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

Supreme Court briefJul 11, 2022

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No. 21-1550

IN THE

Supreme Court of the United States

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

Petitioners,

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 FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE

SUPPORTING PETITIONERS

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

July 11, 2022

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

wjay@goodwinlaw.com

(202) 346-4000

TABLE OF CONTENTS

PAGE

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

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

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

II.

This Court should grant certiorari on

the first question presented to reconcile

conflicting decisions on whether federal

common law applies to claims based on

alleged global emissions. .................................. 4

Federal common law governs

where a dispute implicates

interstate and international

interests.................................................. 6

Displacement does not cause a

federal-common-law claim

regarding global climate change

to lose its federal “character.”.............. 11

The practical problems created by

allowing inherently federal

claims for climate change to be

recast as state-law claims will

only worsen without immediate

review. .................................................. 13

This Court should grant certiorari on

the second question presented to resolve

the split over the use of artful pleading

to conceal claims governed by federal

common law. ................................................... 16

CONCLUSION .......................................................... 23

TABLE OF AUTHORITIES

PAGE(S)

CASES

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ................. 8, 9, 10, 12, 20, 21

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ............................................. 7

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ........................................... 16

City of Milwaukee v. Illinois (Milwaukee II),

451 U.S. 304 (1981) ..................... 7, 10, 11, 12, 13

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

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

City of N.Y. v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) .................... 12, 15, 20

Cnty. of Oneida v.

Oneida Indian Nation of N.Y.,

470 U.S. 226 (1985) ............................................. 7

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) ............................................... 6

Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394 (1981) ........................................... 22

Franchise Tax Bd. v. Constr. Laborers

Vacation Tr. for S. Cal.,

463 U.S. 1 (1983) ............................................... 16

Fry v. Napoleon Cmty. Schs.,

137 S. Ct. 743 (2017) ......................................... 17

Grable & Sons Metal Prods, Inc. v.

Darue Eng'g and Mfg.,

545 U.S. 308 (2005) ........................................... 21

Hinderlider v. La Plata River &

Cherry Creek Ditch Co.,

304 U.S. 92 (1938) ..................................... 7, 8, 12

Holmes Grp., Inc. v. Vornado Air

Circulation Sys., Inc.,

535 U.S. 826 (2002) ..................................... 19, 20

Illinois v. City of Milwaukee (Milwaukee I),

406 U.S. 91 (1972) ................. 6, 7, 8, 9, 18, 19, 22

Illinois v. Outboard Marine Corp.,

680 F.2d 473 (7th Cir. 1982) ............................. 12

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ..................................... 10, 19

Kansas v. Colorado,

206 U.S. 46 (1907) ............................................... 7

Nat’l Farmers Union Ins. Cos. v.

Crow Tribe of Indians,

471 U.S. 845 (1985) ......................................... 4, 9

Native Vill. of Kivalina v.

ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) ................... 8, 12, 13

iii

New SD, Inc. v. Rockwell Int’l Corp.,

79 F.3d 953 (9th Cir. 1996) ............................... 18

North Carolina ex rel. Cooper v.

Tenn. Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ............................. 11

OBB Personenverkehr AG v. Sachs,

577 U.S. 27 (2015) ............................................. 17

In re Otter Tail Power Co.,

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

Provincial Gov’t of Marinduque v.

Placer Dome, Inc.,

582 F.3d 1083 (9th Cir. 2009) ............................. 7

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998) ........................................... 22

Rodriguez v. FDIC,

140 S. Ct. 713 (2020) ..................................... 6, 20

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

117 F.3d 922 (5th Cir. 1997) ..................... 6, 7, 18

Ohio ex rel. Skaggs v. Brunner,

629 F.3d 527 (6th Cir. 2010) ............................. 21

Sola Elec. Co. v. Jefferson Elec. Co.,

317 U.S. 173 (1942) ............................................. 6

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

451 U.S. 630 (1981) . 7, 8, 9, 11, 12, 18, 19, 20, 21

Treiber & Straub, Inc. v. UPS, Inc.,

474 F.3d 379 (7th Cir. 2007) ............................... 7

Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004) ........................... 7

United Jersey Banks v. Parell,

783 F.2d 360 (3d Cir. 1986) ........................ 17, 18

Wheeldin v. Wheeler,

373 U.S. 647 (1963) ........................................... 20

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ............................................. 8

OTHER AUTHORITIES

Wright & Miller,

14C Fed. Prac. & Proc. Juris. § 3722.1

(4th ed. 2022)..................................................... 17

Wright & Miller,

19 Fed. Prac. & Proc. Juris. § 4514

(4th ed. 2022)....................................................... 7

15A Moore’s Fed. Practice—Civil § 103.43

(2022) ................................................................. 21

U.S. Chamber of Commerce, The Chamber’s

Climate Position: ‘Inaction is Not an

Option’,

https://www.uschamber.com/climatechange/the-chambers-climate-positioninaction-is-not-an-option .................................... 2

Press Release, Sen. Sheldon Whitehouse,

New Bipartisan, Bicameral Proposal

Targets Industrial Emissions for

Reduction (July 25, 2019),

https://www.whitehouse.

senate.gov/news/release/new-bipartisanbicameral-proposal-targets-industrialemissions-for-reduction ...................................... 1

INTEREST OF THE AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members in

matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber often files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the nation’s business community.

The Chamber has a strong interest in legal and

policy issues relating to climate change. The global

climate is changing, and human activities contribute to

these changes. There is much common ground on

which all sides could come together to address climate

change with policies that are practical, flexible,

predictable, and durable. The Chamber believes that

durable climate policy must be made by Congress,

which should both encourage innovation and

investment to ensure significant emissions reductions

and avoid economic harm for businesses, consumers,

and disadvantaged communities. See, e.g., Press

Release, Sen. Sheldon Whitehouse, New Bipartisan,

Bicameral Proposal Targets Industrial Emissions for

Reduction (July 25, 2019), https://www.whitehouse.

senate.gov/news/release/new-bipartisan-bicameral1 All parties have consented to the filing of this brief. Amicus

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

parties. No counsel for any party authored this brief in whole or

in part, and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

proposal-targets-industrial-emissions-for-reduction

(reporting the Chamber’s support for the bipartisan

Clean Industrial Technology Act). U.S. climate policy

should recognize the urgent need for action, while

maintaining the national and international

competitiveness of U.S. industry and ensuring

consistency with free enterprise and free trade

principles. See U.S. Chamber of Commerce, The

Chamber’s Climate Position: ‘Inaction is Not an

Option’, https://www.uschamber.com/climate-change/

the-chambers-climate-position-inaction-is-not-an-opt

ion. Governmental policies aimed at achieving these

goals should not be made by the courts, much less by a

patchwork of actions under state common law.

Under this Court’s precedent, cases involving

“uniquely federal interests,” for which a uniform

federal policy is necessary, should be decided under

federal common law.

In the limited range of

circumstances in which such uniquely federal interests

arise, the relevant legal questions often intersect with

the interests of many of the Chamber’s members, who

rely on the predictability and uniformity of federal

policy. This case presents an example of a court

veering from this Court’s precedent and allowing a

claim about global emissions—for which no State can

claim a superior tie or interest—to be decided by a

single state’s law. The Chamber has an interest in

ensuring that claims for which a uniform federal

standard is necessary, because of their interstate or

international aspects, are heard in federal court.

SUMMARY OF ARGUMENT

I. Federal common law applies in the limited

instances where “uniquely federal interests” leave no

room for state law to apply. Cross-border claims

implicating the interests of more than one State or of a

foreign sovereign—such as an interstate water

dispute—constitute a paradigmatic example of such an

instance. Respondents’ claims, which are founded on

allegations regarding the effects of global climate

change, naturally implicate both interstate and

international interests, and thus are subject to federal

common law. State nuisance laws, which are intended

to resolve localized problems, are a poor match for

global climate issues. That is true even if the claims

purport to concern the localized effects resulting from

such issues.

The court of appeals concluded that even if federal

common law governed respondents’ claims, the claims

did not “arise under” federal law because the Clean Air

Act displaced federal common law, and the state-law

claims were not completely preempted by the Act. Pet.

App. 30a-31a. But the court of appeals failed to

recognize what the Second Circuit acknowledged in

addressing similar claims of harm arising from climate

change: federal common law applies because state law

cannot, and state laws do not gain competence to

address issues that demand a unified federal standard

simply because any ability to win relief under federal

common law has been displaced. Displacement affects

remedies, not jurisdiction; the fact that a remedy

afforded by federal common law has been displaced by

federal statute does not mean state law is suitable to

decide the claim.

This Court should grant certiorari to resolve the

split over whether federal common law applies to

claims seeking liability for the local impact of global

climate change (thereby giving rise to federal

jurisdiction). State-court cases applying local law to

claims about an international issue are already well

underway. Unless the Court intervenes now, a

patchwork of disparate state-law decisions—which

federal common law exists to prevent—will soon

emerge.

II. This Court should also grant certiorari to

address the conflict regarding whether a plaintiff may

evade federal jurisdiction by artfully pleading their

federal common law claims as state common law

claims. Plaintiffs may be the masters of their

complaint, but this Court has repeatedly reaffirmed

the principle that a plaintiff cannot frustrate federal

jurisdiction by characterizing an inherently federal

claim as a state-law claim.

The court of appeals determined that “artful

pleading” is limited to only those cases where a statelaw claim is completely preempted by a federal statute.

As other courts of appeals have recognized, artful

pleading is not so limited. None of the principles

underlying the well-pleaded-complaint rule supports

such a narrow construction of artful pleading.

For these reasons, and those set forth below, this

Court should grant the petition.

ARGUMENT

I. This Court should grant certiorari on the

first question presented to reconcile conflicting decisions on whether federal common law applies to claims based on alleged

global emissions.

Federal courts may consider any claim arising

under federal law, including federal common law.

Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians,

471 U.S. 845, 850, 852 (1985). While federal common

law is limited in scope, common-law claims arising

from a transboundary dispute that implicates the

interests of more than one State or other sovereign

must, by necessity, arise under federal common law,

because a single state’s law cannot adequately

reconcile competing sovereign interests in resolving the

claim. For decades, this Court has identified claims

regarding the air and water in their “ambient and

interstate aspects” as entailing the sort of dispute fit

for the application of federal common law. Because

emissions cross state and national borders, a single

state’s law of public nuisance cannot resolve an

emissions dispute like this one. Such a nationally and

internationally significant dispute necessarily arises

under federal common law and belongs in federal

court.

The court of appeals nevertheless incorrectly held

that respondents’ purported state-common-law claims

of nuisance allegedly caused by global emissions

should proceed in state court. To the extent that

federal common law would ordinarily apply, the court

reasoned, the Clean Air Act displaced it—but did not

displace or completely preempt respondents’ state-law

claims. Pet. App. 29a-31a.

The Tenth Circuit’s reasoning was flawed in three

respects. First, to the extent that the court of appeals

doubted whether federal common law applies to

respondents’ claims, Pet. App. 29a n.5, this Court’s

decisions extending the application of the common law

to “air and water in their ambient or interstate

aspects” resolve any such doubts. Second, where

federal common law applies, state law does not—and

cannot. Thus, even if a federal statute prevents a

plaintiff from obtaining a remedy available under

federal common law, that does not make the claim any

less “federal” in character. Finally, the court of

appeals erred in treating displacement as an issue

affecting jurisdiction, not remedies.

A. Federal common law governs where a

dispute implicates interstate and international interests.

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

R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (emphasis

added), but federal courts may “fashion federal law” in

limited areas “where federal rights are concerned.”

Illinois v. City of Milwaukee (Milwaukee I), 406 U.S.

91, 103 (1972) (citation omitted). Erie does not undermine this principle. Indeed, on “the same day Erie was

decided, the Supreme Court released an opinion in

which Justice Brandeis, the author of Erie, relied upon

federal common law to resolve a case.” Sam L. Majors

Jewelers v. ABX, Inc., 117 F.3d 922, 927 n.8 (5th Cir.

1997) (citing Hinderlider v. La Plata River & Cherry

Creek Ditch Co., 304 U.S. 92 (1938)).

Courts typically apply federal common law in cases

presenting one (or more) of three characteristics. First,

federal common law applies in cases where “common

lawmaking must be ‘necessary to protect uniquely federal interests.’” Rodriguez v. FDIC, 140 S. Ct. 713, 717

(2020) (quoting Tex. Indus., Inc. v. Radcliff Materials,

Inc., 451 U.S. 630, 640 (1981)). Second, federal common law is used in “those areas of judicial decision

within which the policy of the law is so dominated by

the sweep of federal statutes that legal relations which

they affect must be deemed governed by federal law

having its source in those statutes, rather than by local

law.” Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173,

173-74 (1942). Finally, federal common law applies

“[w]hen Congress has not spoken to a particular issue,”

City of Milwaukee v. Illinois (Milwaukee II), 451 U.S.

304, 313 (1981), but federal policy calls for a “uniform

standard.” Milwaukee I, 406 U.S. at 107 n.9 (citation

omitted).

Several types of cross-border disputes—particularly

those that implicate the interests of more than one

State or sovereign—present “uniquely federal interests” that require the application of a federal common

law because state law cannot govern. Courts have applied federal common law in cases involving interstate

water disputes,2 tribal land rights,3 interstate air carrier liability,4 and foreign relations.5 In such cases,

federal common law is necessary because “local law

will not be sufficiently sensitive to federal concerns, it

is not likely to be uniform across state lines, and it will

develop at various rates of speed in different states.”

Wright & Miller, 19 Fed. Prac. & Proc. Juris. § 4514

(4th ed. 2022). Moreover, the structure of the Constitution does not allow States to engage in such crossborder regulation. Tex. Indus., 451 U.S. at 641 (“In

these instances, our federal system does not permit the

controversy to be resolved under state law….”); see

2 Hinderlider, 304 U.S. at 110; Kansas v. Colorado, 206 U.S. 46, 95

(1907).

3 Cnty. of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226,

235-36 (1985).

4 Treiber & Straub, Inc. v. UPS, Inc., 474 F.3d 379, 384 (7th Cir.

2007) (discussing the Fifth Circuit’s “extensive analysis of the history of federal common law liability of common carriers” in Sam L.

Majors, 117 F.3d at 922).

5 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964);

Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d

1083, 1088 (9th Cir. 2009); Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227, 1233 (11th Cir. 2004).

World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 293 (1980) (the “sovereignty of each state … implie[s] a limitation on the sovereignty of its sister

States”).

Cases about global emissions, like this one, squarely give rise to the concerns that necessitate federal

common law. Accordingly, “[w]hen we deal with air

and water in their ambient or interstate aspects, there

is a federal common law.” Milwaukee I, 406 U.S. at

103 (citing Texas v. Pankey, 441 F.2d 236 (10th Cir.

1971)); accord Am. Elec. Power Co. v. Connecticut

(“AEP”), 564 U.S. 410, 421 (2011); see also Hinderlider,

304 U.S. at 110 (apportionment of interstate stream “is

a question of ‘federal common law’”). “Environmental

protection” is, after all, “an area ‘within national legislative power,’” and thus, it is appropriate for federal

courts to “fill in ‘statutory interstices,’ and, if necessary, even ‘fashion federal law.’” AEP, 564 U.S. at 421

(citation omitted). As this Court has recognized, allowing states to apply their own varying common-law rules

to environmental concerns crossing state lines would

mean “more conflicting disputes, increasing assertions

and proliferating contentions” about the standards for

adjudging claims of “improper impairment.” Milwaukee I, 406 U.S. at 107 n.9 (quoting Pankey, 441 F.2d at

241-42).

Because claims regarding transboundary emissions

implicate “uniquely federal interests,” “our federal system does not permit the controversy to be resolved under state law,” as the “interstate or international nature of the controversy makes it inappropriate for state

law to control.” Tex. Indus., 451 U.S. at 640-41 & n.13;

Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d

849, 855 (9th Cir. 2012) (“[F]ederal common law can

apply to transboundary pollution suits.”). And where,

as here, a claim falls within an area that is exclusively

federal in nature, the case falls within federal jurisdiction. Nat’l Farmers, 471 U.S. at 850, 852.

2. Climate change is an international and interstate phenomenon. In order for climate change to occur, as alleged by respondents here, myriad events

caused by myriad actors must occur all around the

world. See Pet. App. 109a (agreeing with the premise

that claims similar to the respondents’ are “based on a

broad array of conduct … all of which occurred globally” (citation and internal quotation marks omitted));

City of N.Y. v. BP P.L.C., 325 F. Supp. 3d 466, 472

(S.D.N.Y. 2018), aff’d sub nom. City of N.Y. v. Chevron

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

Respondents’ claims are thus not only about “air

and water in their ambient or interstate aspects,” a

quality that “undoubtedly” calls for the application of

federal common law, AEP, 564 U.S. at 421 (citation

omitted); Milwaukee I, 406 U.S. at 103, they also implicate foreign policy and the United States’ sovereign interests, which, too, call out for federal common law.

Tex. Indus., 451 U.S. at 641 (identifying instances

where “our federal system does not permit [a] controversy to be resolved under state law, … because the interstate or international nature of the controversy

makes it inappropriate for state law to control”).

Respondents’ claims turn on an allegation of global

climate change; accordingly, state and local governments cannot claim some unique tie to the phenomenon. Some commercial activity may happen within a

particular state or locality’s borders, but that localized

activity is not the basis of the plaintiff-governments’

claims. And the localized activity hardly justifies allowing the law of one state to decide a sweeping claim

concerning emissions that cross state and national

borders. After all, none of the governmental entities

claims that what happened in their respective jurisdictions caused the alleged harm of global warming. Nor

could they do so: as this Court explained in AEP,

“emissions in New Jersey may contribute no more to

flooding in New York than emissions in China.” 564

U.S. at 422.

The Tenth Circuit’s decision favoring the application of state law over federal common law encourages a

patchwork of outcomes arising under disparate state

laws, which are poor frameworks for “regulat[ing] the

conduct of out-of-state sources.” Int’l Paper Co. v.

Ouellette, 479 U.S. 481, 495 (1987). Allowing claims

about global emissions to be decided by the varied laws

of the 50 states would lead to fragmentation of judicial

decisionmaking that in turn would hinder a coordinated and effective federal response to climate change.

That inevitable fragmentation would be exacerbated by

plaintiffs’ reliance on theories of public nuisance in asserting their claims. Public nuisance is an amorphous

cause of action, “often vague and indeterminate.” Milwaukee II, 451 U.S. at 317.

Even if every state were to use the same standard

of public nuisance—which is extremely unlikely—state

courts would still disagree as to what the articulated

standard requires, and how to account for the State’s

sovereign interests. A coastal state may, for example,

view public nuisance caused by water pollution differently than a landlocked state. Leaving state courts to

adjudicate disputes about interstate emissions based

on “the vagaries of public nuisance doctrine” would on-

ly make it “increasingly difficult for anyone to determine what standards govern.” North Carolina ex rel.

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

Cir. 2010).

B. Displacement does not cause a federalcommon-law claim regarding global climate change to lose its federal “character.”

The court of appeals concluded that respondents’

claims do not “arise under” federal common law for jurisdictional purposes because the Clean Air Act displaces federal common law governing cross-border

emissions, and thus, complete preemption is “the sole

path for federal removal jurisdiction.” Pet. App. 28a30a.

But the court of appeals’ reasoning cannot be

squared with this Court’s rule that, where federal

common law arises, state law cannot govern. Tex. Indus., 451 U.S. at 641 & n.13 (federal common law governs where the nature of the claim “makes it inappropriate for state law to control”); Milwaukee II, 451 U.S.

at 313 n.7 (“[I]f federal common law exists, it is because state law cannot be used.”). Congress’s decision

to displace any right to sue under federal common law

does not make state law capable of resolving interstate

disputes.

As the Second Circuit explained in rejecting a climate-nuisance action similar to respondents’—using

reasoning that conflicts with the Tenth Circuit’s reasoning here, Pet. 11-15—the notion that a state-law

claim lies dormant and may “snap back into action”

once federal law is displaced is “difficult to square with

the fact that federal common law governed [the] issue

in the first place.” New York, 993 F.3d at 98. When a

federal statute displaces federal common law, it eliminates the causes of action or remedies that might have

been available under common law—“our federal system” does not allow state-law claims into an area that

is exclusively federal in character. Tex. Indus., 451

U.S. at 641. Thus, for example, a State may surrender

its federal common-law cause of action over water

rights in an interstate compact. See Hinderlider, 304

U.S. at 104-05. But that does not invite state-law

causes of action that otherwise are plainly displaced by

federal common law. See id. at 110.

After discussing the Ninth Circuit’s decision in Kivalina, the court of appeals here concluded that because “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,” the displaced federal common law

claim cannot give rise to federal-question jurisdiction.

Pet. App. 29a-30a. But the court of appeals’ analysis

incorrectly treats displacement as an issue of jurisdiction, not remedies. In AEP, for example, this Court

explained that the scope of the displacement was to be

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

Cnty. of Oneida, 470 U.S. at 237-39); see also Milwaukee II, 451 U.S. at 332 (observing that Congress’s

changes to the Clean Water Act meant that “no federal

common-law remedy was available”); Illinois v. Outboard Marine Corp., 680 F.2d 473, 476 (7th Cir. 1982)

(statutory displacement of “the federal common law

remedy for nuisances resulting from discharges of pollutants”). Kivalina itself conceptualizes statutory displacement as the displacement of causes of action or

remedies, not of federal jurisdiction. 696 F.3d at 856

(displacement means that federal common law “does

not provide a remedy”); id. at 857 (“displacement of a

federal common law right of action means displacement of remedies.”).

Thus, displacement concerns “whether the field has

been occupied, not whether it has been occupied in a

particular manner.” Milwaukee II, 451 U.S. at 324.

When a state law claim is impermissible because of the

federal nature of the interests at stake, and federal

common law is displaced by a federal statute, the case

continues to arise under federal law and establish federal jurisdiction. The fact that federal common law

provides no remedy does not make the interests at

stake any less federal; it means only that Congress has

exercised its right to make rules for an exclusively federal area, and has elected not to create a remedy in

that space.

Here, the claims concerning interstate emissions do

not become any less “interstate” simply because an environmental statute displaces remedies under federal

common law. The court of appeals’ reasoning looks

nothing like displacement by Congress; it is replacement of Congress—by state courts.

C. The practical problems created by allowing inherently federal claims for climate

change to be recast as state-law claims

will only worsen without immediate review.

In 2017 and 2018, 13 state and local governments,

including respondents, filed lawsuits in their respective

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

under state law by “producing, promoting, refining,

marketing and selling a substantial amount of fossil

fuels used at levels sufficient to alter the climate.”6

C.A. App. 173 ¶ 445. Respondents’ allegations are both

international and interstate in scope. They allege that

the fossil fuels cause, or at least contribute to, rising

sea levels induced by climate change. C.A. App. 151

¶ 344. Respondents seek to impose liability for emissions for fossil fuels produced and consumed as far

back as the late 1980s. C.A. App. 92 ¶ 82 & n.8. They

do not assert (nor could they) that these emissions occurred exclusively—or even substantially—within their

respective borders. Instead, respondents seek to hold

petitioners liable for conduct that occurred all over the

world, “including in Colorado.” C.A. App. 103 ¶ 127;

C.A. App. 147 ¶ 325. State and local governments like

respondents seek to connect petitioners to their respective jurisdictions by pointing to the injuries allegedly

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

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

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

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

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

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

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

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

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

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

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

Mateo v. Chevron Corp., No. 17CIV03222 (Cal. Super. Ct. July 17,

2017); City of Santa Cruz v. Chevron Corp., No. 17CV03243 (Cal.

Super. Ct. Dec. 20, 2017); Cnty. of Santa Cruz v. Chevron Corp.,

No. 17CV03242 (Cal. Super. Ct. Dec. 20, 2017); Cal. ex rel. Herrera

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

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

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

caused there by global emissions from fossil fuels—

specifically, the use and combustion of those fuels.

E.g., C.A. App. 148 ¶ 327. In other words, they seek to

frame a global problem as a local nuisance.

Several of these cases have gone to-and-from (and

back to) state court, and they are now moving ahead on

the merits while the legal landscape regarding the removability of such cases remains unsettled. The First,

Fourth, Ninth, and Tenth Circuits have directed that

climate-change nuisance claims brought by state and

local governments should be remanded to state court,7

while the Third and Eighth Circuits are actively considering whether federal common law governs nuisance

claims based on global emissions, and thus provides a

basis for federal-question jurisdiction and removal.8

And new cases continue to pile on.9

7 Rhode Island v. Shell Oil Prods. Co., No. 19-1818, 2022 WL

1617206 (1st Cir. May 23, 2022); Mayor & City Council of Balt. v.

BP P.L.C., 31 F.4th 178 (4th Cir. 2022); City of Oakland v. BP plc,

969 F.3d 895 (9th Cir. 2020), cert. denied, 141 S. Ct. 2776 (2021);

Pet. App. 1a.

8 Minnesota v. Am. Petroleum Inst., No. 21-1752 (8th Cir. argued

Mar. 15, 2022); City of Hoboken v. Chevron Corp., No. 21-2728 (3d

Cir. argued June 21, 2022); Delaware v. BP America, Inc., No. 221096 (3d Cir. argued June 21, 2022). While the Second Circuit

has held that federal common law governs nuisance claims, purportedly brought under state law, relating to global climate

change, City of N.Y., 993 F.3d at 81, it is currently considering in

Connecticut v. Exxon Mobil Corp., No. 21-1446 (2d Cir.), whether

the application of federal common law in such a case gives rise to

federal removal jurisdiction.

9 Anne Arundel Cnty. v. BP P.L.C., No. 21-cv-1423 (D. Md.); City of

Annapolis v. BP P.L.C., No. 21-cv-772 (D. Md.); City of Charleston

v. Brabham Oil Co., No. 20-cv-3579 (D.S.C.); Dist. of Columbia v.

In the meantime, federal courts are left with no

clear direction on whether federal common law governs

claims regarding the local effects of global climate

change, and whether the application of federal common

law generally provides a basis for removal jurisdiction.

And because several cases have since been remanded

back to state court, a patchwork of decisions resolving

interstate pollution claims under disparate state laws

will soon begin to emerge, further complicating—

perhaps irreversibly—federal efforts to combat climate

change. To resolve the question whether federal common law applies to claims of global climate change, this

Court should grant certiorari now, before the effects of

an individualized, state-by-state approach begin to

take hold.

II. This Court should grant certiorari on the

second question presented to resolve the

split over the use of artful pleading to conceal claims governed by federal common

law.

A. Under the well-pleaded complaint rule, “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). But an “independent corollary” of the rule

is that “a plaintiff may not defeat removal by omitting

to plead necessary federal questions in a complaint.”

Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for

S. Cal., 463 U.S. 1, 22 (1983) (citation omitted). Thus,

a plaintiff may be the “master of his complaint” and

ordinarily may choose to bring a state-law claim in

Exxon Mobil Corp., No. 20-1932 (D.D.C.); Vermont v. Exxon Mobil

Corp., No. 21-cv-260 (D. Vt.).

state court, but he cannot deliberately disguise an “inherently federal cause of action.” Wright & Miller, 14C

Fed. Prac. & Proc. Juris. § 3722.1 (4th ed. 2022).

Where a plaintiff obscures the inherently federal nature of her claim, the plaintiff’s case is removable to

federal court. United Jersey Banks v. Parell, 783 F.2d

360, 367 (3d Cir. 1986) (noting “ample precedent”

demonstrating that federal jurisdiction lies where “the

state claim pleaded is ‘really one’ of federal law” (citation omitted)).

In other jurisdictional contexts, this Court has

looked to the “gravamen” of the complaint, not just to

the label the plaintiff attaches, to determine whether

the complaint invokes federal jurisdiction. OBB Personenverkehr AG v. Sachs, 577 U.S. 27, 35-36 (2015)

(looking not just at how the plaintiff “recast[s]” her

negligence claims, but instead at the “‘essentials’ of her

suit,” to determine whether jurisdiction existed under

the Foreign Sovereign Immunities Act (citation omitted)); see also Fry v. Napoleon Cmty. Schs., 137 S. Ct.

743, 755 (2017) (courts must look to the “gravamen” of

the plaintiff’s complaint and “set[] aside any attempts

at artful pleading” to determine whether the plaintiff’s

claim requires exhaustion under federal law). What

matters is “substance, not surface”: “[t]he use (or nonuse) of particular labels and terms is not what matters.” Fry, 137 S. Ct. at 755. Focusing on the “gravamen” of a complaint, rather than whether a plaintiff

used or avoided the right “magic words,” ensures that a

plaintiff cannot manipulate federal jurisdiction

“through artful pleading.” Id. (citation omitted).

The rule is no different in the narrow but important

circumstances where a claim is inherently federal; in

those situations, casting the claim in different lan-

guage does not make it arise under different law. One

such inherently federal claim recognized by several

courts of appeals is a common law cause of action governed by a uniform federal decisional standard, which

the Tenth Circuit disavowed here by limiting artful

pleading to complete preemption.10 Pet. App. 20a-21a.

Where the claim arises in an area that is governed exclusively by federal law, a plaintiff cannot “deny a defendant a federal forum” by artfully pleading “a federal

claim … as a state law claim.” United Jersey, 783 F.2d

at 367. Thus, a federal common law claim may be

readily apparent from the “essentials” of a complaint if

the allegations involve matters such as “air and water

in their ambient or interstate aspects,” Milwaukee I,

406 U.S. at 103, or other “especial federal concerns to

which federal common law applies,” such as “the rights

and obligations of the United States,” or “the conflicting rights of States or our relations with foreign nations.” Tex. Indus., 451 U.S. at 641 & n.13. In those

areas where “especial federal concern[s]” are implicated, the only claim that can be pleaded is a federal one,

as federal common law governs where the nature of the

10 Sam L. Majors, 117 F.3d at 924, 929 (holding, in a breach-ofcontract dispute originally brought under state law, that “if the

cause of action arises under federal common law principles, jurisdiction may be asserted”); In re Otter Tail Power Co., 116 F.3d

1207, 1214-15 (8th Cir. 1997) (reversing district court’s order remanding case to state court, holding that case presented a federal

question because it “raise[d] important questions of federal law,”

including “the federal common law of inherent tribal sovereignty”); New SD, Inc. v. Rockwell Int’l Corp., 79 F.3d 953, 954-55 (9th

Cir. 1996) (noting in case originally brought under state contract

law that, “on government contract matters having to do with national security, state law is totally displaced by federal common

law” and “it follows that the question arises under federal law,

and federal question jurisdiction exists”).

claim “makes it inappropriate for state law to control.”

Tex. Indus., 451 U.S. at 641 & n.13. That claim can be

governed only by the laws of the United States and

thus is properly brought in federal court. See Milwaukee I, 406 U.S. at 100.

B. The “longstanding policies” justifying the application of the well-pleaded complaint rule support allowing the removal of federal-common-law claims: (1)

respect for the plaintiff’s deliberate choice to “eschew[]

claims based on federal law, … to have the cause heard

in state court”; (2) avoiding the radical expansion of

“the class of removable cases, contrary to the ‘[d]ue regard for the rightful independence of state governments’”; and (3) preventing the “undermin[ing] [of] the

clarity and ease of administration of the well-pleadedcomplaint doctrine, which serves as a ‘quick rule of

thumb’ for resolving jurisdictional conflicts.” Holmes

Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535

U.S. 826, 831-32 (2002) (citations omitted).

First, a plaintiff cannot invoke the prerogative to

choose the law and forum when the plaintiff alleges a

common-law claim that is inherently federal; where

federal common law applies, there is no state-law option to choose. One of the main purposes of the wellpleaded complaint rule is to honor the plaintiff’s choice

of bringing a claim “in state court under state law.” Id.

at 832. But, as explained above, where federal common law governs, the “implicit corollary” is that there

is no state law to apply. Ouellette, 479 U.S. at 488.

That corollary is best demonstrated in cases where federal common law necessarily governs because the claim

is interstate and international in nature; transboundary issues cannot be resolved by a patchwork of state

courts applying local law in an uncoordinated manner.

E.g., New York, 993 F.3d at 85-86 (observing that climate change is “not well-suited to the application of

state law”).

Second, there is no risk of flooding federal courts

with a new wave of removal cases premised on federal

common law. Holmes, 535 U.S. at 832. Federal common law plays “a necessarily modest role,” Rodriguez,

140 S. Ct. at 717, and thus the “instances where [federal courts] have created federal common law are few

and restricted,” Wheeldin v. Wheeler, 373 U.S. 647, 651

(1963). See Tex. Indus., 451 U.S. at 641 (federal common law exists only in “narrow areas”). In those few

areas where federal common law applies, there is little

risk of intruding upon the “independence of state governments,” as those areas necessarily fall outside state

authority. Holmes, 535 U.S. at 832 (citation omitted).

Conversely, failing to recognize federal common law

claims for what they are, just because the plaintiff refuses to acknowledge it, risks allowing state courts and

state law to intrude upon federal priorities. As the

Second Circuit has warned, attempting to apply state

law in an area where federal common law should apply

risks “upsetting the careful balance” of federal prerogatives. New York, 993 F.3d at 93. In AEP, a case very

similar to this one that presented claims for relief

based on climate change, this Court made clear that

“[e]nvironmental protection” is one such area that is

“undoubtedly … within national legislative power, one

in which federal courts may fill in statutory interstices,

and, if necessary, even fashion federal law.” AEP, 564

U.S. at 421 (emphasis added, citation and internal quotation marks omitted); see id. (quoting Milwaukee I,

406 U.S. at 103); id. at 422 (noting not only that the

subject of tort law claims based on climate change “is

meet for federal law governance,” but that “borrowing

the law of a particular State would be inappropriate”

for federal common law claims based on climate

change).

Finally, using the artful pleading doctrine to recognize federal jurisdiction in cases presenting federal

common law claims does not make the well-pleaded

complaint rule any more complicated to apply. It is not

difficult to identify the few specific areas of the law

that raise the sorts of “especial federal concerns to

which federal common law applies.” Tex. Indus., 451

U.S. at 641 n.13; e.g., id. at 641 (identifying “narrow

areas” in which federal common law applies). The subject of “air and water in their ambient or interstate aspects,” AEP, 564 U.S. at 421 (quoting Milwaukee I, 406

U.S. at 103), is one such category, and a claim of harm

resulting from global climate change from interstate

and international emissions fits squarely into it.

C. The court of appeals determined that the only

exceptions to the well-pleaded complaint rule are for

complete preemption (labeled as “artful pleading”) and

for federal jurisdiction as articulated in Grable & Sons

Metal Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308 (2005). Pet. App. 21a-23a. But

as other courts have recognized, complete preemption

and artful pleading exist as two distinct bases for federal jurisdiction. E.g., Ohio ex rel. Skaggs v. Brunner,

629 F.3d 527, 532 (6th Cir. 2010) (artful pleading doctrine may apply independently of complete preemption

“where federal issues necessarily must be resolved to

address the state law causes of action”); 15A Moore’s

Fed. Practice—Civil § 103.43 (2022) (noting that it is

not “necessarily accurate” that artful pleading is the

same as complete preemption, and that “[p]erhaps a

better expression is that the complete preemption doctrine is a specific application of the artful pleading doctrine”). “The artful pleading doctrine allows removal

where federal law completely preempts a plaintiff’s

state-law claim,” Rivet v. Regions Bank of La., 522 U.S.

470, 475 (1998), but that is not all that it does.11 Complete preemption is not the only circumstance where

claims have a “sufficient federal character to support

removal.” Federated Dep’t Stores, Inc. v. Moitie, 452

U.S. 394, 397 n.2 (1981). Claims that must necessarily

arise under federal common law due to their interstate

and transboundary character constitute another such

circumstance. Milwaukee I, 406 U.S. at 103.

11 That is clear from Rivet itself, in which this Court reiterated

Franchise Tax Board’s statement that “a plaintiff may not defeat

removal by omitting to plead necessary federal questions,” and

then used complete preemption as one example. 522 U.S. at 475.

Rivet involved only an ordinary federal defense (preclusion).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.