Amicus Curiae Brief — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. Board of County Commissioners of Boulder County, et al.
Supreme Court briefMar 16, 2023
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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
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
TODD KIM
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
FREDERICK LIU
Assistant to the Solicitor
General
AMANDA LEITER
Senior Counsel to the
Assistant Attorney General
CHRISTINE ENNIS
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether this suit may be removed to federal court
on the ground that respondents’ state-law claims should
be recharacterized as claims arising under federal common law.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 1
Discussion ...................................................................................... 6
A. The court of appeals correctly declined to
recharacterize respondents’ state-law claims as
claims arising under federal common law ..................... 7
1. Under the well-pleaded complaint rule,
respondents’ claims do not present a federal
question ...................................................................... 7
2. No exception to the well-pleaded complaint
rule applies here ...................................................... 11
B. The decision below does not conflict with any
decision of another court of appeals ............................ 16
Conclusion ................................................................................... 22
TABLE OF AUTHORITIES
Cases:
Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) .............. 11
American Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011)............................................... 5, 11-13, 16
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003) ...... 15
BP p.l.c. v. Mayor & City Council of Baltimore,
141 S. Ct. 1532 (2021) ....................................................... 4, 6
Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) ...... 8, 9, 14
City & County of Honolulu v. Sunoco LP,
39 F.4th 1101 (9th Cir. 2022), petition for cert.
pending, No. 22-523 (filed Dec. 2, 2022) ........................... 17
City of Chicago v. International Coll. of Surgeons,
522 U.S. 156 (1997)................................................................ 8
City of Hoboken v. Chevron Corp.,
45 F.4th 699 (3d Cir. 2022), petition for cert.
pending, No. 22-821 (filed Feb. 27, 2023) ............. 16, 17, 20
(III)
IV
Cases—Continued:
Page
City of Milwaukee v. Illinois, 451 U.S. 304 (1981) ............ 13
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021) ............................................. 17-19
City of Oakland v. BP PLC, 969 F.3d 895
(9th Cir. 2020), cert. denied, 141 S. Ct. 2776 (2021)......... 17
County of San Mateo v. Chevron Corp.,
32 F.4th 733 (9th Cir. 2022), petition for cert.
pending, No. 22-495 (filed Nov. 22, 2022) ......................... 17
Empire Healthchoice Assurance, Inc. v. McVeigh,
547 U.S. 677 (2006).............................................................. 15
Franchise Tax Bd. v. Construction Laborers
Vacation Trust for S. Cal., 463 U.S. 1 (1983) ......... 9, 11, 13
Grable & Sons Metal Prods., Inc. v. Darue Eng’g &
Mfg., 545 U.S. 308 (2005)................................................ 9, 10
Gunn v. Minton, 568 U.S. 251 (2013) ................................ 1, 9
International Paper Co. v. Ouellette,
479 U.S. 481 (1987)......................................................... 13-15
Louisville & Nashville R.R. v. Mottley,
211 U.S. 149 (1908)........................................................... 8-10
Mayor & City Council of Baltimore v. BP p.l.c.,
31 F.4th 178 (4th Cir. 2022), petition for cert.
pending, No. 22-361 (filed Oct. 14, 2022) .................... 17, 20
Merrell Dow Pharms. Inc. v. Thompson,
478 U.S. 804 (1986).............................................................. 13
Merrill Lynch, Pierce, Fenner & Smith Inc. v.
Manning, 578 U.S. 374 (2016) ........................................... 10
Metropolitan Life Ins. Co. v. Taylor,
481 U.S. 58 (1987) ........................................................... 8, 15
Oneida Indian Nation of N.Y. v. County of Oneida,
414 U.S. 661 (1974).............................................................. 13
Otter Tail Power Co., In re,
116 F.3d 1207 (8th Cir. 1997) ............................................. 20
V
Cases—Continued:
Page
Rhode Island v. Shell Oil Prods. Co.,
35 F.4th 44 (1st Cir. 2022), petition for cert.
pending, No. 22-524 (filed Dec. 2, 2022) ............... 16, 17, 19
Rivet v. Regions Bank of La., 522 U.S. 470 (1998)............. 11
Sam L. Majors Jewelers v. ABX, Inc.,
117 F.3d 922 (5th Cir. 1997) ............................................... 21
Smith v. Kansas City Title & Trust Co.,
255 U.S. 180 (1921).............................................................. 10
Taylor v. Anderson, 234 U.S. 74 (1914)................................. 8
Vaden v. Discover Bank, 556 U.S. 49 (2009)......................... 8
Statutes:
Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 3
12 U.S.C. 86 ............................................................................ 15
28 U.S.C. 1331 .................................................................. 2, 3, 8
28 U.S.C. 1332 ........................................................................ 17
28 U.S.C. 1332(a) ................................................................... 15
28 U.S.C. 1441(a) ................................................................. 1, 7
28 U.S.C. 1442 ...................................................................... 2, 4
28 U.S.C. 1443 ...................................................................... 2, 4
28 U.S.C. 1446(a) ..................................................................... 2
28 U.S.C. 1446(d) ..................................................................... 2
28 U.S.C. 1447(c) ...................................................................... 2
28 U.S.C. 1447(d) ................................................................. 2, 4
29 U.S.C. 1132(a) ................................................................... 15
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
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
INTEREST OF THE UNITED STATES
This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views
of the United States. In the view of the United States,
the petition for a writ of certiorari should be denied.
STATEMENT
1. “Federal courts are courts of limited jurisdiction.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (citation omitted). Congress has specified the types of suits
that defendants may remove from state court to federal
court. The general removal statute permits the removal
of “any civil action brought in a State court of which the
district courts of the United States have original jurisdiction.” 28 U.S.C. 1441(a). Such cases include “all civil
actions arising under the Constitution, laws, or treaties
(1)
2
of the United States.” 28 U.S.C. 1331. Various specialized removal statutes—such as the federal-officer removal statute, 28 U.S.C. 1442, and the civil-rights removal statute, 28 U.S.C. 1443—permit the removal of
other types of actions.
To “effect the removal” of a suit filed in state court,
28 U.S.C. 1446(d), a defendant must file in the appropriate federal district court “a notice of removal” that “contain[s] a short and plain statement of the grounds for
removal,” 28 U.S.C. 1446(a). The plaintiff then may file
a motion to remand the case to state court, including for
lack of federal subject-matter jurisdiction. 28 U.S.C.
1447(c). “If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction,
the case shall be remanded.” Ibid. An order remanding
a case “is not reviewable on appeal or otherwise, except
that an order remanding a case to the State court from
which it was removed pursuant to section 1442 or 1443
of [Title 28] shall be reviewable.” 28 U.S.C. 1447(d).
2. Respondents are three local governmental entities in Colorado. Am. Compl. ¶ 1. Petitioners are four
energy companies that engage in “fossil fuel activities”—
i.e., the production, promotion, refining, marketing, and
sale of fossil fuels. Id. ¶ 14; see id. ¶ 2.
In 2018, respondents filed suit against petitioners in
Colorado state court. D. Ct. Doc. 6 (June 29, 2018). Respondents’ complaint alleges that petitioners’ “fossil fuel
activities” led to “use” of “fossil fuels,” which in turn
caused “greenhouse gas emissions” that contributed to
climate change. Am. Compl. ¶ 15. Respondents further
allege that petitioners “knew” about, but “affirmatively
misrepresent[ed],” the “dangers of unchecked fossil fuel
use.” Id. ¶ 18. The complaint asserts six state-law causes
of action—public nuisance, private nuisance, trespass,
3
unjust enrichment, violation of a Colorado consumerprotection statute, and civil conspiracy—and seeks
damages for climate-change-related injuries to respondents’ property and residents. Id. ¶¶ 444-541.
Petitioners removed the case to federal court pursuant to the general removal statute, the federal-officer
removal statute, and other statutes. D. Ct. Doc. 1, at 1
(June 29, 2018). With respect to the general removal
statute, petitioners asserted several grounds for concluding that respondents’ suit “aris[es] under” federal
law. 28 U.S.C. 1331; see D. Ct. Doc. 1, at 2-4. As relevant
here, petitioners contended that respondents’ claims
“are governed by federal common law.” D. Ct. Doc. 1,
at 9. Petitioners also contended that respondents’ claims
“are completely preempted by” the Clean Air Act, 42
U.S.C. 7401 et seq., which petitioners described as
“provid[ing] the exclusive cause of action for challenging
the regulation of nationwide emissions,” D. Ct. Doc. 1, at
4, 13.
Respondents moved to remand the case for lack of
federal subject-matter jurisdiction. D. Ct. Doc. 34, at 1
(July 30, 2018). The district court granted the motion
and ordered the case remanded to state court. Pet. App.
60a-114a. The district court rejected each of petitioners’ asserted grounds for removal, including under the
general removal statute and under the federal-officer
removal statute. Id. at 64a-114a. With respect to the
general removal statute, the court observed that, under
the well-pleaded complaint rule, “a case arises under
federal law ‘only when the plaintiff ’s statement of his
own cause of action shows that it is based’ on federal
law.” Id. at 64a (citation omitted). The court found that
removal of respondents’ suit was inappropriate under
that rule, explaining that respondents’ complaint “on its
4
face pleads only state law claims,” id. at 76a, none of
which has “as an element any aspect of federal law,” id.
at 84a. In the court’s view, petitioners’ assertion that the
“state law claims are governed by federal common law”
raised only an “ordinary preemption” defense, which
was insufficient to “render [the] state-law claim[s] removable to federal court.” Id. at 79a; see id. at 98a (rejecting federal common law as a ground for “complete
preemption”). The court also rejected petitioners’ reliance on the Clean Air Act, explaining that because the
Act “expressly preserves many state common law causes
of action,” “Congress did not intend the Act to provide
exclusive remedies in these circumstances, or to be a
basis for removal under the complete preemption doctrine.” Id. at 91a.
3. The court of appeals affirmed. 965 F.3d 792. The
court concluded that, under Section 1447(d), a district
court’s remand order is reviewable “only to the extent
it addresses” the statutory grounds for removal “explicitly” referenced in Section 1447(d)—namely, Sections
1442 and 1443. Id. at 819. The court of appeals reviewed,
and upheld, the district court’s determination that petitioners had “failed to establish grounds for federal officer removal” under Section 1442. Id. at 798. Based on
the court of appeals’ determination that it lacked appellate jurisdiction to address petitioners’ other proffered
grounds for removal, the court dismissed the remainder
of the appeal. Id. at 827.
Petitioners filed a petition for a writ of certiorari.
While that petition was pending, this Court held that
Section 1447(d) “permit[s] a court of appeals to review
any issue in a district court order remanding a case to
state court where the defendant premised removal in
part on” Section 1442 or 1443. BP p.l.c. v. Mayor & City
5
Council of Baltimore, 141 S. Ct. 1532, 1536 (2021). The
Court subsequently granted petitioners’ certiorari petition, vacated the court of appeals’ judgment, and remanded for further consideration in light of the decision
in BP. 141 S. Ct. 2667.
4. On remand, the court of appeals again affirmed
the district court’s order. Pet. App. 1a-59a. The court
recognized that, in light of BP, it had jurisdiction to review all “grounds of federal subject-matter jurisdiction
advanced in support of removal on appeal.” Id. at 2a.
The court of appeals then determined that “the district
court correctly rejected each ground.” Id. at 9a.
As relevant here, the court of appeals rejected petitioners’ contention that “there is federal-question jurisdiction over [respondents’] state-law claims because they
are governed by federal common law.” Pet. App. 24a.
Relying on American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011) (AEP), the court concluded that
the Clean Air Act had displaced “the federal common
law of interstate air pollution.” Pet. App. 27a. The court
held that “this case could ‘not have been removed to federal court on the basis of federal common law that no
longer exists.’ ” Id. at 30a (citation omitted). 1
The court of appeals also rejected petitioners’ contention that respondents had “artfully pleaded their stateThe court of appeals noted that, “[e]ven if the pre-AEP federal
common law of transboundary pollution remained viable,” it was
“unclear” whether this case would be “properly placed within that
realm.” Pet. App. 29a n.5. The court observed that it was an “open
question” whether political subdivisions were “the type of parties”
that could “bring a federal common law nuisance claim.” Ibid.
(brackets and citation omitted). The court further observed that it
was “unsettled whether the federal common law of interstate pollution cover[ed] suits brought against product sellers rather than
emitters.” Ibid.
1
6
law claims” to conceal the claims’ “federal nature” as
“federal common law claims.” Pet. App. 31a. The court
stated that “[i]t is only when the merits of a defense
based on ‘complete preemption’ are considered that
the court is free to look behind the plaintiff ’s chosen
claims to determine whether federal law has completely
preempted the area.” Ibid. The court further observed
that “complete preemption requires congressional intent.” Id. at 32a. It explained that, “[b]ecause federal
common law is created by the judiciary—not Congress—
Congress has not ‘clearly manifested an intent’ that the
federal common law for transboundary pollution will
completely preempt state law.” Ibid. (citation omitted).
The court of appeals also “affirm[ed] the district court’s
rejection of complete preemption by the [Clean Air Act]
as a basis for federal jurisdiction,” id. at 38a, explaining
that the Act “does not provide an exclusive federal cause
of action for suits against private polluters” or preempt
“all state law in that area,” id. at 35a.
DISCUSSION
Petitioners contend (Pet. 24-31) that this suit may be
removed to federal court on the ground that respondents’ state-law claims should be recharacterized as
claims arising under federal common law. But the Clean
Air Act has displaced any relevant federal common law
in this area, and no exception to the well-pleaded complaint rule applies. The court of appeals therefore correctly declined to recharacterize respondents’ state-law
claims, and its decision does not conflict with any decision of another court of appeals.
In an amicus brief filed in BP p.l.c. v. Mayor & City
Council of Baltimore, 141 S. Ct. 1532 (2021), the United
States took the position that claims involving crossboundary pollution “that seek to apply the law of an af-
7
fected State to conduct in another State” “may well be”
thought to “arise under” federal law for “jurisdictional
purposes,” “even if such claims may be displaced by the
Clean Air Act.” U.S. Amicus Br. at 26, 27, BP, supra
(No. 19-1189) (emphasis omitted). The Court’s decision
in BP did not address the proper resolution of that jurisdictional issue, but simply made clear that the court
of appeals on remand could consider all potential arguments for removal. 141 S. Ct. at 1543. Since then, all
five courts of appeals that have considered the issue
have rejected the position that the government took in
BP. See pp. 16-17, infra. After the change in Administration and in light of those intervening developments,
the United States has reexamined its position and has
concluded that state-law claims like those pleaded here
should not be recharacterized as claims arising under
federal common law.
The petition for a writ of certiorari should be denied.
A. The Court Of Appeals Correctly Declined To Recharacterize Respondents’ State-Law Claims As Claims Arising
Under Federal Common Law
Respondents brought this suit in state court, alleging only state-law claims. Under the well-pleaded complaint rule, respondents’ claims do not present a federal
question, and petitioners have identified no sound basis
for recharacterizing those claims.
1. Under the well-pleaded complaint rule, respondents’
claims do not present a federal question
a. Under the general removal statute, a defendant
may remove to the appropriate federal district court
“any civil action brought in a State court of which the
district courts of the United States have original jurisdiction.” 28 U.S.C. 1441(a). “The propriety of removal
8
thus depends on whether the case originally could have
been filed in federal court.” City of Chicago v. International Coll. of Surgeons, 522 U.S. 156, 163 (1997). “One
category of cases over which the district courts have
original jurisdiction are ‘federal question’ cases; that is,
those cases ‘arising under the Constitution, laws, or
treaties of the United States.’ ” Metropolitan Life Ins. Co.
v. Taylor, 481 U.S. 58, 63 (1987) (quoting 28 U.S.C. 1331).
“The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule.’ ”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
Under that rule, “a suit ‘arises under’ federal law ‘only
when the plaintiff ’s statement of his own cause of action
shows that it is based upon federal law.’ ” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (quoting Louisville
& Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908))
(brackets omitted); see Taylor v. Anderson, 234 U.S. 74,
75 (1914) (explaining that whether a suit arises under
federal law “must be determined from what necessarily
appears in the plaintiff ’s statement of his own claim”).
By focusing on what the plaintiff has chosen to plead,
the well-pleaded complaint rule “makes the plaintiff the
master of the claim.” Caterpillar, 482 U.S. at 392. Absent some other ground of federal jurisdiction (such as
diversity of citizenship), the “plaintiff may, by eschewing claims based on federal law, choose to have the
cause heard in state court.” Id. at 399. And “a defendant cannot, merely by injecting a federal question into
an action that asserts what is plainly a state-law claim,
transform the action into one arising under federal law,
thereby selecting the forum in which the claim shall be
litigated.” Ibid. (emphasis omitted). Thus, “a case may
not be removed to federal court on the basis of a federal
defense, including the defense of pre-emption, even if
9
the defense is anticipated in the plaintiff ’s complaint,
and even if both parties concede that the federal defense is the only question truly at issue.” Id. at 393.
b. This Court has articulated two tests for determining when a “plaintiff ’s statement of his own cause of action,” Mottley, 211 U.S. at 152, presents a federal question. Neither test is satisfied here.
First, and most significantly, federal-question jurisdiction may exist if the plaintiff ’s own statement of the
claim establishes that “federal law creates the cause of
action asserted.” Gunn v. Minton, 568 U.S. 251, 257
(2013); see Franchise Tax Bd. v. Construction Laborers
Vacation Trust for S. Cal., 463 U.S. 1, 27-28 (1983) (similar). “As a rule of inclusion, this ‘creation’ test admits
of only extremely rare exceptions and accounts for the
vast bulk of suits that arise under federal law.” Gunn,
568 U.S. at 257 (citation omitted). Here, the creation
test is not satisfied because the complaint “on its face
pleads only state law claims.” Pet. App. 76a.
Second, even when “a claim finds its origins” in state
law, Gunn, 568 U.S. at 258, federal-question jurisdiction
may exist if a “federal issue” is “embedded” within the
plaintiff ’s own statement of the claim, Grable & Sons
Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
314 (2005). In Grable, this Court described the relevant
inquiry as whether “the state-law claim necessarily
raise[s] 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.” Ibid.; see
Franchise Tax Bd., 463 U.S. at 27-28 (articulating the
test as whether the “well-pleaded complaint establishes”
that “the plaintiff ’s right to relief necessarily depends
on resolution of a substantial question of federal law”).
10
That test is not satisfied here because no federal issue is “embedded” within respondents’ own articulation
of their claims. Grable, 545 U.S. at 314. None of respondents’ claims, as pleaded in the complaint, “rises or falls
on [respondents’] ability to prove the violation of a federal duty.” Merrill Lynch, Pierce, Fenner & Smith Inc.
v. Manning, 578 U.S. 374, 383 (2016). Nor do any of respondents’ claims, as pleaded in the complaint, have “as
an element any aspect of federal law.” Pet. App. 84a.
This case thus differs from Grable, in which “the meaning of [a] federal statute” was “an essential element” of
the “quiet title claim” that the plaintiff had pleaded. 545
U.S. at 315. This case also differs from Smith v. Kansas
City Title & Trust Co., 255 U.S. 180 (1921), in which it
“appear[ed] from the bill or statement of the plaintiff ”
that his state-law claim “depend[ed] upon the construction or application of the Constitution.” Id. at 199; see
id. at 201-202; Grable, 545 U.S. at 312-313.
In their reply brief, petitioners contend that the Grable test is satisfied here “because ‘federal common law
supplies the rule of decision for respondents’ claims.’ ”
Cert. Reply Br. 6 (brackets and citation omitted). But
the court of appeals found that petitioners had “waived”
any “ ‘federal-common-law argument under the Grable
framework,’ ” and it therefore “decline[d] to consider
Grable jurisdiction as it relates to the federal common
law” in this case. Pet. App. 33a n.6 (citation omitted).
In any event, no issue of federal common law appears in
respondents’ own “statement” of their claims, as Grable
and the well-pleaded complaint rule require. Mottley,
211 U.S. at 152; see Grable, 545 U.S. at 314 (requiring a
“stated federal issue”); id. at 315 (noting that the resolution of a federal-law question was “an essential element of [the plaintiff ’s] quiet title claim”). Thus, even if
11
petitioners’ Grable argument had been properly preserved, that argument lacks merit.
2. No exception to the well-pleaded complaint rule applies
here
Because respondents’ complaint does not present a
federal question under the well-pleaded complaint rule,
this case may be removed to federal court only if an “exception” to that rule applies. Aetna Health Inc. v. Davila,
542 U.S. 200, 207 (2004). A federal court “may uphold
removal even though no federal question appears on the
face of the plaintiff ’s complaint” if the court concludes
that the plaintiff “has ‘artfully pleaded’ claims” by
“ ‘omitting to plead necessary federal questions.’ ” Rivet
v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Franchise Tax Bd., 463 U.S. at 22). Petitioners contend that respondents have engaged in artful pleading
here by putting a state-law label on claims that are “necessarily and exclusively governed by federal common
law.” Pet. 27; see Pet. 27-28. But far from providing
the exclusive remedy for claims concerning climate
change or greenhouse-gas emissions, any relevant federal common law has been displaced by the Clean Air
Act. And even if the Act preempts particular state-law
causes of action in this sphere, such preemption would
simply be a federal defense that provides no basis for
removal.
a. Far from “necessarily and exclusively govern[ing]”
respondents’ claims (Pet. 27), any federal common law
with respect to those claims has been displaced by Congress. “Legislative displacement of federal common law
does not require the ‘same sort of evidence of a clear
and manifest congressional purpose’ demanded for
preemption of state law.” American Elec. Power Co. v.
Connecticut, 564 U.S. 410, 423 (2011) (AEP) (brackets
12
and citation omitted). “The test for whether congressional legislation excludes the declaration of federal
common law is simply whether the statute ‘speaks directly to the question’ at issue.” Id. at 424 (brackets and
citation omitted). Applying that test in AEP, this Court
held that “the Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek
abatement of carbon-dioxide emissions from fossil-fuel
fired powerplants.” Ibid.
Relying on AEP, the court of appeals in this case correctly held that the Clean Air Act likewise displaces any
relevant federal common law here. See Pet. App. 24a-31a.
Petitioners do not challenge that holding in this Court.
See Pet. 26; Cert. Reply Br. 7. Indeed, petitioners below
characterized respondents’ claims as “based on interstate and international emissions of greenhouse gases,”
Pet. C.A. Br. 23, and argued that the Clean Air Act “outlines specific and exclusive procedures for parties—
including state and local governments—to challenge nationwide emissions standards in federal court,” id. at 35.
See, e.g., D. Ct. Doc. 1, at 4 (arguing that respondents’
claims “are completely preempted by the Clean Air Act,
which provides an exclusive federal remedy for plaintiffs seeking stricter regulation of the greenhouse gas
emissions challenged in this action”); id. at 13 (arguing
that “the Clean Air Act provides the exclusive cause of
action for challenging the regulation of nationwide
emissions”).
Thus, as this case comes to the Court, the Clean Air
Act’s displacement of any relevant federal common law
is a given. That displacement forecloses petitioners’ current theory (Pet. 27) that federal common law “necessarily and exclusively govern[s]” respondents’ claims.
Petitioners’ reliance on the artful-pleading doctrine rests
13
on the assertion that respondents’ claims are “really”
claims of federal common law, not of state law. Franchise Tax Bd., 463 U.S. at 13. But respondents’ claims
cannot be federal-common-law claims “in substance” if
Congress has displaced that body of federal law. Id. at
22; see Merrell Dow Pharms. Inc. v. Thompson, 478
U.S. 804, 814 (1986) (considering Congress’s determination to “preclude” certain federal “remedies” in deciding whether a state-law claim arose under federal law). 2
Petitioners further contend (Pet. 27) that the Clean
Air Act’s displacement of federal common law necessarily means that respondents’ state-law claims are not
“viable.” But this Court has repeatedly distinguished the
issue of “whether federal legislation has supplanted federal common law” from the issue of “whether state law
is also available.” City of Milwaukee v. Illinois, 451 U.S.
304, 310 n.4 (1981) (Milwaukee); see id. at 319 n.14 (describing the issue before the Court in that water-pollution
case as “which branch of the Federal Government is the
source of federal law, not whether that law pre-empts
state law”); AEP, 564 U.S. at 429 (distinguishing the
Clean Air Act’s “displace[ment]” of “federal common
law” from the “availability vel non of a state lawsuit”);
International Paper Co. v. Ouellette, 479 U.S. 481, 489
(1987) (explaining that the Court in Milwaukee had “held
that federal legislation now occupied the field, preThis Court’s decision in Oneida Indian Nation of New York v.
County of Oneida, 414 U.S. 661 (1974), is not to the contrary. The
passage from that decision on which petitioners rely (Pet. 26; Cert.
Reply Br. 7) stands only for the unremarkable proposition that a
claim arising under federal law may fail on the merits. See Oneida
Indian Nation, 414 U.S. at 675-676 (explaining that a “claim may
fail at a later stage for a variety of reasons,” even if it is based on a
right “claimed to arise under federal law in the first instance”).
2
14
empting all federal common law,” but had left “open the
question of whether injured parties still had a cause of
action under state law”). Now that the Clean Air Act has
displaced the prior federal-common-law regime, the determination whether respondents’ state-law claims can
go forward will turn at least in part on the Act’s preemptive effect. But however that preemption issue is ultimately resolved, petitioners’ assertion of an ordinarypreemption defense cannot provide a basis for removal
of the suit to federal court. See Caterpillar, 482 U.S. at
393.
This Court’s decision in Ouellette illustrates the application of ordinary-preemption principles in determining the viability of state-law claims following a federal statute’s displacement of federal common law. The
Court in Ouellette held that the Clean Water Act (CWA)
preempted the application of Vermont common law
when a New York point source discharged effluents into
Lake Champlain, causing ultimate harm in Vermont.
See 479 U.S. at 483-484, 491-494. The Court further
concluded, however, that the CWA would not bar claims
brought under the law of the source State. See id. at
497, 498-499. The Court explained that disputes concerning interstate water pollution had previously been
governed by federal common law, but that the CWA had
displaced that prior regime. See id. at 487-489. In addressing the extent to which state common-law claims
were cognizable after the CWA’s enactment, the Ouellette Court treated the issue before it as solely one of
CWA preemption, to be addressed in light of CWA provisions that “specifically preserve[d] [certain] state actions” and “allow[ed] source States to impose stricter
standards.” Id. at 497, 499. The Court did not suggest
that the prior federal-common-law regime had any bear-
15
ing on the extent to which state-law claims could go forward once that regime had been superseded by statute.
The same approach is warranted here.3
b. In rare circumstances, “Congress may so completely pre-empt a particular area that any civil complaint raising” claims within that area “is necessarily
federal in character.” Metropolitan Life, 481 U.S. at 6364. But petitioners do not and could not plausibly argue
that federal common law completely preempts respondents’ claims. “Complete preemption is ultimately a matter of [c]ongressional intent.” Pet. App. 89a; see, e.g.,
Empire Healthchoice Assurance, Inc. v. McVeigh, 547
U.S. 677, 698 (2006) (“If Congress intends a preemption
instruction completely to displace ordinarily applicable
state law, and to confer federal jurisdiction thereby, it
may be expected to make that atypical intention clear.”);
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 9 (2003)
(holding that “Congress intended” 12 U.S.C. 86 “to provide the exclusive cause of action for usury claims
against national banks”); Metropolitan Life, 481 U.S. at
66 (holding that “Congress has clearly manifested an intent to make causes of action” within the scope of 29
U.S.C. 1132(a) “exclusive”). As explained above, far from
expressing an intent that federal common law be given
complete-preemptive force with respect to the sorts of
claims that respondents allege, Congress displaced any
federal-common-law remedy that respondents might
otherwise have invoked.
Although the suit in Ouellette was filed in state court and then
removed to federal court, see 479 U.S. at 484, removal was based on
diversity of citizenship, see J.A. at 46, Ouellette, supra (No. 85-1233)
(citing 28 U.S.C. 1332(a)), not on any purportedly federal character
of the plaintiffs’ claims.
3
16
If any body of federal law could plausibly be thought to
have complete-preemptive effect with respect to respondents’ claims, it would be the federal law that currently
governs greenhouse-gas emissions—principally, the
Clean Air Act. But the court of appeals correctly held
that the Act “does not completely preempt th[e] type of
climate change action” brought by respondents in this
case, Pet. App. 38a, and petitioners do not challenge that
holding. If the applicable federal law in this area does
not completely preempt respondents’ claims, superseded
federal law cannot plausibly be thought to have that effect.4
B. The Decision Below Does Not Conflict With Any Decision
Of Another Court Of Appeals
1. All five courts of appeals that have considered the
question have held that state-law actions like respondents’ are not removable to federal court. See Pet. App.
2a; Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44, 5051 (1st Cir. 2022), petition for cert. pending, No. 22-524
(filed Dec. 2, 2022); City of Hoboken v. Chevron Corp.,
45 F.4th 699, 706 (3d Cir. 2022), petition for cert. pendThe court of appeals in this case did not resolve whether respondents’ claims would have been encompassed by the “pre-AEP
federal common law of transboundary pollution” if that body of law
had not been displaced by the Clean Air Act. Pet. App. 29a n.5. In
that regard, the court identified two issues that this Court’s precedents had left “unsettled”: (1) whether local governmental entities
like respondents may invoke the federal common law of transboundary pollution; and (2) whether that body of federal common law “covers suits brought against product sellers rather than emitters.”
Ibid. (citing AEP, 564 U.S. at 421-422); see p. 5 n.1, supra. Given
the Clean Air Act’s displacement of any relevant federal common
law, it would be incongruous for the removability or viability of respondents’ claims to depend on the resolution of such “academic”
questions. AEP, 564 U.S. at 423.
4
17
ing, No. 22-821 (filed Feb. 27, 2023); Mayor & City
Council of Baltimore v. BP p.l.c., 31 F.4th 178, 195 (4th
Cir. 2022), petition for cert. pending, No. 22-361 (filed
Oct. 14, 2022); City & County of Honolulu v. Sunoco
LP, 39 F.4th 1101, 1106 (9th Cir. 2022), petition for cert.
pending, No. 22-523 (filed Dec. 2, 2022); County of San
Mateo v. Chevron Corp., 32 F.4th 733, 744 (9th Cir.
2022), petition for cert. pending, No. 22-495 (filed Nov.
22, 2022); City of Oakland v. BP PLC, 969 F.3d 895, 901
(9th Cir. 2020), cert. denied, 141 S. Ct. 2776 (2021).
Like the Tenth Circuit in this case, the First, Third,
Fourth, and Ninth Circuits have specifically rejected
the contention that federal common law provides a basis
for removal. See Pet. App. 24a-33a; Rhode Island, 35
F.4th at 53-56; Hoboken, 45 F.4th at 707-709; Baltimore,
31 F.4th at 199-208; San Mateo, 32 F.4th at 746-748;
Oakland, 969 F.3d at 906-908.
2. Petitioners contend (Pet. 11-24) that the decision
below conflicts with decisions of the Second, Fifth, and
Eighth Circuits. That argument is mistaken.
a. City of New York v. Chevron Corp., 993 F.3d 81
(2d Cir. 2021), involved a district-court suit brought by
the City of New York against various energy companies. Id. at 88. The City alleged only state-law claims
but invoked the district court’s diversity jurisdiction under 28 U.S.C. 1332. See Am. Compl. ¶¶ 48, 132-153, City
of New York v. BP p.l.c., 325 F. Supp. 3d 466 (S.D.N.Y.
2018) (No. 18-cv-182). The district court dismissed the
City’s claims, and the Second Circuit affirmed. See New
York, 993 F.3d at 86. Contrary to petitioners’ contentions (e.g., Pet. 14), nothing in the Second Circuit’s decision conflicts with the court of appeals’ decision in this
case.
18
i. The Second Circuit expressed no view on the
question whether the purportedly federal character of
claims like respondents’ could provide a basis for removal to federal court. That question was not presented
in New York because (as noted above) the suit was commenced in federal court and diversity of citizenship provided an independent basis for federal jurisdiction. See
Pet. 14-15. The Second Circuit explained that its affirmance of the district court’s order dismissing the statelaw claims on the merits reflected its consideration of
the defendants’ “preemption defense on its own terms,
not under the heightened standard unique to the removability inquiry.” New York, 993 F.3d at 94. The court
specifically reserved judgment on whether “federal
preemption [would] give rise to a federal question for
purposes of removal.” Ibid. The court of appeals’ decision in this case, by contrast, arose “in the removal context” and did not address any matter of “ordinary
preemption.” Pet. App. 33a.
ii. Petitioners allege (Pet. 14) a conflict between the
Tenth Circuit’s statement that federal common law “no
longer exists” in this area, Pet. App. 29a (emphasis
omitted), and the Second Circuit’s statement that “the
City’s claims must be brought under federal common
law,” New York, 993 F.3d at 95. But while that language
viewed in isolation might suggest that federal common
law continues to govern in this area, the very next sentence of the Second Circuit’s opinion recognized that
“the Clean Air Act displaces federal common law claims
concerned with domestic greenhouse gas emissions.”
Ibid. (footnote omitted); see id. at 99 (describing the
domestic-emissions issue as “a question previously governed by federal common law”). Petitioners therefore
are wrong in asserting (Cert. Reply Br. 2) that the cir-
19
cuits are divided on whether “federal common law necessarily and exclusively governs claims seeking redress
for [climate-change-related] injuries.”
iii. Although the Second Circuit recognized that
claims premised on domestic emissions are no longer
governed by federal common law, the court viewed the
prior applicability of federal common law as relevant in
determining the post-Clean Air Act viability of statelaw claims. See New York, 993 F.3d at 95 n.7 (noting the
City’s argument that “some residual state-law claims
remain” cognizable, and stating that “the extent to which
that is true hinges, at least in part, on whether federal
common law would govern the [domestic-emissions] issue in the absence of the Clean Air Act”); id. at 99. But
nothing in the Tenth Circuit’s decision here conflicts
with that analysis, since the Tenth Circuit did not address whether the Clean Air Act authorized or preempted respondents’ claims. Indeed, it would have been
inappropriate for the Tenth Circuit to opine on the
proper way of conducting that merits inquiry in a case
where that court held that the district court lacked
subject-matter jurisdiction. Rather, the Tenth Circuit
addressed the Clean Air Act only in discussing federalcommon-law displacement and complete preemption.
See Pet. App. 27a-31a, 34a-38a.
iv. The Second Circuit’s decision thus does not conflict with the decision below. Indeed, both the Second
Circuit and the court of appeals in this case have disclaimed the existence of any conflict, based on the distinction between removability and ordinary preemption. See New York, 993 F.3d at 93-94; Pet. App. 32a33a. And other circuits that have rejected attempts to
remove similar state-law actions likewise see no conflict
with the Second Circuit’s decision. See Rhode Island,
20
35 F.4th at 55; Hoboken, 45 F.4th at 708; Baltimore, 31
F.4th at 203.
b. Petitioners are likewise wrong in asserting (Pet.
18-19) that the court of appeals’ decision in this case
conflicts with the Eighth Circuit’s decision in In re Otter
Tail Power Co., 116 F.3d 1207 (1997). The Eighth Circuit stated that federal-question jurisdiction exists when
“a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff ’s
right to relief necessarily depends on resolution of a
substantial question of federal law.” Id. at 1213 (citation omitted). The second of those two tests is the one
that this Court later clarified in Grable. See p. 9, supra.
The Eighth Circuit found that test satisfied in Otter
Tail, explaining that the plaintiff ’s complaint was “specifically premised” on the defendant’s “alleged deviation” from a previous court order, 116 F.3d at 1213,
which in turn had resolved a “federal question” concerning “Tribal regulatory authority,” id. at 1214.
Petitioners assert (Pet. 18) that the Eighth Circuit
“squarely held that a district court has jurisdiction under
Section 1331 over claims artfully pleaded under state
law but necessarily governed by federal common law.”
But that characterization of the Eighth Circuit’s rationale finds no support in the decision itself. The Eighth
Circuit’s decision rested not on the artful-pleading doctrine, but on the allegations actually set forth in the
plaintiff ’s complaint. See Otter Tail, 116 F.3d at 1213
(identifying the “well-pleaded complaint” rule as the
governing legal principle); id. at 1214 (concluding that
the complaint in that case “necessarily present[ed] a
federal question”). And the Eighth Circuit’s determination that those particular allegations satisfied the preGrable test does not conflict with the decision below,
21
which found that petitioners had “waived” any “ ‘federalcommon-law argument under the Grable framework.’ ”
Pet. App. 33a n.6 (citation omitted).
c. Petitioners’ reliance (Pet. 19-20) on the Fifth Circuit’s decision in Sam L. Majors Jewelers v. ABX, Inc.,
117 F.3d 922 (1997), is also misplaced. That case involved a suit against an airline for the value of packages
that the airline had lost. Id. at 923. The Fifth Circuit
recognized that “[f ]ederal jurisdiction exists when a
federal question is presented on the face of a plaintiff ’s
properly pleaded complaint.” Id. at 924. The Fifth Circuit held that the plaintiff ’s “claim raise[d] federal question jurisdiction based on the federal common law that
controls an action seeking to recover damages against
an airline for lost or damaged shipments.” Id. at 923.
The court further observed that, although “the airline
industry ha[d] been substantially deregulated” through
federal legislation, one such deregulatory statute had
“include[d] a provision * * * preserving federal common law actions.” Id. at 928-929.
Petitioners characterize (Pet. 18) the Fifth Circuit’s
decision as “squarely” holding that a district court has
jurisdiction “over claims artfully pleaded under state
law but necessarily governed by federal law.” But the
Fifth Circuit framed its ruling as an application of the
well-pleaded complaint rule, not of the artful-pleading
doctrine. Majors, 117 F.3d at 924. The court also emphasized that its “holding” was “necessarily limited” by the
circumstances of that case—namely, “the historical availability” of a federal-common-law remedy against interstate air carriers for lost or damaged goods and “the
statutory preservation of the remedy.” Id. at 929 n.16.
The Fifth Circuit’s reliance on “the statutory preservation of the” applicable federal-common-law remedy, ibid.,
22
further distinguishes Majors from this case, in which
the Tenth Circuit emphasized that the Clean Air Act
has displaced any relevant federal common law but has
preserved certain state-law claims, Pet. App. 27a-30a,
35a. Accordingly, there is no sound reason to believe
that the Fifth Circuit would reach a different conclusion
than the Tenth Circuit in the circumstances of this case.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
TODD KIM
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
FREDERICK LIU
Assistant to the Solicitor
General
AMANDA LEITER
Senior Counsel to the
Assistant Attorney General
CHRISTINE ENNIS
Attorney
MARCH 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.