Amicus Curiae Brief — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. Board of County Commissioners of Boulder County, et al.

No. 21-1550

IN THE

Supreme Court of the United States

____________________________________

SUNCOR ENERGY (U.S.A.) INC., ET AL.,

Petitioners,

v.

BOARD OF COUNTY COMMISSIONERS

OF BOULDER COUNTY, ET AL.,

Respondents.

____________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

____________________________________

BRIEF OF INDIANA AND 15 OTHER

STATES AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

____________________________________

Office of the

THEODORE E. ROKITA

Attorney General

Attorney General

302 W. Washington St. THOMAS M. FISHER*

Indianapolis, IN 46204 Solicitor General

(317) 232-6255

JAMES A. BARTA

Tom.Fisher@atg.in.gov

Deputy Solicitor General

JULIA C. PAYNE

*Counsel of Record

MELINDA R. HOLMES

Deputy Attorneys General

Counsel for Amici States

Additional counsel listed in addendum

QUESTIONS PRESENTED

1. Whether federal common law necessarily and

exclusively governs claims seeking redress for

injuries allegedly caused by the effect of interstate

greenhouse-gas emissions on the global climate.

2. Whether a federal district court has jurisdiction under 28 U.S.C. § 1331 over claims necessarily

and exclusively governed by federal common law but

labeled as arising under state law.

(i)

ii

TABLE OF CONTENTS

Interest of the Amici States ..................................... 1

Argument.................................................................. 1

I. Whether Federal Law Necessarily

Governs Nuisance Claims for Global

Greenhouse-Gas Emissions Affects

Important State Interests ................................ 3

A. Basic federalism values require the

application of federal law to disputes

involving transboundary emissions ........... 4

B. Review is warranted to protect state

prerogatives to pursue different

emissions policies within their borders ... 10

II. The Decision Below Is Wrong ........................ 13

A. Boulder’s nuisance claims to abate

global climate change are removable ....... 13

B. The Clean Air Act does not change

the governing rule of decision .................. 15

Conclusion .............................................................. 20

iii

TABLE OF AUTHORITIES

CASES

Am. Elec. Power Co., Inc. v.

Connecticut, 564 U.S. 410 (2011) ............... passim

Avco Corp. v. Aero Lodge No. 735,

390 U.S. 557 (1968) ............................................ 15

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ............................................ 15

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1982) ...................................6, 10, 11

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) ............................................ 19

City & Cnty. of Honolulu v. Sunoco LP,

No. 1CCV-20-0000380 (JPC), Order

Denying Mot. to Dismiss (Haw. Cir.

Ct. Mar. 29, 2022) .............................................. 12

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) .....................................6, 7, 16

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) .......................... passim

City of Oakland v. BP PLC,

696 F.3d 895 (9th Cir. 2020)................................ 9

Duquesne Light Co. v. EPA,

698 F.2d 456 (D.C. Cir. 1983) .............................. 5

Fisher v. Zumwalt, 61 P. 82 (Cal. 1900) ................... 4

Healy v. Beer Inst. Inc.,

491 U.S. 324 (1989) ............................................ 10

iv

CASES [CONT’D]

Holman v. Athens Empire Laundry Co.,

100 S.E. 2073 (Ga. 1919) ..................................... 4

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

139 S. Ct. 1743 (2019)........................................ 14

Huron Portland Cement Co. v. City of

Detroit, 362 U.S. 440 (1960) ............................ 3, 4

Illinois v. City of Milwaukee,

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

Illinois v. City of Milwaukee,

731 F.2d 403 (7th Cir. 1984)...........................9, 16

Int’l Paper Co. v. Ouellette,

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

Kansas v. Colorado, 206 U.S. 46 (1907) ..............6, 11

Kurns v. RR. Friction Prods. Corp.,

565 U.S. 625 (2012) .............................................. 9

Massachusetts v. EPA,

549 U.S. 497 (2007) ............................................ 10

Matthews v. Stillwater Gas & Elec.

Light Co., 65 N.W. 947 (Minn. 1896) .................. 4

Mobil Oil Corp. v. Higginbotham,

436 U.S. 618 (1978) ............................................ 16

Nat’l Pork Producers Council v. Ross,

142 S. Ct. 1413 (2022)........................................ 10

Native Village of Kivalina v.

ExxonMobil Corp., 663 F. Supp. 2d

863 (N.D. Cal. 2009) .......................................... 12

North Carolina ex rel. Cooper v. Tenn.

Valley Auth., 615 F.3d 291

(4th Cir. 2010) .................................................... 12

v

CASES [CONT’D]

Nw. Laundry v. City of Des Moines,

239 U.S. 486 (1916) .............................................. 4

In re Otter Tail Power Co.,

116 F.3d 1207 (8th Cir. 1997)............................ 18

Rivet v. Regions Bank of La.,

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

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

117 F.3d 922 (5th Cir. 1997).............................. 18

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) .............................................. 4

Texas v. Pankey, 441 F.2d 236

(10th Cir. 1971) .................................................... 6

Texas Indus., Inc. v. Radcliff Materials,

Inc., 451 U.S. 630 (1981) ................................6, 17

Train v. Nat. Res. Def. Council, Inc.,

421 U.S. 60 (1975)............................................ 4, 5

United States v. Standard Oil Co. of

Cal., 332 U.S. 301 (1974) ..............................17, 18

West Virginia v. EPA, 597 U.S. __,

No. 20-1530 (2022) ........................................11, 17

STATUTES

Clean Air Act, 42 U.S.C. § 7401, et seq............ passim

42 U.S.C. § 7401 ................................................... 3

42 U.S.C. § 7401(a)(3) .......................................... 5

42 U.S.C. § 7410(a) .............................................. 5

42 U.S.C. § 7410(a)(1) ........................................ 17

vi

STATUTES [CONT’D]

42 U.S.C. § 7412(l )............................................... 5

42 U.S.C. § 7661a ................................................. 5

28 U.S.C. § 1331 .................................................14, 18

28 U.S.C. § 1331(a)...............................................6, 14

28 U.S.C. § 1441(a).............................................14, 18

Ind. Code § 13-17-1-1 ...........................................5, 11

N.H. Stat. § 125-C:1 .................................................. 5

Wash. Stat. § 70A.15.1005 ........................................ 5

OTHER AUTHORITIES

Sup. Ct. R. 37.2(a) ..................................................... 1

19 C. Wright & A. Miller, Fed. Prac. &

Proc. Jurisdiction and Related

Matters § 4514 (3d ed. 2021) ............................. 14

INTEREST OF THE AMICI STATES*

The States of Indiana, Alabama, Alaska, Arkansas,

Georgia, Kansas, Kentucky, Mississippi, Missouri,

Montana, Nebraska, Oklahoma, South Carolina,

Texas, Utah, and Wyoming respectfully submit this

brief as amici curiae in support of petitioners. The

court of appeals’ ruling that nuisance claims to abate

global climate change must proceed in state court

under state law is of significant interest to amici.

That ruling threatens to let a single State’s judiciary

set climate-change policy for other States. If replicated in other similar lawsuits (many of which are

pending throughout the country), it threatens to subject energy companies—and other contributors to

greenhouse-gas emissions—to multiple vague and

conflicting rules governing the extraction, production,

and promotion of fossil fuels (among a potentially

infinite array of supposed “public nuisances”). The

threatened regulatory chaos undermines the coequal

sovereignty of each State to regulate emissions within

their respective borders. Amici States have a profound interest in, and critical perspective on, the

proper role of state law and state courts in addressing

global emissions and climate change.

ARGUMENT

This case is one of many where local governments

have alleged common-law nuisance claims against a

few energy companies for contributing to global climate change by extracting, producing, and promoting

fossil-fuel products. States and localities have

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

all parties received notice of amici’s intention to file this brief at

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

*

2

asserted similar claims in at least 23 other cases filed

around the country.

State-court public-nuisance lawsuits seeking to

“redress” global climate change are a menace to

coherent law, politically accountable government, and

federalism. To be sure, state courts are critical for

remedying local injuries arising from local conduct.

But their capacities to evaluate the costs and benefits

of local economic activity makes them ill-suited to

impose standards for greenhouse gases emitted elsewhere, even if those out-of-state emissions have some

attenuated local effect. As the Second Circuit observed, mitigating liability for the effects of global

greenhouse-gas emissions would require energy companies to act differently not just in California, Colorado, or New York but in “every state (and country).”

City of New York v. Chevron Corp., 993 F.3d 81, 92 (2d

Cir. 2021) (emphasis added).

Nuisance claims to abate global climate change

thus necessarily present “an interstate matter raising

significant federalism concerns.” City of New York,

993 F.3d at 92. A cardinal rule of federalism is that

no single State may impose its policy preferences on

other States. Accordingly, as the Court recognized a

half century ago, applying state law to nuisance

claims over transboundary pollution undermines

“basic interests of federalism.” Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6 (1972). The result would

be chaotic state common-law policies and inconsistent

rules and standards. Respect for federalism requires

that nuisance claims confronting global climate

3

change be resolved under federal law, rendering those

claims removable to federal court.

In conflict with the Second Circuit, however, the

Tenth Circuit below held that nuisance claims for

global climate change arise under state law and must

proceed in state court. That decision cries out for

review. It threatens to let a few States set national

climate policy—or, more likely, multiple, inconsistent

policies—via their own courts. To protect the interests

of other sovereign States, the Court should intervene

to make clear that federal—not state—law necessarily and exclusively governs nuisance claims concerning global emissions and global climate change.

I. Whether Federal Law Necessarily Governs

Nuisance Claims for Global Greenhouse-Gas

Emissions Affects Important State Interests

States have long had the sovereign responsibility

to regulate emissions emanating from within their

borders. The Court itself has observed that pollution

regulation “clearly falls within the exercise of even

the most traditional concept of . . . the police power.”

Huron Portland Cement Co. v. City of Detroit, 362

U.S. 440, 442 (1960). Even today, the Clean Air Act

(CAA), 42 U.S.C. § 7401, et seq., affords States

considerable flexibility in setting emissions policy for

in-state sources. Preserving the regulatory prerogatives of all States requires that state law reach no

further than the state line. Applying state common

law to disputes over emissions (and pre-emission

economic activity) occurring in other States would

allow one State to set policy for all the rest, contrary

to the constitutional design. Only federal law is

4

competent to resolve such transboundary disputes.

The Tenth Circuit’s contrary ruling that claims concerning global greenhouse-gas emissions can proceed

under state law in state court jeopardizes important

state interests.

A. Basic federalism values require the application of federal law to disputes involving transboundary emissions

1. States have long been responsible for regulating pollution sources within their borders. See Solid

Waste Agency of N. Cook Cnty. v. U.S. Army Corps of

Eng’rs, 531 U.S. 159, 174 (2001); Huron Portland, 362

U.S. at 442; Nw. Laundry v. City of Des Moines, 239

U.S. 486, 491–92 (1916). For decades, States and local

governments have enacted ordinances to abate dense

smoke from furnaces in parts of cities, see, e.g., Nw.

Laundry, 239 U.S. at 489–90, 492, or permitted

nuisance suits to redress injuries from noxious smoke,

odors, and gasses emitted by local industries, see, e.g.,

Holman v. Athens Empire Laundry Co., 100 S.E. 207,

210–13 (Ga. 1919); Fisher v. Zumwalt, 61 P. 82, 82–

84 (Cal. 1900); Matthews v. Stillwater Gas & Elec.

Light Co., 65 N.W. 947, 948 (Minn. 1896). States’

historic police power extends to enacting “[l]egislation

designed to free from pollution the very air that

people breathe.” Huron Portland, 362 U.S. at 442.

The States’ role as regulators of local air pollution

continues today under the Clean Air Act (CAA), a

comprehensive (and cooperative) regulatory scheme.

See Train v. Nat. Res. Def. Council, Inc., 421 U.S. 60,

64 (1975). Under the CAA, States have “primary responsibility” for controlling emissions “at [their]

5

source.” 42 U.S.C. § 7401(a)(3). The CAA authorizes

States to develop their own plans and permitting

programs for achieving federal air quality standards

“within [a] State.” See, e.g., id. §§ 7410(a), 7412(l ),

7661a. That approach allows States to “tailor standards” to “local conditions and needs,” Duquesne Light

Co. v. EPA, 698 F.2d 456, 471 (D.C. Cir. 1983), “balanc[ing]” environmental goals against “competing interests,” Am. Elec. Power Co., Inc. v. Connecticut, 564

U.S. 410, 427 (2011) (AEP ); see Train, 421 U.S. at 64.

And as state statutes reflect, a wide variety of

interests bears on state regulatory decisions, including air purity, “public health,” “public enjoyment,”

available “resources,” “flora and fauna,” “employment,” “industrial development,” and “practical and

economic[] feasib[ility].” Ind. Code § 13-17-1-1; see,

e.g., N.H. Stat. § 125-C:1; Wash. Stat. § 70A.15.1005.

2. By contrast, regulation of interstate pollution

has long been a matter for “federal, not state, law.”

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

see AEP, 564 U.S. at 421–22. Even before the advent

of federal environmental statutes employing “cooperative federalism,” federal courts recognized territorial

limits to state environmental policies. “For over a

century,” this Court has “applied federal law to disputes involving interstate air or water pollution.” City

of New York, 993 F.3d at 91 (collecting cases); see

AEP, 564 U.S. at 421–22 (collecting additional cases).

In Illinois v. City of Milwaukee, 406 U.S. 91 (1972)

(Milwaukee I ), for example, this Court considered

whether a nuisance claim for “pollution of interstate

or navigable waters” was governed by federal common

6

law and “ar[ose] under the ‘laws’ of the United States”

within the meaning of 28 U.S.C. §1331(a)—and held

“that it d[id].” 406 U.S. at 99. “‘[T]he ecological rights

of a State in the improper impairment of them from

sources outside the State’s own territory,’” it ruled, is

“‘a matter having basis and standard in federal common law.’” Id. at 99–100 (quoting Texas v. Pankey, 441

F.2d 236, 240 (10th Cir. 1971)). It necessarily rejected

that state law could “be used.” City of Milwaukee v.

Illinois, 451 U.S. 304, 313 n.7 (1981) (Milwaukee II ).

Milwaukee I ’s holding that federal law governs

nuisance claims related to “air and water in their

ambient or interstate aspects,” 406 U.S. at 103,

follows from “the basic scheme of the Constitution,”

AEP, 564 U.S. at 421. A “cardinal rule, underlying all

the relations of the states to each other, is that of

equality of right.” Kansas v. Colorado, 206 U.S. 46, 97

(1907). “[N]o single State” has “authority to enact

. . . policy for the entire Nation . . . or even impose its

own policy choice on neighboring States.” BMW of N.

Am., Inc. v. Gore, 517 U.S. 559, 571 (1982). “[O]ur

federal system” therefore “does not permit” interstate-pollution disputes “to be resolved under state

law.” Texas Indus., Inc. v. Radcliff Materials, Inc., 451

U.S. 630, 641 & n.13 (1981). An “overriding federal

interest in . . . a uniform rule of decision” and “basic

interests of federalism” “require[] [courts] to apply

federal law” instead. Milwaukee I, 406 U.S. at 105 n.6.

In American Electric Power Co. v. Connecticut, 564

U.S. 410 (2011) (AEP ), the Court recognized that

principle’s enduring nature. “Environmental protection,” it explained, is “undoubtedly” an area “meet for

7

federal law governance” in which federal courts “may

fill in ‘statutory interstices,’ and, if necessary, even

‘fashion federal law.’” 564 U.S. at 421–22. That is why

the Court has for more than 120 years “approved

federal common-law suits brought by one State to

abate pollution emanating from another State.” Id. at

421. It has applied federal common law precisely because “borrowing the law of a particular State would

be inappropriate.” Id. Where “federal common law

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

Milwaukee II , 451 U.S. at 313 n.7.

3. Applying federal law to disputes involving

transboundary pollution is essential to protect each

State’s freedom to pursue different policies within its

own jurisdiction. As the Court has recognized,

applying an affected State’s law extraterritorially to

out-of-state sources would “effectively override” the

“policy choices made by the source State.” Ouellette,

479 U.S. at 495. It “would compel the source to adopt”

whichever state standards were most stringent,

without regard to how other States have “weigh[ed]”

the regulatory “costs and benefits.” Id. The “inevitable

result” of applying state law to ambient air or water

pollution would be to let one or two States dictate

environmental policy for other sovereign States. Id.

Such extraterritorial regulation would lead to

“chao[s].” Ouellette, 479 U.S. at 496–97. To determine

liability, any court considering public nuisance claims

would need to find a “right” to the climate—in all of

its infinite variations—as it stood at some unspecified

time in the past, then find not only that this idealized

climate has changed (for the worse—whatever that

8

might mean), but that the defendants caused that

change through “unreasonable” action. And, as a remedy, the court would need to impose a regulatory

scheme—balancing the gravity of the alleged harms

against the utility of each defendant’s conduct—on

fossil fuel extraction, production, promotion, and

emission that are already subject to comprehensive

state and federal regulation. No principled, judicially

administrable standards exist for that undertaking,

and no national political accountability exists for

state courts who embrace it anyway.

Applying state nuisance law, moreover, would pit

state policies against one another. Suppose a Colorado court were to rule that CO2 emissions from

power plants constitute a nuisance under state tort

law and require energy producers outside Colorado to

cap and reduce production by a specified percentage

each year for a decade. See AEP, 564 U.S. at 418–19

(describing a similar injunction requested under state

and federal tort law). Such a ruling—made without

the benefit of the “scientific, economic, and technological resources” of federal and state regulators—

would effectively override regulatory decisions made

by other States. Id. at 426–28. And it could subject

those States to dire consequences: An injunction

might force power plants nationwide to shut down or

reduce generation, which could in turn disrupt state

economies and even subject citizens to blackouts. Cf.

id. at 427.

Even remedies short of injunctive relief could be

nationally devastating. Suppose a Colorado court

were to award damages against energy companies for

9

injuries allegedly stemming from “fossil fuel emissions no matter where in the world those emissions

were released.” City of New York, 993 F.3d at 93. Such

a damages award—which might require companies

“to spend billions of dollars,” City of Oakland v. BP

PLC, 696 F.3d 895, 907 (9th Cir. 2020)—could be as

“‘potent [a] method of governing conduct and controlling policy”’ as an injunction, Kurns v. RR. Friction

Prods. Corp., 565 U.S. 625, 637 (2012). Avoiding liability would require companies “to cease global [fossilfuel] production altogether.” City of New York, 993

F.3d at 93. That would set Colorado nuisance law

against the choices other States have made to encourage oil, gas, or coal production or to permit fossil

fuels’ use.

“And even if some level of ongoing liability were

deemed palatable, a significant damages award would

no doubt ‘compel[]’” companies to ratchet up “‘pollution control’” beyond what is required where they

operate. City of New York, 993 F.3d at 93 (quoting

Ouellette, 479 U.S. at 495, 498 n. 19). The balances

other States have already struck among controlling

pollution, promoting economic development, and

ensuring energy security would be upended. See id. In

short, resolving transboundary-pollution disputes

under state law—State, by State, by State—would

result in “‘chaotic confrontation’” between the various

public policies of “‘sovereign states.’” Ouellette, 479

U.S. at 496 (quoting Illinois v. City of Milwaukee, 731

F.2d 403, 414 (7th Cir. 1984)).

10

B. Review is warranted to protect state

prerogatives to pursue different emissions policies within their borders

The Court has already recognized the importance

of examining the extent to which state statutory law

can affect economic transactions and conduct occurring wholly beyond a State’s borders—including

during October Term 2022. See, e.g., Nat’l Pork Producers Council v. Ross, 142 S. Ct. 1413 (2022); BMW,

517 U.S. 559; Healy v. Beer Inst. Inc., 491 U.S. 324

(1989). It is no less important to address whether

state common law can apply extraterritorially as a

means of redressing global climate change.

This case “touches” the same “basic interests of

federalism” as other transboundary-pollution cases.

Milwaukee I, 406 U.S. at 105 n.6. Boulder’s nuisance

claims are for injuries allegedly caused by “climate

change.” Pet. App. 3a. As Boulder’s own complaint

establishes, however, climate change is a global issue

caused by conduct worldwide. Boulder complains of

injuries allegedly caused by a “warming” planet and

increasing “global temperatures,” C.A. App. 105–

106—injuries that are by definition “‘widely shared,’”

Massachusetts v. EPA, 549 U.S. 497, 523 (2007). But

Boulder does not—and cannot—allege that the four

companies it singled out for suit are responsible for

all, or even most, greenhouse-gas emissions worldwide. Nor does Boulder allege that the “multinational” companies it sued undertook all challenged

conduct in Colorado. C.A. App. 84, 90. In fact, Boulder

admits that Exxon produces in Colorado only a tiny

11

fraction of the “billions of barrels of oil” it sources from

myriad locations worldwide. Id. at 92 & n.7, 99.

Even so, Boulder asks Colorado courts applying

Colorado law to impose liability. As the Second Circuit has recognized, that raises obvious “foreign policy” and “federalism” concerns. City of New York, 993

F.3d at 92–93. To avoid liability for Boulder’s alleged

injuries, the defendant energy companies would have

to alter their conduct in “every state (and country)” in

which they extract, produce, and market fossil fuels.

Id. at 92. Yet Boulder seeks to have Colorado courts

applying Colorado law determine how the companies’

conduct should change. It effectively asks a single

State’s judiciary to set global climate-change policy.

The injury to other States’ interests is transparent. As described above, States have a variety of

carefully calibrated regulatory programs to “restrict[]

emissions from sources within their borders.” West

Virginia v. EPA, 597 U.S. __, No. 20-1530, slip op. at

2 (2022); see pp. 4–5, supra. And those programs consider a variety of environmental, economic, and other

local interests, striking different balances. See, e.g.,

Ind. Code § 13-17-1-1. To let Colorado’s judiciary impose liability for actions undertaken in other States

would “effectively override” the “policy choices made

by the source State.” Ouellette, 479 U.S. at 495; see pp.

7–9, supra. That offends a “cardinal rule” of federalism, Kansas, 206 U.S. at 97: In our federal system, “no

single State” may “impose its own policy choice on

neighboring States,” BMW, 517 U.S. at 571.

Worse, Boulder is not alone in urging state courts

to address the complex issue of global climate change.

12

At least “23 related cases are pending in federal

courts nationwide,” Pet. 8—and there have been multiple other attempts to use state nuisance law to abate

climate change, see, e.g., AEP, 564 U.S. at 418; City of

New York, 993 F.3d at 85; Native Village of Kivalina

v. ExxonMobil Corp., 663 F. Supp. 2d 863, 869 (N.D.

Cal. 2009), aff’d 696 F.3d 849 (9th Cir. 2012). Those

attempts will continue, particularly if the current

plaintiffs enjoy success in their own state courts.

It is, moreover, likely that some state courts will

be receptive, for public nuisance law is notoriously

“‘vague’” and “‘indeterminate,’” Ouellette, 479 U.S. at

496, providing “almost no standard of application,”

North Carolina ex rel. Cooper v. Tenn. Valley Auth.,

615 F.3d 291, 302 (4th Cir. 2010); see City of New

York, 993 F.3d at 97–98. One state court has already

refused to dismiss nuisance claims for greenhouse-gas

emissions and climate change. See City & Cnty. of

Honolulu v. Sunoco LP, No. 1CCV-20-0000380 (JPC),

Order Denying Mot. to Dismiss (Haw. Cir. Ct. Mar.

29, 2022), leave for interlocutory appeal granted.

The mere fact that this case arises in the removal

context does not diminish its importance. An essential

premise of the decision below is that “claims related

to climate change” may be brought under “‘state nuisance law.’” Pet. App. 24a–25a, 30a. The Tenth

Circuit rejected arguments that “‘federal common law

supplies the rule of decision for [such] claims.’” Id. at

31a. Whether federal or state law governs nuisance

claims for harms from transboundary emissions is

squarely presented.

13

Nor does the distant prospect that the energy companies might be able to assert a successful preemption defense under the CAA undercut the need for

review. The issue here is fundamental: whether the

“basic scheme of the Constitution” requires that

public-nuisance claims to abate global greenhousegas emissions be resolved under federal law, irrespective of how plaintiffs label them or what statutory

defenses might (or might not) be available. AEP, 564

U.S. at 421. Review is important to safeguard each

State’s authority to regulate within its borders.

II. The Decision Below Is Wrong

The Tenth Circuit erred in holding that Boulder’s

nuisance claims to abate global greenhouse-gas emissions arose under state law and must proceed in state

court. Those claims necessarily arise under federal

law, rendering them removable to federal court.

A. Boulder’s nuisance claims to abate

global climate change are removable

As discussed above (pp. 5–7, supra), the Court has

repeatedly “approved” the application of federal

common law to suits “to abate pollution emanating

from another State.” Am. Elec. Power Co., Inc. v.

Connecticut, 564 U.S. 410, 421 (2011) (AEP). It has

recognized that an “overriding federal interest in . . .

a uniform rule of decision” and “basic interests of

federalism” “require[] [courts] to apply federal law” to

transboundary-pollution claims, such as claims to

abate “pollution of a body of water . . . bounded” by

multiple States. Illinois v. City of Milwaukee, 406 U.S.

91,105 n.6. (1972) (Milwaukee I ). Thus, “[w]hen we

deal with air and water in their ambient or interstate

14

aspects, there is a federal common law.” Id. at 103.

“[F]ederal”—not state—“law governs.” Id. at 107; see

also id. at 102, 107 n.9.

The rule that federal law governs nuisance claims

for transboundary pollution applies with equal force

to Boulder’s nuisance claims over global emissions—

rendering such claims removable. See pp. 5–11, supra.

Defendants may remove any case over which a federal

district court would have “original jurisdiction,” 28

U.S.C. § 1441(a), including cases presenting claims

“arising under the Constitution, laws, or treaties of

the United States,” id. § 1331; see Home Depot U.S.A.,

Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019). And a

“case ‘arising under’ federal common law presents a

federal question and as such is within the original

subject matter jurisdiction of the federal courts.” 19

C. Wright & A. Miller, Fed. Prac. & Proc. Jurisdiction

and Related Matters § 4514 (3d ed. 2021).

Milwaukee I makes particularly clear that federal

courts have jurisdiction here. There, the Court held

that “nuisance” claims for “pollution of interstate or

navigable waters creates actions arising under the

‘laws’ of the United States within the meaning of

§ 1331(a),” the statute providing federal-question

jurisdiction. 406 U.S. at 99. As the Court explained,

such claims “require[]” application of federal law—

just like state disputes over “boundaries” and “interstate streams,” which have long “‘been recognized as

presenting federal questions.’” Id. at 105 & n.6. Such

claims have their “‘basis and standard in federal

common law and so directly constitut[e] a question

15

arising under the laws of the United States.’” Id. at

99–100. The same is true here.

The mere fact that Boulder does not expressly

assert claims under federal common law is immaterial. Under the artful-pleading doctrine, a “‘plaintiff

may not defeat removal by omitting to plead necessary federal questions.’” Rivet v. Regions Bank of La.,

522 U.S. 470, 475 (1998). Thus, where—as here—a

claim is “controlled by federal substantive law,” it

may be removed to federal court, Avco Corp. v. Aero

Lodge No. 735, 390 U.S. 557, 560 (1968), “even though

no federal question appears on the face of the

plaintiff’s complaint,” Rivet, 552 U.S. at 475. Where,

as here, the rules of decision “must be determined

according to federal law,” “state courts [are] not left

free to develop their own doctrines.” Banco Nacional

de Cuba v. Sabbatino, 376 U.S. 398, 426–27 (1964).

Boulder cannot evade federal law or federal jurisdiction by unilaterally declaring that its claims arise

under state law.

B. The Clean Air Act does not change the

governing rule of decision

The Tenth Circuit’s contrary ruling rests on a

misapprehension of the CAA. The court admitted the

existence of a “‘federal common law’ concerning ‘air

and water in their ambient or interstate aspects.’”

Pet. App. 25a. Yet, “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,” rendering it

improper to remove claims formerly governed by it.

Id. at 29a–30a.

16

That misapprehends the CAA’s effect. Through

the CAA, Congress transferred responsibility for setting interstate standards from the federal judiciary to

other branches of the federal government. See AEP,

564 U.S. at 423–25. It made plain that “‘federal

courts’” are no longer to engage in “‘law-making,’” id.

at 423 (quoting City of Milwaukee v. Illinois, 451 U.S.

304, 314 (1981) (Milwaukee II )), or “‘supplement’ Congress’ answer” for ambient emissions, Mobil Oil Corp.

v. Higginbotham, 436 U.S. 618, 625 (1978). It is, however, “too strange to seriously contemplate” that the

CAA somehow paved the way for state courts to apply

state law to interstate emissions. City of New York v.

Chevron Corp., 993 F.3d 81, 99 (2d Cir. 2021). The

reason that this Court long applied “federal common

law” to transboundary-pollution claims is that “state

law cannot be used.” Milwaukee II, 451 U.S. at 313 n.7.

Indeed, “the very reasons the Court gave for

resorting to federal common law in Milwaukee I are

the same reasons why the state claiming injury cannot apply its own state law to out-of-state [emissions]

now.” Illinois v. City of Milwaukee, 731 F.2d 403, 410

(7th Cir. 1984). In Milwaukee I, this Court recognized

that (among other things) “basic interests of federalism” “require[]” the application of federal law to nuisance claims for transboundary pollution. 406 U.S. at

105 n.6. Nothing in the CAA alters those interests. In

AEP, this Court reiterated that “borrowing the law of

a particular State” to resolve a claim to abate

greenhouse-gas emissions “would be inappropriate.”

564 U.S. at 422. Applying state law to such claims

would contravene “the basic scheme of the

17

Constitution.” Id. at 421; see Texas Indus. Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 & n.13 (1981).

To be sure, “citing” the principle that “the Clean

Water Act does not preclude aggrieved individuals

from bringing a ‘nuisance claim pursuant to the law

of the source State,’” AEP stopped short of holding

state law has no role under the CAA. Pet. App. 28a.

But the fact that the CAA authorizes a State to

regulate emissions sources “within such State” does

not imply state law governs emissions emanating

from another State. 42 U.S.C. § 7410(a)(1); see Int’l

Paper Co. v. Ouellette, 479 U.S. 481, 490–500 (1987).

Moreover, under the CAA, States exercise their

authority under a federal-law framework that gives

“primary” responsibility for “greenhouse gas emissions” to a federal agency. AEP, 564 U.S. at 428; see

Virginia v. EPA, 597 U.S. __, No. 20-1530, slip op. at

6 (2022) (“EPA itself still retains the primary

regulatory role in Section 111(d)”). In short, the CAA

does not alter the rule that federal law necessarily

governs any nuisance claims to abate transboundary

emissions, making removal proper here.

The Tenth Circuit also commented that “it is unclear” whether federal common law would permit

Boulder to bring claims against sellers of fossil-fuel

products even absent the CAA. Pet. App. 29a n.5. Any

lack of clarity about the content of federal common

law, however, is no reason to refuse to apply it.

Where—as here—federal common law supplies the

governing rule of decision, federal courts must apply

that law. See Texas Indus., 451 U.S. at 641; United

States v. Standard Oil Co. of Cal., 332 U.S. 301, 305

18

(1974). Federal courts may ultimately determine that

federal common law affords no remedy for an alleged

wrong. See, e.g., Standard Oil, 332 U.S. at 313–16.

But that does not change the source of the governing

law. Federal common law still controls.

Finally, the Tenth Circuit took the position that

Boulder’s putative state-law claims should proceed in

state court even if they arose under federal common

law. Pet. App. 31a–32a. In its view, courts should not

“look behind” the plaintiff’s assertion that a claim

arises under state law absent a federal statute that

provides for “complete preemption” of state law. Id. As

other courts have perceived, however, a plaintiff cannot defeat removal of a claim necessarily arising

under federal common law by invoking state law. See

Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922,

924–29 (5th Cir. 1997); In re Otter Tail Power Co., 116

F.3d 1207, 1212–14 (8th Cir. 1997). For example, in

Sam L. Majors Jewelers, the Fifth Circuit upheld

removal of a putative state-law claim against air

carriers for lost or damaged goods. 117 F.3d at 924–

29. Even though no federal statute provided for “complete preemption,” the court determined that the

claim “arose under federal common law” and thus was

removable to federal court. Id. at 926–29.

The Tenth Circuit’s contrary approach makes no

sense. The general removal provision, 28 U.S.C.

§ 1441(a), permits removal whenever federal courts

have “original jurisdiction” over a civil action. Neither

it nor 28 U.S.C. § 1331, which provides original

jurisdiction over federal questions, distinguishes between claims that necessarily arise under federal

19

statutes and federal common law. See Milwaukee I,

406 U.S. at 99–100. Nor is the need for a federal forum

any less where a claim necessarily arises under

federal common law instead of a federal statute,

particularly where the claims raise issues of state

authority to regulate extraterritorially. It is proper

for claims exclusively governed by federal common

law to be resolved in federal court.

*

*

*

For decades, this Court has recognized that in

certain “area[s] of uniquely federal interest,” if there

is going to be policymaking via common-law adjudication, it must be done in accordance with federal

common law. Boyle v. United Techs. Corp., 487 U.S.

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

integrity of federal regulatory schemes. It also

preserves the place of all States in the policymaking

process by preventing a single State’s courts from

making law for the entire country. It ensures that the

ultimate decision over any national rule is made by

Justices appointed by a President elected by the

nation’s voters and confirmed by a Senate in which

each State has equal representation. The decision

below, however, undermines that principle: It allows

a plaintiff to avoid federal-court scrutiny of claims

that necessarily arise under federal common law by

simply declaring that those claims arise under state

law. Every State has an interest in seeing the Court

correct this decision. The Court should do so.

20

CONCLUSION

The petition for writ of certiorari should be

granted.

Respectfully submitted,

Office of the

Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

THEODORE E. ROKITA

Attorney General

THOMAS M. FISHER*

Solicitor General

JAMES A. BARTA

Deputy Solicitor General

JULIA C. PAYNE

MELINDA R. HOLMES

Deputy Attorneys General

Counsel for Amici States

Dated: July 11, 2022

21

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

ERIC SCHMITT

Attorney General

State of Missouri

TREG TAYLOR

Attorney General

State of Alaska

AUSTIN KNUDSEN

Attorney General

State of Montana

LESLIE RUTLEDGE

Attorney General

State of Arkansas

DOUG PETERSON

Attorney General

State of Nebraska

CHRISTOPHER M. CARR

Attorney General

State of Georgia

JOHN M. O’CONNER

Attorney General

State of Oklahoma

DEREK SCHMIDT

Attorney General

State of Kansas

ALAN WILSON

Attorney General

State of South Carolina

DANIEL CAMERON

Attorney General

Commonwealth of

Kentucky

KEN PAXTON

Attorney General

State of Texas

LYNN FITCH

Attorney General

State of Mississippi

SEAN D. REYES

Attorney General

State of Utah

BRIDGET HILL

Attorney General

State of Wyoming