Amicus Curiae Brief — BP p.l.c., et al., Petitioners v. Mayor and City Council of Baltimore

No. 22-361

In The

Supreme Court of the United States

___________

B.P. P.L.C., ET AL.,

Petitioners,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

___________

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION AS

AMICUS CURIAE SUPPORTING PETITIONERS

___________

John M. Masslon II

Counsel of Record

Cory L. Andrews

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

November 16, 2022

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.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES ..................................... iv

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION .......................................................2

STATEMENT ..............................................................4

I.

OIL IN AMERICA .....................................................4

II. STATES AND LOCALITIES IGNORE REALITY ............6

SUMMARY OF ARGUMENT.....................................8

ARGUMENT ...............................................................9

I.

THE COURT SHOULD RESOLVE THE CIRCUIT

SPLIT ON WHETHER CLIMATE-CHANGE

CLAIMS SOUND IN FEDERAL COMMON LAW ...........9

A. Climate-Change

Claims

Are

Governed By Federal Common Law .........9

B. Declining To Resolve The Circuit

Split Will Have Devastating Effects .......12

II. THE FOURTH CIRCUIT’S APPLICATION OF

THE WELL-PLEADED COMPLAINT RULE

IGNORES THE RULE’S COROLLARY ........................15

CONCLUSION ..........................................................19

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) ................................................9

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ................................................10

Badgerow v. Walters,

142 S. Ct. 1310 (2022)..........................................16

BP p.l.c. v. Mayor and City

Council of Baltimore,

141 S. Ct. 1532 (2021)............................................8

Comcast Corp. v. Nat’l Ass’n

of Afr. Am.-Owned Media,

140 S. Ct. 1009 (2020)............................................9

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) ..................................................9

Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394 (1981) ..............................................17

Franchise Tax Bd. of Cal. v.

Construction Laborers

Vacation Tr. for S. Cal.,

463 U.S. 1 (1983)..................................................15

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ................................................10

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Kircher v. Putnam Funds Tr.,

547 U.S. 633 (2006) ..............................................15

Kokkonen v. Guardian

Life Ins. Co. of Am.,

511 U.S. 375 (1994) ..............................................16

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................................1

Mayor & City Council of

Baltimore v. BP P.L.C.,

952 F.3d 452 (4th Cir. 2020)..................................8

Missouri v. Illinois,

200 U.S. 496 (1906) ................................................3

In re Otter Tail Power Co.,

116 F.3d 1207 (8th Cir. 1997)........................11, 18

In re Oxycontin Antitrust Litig.,

821 F. Supp. 2d 591 (S.D.N.Y. 2011) ..................16

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998) ..............................................17

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

117 F.3d 922 (5th Cir. 1997)..........................11, 19

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................1

Vaden v. Discover Bank,

556 U.S. 49 (2009) ................................................15

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Washington v. Confederated Tribes

of Colville Indian Rsrv.,

447 U.S. 134 (1980) ..............................................11

Constitutional Provision

U.S. Const. art. I, § 8, cl. 3 ........................................11

Statutes

28 U.S.C. § 1331 .............................................. 7, 15, 17

28 U.S.C. § 1441(a)................................................7, 17

28 U.S.C. § 1442(a)..................................................7, 8

Other Authorities

AAA, National Average Gas Prices ..........................12

Aaron O'Neill, Life expectancy (from

birth) in the United States, from

1860 to 2020 (Feb. 3, 2021) ....................................2

Alan Greenspan & Adrian Wooldridge,

Capitalism in America: A History

(2018) ..............................................................4, 5, 6

Bhu Srinivasan, Americana: A 400-Year

History of American Capitalism

(2017) ..................................................................4, 5

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Donald G. Gifford, Public Nuisance as a

Mass Products Liability Tort,

71 U. Cin. L. Rev. 741 (2003) ................................3

The Federalist No. 81................................................13

The Federalist No. 82................................................13

Felix Frankfurter & James Landis, The

Business of the Supreme Court,

38 Harv. L. Rev. 1005 (1925) ...............................13

Francesca Chambers, With gas prices at

$5 a gallon, Biden tells oil

companies to cut costs for Americans,

USA Today (June 15, 2022) .................................12

Jeremy Hodges et al., Climate Change

Warriors' Latest Weapon of Choice is

Litigation, Bloomberg

(May 24, 2018) .......................................................6

Lincoln Davis Wilson, Flawed Federal

Jurisdiction Ruling Grants State

Court National Climate-Change

Policymaking Power, WLF LEGAL

OPINION LETTER (Mar. 25, 2022) ...........................1

Max Roser, Light, Our World in Data

(2019) ......................................................................5

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Michael McAdams, Biden called for US

energy independence — advanced

biofuels can propel us,

The Hill (Apr. 2, 2022) ...........................................6

Nancy Yamaguchi, EIA Gasoline and

Diesel Retail Prices Update, Oct. 20,

2020, Fuel Market News

(Oct. 21, 2020) ......................................................12

New Report: The All-of-the-Above

Energy Strategy as a Path to

Sustainable Economic Growth,

The White House (May 29, 2014) ..........................6

Peter Glaser & Lynne Rhode, Three

Federal Courts Reject Public

Nuisance As Climate Change

Control Tool, WLF LEGAL OPINION

LETTER (Nov. 16, 2007) ..........................................1

U.S. energy facts explained, U.S.

Energy Info. Admin. (June 10, 2022) ....................6

1

INTEREST OF AMICUS CURIAE*

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free

enterprise, individual rights, limited government,

and the rule of law. It often appears as amicus curiae

in cases about the regulation of greenhouse-gas

emissions. See, e.g., Util. Air Regul. Grp. v. EPA, 573

U.S. 302 (2014); Massachusetts v. EPA, 549 U.S. 497

(2007).

WLF also regularly publishes, through its

Legal Studies Division, articles by outside experts on

climate-change lawsuits. See, e.g., Lincoln Davis

Wilson, Flawed Federal Jurisdiction Ruling Grants

State Court National Climate-Change Policymaking

Power, WLF LEGAL OPINION LETTER (Mar. 25, 2022);

Peter Glaser & Lynne Rhode, Three Federal Courts

Reject Public Nuisance As Climate Change Control

Tool, WLF LEGAL OPINION LETTER (Nov. 16, 2007).

WLF does not deny the realities of climate

change. But that does not mean that state courts have

unlimited power to regulate greenhouse-gas

emissions. For many reasons, the question of how

America should respond to rising global temperatures

is one solely for federal policymakers. WLF thus

opposes state courts’ efforts to regulate global conduct

based on energy companies’ activities here and

abroad.

* No party’s counsel authored any part of this brief. No

person or entity, other than WLF and its counsel, paid for the

brief’s preparation or submission. After timely notice, all parties

consented to WLF’s filing this brief.

2

INTRODUCTION

A world that never had oil is not one that

anyone wants to live in. The standard of living for all

mankind skyrocketed when humans realized how to

harness the power of oil. See John Majewski, How the

industrial revolution raised the quality of life for

workers and their families, Found. Econ. Educ. (July

1, 1986), https://bit.ly/3bjqcnK. Rather than having to

choose between living in overcrowded cities or on a

farm, many people now enjoy suburban life. And

rather than taking a boat across the Atlantic for

vacation or work, people can hop on a redeye flight

and make the journey overnight.

These may be mere conveniences. But other

things are matters of necessity. No longer must

farmers rely on oxen when plowing their fields. Now

they can use gas-powered tractors to help produce

more food, which leads to reduced food prices. This, of

course, helps alleviate the scourge of hunger

worldwide.

Oil has also increased life expectancies in other

ways. It helped power the industrial and

technological revolutions. The resulting increased

economic activity lifted the standard of living and

allowed more spending on healthcare. The overall

effect was to almost double the life expectancy of

Americans. See Aaron O’Neill, Life expectancy (from

birth) in the United States, from 1860 to 2020 (Feb. 3,

2021), https://bit.ly/3zSbZIp.

Rational people are happy that we have

abundant oil at our disposal. Although prices have

fluctuated recently, there is no risk that when you go

3

to the gas station you will be unable to fill your tank.

But politicians are rarely rational. Some don’t care

that oil has made Americans’ lives better. They

believe it’s advantageous for their political careers to

press for de-development rather than allow oil to

continue playing a critical role in our nation’s

progress.

This placing of politics over sound policy

explains why, as part of their climate-change crusade,

many localities and States have brought publicnuisance lawsuits. There can be “no pretense,”

however, “that there is a nuisance” here “of the simple

kind that was known to the older common law.”

Missouri v. Illinois, 200 U.S. 496, 522 (1906). These

States and localities are not seeking to abate the sort

of “minor offenses involving public morals or the

public welfare” that public-nuisance law traditionally

addressed. Donald G. Gifford, Public Nuisance as a

Mass Products Liability Tort, 71 U. Cin. L. Rev. 741,

800-01 (2003). Rather, they are pursuing purely

political goals.

The States’ and localities’ lawsuits raise legal

and policy questions of national and international

import. Fifty separate sovereigns cannot regulate

untraceable emissions that travel across state and

international borders. The petition is thus critical

both to our country’s and our world’s future. The

Court should grant review so that life-tenured federal

judges—not

politically

vulnerable

state-court

judges—can properly apply federal law and resolve

these disputes.

4

STATEMENT

I.

OIL IN AMERICA

In the early 1800s the world was a dark place,

just as it had always been. The main source of

artificial light, candlelight, was both expensive and

weak. Candles “were also dangerous: forget to snuff

your candle and you could be incinerated in a ball of

fire.” Alan Greenspan & Adrian Wooldridge,

Capitalism in America: A History 432 (2018).

“Productivity improvements” at that time were

“limited by the speed that horses could run or ships

could sail.” Id. at 18. Even by the mid-nineteenth

century, “the country still bore the traces of the old

world of subsistence. Cities contained as many

animals as people, not just horses but also cows, pigs,

and chickens.” Id. at 91.

Then, in the second half of the 1800s, the

Industrial Revolution accelerated. Key to this

transformation was oil. America’s “rise was propelled,

in no small way, by its immense natural-resource

wealth”—“starting with oil.” Bhu Srinivasan,

Americana: A 400-Year History of American

Capitalism 151 (2017).

Oil lit the darkness. The development in the

1860s of “viable [oil] drilling technique[s]” made

“basic, cheap lighting possible for millions of

Americans.” Srinivasan at 151. “From 1880 to 1920,”

therefore, “the amount of oil refined every year

jumped from 26 million barrels to 442 million.”

Greenspan & Woodridge at 102. This led to “an

astonishing decline in the price of kerosene paid by

consumers from 1860 to 1900.” Id. “Unlike the

5

spermaceti candles of decades prior * * * cheap tin

cans filled with kerosene now allowed the common

man to light his home.” Srinivasan at 161.

The United States illuminated not just itself

but also the world. Much of the kerosene Standard Oil

produced in the late nineteenth century was exported.

In Europe, light went from something precious to

something ubiquitous. In Britain, for example, the

cost of a million lumen hours of light dropped from

around £9,400 in 1800 to around £230 in 1900. Max

Roser, Light, Our World in Data (2019),

https://perma.cc/4BVV-P4QZ.

And oil provided much more than light. It

“became the nation’s primary source of energy: as

gasoline and diesel for cars, fuel oil for industry,

heating oil for homes.” Greenspan & Woodridge at

102-03. This energy helped drive “America’s takeoff

into self-reinforcing [economic] growth.” Id. at 92.

Economic growth, in turn, opened the way for better

lives for millions of people. Oil enabled Americans to

“live in far-flung suburbs because filling their cars

was cheap.” Id. at 103. It empowered average people

to leave multi-tenant buildings and move into their

own houses, to “choose space over proximity.” Id.

“More than any other country,” in short,

“America was built on cheap oil.” Greenspan &

Wooldridge, at 103. Oil “laid the foundations of the

age of the common man: an age in which almost every

aspect of life for ordinary people became massively—

and sometimes unrecognizably—better.” Id. at 427.

The United States remains a leading innovator

of oil and natural gas production. In the development

6

of fracking, for instance, the “oil industry saw one of

the most surprising revolutions of the second half of

the twentieth century.” Greenspan & Wooldridge at

356-57. “Shale beds now produce more than half of

America’s natural gas and oil * * * compared with just

1 percent in 2000.” Id. at 357. Thanks to fracking, the

United States recently became a net energy exporter

for the first time in more than sixty years. U.S. energy

facts explained, U.S. Energy Info. Admin. (June 10,

2022), https://bit.ly/3AeZtmK.

President Biden recently said “this moment is

‘a stark reminder’ that the U.S. needs to be energy

independent.” Michael McAdams, Biden called for US

energy independence — advanced biofuels can propel

us, The Hill (Apr. 2, 2022), https://bit.ly/3xWjU4Q.

The modern oil and natural-gas renaissance has

therefore enjoyed bipartisan political support. A

report issued by the Obama administration, for

example, applauded the fact that the recent increase

in oil and natural-gas production has “made a

significant contribution to GDP growth and job

creation.” New Report: The All-of-the-Above Energy

Strategy as a Path to Sustainable Economic Growth,

The

White

House

(May

29,

2014),

https://perma.cc/KR8M-2NYN. “Increased domestic

oil production,” the report noted, “reduce[s] the

vulnerability of the U.S. economy to oil price shocks

stemming from international supply disruptions.” Id.

II.

STATES AND LOCALITIES IGNORE REALITY

In 2017, many state and local governments

sued energy companies in state court. See Jeremy

Hodges et al., Climate Change Warriors’ Latest

Weapon of Choice is Litigation, Bloomberg (May 24,

7

2018), https://bloom.bg/3fczCz8. Those suits alleged

that the defendant energy companies contributed to

global warming by extracting, producing, and selling

fossil fuels. See, e.g., id. Although energy companies

provided vast benefits to these governments and their

citizens, the governments decided it was time to

pounce.

Inspired by this flood of lawsuits, in 2018

Baltimore sued twenty-six energy companies in

Maryland state court. See Pet. App. 5a, 87a.

Baltimore claims the energy companies contributed to

climate change by producing, promoting, and

(misleadingly) marketing fossil fuel products long

after their dangers became apparent. See id. at 87a88a.

Chevron removed the suit to the District of

Maryland. See Pet. App. 5a. It argued that the

District Court had jurisdiction because, among other

reasons, (1) Chevron acted at the direction of federal

officers, see 28 U.S.C. § 1442(a); (2) removal was

proper under 28 U.S.C. §§ 1331 and 1441(a) because

(i) Baltimore’s claims arise under federal common law

and (ii) the federal interest at stake in the litigation

suffices for federal-question jurisdiction. See id. at 5a6a.

Baltimore moved to remand the case to state

court, arguing that the District Court lacked subjectmatter jurisdiction over the claims. See Pet. App. 6a.

Finding that removal was improper, the District

Court granted the motion. See Pet. App. 137a.

Maintaining that removal was appropriate for the

reasons outlined above, the energy companies

appealed that decision.

8

The Fourth Circuit held that removal was

improper under Section 1442. Mayor & City Council

of Baltimore v. BP P.L.C., 952 F.3d 452, 461-71 (4th

Cir. 2020). But it declined to address the energy

companies’ other grounds for removal. Id. at 458-61.

This Court reversed that decision for misconstruing

the federal-removal statutes. See generally BP p.l.c. v.

Mayor and City Council of Baltimore, 141 S. Ct. 1532

(2021).

On remand, the Fourth Circuit rejected the

energy companies’ remaining grounds for removal.

See Pet. App. 11a-86a. Because that decision deepens

two circuit splits, the energy companies now seek this

Court’s review.

SUMMARY OF ARGUMENT

I.A. For the past century, federal common law

has continued to shrink. But that does not mean it is

a dead letter. There are several issues governed by

active federal common law. Three examples are

interstate water disputes, tribal sovereignty, and lost

airline luggage. This case involves a fourth area of

federal common law—interstate and international air

emissions. These four issues share many similarities.

It thus makes sense to categorize Baltimore’s claims

as arising under federal common law. So federal

courts have original jurisdiction over the claims.

B. This case is immensely important for our

nation’s economy and the well-being of all Americans.

If the Fourth Circuit’s decision stands, dozens of

lawsuits from around the country will proceed in state

courts. The potential for massive liability could cause

oil companies to exit the American market. Or the

9

price of oil products could spike. Either way, all

Americans will be worse off if the Court denies review.

II. The Fourth Circuit’s holding that plaintiffs

can avoid federal jurisdiction over federal claims by

artful pleading is illogical. Many federal claims can be

pleaded as arising under state law when they in fact

arise under federal law. This Court should put

substance over form when deciding whether federal

courts have jurisdiction over federal claims. This

tracks with the practice of examining whether a red

paperclip is worth $75,000.01 for diversityjurisdiction purposes. The circuit split the energy

companies identify on this question has far-reaching

effects and deserves the Court’s immediate attention.

ARGUMENT

I.

THE COURT SHOULD RESOLVE THE CIRCUIT

SPLIT ON WHETHER CLIMATE-CHANGE

CLAIMS SOUND IN FEDERAL COMMON LAW.

As described in the petition (at 13-18), the

Fourth Circuit’s decision deepens an acknowledged

circuit split on an important question: Do claims

alleging cross-border pollution from greenhouse gases

necessarily arise under federal law?

A.

Climate-Change

Claims

Are

Governed By Federal Common Law.

1. Since Erie R. Co. v. Tompkins, 304 U.S. 64

(1938), the role of federal common law has been

restricted. See Comcast Corp. v. Nat’l Ass’n of Afr.

Am.-Owned Media, 140 S. Ct. 1009, 1015 (2020)

(citing Alexander v. Sandoval, 532 U.S. 275, 286-87

10

(2001)). Rather than the province of the federal

courts, common law now is generally left to state

courts.

But that does not mean that federal common

law no longer exists. There are several issues that still

are governed by federal common law. For example,

this Court has created a federal common law

governing interstate water disputes. See Arkansas v.

Oklahoma, 503 U.S. 91, 98-99 (1992); Illinois v. City

of Milwaukee, 406 U.S. 91, 106 (1972). The federal

nature of interstate water law makes sense. It would

be illogical to have Texas common law govern the

State’s water disputes with Oklahoma. The Texas

courts would create rules that would ensure victory

over Oklahoma. The same is true of Oklahoma courts

applying Oklahoma law.

Another factor that makes federal common law

appropriate for interstate water disputes is that it is

impossible to link water that flows between two

States to only one of those States. For example, water

from Texas and Oklahoma flows into the Red River

from both tributaries and runoff. How to calculate

what each State is entitled to thus cannot be governed

by state law.

The same is true for air pollution. When carbon

dioxide enters the atmosphere from a power plant in

West Virginia, it is impossible to track every molecule

to see if it is resting above Baltimore and increasing

temperatures there. So too for gasoline used to power

cars in Western Mexico or Canada. It makes no sense

to have one State’s common law govern emissions that

emanate from across state or international borders.

Yet that is what the Fourth Circuit blessed here. In

11

its view, just because Baltimore framed this case as

one arising under state common law, the federal

courts cannot exercise their proper authority to apply

federal common law.

2. Federal common law also governs certain

Indian issues. For example, questions about “inherent

tribal sovereignty” are governed by federal common

law. See In re Otter Tail Power Co., 116 F.3d 1207,

1214 (8th Cir. 1997). This makes sense because “tribal

sovereignty is dependent on, and subordinate to, only

the Federal Government, not the States.” Washington

v. Confederated Tribes of Colville Indian Rsrv., 447

U.S. 134, 154 (1980). In other words, States lack

power over tribal governance. See U.S. Const. art. I,

§ 8, cl. 3.

A similar situation is present here. Besides

having sole authority to regulate tribal governance,

the federal government also has sole power to

regulate interstate and international commerce. See

U.S. Const. art. I, § 8, cl. 3. It makes no sense to have

state common law govern an area of law the

Constitution assigns to Congress. But that is what the

Fourth Circuit’s decision here permits.

3. Both rationales above support applying

federal common law to lost airline luggage. See Sam

L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 929

(5th Cir. 1997). When luggage is lost during an

interstate flight, you don’t know if the loss occurred in

the State of departure, the State of arrival, or

somewhere in between. And as airline travel typically

involves interstate travel, the Constitution gives the

12

federal government power to regulate this type of

commerce.

As described above, there are two reasons that

federal common law governs some claims—a

constitutional grant of power and the lack of a

practical way for state law to decide a dispute. Both

reasons apply here. First, air pollution does not

recognize state and international borders. Second, the

Constitution grants the federal government the sole

power to regulate interstate and international

commerce. Thus, like these other issues, federal

common law governs Baltimore’s claims, and federal

courts have original jurisdiction over those claims.

The Fourth Circuit’s contrary holding is wrong.

B.

Declining To Resolve The Circuit

Split Will Have Devastating Effects.

1. The signs above gas stations nationwide tell

a sobering story. In October 2020, regular gasoline

averaged $2.17 per gallon. Nancy Yamaguchi, EIA

Gasoline and Diesel Retail Prices Update, Oct. 20,

2020, Fuel Market News (Oct. 21, 2020),

https://bit.ly/3bhDykd. Two years later, gas is $3.78

per gallon. AAA, National Average Gas Prices (last

visited Nov. 1, 2022), https://gasprices.aaa.com/. That

is a 74% increase.

This helps explain why President Biden has

asked the energy companies to sell their product

below cost. See Francesca Chambers, With gas prices

at $5 a gallon, Biden tells oil companies to cut costs

for Americans, USA Today (June 15, 2022),

https://bit.ly/3Obk6UV. If this Court denies review,

there is little chance that gas prices will go down

13

anytime soon. Rather, consumers should be prepared

to fork over even more when they fill up the tank to

get to work.

An order denying certiorari would send a

strong message to federal and state courts around the

nation: These suits can stay in state court. There is a

reason that Baltimore is fighting to keep this case in

state court rather than in federal court. It

understands that state courts give it an unfair

advantage over the energy companies.

“State judges, holding their offices during

pleasure, or from year to year, [are] too little

independent to be relied upon for an inflexible

execution of the national laws.” The Federalist No. 81,

486 (Alexander Hamilton) (Clinton Rossiter ed. 1961).

And “some of the most important and avowed

purposes of” our federal government would disappear

if “the judiciary authority of the Union may be eluded

at the pleasure of every plaintiff or prosecutor.” The

Federalist No. 82 at 494 (Alexander Hamilton); see

Felix Frankfurter & James Landis, The Business of

the Supreme Court, 38 Harv. L. Rev. 1005, 1014

(1925) (federal jurisdiction is necessary to protect

“against the obstructions and prejudices of local

authorities”).

Imagine an elected state court judge who has

the power to make “Big Oil” pay billions of dollars to

Baltimore. Taxpayers would see lower taxes and more

amenities. And most taxpayers are voters. So the

state court judges are motivated not to faithfully

apply basic legal principles.

14

The pressure is even stronger given the

number and variety of similar suits around the

country. Each of these suits seeks billions of dollars

for harm that cannot be traced to one actor—much

less one actor in one jurisdiction. A few outsized,

unsupported verdicts for States or localities could

cause energy companies to declare bankruptcy. Were

that to happen, Americans could forget driving to the

beach for July 4th or flying to Europe for vacation. In

short, our nation might return to the pre-Industrial

Revolution days. The ensuing decrease in quality of

life would be stunning.

But even if energy companies don’t go

bankrupt, the effects will be felt by all Americans.

Some energy companies may back out of selling oil

products in America. Again, that would cause

America’s energy gains to reverse as it falls behind

countries like China and India that allow unlimited

emissions.

If energy companies don’t leave the country,

consumers will still feel the effects of an explosion in

state-court climate litigation. It may cost $200 to fill

a tank with gas once the energy companies factor in

uncapped state-law liability for their actions around

the world. Again, there is no limit to the potential

damages that state courts could award if this Court

does not grant review and reverse the Fourth Circuit’s

decision. The first question presented therefore

warrants this Court’s immediate review.

15

II.

THE FOURTH CIRCUIT’S APPLICATION OF THE

WELL-PLEADED COMPLAINT RULE IGNORES

THE RULE’S COROLLARY.

A. Federal “courts have original jurisdiction of

all civil actions arising under the Constitution, laws,

or treaties of the United States.” 28 U.S.C. § 1331.

Although this grant of statutory authority mirrors the

Constitution’s grant of jurisdiction, this Court has

interpreted the statutory grant of jurisdiction more

narrowly. A claim 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) (cleaned up). This means that a

defendant’s raising a federal-law defense does not

invoke the federal courts’ statutory jurisdiction. See

id.

This well-pleaded complaint rule makes sense.

Cf. Kircher v. Putnam Funds Tr., 547 U.S. 633, 644

n.12 (2006) (“a defendant may not remove a case to

federal court unless the plaintiff's complaint

establishes that the case ‘arises under’ federal law.”

(quoting Franchise Tax Bd. of Cal. v. Construction

Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 10

(1983))). The rule ensures that defendants don’t

remove state-law claims to federal court by raising

frivolous federal defenses.

All claims filed in state court are, to some

extent, governed by federal law; state courts must

meet the federal due-process floor. That does not

mean, however, that all cases can be removed to

16

federal court. An example shows how the rule is

properly applied to preclude removal of some cases.

A company was sued for alleged fraud-byomission. One defense was that the federal Medicaid

statute foreclosed the plaintiff’s fraud theory. The

court held that this federal-law defense did not allow

for removal to federal court. See In re Oxycontin

Antitrust Litig., 821 F. Supp. 2d 591, 598 (S.D.N.Y.

2011). Defendants cannot remove cases to federal

court merely by citing a federal statute as a defense.

The well-pleaded complaint rule also ensures

that the federal courts remain courts of limited

jurisdiction—not general jurisdiction. See Badgerow

v. Walters, 142 S. Ct. 1310, 1315 (2022) (citing

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994)).

Baltimore labeled its assertions as only statelaw public-nuisance claims. There is no allegation

that the energy companies are liable under a federal

statute or federal common law. But the face of the

complaint shows that they raised federal claims. For

example, some counts in the complaint seek to

regulate interstate and international commerce. See,

e.g., Compl. ¶¶ 221, 263, Mayor & City Council of

Baltimore v. BP P.L.C., 388 F. Supp. 3d 538 (D. Md.

2019) (No. 18-cv-2357), 2018 WL 423652. So the

Fourth Circuit erred at the first step of the inquiry.

B. Even if the face of the complaint only raised

state-law claims, the well-pleaded complaint rule has

an important corollary. The Fourth Circuit’s

misunderstanding of this corollary is another place

where the court went astray.

17

Although Congress has decided that federal

courts should not have jurisdiction over cases that

merely include a federal-law defense, it has made a

different decision for federal-law claims. When a

party pleads a federal claim in its complaint, federal

courts have original jurisdiction over the suit. 28

U.S.C. § 1331. And because a party may remove a case

to federal court when it could have originally been

filed in federal court, 28 U.S.C. § 1441(a), defendants

may remove cases raising federal claims to federal

court.

Wary that plaintiffs might try to game the

system by pleading federal claims in state-law

clothing, the Court has explained that “an

independent corollary to the well-pleaded complaint

rule is the further principle that a plaintiff may not

defeat removal by omitting to plead necessary federal

questions.” Rivet v. Regions Bank of La., 522 U.S. 470,

475 (1998) (cleaned up). So sometimes federal courts

must “determine whether the real nature of the claim

is federal, regardless of plaintiff’s characterization.”

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,

397 n.2 (1981) (citation omitted).

This is a critical safeguard ensuring that

plaintiffs cannot plead around federal-court

jurisdiction over federal claims. If district courts are

prohibited from examining a complaint to see if it

raises a substantive federal-law claim, then

defendants will lose the ability to have federal courts

decide federal questions. Plaintiffs will easily find

ways to have state courts adjudicate federal claims

that Congress says belong in federal court.

18

Baltimore’s likely retort to this argument is

that many cases could still be removed under the

Fourth Circuit’s opinion because it recognized the

well-pleaded complaint rule’s corollary. But a closer

examination of the decision shows that the Fourth

Circuit has read this Court’s precedent too narrowly.

The Fourth Circuit’s decision suggests that

there are only five statutes that “completely preempt”

state law and around which plaintiffs cannot artfully

plead. See Pet. App. 41a. The opinion thus rules out

“complete preemption” under statutes like the Fair

Credit Reporting Act or Federal Employers Liability

Act. This means that there is no stopping district

courts from remanding these cases to state courts if

the Court declines to review the Fourth Circuit’s

incorrect decision.

As explained in the petition (at 19-20), some

courts of appeals apply the corollary when a party

seeks to assert a federal common-law claim veiled as

a state common-law claim. For example, the plaintiffs’

complaint purported to raise state-law claims in Otter

Tail. The Eighth Circuit, however, correctly looked

beyond the label the plaintiffs assigned to the claims

and to their substance. See 116 F.3d at 1213. Looking

at the substance, the Eighth Circuit held that the

claims arose under federal common law. See id. at

1213-14.

The Eighth Circuit is not alone in recognizing

that a federal common-law claim can sometimes be

disguised as a state-law claim. The plaintiffs in Sam

L. Majors Jewelers sued after airlines lost their

luggage. Again, the complaint purported to assert

purely state-law claims. But the Fifth Circuit looked

19

deeper and held that the claims were federal commonlaw claims. See 117 F.3d at 929.

The Fourth Circuit’s decision thus allows

plaintiffs to avoid litigating a broad array of federal

claims in federal court. The Constitution, however,

provides

federal

courts

with

constitutional

jurisdiction over such claims, and Congress has given

district courts statutory jurisdiction. The possibility

of artful pleading under the Fourth Circuit’s rule

alone warrants granting the petition and resolving

the important circuit split on the well-pleaded

complaint rule.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

John M. Masslon II

Counsel of Record

Cory L. Andrews

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

November 16, 2022