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

Supreme Court briefAug 10, 2022

Ask Donna

What actually matters in this document.

Text

No. 21-1550

IN THE

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 IN OPPOSITION

Kevin S. Hannon

THE HANNON LAW

FIRM, LLC

1641 Downing Street

Denver, CO 80218

David Bookbinder

NISKANEN CENTER

820 First Street NE,

Ste. 675

Washington, DC 20002

Marco B. Simons

Counsel of Record

Richard L. Herz

Michelle C. Harrison

Sean Powers

EARTHRIGHTS

INTERNATIONAL

1612 K St. NW, Ste. 800

Washington, DC 20006

(202) 466-5188

marco@earthrights.org

QUESTION PRESENTED

Should this Court create a new exception to the

well-pleaded complaint rule to allow removal of

respondents’ state law claims to federal court on the

theory that they fall within a category of claims once

governed by federal common law when: (1) that

common law has been displaced by a federal statute;

(2) the statute does not expressly authorize removal of

the claims; and (3) petitioners cannot satisfy the test

for complete preemption.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

BRIEF IN OPPOSITION............................................. 1

STATEMENT OF THE CASE..................................... 2

REASONS FOR DENYING THE PETITION ............ 6

There Is No Circuit Conflict On Either Of

Petitioners’ Questions Presented ........................ 7

A. Petitioners’ First Question Presented ........... 8

B. Petitioners’ Second Question Presented ...... 11

II.

Petitioners’ Questions Presented Are Not

Recurringly Important ...................................... 16

III. This Case Is A Poor Vehicle .............................. 17

IV. The Decision Below Is Correct .......................... 19

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

Cases

Am. Elec. Power Co. v. Connecticut,

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

Bernhard v. Whitney Nat’l Bank,

523 F.3d 546 (5th Cir. 2008) .................................. 15

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

141 S. Ct. 1532 (2021) .............................................. 3

California v. BP P.L.C.,

2018 WL 1064293 (N.D. Cal. Feb. 27, 2018) ........... 6

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ........................................ 3, 4, 22

Chevron Corp. v. City of Oakland,

141 S. Ct. 2776 (2021) ...................................... 2, 6, 7

City of Hoboken v. Exxon Mobil Corp.,

558 F. Supp. 3d 191 (D.N.J. 2021)........................... 6

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ................................................ 27

City of New York v. Chevron Corp.,

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

City of Oakland v. BP PLC,

969 F.3d 895 (9th Cir. 2020) .................................... 6

Connecticut v. Exxon Mobil Corp.,

2021 WL 2389739 (D. Conn. June 2, 2021) ............. 7

County of San Mateo v. Chevron Corp.,

294 F. Supp. 3d 934 (N.D. Cal. 2018) ...................... 7

County of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022) .................................... 6

Cutter v. Wilkinson,

544 U.S. 709 (2005) ................................................ 18

Delaware ex rel. Jennings v. BP Am. Inc.,

__ F. Supp. 3d __, 2022 WL 58484

(D. Del. Jan. 5, 2022) ............................................... 6

Empire Healthchoice Assurance, Inc. v.

McVeigh,

547 U.S. 677 (2006) ................................................ 22

Fort Halifax Packing Co. v. Coyne,

482 U.S. 1 (1987) .................................................... 27

Franchise Tax Bd. v. Constr. Laborers

Vacation Tr.,

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

Grable & Sons Metal Prods., Inc. v. Darue

Eng’g & Mfg.,

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

Great Lakes Gas Transmission Ltd. P’ship v.

Essar Steel Minn. LLC,

843 F.3d 325 (8th Cir. 2016) .................................. 13

Gunn v. Minton,

568 U.S. 251 (2013) ................................................ 14

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) .......................................... 26, 27

Louisville & Nashville R.R. v. Mottley,

211 U.S. 149 (1908) ................................................ 22

Massachusetts v. Exxon Mobil Corp.,

462 F. Supp. 3d 31 (D. Mass. 2020) ......................... 7

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

31 F.4th 178 (4th Cir. 2022) .......................... 6, 7, 20

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

388 F. Supp. 3d 538 (D. Md. 2019) .......................... 6

Merrell Dow Pharms. Inc. v. Thompson,

478 U.S. 804 (1986) ................................................ 30

Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Manning,

578 U.S. 374 (2016) .......................................... 23, 30

Minnesota v. Am. Petroleum Inst.,

2021 WL 1215656 (D. Minn. Mar. 31, 2021) ........... 7

Mitchel v. Bailey,

982 F.3d 937 (5th Cir. 2020) .................................. 15

Murphy v. Nat’l Collegiate Athletic Ass’n,

138 S. Ct. 1461 (2018) ............................................ 26

In re Otter Tail Power Co.,

116 F.3d 1207 (8th Cir. 1997) .............. 12, 13, 14, 15

P.R. Dep’t of Consumer Affs. v.

Isla Petroleum Corp.,

485 U.S. 495 (1988) ................................................ 25

Rhode Island v. Chevron Corp.,

393 F. Supp. 3d 142 (D.R.I. 2019) ........................... 7

Rhode Island v. Shell Oil Prods. Co.,

35 F.4th 44 (1st Cir. 2022) ........................... 6, 20, 21

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998) .......................................... 22, 28

Rodriguez v. FDIC,

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

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

117 F.3d 922 (5th Cir. 1997) ...................... 14, 15, 16

Torres v. S. Peru Copper Corp.,

113 F.3d 540 (5th Cir. 1997) .................................. 15

Vaden v. Discover Bank,

556 U.S. 49 (2009) .................................................. 29

Venable v. La. Workers’ Comp. Corp.,

740 F.3d 937 (5th Cir. 2013) .................................. 15

Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480 (1983) .................................................. 4

Constitutional Provisions

U.S. Const. art. VI, cl. 2 ............................................. 21

Statutes

Class Action Fairness Act of 2005,

Pub. L. No. 109-2, 119 Stat. 4 ................................ 30

Clean Air Act, 42 U.S.C. §§ 7401-7671q ........... passim

42 U.S.C. § 7416 .................................................. 27

28 U.S.C. § 1441(a) ...................................................... 3

28 U.S.C. § 1442(a) .................................................... 23

33 U.S.C. § 1365(e) .................................................... 27

42 U.S.C. § 2014(hh) .................................................. 23

BRIEF IN OPPOSITION

“[S]ince 1887 it has been settled law that a case

may not be removed to federal court on the basis of a

federal defense, including the defense of pre-emption,”

even if “the defense is anticipated in the plaintiff’s

complaint, and even if both parties admit that the

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

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

463 U.S. 1, 14 (1983). Under the venerable wellpleaded complaint rule, a state law claim that is

preempted by federal law is a claim destined to be lost

in state court, not a federal claim that can be removed

to federal court.

Petitioners nonetheless ask this Court to hold that

respondents’ state law claims are removable to federal

court because they are “necessarily and exclusively”

federal common law claims.

Pet. (I).

They

acknowledge that the complete preemption doctrine

already establishes a test to determine whether a state

law claim may be treated, for removal purposes, as a

federal claim despite the requirements of the wellpleaded complaint rule. And they do not challenge the

Tenth Circuit’s holding that respondents’ claims are

not completely preempted.

Instead, petitioners ask the Court to recognize a

new exception to the well-pleaded complaint rule for

state law claims that are not completely preempted yet

somehow qualify as “necessarily and exclusively”

federal claims, based on some unidentified criteria

that would seemingly sweep in at least every case in

which a defendant claims that federal common law

preempts a state law claim, and probably more. If that

were not enough, petitioners would have the Court

declare that the state law claims in this case are

“necessarily and exclusively” claims under a federal

common law they acknowledge was extinguished by

statute more than 50 years ago.

Predictably, this argument has been rejected by

every court of appeals to consider it. This Court itself

recently denied certiorari in another case seeking

review of the same theory. See Chevron Corp. v. City

of Oakland, 141 S. Ct. 2776 (2021) (No. 20-1089).

Petitioners identify no reason for a different result

here.

STATEMENT OF THE CASE

1. Respondents, two Colorado counties and a

municipality, filed this suit in Colorado state court

asserting exclusively state law claims and seeking

monetary relief for local injuries they sustained as a

result of petitioners’ tortious conduct, which has

caused, accelerated, an exacerbated the impacts of

climate change. Among other things, they allege that

petitioner fossil fuel companies “concealed and/or

misrepresented the dangers associated with the

burning of fossil fuels despite having been aware of

those dangers for decades.” Pet. App. 3a. That

deception, respondents contend, contributed to

excessive burning of fossil fuels, leading to increased

levels of carbon dioxide in the atmosphere and making

it necessary for respondents to spend significant

additional sums on basic government services (such as

maintaining roads and fighting forest fires) to mitigate

the cascading effects of climate change.

Ibid.

Respondents “expressly do not seek to . . . enjoin any

oil and gas operations or sales . . . or to enforce

emissions controls of any kind.” Id. at 6a (internal

quotation marks omitted). Instead, they ask that

petitioners bear their fair portion of the costs their

conduct has inflicted on respondents’ taxpayers. Ibid.

Petitioners removed the case to federal court. In

their notice of removal, petitioners asserted seven

grounds for removal, ranging from the claim that “the

Clean Air Act . . . completely preempted the state law

claims,” to arguments under the removal provision in

the Bankruptcy Act and invocation of the Outer

Continental Shelf Lands Act. Pet. App. 7a. Of most

relevance here, however, petitioners argued that the

case was removable because the suit, although

pleading only state law claims, fell within the district

court’s federal question jurisdiction. That was so,

petitioners argued, because those state law claims

were really federal common law claims. Ibid.

The district court rejected that and all of

petitioners’ other removal arguments, then remanded

the case to state court.

2. The Tenth Circuit affirmed.1

a. As relevant here, the court of appeals

explained that a case may be removed to federal court

only if it “originally could have been filed in federal

court.” Pet. App. 9a (quoting Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987)); see 28 U.S.C.

§ 1441(a). To decide whether a complaint provides a

basis for original federal jurisdiction, courts apply the

The Tenth Circuit originally decided only that petitioners’

federal officer removal claims lacked merit. Pet. App. 1a-2a.

However, on remand from this Court’s decision in BP P.L.C. v.

Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021), the

court rejected petitioners’ remaining removal grounds as well.

Pet. App. 2a-59a.

“well-pleaded complaint rule, which provides ‘that the

federal question must appear on the face of a wellpleaded complaint and may not enter in anticipation

of a defense.’” Pet. App. 19a (quoting Verlinden B.V.

v. Cent. Bank of Nigeria, 461 U.S. 480, 494 (1983)).

Accordingly, “a federal defense, including preemption,

cannot support removal.” Id. at 20a (citing Franchise

Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S.

1, 14 (1983)).

Under this regime, “the plaintiff is the ‘master of

the claim’ and may ‘avoid federal jurisdiction by

exclusive reliance on state law.’” Pet. App. 19a

(quoting Caterpillar, 482 U.S. at 392). The Tenth

Circuit noted a “rare” exception to the general rule is

found in the “[c]omplete preemption” doctrine, which

has been applied by this Court “in just three statutory

contexts.” Id. at 22a (citations omitted); id. at 20a.

“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.’” Id. at 21a (quoting Caterpillar, 482

U.S. at 393). A state claim is completely preempted

when a federal statute both “preempts the state law

relied on by the plaintiff” and conveys Congress’s

intent to permit removal through “provision of a federal

cause of action” as a substitute for the preempted state

law claim. Id. at 21a-22a (citation omitted).

b. Applying these principles, the Tenth Circuit

held that none of petitioners’ theories of federal

question jurisdiction had any merit.

The court specifically rejected petitioners’

argument that “there is federal-question jurisdiction

over the Municipalities’ state-law claims because they

are governed by federal common law.” Pet. App. 24a.

The court did not decide whether respondents’ claims

fell within the scope of the federal common law

developed to resolve certain disputes over interstate

air pollution. Id. at 29a n.5 (finding the answer

“unclear” and doubtful). It made no difference, the

court held, because the “federal common law . . . that

formerly governed transboundary pollution suits no

longer exists due to Congress’s displacement of that

law through the” Clean Air Act, 42 U.S.C. §§ 74017671q. Pet. App. 29a (citing Am. Elec. Power Co. v.

Connecticut, 564 U.S. 410 (2011) (AEP)). The viability

of respondents’ state law claims therefore turned on

Congress’s preemptive intent in the Clean Air Act, not

on whatever preemptive force the former federal

common law once held. Id. at 30a (“[T]he availability

vel non of a state lawsuit depends, inter alia, on the

preemptive effect of the federal Act.”) (quoting AEP,

564 U.S. at 429). And “because ordinary preemption

can never serve as a basis for removal,” respondents’

case could be removed only under the “doctrine of

complete preemption.” Ibid.

In a portion of the ruling petitioners do not

challenge, the court of appeals then held that

respondents’ claims were not completely preempted

either by the federal common law the Clean Air Act

displaced (Pet. App. 32a) or by the Clean Air Act itself

(id. at 34a-38a). And because the claims were not

completely preempted, the court rejected petitioners’

argument that respondents were trying to “artfully

plead” around removal that would otherwise be

authorized. Id. at 31a.

REASONS FOR DENYING THE PETITION

Of the seven grounds for removal petitioners

asserted below, they bring to this Court their most

novel and least supportable.

They insist that

respondents’ state law claims may be removed to

federal court because they are really federal common

law claims in disguise, even though the Tenth Circuit

held, and petitioners do not dispute, that the federal

common law they invoke was extinguished by statute

decades ago and even though petitioners do not claim

that this federal common law (when it existed) could

completely preempt respondents’ state law claims. As

petitioners acknowledge, every circuit to consider

their argument has rejected it in comprehensive,

thoughtful opinions. 2 Indeed, of the 21 judges who

have passed on petitioners’ theory, only one judge has

accepted it, and that district court ruling was

unanimously overturned on appeal. 3 In this case,

See Pet. App. 24a-33a, 66a-81a; Rhode Island v. Shell Oil

Prods. Co., 35 F.4th 44, 53-56 (1st Cir. 2022), reh’g denied, No. 191818 (July 7, 2022); County of San Mateo v. Chevron Corp., 32

F.4th 733, 746-48 (9th Cir. 2022), reh’g denied, Nos. 18-15499, 1815502, 18-15503, 18-16376 (June 27, 2022); Mayor & City Council

of Balt. v. BP P.L.C., 31 F.4th 178, 199-208 (4th Cir. 2022), reh’g

denied, No. 19-1644 (May 17, 2022); City of Oakland v. BP PLC,

969 F.3d 895, 906-07 (9th Cir. 2020), reh’g denied, No. 18-16663

(Aug. 12, 2020), cert. denied, 141 S. Ct. 2776 (2021).

See California v. BP P.L.C., 2018 WL 1064293 (N.D. Cal. Feb.

27, 2018), rev’d, 969 F.3d 895. For judges rejecting the theory see

supra n.2; City of Hoboken v. Exxon Mobil Corp., 558 F. Supp. 3d

191, 201-03 (D.N.J. 2021); Delaware ex rel. Jennings v. BP Am.

Inc., __ F. Supp. 3d __, 2022 WL 58484, at *4-6 (D. Del. Jan. 5,

2022), appeal docketed, No. 22-1096 (3d Cir. argued June 21,

2022); Mayor & City Council of Balt. v. BP P.L.C., 388 F. Supp.

petitioners did not even bother trying to seek

rehearing en banc, perhaps because every prior

petition for rehearing in these cases has been denied

without recorded dissent.4

If petitioners are ever able to convince a circuit to

accept their position, this Court can decide whether to

intervene at that time. Until then, the Court should

do what it did when recently presented with a petition

seeking review of the same removal theory and deny

the petition. See Chevron Corp. v. City of Oakland, 141

S. Ct. 2776 (2021) (No. 20-1089).

There Is No Circuit Conflict On Either Of

Petitioners’ Questions Presented.

Unable to claim a circuit split on the

straightforward question of whether state law claims

like respondents’ are removable, petitioners divide the

removal question into two parts and insist that both

halves independently implicate certworthy circuit

conflicts on more broadly applicable questions. That

tactic should not distract the Court from the

unalterable fact that even if some circuits have

accepted pieces of petitioners’ argument (which is not,

3d 538, 553-58 (D. Md. 2019), aff’d, 31 F.4th 178; Rhode Island v.

Chevron Corp., 393 F. Supp. 3d 142, 148-50 (D.R.I. 2019), aff’d,

979 F.3d 50 (1st Cir. 2020), vacated, 141 S. Ct. 2666 (2021);

County of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934, 93738 (N.D. Cal. 2018), aff’d, 960 F.3d 586 (9th Cir. 2020), vacated,

141 S. Ct. 2666 (2021); Minnesota v. Am. Petroleum Inst., 2021

WL 1215656, at *5-6 (D. Minn. Mar. 31, 2021), appeal docketed,

No. 21-1752 (8th Cir. argued Mar. 15, 2022); Connecticut v. Exxon

Mobil Corp., 2021 WL 2389739, at *4-7 (D. Conn. June 2, 2021);

Massachusetts v. Exxon Mobil Corp., 462 F. Supp. 3d 31, 41-44

(D. Mass. 2020).

See supra n.2.

in fact, true), no circuit has agreed with them on the

only question that matters for the outcome of this

case—whether respondents’ claims are removable.

Dividing the removal question up into constituent

parts does not do petitioners any good anyway. The

answer to the first question does not matter unless

petitioners also prevail on the second, and the second

question does not arise in this case unless petitioners

prevail on the first. To make the case for certiorari,

then, petitioners must establish that both questions

are independently certworthy and that petitioners are

likely to prevail on each.

This, petitioners cannot do. Even as alleged, the

splits are shallow. Petitioners ultimately argue that

the decision below conflicts with only three circuit

court decisions. The first specifically disavows any

conflict with the rule the Tenth Circuit adopted here.

The other two are more than 25 years old, have never

been cited for the propositions petitioners say they

establish, and are inconsistent with later decisions

from this Court. And even setting all that aside, there

is nothing inconsistent with the decisions petitioners

cite and the Tenth Circuit’s decision in this case.

A. Petitioners’ First Question Presented

The only purported conflict petitioners allege

regarding their first question presented is with the

Second Circuit’s decision in City of New York v.

Chevron Corp., 993 F.3d 81 (2d Cir. 2021). See Pet. 12.

The petitioners in Oakland asserted a conflict with the

same decision, to no avail. See Oakland Reply 1-5.

To be clear, petitioners do not pretend that the

Second Circuit reached a conflicting conclusion on the

overall removal question—there was no removal issue

in City of New York because the “City filed suit in

federal court in the first instance,” asserting diversity

jurisdiction. 993 F.3d at 94. Instead, the portion of

the Second Circuit decision upon which petitioners

rely was deciding a different question, namely the

merits of the defendants’ “preemption defense on its

own terms, not under the heightened standard unique

to the removability inquiry.” Ibid. Because they were

deciding materially different questions, both the

Second and Tenth Circuits expressly disavowed any

disagreement. See ibid. (“So even if this fleet of cases

is correct that federal preemption does not give rise to

a federal question for purposes of removal, their

reasoning does not conflict with our holding” on

preemption); Pet. App. 32a-33a (distinguishing City of

New York: “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.”).

Petitioners nonetheless insist that there is a

certworthy conflict in the “reasoning” of the two

opinions. Pet. 12. Specifically, petitioners assert that

the Tenth Circuit concluded that climate-change

claims “are no longer governed by federal common law

because of displacement by the Clean Air Act,” while

the Second Circuit believed “that federal common law

does govern those claims . . . even after statutory

displacement.” Pet. 11-12. Even if that were true, it

would provide no basis for certiorari. This Court takes

cases to resolve conflicts in holdings, not reasoning.

And here, petitioners must establish not only that

federal common law continues in some sense to

“govern” claims like respondents’, but also that it

converts them into removable federal claims. No court

of appeals has accepted that proposition, and, hence,

there is no need for this Court to decide that question

either.

In any event, there is no conflict, even in rationale.

To be sure, City of New York held that prior to

enactment of the Clean Air Act, federal common law

used to govern claims like respondents’. See 993 F.3d

at 90-95. However, that is not the question upon

which petitioners say the circuits are divided,

presumably because the Tenth Circuit did not decide

what law governed respondents’ claims prior to the

Clean Air Act. See Pet. App. 29a n.5. Instead,

petitioners claim that there is a conflict over whether

federal common law continues to “govern those claims

. . . even after statutory displacement.” Pet. 12

(emphasis added). But on that question, the Second

Circuit agreed with the Tenth that “the Clean Air Act

displaces federal common law claims concerned with

domestic greenhouse gas emissions.” 993 F.3d at 95.

The Second Circuit went on to hold that the City’s

state law claims were preempted, but not because it

viewed them as disguised federal common law claims.

Although the Second Circuit’s rationale is not entirely

clear, it appears that the court believed that state law

was preempted by federal common law before the

Clean Air Act was enacted, and that the Act did not

thereafter “resuscitate” the previously preempted

state law claims. 993 F.3d at 94-95, 98. City of New

York thus held that the suit was not viable because

state law claims simply did not exist after having once

been governed and preempted by federal common law;

it did not hold that federal common law continues to

govern such claims decades later, even after

displacement by the Clean Air Act, as petitioners

claim.5

The distinction between federal common law once

governing claims like respondents’, and federal

common law continuing to govern such claims after

the Clean Air Act, is critical not only to petitioners’

claimed conflict in reasoning, but also to whether City

of New York suggests that the Second Circuit would

have allowed removal in this case. Because nothing in

the decision suggests that the Second Circuit believes

respondents’ claims continue to be governed by federal

common law today, there is no reason to predict a

future circuit conflict on the real question presented

here, even if such speculation were a basis for

certiorari.

B. Petitioners’ Second Question Presented

Petitioners’ second question presented asks

whether a claim that is “necessarily and exclusively

governed by federal common law” can give rise to

Alternatively, the Second Circuit may have decided that the

state law claims were preempted by the Clean Air Act itself, a

ground that also would not support petitioners’ claim that the

court views such claims as presently governed by federal common

law. In considering the Clean Air Act’s effect on the City’s state

law claims, the Second Circuit rejected the City’s argument that

it should “engage in a traditional statutory preemption analysis”

under which courts apply a strong presumption against

preemption. 993 F.3d at 98 (emphasis added). But it nonetheless

asked whether the state law claims were permitted under the

Act, in what could be viewed as a statutory preemption analysis

proceeding under a presumption in favor of preemption. Id. at

98-99 (explaining that because “federal common law governed

this issue in the first place,” the court would find state claims

permitted only if “the Clean Air Act . . . authorize[d]” them).

removal jurisdiction even though “labeled as arising

under state law.” Pet. (I). The petitioners in Oakland

asked this Court to decide the same “artful pleading”

question, asserting the same circuit split.

See

Oakland Pet. 5, 24-25. Petitioners’ redux of those

arguments is no more convincing. In fact, neither of

the two cases petitioners cite as conflicting with the

decision below adopts the removal rule petitioners

advance. And both rely on an outdated conception of

federal removal jurisdiction that did not survive this

Court’s intervening decision in Grable & Sons Metal

Products, Inc. v. Darue Engineering & Manufacturing,

545 U.S. 308 (2005). No wonder, then, that neither

decision has been cited as authorizing removal of

putatively federal common law claims in the 25 years

since they were decided.

1. Petitioners’ first case, In re Otter Tail Power

Co., 116 F.3d 1207 (8th Cir. 1997), has nothing to do

with the question presented here, but rather applied

the “substantial federal question” theory of removal

this Court later modified in Grable.

The plaintiff in Otter Tail filed suit in state court

seeking to enforce a prior federal court order

delimiting the boundary between tribal and state

regulatory authority with respect to electric utilities

serving tribal lands. 116 F.3d at 1213. The Eighth

Circuit explained that under the circuit precedent of

the time, the case could be removed to federal court if

the “well-pleaded complaint establishe[d] either that

[1] federal law creates the cause of action or [2] that

the plaintiff’s right to relief necessarily depends on

resolution of a substantial question of federal law.”

Ibid. (citation omitted).6 The court concluded that this

second prong was satisfied because the plaintiff’s

complaint was “specifically premised on [an] alleged

deviation by Otter Tail from the terms of the district

court’s previous order,” which in turn was

“attempt[ing] to more precisely draw the line of Tribal

regulatory authority” based on an interpretation of

“treaty rights, acts of Congress, [and] inherent tribal

sovereignty.” Id. at 1213-14 (internal quotation marks

omitted).

Thus, contrary to petitioners’ contention, the

Eighth Circuit did not hold that federal jurisdiction

was present because the plaintiff was bringing claims

that were “governed by federal common law.” Pet. 18.

Instead, the court permitted removal because it found

that determination of the claims (whatever their

source) required a “resolution of a substantial question

of federal law.” 116 F.3d at 1213 (emphasis added,

citation omitted). In so doing, the court relied on a

branch of removal jurisdiction that permits removal

even of state law claims so long as resolving those

claims required deciding a substantial federal

question—a branch this Court later clarified and

significantly restricted in Grable. See ibid. (casting

“substantial question of federal law” removal as an

alternative to removal based on existence of a federal

cause of action); Great Lakes Gas Transmission Ltd.

P’ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329,

331 (8th Cir. 2016) (reciting same “substantial

Although no one contested jurisdiction or removal, the Eighth

Circuit considered the question sua sponte. See 116 F.3d at 1214

& n.6. The court also identified two other likely sources of federal

question jurisdiction. Id. at 1214 n.6.

question of federal law” standard, then applying the

Grable test).

Otter Tail’s precedential authority is doubtful

after Grable, which now requires considerably more

than the existence of a “substantial question of federal

law” in the case. Otter Tail, 116 F.3d at 1213 (citation

omitted); see Grable, 545 U.S. at 314 (“Instead, the

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.”).7

But regardless, even if Otter Tail were apt authority

in a case seeking review of some question under

Grable, it has no relevance here. Petitioners raised a

separate Grable claim below and do not challenge the

Tenth Circuit’s rejection of it here. See Pet. App. 39a49a.

2. Petitioners similarly claim that the Fifth

Circuit allows removal of “putative state-law claims”

when they are “governed by federal common law.” Pet.

19. But they cite (Pet. 19-20) only one decision for that

proposition, Sam L. Majors Jewelers v. ABX, Inc., 117

F.3d 922 (5th Cir. 1997). And the passage petitioners

cite to is, itself, unclear and cites no authority. See id.

at 929 (quoted at Pet. 20). Moreover, as far as

respondents can tell, no court has ever cited Majors as

establishing petitioners’ claimed rule in the quarter-

See also Gunn v. Minton, 568 U.S. 251, 258 (2013) (explaining

that pre-Grable, substantial federal question removal doctrine

resembled a “canvas . . . that Jackson Pollock got to” and that

Grable was intended to “bring some order to this unruly

doctrine”).

century since it was decided. See Pet. 19-22 (citing no

such examples). And during that time, the Fifth

Circuit has repeatedly catalogued the lawful bases for

removing state law claims to federal court without

ever citing Majors or mentioning “governed by federal

common law” as a ground for removal. See, e.g.,

Mitchel v. Bailey, 982 F.3d 937, 940 (5th Cir. 2020);

Venable v. La. Workers’ Comp. Corp., 740 F.3d 937,

941 (5th Cir. 2013); Bernhard v. Whitney Nat’l Bank,

523 F.3d 546, 551 (5th Cir. 2008).

Rather than establishing a broad new exception to

the well-pleaded complaint rule—without acknowledgement, analysis, or citation to authority—it is more

likely that the panel in Majors upheld removal based

on the same understanding of pre-Grable removal law

as the Eight Circuit in Otter Tail, believing that the

simple existence of a substantial federal question in

the case (such as the relationship between the

plaintiff’s claims, federal common law, and the Airline

Deregulation Act) supported removal of the state law

claims before it. Petitioners themselves suggest as

much. They cite Torres v. Southern Peru Copper Corp.,

113 F.3d 540 (5th Cir. 1997), as applying the same rule

as Majors and describe that rule as “permitting

removal where a state-law claim raised ‘substantial

questions of federal common law.’” Pet. 20 (quoting

Torres, 113 F.3d at 542-43). But as discussed, if that

was the rationale for the ruling, the decision has

nothing to do with the second question presented, does

not conflict with the Tenth Circuit’s decision in this

case, and is no longer good law after Grable.

Even if Majors permitted removal because it

viewed the plaintiff’s suit as effectively raising federal

claims, those claims were materially different than the

ones asserted here. The Fifth Circuit explained that

the relevant federal common law had developed after

Congress “totally preempted state regulation of the

liability of common carriers,” 117 F.3d at 926, and had

then been expressly ratified by statute, id. at 926-29.

The court stressed that “[b]ecause we rely upon the

historical availability of this common law remedy, and

the statutory preservation of the remedy, our holding

today is necessarily limited.”

Id. at 929 n.16

(emphasis added). Indeed, the opinion is clear that the

court would have reached the opposite conclusion if, as

in this case, the federal statute had displaced the

relevant federal common law rather than ratified it.

Id. at 928-29 (holding case was removable because

statutory “savings clause had the effect of preserving

the clearly established federal common law cause of

action against air carriers for lost shipments”).

At bottom, the precise removal theory applied by

Majors is uncertain, but the Fifth Circuit itself has

never treated it as creating a new category of removal

for state law claims governed by federal common law.

If the second question presented is as recurring and

important as petitioners claim, the Fifth Circuit will

no doubt clarify the decision in due course. Until then,

certiorari would be premature.

II. Petitioners’ Questions Presented Are Not

Recurringly Important.

Denying review is also appropriate because

petitioners’ questions presented have no recurring

importance. This case presents an exceedingly narrow

and unusual question: whether defendants can

remove state law claims that were supposedly once

governed by a body of federal common law that was

later displaced by a federal statute, when the new

statute provides no basis for removal and the

defendant cannot satisfy the requirements for

complete preemption. Other than the handful of cases

like respondents’ in which the issue has recently been

litigated, petitioners identify no other situation in

which this question has ever arisen or ever likely will.

Petitioners say the present litigation against

energy companies is reason enough to grant review.

But Oakland was one of those cases, and this Court

was aware of the others petitioners cite when it denied

certiorari in Oakland. The Court either decided that

the question was insufficiently important to warrant

certiorari or that review should await emergence of a

circuit conflict. Since then, no split has emerged, and

petitioners identify no reason why the question is

more important now than it was last summer.

Petitioners try to argue that by dividing the

removal question into two parts, and casting the

second question in broader terms, this case has

implications beyond the climate change suits. See Pet.

29. But that assertion goes unsubstantiated, as

petitioners must stretch to find even a couple of dated

and disputable instances outside the climate context

in which the question has ever even arguably been

litigated, even though the question could have arisen

at any point in the long history of removal and federal

common law. See Pet. 18-20, 29.

III. This Case Is A Poor Vehicle.

Even if petitioners’ questions presented

warranted review in some case, this one is a poor

vehicle for deciding either one.

1. The premise of both questions is that

respondents’ claim falls within the scope of the federal

common law of interstate air pollution that existed

prior to the Clean Air Act. See Pet. (I). As discussed

below, that premise is incorrect. See infra 20-21. The

more important point for certiorari, however, is that

the panel below expressly did not decide that

foundational question. Pet. App. 29 n.5. The closest it

came was expressing substantial skepticism of

petitioners’ position. Ibid.

Even if deciding the contours of an extinct branch

of federal common law were worth this Court’s time in

an appropriate case, this Court is “a court of review,

not of first view.” Cutter v. Wilkinson, 544 U.S. 709,

718 n.7 (2005). The Court can and should await a case

in which all aspects of the questions presented have

been passed on below.

2. Relatedly, the answer to petitioners’ first

question (whether federal common law necessarily

governs respondents’ claims) makes no difference to

the outcome of this case unless the Court also grants

certiorari and reverses on their second (holding that

such claims are removable even when the plaintiff

pleads only state law causes of action). The Court thus

risks devoting substantial resources to deciding the

first question only to ultimately hold the answer does

not matter. Or the Court might consider the artful

pleading question first, resolve it against petitioners,

and therefore never reach the first question. If the two

questions are independently certworthy, they should

present themselves more cleanly in future cases.

3. The case also is a poor vehicle because

although petitioners suggest that their removal theory

may be supportable as a species of Grable removal, see

Pet. 29, the Tenth Circuit held that argument waived

below because petitioners raised it for the first time in

a supplemental brief. See Pet. App. 33a n.6.

More generally, petitioners do not ask this Court

to review the Grable claim they did make, or to decide

whether this case qualifies for removal under the

traditional complete preemption doctrine.

selectively pressing only their most novel theory in

this Court, petitioners would put this Court in the

awkward position of having to decide whether to

create a substantial new exception to the well-pleaded

complaint rule without being able to consider whether

such an innovation is even necessary. At the very

least, the Court should await a case in which it is

presented the full menu of possible options for

deciding the removability of climate-change-related

cases.

IV. The Decision Below Is Correct.

Certiorari is further unwarranted because the

uniform conclusion of the courts of appeals is correct.

Petitioners’ contrary arguments are little more than

wordplay designed to circumvent the well-established

rule that preemption defenses provide no basis for

removal. See, e.g., Franchise Tax Bd. v. Constr.

Laborers Vacation Trust, 463 U.S. 1, 12 (1983).

1. Petitioners’ argument proceeds in three steps.

First, they say, “[f]ederal common law supplies the

rule of decision” for cases “that implicate ‘uniquely

federal interests,’” including, supposedly, the kinds of

claims brought in this case for local harms arising out

of petitioners’ deception and other contributions to

climate change. Pet. 24. Second, for that reason, “the

Constitution dictates that federal law must govern

controversies over inter-state pollution.” Pet. 25.

Putting these two points together, they insist, “leads

to a straightforward result: respondents’ climatechange claims necessarily arise under federal, not

state, law.” Ibid.

As noted earlier, petitioners’ initial premise that

this case falls within the body of federal common law

developed to decide certain interstate pollution cases

was not decided below. And although it argues

otherwise in this case, petitioner Exxon has insisted

elsewhere that claims like respondents’ would fall

outside the scope of the federal common law of

transboundary air pollution. See Answering Br. for

Defendants-Appellees at 56-61, Native Vill. of

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

2012) (No. 09-17490).

Exxon was right before and is wrong now. See

Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44, 5456 (1st Cir. 2022); Mayor & City Council of Balt. v. BP

P.L.C., 31 F.4th 178, 202-04 (4th Cir. 2022). “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). This Court has never

recognized a sweeping federal common law governing

every action touching upon interstate pollution.

Contra Pet. 24. To the contrary, the Court has applied

federal common law only to “suits brought by one State

to abate pollution emanating from another State.”

Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 42122 (2011) (AEP); see also Pet. App. 29a n.5. Applying

federal common law to the claims in this case would

require significant extensions of prior cases along

multiple dimensions. See AEP, 564 U.S. at 422 (noting

Court has “not yet decided whether private citizens . . .

or political subdivisions . . . of a State may invoke the

federal common law of nuisance to abate out-of-state

pollution”); ibid. (“Nor have we ever held that a State

may sue to abate any and all manner of pollution

originating outside its borders.”); Pet. App. 29a n.5

(noting it is “also unsettled whether the federal

common law of interstate pollution covers suits

brought against product sellers rather than emitters”);

Rhode Island, 35 F.4th at 54 (rejecting defendants’ bid

to extend federal common law to claims for “climate

change-related harms . . . caused by deliberately

misrepresenting the dangers they knew would arise

from their deceptive hyping of fossil fuels”).

Petitioners cannot demonstrate that such extensions

are necessary, particularly when Congress is able to

provide any needed federal regulation or preemption

in this area.

But even setting that aside, petitioners’ leap from

the premise that federal law must govern a particular

claim to the conclusion that any state law claim

addressing the same topic is a federal claim is a

complete non sequitur. The same could be said of just

about any state law claim that is preempted by federal

law. After all, the Constitution dictates that state law

cannot apply when preempted by any kind of federal

law. See U.S. Const. art. VI, cl. 2 (Supremacy Clause).

And with state law preempted, the only possible

source of claims is federal law. One could say that this

means that any preempted state law claim really is a

federal law claim. But that would mean that any

preemption defense justifies removal even though the

Court has held the opposite since the late 1800s.

Of course, petitioners are right that there is a

narrow class of state law claims that are not simply

doomed to fall to a preemption defense, but rather

“inherently are federal claims, arising under federal

law.” Pet. 28. They are state law claims that meet this

Court’s strict requirement for “complete pre-emption.”

See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386,

393 (1987). But petitioners are not arguing that

respondents’ state law claims are completely

preempted by federal common law or anything else.

The Tenth Circuit rejected that possibility below, in

part because petitioners cannot meet the basic

requirement that the federal law with preemptive

force provide a substitute cause of action vindicating

the same interest as the state law claim. See Pet. App.

32a, 34a-38a. Instead of challenging that conclusion,

or asking that the Court revise the rules for complete

preemption, petitioners insist that there is another

class of state law claims that “inherently are federal

claims,” Pet. 28, even if they do not satisfy the Court’s

test for complete preemption.

Asking the Court to create a new exception to the

well-pleaded complaint rule that sounds a lot like

complete preemption but is not subject to that

doctrine’s requirements would be difficult enough to

justify on its own. The Court has strictly adhered to

the well-pleaded complaint rule for more than a

century,8 and when it has recognized exceptions, it has

kept them exceedingly narrow. See, e.g., Empire

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

699 (2006); Caterpillar, 482 U.S. at 393-94. Indeed, in

modern times, rather than add new exceptions, the

See, e.g., Rivet v. Regions Bank of La., 522 U.S. 470, 475

(1998) (citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149,

152 (1908)).

Court has focused on narrowing those that exist. See,

e.g., Grable, 545 U.S. at 312-13. That reticence is

particularly appropriate because Congress is fully

equipped to decide for itself when to authorize

additional exceptions and has done so on several

occasions.

See 28 U.S.C. § 1442(a); 42 U.S.C.

§ 2014(hh).

Petitioners’ new proposed exception is anything

but narrow. At a minimum, petitioners seem to think

the category includes every instance in which federal

common law preempts state law, given federal

common law is always founded in “basic interests of

federalism” and the “overriding federal interest in the

need for a uniform rule of decision.” Pet. 25 (citation

omitted).

Even that is an immensely broader

exception than anything this Court has ever

recognized. But petitioners offer no reason why

concerns about uniformity and federalism should not

also create removal jurisdiction when Congress

(rather than a judge) decides that federalism interests

and the need for national uniformity justify

preempting state law.

If petitioners have a limiting principle for

distinguishing between completely preempted claims,

preempted but unremovable claims, and claims that

are not completely preempted but nonetheless

“inherently are federal claims,” they have yet to unveil

it. That petitioners offer “no idea how a court would

make that judgment” is “one more good reason to

reject” their proposal. Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Manning, 578 U.S. 374, 393 (2016).

2. For these reasons, petitioners’ arguments

would be hard to swallow if the federal common law

they invoke actually existed. But as every court to

have considered the question has rightly concluded, it

does not. See supra n.2.

So what is the point of removal, then? Ordinarily,

removal is allowed to provide the defendant a federal

forum for adjudicating the plaintiff’s federal claims,

whether those claims are expressly pleaded as federal

claims or are rendered federal claims through

complete preemption.

But here, petitioners

acknowledge—indeed, insist—that there is no federal

common law claim to adjudicate. Consequently,

neither petitioners nor the complaint ask any court—

state or federal—to decide any federal claim in this

case. As masters of their complaint, respondents have

elected to put all their eggs in a state law basket. If a

court finds those claims preempted, the complaint will

be dismissed. The only federal question this case

poses, then, is whether federal law preempts those

state law claims. And it has been established for

generations that a defendant’s fervent desire to

present a preemption defense to a federal court is no

ground for removal. Franchise Tax Bd., 463 U.S. at

12.

3. All these contortions to avoid this Court’s

settled removal rules are particularly pointless

because petitioners’ preemption argument is

incoherent, simultaneously insisting that state law is

preempted by federal common law and arguing

Congress displaced that judge-made law decades

before this suit was filed. Petitioners try to untangle

this knot of illogic in two ways, but fail on each

attempt.

First, they suggest that after enactment of the

Clean Air Act, the relevant federal common law is just

mostly dead. They say the Act extinguished the

federal common law’s “remed[ies],” but not its power

to preempt state law. Pet. 26. Nonsense. As this

Court has held in a parallel context, the repeal of a

statute that previously preempted state law does not

“leave behind a pre-emptive grin without a statutory

cat.” P.R. Dep’t of Consumer Affs. v. Isla Petroleum

Corp., 485 U.S. 495, 504 (1988). Once “Congress

addresses a question previously governed” by “federal

common law,” the “need for such an unusual exercise

of law-making by federal courts disappears.” AEP, 564

U.S. at 423 (citation omitted). That includes the need

for judges to decide whether there remains an

“overriding federal interest in the need for a uniform

rule of decision” or otherwise good policy reasons to

preclude (or permit) a degree of state regulation or

litigation in the field. Pet. 25 (citation omitted). AEP

thus made it perfectly clear that after the Court’s

“holding that the Clean Air Act displaces federal

common law, the availability vel non of a state lawsuit

depends” on the “preemptive effect of the federal Act.”

564 U.S. at 429.

Second, petitioners suggest that once federal

judges decide that federal common law, rather than

state law, should govern a subject, that judicial

decision forever extinguishes state law, even after

Congress abrogates the preempting federal common

law. Pet. 26. Indeed, petitioners go so far as to claim

that the Constitution bars state law from applying to

interstate pollution claims. Pet. 26-27. Consequently,

they argue, “there is no state law for the Clean Air Act

. . . to resurrect.” Pet. 26. None of that is correct.

This Court has never held federal preemption of

state law extinguishes that law forever, as if federal

judges had the power to repeal state laws and require

states to re-enact them once the federal barrier to its

enforcement is removed (a particularly implausible

suggestion when, as here, the state law at issue is

itself common law). Cf. Murphy v. Nat’l Collegiate

Athletic Ass’n, 138 S. Ct. 1461, 1486 (2018) (Thomas,

J., concurring) (“[C]ourts do not have the power to

‘excise’ or ‘strike down’ statutes,” but rather decline to

enforce them when inconsistent with higher authority)

(citation omitted).

Petitioners’ contrary position cannot be squared

with this Court’s decision in International Paper Co. v.

Ouellette, 479 U.S. 481 (1987). There, the Court

explained that prior to the 1972 amendments to the

Clean Water Act, interstate disputes over water

pollution were “resolved by reference to federal

common law,” the “implicit corollary” of which was

“that state common law was pre-empted.” Id. at 488.

This Court subsequently held that the amended Clean

Water Act “occupied the field, pre-empting all federal

common law.” Id. at 489. On petitioners’ logic, that

should have meant that there was “no state law for the

[Clean Water Act] to resurrect.” Pet. 26. Yet, in

Ouellette, this Court acted on the opposite

understanding, carefully considering whether state

common law—whose continued existence the Court

took for granted—was preempted by the Clean Water

Act. See 479 U.S. at 491 (“With this regulatory

framework in mind, we turn to the question presented:

whether the Act pre-empts Vermont common law to

the extent that law may impose liability on a New

York point source.”). And while the Court found

Vermont’s law preempted to the extent it might apply

to an out-of-state polluter, it held that a source State’s

common law remained available to address interstate

pollution. Id. at 497-99.

Congress

obviously

shared

this

Court’s

understanding that state common law survived an

interim period of preemption by federal common law.

In both the Clean Water Act and the Clean Air Act,

Congress enacted savings clauses preserving aspects

of the state law petitioners insist either never existed

or were long ago extinguished by federal common law.

See 42 U.S.C. § 7416; 33 U.S.C. § 1365(e).9

Contrary to petitioners’ remarkable suggestion,

nothing in the “Constitution dictates that federal law

must govern controversies” judges once thought best

dealt with exclusively by federal common law. Pet. 25

(emphasis added). If taken seriously, that assertion

would call into question whether Congress could ever

allow state law a role in governing interstate pollution

or any other topic judges saw fit to regulate for a time

through federal common law. There is no basis for

that suggestion. What the “Constitution dictates” is

judicial subservience to Congress’s legislative

judgment on such questions, including on matters of

preemption. See AEP, 564 U.S. at 429; City of

Milwaukee v. Illinois, 451 U.S. 304, 313 (1981) (“[T]he

decision whether to displace state law . . . is generally

made not by the federal judiciary, purposefully

insulated from democratic pressures, but by the people

through their elected representatives in Congress.”).

See also, e.g., Fort Halifax Packing Co. v. Coyne, 482 U.S. 1,

13 n.7 (1987) (describing how “Congress amended ERISA to

exempt from pre-emption certain provisions of the Hawaii Act in

place before the enactment of ERISA”).

4. Petitioners’ invocation of the rule against

“artful pleading” adds nothing to the case.

Respondents would agree that if their claims really are

federal claims under the complete preemption test,

they could not artfully plead around removal. But

petitioners cite no authority holding that the artful

pleading doctrine expands the universe of removable

claims. It is a “corollary” to the substantive removal

rules, not an independent source of removal authority.

Franchise Tax Bd., 463 U.S. at 22.

Petitioners dispute the Tenth Circuit’s holding

that the artful pleading doctrine is limited to complete

preemption cases. Pet. 28. But the Tenth Circuit was

simply following this Court’s lead, and petitioners cite

no case from any court holding otherwise. See Rivet v.

Regions Bank of La., 522 U.S. 470, 475 (1998) (“The

artful pleading doctrine allows removal where federal

law completely preempts a plaintiff’s state-law

claim.”); Pet. 28-29.

The prevailing understanding makes perfect

sense. It is only when the preemption is complete that

removal provides a forum for something beyond an

ordinary preemption defense, allowing a federal court

to decide not only whether state law persists but also

whether the plaintiff has a claim under the substitute

federal cause of action. Put another way, outside cases

of complete preemption, pleading a preempted state

claim instead of a potentially viable federal cause of

action is not artfully evading anything—the state law

claim will be dismissed as preempted, and the

potential federal claim will never be adjudicated

because it was never presented.

At the very least, even if the artful pleading

doctrine applied to attempts to avoid other forms of

removal (say, under Grable), it surely was never

intended to be an end-run around the fundamental

rule against removal based on ordinary preemption

defenses. The only artful pleading in this case was in

petitioners’ removal papers.

5. Finally, petitioners’ policy objections to the

current removal rules have no merit.

Petitioners say that unless this Court accepts

their new removal theory, “a claim for interstate

pollution could never be removed to federal court.”

Pet. 30. That is not necessarily so—rejecting

petitioners’ novel theory does not preclude removal in

appropriate cases based on diversity or other

established grounds. See, e.g., City of New York, 993

F.3d at 94 (jurisdiction founded on diversity). But

more importantly, there is nothing problematic about

state courts adjudicating federal preemption defenses.

See, e.g., Vaden v. Discover Bank, 556 U.S. 49, 61 n.12

(2009).

They do it all the time. Indeed, the

presumption that state courts can and will properly

apply federal preemption doctrines is precisely why

the well-pleaded complaint doctrine does not permit

removal based on a federal preemption defense.

Petitioners complain that without a right to

remove, defendants may be subject to “potentially

conflicting state-court lawsuits.” Pet. 30. That is

certainly not true in this case, where respondents seek

only monetary relief, not any injunction or other

remedy that would subject petitioners to conflicting

directions regarding how to conduct their businesses.

See supra 2-3. State courts routinely adjudicate cases

where a company’s deceptive marketing and sales of a

dangerous product have caused harm within the

State; that is not normally a reason for a uniform

federal rule.

In any event, the prospect of conflicting lawsuits

is an argument in favor of federal preemption, not an

argument about which court should decide the

preemption question. See Merrell Dow Pharms. Inc. v.

Thompson, 478 U.S. 804, 816 (1986).

If the

preemption defense has merit, there is no reason to

think that state courts are more likely than federal

courts to wrongly allow the suits to go forward. See,

e.g., Manning, 578 U.S. at 390-91. And whether the

preemption defenses are litigated in state or federal

court, this Court will retain jurisdiction to ensure that

the federal preemption rules are properly applied. See

Franchise Tax Bd., 463 U.S. at 12 n.12. If more is

needed, Congress stands ready to adjust removal rules

as appropriate. See, e.g., Class Action Fairness Act of

2005, Pub. L. No. 109-2, § 5, 119 Stat. 4, 12-13

(expanding removal rights in certain mass litigation

cases).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,