Reply 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

BP P.L.C., ET AL., PETITIONERS

v.

MAYOR AND CITY COUNCIL OF BALTIMORE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

THEODORE J. BOUTROUS, JR.

GIBSON, DUNN

& CRUTCHER LLP

333 South Grand Street

Los Angeles, CA 90071

THOMAS G. HUNGAR

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut

Avenue, N.W.

Washington, DC 20036

DAVID C. FREDERICK

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W.,

Suite 400

Washington, DC 20036

KANNON K. SHANMUGAM

Counsel of Record

WILLIAM T. MARKS

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

(additional counsel on signature page)

TABLE OF CONTENTS

Page

A. The decision below implicates conflicts among

the courts of appeals on both questions presented ............. 2

B. The decision below is incorrect .............................................. 4

C. The questions presented are important

and warrant the Court’s review in this case ......................... 4

TABLE OF AUTHORITIES

Cases:

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) ............... 4

City of New York v. Chevron Corp.,

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

Grable & Sons Metal Products, Inc.

v. Darue Engineering & Manufacturing,

545 U.S. 308 (2005) .............................................................. 3

Oneida Indian Nation v. County of Oneida,

414 U.S. 661 (1974) .............................................................. 4

Statutes:

Clean Air Act, 42 U.S.C. 7401-7671q ..................................... 4

28 U.S.C. 1331 ........................................................................... 2

(I)

In the Supreme Court of the United States

No. 22-361

BP P.L.C., ET AL., PETITIONERS

v.

MAYOR AND CITY COUNCIL OF BALTIMORE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

The decision below implicates conflicts on two exceptionally important jurisdictional questions that have

arisen with particular frequency in the numerous and materially identical climate-change cases pending in courts

across the Nation. The petition in Suncor Energy

(U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550, presents the same questions,

and last October, the Court invited the Solicitor General

to file a brief expressing the views of the United States in

that case.

Respondent candidly acknowledges that “this case is

nearly identical, factually and procedurally, to [Suncor]”

and that both cases present “the same [q]uestions.” Br.

(1)

2

in Opp. 1. It is thus unsurprising that respondent’s arguments against review are nearly identical to the arguments made by the respondents in Suncor. They are no

more effective here than they were there.

Given the overlap between the cases, the best course

is for the Court to hold the petition in this case pending a

decision on certiorari in Suncor. The petition in Suncor

should be granted, because the questions presented in

these cases have divided the courts of appeals and will determine whether state courts have the power to impose

the costs of global climate change on the energy industry.

In the alternative, the petition in this case should be

granted.

A. The Decision Below Implicates Conflicts Among The

Courts Of Appeals On Both Questions Presented

The questions presented in this case are, first,

whether federal common law necessarily and exclusively

governs claims seeking redress for injuries allegedly

caused by the effect of interstate greenhouse-gas emissions on the global climate; and second, whether a federal

district court has jurisdiction under 28 U.S.C. 1331 over

claims necessarily and exclusively governed by federal

common law but labeled as arising under state law. Respondent contends that there is no circuit conflict on either question, rehashing the same arguments made by the

respondents in Suncor. Those arguments remain invalid.

As to the first question presented: respondent contends (Br. in Opp. 11) that the Second Circuit’s decision in

City of New York v. Chevron Corp., 993 F.3d 81 (2021),

does not conflict with the decision below, because City of

New York did not involve a case removed from state to

federal court. But as petitioners have explained (Pet. 16),

that distinction is irrelevant, because the well-pleaded

complaint rule has nothing to do with the question

3

whether federal common law governs claims such as those

asserted here. Respondent also argues (Br. in Opp. 14)

that the court of appeals’ resolution of the federal-common-law question in this case was unnecessary in light of

its application of the well-pleaded complaint rule. But the

court of appeals squarely held that federal common law

does not govern respondent’s claims, and it expressly declined to “follow City of New York” in the process. Pet.

App. 19a. Nor is respondent correct to say that the allegations in the complaint here are “materially different”

from those in City of New York. Br. in Opp. 14. The plaintiffs there similarly alleged that the defendant energy

companies “continued to sell massive quantities of fossil

fuels” despite knowing about the alleged effect the combustion of those fuels would have on the global climate.

993 F.3d at 86-87. And as in Suncor and the other related

climate cases, respondent seeks damages for the alleged

effects of global climate change allegedly caused by emissions from the combustion of petitioners’ products. See

Pet. App. 4a-5a.

As to the second question presented: like the respondents in Suncor, respondent here argues (Br. in Opp. 1518) that no conflict exists because the decisions of the

Fifth and Eighth Circuits were early applications of the

“substantial federal question” doctrine that this Court

subsequently synthesized in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545

U.S. 308 (2005). That characterization of those decisions

is incorrect. See Reply Br. at 5, Suncor, supra. But in

any event, such a characterization would not eliminate the

conflict, because those cases would still permit removal of

respondent’s claims. After all, another way to characterize petitioners’ argument that respondent’s claims are

federal in nature is to say that federal substantive law

governs every element of respondent’s claims, such that

4

each element presents a substantial question of federal

law.

B. The Decision Below Is Incorrect

On the merits, respondent repeats the same fundamental errors as the respondents in Suncor. There is no

need to “creat[e] a new category of federal common law”

here, Br. in Opp. 21 (emphasis omitted), because the

Court has applied federal rules of decision to claims seeking redress for injuries allegedly caused by interstate air

and water pollution for more than a century. See Pet. 2526. And whether the Clean Air Act displaces any remedy

available under federal common law is a merits question,

not a jurisdictional one. See Pet. 27-28.

Respondent’s arguments concerning the well-pleaded

complaint rule also lack merit. Respondent argues that

petitioners seek to “create a new exception” to the rule,

Br. in Opp. i, but the Court need only apply familiar jurisdictional principles to this context in order to decide the

case in petitioners’ favor. The Court has never limited the

artful-pleading doctrine to the context of complete

preemption, see Pet. 30, and the Court has already recognized that federal common law can function in the same

way as completely preemptive statutes in the context of a

“state-law complaint that alleges a present right to possession of Indian tribal lands.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393 n.8 (1987) (citing Oneida Indian

Nation v. County of Oneida, 414 U.S. 661, 675 (1974)).

That is particularly true where, as here, the constitutional

structure requires the exclusive application of federal law

to a claim. See Pet. 25-26.

C. The Questions Presented Are Important And Warrant

The Court’s Review In This Case

Finally, respondent argues (Br. in Opp. 28-29) that review is not warranted because the questions presented

5

are not important and because the first question is not

squarely presented in this case. Neither argument withstands scrutiny. As respondent grudgingly admits (Br. in

Opp. 28), the questions presented are of vital importance

in the nearly two dozen climate-change cases—seeking

vast damages from the energy industry—currently pending in courts across the country, because they concern the

vital question of where the cases will be litigated. See Pet.

23; States Br. at 10-13, Suncor, supra; API Br. at 15-21,

Suncor, supra; WLF Br. 12-14. And this case obviously

does present the question whether federal common law

governs climate-change claims like those alleged here; respondent’s contrary argument assumes that petitioners’

invocation of federal common law merely presents an ordinary preemption defense. See Br. in Opp. 28-29. Of

course, that is question-begging: the correct answer to

the first question turns in part on whether federal common law governs the elements of respondent’s claims or

merely provides a defense to those claims. See Pet. 30.

In sum, respondent offers no good reason why the

Court should decline to review the exceedingly important

jurisdictional questions presented both by this case and

by Suncor. To the contrary, the Court’s review is amply

warranted.

6

*

*

*

*

*

The petition for a writ of certiorari should be held

pending a decision on the petition in Suncor Energy

(U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550. If the Court grants review in

Suncor, the petition here should be held pending a decision there and then disposed of as is appropriate. Otherwise, the petition should be granted.

Respectfully submitted.

THEODORE J. BOUTROUS, JR.

GIBSON, DUNN

& CRUTCHER LLP

333 South Grand Street

Los Angeles, CA 90071

THOMAS G. HUNGAR

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut

Avenue, N.W.

Washington, DC 20036

Counsel for Petitioners

Chevron Corporation

and Chevron U.S.A., Inc.

DAVID C. FREDERICK

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W.,

Suite 400

Washington, DC 20036

Counsel for Petitioners

Shell plc and Shell USA, Inc.

JANUARY 2023

KANNON K. SHANMUGAM

WILLIAM T. MARKS

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

Counsel for Petitioners

Exxon Mobil Corporation

and ExxonMobil Oil

Corporation

NANCY G. MILBURN

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

MATTHEW T. HEARTNEY

JOHN D. LOMBARDO

ARNOLD & PORTER

KAYE SCHOLER LLP

777 South Figueroa Street,

44th Floor

Los Angeles, CA 90017

JOHN B. ISBISTER

JAIME W. LUSE

TYDINGS & ROSENBERG LLP

One East Pratt Street,

Suite 901

Baltimore, MD 21202

Counsel for Petitioners

BP p.l.c., BP America Inc.,

and BP Products North

America Inc.

NOEL J. FRANCISCO

DAVID M. MORRELL

J. BENJAMIN AGUIÑAGA

JONES DAY

51 Louisiana Avenue, N.W.

Washington, DC 20001

DAVID C. KIERNAN

JONES DAY

555 California Street,

26th Floor

San Francisco, CA 94104

Counsel for Petitioner

CNX Resources Corporation

NATHAN P. EIMER

LISA S. MEYER

EIMER STAHL LLP

224 South Michigan

Avenue, Suite 1100

Chicago, IL 60604

ROBERT E. DUNN

EIMER STAHL LLP

99 South Almaden

Boulevard, Suite 662

San Jose, CA 95113

RYAN J. WALSH

EIMER STAHL LLP

10 East Doty Street,

Suite 621

Madison, WI 53703

Counsel for Petitioner

CITGO Petroleum

Corporation

JAMESON R. JONES

DANIEL R. BRODY

BARTLIT BECK LLP

1801 Wewatta Street,

Suite 1200

Denver, CO 80202

STEVEN M. BAUER

MARGARET A. TOUGH

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 94111

Counsel for Petitioners

ConocoPhillips and

ConocoPhillips Company

KATHLEEN TAYLOR SOOY

TRACY A. ROMAN

CROWELL & MORING LLP

1001 Pennsylvania

Avenue, N.W.

Washington, DC 20004

HONOR R. COSTELLO

CROWELL & MORING LLP

590 Madison Avenue

New York, NY 10022

Counsel for Petitioners

CONSOL Energy Inc.

and CONSOL Marine

Terminals LLC

THOMAS K. PREVAS

SAUL EWING

1001 Fleet Street,

Suite 900

Baltimore, MD 21202

Counsel for Petitioners

Crown Central LLC

and Crown Central New

Holdings LLC

MARTHA THOMSEN

MEGAN BERGE

BAKER BOTTS L.L.P.

700 K Street, N.W.

Washington, DC 20001

SCOTT JANOE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

Counsel for Petitioner

Hess Corporation

SHANNON S. BROOME

HUNTON ANDREWS

KURTH LLP

50 California Street

San Francisco, CA 94111

SHAWN PATRICK REGAN

HUNTON ANDREWS

KURTH LLP

200 Park Avenue

New York, NY 10166

ANN MARIE MORTIMER

HUNTON ANDREWS

KURTH LLP

550 South Hope Street,

Suite 2000

Los Angeles, CA 90071

Counsel for Petitioners

Marathon Petroleum Corp.

and Speedway LLC

STEVEN M. BAUER

MARGARET A. TOUGH

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 94111

MATTHEW J. PETERS

LATHAM AND WATKINS LLP

555 11th Street, N.W.,

Suite 1000

Washington, DC 20004

Counsel for Petitioner

Phillips 66