Petition for Writ of Certiorari — BP p.l.c., et al., Petitioners v. Mayor and City Council of Baltimore
Supreme Court briefOct 14, 2022
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No.
In the Supreme Court of the United States
BP P.L.C., ET AL., PETITIONERS
v.
MAYOR AND CITY COUNCIL OF BALTIMORE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
THEODORE J. BOUTROUS, JR.
GIBSON, DUNN &
CRUTCHER LLP
333 South Grand Street
Los Angeles, CA 90071
THOMAS G. HUNGAR
GIBSON, DUNN &
CRUTCHER LLP
1050 Connecticut
Avenue, N.W.
Washington, DC 20036
DAVID C. FREDERICK
DANIEL S. SEVERSON
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C.
1615 M Street, N.W.,
Suite 400
Washington, DC 20036
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
(additional counsel on signature page)
QUESTIONS PRESENTED
1. Whether federal common law necessarily and exclusively governs claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas
emissions on the global climate.
2. Whether a federal district court has jurisdiction
under 28 U.S.C. 1331 over claims necessarily and exclusively governed by federal common law but labeled as
arising under state law.
(I)
PARTIES TO THE PROCEEDING
AND CORPORATE DISCLOSURE STATEMENT
Petitioners are BP p.l.c.; BP America Inc.; BP Products North America Inc.; Chevron Corporation; Chevron
U.S.A., Inc.; CITGO Petroleum Corporation; CNX Resources Corporation; ConocoPhillips; ConocoPhillips
Company; CONSOL Energy Inc.; CONSOL Marine Terminals LLC; Crown Central LLC; Crown Central New
Holdings LLC; Exxon Mobil Corporation; ExxonMobil
Oil Corporation; Hess Corporation; Marathon Petroleum
Corporation; Phillips 66; Shell plc; Shell USA, Inc.; and
Speedway LLC.
Petitioner BP p.l.c. has no parent corporation, and no
publicly held company owns 10% or more of its stock.
Petitioners BP America Inc. and BP Products North
America Inc. are wholly owned indirect subsidiaries of petitioner BP p.l.c.
Petitioner Chevron Corporation has no parent corporation, and no publicly held company owns 10% or more of
its stock.
Petitioner Chevron U.S.A., Inc., is a wholly owned
subsidiary of petitioner Chevron Corporation.
Petitioner CITGO Petroleum Corporation is a wholly
owned indirect subsidiary of Petróleos de Venezuela S.A.
No publicly held company owns 10% or more of Petróleos
de Venezuela S.A.’s stock.
Petitioner CNX Resources Corporation has no parent
corporation. BlackRock, Inc., through itself or its subsidiaries, owns 10% or more of CNX Resources Corporation’s stock.
Petitioner ConocoPhillips has no parent corporation,
and no publicly held company owns 10% or more of its
stock.
Petitioner ConocoPhillips Company is a wholly owned
subsidiary of petitioner ConocoPhillips.
(II)
III
Petitioner CONSOL Energy Inc. has no parent corporation. BlackRock, Inc., through itself or its subsidiaries,
owns 10% or more of CONSOL Energy Inc.’s stock.
Petitioner CONSOL Marine Terminals LLC is a
wholly owned indirect subsidiary of petitioner CONSOL
Energy Inc.
Petitioner Crown Central New Holdings LLC is the
sole member of petitioner Crown Central LLC. The sole
member of Crown Central New Holdings LLC is
Rosemore Holdings, Inc., a wholly owned subsidiary of
Rosemore, Inc. No publicly held company owns 10% or
more of Rosemore, Inc.’s stock.
Petitioner Exxon Mobil Corporation has no parent
corporation, and no publicly held company owns 10% or
more of its stock.
Petitioner ExxonMobil Oil Corporation is a wholly
owned indirect subsidiary of petitioner Exxon Mobil Corporation.
Petitioner Hess Corporation has no parent corporation, and no publicly held company owns 10% or more of
its stock.
Petitioner Marathon Petroleum Corporation has no
parent corporation. BlackRock, Inc., through itself or its
subsidiaries, owns 10% or more of Marathon Petroleum
Corporation’s stock.
Petitioner Phillips 66 has no parent corporation, and
no publicly held company owns 10% or more of its stock.
Petitioner Shell plc has no parent corporation, and no
publicly held company owns 10% or more of its stock.
Petitioner Shell USA, Inc., is a wholly owned indirect
subsidiary of petitioner Shell plc.
Petitioner Speedway LLC is an indirect subsidiary of
Seven & i Holdings Co., Ltd. Seven & i Holdings Co.,
Ltd., through itself or its subsidiaries, owns 10% or more
of Speedway LLC’s stock.
IV
Respondent is the Mayor and City Council of Baltimore.
Marathon Oil Corporation and Marathon Oil Company
were parties to the proceedings below.
Marathon Oil Corporation has no parent corporation.
BlackRock, Inc., through itself or its subsidiaries, owns
10% or more of Marathon Oil Corporation’s stock.
Marathon Oil Company is a wholly owned subsidiary
of Marathon Oil Corporation.
RELATED PROCEEDINGS
United States District Court (D. Md.):
Mayor & City Council of Baltimore v. BP p.l.c.,
Civ. No. 18-2357 (June 10, 2019)
United States Court of Appeals (4th Cir.):
Mayor & City Council of Baltimore v. BP p.l.c.,
No. 19-1644 (Apr. 7, 2022)
United States Supreme Court:
BP p.l.c. v. Mayor & City Council of Baltimore,
No. 19A368 (Oct. 22, 2019)
BP p.l.c. v. Mayor & City Council of Baltimore,
No. 19-1189 (June 18, 2021)
(V)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 2
Jurisdiction .................................................................................... 2
Statutory provisions involved ...................................................... 2
Statement ...................................................................................... 3
A. Background ...................................................................... 5
B. Facts and procedural history ......................................... 8
Reasons for granting the petition ............................................. 12
A. The decision below implicates a conflict
among the courts of appeals on the first
question presented ........................................................ 13
B. The decision below deepens a conflict
among the courts of appeals on the second
question presented ........................................................ 18
C. The decision below is incorrect .................................... 24
D. The questions presented are important
and warrant the Court’s review in this case ............... 31
Conclusion ................................................................................... 34
Appendix A .................................................................................. 1a
Appendix B ................................................................................ 87a
Appendix C .............................................................................. 138a
TABLE OF AUTHORITIES
Cases:
American Electric Power Co. v. Connecticut,
564 U.S. 410 (2011) ............................................ 7, 8, 25, 26
Anne Arundel County v. BP p.l.c.,
Civ. No. 21-1323, 2022 WL 4548226
(D. Md. Sept. 29, 2022)...................................................... 9
Arbaugh v. Y&H Corp., 546 U.S. 501 (2006) ............... 27, 28
Board of County Commissioners of Boulder
County v. Suncor Energy (U.S.A.) Inc.,
25 F.4th 1238 (10th Cir. 2022) ........................ 8, 16, 17, 23
(VII)
VIII
Page
Cases—continued:
Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) ............. 29
City & County of Honolulu v. Sunoco LP,
39 F.4th 1101 (9th Cir. 2022) ............................................ 8
City of Hoboken v. Exxon Mobil Corp.,
45 F.4th 699 (3d Cir. 2022) ................................... 8, 23, 24
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) .................................................... 14, 28
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021) ...................................... passim
City of Oakland v. BP p.l.c.:
969 F.3d 895 (9th Cir. 2020), cert. denied,
141 S. Ct. 2776 (2021) .......................................... 21, 22, 23
No. 17-6011, 2018 WL 1064293
(N.D. Cal. Feb. 27, 2018) ................................................ 22
County of San Mateo v. Chevron Corp.,
32 F.4th 733 (9th Cir. 2022) ........................................ 8, 23
Devils Lake Indian Sioux Tribe v. North Dakota
Public Service Commission,
896 F. Supp. 955 (D.N.D. 1995) ..................................... 19
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) ........... 7
Federated Department Stores, Inc. v. Moitie,
452 U.S. 394 (1981) ............................................................ 6
Franchise Tax Board v. Construction Laborers
Vacation Trust, 463 U.S. 1 (1983) ............................. 6, 30
Grable & Sons Metal Products, Inc.
v. Darue Engineering & Manufacturing,
545 U.S. 308 (2005) .................................................... 22, 30
Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743 (2019) .................................................... 5, 6
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) .... passim
International Paper Co. v. Ouellette,
479 U.S. 481 (1987) .................................................... 25, 26
National Farmers Union Insurance Cos.
v. Crow Tribe of Indians, 471 U.S. 845 (1985) ... 7, 20, 29
IX
Page
Cases—continued:
Native Village of Kivalina v. ExxonMobil Corp.,
696 F.3d 849 (9th Cir. 2012) ..................................... 16, 17
Oneida Indian Nation v. County of Oneida,
414 U.S. 661 (1974) .......................................................... 28
Otter Tail Power Co., In re,
116 F.3d 1207 (8th Cir. 1997) ................................... 19, 20
Rhode Island v. Shell Oil Products Co.,
35 F.4th 44 (1st Cir. 2022) .................................... 8, 17, 18
Sam L. Majors Jewelers v. ABX, Inc.,
117 F.3d 922 (5th Cir. 1997) ........................................... 20
Tennessee v. Davis, 100 U.S. 257 (1879) ........................... 31
Texas Industries, Inc. v. Radcliff
Materials, Inc., 451 U.S. 630 (1981) .................... 7, 25, 28
Torres v. Southern Peru Copper Corp.,
113 F.3d 540 (5th Cir. 1997) ........................................... 20
United States v. Lara, 541 U.S. 193 (2004)........................ 19
United States v. Standard Oil Co.,
332 U.S. 301 (1947) ...................................................... 7, 28
Vaden v. Discover Bank, 556 U.S. 49 (2009) ....................... 6
Constitution and statutes:
U.S. Const. Art. III, § 2 ......................................................... 5
U.S. Const. Art. III, § 2, cl. 1 ................................................ 6
Clean Air Act, 42 U.S.C. 7401-7671q ......................... passim
28 U.S.C. 1254(1) .................................................................... 2
28 U.S.C. 1331 .............................................................. passim
28 U.S.C. 1441(a) ......................................................... passim
28 U.S.C. 1442 ......................................................................... 8
28 U.S.C. 1447(d) .............................................................. 3, 10
Miscellaneous:
Richard H. Fallon, Jr., et al.,
Hart & Wechsler’s Federal Courts
and the Federal System (7th ed. 2015) ......................... 30
Charles Alan Wright et al., Federal Practice
and Procedure (4th ed. 2018) ......................................... 30
In the Supreme Court of the United States
No.
BP P.L.C., ET AL., PETITIONERS
v.
MAYOR AND CITY COUNCIL OF BALTIMORE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
BP p.l.c.; BP America Inc.; BP Products North America Inc.; Chevron Corporation; Chevron U.S.A., Inc.;
CITGO Petroleum Corporation; CNX Resources Corporation; ConocoPhillips; ConocoPhillips Company; CONSOL Energy Inc.; CONSOL Marine Terminals LLC;
Crown Central LLC; Crown Central New Holdings LLC;
Exxon Mobil Corporation; ExxonMobil Oil Corporation;
Hess Corporation; Marathon Petroleum Corporation;
Phillips 66; Shell plc; Shell USA, Inc.; and Speedway LLC
respectfully petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Fourth Circuit in this case.
(1)
2
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a86a) is reported at 31 F.4th 178. The opinion of the district
court (App., infra, 87a-137a) is reported at 388 F. Supp.
3d 538. A prior opinion of this Court is reported at 141
S. Ct. 1532, and a prior opinion of the court of appeals is
reported at 952 F.3d 452.
JURISDICTION
The judgment of the court of appeals was entered on
April 7, 2022. A petition for rehearing was denied on May
17, 2022. App., infra, 138a-139a. On August 1, 2022, the
Chief Justice extended the time within which to file a petition for a writ of certiorari until October 14, 2022. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATUTORY PROVISIONS INVOLVED
Section 1331 of Title 28 of the United States Code provides:
The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States.
Section 1441(a) of Title 28 of the United States Code
provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States
for the district and division embracing the place where
such action is pending.
3
STATEMENT
This case now returns to the Court, presenting two
questions the Court left open in its earlier decision related
to claims seeking redress for injuries allegedly caused by
the effect of interstate greenhouse-gas emissions on the
global climate.
Last year in this case, the Court held that a court of
appeals has jurisdiction under 28 U.S.C. 1447(d) to review
all grounds for removal in a case where removal is premised in part on the federal-officer or civil-rights removal
statutes. The Court declined at the time to decide
whether the district court had federal-question jurisdiction over the climate-change claims alleged here based on
the Court’s precedents applying federal rules of decision
to common-law claims seeking redress for injuries allegedly caused by interstate pollution. On remand from this
Court, the court of appeals held that a district court lacks
jurisdiction over such claims.
The questions presented in this case are, first,
whether federal common law necessarily and exclusively
governs claims seeking redress for injuries allegedly
caused by the effect of interstate greenhouse-gas emissions on the global climate, and second, whether a federal
district court has jurisdiction under 28 U.S.C. 1331 over
claims necessarily and exclusively governed by federal
common law but labeled as arising under state law. The
circuits are in conflict on both questions, and the Court
recently invited the Solicitor General to file a brief expressing the views of the United States on those questions
in Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550. The United
States has previously expressed the view that climatechange claims similar to those alleged here are removable
because they are inherently and necessarily federal in nature.
4
As in Suncor, petitioners are energy companies that
produce or sell fossil fuels; respondent is the municipal
government of Baltimore, Maryland. Like a number of
other state and local governments in similar cases across
the country, respondent filed this action against petitioners in local state court, asserting claims purportedly arising under state law to recover for harms that respondent
alleges it has sustained and will sustain from petitioners’
operations because of global climate change.
As in other similar cases, petitioners removed this
case to federal district court, asserting federal subjectmatter jurisdiction on multiple grounds. Among other
grounds, petitioners contended that respondent’s claims
necessarily and exclusively arise under federal common
law and that removal was warranted under the federalofficer removal statute because respondent’s complaint
encompasses petitioners’ exploration for and production
of fossil fuels at the direction of federal officers. The district court remanded the case to state court, and petitioners appealed.
The court of appeals affirmed. It initially held that it
lacked appellate jurisdiction to review any grounds for removal other than the federal-officer ground. It then rejected petitioners’ arguments for removal on that ground.
After this Court held that the court of appeals’ view of appellate jurisdiction was incorrect and remanded for further proceedings, the court of appeals once again affirmed. The court of appeals proceeded to reject all of petitioners’ remaining grounds for removal, including removal on the basis of federal common law. The court reasoned that the longstanding federal common law of interstate pollution did not apply to respondent’s claims and in
any event no longer existed due to statutory displacement. The court further held that the well-pleaded complaint rule allows a plaintiff to avoid federal jurisdiction
5
by affixing state-law labels to claims necessarily and exclusively governed by federal common law.
The court of appeals’ decision was incorrect, and it implicates circuit conflicts on two important and recurring
questions of federal law that have arisen with particular
frequency in the numerous and materially identical climate-change cases pending in federal courts across the
Nation. Because the Court has already invited the Solicitor General to file a brief addressing those questions in
Suncor, the petition for a writ of certiorari in this case
should be held pending a decision on the petition in Suncor. If the Court grants review in Suncor, the petition
here should be held pending a decision on the merits there
and then disposed of as is appropriate. Otherwise, the petition should be granted.
A. Background
As the Court has long explained, “federal courts are
courts of limited jurisdiction.” Home Depot U.S.A., Inc.
v. Jackson, 139 S. Ct. 1743, 1746 (2019) (citation and alteration omitted). Article III, Section 2, of the Constitution
sets forth the categories of cases “over which federal judicial authority may extend.” Ibid. (citation omitted).
And the jurisdiction of lower federal courts is “further
limited to those subjects encompassed within a statutory
grant of jurisdiction.” Ibid. (citation omitted). A federal
district court thus “may not exercise jurisdiction absent a
statutory basis” for doing so. Ibid. (citation omitted).
In addition to creating jurisdiction over certain actions
originally filed in federal court, Congress also authorized
the removal to federal court of certain cases initially filed
in state court. Of particular relevance here, the general
removal statute, 28 U.S.C. 1441(a), authorizes the removal
of “any civil action brought in a [s]tate court of which the
6
district courts of the United States have original jurisdiction.” A defendant may thus remove a case to federal
court if the plaintiff “could have filed its operative complaint in federal court” in the first instance. Home Depot,
139 S. Ct. at 1748.
One of the most familiar statutes conferring original
jurisdiction on the district courts is the federal-question
statute, 28 U.S.C. 1331. It provides that “[t]he district
courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” Although the Constitution similarly authorizes federal jurisdiction over all cases “arising under
this Constitution, the laws of the United States, and treaties made,” Art. III, § 2, cl. 1, this Court has interpreted
the jurisdictional grant in Section 1331 to stop short of
constitutional limits. Instead, under the well-pleaded
complaint rule, an action arises under federal law for purposes of Section 1331 “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)
(citation and alteration omitted). An “actual or anticipated defense” under federal law does not give rise to jurisdiction under Section 1331. Ibid. At the same time, an
“independent corollary” to the well-pleaded complaint
rule is that “a plaintiff may not defeat removal by omitting
to plead necessary federal questions.” Franchise Tax
Board v. Construction Laborers Vacation Trust, 463 U.S.
1, 22 (1983). The well-pleaded complaint rule thus sometimes requires a federal court to “determine whether the
real nature of the claim is federal, regardless of [the]
plaintiff’s characterization.”
Federated Department
Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2 (1981) (citation
omitted).
The grant of jurisdiction in Section 1331 covers not
only constitutional or statutory claims, but also those
7
“founded upon federal common law.” National Farmers
Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S.
845, 850 (1985). Despite this Court’s familiar pronouncement in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78
(1938), that “[t]here is no federal general common law,”
the “federal judicial power to deal with common law problems” remains “unimpaired for dealing independently,
wherever necessary or appropriate, with essentially federal matters, even though Congress has not acted affirmatively about the specific question,” United States v.
Standard Oil Co., 332 U.S. 301, 307 (1947). Of particular
relevance here, federal law necessarily supplies the rule
of decision for certain narrow categories of claims that implicate “uniquely federal interests,” including where “the
interstate or international nature of the controversy
makes it inappropriate for state law to control.” Texas
Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630,
640-641 (1981) (citation omitted).
One established category of claims governed by federal common law is claims seeking redress for injuries allegedly caused by interstate pollution. Indeed, “[f]or over
a century, a mostly unbroken string of cases has applied
federal law to disputes involving” such claims. City of
New York v. Chevron Corp., 993 F.3d 81, 91 (2d Cir. 2021)
(collecting cases); see, e.g., American Electric Power Co.
v. Connecticut, 564 U.S. 410, 420-423 (2011); Illinois v.
City of Milwaukee, 406 U.S. 91, 103 (1972) (Milwaukee I).
As the Court has explained, federal common law must
govern such controversies because they “touch[] basic interests of federalism” and implicate the “overriding federal interest in the need for a uniform rule of decision.”
Milwaukee I, 406 U.S. at 105 n.6. The “basic scheme of
the Constitution” requires the application of a federal rule
of decision, because “borrowing the law of a particular
8
State would be inappropriate” to resolve such interstate
disputes. American Electric Power, 564 U.S. at 421, 422.
B. Facts And Procedural History
1. In 2017, a number of state and local governments
began filing lawsuits in state courts against various energy companies, most of them nonresidents of the forum
States. The plaintiffs alleged that the companies’ worldwide production, sale, and promotion of fossil fuels led to
the emission of greenhouse gases and thereby contributed
to global climate change. The plaintiffs have primarily asserted that the production, sale, and promotion of fossil
fuels violate various state-law duties, including commonlaw nuisance; they have sought compensatory and punitive damages as well as equitable relief.
The defendants removed those lawsuits to federal
court. They asserted multiple bases for federal jurisdiction, including that the allegations in the complaints pertain to actions the defendants took at the direction of federal officers, see 28 U.S.C. 1442, and that the plaintiffs’
climate-change claims necessarily and exclusively arise
under federal common law, see, e.g., American Electric
Power, 564 U.S. at 420-423; Milwaukee I, 406 U.S. at 103.
As of the filing of this brief, 23 related cases are pending
in federal courts nationwide in which the parties are actively litigating the question of removal, either in district
court or on appeal. 1
See City of Hoboken v. Exxon Mobil Corp., 45 F.4th 699 (3d Cir.
2022) (appeal consolidating two actions); City & County of Honolulu
v. Sunoco LP, 39 F.4th 1101 (9th Cir. 2022) (consolidating two actions); Rhode Island v. Shell Oil Products Co., 35 F.4th 44 (1st Cir.
2022); County of San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir.
2022) (appeal consolidating six actions); Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., 25 F.4th
1238 (10th Cir. 2022) (petition for cert. filed June 8, 2022); Minnesota
1
9
2. Petitioners are 21 domestic and foreign energy
companies that produce or sell fossil fuels around the
world (or have previously done so). In 2018, respondent
filed a complaint in Maryland state court against petitioners and others, alleging that petitioners had caused or will
cause harms by contributing to global climate change.
Respondent seeks damages for the effect of climate
change on its property, as well as an order requiring petitioners to “abate” the “nuisance” they allegedly created
by their activities. App., infra, 4a-5a, 87a-88a.
Petitioners removed this action to the United States
District Court for the District of Maryland. App., infra, 5a. In their notice of removal, petitioners raised many
of the same bases for federal jurisdiction as have the defendants in other climate-change lawsuits, including that
respondent’s climate-change claims necessarily and exclusively arise under federal common law and that removal was permissible under the federal-officer removal
statute. Id. at 5a-6a, 89a.
The district court remanded the case to state court
based on a lack of subject-matter jurisdiction. App., infra,
87a-137a. With respect to federal common law as a basis
for removal, the district court concluded that the wellpleaded complaint rule precluded removal because the
complaint did not expressly assert claims under federal
v. American Petroleum Institute, No. 21-1752 (8th Cir.) (argued Mar.
15, 2022); Connecticut v. Exxon Mobil Corp., No. 21-1446 (2d Cir.)
(argued Sept. 23, 2022); Anne Arundel County v. BP p.l.c., Civ. No.
21-1323, 2022 WL 4548226 (D. Md. Sept. 29, 2022) (decision consolidating two actions); City of New York v. Exxon Mobil Corp., Civ. No.
21-4807 (S.D.N.Y.); City of Oakland v. BP p.l.c., Civ. No. 17-6011
(N.D. Cal.) (consolidating two actions); County of Charleston v. Brabham Oil Co., Civ. No. 20-3579 (D.S.C.); District of Columbia v. Exxon
Mobil Corp., Civ. No. 20-1932 (D.D.C.); Pacific Coast Federation of
Fishermen’s Associations, Inc. v. Chevron Corp., Civ. No. 18-7477
(N.D. Cal.); Vermont v. Exxon Mobil Corp., Civ. No. 21-260 (D. Vt.).
10
common law. Id. at 100a-101a. With respect to the federal-officer ground for removal, the district court determined that the connection between the “wide array of conduct for which [petitioners] have been sued” and the “asserted official authority” was too “attenuated” to permit
removal. Id. at 126a.
3. In its initial opinion in this case, the court of appeals affirmed the district court’s remand order, addressing only the district court’s conclusion that federal jurisdiction did not lie under the federal-officer removal statute. App., infra, 6a. The court of appeals did not review
the portions of the district court’s remand order rejecting
petitioners’ other grounds for removal, reasoning that 28
U.S.C. 1447(d) deprived it of appellate jurisdiction over
those grounds. Ibid.
Petitioners filed a petition for a writ of certiorari with
this Court, presenting the question whether the court of
appeals’ jurisdiction extended beyond the federal-officer
ground for removal. See 19-1189 Pet. i. This Court
granted certiorari and held that Section 1447(d) permits
appellate review of all grounds for removal in a case removed in part on federal-officer grounds. See 141 S. Ct.
1532, 1538 (2021). The Court then vacated the court of
appeals’ judgment and remanded for further consideration in light of its decision. See id. at 1543.
4. On remand, the court of appeals once again affirmed the district court’s remand order. App., infra, 1a86a. As is relevant here, the court of appeals first held
that federal common law did not provide a basis for removal because the complaint “never expressly asserts any
claim under federal common law.” Id. at 12a. Despite recognizing that respondent’s claims seek redress for harms
allegedly caused by the contribution of transboundary
11
emissions to global climate change, id. at 4a, the court proceeded to hold that no federal rule of decision governs respondent’s claims.
The court of appeals began its analysis by setting forth
“two strict conditions” that it understood must be satisfied before it could create a “new federal rule of decision”:
namely, the presence of a “uniquely federal interest[]”
and a “significant conflict” between that interest and the
application of state law. App., infra, 14a, 20a (citation
omitted). But instead of “immediately proceed[ing] to
[this] Court’s authorities dealing with global warming and
interstate pollution,” the court of appeals “deem[ed] it
prudent” to apply the test for determining whether to extend federal common law to a new area. Id. at 15a-16a.
The court faulted petitioners for relying on this Court’s
decisions regarding interstate pollution, holding that petitioners had failed to “establish a significant conflict between [plaintiff’s] state-law claims” and any “federal interests.” Id. at 16a. The court further held that the absence of any identified conflict “substantively precludes
the creation of federal common law.” Id. at 17a.
The court of appeals expressly declined to follow the
Second Circuit’s decision in City of New York v. Chevron
Corp., 993 F.3d 81 (2021), which held that federal common
law governs claims seeking redress for injuries allegedly
caused by the contribution of global greenhouse-gas emissions to climate change. See id. at 89-95. The court of
appeals reasoned that the Second Circuit’s decision arose
in a different procedural posture and “suffers from the
same legal flaw as [petitioners’] arguments”: namely, that
it “fails to explain a significant conflict between the statelaw claims before it and the federal interests at stake.”
App., infra, 18a.
12
The court of appeals additionally concluded that removal based on federal common law was improper because the Clean Air Act had displaced any remedy otherwise available under federal common law. App., infra,
21a-24a. The court reasoned that “[p]ublic nuisance
claims involving interstate pollution, including issues
about greenhouse-gas emissions, are nonexistent under
federal common law,” rendering removal based on federal
common law impermissible. Id. at 24a.
REASONS FOR GRANTING THE PETITION
The court of appeals’ decision implicates a circuit conflict on the question whether federal common law necessarily and exclusively governs claims seeking redress for
injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate. The decision
also deepens an existing conflict on the question whether
federal district courts have jurisdiction under 28 U.S.C.
1331 over claims necessarily and exclusively governed by
federal common law but labeled as arising under state
law. The court of appeals reached the incorrect conclusion
on both questions.
This Court recently invited the Solicitor General to file
a brief in Suncor Energy (U.S.A.) Inc. v. Board of County
Commissioners of Boulder County, No. 21-1550, expressing the views of the United States on the same questions
presented here. In light of that request, the petition here
should be held pending a decision on the petition in Suncor. If the Court grants review in Suncor, the petition
here should be held pending a decision on the merits there
and then disposed of as is appropriate. Otherwise, the petition should be granted.
13
A. The Decision Below Implicates A Conflict Among The
Courts Of Appeals On The First Question Presented
In the decision below, the court of appeals declined to
apply a federal rule of decision to claims seeking redress
for injuries allegedly caused by the effect of interstate
greenhouse-gas emissions on the global climate. In reaching that determination, the court of appeals expressly rejected the Second Circuit’s reasoning in City of New York
v. Chevron Corp., 993 F.3d 81 (2021), which held that federal common law governs similar climate-change claims.
The First and Tenth Circuits—in other climate-change
cases on remand from this Court—have also declined to
follow City of New York and held that federal common law
does not govern claims like the ones alleged here. Review
of this important question is warranted to resolve the conflict among the courts of appeals.
1. In City of New York, the municipal government of
New York City filed suit in federal court based on diversity jurisdiction, alleging that the defendant energy companies (including some of the petitioners here) were liable
for injuries allegedly caused by the contribution of interstate greenhouse-gas emissions to global climate change.
As does respondent here, the plaintiff asserted claims for
public nuisance, private nuisance, and trespass under
state law. See 993 F.3d at 88.
The question before the Second Circuit was “whether
municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by
global greenhouse gas emissions.” 993 F.3d at 85. The
Second Circuit unanimously held that “the answer is ‘no’ ”
and that claims seeking redress for global climate change
presented “the quintessential example of when federal
common law is most needed.” Id. at 85, 92.
Relying on this Court’s precedents, the Second Circuit
began its analysis by noting that, “[f]or over a century, a
14
mostly unbroken string of cases has applied federal law to
disputes involving interstate air or water pollution.” 993
F.3d at 91. The Second Circuit explained that “such quarrels often implicate two federal interests that are incompatible with the application of state law”: the “overriding
need for a uniform rule of decision” on matters influencing
national energy and environmental policy, and “basic interests of federalism.” Ibid. (internal quotation marks
and alterations omitted) (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6 (1972)).
And in the Second Circuit’s view, claims seeking to
hold defendants liable for injuries arising from “the cumulative impact of conduct occurring simultaneously across
just about every jurisdiction on the planet” are far too
“sprawling” for state law to govern. 993 F.3d at 92. The
court explained that application of state law to the city’s
claims would “risk upsetting the careful balance that has
been struck between the prevention of global warming, a
project that necessarily requires national standards and
global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” Id. at 93.
The Second Circuit rejected the plaintiff’s argument
that displacement by the Clean Air Act of any remedy under federal common law allows state law to “snap back
into action.” 993 F.3d at 98. That “position is difficult to
square with the fact that federal common law governed
this issue in the first place,” the court reasoned, because
“where ‘federal common law exists, it is because state law
cannot be used.’ ” Ibid. (quoting City of Milwaukee v. Illinois, 451 U.S. 304, 313 n.7 (1981)). In the court’s view,
“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.” Ibid.
15
Such an outcome, the Second Circuit concluded, is “too
strange to seriously contemplate.” Id. at 98-99.
2. The decision below is irreconcilable with City of
New York. According to the court of appeals, petitioners
could not invoke the federal common law of transboundary pollution on which the Second Circuit relied. See
App., infra, 15a, 18a-19a. Instead, the court of appeals
reasoned that petitioners needed to satisfy the test for determining whether to create federal common law in the
first place or to extend it to a new area. See id. at 18a.
In so holding, the court of appeals expressly declined
to “follow City of New York.” App., infra, 19a. The court
reasoned that the Second Circuit’s decision “fails to explain a significant conflict between the state-law claims
before it and the federal interests at stake.” Id. at 18a.
According to the court of appeals, the Second Circuit had
thereby “evad[ed] the careful analysis” necessary to determine whether federal common law applies. Id. at 19a.
The court of appeals further departed from the Second
Circuit by holding that federal common law did not govern
because the Clean Air Act displaced any federal-commonlaw remedy. See App., infra, 21a. The Second Circuit expressly concluded in City of New York that the plaintiff—
whose claims long postdated the Act—brought “federal
claims” that must arise “under federal common law.” 993
F.3d at 95; see id. at 95, 98, 101 (describing the claims as
“federal common law claims”). In addition, the Second
Circuit declined to apply a “traditional statutory preemption analysis” after concluding that the plaintiff’s claims
were federal claims, instead reasoning 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.
City of New York can thus only be understood to hold—
16
contrary to the decision below—that federal common law
continues to govern in this area, even decades after the
Clean Air Act displaced any remedy available under federal common law.
The court of appeals additionally attempted to distinguish City of New York on the ground that the plaintiff
there filed its complaint in federal court based on diversity jurisdiction. See App., infra, 18a. The effect of federal common law thus arose on a motion to dismiss for failure to state a claim. See City of New York, 993 F.3d at 8889. The Second Circuit itself acknowledged that City of
New York differed from other cases in that respect. See
id. at 93-94.
But that difference does not eliminate the conflict on
the first question presented. The court of appeals’ conclusion that the federal common law of interstate emissions
does not govern has nothing to do with the logically subsequent question of whether the well-pleaded complaint
rule allows a plaintiff to avoid federal jurisdiction if federal common law governs. The court of appeals’ conclusion on the former question cannot be squared with the
Second Circuit’s.
3. Like the court of appeals, the Tenth Circuit, on remand from this Court, declined to hold that federal common law governs claims seeking redress for injuries allegedly caused by the effect of greenhouse-gas emissions on
the global climate. See Board of County Commissioners
of Boulder County v. Suncor Energy (U.S.A.) Inc., 25
F.4th 1238 (2022). The Tenth Circuit held that federal jurisdiction was not present because, after statutory displacement by the Clean Air Act, the otherwise-applicable
federal common law “no longer exists.” Id. at 1260 (citation and emphasis omitted). In reaching that conclusion,
the Tenth Circuit relied on the reasoning of the concurring opinion in Native Village of Kivalina v. ExxonMobil
17
Corp., 696 F.3d 849, 865 (9th Cir. 2012) (Pro, J.)—a similar
case involving claims of injury from climate change—to
the effect that, “[o]nce federal common law is displaced,
state nuisance law becomes an available option to the extent it is not preempted by federal law.” Suncor, 25 F.4th
at 1261. The Tenth Circuit thus departed from the Second
Circuit’s holding that state law did not (and could not)
“snap back into action” after the Clean Air Act displaced
any remedy under federal common law. City of New York,
993 F.3d at 98.
As did the court of appeals below, the Tenth Circuit
attempted to distinguish City of New York on the ground
that the Second Circuit did not need to apply the wellpleaded complaint rule, because “the city initiated the action in federal court.” Suncor, 25 F.4th at 1262. But
again, that distinction does not avoid the conflict: the
Tenth Circuit held that the relevant “federal common law
no longer exists,” id. at 1260 (citation omitted), whereas
the Second Circuit held that similar climate-change
claims “must be brought under federal common law,” City
of New York, 993 F.3d at 95.
4. In Rhode Island v. Shell Oil Products Co., 35 F.4th
44 (2022), the First Circuit reached the same conclusion
as the court of appeals below. Expressly agreeing with
the court of appeals’ reasoning, the First Circuit held that
the district court lacked jurisdiction on the basis of federal
common law, faulting the defendants for relying on this
Court’s precedents rather than describing “any significant conflict” between the “federal interests” at issue and
the plaintiff’s “state-law claims.” Id. at 54 (citation omitted).
The First Circuit expressly declined to rely on the Second Circuit’s reasoning to find a conflict between the application of state law to climate-change claims and “the
federal government’s relations with foreign countries.” 35
18
F.4th at 55. It reasoned that City of New York was “distinguishable” because the complaint there was filed “in
federal court in the first instance.” Ibid. (emphasis omitted) (citing App., infra, 17a-19a). Like the court of appeals below, the First Circuit did not explain how that fact
alters the answer to the distinct question whether federal
common law governs the claims.
The First Circuit next held that, even if such a conflict
were present, removal based on federal common law
would still have been improper. See 35 F.4th at 55. The
First Circuit concluded that the displacement of federal
common law by the Clean Air Act meant that no “federal
common law controls [the plaintiff’s] claims,” even assuming that the claims implicated the type of “transboundary
pollution” at issue in this Court’s precedents. Ibid. The
First Circuit’s decision thus similarly conflicts with the
Second Circuit’s decision in City of New York on the question whether federal common law necessarily and exclusively governs claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas
emissions on the global climate.
B. The Decision Below Deepens A Conflict Among The
Courts Of Appeals On The Second Question Presented
The court of appeals further held that the well-pleaded
complaint rule precludes federal jurisdiction under 28
U.S.C. 1331 over claims necessarily and exclusively governed by federal common law but labeled as arising under
state law. See App., infra, 20a. That holding deepens another existing circuit conflict among the courts of appeals
that warrants the Court’s review.
1. Two courts of appeals have 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.
19
a. In In re Otter Tail Power Co., 116 F.3d 1207
(1997), the Eighth Circuit affirmed the removal of putative state-law claims because they were governed by federal common law. At issue in Otter Tail was the effect of
a judgment in an earlier federal action concerning the
scope of an Indian tribe’s “inherent sovereignty,” which is
governed by federal common law. See Otter Tail, 116
F.3d at 1209-1210; Devils Lake Indian Sioux Tribe v.
North Dakota Public Service Commission, 896 F. Supp.
955, 961 (D.N.D. 1995); see generally United States v.
Lara, 541 U.S. 193, 207 (2004). After the first federal action ended, a party to the judgment filed a subsequent action against the tribe and other defendants in state court,
seeking to enjoin the defendants from allegedly violating
the earlier federal judgment. One of the defendants removed the case to federal court.
The Eighth Circuit held that the district court had jurisdiction over the case under 28 U.S.C. 1331 and that removal was thus proper. The court began its analysis by
acknowledging that, under the well-pleaded complaint
rule, removal based on federal-question jurisdiction is
permitted only when the complaint establishes 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.” Otter Tail, 116 F.3d at
1213 (citation omitted). It noted, however, that “[a] plaintiff ’s characterization of a claim as based solely on state
law is not dispositive of whether federal question jurisdiction exists.” Ibid. (citation omitted).
Turning to the complaint before it, the Eighth Circuit
concluded that removal based on federal-question jurisdiction was proper because the district court’s order in the
first action concerned “the extent of an Indian Tribe’s authority to regulate nonmembers on a reservation,” which
is “manifestly a federal question.” 116 F.3d at 1214. In
20
reaching that conclusion, the court cited the Supreme
Court’s decision in National Farmers Union, supra,
which held that a claim concerning an Indian tribe’s sovereign powers was governed by federal common law and
thus gave rise to federal-question jurisdiction. See ibid.
b. In Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d
922 (1997), the Fifth Circuit similarly upheld the removal
of putative state-law claims on the ground that they were
governed by federal common law. There, the plaintiff
filed claims in state court for breach of contract, negligence, and violations of a state statute, seeking damages
from an airline that allegedly lost some of the plaintiff’s
goods. See id. at 924. The defendant removed the case to
federal court.
In assessing whether removal was proper, the Fifth
Circuit recognized that jurisdiction under Section 1331
exists only “when a federal question is presented on the
face of a plaintiff’s properly pleaded complaint.” 117 F.3d
at 924. The court further noted that, under Section
1441(a), “only actions that originally could have been filed
in federal court can be removed to federal court.” Ibid.
The court then reasoned that there are “three theories
that might support federal question jurisdiction” in the
case: where “the complaint raises an express or implied
cause of action that exists under a federal statute”; where
the relevant “area of law is completely preempted by the
federal regulatory regime”; and where “the cause of action arises under federal common law principles.” Ibid.
The court concluded that removal was proper under the
third theory, because an action against a common air carrier for lost or damaged goods “arises under federal common law.” Id. at 929; see Torres v. Southern Peru Copper
Corp., 113 F.3d 540, 542-543 (5th Cir. 1997) (permitting
removal where a state-law claim raised “substantial questions of federal common law”).
21
2. In the decision below, the court of appeals held
that, under the well-pleaded complaint rule, federal common law cannot provide a basis for jurisdiction under Section 1331—and removal is thus improper under Section
1441(a)—where the plaintiff omits any reference to federal law in the complaint. See App., infra, 12a, 20a. The
court of appeals noted that the complaint “never alleges
an existing federal common law claim” and “only brings
claims originating under [state] law.” Id. at 12a. The
court then concluded that “subject-matter jurisdiction via
federal common law” does not exist where the complaint
did not “clearly seek recovery under federal law.” Ibid.
(citation omitted).
Under the court of appeals’ logic, a district court is
bound by the labels the plaintiff applies to the claims in
the complaint, even where federal common law necessarily and exclusively governs the issues pleaded on the
face of the complaint. That conclusion conflicts with the
decisions of the Fifth and Eighth Circuits permitting the
removal of putative state-law claims necessarily and exclusively governed by federal common law.
3. In addition to the court below, three other courts of
appeals have held—in the particular context of climatechange litigation—that Section 1331 does not permit the
exercise of jurisdiction over claims necessarily governed
by federal common law but labeled as arising under state
law.
a. In City of Oakland v. BP p.l.c., 969 F.3d 895 (2020),
cert. denied, 141 S. Ct. 2776 (2021), the Ninth Circuit
faced arguments similar to those raised here regarding
the removal of climate-change claims on the basis of federal common law. In particular, the defendants argued
that claims pleaded under state law but necessarily and
exclusively governed by federal common law were subject
to federal-question jurisdiction because they were, in fact,
22
federal claims. See 20-1089 Pet. at 20-22. The defendants
thus contended that removal of such claims was permissible without resort to the doctrine of Grable & Sons Metal
Products, Inc. v. Darue Engineering & Manufacturing,
545 U.S. 308 (2005), which permits the removal of statelaw claims that necessarily raise substantial and disputed
federal issues. See id. at 314; 20-1089 Pet. at 20. The district court agreed with the defendants’ approach and held
that removal based on federal common law was proper.
See Civ. No. 17-6011, 2018 WL 1064293, at *2-*5 (N.D.
Cal. Feb. 27, 2018).
The Ninth Circuit disagreed. 969 F.3d at 903-907. It
started from the premise that, under the well-pleaded
complaint rule, “a civil action arises under federal law for
purposes of [Section] 1331 when a federal question appears on the face of the complaint.” Id. at 903. The court
saw only two “exceptions” to that rule: removal under
Grable and complete preemption. See id. at 904-906.
Having framed the issue that way, the Ninth Circuit rejected the district court’s jurisdictional analysis without
comment. See id. at 906.
The Ninth Circuit instead addressed removal on the
basis of federal common law as part of the Grable inquiry.
See 969 F.3d at 906-907. And it held that, “[e]ven assuming that the [plaintiffs’] allegations could give rise to a cognizable claim for public nuisance under federal common
law, the district court did not have jurisdiction under [Section] 1331 because the state-law claim for public nuisance
fails to raise a substantial federal question.” Id. at 906 (citation omitted). The Ninth Circuit reasoned that the
plaintiffs’ claim neither “require[d] an interpretation of a
federal statute nor challenge[d] a federal statute’s constitutionality.” Ibid. (citations omitted). The Ninth Circuit
thus declined to permit the removal of a claim pleaded under state law but necessarily governed by federal common
23
law. See ibid. (opining that it was “not clear that the claim
require[d] an interpretation or application of federal law
at all,” because it was unclear whether “there is a federal
common law of public nuisance relating to interstate pollution” and because the Clean Air Act might displace any
such claim); see also County of San Mateo v. Chevron
Corp., 32 F.4th 733, 747-748 (9th Cir. 2022) (following City
of Oakland in similar climate-change cases).
b. In Suncor, supra, the Tenth Circuit likewise rejected the premise that federal common law provides a basis for removal of claims artfully pleaded under state law.
The Tenth Circuit acknowledged the principle that a
plaintiff cannot defeat removal by omitting necessary federal questions from the complaint. See 25 F.4th at 1261.
But the court concluded that the so-called “artful pleading” doctrine is coextensive with the doctrine of complete
preemption, which allows the removal of a state-law claim
where “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 1256 (internal quotation marks and citation omitted); see id. at 1261. The
court proceeded to hold that federal common law cannot
have complete preemptive effect. See id. at 1262.
c. In City of Hoboken v. Chevron Corp., 45 F.4th 699
(2022), the Third Circuit reached the same conclusion.
Like the Tenth Circuit, it held that a federal court can “recharacterize a state law claim as a federal claim removable to federal court * * * only when some federal statute completely preempts state law.” Id. at 707 (internal
quotation marks, citations, and alterations omitted). The
court further concluded that federal common law cannot
provide a basis for removal of claims artfully pleaded under state law, because federal common law provides only
24
a “garden-variety preemption” defense in that circumstance. Id. at 708. In so concluding, the Third Circuit departed from the Fifth and Eighth Circuits’ decisions holding that artfully pleaded state-law claims that arise under
federal common law are subject to removal.
*
*
*
*
*
In sum, the decision below implicates two conflicts of
federal law among the courts of appeals. As matters currently stand, one court of appeals has held that federal
common law necessarily and exclusively governs claims
seeking redress for injuries allegedly caused by the effect
of interstate greenhouse-gas emissions on the global climate; three other courts of appeals, including the court
below, have rejected that conclusion. Two courts of appeals have held that 28 U.S.C. 1331 provides a basis for
jurisdiction over claims necessarily and exclusively governed by federal common law but labeled as arising under
state law; three other courts of appeals, including the
court below, have reached the opposite conclusion. Those
conflicts are developed and entrenched, and the Court’s
intervention is necessary.
C. The Decision Below Is Incorrect
The court of appeals rejected petitioners’ arguments
on both questions presented and held that this case was
not removable to federal court. That decision was erroneous.
1. The court of appeals erred by holding that federal
common law does not necessarily and exclusively govern
respondent’s claims, which allege that the combustion of
petitioners’ fossil-fuel products led to greenhouse-gas
emissions, which contributed to global climate change,
which caused harms within its jurisdiction.
25
a. Federal common law supplies the rule of decision
for certain narrow categories of claims that implicate
“uniquely federal interests,” including where “the interstate or international nature of the controversy makes it
inappropriate for state law to control.” Texas Industries,
Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-641
(1981) (citation omitted). For over a century, this Court
has applied uniform federal common-law rules of decision
to claims seeking redress for interstate pollution. See
City of New York, 993 F.3d at 91 (collecting cases). For
example, in Illinois v. City of Milwaukee, 406 U.S. 91
(1972) (Milwaukee I), the Court reasoned that “[f]ederal
common law,” and not the “varying common law of the individual States,” is “necessary to be recognized as a basis
for dealing in uniform standard with the environmental
rights of a State against improper impairment by sources
outside its domain.” Id. at 108 n.9 (citation omitted). And
in International Paper Co. v. Ouellette, 479 U.S. 481
(1987), the Court unambiguously reaffirmed that “the
regulation of interstate water pollution is a matter of federal, not state, law.” Id. at 488 (citation omitted); see id.
at 492.
The Court recently reinforced that conclusion in
American Electric Power Co. v. Connecticut, 564 U.S. 410
(2011), with respect to similar nuisance claims alleging injury from global climate change caused by greenhousegas emissions. See id. at 418, 421. Writing for a unanimous Court, Justice Ginsburg reiterated that federal
common law “undoubtedly” governs claims involving “air
and water in their ambient or interstate aspects.” Id. at
421.
As those precedents demonstrate, the Constitution
dictates that federal law must govern controversies over
interstate pollution, because those controversies “touch[]
26
basic interests of federalism” and implicate the “overriding federal interest in the need for a uniform rule of decision.” Milwaukee I, 406 U.S. at 103 n.6. The Constitution
prohibits States from “regulat[ing] the conduct of out-ofstate sources” of pollution. Ouellette, 479 U.S. at 495. Because “borrowing the law of a particular State would be
inappropriate” to resolve such interstate disputes, “the
basic scheme of the Constitution” requires the application
of a federal rule of decision. American Electric Power,
564 U.S. at 421, 422.
Applying the foregoing precedents here leads to a
straightforward result: respondent’s climate-change
claims necessarily arise under federal, not state, law.
Through those claims, respondent is seeking damages
based on interstate—and indeed international—emissions of greenhouse gases over many decades, allegedly
resulting in part from the use of fossil-fuel products produced or sold by petitioners and consumed throughout the
world. See App., infra, 3a. Those claims fall squarely
within the long line of cases holding that federal common
law governs claims seeking redress for interstate air and
water pollution. In the words of the United States, climate-change claims like those alleged here “must be governed by federal common law.” En Banc Br. at 11, Oakland, supra (No. 18-16663); see id. at 6-12; U.S. Br. at 2628, BP p.l.c. v. Mayor & City Council of Baltimore, 141
S. Ct. 1532 (2021) (No. 19-1189).
That remains true whether the plaintiff claims that the
defendant emitted greenhouse gases directly or instead
claims that the defendant contributed to greenhouse-gas
emissions by producing and promoting fossil-fuel products. Whatever the allegedly tortious conduct, the alleged
injury is the result of greenhouse-gas emissions and their
effect on the global climate.
27
b. In the decision below, the court of appeals offered
two reasons why, in its view, federal law does not provide
the rule of decision for respondent’s claims. Both are erroneous.
The court first criticized petitioners (and the Second
Circuit) for “immediately proceed[ing] to [this] Court’s
authorities dealing with global warming and interstate
pollution” and failing to establish the “requirements for
expanding federal common law.” App., infra, 15a. But
petitioners never asked the court of appeals to expand
federal common law; instead, they relied on a long line of
precedent in which this Court has already recognized that
federal law alone necessarily governs interstate pollution.
See pp. 25-26, supra. The court of appeals thus erred by
applying the test for determining whether to extend federal common law to a new context—and by faulting petitioners for failing to satisfy that test. See App., infra, 15a17a. 2
The court of appeals next concluded that “federal common law in this area ceases to exist due to statutory displacement” by the Clean Air Act, allowing respondent to
assert “state-law claims.” App., infra, 21a. That reasoning impermissibly “conflate[s]” “jurisdiction” and “merits-related determinations.” Arbaugh v. Y&H Corp., 546
To the extent that the court of appeals couched its rejection of
petitioners’ position in terms of waiver, see App., infra, 17a, petitioners did explain that the application of state law would create a “significant conflict” with uniquely federal interests because it would improperly allow States to “regulate the conduct of out-of-state
sources,” Pet. C.A. Br. 25, 28 (citations omitted); would create an “unworkable” “patchwork of fifty different answers to the same fundamental global issue,” id. at 26 (citation omitted); and would require a
court to second-guess the federal government’s decisions in “setting
national and international policy on matters involving energy, the environment, and national security,” id. at 24; see also Pet. Supp. C.A.
Br. 5, 8-9.
2
28
U.S. 501, 511 (2006) (citation omitted). Whether a party
can obtain a remedy under federal common law is a distinct question from whether federal common law applies
in the first instance. Indeed, a claim governed by federal
common law arises under federal law for “jurisdictional
purposes” even if that claim “may fail at a later stage for
a variety of reasons.” Oneida Indian Nation v. County of
Oneida, 414 U.S. 661, 675 (1974); see United States v.
Standard Oil Co., 332 U.S. 301, 307, 313, 316 (1947) (deciding first whether federal common law governed and
only then whether a remedy under federal common law
exists).
More fundamentally, the court of appeals misunderstood the relationship between state law and federal common law. In cases that involve “interstate and international disputes implicating the conflicting rights of States
or our relations with foreign nations,” only federal law can
apply, because “our federal system does not permit the
controversy to be resolved under state law” at all. Texas
Industries, 451 U.S. at 641. In other words, where federal
common law applies, “state law cannot be used.” City of
Milwaukee v. Illinois, 451 U.S. 304, 313 n.7 (1981) (Milwaukee II).
Accordingly, there is no state law for the Clean Air Act
(or any other federal statute) to resurrect: state law did
not govern interstate emissions before Congress acted,
and the application of state law to interstate-pollution
claims remains inconsistent with our constitutional structure after the statutory displacement, even if federal law
provides no remedy for the particular claim alleged. As
the United States explained in its amicus brief in BP, supra, “[a]lthough the enactment of the Clean Air Act displace[d] federal common law” in the area of interstate
emissions, “that alone does not mean the door was opened
for tort claims based on the common law of an affected
29
State targeting conduct in another State.” U.S. Br. at 27
(internal quotation marks and citation omitted).
Respondent’s contrary approach rests on the bizarre
notion that Congress’s decision to address an inherently
federal issue by statute so directly as to displace federal
common-law remedies would result in state common-law
remedies suddenly becoming viable. As the Second Circuit put it, that result is “too strange to seriously contemplate.” City of New York, 993 F.3d at 98-99.
2. The court of appeals also erred by concluding that
the grant of federal-question jurisdiction in 28 U.S.C. 1331
does not extend to claims necessarily and exclusively governed by federal common law but labeled as arising under
state law, with the result that removal under 28 U.S.C.
1441(a) was improper.
Under Section 1331, federal district courts “have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” That includes claims “founded upon federal common law as well
as those of a statutory origin.” National Farmers Union,
471 U.S. at 850 (citation omitted). As a result, if the “dispositive issues stated in the complaint require the application” of a uniform rule of federal law, the action “arises
under” federal law for purposes of Section 1331, Milwaukee I, 406 U.S. at 100 (citation omitted), and the case is
removable to federal court, see 28 U.S.C. 1441(a).
The court of appeals declined to permit removal on the
basis of federal common law because respondent did not
expressly plead any claims under federal common law.
App., infra, 12a, 20a. But that reasoning misunderstands
the well-pleaded complaint rule. That rule provides that
federal-question jurisdiction exists only when “a federal
question is presented on the face of the plaintiff’s properly
pleaded complaint.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). An “independent corollary” of the
30
rule, however, is that “a plaintiff may not defeat removal
by omitting to plead necessary federal questions.” Construction Laborers Vacation Trust, 463 U.S. at 22. Put
another way, a plaintiff cannot “block removal” by artfully
pleading its claims in an effort to “disguise [an] inherently
federal cause of action.” 14C Charles Alan Wright et al.,
Federal Practice and Procedure § 3722.1, at 131-132 (4th
ed. 2018).
The artful-pleading principle allows the removal of respondent’s claims. Petitioners’ invocation of federal common law is not merely a defense to respondent’s claims
alleging injury from interstate and international air pollution. For the reasons explained above, see pp. 25-26, respondent’s claims do not just implicate federal-law issues;
they inherently are federal claims, arising under federal
law. No state law exists in this area for respondent to invoke. The artful-pleading principle prohibits plaintiffs
from avoiding federal jurisdiction over such claims by
dressing them in state-law garb.
The court of appeals suggested that the artful-pleading principle applies only in complete-preemption cases
involving federal statutes. App., infra, 10a-11a. But this
Court has never so held. And there is “[n]o plausible reason” why “the appropriateness of and need for a federal
forum should turn on whether the claim arose under a federal statute or under federal common law.” Richard H.
Fallon, Jr., et al., Hart & Wechsler’s Federal Courts and
the Federal System 819 (7th ed. 2015). Whether one views
a putative state-law claim governed by federal common
law as a disguised federal claim or as a state-law claim the
elements of which each raise substantial federal questions, see Grable, 545 U.S. at 314, such a claim is properly
understood to arise under federal law.
31
Accordingly, district courts have federal-question jurisdiction under 28 U.S.C. 1331, and thus removal jurisdiction under 28 U.S.C. 1441(a), over claims necessarily
and exclusively governed by federal common law but labeled as arising under state law. The court of appeals
erred by reaching a contrary conclusion, and its decision
to remand this case to state court warrants further review.
D. The Questions Presented Are Important And Warrant
The Court’s Review In This Case
As suggested by the Court’s call for the views of the
United States in Suncor, the questions presented in this
case are recurring and have substantial legal and practical
importance. This case, which cleanly presents both questions, is a suitable vehicle for the Court’s review.
1. The questions presented squarely implicate the
longstanding principle that federal law alone necessarily
governs disputes related to interstate pollution. As the
Second Circuit recognized, a “mostly unbroken string of
cases” spanning a century has applied federal law to such
disputes. City of New York, 993 F.3d at 91. More broadly,
whether a putative state-law claim is removable because
it arises necessarily and exclusively under federal common law is a significant jurisdictional question that arises
in several contexts of unique federal importance, from interstate pollution to foreign affairs to tribal relations. The
Court has long recognized the “great importance” of
maintaining clear and uniform rules on issues relating to
removal more generally. Tennessee v. Davis, 100 U.S.
257, 260 (1879).
The decision below creates particularly problematic
results in light of those precedents. Under the court of
appeals’ understanding of the operation of federal common law and federal-question jurisdiction, an artfully
32
pleaded claim for interstate pollution could never be removed to federal court absent complete diversity between
the parties (which able plaintiffs’ lawyers will readily
avoid). Such outcomes cannot be squared with this
Court’s decisions holding that claims seeking redress for
interstate air and water pollution arise under federal law
alone and thus are properly heard in federal court.
Resolution of the questions presented is especially important in the context of the nationwide climate-change
litigation brought by state and local governments against
energy companies. The decision below opens the door to
countless state-court lawsuits applying state nuisance law
to claims seeking redress for the global phenomenon of
climate change. The potentially conflicting results of such
lawsuits could “upset[] the careful balance that has been
struck between the prevention of global warming,” on the
one hand, and “energy production, economic growth, foreign policy, and national security,” on the other. City of
New York, 993 F.3d at 93. Absent intervention by this
Court, our national energy policy may be decided by juries in state courts applying varying standards of state
nuisance law.
In addition, if the Court does not weigh in on the
threshold question of jurisdiction in the near term, these
cases may gallop ahead in state court. If the Court later
holds that similar climate-change claims are removable to
federal court, countless resources spent litigating in state
court could be wasted.
2. This case is a suitable vehicle for resolution of the
questions presented. Those questions were pressed below, fully briefed by the parties, and passed on by the
court of appeals. And notably, this case has previously
been before the Court, making it a logical vehicle in which
to address the questions presented.
33
The petition for a writ of certiorari provides the Court
with another opportunity to consider and resolve the
questions presented. Those questions are undeniably important; they have divided the courts of appeals; and the
decision of the court of appeals was erroneous. If the
Court does not resolve those questions in Suncor, it
should grant certiorari here and provide clarity as to
whether the climate-change cases should proceed in federal or state court.
34
CONCLUSION
The petition for a writ of certiorari should be held
pending a decision on the petition in Suncor Energy
(U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550. If the Court grants review in
Suncor, the petition here should be held pending a decision there and then disposed of as is appropriate. Otherwise, the petition should be granted.
Respectfully submitted.
THEODORE J. BOUTROUS, JR.
GIBSON, DUNN &
CRUTCHER LLP
333 South Grand Street
Los Angeles, CA 90071
THOMAS G. HUNGAR
GIBSON, DUNN &
CRUTCHER LLP
1050 Connecticut Avenue,
N.W.
Washington, DC 20036
Counsel for Petitioners
Chevron Corporation and
Chevron U.S.A., Inc.
DAVID C. FREDERICK
DANIEL S. SEVERSON
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C.
1615 M Street, N.W.,
Suite 400
Washington, DC 20036
Counsel for Petitioners
Shell plc and Shell USA, Inc.
OCTOBER 2022
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
Counsel for Petitioners
Exxon Mobil Corporation
and ExxonMobil Oil
Corporation
NANCY G. MILBURN
ARNOLD & PORTER
KAYE SCHOLER LLP
250 West 55th Street
New York, NY 10019
MATTHEW T. HEARTNEY
JOHN D. LOMBARDO
ARNOLD & PORTER
KAYE SCHOLER LLP
777 South Figueroa Street,
44th Floor
Los Angeles, CA 90017
JOHN B. ISBISTER
JAIME W. LUSE
TYDINGS & ROSENBERG LLP
One East Pratt Street,
Suite 901
Baltimore, MD 21202
Counsel for Petitioners
BP p.l.c., BP America Inc.,
and BP Products North
America Inc.
NOEL J. FRANCISCO
DAVID M. MORRELL
J. BENJAMIN AGUIÑAGA
JONES DAY
51 Louisiana Avenue, N.W.
Washington, DC 20001
DAVID C. KIERNAN
JONES DAY
555 California Street,
26th Floor
San Francisco, CA 94104
Counsel for Petitioner
CNX Resources Corporation
NATHAN P. EIMER
PAMELA R. HANEBUTT
LISA S. MEYER
EIMER STAHL LLP
224 South Michigan
Avenue, Suite 1100
Chicago, IL 60604
ROBERT E. DUNN
EIMER STAHL LLP
99 South Almaden
Boulevard, Suite 662
San Jose, CA 95113
RYAN J. WALSH
EIMER STAHL LLP
10 East Doty Street,
Suite 800
Madison, WI 53707
Counsel for Petitioner
CITGO Petroleum
Corporation
JAMESON R. JONES
DANIEL R. BRODY
BARTLIT BECK LLP
1801 Wewatta Street,
Suite 1200
Denver, CO 80202
STEVEN M. BAUER
MARGARET A. TOUGH
LATHAM & WATKINS LLP
505 Montgomery Street,
Suite 2000
San Francisco, CA 94111
Counsel for Petitioners
ConocoPhillips and
ConocoPhillips Company
KATHLEEN TAYLOR SOOY
TRACY A. ROMAN
CROWELL & MORING LLP
1001 Pennsylvania
Avenue, N.W.
Washington, DC 20004
HONOR R. COSTELLO
CROWELL & MORING LLP
590 Madison Avenue
New York, NY 10022
Counsel for Petitioners
CONSOL Energy Inc., and
CONSOL Marine Terminals
LLC
THOMAS K. PREVAS
SAUL EWING
1001 Fleet Street,
Suite 900
Baltimore, MD 21202
Counsel for Petitioners
Crown Central LLC and
Crown Central New Holdings
LLC
MARTHA THOMSEN
MEGAN BERGE
BAKER BOTTS L.L.P.
700 K Street, N.W.
Washington, DC 20001
SCOTT JANOE
BAKER BOTTS L.L.P.
910 Louisiana Street
Houston, TX 77022
Counsel for Petitioner
Hess Corporation
SHANNON S. BROOME
HUNTON ANDREWS
KURTH LLP
50 California Street
San Francisco, CA 94111
SHAWN PATRICK REGAN
HUNTON ANDREWS
KURTH LLP
200 Park Avenue
New York, NY 10166
ANN MARIE MORTIMER
HUNTON ANDREWS
KURTH LLP
550 South Hope Street,
Suite 2000
Los Angeles, CA 90071
Counsel for Petitioners
Marathon Petroleum Corp.
and Speedway LLC
STEVEN M. BAUER
MARGARET A. TOUGH
LATHAM & WATKINS LLP
505 Montgomery Street,
Suite 2000
San Francisco, CA 94111
MATTHEW J. PETERS
LATHAM AND WATKINS LLP
555 11th Street, N.W.,
Suite 1000
Washington, DC 20004
Counsel for Petitioner
Phillips 66
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.