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

No. 21-1550

In the Supreme Court of the United States

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

v.

BOARD OF COUNTY COMMISSIONERS

OF BOULDER COUNTY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

HUGH QUAN GOTTSCHALK

ERIC L. ROBERTSON

WHEELER TRIGG

O’DONNELL LLP

370 Seventeenth Street,

Suite 4500

Denver, CO 80202

COLIN G. HARRIS

FAEGRE DRINKER

BIDDLE & REATH LLP

1470 Walnut Street,

Suite 300

Boulder, CO 80302

KANNON K. SHANMUGAM

Counsel of Record

WILLIAM T. MARKS

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

TABLE OF CONTENTS

Page

A. The decision below implicates conflicts among

the courts of appeals on both questions presented............. 2

B. The decision below is incorrect ............................................. 6

C. The questions presented are important

and warrant the Court’s review in this case ........................ 9

TABLE OF AUTHORITIES

Cases:

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) ............................................................ 7

BP p.l.c. v. Mayor & City Council of Baltimore,

141 S. Ct. 1532 (2021) .............................................. 1, 2, 10

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) ............... 9

Chevron Corp. v. City of Oakland,

141 S. Ct. 2776 (2021) ...................................................... 10

City of Hoboken v. Chevron Corp.,

No. 21-2728, 2022 WL 3440653

(3d Cir. Aug. 17, 2022) ................................................ 5, 10

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ......................................... 2, 3, 4

Collins v. Yellen, 141 S. Ct. 1761 (2021) ............................. 11

Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983) ................................... 8

Grable & Sons Metal Products, Inc.

v. Darue Engineering & Manufacturing,

545 U.S. 308 (2005) ........................................................ 5, 6

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ............... 5

International Paper Co. v. Ouellette,

479 U.S. 481 (1987) ............................................................ 8

Lebron v. National Railroad Passenger Corp.,

513 U.S. 374 (1995) ............................................................ 6

Metropolitan Life Insurance Co. v. Taylor,

481 U.S. 58 (1987) .............................................................. 8

(I)

II

Page

Cases—continued:

National Farmers Union Insurance Cos.

v. Crow Tribe, 471 U.S. 845 (1972) .................................. 5

Oneida Indian Nation v. County of Oneida,

414 U.S. 661 (1974) ............................................................ 7

Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015) ................. 8

Otter Tail Power Co., In re,

116 F.3d 1207 (8th Cir. 1997) ....................................... 5, 6

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

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

Shinn v. Ramirez, 142 S. Ct. 1718 (2022) ............................ 6

Texas Industries, Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) ........................................................ 8, 9

Statute and rule:

Clean Air Act, 42 U.S.C. §§ 7401-7671q ..................... 4, 7, 10

Sup. Ct. R. 10 .......................................................................... 3

In the Supreme Court of the United States

No. 21-1550

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

v.

BOARD OF COUNTY COMMISSIONERS

OF BOULDER COUNTY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

The decision below implicates conflicts on two exceptionally important jurisdictional questions that have

arisen with particular frequency in the numerous and materially identical climate-change cases pending in courts

across the Nation. This is the first case to reach the Court

on those questions since the decision in BP p.l.c. v. Mayor

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

this case is uniquely positioned among the group of cases

currently headed to the Court. It involves a smaller group

of defendants and thus is less likely than those cases to

present recusal issues. And it would allow the Court to

(1)

2

decide the questions presented in this Term, instead of allowing those cases to gallop ahead in state court for an

indefinite time.

In their brief in opposition, respondents devote more

attention to arguing the merits than to addressing the traditional certiorari factors. That is telling. On the first

question presented, respondents cannot plausibly reconcile the decision below with the Second Circuit’s decision,

and they blatantly ignore the decisions of the First and

Fourth Circuits expressly rejecting the Second Circuit’s

reasoning. Only by doing so can respondents suggest that

little has changed since the Court declined review in the

immediate wake of BP. Respondents fare no better when

they attempt to reconcile the conflicting decisions on the

second question.

When respondents dispute the importance of the questions presented, they veer into fantasyland. The resolution of those questions will determine whether state

courts have the power to impose the costs of global climate

change on the energy industry. And respondents identify

no valid obstacle to the Court’s review of those questions

here. Because this case presents the Court’s best approaching opportunity to address the jurisdiction of the

federal courts over climate-change claims, and because

the immediate resolution of the questions presented will

greatly serve the interests of judicial economy, the petition for a writ of certiorari should be granted.

A. The Decision Below Implicates Conflicts Among The

Courts Of Appeals On Both Questions Presented

Three courts of appeals, including the court below,

have rejected the Second Circuit’s holding in City of New

York v. Chevron Corp., 993 F.3d 81 (2021), that federal

common law necessarily and exclusively governs claims

seeking redress for injuries allegedly caused by the effect

3

of interstate greenhouse-gas emissions on the global climate. See Pet. 11-17. The courts of appeals have also split

on the question whether federal jurisdiction extends to

claims necessarily and exclusively governed by federal

common law but labeled as arising under state law. See

Pet. 17-23. Respondents’ efforts to wave away those conflicts (Br. in Opp. 7-16) are unpersuasive.

1. On the first question presented, respondents argue

(Br. in Opp. 8) that the “only” conflict petitioners raise lies

between the decision below and the Second Circuit’s decision in City of New York. But they entirely ignore the decisions of the First and Fourth Circuits, which expressly

reject the Second Circuit’s holding that federal common

law governs materially identical climate-change claims.

See Pet. 15-17. That silence speaks volumes.

Respondents halfheartedly contend (Br. in Opp. 8-9)

that no conflict exists between the decision below and City

of New York, noting that the Second Circuit did not decide

the first question presented in the specific context of assessing the presence of federal jurisdiction. But as petitioners have explained (Pet. 14-15), that distinction is irrelevant, because the well-pleaded complaint rule has

nothing to do with the question of whether federal common law governs claims such as those asserted here. Respondents offer no meaningful response. And contrary to

respondents’ suggestion, this Court grants certiorari to

resolve conflicts over federal questions, not conflicts over

cases’ outcomes. See Sup. Ct. R. 10. The mere fact that

the Second Circuit did not have occasion to address the

second question presented does not preclude the existence of a conflict with decisions that addressed the first.

When respondents finally attempt to reconcile the decision below with City of New York (Br. in Opp. 10-11),

their efforts are unavailing. Respondents contend that

the Second Circuit held that federal common law once

4

governed similar claims, but that the Clean Air Act now

provides the exclusive source of federal law that operates

on such claims. Respondents thus understand the Second

Circuit to have held only that the Act does not “ ‘resuscitate’ the previously preempted state law claims,” rather

than that federal common law continues to displace state

law after the Act’s enactment. Br. in Opp. 10 (citation

omitted).

There are two principal flaws in that argument. First,

the Second Circuit expressly concluded that the plaintiff—whose claims long postdated the Clean Air Act—

brought “federal claims” that must arise “under federal

common law.” 993 F.3d at 95; see also id. at 95, 98, 101

(describing the claims as “federal common law claims”).

Second, after concluding that the plaintiff’s claims were

federal claims, the Second Circuit declined to apply a “traditional statutory preemption analysis” and instead reasoned that “state law does not suddenly become presumptively competent to address issues that demand a unified

federal standard simply because Congress saw fit to displace a federal court-made standard with a legislative

one.” Id. at 98. The Second Circuit’s holding that federal

law continues to displace state law in this area cannot be

reconciled with respondents’ assertion that the court held

only that the Clean Air Act did not revive state law.

For that reason, City of New York can only be understood to hold that federal common law governs in this

area, even after the Act displaces any remedy available

under federal common law. That holding squarely conflicts with the holding below that “the federal common law

of nuisance that formerly governed transboundary pollution suits no longer exists,” allowing a plaintiff to assert

“only state-law claims” in this area. Pet. App. 29a, 30a.

2. On the second question presented, respondents

primarily argue (Br. in Opp. 14, 15) that no conflict exists

5

because the decisions of the Fifth and Eighth Circuits

were early applications of the “substantial federal question” doctrine that this Court subsequently synthesized in

Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005). Respondents’

characterization of those decisions is incorrect.

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

(1997), the Fifth Circuit did not cite any of the precursors

to Grable when concluding that federal jurisdiction was

present; rather, it relied on two of this Court’s cases involving federal common law. See id. at 926 (citing Illinois

v. City of Milwaukee, 406 U.S. 91, 100 (1972), and National Farmers Union Insurance Cos. v. Crow Tribe, 471

U.S. 845, 850 (1972)); see also City of Hoboken v. Chevron

Corp., No. 21-2728, 2022 WL 3440653, at *3 (3d Cir. Aug.

17, 2022) (expressly declining to follow Sam L. Majors).

And while the Eighth Circuit in In re Otter Tail Power

Co., 116 F.3d 1207, 1213 (1997), briefly mentioned jurisdiction based on the presence of a “substantial question of

federal law,” it too ultimately relied on precedent from

this Court involving federal common law. See id. at 1214

(citing National Farmers Union, supra).

In any event, even if respondents’ characterization

were correct, it is merely a matter of labeling; it would not

eliminate the conflict. Either way, those cases would still

permit removal of respondents’ claims. After all, another

way to characterize petitioners’ argument that respondents’ claims are federal in nature is to say that federal substantive law governs every element of respondents’

claims, such that each element presents a substantial

question of federal law.

In a related vein, respondents suggest (Br. in Opp. 1819) that the Court would be unable to consider this case in

terms of the Grable doctrine because respondents forfeited the ability to rely on it. No forfeiture occurred here.

6

Petitioners’ consistent position has been that federal jurisdiction exists because “federal common law supplies

the rule of decision for [respondents’] claims.” Pet. C.A.

Br. 26. The question whether to conceptualize that argument in terms of the Grable doctrine or a separate jurisdictional framework is academic; at most, it involves a

“new argument to support what has been [petitioners’]

consistent claim,” not a “new claim” that is subject to forfeiture. Lebron v. National Railroad Passenger Corp.,

513 U.S. 374, 379 (1995). To the extent it concluded otherwise, the court below erred. See Pet. App. 33a-34a n.6.

And in any event, the Court has “discretion to forgive any

forfeiture.” Shinn v. Ramirez, 142 S. Ct. 1718, 1730 n.1

(2022).

Respondents are also incorrect that Sam L. Majors

and Otter Tail are “no longer good law after Grable.” Br.

in Opp. 15. Even viewed through the lens of Grable, the

federal questions in those cases were substantial and disputed, and there is no reason to think that their resolution

in federal court would disrupt the federal-state balance.

See Grable, 545 U.S. at 314. There is thus a clear conflict

on the second question presented, as well as the first.

B. The Decision Below Is Incorrect

Respondents devote significant time (Br. in Opp. 1930) to defending the court of appeals’ decision on the merits. Petitioners offer just a few additional points here and

leave fuller responses to subsequent merits briefing if certiorari is granted.

1. Respondents contend (Br. in Opp. 20-21) that “significant extensions” of this Court’s precedent would be

necessary in order to apply federal common law to their

claims in the first instance. Not so. Though one would

never know it from respondents’ brief, this Court has applied federal rules of decision to claims seeking redress

7

for injuries allegedly caused by interstate air and water

pollution for well over a century. See Pet. 24-25. It matters not that respondents, as the plaintiffs below, are municipal governments rather than States. See Br. in Opp.

20-21. This Court has applied federal common law to lawsuits in which neither the federal government nor a State

was a party. See, e.g., Boyle v. United Technologies Corp.,

487 U.S. 500, 511 (1988).

2. Respondents further contend (Br. in Opp. 24-25)

that, even if federal common law once governed their

claims, the Clean Air Act has displaced that body of federal law and thus eliminated any basis for federal jurisdiction. That argument lacks merit for several reasons.

To begin with, it conflates jurisdiction with the merits.

See Pet. 26. Whether a party can obtain a remedy under

federal common law on the merits is a distinct question

from whether the claim arises under federal common law

for jurisdictional purposes. The Court made this very

point in Oneida Indian Nation v. County of Oneida, 414

U.S. 661 (1974), explaining that a claim governed by federal common law arises under federal law for “jurisdictional purposes” even if the claim “may fail at a later stage

for a variety of reasons.” Id. at 675.

In addition, the upshot of respondents’ argument is

that the Clean Air Act’s displacement of a remedy under

federal common law somehow revives otherwise inoperable state law. But such displacement “does not mean the

door was opened for tort claims based on the common law

of an affected State targeting conduct in another State.”

U.S. Br. at 27, BP, supra (No. 19-1189). Only federal law

can apply in cases involving “interstate and international

disputes implicating the conflicting rights of States,” because “our federal system does not permit the controversy to be resolved under state law.” Texas Industries,

Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981);

8

see Pet. 26; States Br. 3-9. And while Congress may enact

a savings clause to revive state law in certain circumstances, respondents do not argue that the Act’s savings

clause authorizes their claims. See International Paper

Co. v. Ouellette, 479 U.S. 481, 492, 497 (1987).

3. Respondents also contend (Br. in Opp. 22-23, 2829) that the well-pleaded complaint rule bars the exercise

of jurisdiction over its claims. But respondents are wrong

to suggest that the application of federal common law to

their claims here is an exercise in ordinary preemption.

Ordinary preemption is a defense to a plaintiff’s claim.

Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58,

63 (1987). And where such a defense applies, it “invalidate[s]” the plaintiff’s claim and thus prohibits the plaintiff from proceeding with that claim. See Oneok, Inc. v.

Learjet, Inc., 575 U.S. 373, 376 (2015). By contrast, where

federal common law supplies the substantive law governing the plaintiff’s claim, the plaintiff may proceed with its

claim, but under principles of federal and not state law.

Respondents suggest that petitioners’ position would

require the creation of a “new exception” to the wellpleaded complaint rule. Br. in Opp. 22. Wrong again.

This Court has already held that an “independent corollary” of the rule is that a plaintiff “may not defeat removal” through artful pleading: that is, by “omitting to

plead necessary federal questions in a complaint.” Franchise Tax Board v. Construction Laborers Vacation

Trust, 463 U.S. 1, 22 (1983). A federal question is “necessary” for purposes of that rule where, as here, the constitutional structure mandates the application of federal law.

See Pet. 24-25; U.S. Br. at 28, BP, supra.

Respondents argue (Br. in Opp. 28) that the artfulpleading doctrine is limited to the context of statutory

complete preemption. But this Court has never so held,

and drawing a line between statutory claims and claims

9

necessarily and exclusively governed by federal common

law would lead to bizarre results. Because claims necessarily and exclusively governed by federal common law

would proceed in state court, see p. 8, supra, state judges

would be tasked with developing the substantive content

of federal common law in the first instance, subject only

to ultimate review by this Court. Through artful pleading

and venue selection, plaintiffs could effectively prevent

the federal judiciary from developing the federal common

law in areas implicating “uniquely federal interests,” including “interstate and international disputes implicating

the conflicting rights of States.” Texas Industries, 451

U.S. at 640; see ALF Br. 17-21; NAM Br. 8-12.

Indeed, this Court has already recognized that federal

common law can function in the same way as completely

preemptive statutes in the context of “a state-law complaint that alleges a present right to possession of Indian

tribal lands.” Caterpillar Inc. v. Williams, 482 U.S. 386,

393 n.8 (1987). The same is true for putative state-law

claims seeking redress for injuries allegedly caused by interstate or international emissions. Far from creating a

“new exception” (Br. in Opp. 22), the Court need only apply familiar jurisdictional principles to this context in order to decide the case in petitioners’ favor.

C. The Questions Presented Are Important And Warrant

The Court’s Review In This Case

This case is an ideal vehicle for resolving the questions

presented and is uniquely positioned among the climatechange cases currently headed to the Court for at least

two reasons. First, it involves a smaller set of defendants

than those cases and is thus less likely to present recusal

issues. And second, it allows the Court to determine the

appropriate forum for these cases in this Term rather

than in a subsequent one, which would limit the waste of

10

judicial and party resources litigating the merits in state

court if the Court ultimately holds that federal jurisdiction is present. See Chamber Br. 13-16. Respondents’

pleas for the Court to deny or defer review ring hollow.

1. Respondents contend that the questions presented

are not worthy of review because they have “no recurring

importance.” Br. in Opp. 16. That is preposterous. The

questions presented are of vital importance in the nearly

two dozen climate-change cases—seeking vast damages

from the energy industry—currently pending in courts

across the country. See States Br. 10-13; API Br. 15-21;

WLF Br. 12-14. And respondents do not dispute that the

second question could arise in any case in which federal

common law provides the rule of decision but the plaintiff

labels its claims as arising under state law.

Respondents are wrong (Br. in Opp. 17) that nothing

has changed since the Court declined review in Chevron

Corp. v. City of Oakland, 141 S. Ct. 2776 (2021)—immediately after the Court’s decision in BP. The landscape has

shifted dramatically: four additional courts of appeals

have now weighed in on federal jurisdiction over the climate-change cases, addressing one or both questions presented in the process. See Pet. 15-17, 23; City of Hoboken,

supra. The deepening conflicts that have developed on

those questions make them ripe for the Court’s review.

2. Respondents argue that the Court should await a

better vehicle to address the first question because the

court of appeals “did not decide” whether “respondents’

claim falls within the scope of the federal common law of

interstate pollution that existed prior to the Clean Air

Act.” Br. in Opp. 18. But as respondents themselves

acknowledge (id. at 10), that is not the relevant question;

instead, it is whether federal common law continues to displace state law after the Act’s enactment. On that point,

the court of appeals made its view clear. See p. 4, supra.

11

Finally, respondents object (Br. in Opp. 18) that petitioners must prevail on both questions to obtain reversal

of the judgment below. True enough. But there is nothing

unusual about that, see, e.g., Collins v. Yellen, 141 S. Ct.

1761 (2021), and granting review on both questions would

provide the Court with maximum optionality to decide the

case in any way it sees fit. Because both questions are

exceedingly important and are the subject of circuit conflicts; because immediate review would serve the interests

of judicial economy and allow the Court to consider the

questions presented in a case that is less likely to present

recusal issues; and because a decision to deny review

would likely delay the resolution of the questions until

next Term if not longer, the Court should grant review in

this case.

12

*

*

*

*

*

The petition for a writ of certiorari should be granted.

Respectfully submitted.

HUGH QUAN GOTTSCHALK

ERIC L. ROBERTSON

WHEELER TRIGG

O’DONNELL LLP

370 Seventeenth Street,

Suite 4500

Denver, CO 80202

Counsel for Petitioners

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

Suncor Energy Sales Inc.,

and Suncor Energy Inc.

KANNON K. SHANMUGAM

WILLIAM T. MARKS

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

COLIN G. HARRIS

FAEGRE BRINKER

BIDDLE & REATH LLP

1470 Walnut Street,

Suite 300

Boulder, CO 80302

Counsel for Petitioner

Exxon Mobil Corporation

AUGUST 2022