Supplemental 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

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

Petitioners,

v.

BOARD OF COUNTY COMMISSIONERS

OF BOULDER COUNTY, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

SUPPLEMENTAL BRIEF FOR RESPONDENTS

Kevin K. Russell

GOLDSTEIN, RUSSELL &

WOOFTER, LLC

1701 Pennsylvania Ave. NW

Ste. 200

Washington, DC 20006

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

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

SUPPLEMENTAL BRIEF FOR

RESPONDENTS ...........................................................1

CONCLUSION............................................................10

ii

TABLE OF AUTHORITIES

Cases

American Electric Power Co. v. Connecticut,

564 U.S. 410 (2011) .................................................. 9

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

Baltimore,

141 S. Ct. 1532 (2021) .............................................. 2

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ................................................. 5

City of Hoboken v. Chevron Corp.,

45 F.4th 699 (3d Cir. 2022) .................................. 4, 8

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ............................... 5, 6, 6

Connecticut v. Exxon Mobil Corp.,

No. 21-1446 (2d Cir. argued Sept. 23, 2022) ........... 6

Franchise Tax Bd. v. Construction Laborers

Vacation Trust for S. Cal.,

463 U.S. 1 (1983) ...................................................... 5

Illinois v. City of Milwaukee,

731 F.2d 403 (7th Cir. 1984) ................................ 5, 6

In re Otter Tail Power Co.,

116 F.3d 1207 (8th Cir. 1997) .................................. 7

International Paper Co. v. Ouellette,

479 U.S. 481 (1987) .................................................. 9

Minnesota v. American Petroleum Institute,

-- F.4th --, 2023 WL 2607545 (8th Cir. Mar.

23, 2023) ........................................................... 4, 7, 8

Puerto Rico Dep’t of Consumer Affairs v. Isla

Petroleum Corp.,

485 U.S. 495 (1988) .................................................. 9

iii

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

117 F.3d 922 (5th Cir. 1997) ................................ 7, 8

Tennessee v. Union & Planters’ Bank,

152 U.S. 454 1894) ................................................... 5

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) .................................................. 3

SUPPLEMENTAL BRIEF FOR RESPONDENTS

The United States cogently explains why the

petition in this case meets none of the Court’s criteria

for review. There is no circuit conflict on whether

climate-change cases may be removed to federal court.

U.S. Br. 16-17. Indeed, petitioners have never claimed

there is. See Petr. Supp. Br. 3-4. Instead, petitioners

attempt to avoid this obvious defect in their petition

by artificially dividing the question presented into two

abstract sub-parts. Ibid. But the United States

rightly explains that there is no circuit conflict on the

sub-questions either. U.S. Br. 17-22. Petitioners

insist that the question is of such importance, and the

decision below is so obviously wrong, the Court should

grant certiorari anyway. Petr. Supp. Br. 3. But the

United States refutes those claims as well. See U.S.

Br. 7-16.

Petitioners’ initial response is to attack the

Solicitor General’s integrity, accusing the Government

of basing its brief on political considerations rather

than its honest assessment of the petition. Petr. Supp.

Br. 2. When they finally address the substance of the

Government’s brief, petitioners merely reiterate their

strained reading of three circuit cases in an attempt to

gin up a circuit conflict, then repeat merits arguments

that have failed to persuade even a single one of the

now 20 court of appeals judges who have passed on

them. The petition should be denied.

1. There is no basis for petitioners’ contention

that the United States’ brief represents a “cynical

change in position” driven by craven political

considerations. Petr. Supp. Br. 2, 11.

To start, in both this Administration and the last,

the Government has consistently declined to support

2

defendants’ request that the Court review their

federal common law removal theory. The question

arose for the last Administration during the briefing

and oral argument in BP P.L.C. v. Mayor & City

Council of Baltimore, 141 S. Ct. 1532 (2021), when the

petitioners urged the Court to decide the merits of

their removal theory in the course of resolving the

question presented in that case. When asked at oral

argument whether the Government believed the Court

should address the question, counsel responded, “we

haven’t taken a position on whether the Court should

use its discretion to decide it here.” Oral Arg. Tr. 2829. Accordingly, on the central question the Court

faces now—whether to grant review—the United

States’ position has remained consistent across

administrations.

Petitioners’ complaint, instead, is with the United

States’ view of the merits, which they say “is being

driven by the fact that the questions are arising in the

context of climate-change lawsuits—and by a desire to

signal virtue to political bedfellows who are behind

these lawsuits.” Petr. Supp. Br. 2. This is a serious

charge which one would expect responsible parties

before this Court to support with substantial evidence.

Instead, petitioners offer only this speculation: “given

the federal government’s institutional interest in

taking a broad view of federal jurisdiction,” the

Government would have continued to side with

petitioners unless derailed by political considerations.

Ibid. But petitioners provide no basis for their

assertion that the United States has a sweeping

institutional interest in maximizing federal

jurisdiction, much less that the Solicitor General

should be expected to support any legal theory that

advances that interest, no matter how thoroughly

3

debunked in the courts of appeals. Congress has

provided the United States its own removal right in

any case affecting its institutional interests. See 28

U.S.C. § 1442. And under the leadership of Solicitors

General appointed by Presidents of both parties, the

United States has resisted calls to expand federal

jurisdiction in ways that are inconsistent with the

well-pleaded-complaint rule or founded in a distrust of

state courts. For example, the brief for the United

States in Watson v. Philip Morris Cos., 551 U.S. 142

(2007), filed by then-Solicitor General Paul Clement,

opposed a proposed expansion of federal officer

removal jurisdiction. See U.S. Br. 19-46, Watson,

supra (No. 05-1284).1 Among other things, the brief

explained that “Congress ordinarily intends to respect

the interest of the States in providing state forums for

the vindication of state-law claims against private

parties, even if they possess a substantial federal law

defense.” Id. 19.

Perhaps petitioners’ attack on the United States’

integrity would be colorable if their position were so

obviously right that no reasonable observer could

disagree with it. But the opposite is true—petitioners

have presented their removal theory to more than two

dozen trial and appellate judges and only a single

district court judge thought it had merit. See BIO 6-7

nn. 2-3 (noting district court was promptly reversed);

infra p. 4.2 There is nothing wrong or suspicious about

the United States reassessing its position in light of

that significant body of case law, all of which

1

2

Available at 2007 WL 621847.

In prior litigation, even petitioner Exxon agreed that federal

common law did not apply to climate change disputes between

parties other than States. See BIO 20.

4

developed after the change in administrations. See

U.S. Br. 6-7.

2. While this petition has been pending, the

consensus against petitioners’ position has continued

to grow.

In a decision for a unanimous Third Circuit panel

rejecting removal in a similar climate case, Judge

Bibas explained that “[o]ur federal system trusts state

courts to hear most cases—even big, important ones

that raise federal defenses.” City of Hoboken v.

Chevron Corp., 45 F.4th 699, 705 (3d Cir. 2022).

Reviewing the same theories petitioners have

advanced in this case, the court held there was “no

federal hook” for removal. See id. at 706-09.

In Minnesota v. American Petroleum Institute, -F.4th --, 2023 WL 2607545 (8th Cir. Mar. 23, 2023),

the Eighth Circuit recently followed suit, unanimously

rejecting the argument that removal should be

permitted “because federal common law governing

transboundary pollution provides the rule of decision

for [the plaintiff’s] claims.” Id. at *2. Petitioners claim

that Judge Stras “wrote that cases such as this one

should give rise to federal jurisdiction.” Petr. Supp.

Br. 3. But in fact, Judge Stras joined his colleagues in

rejecting the defendants’ removal claims root and

branch. See 2023 WL 2607545, at *11 (Stras, J.,

concurring) (“[E]ven the strongest arguments for

removal don’t work here.”).

To be sure, Judge Stras wrote separately to note

his personal doubts about the wisdom of that settled

law. Id. at *10-11. But in so doing, he said out loud

what petitioners have tried their best to obscure: that

petitioners’ removal claims require a radical revision

to the well-pleaded-complaint rule and the removal

5

statute. See id. at *11. Indeed, as this Court has held,

Congress amended the removal statute specifically to

bar removal based on federal defenses like

preemption. Caterpillar Inc. v. Williams, 482 U.S.

386, 392-93 (1987); Tennessee v. Union & Planters’

Bank, 152 U.S. 454, 460-62 (1894). Even if it were

open to this Court (rather than Congress) to rewrite

the removal statute and alter a “statutory scheme

[that] has existed since 1887,” Franchise Tax Bd. v.

Construction Laborers Vacation Trust for S. Cal., 463

U.S. 1, 10 (1983), this case presents no vehicle to do

so—petitioners do not ask this Court to reconsider the

well-pleaded complaint rule or overrule any of its

precedents.

3. Petitioners’ attempts to shore up their claims

of a circuit conflict are unconvincing.

a. Regarding their first question presented,

petitioners claim (for the first time) that a passing

citation to Illinois v. City of Milwaukee, 731 F.2d 403

(7th Cir. 1984), in the Second Circuit’s City of New

York decision, “confirms” petitioners’ understanding of

the Second Circuit’s holding. See Petr. Supp. Br. 5

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

(2d Cir. 2021)). But that citation only bolsters the

United States’ contrary reading of Second Circuit

precedent.

In City of Milwaukee, the Seventh Circuit

described how federal common law had occupied the

field of interstate water pollution until it was

displaced by a federal statute. See 731 F.2d at 406-11.

The court recognized that the statute now dictated

whether state law on the subject was preempted. Id.

at 411. But the Seventh Circuit concluded that

because Congress was acting against the backdrop of

6

federal common law’s traditional displacement of all

state regulation over the subject matter, “we think

federal law must govern in this situation except to the

extent that the 1972 FWPCA (the governing federal

law created by Congress) authorizes resort to state

law.” Ibid.

The Second Circuit’s citation to this decision is

entirely consistent with the United States’ observation

that “[a]lthough 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

state-law claims.” U.S. Br. 19. Neither court held that

some apparition of the displaced federal common law

lingered on the field, preempting state law of its own

accord. Instead, both courts seemingly relied on the

history of federal common law preemption in

construing the preemptive scope of the statute. See

City of New York, 993 F.3d at 99 (“‘[R]esort[ing] to

state law’ on a question previously governed by federal

common law is permissible only to the extent

‘authorize[d]’ by federal statute.”) (quoting City of

Milwaukee, 731 F.2d at 411); City of Milwaukee, 731

F.3d at 411. As the United States explains, “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.” U.S. Br. 19.3

3

To the extent the Court thinks there is any ambiguity in City

of New York, that question will be resolved by the Second

Circuit’s impending decision in Connecticut v. Exxon Mobil Corp.,

No. 21-1446 (2d Cir. argued Sept. 23, 2022), in which the removal

7

b. On the second question presented, the United

States correctly explains that neither of the decadesold opinions petitioners cite conflicts with the Tenth

Circuit’s decision here. U.S. Br. 20-22.

Petitioners remarkably continue to argue (Br. 6)

that the Eighth Circuit’s decision in In re Otter Tail

Power Co., 116 F.3d 1207 (8th Cir. 1997), “supports

removal,” even though the Eighth Circuit’s recent

decision in Minnesota considered and rejected

petitioners’ removal argument. See 2023 WL 2607545,

at *1-4. In their brief to the Eighth Circuit, the

defendants in Minnesota discussed Otter Tail at

length, insisting that it stood for the proposition that

“claims necessarily governed by federal common law

are removable to federal court, even if the plaintiff

purports to assert only state-law claims.” Brief of

Appellants at *29-30, Minnesota, supra.4 The Eighth

Circuit not only rejected that position, but cited Otter

Tail as contrary authority. See 2023 WL 2607545, at

*2 n.4 (acknowledging defendants’ “artful pleading”

argument, but holding that “[w]e have never applied

the doctrine as a standalone exception, so we decline

to do so here”) (citing Otter Tail); compare U.S. Br. 20

(arguing that Otter Tail did not “rest on the artfulpleading doctrine”).

Petitioners say that the Third Circuit recently

“acknowledged” that Sam L. Majors Jewelers v. ABX,

Inc., 117 F.3d 922 (5th Cir. 1997), “supports removal

question is squarely presented. If that panel (which includes the

author of the City of New York opinion) agrees with petitioners’

interpretation of circuit authority and parts ways with the circuit

consensus against removal, the Court can decide whether to

grant certiorari in that case or a subsequent one.

4

Available at 2021 WL 2604711.

8

and expressly declined to follow it.” Petr. Supp. Br. 7

(citing City of Hoboken, 45 F.4th at 708). Not so. The

Third Circuit made clear that Sam L. Majors would

not support removal in the Fifth Circuit today because

“most courts recognize” that the decision is “not good

law.” City of Hoboken, 45 F.4th at 708. As the

opposition explained, Majors is best understood as an

application of an outdated version of the substantial

federal question doctrine that did not survive this

Court’s decision in Grable. BIO 15. Petitioners do not

dispute that since Majors was decided in 1997, no

court has ever cited it as authorizing removal of state

law claims on the ground that they are governed by

federal common law. BIO 14-15. The Fifth Circuit

has, instead, repeatedly listed the permissible grounds

for removal without ever mentioning “really governed

by federal common law” as among them. See id. 15.

“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.” U.S. Br. 22.

4. Little need be said in response to petitioners’

third recitation of their argument on the merits. As

Judge Stras recognized, the theory that purely state

law claims can be removed to federal court on the

ground that they are really federal common law claims

is simply an attempt to evade a hundred years of

removal precedent. See Minnesota, 2023 WL 2607545,

at *11 (Stras, J., concurring); BIO 19-23.

The assertion that such state law suits can be

removed because they are really claims under a

federal common law that Congress displaced more

than 50 years ago is even more absurd. As the United

States explains, this Court’s decisions in American

9

Electric Power Co. v. Connecticut, 564 U.S. 410 (2011),

and International Paper Co. v. Ouellette, 479 U.S. 481

(1987), make clear that once Congress stepped into the

void temporarily filled by judge-made law, preemption

became governed by the Clean Air Act, not the federal

common law it extinguished. U.S. Br. 13-14; see also

BIO 24-27.

Indeed, petitioners seemingly

acknowledge that in Ouellette, the Court decided

“whether a suit for injury allegedly caused by

interstate water pollution could proceed under the law

of the State of injury” through an “ordinary

preemption” analysis of the statute. Petr. Supp. Br.

10. Petitioners say that the Court “also” relied “on the

inherently federal character of suits concerning

interstate pollution.” Id. 11. But what the Court said

was that “[i]n light of this pervasive regulation” under

the statute “and the fact that the control of interstate

pollution is primarily a matter of federal law, it is clear

that the only state suits that remain available are

those specifically preserved by the Act.” Ouellette, 479

U.S. at 492 (citation omitted).

In noting that

interstate pollution is “primarily a matter of federal

law,” ibid., the Court was not suggesting that

statutory displacement was only partial, eliminating

everything about the common law regime except its

“pre-emptive grin,” Puerto Rico Dep’t of Consumer

Affairs v. Isla Petroleum Corp., 485 U.S. 495, 504

(1988); see BIO 24-27. At most, the Court took the

history of federal common law regulation as relevant

context in assessing the preemptive scope of the

statute.

* * *

The real question in this case—whether

defendants can remove state law claims on the

premise that they are really claims under a federal

10

common law long ago displaced by statute—has only

ever arisen in the handful of cases like respondents’

and there is no indication it will ever arise anywhere

else. In this limited context, the circuits have

considered that question with care and provided a

uniform answer. That answer determines only which

courts, state or federal, will decide petitioners’

inevitable preemption defenses, subject to ultimate

review by this Court. That Congress has elected not

to provide defendants a right of removal in these

circumstances is not a crisis—it is the ordinary

operation of our federal system. There is no need for

further review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

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

Kevin K. Russell

GOLDSTEIN, RUSSELL &

WOOFTER, LLC

1701 Pennsylvania Ave. NW

Ste. 200

Washington, DC 20006

11

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

April 10, 2023