not even mention the contracts. Defendants’ argument

appears to be based solely on their unsupported speculation about the potential impact that Plaintiffs’ success

would have on the government’s ability to continue purchasing fossil fuels. (Id. ¶¶ 43–44.) Even if Defendants’

speculation was well-founded, this would be relevant only

to the substantiality prong of the Grable analysis. See

Bennett v. Sw. Airlines Co., 484 F.3d 907, 910 (10th Cir.

2007). Defendants have not established the first requirement—that the issue is necessarily raised by the Plaintiffs.

b. Substantiality

The Court also finds that the second prong, substantiality, is not met. To determine substantiality, courts

“look[] to whether the federal law issue is central to the

case.” Gilmore, 694 F.3d at 1175. Courts distinguish “between ‘a nearly pure issue of law’ that would govern ‘numerous’ cases and issues that are ‘fact-bound and situation-specific.’” Id. at 1174 (quoting Empire Healthchoice

Assurance, Inc. v. McVeigh, 547 U.S. 677, 700–11 (2006)).

When a case “‘involve[s] substantial questions of state as

well as federal law,’ this factor weighs against asserting

federal jurisdiction.” Id. at 1175 (citation omitted).

The Court finds that the issues raised by Defendants

are not central to Plaintiffs’ claims, and the claims are

“rife with legal and factual issues that are not related” to

the federal issues. See Stark-Romero v. Nat’l R.R. Passenger Co. (Amtrak), No. CIV-09- 295, 2010 WL

11602777, at *8 (D.N.M. Mar. 31, 2010). This case is quite

different from those where jurisdiction was found under

the substantial question prong of jurisdiction. For example, in Grable, “the meaning of the federal statute . . . appear[ed] to be the only legal or factual issue contested in

the case.” 545 U.S. at 315. Similarly, in a Tenth Circuit

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case finding jurisdiction under Grable, “construction of

the federal land grant” at issue “appear[ed] to be the only

legal or factual issue contested in the case.” Nicodemus v.

Union Pac. Corp., 440 F.3d 1227, 1236 (10th Cir. 2006).

Here, it is plainly apparent that the federal issues raised

by Defendants are not the only legal or factual issue contested in the case. Plaintiffs’ claims also do not involve a

discrete legal question, and are “fact-bound and situationspecific,” unlike Grable. See Empire Healthchoice Assurance, 547 U.S. at 701; Bennett, 484 F.3d at 910–11. Finally,

the case does not involve a state-law cause of action that

“is ‘brought to enforce’ a duty created by [a federal statute],” where “the claim’s very success depends on giving

effect to a federal requirement.” Merrill Lynch, Pierce,

Fenner & Smith, Inc. v. Manning, ___U.S. ___, 136 S. Ct.

1562, 1570 (2016).

The cases relied upon by Defendants are distinguishable, as Plaintiffs have shown in their briefing. For example, while Defendants cite Crosby v. National Foreign

Trade Council, 530 U.S. 363 (2000), that case involved

preemption under the Supremacy Clause because of a

conflict between a state law and Congress’s imposition of

sanctions. It did not address Grable jurisdiction, and thus

does not support Defendants’ assertion that it is “irrelevant” to the jurisdictional issue that the “foreign agreements are not ‘essential elements of any claim.’” (ECF

No. 48 at 23.)

Based on the foregoing, the Court finds that federal

jurisdiction does not exist under the second prong of the

“arising under” jurisdiction, because Plaintiffs’ claims do

not necessarily depend on a resolution of a substantial

question of federal law. As Defendants have not met the

first two prongs of the test for such jurisdiction under

Grable, the Court need not address the remaining prongs.

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B. Jurisdiction Through Complete Preemption

Defendants also rely on the doctrine of complete

preemption to authorize removal. Defendants argue that

Plaintiffs’ claims are completely preempted by the government’s foreign affairs power and the Clean Air Act,

which they claim govern the United States’ participation

in worldwide climate policy efforts and national regulation

of GHG emissions.

The complete preemption doctrine is an “independent

corollary’” to the well-pleaded complaint rule. Caterpillar,

482 U.S. at 393. “Once an area of state law has been completely pre-empted, any claim purportedly based on that

pre-empted claim is considered, from its inception, a federal claim, and therefore arises under federal law.” Id.

The complete preemption exception to the well-pleaded

complaint rule is “quite rare,” Dutcher, 733 F.3d at 985,

representing “extraordinary pre-emptive power.” Metro.

Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987). The Supreme Court and the Tenth Circuit have only recognized

statutes as the basis for complete preemption. See, e.g.,

Caterpillar, 482 U.S. at 393 (the doctrine “is applied primarily in cases raising claims pre-empted by § 301 of the”

Labor Management Relations Act (“LMRA”)); Devon

Energy, 693 F.3d at 1204–05 (complete preemption is “so

rare that the Supreme Court has recognized compete

preemption in only three areas: § 301 of the [LMRA],

§ 502 of [the Employee Retirement Income Security

Act],” and actions for usery under the National Bank Act).

Complete preemption is ultimately a matter of Congressional intent. Courts must decipher whether Congress intended a statute to provide the exclusive cause of

action. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1,

9 (2003); Metro. Life Ins. Co., 481 U.S. at 66 (“the touchstone of the federal district court’s removal jurisdiction is

90a

not the ‘obviousness’ of the pre-emption defense, but the

intent of Congress”). If Congress intends preemption

“completely to displace ordinarily applicable state law,

and to confer federal jurisdiction thereby, it may be expected to make that atypical intention clear.” Empire

Healthchoice Assurance, 547 U.S. at

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