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

Supreme Court briefDec 19, 2022

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No. 22-361

In The

Supreme Court of the United States

BP p.l.c., et al.,

Petitioners,

Mayor & City Council of Baltimore,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF FOR RESPONDENT

MAYOR & CITY COUNCIL OF BALTIMORE

Victor M. Sher

Counsel of Record

Matthew K. Edling

Martin D. Quiñones

Michael Burger

Sher Edling LLP

100 Montgomery St.,

Ste. 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

Sara Gross

Baltimore City

Law Department

100 N. Holliday Street,

Suite 109

Baltimore, MD 21202

(410) 396-3947

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

QUESTION PRESENTED

Should this Court create a new exception to the wellpleaded complaint rule that confers federal question

jurisdiction over respondent’s state-law complaint

based on petitioners’ assertion that respondent’s claims

are “governed by” federal common law when: (1) the

common law on which petitioners purport to rely has

been displaced by a federal statute; (2) the statute does

not completely preempt state law; and (3) petitioners

cannot show that respondent’s state-law claims necessarily present a substantial federal question that could

be adjudicated in federal court without upsetting the

federal-state division of judicial responsibility, as required by Grable & Sons Metal Products, Inc. v. Darue

Engineering & Mfg., 545 U.S. 308 (2005).

iii

TABLE OF CONTENTS

STATEMENT...................................................

Page

Background...................................................

Facts and Procedural History......................

REASONS THE PETITION SHOULD BE

DENIED.......................................................

There is no circuit conflict on the first

Question Presented because the cases

petitioners rely upon resolved different

issues in materially different cases............

There is no circuit conflict on the second

Question Presented, because this Court

has carefully elucidated the application of

“arising under” jurisdiction to removed

state law causes of action and the circuits

are in accord.................................................

The decision below was correct, both as to

the displacement of the federal common

law of interstate pollution nuisance and

as to the removability analysis...................

The Questions Presented have minimal

practical importance and this case is a

poor vehicle for addressing them................

CONCLUSION................................................

TABLE OF AUTHORITIES

Page

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011)........................ 3, 14, 19, 20, 21

Atl. Richfield Co. v. Christian,

140 S. Ct. 1335 (2020)......................................

Beneficial Nat’l Bank v. Anderson,

539 U.S. 1 (2003)..............................................

Board of County Commissioners of Boulder

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

25 F.4th 1238 (10th Cir. 2022)............ 1, 12, 13, 20

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

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

2, 7

California v. ARC Am. Corp.,

490 U.S. 93 (1989)............................................

Caterpillar Inc. v. Williams,

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

5, 6, 24

Chamber of Com. of U.S. v. Whiting,

563 U.S. 582 (2011)..........................................

City of Hoboken v. Chevron Corp.,

45 F.4th 699 (3d Cir. 2022).............................. 1, 13

City of New York v. Chevron Corp,

993 F.3d 81 (2d Cir. 2021)........................... passim

City of Oakland v. BP PLC,

969 F.3d 895 (9th Cir. 2020)............................ 1, 14

Connecticut v. Exxon Mobil Corp.,

No. 3:20-CV-1555 (JCH), 2021 WL 2389739

(D. Conn. June 2, 2021)................................... 10, 13

Cty. of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022)............................

TABLE OF AUTHORITIES—Continued

Page

Edenfield v. Fane,

507 U.S. 761 (1993)..........................................

Empire Healthchoice Assurance, Inc. v. McVeigh,

547 U.S. 677 (2006)..........................................

Federated Department Stores, Inc. v. Moitie,

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

Fla. Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963)..........................................

Franchise Tax Bd. of State of Cal. v.

Constr. Laborers Vacation Tr. for S. Cal.,

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

Georgia v. Tenn. Copper Co.,

240 U.S. 650 (1916)..........................................

Goepel v. Nat’l Postal Mail Handlers Union,

a Div. of LIUNA,

36 F.3d 306 (3d Cir. 1994)...............................

Grable & Sons Metal Prods., Inc. v.

Darue Eng’g & Mfg.,

545 U.S. 308 (2005)..........................................

3, 6

Gully v. First Nat’l Bank,

299 U.S. 109 (1936).......................................... 6, 11

Gunn v. Minton,

568 U.S. 251 (2013)...................................... passim

Hagans v. Lavine,

415 U.S. 528 (1974)..........................................

Hertz Corp. v. Friend,

559 U.S. 77 (2010)............................................

Illinois v. City of Milwaukee,

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

vii

TABLE OF AUTHORITIES—Continued

Page

In re Methyl Tertiary Butyl Ether (MTBE)

Prods. Liab. Litig.,

725 F.3d 65 (2d Cir. 2013)...............................

In re Otter Tail Power Co.,

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

Kircher v. Putnam Funds Tr.,

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

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001)..........................................

Louisville & Nashville R. Co. v. Mottley,

211 U.S. 149 (1908)..........................................

Mansfield, C. & L.M.R. Co. v. Swan,

111 U.S. 379 (1884)..........................................

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

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

Merrell Dow Pharms. Inc. v. Thompson,

478 U.S. 804 (1986).......................................... 5, 24

Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Manning,

578 U.S. 374 (2016)...................................... passim

Metro. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987)........................................ 5, 6, 25

Middlesex Cty. Sewerage Auth. v. Nat’l Sea

Clammers Ass’n,

453 U.S. 1 (1981)..............................................

Milwaukee v. Illinois,

451 U.S. 304 (1981)..........................................

Miree v. DeKalb Cty.,

433 U.S. 25 (1977).......................................... 22, 23

viii

TABLE OF AUTHORITIES—Continued

Page

Missouri v. Illinois,

180 U.S. 208 (1901)..........................................

Mitchell v. Advanced HCS, L.L.C.,

28 F.4th 580 (5th Cir. 2022)............................

Morgan Cty. War Mem’l Hosp. ex rel.

Bd. of Dirs. of War Mem’l Hosp. v. Baker,

314 F. App’x 529 (4th Cir. 2008).....................

Native Vill. of Kivalina v. ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012)............................ 9, 21

New Jersey v. City of New York,

283 U.S. 473 (1931)..........................................

Nicodemus v. Union Pac. Corp.,

440 F.3d 1227 (10th Cir. 2006)........................

O’Melveny & Myers v. F.D.I.C.,

512 U.S. 79 (1994)............................................

Rhode Island v. Shell Oil Prods. Co.,

35 F.4th 44 (1st Cir. 2022)............................... 1, 12

Rivet v. Regions Bank of La.,

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

Rodriguez v. F.D.I.C.,

140 S. Ct. 713 (2020)........................................

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

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

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998)............................................

Tennessee v. Davis,

100 U.S. 257 (1879)..........................................

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981).......................................

28, 29

TABLE OF AUTHORITIES—Continued

Page

United States v. Rice,

327 U.S. 742 (1946)..........................................

Vaden v. Discover Bank,

556 U.S. 49 (2009)............................................ 5, 24

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019)......................................

Wallis v. Pan Am. Petroleum Corp.,

384 U.S. 63 (1966)............................................

Zschernig v. Miller,

389 U.S. 429 (1968)..........................................

Statutes

15 U.S.C. § 78aa(a)..............................................

28 U.S.C. § 1331................................................ passim

28 U.S.C. § 1441................................................ 5, 8, 15

28 U.S.C. § 1442...................................................

28 U.S.C. § 1447(d)..............................................

U.S. Const. Art. I, § 1...........................................

STATEMENT

This case is nearly identical, factually and procedurally, to 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, No. 21-1550

(“Suncor”), in which one of the petitioners here asserts

the same Questions Presented. As in Suncor, this petition does not identify any true circuit conflict or any

significant legal issue arising out of the uniform appellate decisions—now in five circuits—affirming district court remand orders in these improperly removed

climate-deception cases.1 Petitioners’ extraordinary

theory of removal asks the courts to 1) recognize a

novel exception to the well-pleaded complaint rule

that sidesteps this Court’s subject-matter jurisdiction

jurisprudence, and 2) apply that new exception to find

that state law causes of action arise under federal

common law, even where, as here, the federal common

law has been displaced by statute. Because respondent’s well-pleaded state court complaint alleges exclusively state-law statutory and common law tort

claims, and because neither Question Presented has

arisen or is likely to arise in any other group of cases,

the petition for writ of certiorari should be denied.

As this Court recognized in its 2021 decision in this

case, respondent Mayor & City Council of Baltimore

(“Baltimore” or “City”) filed the underlying lawsuit in

Maryland state court against the 21 energy company

petitioners “for promoting fossil fuels while allegedly

See also Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44

(1st Cir. 2022), petition for cert. filed, No. 22-524; City of Hoboken

v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022); Cty. of San Mateo

v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022), petition for cert.

filed, No. 22-495; City of Oakland v. BP PLC, 969 F.3d 895 (9th

Cir. 2020), cert. denied, 141 S. Ct. 2776 (2021).

concealing their environmental impacts” over many

years. BP P.L.C. v. Mayor & City Council of Baltimore,

141 S. Ct. 1532, 1535 (2021). Baltimore pleaded exclusively state-law claims “centered on the defendants’

alleged failure to warn about the dangers of their

products—and the injuries the City says it suffered as

a result.” Id. The gist of the City’s complaint is that

petitioners wrongfully “employed a coordinated,

multi-front effort to conceal and deny” the science of

global warming, the known dangers of fossil fuels, and

the catastrophic consequences of climate change, with

the purpose and effect of inflating the market for their

fossil fuel products. Pet. App. 3a.

The Fourth Circuit has twice held that the federal

courts lack subject-matter jurisdiction over the City’s

state-law claims, and has rejected eight different theories of removal jurisdiction proffered by petitioners.

In the ruling now at issue, the court of appeals held

inter alia that the City’s state-law claims for relief do

not “arise under” federal common law for purposes of

subject-matter jurisdiction. The court held both that

Baltimore’s claims did not implicate any question of

federal common law, and that in any event neither the

well-pleaded complaint rule nor its recognized exceptions permitted removal. See Pet. App. 11a–28a. The

ird, Ninth, and Tenth Circuits have each

First, Th

reached the same result in similar cases. No circuit

court has held otherwise, including in City of New

York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021). As

discussed below, that case involved materially different substantive allegations, and was initiated in federal court in the first instance; federal subject-matter

jurisdiction was never challenged or analyzed.

The appellate courts are uniform in holding that,

even if federal common law might once have been ap-

plicable to the government plaintiffs’ allegations in

these climate-deception cases, all potentially relevant

federal common law has been displaced by the Clean

Air Act and cannot provide a basis for arising-under

jurisdiction. The appellate courts are also uniform in

“resoundingly” rejecting what the Fourth Circuit characterized as petitioners’ “perplexing argument” that

courts should create a new exception to the well-pleaded complaint rule that would allow removal of any

state-law claim that could have been pleaded under

federal common law—even after the federal common

law has been displaced by statute. Pet. App. 12a, 20a.

Those unanimous holdings are correct applications

of this Court’s jurisprudence. On the first Question, the

Court has squarely held that any federal common law

nuisance claim relating to greenhouse gas emissions

has been displaced by the Clean Air Act. See Am. Elec.

Power Co. v. Connecticut, 564 U.S. 410 (2011) (“AEP”).

On the second Question, the Court has worked for

nearly two decades to “bring some order to th[e] unruly

doctrine” courts previously applied to determine whether a state-law claim presents a federal question for purposes of removal. Gunn v. Minton, 568 U.S. 251, 258

(2013); see also Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). Petitioners have

not offered any compelling reason for this Court to create a new category of removable claims that bypasses

the seminal Grable test, let alone to reconsider Grable,

and the two cases petitioners principally rely on predate that decision. See Pet. 19–20.

Even if petitioners could establish a need to expand the scope of the Court’s longstanding removal

jurisprudence, this case would be a poor vehicle for

doing so. The quintessentially state-law claims

pleaded in Baltimore’s complaint have nothing to do

with any federal common law that has ever existed.

Instead, the City’s allegations seek to vindicate core

police power interests and protect the public’s vital

“interest in ensuring the accuracy of commercial information in the marketplace.” Edenfield v. Fane,

507 U.S. 761, 769 (1993). The allegations target misconduct that states have long regulated in such recognized areas as “protection of consumers,” Fla. Lime

& Avocado Growers, Inc. v. Paul, 373 U.S. 132, 150

(1963); “advertising,” Lorillard Tobacco Co. v. Reilly,

533 U.S. 525, 541–42 (2001); and “unfair business

practices,” California v. ARC Am. Corp., 490 U.S. 93,

101 (1989); and the complaint seeks statutory and

tort remedies that are deeply rooted in “the state’s

historic powers to protect the health, safety, and

property rights of its citizens.” In re Methyl Tertiary

Butyl Ether (MTBE) Prods. Liab. Litig., 725 F.3d 65,

96 (2d Cir. 2013).

The Court has repeatedly stated that “[t]he policy

of Congress opposes ‘interruption of the litigation of

the merits of a removed cause by prolonged litigation

of questions of jurisdiction of the district court to

which the cause is removed.’ ” Kircher v. Putnam

Funds Tr., 547 U.S. 633, 640 (2006) (quoting United

States v. Rice, 327 U.S. 742, 751 (1946)). Petitioners

have delayed merits litigation on Baltimore’s claims

through nearly a half-decade of jurisdictional wrangling. The issues raised in their petition have been

rejected by every court to consider them, and there is

no justifiable basis for further review. The petition

should be denied.

Background

“Federal courts are courts of limited jurisdiction,

possessing only that power authorized by Constitution and statute.” Gunn, 568 U.S. at 256 (cleaned

up). Congress has granted federal district courts

original subject-matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States,” and such actions “may be

removed by the defendant” from state to federal

court. 28 U.S.C. §§ 1331, 1441.

“[U]nder the present statutory scheme as it has

existed since 1887,” the Court has applied a “powerful doctrine,” known as the well-pleaded complaint

rule, requiring jurisdiction under sections 1331 and

1441 to “be determined from what necessarily appears in the plaintiff ’s statement of his own claim in

the bill or declaration.” Franchise Tax Bd. of State of

Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463

U.S. 1, 9–10 (1983) (citation omitted). For more than

a century, that rule has been “the basic principle

marking the boundaries of the federal question jurisdiction of the federal district courts.” Metro. Life

Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). The rule

“makes the plaintiff the master of the claim” such

that “he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987). “Jurisdiction

may not be sustained on a theory that the plaintiff

has not advanced,” Merrell Dow Pharms. Inc. v.

Thompson, 478 U.S. 804, 809 n.6 (1986), and cannot

be “predicated on an actual or anticipated defense,”

Vaden v. Discover Bank, 556 U.S. 49, 60 (2009), “including the defense of pre-emption,” Franchise Tax

Bd., 463 U.S. at 14. There are only two recognized

exceptions to the well-pleaded complaint rule. Petitioners now press for a third.

The first exception is the doctrine of complete preemption, which applies only when “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.’ ” Caterpillar, 482 U.S. at 393

(quoting Metro Life, 481 U.S. at 65). The Court has

been “reluctant to find that extraordinary pre-emptive power,” and has identified only three statutes

that have “complete preemption” effect, none of which

are at issue here. Metro. Life, 481 U.S. at 65.

The second is Grable jurisdiction, a doctrine this

Court developed to resolve the lower courts’ longstanding difficulty in applying the well-pleaded complaint rule to cases in which “a question of federal law

is lurking in the background” of a case pleaded under

state law. See Gully v. First Nat’l Bank, 299 U.S. 109,

117 (1936); see also Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Manning, 578 U.S. 374, 385 (2016)

(quoting Gunn, 568 U.S. at 258) (describing the previous “caselaw construing § 1331” as “highly ‘unruly’ ”).

The Grable doctrine is applicable only to a “special

and small category” of cases in which “federal jurisdiction over a state law claim will lie if a federal issue

is: (1) necessarily raised, (2) actually disputed, (3)

substantial, and (4) capable of resolution in federal

court without disrupting the federal-state balance

approved by Congress.” Gunn, 568 at 258 (citing Grable, 545 U.S. at 314; Empire Healthchoice Assurance,

Inc. v. McVeigh, 547 U.S. 677, 699 (2006)).

Petitioners do not contend in this Court that respondent’s claims are either completely preempted

or removable under Grable. Their petition instead

asks the Court to grant review for the sole purpose

of carving out a new exception to the well-pleaded

complaint rule—previously unknown and unavailable—that in practice would be applicable only to

the limited category of climate-deception cases cited

in Pet. 8–9 n.1.

Facts and Procedural History

Respondent brought this action in Maryland state

court in 2018, alleging exclusively state-law claims for

relief, including public and private nuisance and failure to warn, based on petitioners’ decades-long campaigns to promote fossil-fuel products while wrongfully

concealing the destructive impacts on public infrastructure they knew would result from using those

products as directed. See Pet. App. 3a–4a. As the

Fourth Circuit noted, the City’s complaint “seeks to

challenge the promotion and sale of fossil fuel products

without warning and abetted by a sophisticated disinformation campaign,” Id. 77a; the complaint does “not

seek to impose liability on Defendants for their direct

emissions of greenhouse gases [or] to restrain Defendants from engaging in their business operations.” Id.

4a. Although emissions are “necessary to establish the

avenue of Baltimore’s climate-change-related injuries,

[they are] not the source of tort liability.” Id. 77a.

Petitioners removed the case to the District of Maryland, asserting eight different theories of federal subject-matter jurisdiction. See, e.g., Pet. App. 89a. The

district court granted the City’s motion to remand, rejecting all eight theories. Id. 137a. The Fourth Circuit

affirmed the district court’s ruling that it lacked subject-matter jurisdiction under the federal officer removal statute, 28 U.S.C. § 1442, and held that it

lacked appellate jurisdiction to review any of the other

rejected grounds for removal. Mayor & City Council of

Baltimore v. BP P.L.C., 952 F.3d 452 (4th Cir.

2020), vacated and remanded, 141 S. Ct. 1532 (2021).

This Court granted certiorari and reversed, holding

that courts of appeals have jurisdiction to consider all

grounds for removal denied in a district court remand

order if the defendant’s removal petition relied on at

least one of the grounds exempted from 28 U.S.C.

§ 1447(d)’s bar on appellate review, which include federal officer removal as asserted here. Baltimore, 141

S. Ct. at 1543. The Court remanded for the Fourth

Circuit to consider petitioners’ remaining grounds for

removal. After further briefing and argument, the

Fourth Circuit again affirmed the district court’s remand order, rejecting each of the remaining theories

of removal and remanding the case to Maryland state

court. See Pet. App. 1a–86a.

REASONS THE PETITION

SHOULD BE DENIED

First, the decision below does not conflict with any

decision of any court of appeals, on any issue. Petitioners contend that the court of appeals’ decision conflicts with City of New York v. Chevron Corp., 993 F.3d

81 (2d Cir. 2021), on the first Question, whether federal common law “necessarily and exclusively governs” the state-law claims at issue. But City of New

York involved materially different allegations in a

case that was filed in federal court on diversity

grounds, not removed from state court on a theory of

arising-under jurisdiction. The Second Circuit addressed the defendants’ “preemption defense on its

own terms, not under the heightened standard unique

to the removability inquiry,” because it reviewed an

order granting a motion to dismiss for failure to state

a claim. 993 F.3d at 94.

On the second Question, the Fourth Circuit properly

applied this Court’s modern jurisprudence establishing the standards for removability under 28 U.S.C.

§§ 1331 and 1441. The court of appeals’ holding that

respondent’s claims neither invoke nor require resolution of federal common law is consistent with the rul-

ings of every district and circuit court to consider the

question in the context of these climate-deception cases. No court has held in any context, moreover, that a

statutorily displaced federal common law cause of action can serve as a basis for federal question jurisdiction “without resort to the doctrine of Grable.” Pet. 22.

Every court to consider the question has held just the

opposite. See, e.g., Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 853 (9th Cir. 2012) (“If a federal common law cause of action has been extinguished

by Congressional displacement, it would be incongruous to allow it to be revived in another form.”). The two

purportedly conflicting decisions petitioners identify

both predate Grable, and would be analyzed under the

Grable framework today. There is no circuit conflict.

Second, the decision below is correct. The court of

appeals correctly concluded that this Court’s Grable

line of cases provides the only existing method for

finding that a cause of action pleaded under state law

nonetheless arises under federal common law for subject-matter jurisdiction purposes. If a federal cause of

action does not appear on the face of the complaint,

the case is only removable on federal question grounds

if the four-element Grable test is satisfied, or if the asserted state-law claim is completely preempted by a

federal statute. And because complete preemption requires clear direction from Congress, federal-question

jurisdiction based on federal common law is appropriately analyzed through Grable.

There is no additional exception to the well-pleaded

complaint rule for state claims that purportedly implicate federal common law—let alone federal common

law that has since been displaced by statutory enactment—but do not satisfy Grable and are not completely preempted by statute. Petitioners neither identify

any compelling need for their proposed new rule nor

any case authority supporting removal based “on federal common law even when the federal common law

claim has been deemed displaced, extinguished, and

rendered null” by congressional action. Pet. App. 24a.

No such case exists, nor should it.

There is no circuit conflict on the first Question

Presented because the cases petitioners rely

upon resolved different issues in materially

different cases.

The first Question Presented is not squarely raised

and would not be the subject of a circuit split even if it

were. Petitioners contend that the Second Circuit’s decision in City of New York, 993 F.3d 81, conflicts with

the portion of the Fourth Circuit’s ruling rejecting

their argument that respondent’s claims are “necessarily and exclusively governed by federal common

law.” See, e.g., Pet. 3, 13. That purported conflict is illusory for at least two reasons. First, the two courts

addressed and decided entirely separate issues in completely different procedural postures—one jurisdictional and one on the merits of a federal preemption

defense—as both courts expressly recognized.2 Second,

the two cases rest upon materially different factual allegations and theories of liability, making the Second

Circuit’s reasoning entirely inapplicable to this case.

1. The decision below does not conflict with City of

New York for the principal reason that the cases reA district court in the Second Circuit has in fact adopted the

same reasoning as the Fourth Circuit below, remanding a different climate-deception case after concluding that City of New York

was not controlling. Connecticut v. Exxon Mobil Corp., No. 3:20CV-1555 (JCH), 2021 WL 2389739, at *4–7 & n.7 (D. Conn. June

2, 2021), appeal pending, No. 21-1446 (2d Cir.).

solved different questions. The issue in this case is

whether federal common law provides a basis for removal, even though Baltimore’s well-pleaded statelaw complaint neither asserts a federal common law

claim for relief nor could have asserted such a claim.

The issue in the Second Circuit case, which was filed

initially in federal court and thus raised no issue of

removability, was whether the plaintiff ’s substantive

allegations, as pleaded, failed to state a claim for relief because they were preempted by federal common

law. The Second Circuit resolved the defendants’ preemption defenses on the merits and did not consider

any question of federal subject-matter jurisdiction.

Both courts acknowledged as much and expressly

stated that their holdings were not in conflict.

It has been settled law for more than a century that

the availability of even a meritorious federal preemption defense is not a sufficient basis for removing statelaw claims to federal court. See, e.g., Gully, 299 U.S. at

116 (“By unimpeachable authority, a suit brought

upon a state statute does not arise under an act of Congress or the Constitution of the United States because

prohibited thereby.”). In this case, the Fourth Circuit

held that Baltimore’s claims do not “arise under” federal common law for removal purposes, because petitioners “[a]t most” presented “an ordinary preemption

argument” that cannot support federal question jurisdiction under the well-pleaded complaint rule. Pet.

App. 28a. Because the court was “only concerned with

removal jurisdiction” it had no “need . . . to delve into

these defenses at Defendants’ disposal.” Id. 10a n.2.

The court acknowledged the City of New York decision

and noted that it arose “in a completely different procedural posture,” “because New York City initially

filed suit in federal court as opposed to state court” and

“the Second Circuit confined itself to Rule 12(b)(6) and

never addressed its own subject-matter jurisdiction.”

Id. 18a. For that reason, it concluded that City of New

York “d[id] not pertain to the issues before [the court].”

Id. Two other recent court of appeals decisions expressly distinguished City of New York on that identical basis. See Suncor, 25 F.4th at 1262; Rhode Island,

35 F.4th at 55.

The Second Circuit itself recognized the material

procedural differences between these cases, which is

why it expressly “reconcile[d]” its analysis with “the

parade of recent opinions” affirming remand orders in

this case and others. City of New York, 993 F.3d at 93.

The Second Circuit noted that the energy company defendants “sought to remove those cases to federal

court, arguing that they anticipated raising federal

preemption defenses,” and “[t]he single issue before

each of those federal courts was thus whether the defendants’ anticipated defenses could singlehandedly

create federal-question jurisdiction.” Id. at 94. By contrast, the plaintiff in City of New York “filed suit in

federal court in the first instance” on diversity grounds,

and both the district court and Second Circuit were

“thus free to consider the [defendants]’ preemption defense on its own terms, not under the heightened standard unique to the removability inquiry.” Id. That is

why the Second Circuit was able to conclude that the

“fleet of cases” finding that “federal preemption does

not give rise to a federal question for purposes of removal . . . does not conflict with our holding.” Id. The

cases addressed entirely different issues.

Because of this fundamental difference, the Second

Circuit and Fourth Circuit’s opinions are not in conflict, and not mutually exclusive. The decision below

would not preclude a district court in the Fourth Circuit from holding that a claim identical to New York

City’s, filed in federal court, would be preempted by

federal law. Likewise, City of New York does not preclude district courts in the Second Circuit from holding

that state-law claims like Baltimore’s do not arise under federal common law for jurisdictional purposes.3

Petitioners acknowledge the procedural differences

between this case and City of New York but assert

that those differences “do[] not eliminate the conflict

on the first question presented,” because the jurisdictional question (whether the complaint arises under

federal law) is “logically subsequent” to the merits

question (whether federal common law “govern[s]”).

Pet. 16. That gets the analysis exactly backward—“[t]he requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature

and limits of the judicial power of the United States’

and is ‘inflexible and without exception.’ ” Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998)

(quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S.

379, 382 (1884)). The court of appeals, like the First,

Third, Ninth, and Tenth Circuit courts in Rhode Island, Hoboken, San Mateo, and Suncor, respectively,

correctly held that “even if” petitioners could establish

that federal common law preempted Baltimore’s

claims, as City of New York held based on the allegations in that case, “the well-pleaded complaint rule

The District of Connecticut did just that in Connecticut, 2021

WL 2389739, at *4–7 & n.7. The State of Connecticut there

brought statutory consumer protection claims alleging that fossil

fuel companies misled consumers in the state about climate

change, and the defendants argued those state-law claims were

“necessarily and exclusively govern[ed]” by federal common law.

Id. at *7. The district court, like the court of appeals here, held

that federal common law did not provide a basis for federal removal jurisdiction. See id. (“ExxonMobil has not shown that federal common law justifies removal of this case.”).

would still forbid the removal” because ordinary preemption is a federal defense that cannot confer jurisdiction. Pet. App. 20a.

The Fourth Circuit and those other courts in fact

could have affirmed the district courts’ remand orders

without considering the existence or scope of any applicable federal common law, which is precisely what

the Ninth Circuit did in the Oakland case. The district

court there held that “it had federal-question jurisdiction under 28 U.S.C. § 1331 because the Cities’ claim

was ‘necessarily governed by federal common law.’ ”

See Oakland, 969 F.3d at 902. Writing for the circuit

panel, Judge Ikuta observed that it was “not clear that

the claim requires an interpretation or application of

federal law at all, because the Supreme Court has not

yet determined that there is a federal common law of

public nuisance relating to interstate pollution.” Id. at

906 (citing AEP, 564 U.S. at 423). The court held that

federal common law could not provide jurisdiction over

the case regardless because Grable was not satisfied:

“Even assuming that the Cities’ allegations could give

rise to a cognizable claim for public nuisance under

federal common law, . . . the district court did not have

jurisdiction under § 1331 because the state-law claim

for public nuisance fails to raise a substantial federal

question.” Id. The courts of appeals are uniform that

petitioners’ argument here presents at most a preemption defense and does not confer jurisdiction.

2. The Fourth Circuit’s decision also does not conflict with City of New York because the allegations in

the two cases are materially different. In City of New

York, the plaintiff “acknowledge[d]” that the conduct

on which it premised liability was “lawful commercial

activity,” and the Second Circuit understood that the

City’s claims would “effectively impose strict liability

for the damages caused by fossil fuel emissions,” requiring the defendants to “cease global production altogether” to avoid ongoing liability. 993 F.3d at 87, 93

(cleaned up). Here, by contrast, the court of appeals

recognized that Baltimore “clearly seeks to challenge

the promotion and sale of fossil-fuel products without

warning and abetted by a sophisticated disinformation campaign,” and the tortious conduct is petitioners’ alleged “concealment and misrepresentation of

the products’ known dangers.” Pet. App. 77a. Baltimore’s claims thus do not “launch the State upon a

prohibited voyage into a domain of exclusively federal

competence,” Zschernig v. Miller, 389 U.S. 429, 442

(1968) (Stewart, J., concurring), because there has

never been any federal common law pertaining to any

of these subjects. Whether or not the considerations

discussed in City of New York warrant the recognition

or application of a federal common law, Baltimore’s

allegations do not.

There is no circuit conflict on the second

Question Presented, because this Court has

carefully elucidated the application of “arising

under” jurisdiction to removed state law

causes of action and the circuits are in accord.

There is also no circuit conflict on the second Question Presented, pertaining to petitioners’ proposed

new exception to the well-pleaded complaint rule.

Starting with Grable in 2005, this Court has simplified and clarified the principles governing the removability under 28 U.S.C. §§ 1331 & 1441 of state-law

claims for relief that necessarily raise issues of federal

law. The lower courts have uniformly applied those

standards, and petitioners have neither identified any

circuit conflict nor articulated any pressing need for

the Court to revisit its previous decisions.

Before Grable, no “well-defined test” existed to

guide the lower courts in this area, Manning, 578

U.S. at 385, and the “canvas” of opinions across the

judiciary “look[ed] like one that Jackson Pollock got

to first.” Gunn, 568 U.S. at 258. Grable established a

straightforward, four-part test for determining when

a district court may exercise federal question jurisdiction over a case pleading only state-law claims for

relief, see id. at 258, and the courts of appeals have

consistently and effectively applied that test in a

broad range of cases, including those in which the

plaintiff ’s state-law claims allegedly implicate federal common law. See, e.g., Mitchell v. Advanced HCS,

L.L.C., 28 F.4th 580, 588–89 (5th Cir. 2022); Morgan

Cty. War Mem’l Hosp. ex rel. Bd. of Dirs. of War Mem’l

Hosp. v. Baker, 314 F. App’x 529, 533–37 (4th Cir.

2008); Nicodemus v. Union Pac. Corp., 440 F.3d 1227,

1235–37 (10th Cir. 2006). Petitioners’ insistence that

removal of entirely state-law complaints should be

“permissible without resort to the doctrine of Grable”

or complete preemption, Pet. 22, is an extreme outlier

position that no court has adopted.

The two cases petitioners cite as evidence of a circuit split predate Grable, and “most courts recognize

that these cases are not good law” to the extent they

are inconsistent with it. Hoboken, 45 F.4th at 708. In

In re Otter Tail Power Co., 116 F.3d 1207, 1213–14

(8th Cir. 1997), the plaintiff brought a suit for injunctive relief in state court, alleging that the defendant

power company failed to comply with a federal district

court order regarding its authority to provide electrical utility services to a tribal reservation. The defendant successfully removed the case, based on the federal district court’s and Eighth Circuit’s conclusion

that “the plaintiff’s right to relief necessarily depends

on resolution of a substantial question of federal law”

insofar as “the extent of an Indian Tribe’s authority to

regulate nonmembers on a reservation . . . is manifestly a federal question” because “tribal sovereignty

is dependent on, and subordinate to, only the Federal

Government.” Id. (cleaned up). Today, the same question would be resolved by reference to the Grable test,

of which a substantial federal question is one—but

not the only—element. The court in Otter Tail agreed

that questions of Federal Indian Law were necessarily

raised, substantial, and actually disputed, and the

outcome of the case today would depend on whether

the issue could be adjudicated without upsetting any

state-federal divisions of judicial authority approved

by Congress. Gunn, 568 U.S. at 258. Nothing in the

Eighth Circuit’s reasoning conflicts with the court of

appeals’ analysis or holdings here.

The Fifth Circuit’s decision in Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922 (5th Cir. 1997), is by its

own terms narrow and limited. The court there held

that a plaintiff ’s claims relating to jewelry lost by an

airline arose under federal common law because there

was a long-recognized, “clearly established federal

common law cause of action against air carriers for

lost shipments,” which Congress had affirmatively

“preserv[ed]” in the Airline Deregulation Act of 1978.

Id. at 928. The court expressly stated that “[b]ecause

we rely upon the historical availability of this common

law remedy, and the statutory preservation of the

remedy, our holding today is necessarily limited.” Id.

at 929 n.16. As discussed in greater detail below, the

circumstances here are exactly the opposite; if a federal common law cause of action ever existed that

could have encompassed Baltimore’s claims, it has

been displaced by the Clean Air Act. There is no basis

to conclude Baltimore’s case would be decided differently under the Fifth Circuit’s former jurisprudence,

or that the Fourth Circuit would reach a different conclusion on the facts of Sam L. Majors today.

To the extent petitioners’ pre-Grable cases stand for

the anomalous proposition that “a district court has

jurisdiction under Section 1331 over claims artfully

pleaded under state law but necessarily governed by

federal common law,” Pet. 18, “without resort to the

doctrine of Grable,” Pet. 22, it is because this Court’s

“caselaw construing § 1331 was for many decades . . .

highly ‘unruly’ ” and lower courts struggled to apply it.

Manning, 578 U.S. at 385 (quoting Gunn, 568 U.S. at

258). The Court has since provided clear guidance to

which the circuits have unanimously conformed.

The decision below was correct, both as to the

displacement of the federal common law of

interstate pollution nuisance and as to the

removability analysis.

The decision below correctly follows this Court’s

guidance on how to determine whether state-law

claims are removable and how to determine whether a

state-law public-nuisance or other tort claim that in

some manner pertains to interstate pollution is a disguised claim under federal common law. As to the first

issue, the court of appeals properly decided that petitioners failed to establish an exception to the wellpleaded complaint rule, because the underlying claims

were neither completely preempted by federal statute

nor removable under Grable. As to the second, the

court of appeals properly concluded that the City’s

claims were not disguised federal common law claims,

and that in any event, the federal common law that

petitioners rely upon was displaced by the Clean Water Act and Clean Air Act and could not support arising-under jurisdiction for that reason as well.

1. More than a decade ago, this Court made clear

that to the extent any federal common law of interstate pollution previously existed, it was extinguished

by Congress’s enactment of the Clean Air Act in 1963.

While this Court once “recognized public nuisance as

a federal common law claim” in the context of “disputes involving [pollution in] interstate and navigable

waters,” the scope of that federal law was narrowly

circumscribed. Pet. App. 21a (citing Illinois v. City of

Milwaukee, 406 U.S. 91 (1972)). For example, although the Court held that “States were permitted to

sue to challenge activity harmful to their citizens’

health and welfare” under a federal common law of

interstate pollution,4 it never had occasion to “decide[]

whether private citizens . . . or political subdivisions

. . . may invoke the federal common law of nuisance to

abate out-of-state pollution.” AEP, 564 U.S. at 422

(emphasis added). That is because Congress amended

the Clean Water Act and displaced any such claim (as

this Court acknowledged in Milwaukee v. Illinois, 451

U.S. 304 (1981) (“Milwaukee II”)) before any case arose

in which a private party alleged a claim for public nuisance under federal common law based on interstate

water pollution. See also Middlesex Cty. Sewerage

Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 21–22

(1981) (“[W]e need not decide whether a cause of action may be brought under federal common law by a

private plaintiff, seeking damages” because “the federal common law of nuisance in the area of water pollution is entirely pre-empted by the more comprehensive scope of” the Clean Water Act.).

See, e.g., Tennessee v. Davis, 100 U.S. 257 (1879); Missouri v.

Illinois, 180 U.S. 208 (1901); Georgia v. Tenn. Copper Co., 240

U.S. 650 (1916); New Jersey v. City of New York, 283 U.S. 473

(1931); Illinois v. City of Milwaukee, 406 U.S. 91 (1972).

Three decades later in AEP, the Court concluded

that nuisance claims based on interstate air pollution

were displaced by the Clean Air Act. See Suncor, 25

F.4th at 1259 (“What Milwaukee II did to the federal

common law of interstate water pollution, AEP did to

the federal common law of interstate air pollution.”).

Importantly, the Court did not hold, as petitioners contend, that “ ‘the basic scheme of the Constitution’ requires the application of a federal rule of decision” in

such cases, Pet. 26, or that “federal common law continues to govern in this area” despite being displaced

by statute, Pet. 16. To the contrary, the Court expressly declined to consider the “academic question whether, in the absence of the Clean Air Act . . . , the plaintiffs could state a federal common-law claim for

curtailment of greenhouse gas emissions,” because

“[a]ny such claim would be displaced by the federal

legislation authorizing EPA to regulate carbon-dioxide

emissions.” AEP, 564 U.S. at 423. The Court further

held that because the Clean Air Act displaced any relevant federal common law, “the availability vel non of

a state lawsuit depends, inter alia, on the preemptive

effect of the federal Act,” not whatever vestigial preemptive force the federal common law might once have

held. Id. at 429. The Fourth Circuit here was therefore

correct that “federal common law in this area ceases to

exist due to statutory displacement,” Pet. App. 21a, because this Court exactly so held in AEP.

The Ninth Circuit’s Kivalina decision, on which petitioners rely, confirms that any relevant federal common law was entirely extinguished by the Clean Air

Act, not merely stripped of its available remedies. The

plaintiffs in Kivalina brought federal common law

nuisance damages claims against oil companies and

utilities, alleging that the defendants’ “massive greenhouse gas emissions” caused climate-change-related

damages to their village. 696 F.3d at 853. Relying on

AEP, the court of appeals held that “the field has been

made the subject of comprehensive legislation by Congress,” and that “[w]hen Congress has acted to occupy

the entire field, that action displaces any previously

available federal common law action,” and “the type of

remedy asserted is not relevant to the applicability of

the doctrine of displacement.” Id. at 857 (emphases

added) (cleaned up). Stated differently, “displacement

of a federal common law right of action means displacement of remedies,” because “[j]udicial power can

afford no remedy unless a right that is subject to that

power is present”; when the federal common law has

been displaced, a claim under that law implicates no

justiciable right. Id. Importantly, the court of appeals

did not affirm a dismissal on the merits for failure to

state a claim. Rather, it affirmed dismissal for lack of

subject-matter jurisdiction because the federal common law claim was plainly unsubstantial. See id. at

855, 858; see also Hagans v. Lavine, 415 U.S. 528,

536–37 (1974). That is the same holding reached by

the court below: “Public nuisance claims involving interstate pollution . . . are nonexistent under federal

common law because they are statutorily displaced,”

and “since those claims are defunct, . . . a federal court

cannot exercise federal-question jurisdiction on that

basis.” Pet. App. 24a–25a.

In light of the limited scope of federal common law

nuisance that once existed concerning interstate pollution, and its displacement by the Clean Air Act and

Clean Water Act, the court of appeals was correct to

conclude that there was no basis for creating a new

category of federal common law encompassing the traditional state-law tort and statutory claims the City

has alleged. The court was equally correct in holding

that petitioners had not shown any conflict between

Maryland law and any uniquely federal interest, a

strict prerequisite for federal common lawmaking.

The requirements for creating new categories of federal common law are, and should be, demanding;

“[j]udicial lawmaking in the form of federal common

law plays a necessarily modest role under a Constitution that vests the federal government’s ‘legislative

Powers’ in Congress and reserves most other regulatory authority to the States.” Rodriguez v. F.D.I.C.,

140 S. Ct. 713, 717 (2020) (quoting U.S. Const. art. I,

§ 1). “[B]efore federal judges may claim a new area for

common lawmaking, strict conditions must be satisfied,” id., the most basic being: a “specific,” “concrete,”

and “significant conflict” between a uniquely federal

interest and the use of state law, O’Melveny & Myers

v. F.D.I.C., 512 U.S. 79, 87–88 (1994); see also Miree v.

DeKalb Cty., 433 U.S. 25, 31 (1977); Wallis v. Pan Am.

Petroleum Corp., 384 U.S. 63, 68–72 (1966). “The cases in which federal courts may engage in common lawmaking are few and far between,” and this Court has

“underscore[d] the care federal courts should exercise

before taking up an invitation to try their hand at

common lawmaking,” lest they “ma[k]e the mistake of

moving too quickly past important threshold questions at the heart of our separation of powers.” Rodriguez, 140 S. Ct. at 716, 718.

Petitioners “never establish[ed] a significant conflict

between Baltimore’s state-law claims . . . and any federal interests” below, Pet. App. 16a, and they do not

identify any specific conflict or government interest in

their petition here. Petitioners assert that “the basic

scheme of the Constitution” requires federal law to “govern” any claim “for injuries allegedly caused by” climate

change, no matter how those claims are pleaded or by

whom, and that it would be “inconsistent with our con-

stitutional structure” to allow a municipality to bring a

state-law claim like Baltimore’s against a private defendant. Pet. 3, 7, 28 (citation omitted). But even traditional conflict preemption analysis does not countenance a

“freewheeling judicial inquiry into whether a state statute is in tension with federal objectives,” because “such

an endeavor would undercut the principle that it is Congress rather than the courts that pre-empts state law.”

Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 607

(2011) (cleaned up); see, e.g., Miree, 433 U.S. at 32. This

Court has recently reiterated, moreover, that “[i]nvoking some brooding federal interest or appealing to a judicial policy preference should never be enough to win

preemption of a state law” and instead “a litigant must

point specifically to a constitutional text or a federal

statute that does the displacing or conflicts with state

law.” Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894,

1901 (2019) (cleaned up). Petitioners have not even done

that much. Their arguments would be insufficient to establish that federal law preempts Baltimore’s claims,

let alone that Baltimore’s state-law claims for relief so

intrude on a uniquely federal interest that the Court

should make new common law to wrest lawmaking power from the State of Maryland.

At bottom, there is no existing federal common law

that could apply to Baltimore’s claims, and petitioners have not come close to showing that new federal

common law should be crafted. The court of appeals

was correct and no further review by this Court is

warranted.

2. The Fourth Circuit’s determination that federal

common law cannot provide a basis for overcoming the

well-pleaded complaint rule unless complete preemption or Grable are satisfied also correctly applies this

Court’s instructions on the scope of arising-under ju-

risdiction. A case arises under federal law “only when

the plaintiff ’s statement of his own cause of action

shows that it is based upon federal law.” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (quoting Louisville

& Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)).

Federal “[j]urisdiction may not be sustained on a theory that the plaintiff has not advanced.” Beneficial Nat’l

Bank v. Anderson, 539 U.S. 1, 12 (2003) (Scalia, J., dissenting) (quoting Merrell Dow Pharms., 478 U.S. at

809 n.6). Jurisdiction also may not rest on “a federal

defense, including the defense of preemption, even if

the defense is anticipated in the plaintiff ’s complaint,

and even if both parties admit that the defense is the

only question truly at issue in the case.” Franchise Tax

Bd., 463 U.S. at 14. As masters of their complaints,

plaintiffs “may avoid federal jurisdiction by exclusive

reliance on state law.” Caterpillar, 482 U.S. at 392.

This Court has recognized under the well-pleaded

complaint rule only two types of state-law claims that

arise under federal law: (1) the “special and small category” of state-law actions that satisfy Grable, see,

e.g., Gunn, 568 U.S. at 258 (citation omitted); and (2)

cases completely preempted by a federal statute that

itself creates a cause of action “Congress intended . . .

to be exclusive,” e.g., Beneficial Nat’l Bank, 539 U.S.

at 9 n.5. The Court has recently reiterated that it

“would not expect Congress to take [the] extraordinary step” of “stripping state courts of jurisdiction to

hear their own state claims” “by implication,” and that

only “[e]xplicit, unmistakable, and clear” congressional directives will justify such an intrusion on federalism and state sovereignty. Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1351 (2020).

Petitioners assert that Baltimore’s state-law claims

for relief “inherently are federal [common law] claims”

and that the artful pleading doctrine “prohibits” Baltimore from “dressing them in state-law garb.” Pet. 30.

Petitioners cite no case where a court has used federal

common law and the artful pleading doctrine together

in this way because no court has done so. This Court

has explained that the “corollary of the well-pleaded

complaint rule” embodied in the artful pleading doctrine is that “Congress may so completely pre-empt a

particular area that any civil complaint raising this

select group of claims is necessarily federal in character,” Metro. Life, 481 U.S. at 63–64 (emphasis added),

because then and only then “such suit is purely a creature of federal law, notwithstanding the fact that state

law would provide a cause of action” in absence of the

statute. Franchise Tax Bd., 463 U.S. at 22–23. Even

before Grable, therefore, courts recognized that “the

only state claims that are ‘really’ federal claims and

thus removable to federal court, . . . are those that are

preempted completely by federal law,” because artful

pleading and complete preemption are two sides of the

same coin. Goepel v. Nat’l Postal Mail Handlers Union,

a Div. of LIUNA, 36 F.3d 306, 311–12 (3d Cir. 1994).

Petitioners say “[t]here is no plausible reason why”

complete preemption and the artful pleading doctrine

should be limited to statutes. Pet. 30 (citation omitted). But the reason for that limitation is obvious.

Complete preemption requires “extraordinary preemptive power,” which this Court has been “reluctant

to find” even in federal legislation, Metro Life, 481 U.S.

at 65, because it implicates severe federalism concerns.

Petitioners rely on the second footnote in Federated

Department Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2

(1981), for its statement that courts faced with a motion to remand should “seek to determine whether the

real nature of the claim is federal, regardless of plaintiff ’s characterization.” Pet. 6. This Court explained

more than 20 years ago that the “marginal comment”

in “Moitie’s enigmatic footnote” “caused considerable

confusion in the circuit courts” and “will not bear the

heavy weight lower courts have placed on it.” Rivet v.

Regions Bank of La., 522 U.S. 470, 477–78 (1998). The

Court thus expressly limited Moitie to its “case-specific

context.” Id. at 477. The Court clarified in the same

opinion: “The artful pleading doctrine allows removal

where federal law completely preempts a plaintiff ’s

state-law claim.” Id. at 475. This Court has never held

that federal common law may completely preempt state

law and has never applied the artful pleading doctrine

outside the complete preemption context.

A case that necessarily raises a substantial issue of

federal common law and could be adequately adjudicated in federal court without disturbing any congressionally-approved federal-state balance could be removable under Grable. The corollary is equally true:

There is no reason why a case like this, which bears

at most a passing connection to an insubstantial and,

even in petitioners’ view, displaced issue of federal

common law, must be heard in the federal courts if

the four-part inquiry under Grable cannot otherwise

be satisfied.

The Grable analysis, which this Court has taken

pains to develop, “provides ready answers to jurisdictional questions” and “gives guidance whenever borderline cases crop up,” including those implicating

federal common law. Manning, 578 U.S. at 392. The

Court applied exactly that “guidance” in Manning,

stating that the Grable framework set forth the appropriate analysis for determining whether a state

law cause of action arises under the federal Securities

Exchange Act and is thus within the exclusive jurisdiction of the district courts pursuant to 15 U.S.C.

§ 78aa(a). See Manning, 578 U.S. at 383–84. The

Court declined to adopt the “untested approach” advocated by the petitioner there, because “forcing

courts to toggle back and forth between [that

approach] and the ‘arising under’ standard, would

undermine consistency and predictability in litigation.” Id. at 392; see also Hertz Corp. v. Friend, 559

U.S. 77, 79 (2010) (“[A]dministrative simplicity is a

major virtue in a jurisdictional statute.”). Petitioners

offer no justification for treating federal common law

differently than any other body of federal law encompassed by Grable, because there is none. This Court’s

precedent is fully up to the task. If a substantial, disputed question of federal common law is necessarily

raised in a state-law complaint and can be adjudicated in federal court without offending the federal-state

balance approved by Congress, there is federal question jurisdiction under § 1331.

Petitioners suggest that district judges should analyze removal disputes “without resort to the doctrine of Grable” and complete preemption. Pet. 21–

22. But that would return lower courts to the “unruly”

and “muddled backdrop” of jurisprudence that Grable was intended to overcome. Manning, 578 U.S. at

385. Worse still, petitioners’ proposed approach

would massively expand the substantive and jurisdictional powers of federal judges and introduce

grave separation of powers and federalism problems.

Under petitioners’ approach, a district judge could

recognize a new area of federal common law, find

that it extinguishes state law, and bootstrap its own

jurisdiction over a state-law complaint onto those

findings, all without any guidance from Congress.

Understandably, no court has adopted this approach.

The Fourth Circuit was correct to “resoundingly” reject it. Pet. App. 12a.

The Questions Presented have minimal

practical importance and this case is a poor

vehicle for addressing them.

The two Questions Presented do not warrant this

Court’s review for the additional reasons that they

arise in only a single, discrete category of cases and

are not well-presented in this petition.

1. The first Question does not warrant review because it raises an extremely narrow issue of federal

common law and is not squarely presented in any

event. Federal common law applies in only a “few,”

“restricted” “areas,” Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981) (citation omitted), and the cases affected by petitioners’ first Question would necessarily be few in number even if

petitioners were correct that federal common law applies here. By its own terms, the Question is even further limited to state-law “claims seeking redress for

injuries allegedly caused by the effect of interstate

greenhouse-gas emissions on the global climate.” Pet.

I. The only potentially affected cases are other lawsuits targeting the fossil-fuel industry’s alleged history of deceiving the public concerning climate change,

a tiny fraction of the thousands of cases remanded

each year to state court.

The first Question is also not squarely presented because, as discussed above, the court of appeals expressly declined to reach whether petitioners could

raise an ordinary preemption defense to Baltimore’s

claims, leaving that for the state court on remand.

See, e.g., Pet. App. 10a n.2. The Maryland courts will

resolve on the merits whether federal law “governs” to

the exclusion of Maryland law. Petitioners’ speculation that “our national energy policy may be decided

by juries in state courts” absent review now, Pet. 32,

is baseless, because Baltimore’s claims hinge on petitioners’ alleged misrepresentations to consumers and

the public. Neither Baltimore’s theories of liability nor

its requested relief implicates “national energy policy”

as petitioners suggest.

2. The second Question is also of minimal practical

importance, and petitioners do not seriously contend

otherwise. The most they say is that federal common

law’s relationship to Grable and the well-pleaded complaint rule “is a significant jurisdictional question that

arises in several contexts,” from “foreign affairs to tribal relations.” Pet. 31. Yet they provide no examples of

cases where the Court’s existing jurisprudence is inadequate to resolve the issue. Grable already “provides

ready answers to jurisdictional questions” and “gives

guidance whenever borderline cases crop up,” Manning, 578 U.S. at 392, including the “few” “restricted”

“areas” in which federal common law operates, Texas

Indus., 451 U.S. at 640. This narrowness of the displaced federal common law on which petitioners’ argument is based also makes this case a poor vehicle to

consider the second Question Presented. There is no

need, and petitioners offer no justification, for granting review to consider whether to create a third exception to that rule that would govern only this case and

similarly pleaded state-law climate-deception cases.

CONCLUSION

For the reasons stated the petition for writ of certiorari should be denied.

Respectfully submitted,

VIcTor M. Sher

Counsel of Record

MaTThew K. EdlIng

MarTIn D. QuIñones

MIchael Burger

Sher Edling LLP

100 Montgomery St.,

Ste. 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

December 19, 2022

Sara Gross

Baltimore City

Law Department

100 N. Holliday Street,

Suite 109

Baltimore, MD 21202

(410) 396-3947

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.