Petition for Writ of Certiorari — Chevron Corporation, et al., Petitioners v. San Mateo County, California, et al.
Supreme Court briefNov 22, 2022
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No. 22-_______
IN THE
Supreme Court of the United States
CHEVRON CORPORATION, ET AL.,
Petitioners,
v.
COUNTY OF SAN MATEO, ET AL.,
Respondents.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
THOMAS G. HUNGAR
LOCHLAN F. SHELFER
GIBSON, DUNN
& CRUTCHER LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
THEODORE J. BOUTROUS, JR.
Counsel of Record
WILLIAM E. THOMSON
JOSHUA D. DICK
GIBSON, DUNN
& CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
tboutrous@gibsondunn.com
Counsel for Petitioners
[Additional counsel listed on signature page]
QUESTION PRESENTED
Whether a federal district court has jurisdiction
under 28 U.S.C. § 1331 over nominally state-law
claims seeking redress for injuries allegedly caused by
the effect of transboundary greenhouse-gas emissions
on the global climate, on the ground that federal law
necessarily and exclusively governs such claims.
ii
PARTIES TO THE PROCEEDING AND
RULE 29.6 STATEMENT
Petitioners are Anadarko Petroleum Corporation;
Apache Corporation; BP P.L.C.; BP America Inc.;
Chevron Corporation; Chevron U.S.A. Inc.; CITGO
Petroleum Corporation; ConocoPhillips; ConocoPhillips Company; Devon Energy Corporation; Devon Energy Production Company, L.P.; Eni Oil & Gas Inc.;
Exxon Mobil Corporation; Hess Corporation; Marathon Oil Company; Marathon Oil Corporation; Marathon Petroleum Corporation; Occidental Chemical
Corporation; Occidental Petroleum Corporation;
Ovintiv Canada ULC (f/k/a “Encana Corporation”);
Phillips 66 Company; Repsol Energy North America
Corporation; Repsol Trading USA Corporation; Rio
Tinto Energy America Inc.; Rio Tinto Minerals Inc.;
Rio Tinto Services Inc.; Shell plc (f/k/a Royal Dutch
Shell plc); Shell Oil Products Company LLC; Total
E&P USA, Inc.; and Total Specialties USA, Inc.
Petitioner Anadarko Petroleum Corporation is
wholly owned by petitioner Occidental Petroleum Corporation, a publicly traded corporation.
Petitioner Apache Corporation is wholly owned by
parent holding company APA Corporation, which is
publicly traded.
Petitioner BP p.l.c. has no parent corporation, and
no publicly held company holds 10% or more of its
stock.
Petitioner BP America Inc. is a wholly owned indirect subsidiary of petitioner BP p.l.c.
Petitioner Chevron Corporation has no parent corporation, and no publicly held company holds 10% or
more of its stock.
iii
Petitioner Chevron U.S.A. Inc., is a wholly owned
subsidiary of petitioner Chevron Corporation.
Petitioner CITGO Petroleum Corporation is a
wholly owned indirect subsidiary of Petróleos de Venezuela S.A., which is the national oil company of the
Bolivarian Republic of Venezuela. No publicly held
company owns 10% or more of its stock.
Petitioner ConocoPhillips has no parent corporation, and no publicly held company holds 10% or more
of its stock.
Petitioner ConocoPhillips Company is a wholly
owned subsidiary of petitioner ConocoPhillips.
Petitioner Devon Energy Corporation has no parent corporation, and no publicly held company holds
10% or more of its stock.
Petitioner Devon Energy Production Company,
L.P. is a wholly owned subsidiary of Devon Energy
Corporation.
Petitioner Eni Oil & Gas Inc. is a wholly owned
subsidiary of Eni S.p.A. No publicly held corporation
holds 10% or more of Eni S.p.A.’s stock.
Petitioner Exxon Mobil Corporation has no parent
corporation, and no publicly held corporation owns
10% or more of its stock.
Petitioner Hess Corporation has no parent corporation, and no publicly held corporation holds 10% or
more of its stock.
Petitioner Marathon Oil Corporation has no parent corporation and is a publicly traded entity. The
Vanguard Group, Inc., an investment advisor which is
not a publicly traded corporation, disclosed through a
Schedule 13G/A filed with the SEC that it beneficially
iv
owns 10% or more of Marathon Oil Corporation’s
stock.
Petitioner Marathon Oil Company is a wholly
owned direct subsidiary of Marathon Oil Corporation,
a publicly traded entity.
Petitioner Marathon Petroleum Corporation has
no parent corporation. BlackRock, Inc., through itself
or its subsidiaries, owns 10% or more of Marathon Petroleum Corporation’s stock.
Petitioner Occidental Petroleum Corporation has
no parent corporation. Berkshire Hathaway Inc.,
through itself or its subsidiaries, owns 10% or more of
Occidental Petroleum Corporation’s stock.
Petitioner Occidental Chemical Corporation is a
wholly owned subsidiary of Occidental Chemical
Holding Corporation, which is a wholly owned subsidiary of OXY USA Inc. OXY USA Inc. is a wholly
owned subsidiary of Occidental Petroleum Corporation, a publicly traded corporation.
Petitioner Ovintiv Canada ULC (f/k/a Encana
Corporation) is a wholly owned indirect subsidiary of
Ovintiv Inc.
Petitioner Phillips 66 has no parent corporation.
The Vanguard Group is the only shareholder owning
10% or more of Phillips 66.
Petitioner Repsol Energy North America Corporation is a subsidiary whose ultimate parent corporation
is Repsol, S.A. Petitioner Repsol Trading USA Corporation is a subsidiary whose ultimate parent corporation is also Repsol, S.A. Repsol, S.A. has no parent
corporation, and no publicly held company owns 10%
or more of Repsol, S.A.’s stock.
v
Petitioners Rio Tinto Minerals Inc., Rio Tinto Energy America Inc., and Rio Tinto Services Inc. are
wholly owned indirect subsidiaries of Rio Tinto plc.
Rio Tinto plc is a publicly held corporation. Shining
Prospect Pte. Ltd, a subsidiary of Aluminum Corporation of China, owns more than 10% of Rio Tinto plc’s
stock.
Petitioner Shell plc (f/k/a Royal Dutch Shell plc)
has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Petitioner Shell Oil Products Company LLC is a
wholly owned indirect subsidiary of petitioner Shell
plc (f/k/a Royal Dutch Shell plc).
Petitioner Total E&P USA, Inc. states that TOTAL
Delaware, Inc. owns 76.39% of the stock of TEPUSA,
and Elf Aquitaine, Inc. owns the remaining 23.61% of
the stock of TEPUSA. TOTAL Delaware, Inc. owns
100% of the stock of Elf Aquitaine, Inc. TOTAL Holdings USA, Inc. owns 100% of the stock of TOTAL Delaware, Inc. TOTAL GESTION USA owns 100% of the
stock of TOTAL Holdings USA, Inc. TOTAL, S.A.
owns 100% of the stock of TOTAL GESTION USA.
TOTAL, S.A. is a publicly held corporation that indirectly holds more than 10% of TOTAL E&P USA’s
stock.
Petitioner Total Specialties USA, Inc. states that
TOTAL MARKETING SERVICES S.A. owns 100% of
the stock of Total Specialties USA Inc. TOTAL S.A.
owns 100% of the stock of TOTAL MARKETING SERVICES S.A. TOTAL, S.A. is a publicly held corporation that indirectly holds more than 10% of Total Specialties USA, Inc.’s stock.
vi
Respondents are the County of San Mateo; the City
of Imperial Beach; the County of Marin; the County of
Santa Cruz; the City of Santa Cruz; and the City of
Richmond.
vii
RULE 14.1(b)(iii) STATEMENT
United States District Court (N.D. Cal.):
County of San Mateo v. Chevron Corp., et al.,
No. 17-cv-04929 (Mar. 16, 2018).
City of Imperial Beach v. Chevron Corp., et al.,
No. 17-cv-04934 (Mar. 16, 2018).
County of Marin v. Chevron Corp., et al.,
No. 17-cv-04935 (Mar. 16, 2018).
County of Santa Cruz v. Chevron Corp., et al.,
No. 18-cv-00450 (July 10, 2018).
City of Santa Cruz v. Chevron Corp., et al.,
No. 18-cv-00458 (July 10, 2018).
City of Richmond v. Chevron Corp., et al.,
No. 18-cv-00732 (July 10, 2018).
United States Court of Appeals (9th Cir.):
County of San Mateo v. Chevron Corp., et al.,
No. 18-15499 (Apr. 19, 2022).
City of Imperial Beach v. Chevron Corp., et al.,
No. 18-15502 (Apr. 19, 2022).
County of Marin v. Chevron Corp., et al.,
No. 18-15503 (Apr. 19, 2022).
County of Santa Cruz, et al. v. Chevron Corp.,
et al., No. 18-16376 (Apr. 19, 2022).
viii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ....................................i
PARTIES TO THE PROCEEDING AND
RULE 29.6 STATEMENT ................................... ii
RULE 14.1(b)(iii) STATEMENT ........................vii
TABLE OF APPENDICES ................................... x
OPINIONS BELOW .............................................. 1
JURISDICTION .................................................... 1
STATUTORY PROVISIONS INVOLVED ........... 2
INTRODUCTION ................................................. 2
STATEMENT OF THE CASE .............................. 4
A. The cities’ and counties’ publicnuisance suits............................................. 4
B. Proceedings in the district court ............... 8
C. Proceedings in the Ninth Circuit
and this Court ............................................ 9
REASONS FOR GRANTING THE
PETITION ........................................................... 10
I. WHETHER CLAIMS NECESSARILY AND
EXCLUSIVELY GOVERNED BY FEDERAL
LAW MAY BE REMOVED TO FEDERAL
COURT IS AN IMPORTANT AND
RECURRING ISSUE THAT HAS DIVIDED
THE CIRCUITS. ............................................... 11
A. The Ninth Circuit’s Decision
Deepens A Circuit Conflict Over
When Nominally State-Law Claims
May Be Removed. .................................... 11
ix
B. This Case Also Implicates A
Conflict Among The Courts Of
Appeals Over Whether Federal Law
Necessarily And Exclusively
Governs Claims Based On
Transboundary Emissions. ..................... 17
II. THE DECISION BELOW WAS WRONGLY
DECIDED......................................................... 21
III. THIS CASE RAISES AN IMPORTANT
QUESTION THAT WARRANTS THE
COURT’S REVIEW. ........................................... 29
CONCLUSION .................................................... 31
x
TABLE OF APPENDICES
Page
APPENDIX A: Opinion of the United States
Court of Appeals for the Ninth Circuit
(Apr. 19, 2022) ..................................................... 1a
APPENDIX B: Order of the United States
District Court for the Northern District of
California Granting Motions to Remand
(Mar. 16, 2018) .................................................. 57a
APPENDIX C: Order of the United States
District Court for the Northern District of
California Granting Motions to Remand
(July 10, 2018) ................................................... 65a
APPENDIX D: Order of the United States
Court of Appeals for the Ninth Circuit
Denying Rehearing En Banc
(June 27, 2022) .................................................. 67a
xi
TABLE OF AUTHORITIES
Page(s)
Cases
Al-Qarqani v. Chevron Corp.,
8 F.4th 1018 (9th Cir. 2021) ................................ 27
Am. Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011) .................................... 5, 23, 26
Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006) .............................................. 27
Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398 (1964) .............................................. 22
BMW of N. Am., Inc. v. Gore,
517 U.S. 559 (1996) .............................................. 22
Bd. of Cnty. Comm’rs of Boulder Cnty.
v. Suncor Energy (U.S.A.) Inc.,
25 F.4th 1238 (10th Cir. 2022) .......... 15, 16, 20, 21
BP P.L.C. v. Mayor & City Council of
Baltimore,
141 S. Ct. 1532 (2021) ............................................ 9
California v. Gen. Motors Corp.,
2007 WL 2726871 (N.D. Cal. Sept.
17, 2007) ................................................................. 5
Chevron Corp. v. San Mateo Cnty.,
141 S. Ct. 2666 (2021) ............................................ 9
City of Hoboken v. Chevron Corp.,
45 F.4th 699 (3d Cir. 2022) .................................. 16
xii
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) ............................ 19, 23, 25, 27
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021) ................ 17, 18, 19, 20,
26, 27, 28
Direct Mktg. Ass’n v. Brohl,
575 U.S. 1 (2015) .................................................. 29
Federated Dep’t Stores, Inc. v. Moitie,
452 U.S. 394 (1981) .............................................. 25
Franchise Tax Bd. v. Constr. Laborers
Vacation Tr.,
463 U.S. 1 (1983) .................................................. 25
Georgia v. Tenn. Copper Co.,
206 U.S. 230 (1907) ........................................ 22, 26
Grable & Sons Metal Prods., Inc. v.
Darue Eng’g & Mftg.,
545 U.S. 308 (2005) ................................................ 9
Hertz Corp. v. Friend,
559 U.S. 77 (2010) ................................................ 30
Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743 (2019) .................................... 11, 24
Illinois v. City of Milwaukee,
406 U.S. 91 (1972) .................................... 11, 18, 23
Int’l Paper Co. v. Ouellette,
479 U.S. 481 (1987) .............................................. 23
xiii
Kansas v. Colorado,
206 U.S. 46 (1907) ................................................ 22
Nat’l Farmers Union Ins. Cos. v. Crow
Tribe of Indians,
471 U.S. 845 (1985) .............................................. 24
Native Vill. of Kivalina v. ExxonMobil
Corp.,
663 F. Supp. 2d 863 (N.D. Cal. 2009) .................... 4
Native Village of Kivalina v.
ExxonMobil Corp.,
696 F.3d 849 (9th Cir. 2012) .............................. 5, 6
Newton v. Capital Ins. Co.,
245 F.3d 1306 (11th Cir. 2001) ............................ 13
Oneida Indian Nation v. Cnty. of
Oneida,
414 U.S. 661 (1974) .............................................. 27
In re Otter Tail Power Co.,
116 F.3d 1207 (8th Cir. 1997) ........................ 12, 13
Republic of Philippines v. Marcos,
806 F.2d 344 (2d Cir. 1986) ................................. 14
Rhode Island v. Shell Oil Prod. Co.,
35 F.4th 44 (1st Cir. 2022) ............................. 20, 21
Sam L. Majors Jewelers v. ABX, Inc.,
117 F.3d 922 (5th Cir. 1997) ................................ 12
Tennessee v. Davis,
100 U.S. 257 (1879) .............................................. 29
xiv
Tex. Indus., Inc. v. Radcliff
Materials, Inc.,
451 U.S. 630 (1981) .................................. 23, 27, 28
Torres v. S. Peru Copper Corp.,
113 F.3d 540 (5th Cir. 1997) ................................ 14
United States v. Sisson,
399 U.S. 267 (1970) .............................................. 30
United States v. Standard Oil Co. of
California,
332 U.S. 301 (1947) ........................................ 19, 27
United States v. Swiss Am. Bank, Ltd.,
191 F.3d 30, 43 (1st Cir. 1999) ...................... 19, 27
Vaden v. Discover Bank,
556 U.S. 49 (2009) ................................................ 25
Statutes
28 U.S.C. § 1441(a) .............................................. 11, 12
28 U.S.C. § 1442(a)(1) ................................................. 8
Secondary Sources
14C Wright & Miller, Fed. Prac. & Proc.
Juris. § 3722.1 (4th ed.) ....................................... 25
FACT SHEET: President Biden to Announce
New Actions to Strengthen U.S. Energy
Security, Encourage Production, and
Bring Down Costs, White House Briefing
Room (Oct. 18, 2022),
https://tinyurl.com/2p8z6mee .............................. 30
PETITION FOR A WRIT OF CERTIORARI
Petitioners Chevron Corporation, Chevron U.S.A.,
Inc., BP p.l.c., BP America Inc., ConocoPhillips, ConocoPhillips Company, Exxon Mobil Corporation, Shell
plc (f/k/a Royal Dutch Shell plc), Shell Oil Products
Company LLC, Anadarko Petroleum Corporation,
Phillips 66, Apache Corporation, Eni Oil & Gas Inc.,
Rio Tinto Energy America Inc., Rio Tinto Minerals
Inc., Rio Tinto Services Inc., Devon Energy Corporation, Devon Energy Production Company, L.P., Total
E&P USA, Inc., Total Specialties USA, Inc., Ovintiv
Canada ULC, CITGO Petroleum Corporation, Hess
Corporation, Repsol Energy North America Corporation, Repsol Trading USA Corporation, Marathon Oil
Company, Marathon Oil Corporation, Marathon Petroleum Corporation, Occidental Petroleum Corporation, and Occidental Chemical Corporation respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the
Ninth Circuit in this case.
OPINIONS BELOW
The opinion of the Ninth Circuit is reported at 32
F.4th 733. App. 1a–56a. The order denying petitioners’ timely petition for rehearing en banc is not reported. App. 67a–69a. The district court’s order in
County of San Mateo v. Chevron Corp. is reported at
294 F. Supp. 3d 934. App. 57a–64a. The district
court’s order in County of Santa Cruz v. Chevron Corp.
is not reported. App. 65a–66a.
JURISDICTION
The Ninth Circuit issued its opinion on April 19,
2022, and denied rehearing en banc on June 27, 2022.
2
On August 31, 2022, Justice Kagan extended the time
within which to file a petition for a writ of certiorari
until November 24, 2022. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
28 U.S.C. § 1331 provides: “The district courts
shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.”
28 U.S.C. § 1441(a) provides: “[A]ny civil action
brought in a State court of which the district courts of
the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending.”
INTRODUCTION
Respondents are six California political subdivisions that have asked California state courts to apply
California state nuisance and trespass law to impose
massive monetary liability on petitioners—a group of
30 energy companies—for harms allegedly attributable to global climate change. This suit is just one of
nearly two dozen actions that have been filed in state
courts across the country, from Rhode Island to Hawaii, as part of a coordinated campaign to use state
common law to hold some but not all of the energy industry liable for global climate change, a phenomenon
that, on respondents’ own theory, is the cumulative
result of billions of individual decisions stretching
back more than a century. If respondents’ unprece-
3
dented effort to transform state courts into global climate-change regulators succeeds, every state court in
the Nation will be empowered to use state law to unilaterally impose its own view of energy and environmental policy nationwide and, indeed, worldwide.
Under our constitutional structure, however, these
claims necessarily arise under federal law alone. As
this Court has repeatedly held, a State cannot use its
own law to obtain relief for harms allegedly caused by
out-of-state emissions. Rather, claims concerning interstate and international emissions are inherently
federal in nature and, accordingly, are governed exclusively by federal law, even when they are nominally pleaded under state law.
This case presents the question whether these inherently federal claims can be removed to federal
court. The Ninth Circuit held that they could not. In
so holding, the court deepened a circuit conflict over
whether federal district courts have subject-matter jurisdiction over claims necessarily and exclusively governed by federal law that are nominally pleaded under
state law.
Not only are the circuits divided over this question,
but this Court also recently invited the Solicitor General to file a brief expressing the views of the United
States on this question in Suncor Energy (U.S.A.) Inc.
v. Board of County Commissioners of Boulder County,
No. 21-1550. The United States has previously taken
the position that climate-change claims of this sort are
removable because they are inherently and necessarily federal in nature.
The significance of these cases supports immediate
review. Respondents’ claims expose the energy sector
4
to vast, indeterminate monetary relief that will deter
investment and employment across the industry and
the broader economy, and cause disruption to the
global economy. These cases will also disrupt and impede the political branches’ international climatechange initiatives and negotiations. And these cases
threaten to impose a patchwork of conflicting tort
standards applicable to global production, marketing,
and emissions under the laws of multiple States. This
Court should decide whether these cases are governed
by federal law and removable to federal court.
Because this petition presents the same issues as
those presented in Suncor, it should be held pending
the Court’s disposition of that case. If the Court does
not grant review in Suncor, this petition should be
granted.
STATEMENT OF THE CASE
A. The cities’ and counties’ public-nuisance
suits
This case is another in a long series of climate
change-related nuisance actions that “seek[] to impose
liability and damages on a scale unlike any prior environmental pollution case.” Native Vill. of Kivalina
v. ExxonMobil Corp., 663 F. Supp. 2d 863, 876 (N.D.
Cal. 2009). For nearly two decades, state and local
governments, working with private plaintiffs’ lawyers, have tried to use novel tort claims in an attempt
to regulate global greenhouse-gas emissions by imposing massive civil liability on a selection of energy and
other companies that produce goods and services essential to modern life.
5
The first wave of such lawsuits asserted nuisance
claims against automobile companies for alleged contributions to climate change. See California v. Gen.
Motors Corp., 2007 WL 2726871 (N.D. Cal. Sept. 17,
2007) (dismissing state and federal common-law nuisance claims against automakers based on emissions
for failing to state a claim and because claims were
not justiciable).
The next round of litigation attempted to use federal common law to enjoin emissions from power
plants. In July 2004, a group of private and public
entities sought to enjoin emissions from five power
companies on the ground that their “carbon-dioxide
emissions created a substantial and unreasonable interference with public rights, in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law.” Am. Elec. Power Co. v.
Connecticut, 564 U.S. 410, 418 (2011) (“AEP”) (internal quotation marks omitted). This Court stated that
such claims were “meet for federal law governance”
and that “borrowing the law of a particular State
would be inappropriate.” Id. at 422. Turning to the
merits, the Court held that federal common law did
not provide a remedy because “the Clean Air Act and
the EPA actions it authorizes displace any federal
common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired powerplants.” Id.
at 424.
The third wave of litigation again invoked federal
common law, but this time in actions seeking damages
for harms allegedly attributable to global climate
change rather than an injunction against emissions.
In Native Village of Kivalina v. ExxonMobil Corp., 696
6
F.3d 849 (9th Cir. 2012), the plaintiffs “s[ought] damages under a federal common law claim of public nuisance” allegedly for harm caused by climate change to
a coastal community in Alaska, id. at 853. Although
“[t]his case present[ed] the question in a slightly different context” than AEP, the Kivalina court found
this distinction immaterial because this “Court has instructed that the type of remedy asserted is not relevant to the applicability of the doctrine of displacement.” Id. at 857.
In response to these repeated failures, state and
local governments opened a fourth front in their campaign to use the courts to remedy harms allegedly attributable to greenhouse-gas emissions by launching
a series of lawsuits in state court seeking to hold energy companies liable for global climate change under
state common law. Nearly two dozen actions have
been brought under this theory against scores of defendants in state courts across the country, including
in San Francisco, Boulder, Seattle, New York City,
Baltimore, and Hawaii. 1
See, e.g., Cnty. of San Mateo v. Chevron, No. 17-3222 (Cal. Super. Ct. San Mateo Cnty.); City of Imperial Beach v. Chevron, No.
17-1227 (Cal. Super. Ct. Contra Costa Cnty.); Cnty. of Marin v.
Chevron, No. 17-2586 (Cal. Super. Ct. Marin Cnty.); City of Richmond v. Chevron, No. 18-55 (Cal. Super. Ct. Contra Costa Cnty.);
Cnty. of Santa Cruz v. Chevron, No. 17-3242 (Cal. Super. Ct.,
Santa Cruz Cnty.); City of Santa Cruz v. Chevron, No. 17-3243
(Cal. Super. Ct. Santa Cruz Cnty.); City of Oakland v. BP P.L.C.,
No. RG17875889 (Cal. Super. Ct. Alameda Cnty.); City & Cnty.
of San Francisco v. B.P. P.L.C., No. CGC-17-561370 (Cal. Super.
Ct. S.F. Cnty.); Mayor & City Council of Baltimore v. BP P.L.C.,
No. 18-4219 (Balt. Cir. Ct.); Pac. Coast Fed’n of Fishermen’s
Ass’ns, Inc. v. Chevron, No. CGC-18-571285 (Cal. Super. Ct. S.F.
1
7
The cases at issue here are part of this campaign.
They were filed by six California political subdivisions
that each asserted California state tort law claims in
California state court—including claims for trespass
and nuisance. Respondents seek compensatory damages and an injunction requiring oil-and-gas companies “to abate the nuisance[] [caused by sea level rise]”
related to “global warming,” for which they contend
that petitioners “bear a dominant responsibility.” Ct.
App. 3-ER-220, -312. Respondents’ theory is global,
alleging that the “dramatic increase in atmospheric
CO2 and other greenhouse gases is the main driver of
the gravely dangerous changes occurring to the global
climate” and that “Defendants are directly responsible
. . . because of the consumption of their fossil fuel
products.” Ct. App. 3-ER-216–17. And respondents
seek to hold petitioners liable for “caus[ing] global and
local sea levels to rise,” “flooding to become more frequent and more intense,” and “storm surges to become
more frequent and more intense.” Ct. App. 3-ER-310.
Cnty.); King Cnty. v. BP P.L.C., No. 18-2-11859-0 (Wash. Super.
Ct. King Cnty.); State v. Chevron, No. PC-2018-4716 (R.I. Super.
Ct.); Bd. of Cnty. Comm’rs of Boulder v. Suncor Energy (U.S.A.),
No. 2018-CV-030349 (Colo. Dist. Ct.); City & Cnty. of Honolulu
v. Sunoco, No. 20-380 (1st Cir. Haw.); District of Columbia v.
Exxon, No. 2020 CA 002892 B (D.C. Super. Ct.); Cnty. of Maui v.
Sunoco LP, No. 2CCV-20-0000283 (2d Cir. Haw.); State v. BP
Am. Inc., No. N20C-09-097 (Del. Super. Ct.); City of Charleston
v. Brabham Oil Co., No. 2020-CP-10 (S.C. Ct. Com. Pl.); City of
Hoboken v. Exxon Mobil Corp., No. HUD-L-003179-20 (N.J. Super. Ct. Hudson Cnty.); City of Annapolis v. BP P.L.C., No. C-02CV-21-000250 (Md. Cir. Ct. Anne Arundel Cnty.); Anne Arundel
Cnty. v. BP P.L.C., No. C-02-CV-21-000565 (Md. Cir. Ct. Anne
Arundel Cnty.); State v. Exxon Mobil Corp., No. MER-L-00179722 (N.J. Super. Ct. Mercer Cnty.).
8
B. Proceedings in the district court
Respondents—six political subdivisions in California—filed separate actions against petitioners in California state court, alleging that “the dominant cause
of global warming and sea level rise” is worldwide
“greenhouse gas pollution,” Ct. App. 3-ER-216, and
that petitioners, “through their extraction, promotion,
marketing, and sale of their fossil fuel products,
caused approximately 20% of global fossil fuel product-related CO2 between 1965 and 2015, with contributions currently continuing unabated,” Ct. App. 3ER-247. Respondents seek to hold petitioners liable
for “caus[ing] global and local sea levels to rise,”
“flooding to become more frequent and more intense,”
and “storm surges to become more frequent and more
intense.” Ct. App. 3-ER-310. Asserting numerous
causes of action under California tort law, including
for trespass and public and private nuisance, respondents demand compensatory and punitive damages,
disgorgement of profits, abatement of the alleged nuisances, and other relief. Ct. App. 3-ER-312.
Petitioners removed the actions to the U.S. District
Court for the Northern District of California. App.
16a. The notices of removal asserted various bases for
federal jurisdiction, including that respondents’
claims are necessarily governed by and thus arise under federal law, and involve conduct undertaken at
the direction of federal officers under 28 U.S.C.
§ 1442(a)(1). App. 16a.
The district court granted respondents’ motion to
remand the cases to state court. App. 58a–64a, 66a.
9
C. Proceedings in the Ninth Circuit and this
Court
The Ninth Circuit affirmed the remand orders, but
considered only the federal-officer-removal argument,
concluding that it “lacked jurisdiction to review the
appeal from the portions of the remand order that considered the [seven] other bases for subject-matter jurisdiction.” App. 18a.
This Court disagreed, holding that, when a party
seeks appellate review of an order remanding a “case
. . . removed pursuant to section 1442 or 1443,” “the
whole of [that] order bec[omes] reviewable on appeal.”
BP P.L.C. v. Mayor & City Council of Baltimore, 141
S. Ct. 1532, 1538 (2021). Accordingly, the Court vacated the Ninth Circuit’s judgment and remanded for
further proceedings. See Chevron Corp. v. San Mateo
Cnty., 141 S. Ct. 2666 (2021).
On remand, the Ninth Circuit again affirmed the
district court’s remand orders. App. 15a. The court
noted that, “[u]nder the well-pleaded complaint rule,”
plaintiffs “can generally avoid federal jurisdiction if a
federal question does not appear on the face of the
complaint.” App. 20a. The court recognized that petitioners “argue[d] that [respondents’] global-warming claims arise under federal common law.”
App. 20a. But the court held that its precedents recognize only two exceptions to the well-pleaded complaint rule: “(1) the exception articulated in [Grable &
Sons Metal Products, Inc. v. Darue Engineering &
Manufacturing, 545 U.S. 308 (2005)]; and (2) the doctrine of complete preemption.” App. 20a.
The Ninth Circuit concluded that petitioners could
not satisfy Grable, which authorizes removal where a
10
state-law claim necessarily implicates a substantial
federal question; the court held that respondents’
claims “do not require resolution of a substantial question of federal law because they do not require any interpretation of a federal statutory or constitutional issue, and are displaced by the Clean Air Act.” App. 23a
(internal quotation marks omitted). And the Ninth
Circuit held that the complete-preemption doctrine
did not apply here because petitioners’ argument—
which was premised on the structure of the Constitution—did not involve a “federal statute.” App. 24a.
The consequence of this decision is that, in the Ninth
Circuit, claims that are necessarily and exclusively
governed by federal law as a matter of constitutional
structure cannot be removed to federal court when
they are nominally pleaded under state law.
REASONS FOR GRANTING THE PETITION
The Ninth Circuit’s decision deepens an existing
conflict on the question whether federal jurisdiction
under 28 U.S.C. § 1331 exists over claims necessarily
and exclusively governed by federal law but pleaded
under state law. The decision also implicates a circuit
conflict on the question whether federal law necessarily and exclusively governs claims seeking redress
for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions.
This petition should be held pending the Court’s
disposition of Suncor. If the Court denies review in
Suncor, this petition should be granted.
11
I.
WHETHER CLAIMS NECESSARILY AND EXCLUSIVELY GOVERNED BY FEDERAL LAW MAY BE REMOVED TO FEDERAL COURT IS AN IMPORTANT
AND RECURRING ISSUE THAT HAS DIVIDED THE
CIRCUITS.
Congress has authorized removal to federal court
of any case brought in state court over which federal
district courts “have original jurisdiction,” 28 U.S.C.
§ 1441(a), thereby allowing removal of claims when
the plaintiff could have “filed its operative complaint
in federal court” in the first instance, Home Depot
U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019).
And a long line of precedents from this Court has
made clear that claims for damages based on interstate emissions must be governed by federal law
alone, and therefore can arise only under federal law,
not state law. See Illinois v. City of Milwaukee, 406
U.S. 91, 105 n.6, 108 n.10 (1972) (“Milwaukee I”)
(“basic interests of federalism . . . demand[]” that, in
disputes concerning interstate and international
emissions, “[t]he rule of decision [must] be[] federal”).
Yet the Ninth Circuit held that such claims cannot be
removed to federal court. That erroneous decision
deepens one circuit conflict and implicates another.
A. The Ninth Circuit’s Decision Deepens A
Circuit Conflict Over When Nominally
State-Law Claims May Be Removed.
The decision below exacerbates the existing conflict among the federal courts of appeals concerning
whether and when a claim pleaded under state law
arises under federal law for purposes of establishing
removal jurisdiction.
12
1. Several courts of appeals have expressly held
that federal courts have jurisdiction under Section
1331 over claims artfully pleaded under state law but
necessarily governed by federal law—specifically, federal common law.
In Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d
922 (5th Cir. 1997), a shipper sued a carrier in state
court to recover the value of goods that had been lost
in transit, “alleging breach of contract, negligence,
and violations of the Texas deceptive trade practice
law.” Id. at 924. The court noted that, under Section
1441(a), “only actions that originally could have been
filed in federal court can be removed to federal court.”
Ibid. The court then reasoned that there are “three
theories that might support federal question jurisdiction”: where “the complaint raises an express or implied cause of action that exists under a federal statute”; where the relevant “area of law is completely
preempted by the federal regulatory regime”; and
where “the cause of action arises under federal common law principles.” Ibid. (emphases added). Citing
a long tradition in which, “applying federal common
law, federal courts found that civil actions against air
carriers for lost or damaged goods arose under federal
law,” id. at 927–28, the Fifth Circuit held that the
shipper’s ostensibly state-law “negligence action . . .
arises under federal common law,” id. at 929. As a
result, the court concluded that “[it] ha[d] jurisdiction
over this action.” Ibid.
Similarly, the Eighth Circuit has found federal jurisdiction over a removed state-court complaint that
raised putative state-law claims. In re Otter Tail
Power Co., 116 F.3d 1207, 1213–15 (8th Cir. 1997).
The complaint “raise[d] important questions of federal
13
law requiring interpretation of treaties, federal statutes, and the federal common law of inherent tribal
sovereignty.” Ibid. (emphasis added). In that situation, the “plaintiff’s characterization of a claim as
based solely on state law is not dispositive” because
the complaint “necessarily presents a federal question,” and removal is proper. Id. at 1213–14 (internal
quotation marks omitted).
Other cases uphold federal jurisdiction over claims
implicating federal common law using a Grable-type
analysis because the complaint necessarily raises a
substantial question of federal law. The rule of law
announced in these cases is irreconcilable with the
Ninth Circuit’s view that plaintiffs can opt to plead
only state-law claims, and thus avoid removal, in an
area where federal law exclusively governs.
For example, in Newton v. Capital Insurance Co.,
245 F.3d 1306 (11th Cir. 2001), the Eleventh Circuit
considered whether a state-court breach-of-contract
claim brought by the plaintiff against his flood insurer
had been properly removed to federal court. Id. at
1308. The court answered in the affirmative, holding
that the complaint “satisfie[d] § 1331 by raising a substantial federal question on its face” because the contract was a federally subsidized Standard Flood Insurance Policy (“SFIP”), and “SFIP contracts are interpreted using principles of federal common law rather than state contract law.” Id. at 1309.
In addition, the Fifth Circuit has affirmed the removal of “state-law tort claims” against a foreign company—despite the plaintiffs’ invocation of “the wellpleaded complaint rule”—because the case “raise[d]
14
substantial questions of federal common law by implicating important foreign policy concerns.” Torres v. S.
Peru Copper Corp., 113 F.3d 540, 542–43 (5th Cir.
1997).
Likewise, the Second Circuit has upheld federal jurisdiction over claims governed by the federal common
law of foreign relations under a Grable-like theory. In
Republic of Philippines v. Marcos, 806 F.2d 344 (2d
Cir. 1986), the Philippine government sought an injunction in state court against its former president’s
transfer of properties, id. at 346. Although “the face
of the complaint” asserted a claim “more nearly akin
to a state cause of action for conversion,” the Second
Circuit indicated that removal would be proper on the
ground that the case “arises under federal common
law because of the necessary implications of such an
action for United States foreign relations.” Id. at 352–
54. In any event, the court held that removal was
proper because the claim raised, “as a necessary element,” a “federal question to be decided with uniformity as a matter of federal law, and not separately
in each state.” Id. at 354.
Each of these circuits recognizes that claims asserted in an area governed exclusively by federal law
arise under federal law and create federal jurisdiction—however they are pleaded, and whatever approach to federal jurisdiction applies.
2. In the decision below, the Ninth Circuit refused
to follow the approach adopted by these other circuits.
Relying on its prior precedent, the Ninth Circuit held
that there are only two exceptions to the well-pleaded
complaint rule: the Grable doctrine, which permits
the removal of state-law claims that necessarily raise
15
substantial and disputed federal issues, and the doctrine of complete preemption. See App. 20a. The court
rejected the idea that a nominally state-law claim that
necessarily is governed by non-statutory federal law—
such as by federal common law—can be removed to
federal court. In other words, the Ninth Circuit failed
to ask the threshold question whether respondents
engaged in artful pleading by framing their claims in
state-law terms even though they are inherently federal in nature.
Under the Ninth Circuit’s logic, even in a case
where federal law necessarily and exclusively governs
the issues pleaded on the face of the complaint, a district court is bound by the labels the plaintiff applies
to the claims in the complaint. That conclusion conflicts with the decisions of the Second, Fifth, Eighth,
and Eleventh Circuits permitting the removal of putative state-law claims necessarily and exclusively
governed by federal common law.
In addition to the Ninth Circuit, three other courts
of appeals examining similar climate-change suits
have held that Section 1331 does not permit the exercise of jurisdiction over claims necessarily governed by
federal law but pleaded under state law.
In Mayor & City Council of Baltimore v. BP P.L.C.,
a similar climate change case, the Fourth Circuit held
that, under the well-pleaded complaint rule, federal
common law cannot provide a basis for jurisdiction
under Section 1331, and removal is thus improper,
where the plaintiff omits any reference to federal law
in the complaint. 31 F.4th 178, 200 (4th Cir. 2022).
In Board of County Commissioners of Boulder
County v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238
16
(10th Cir. 2022), petition for cert. filed, No. 21-1550,
another identical climate change case, the Tenth Circuit likewise rejected the premise that federal common law provides a basis for removal of claims artfully
pleaded under state law. See id. at 1261. The court
concluded that the “artful pleading” doctrine does not
exist outside of the context of complete preemption, a
doctrine that allows the removal of a state-law claim
where “the pre-emptive force of a statute is so extraordinary that it converts an ordinary state common-law
complaint into one stating a federal claim for purposes
of the well-pleaded complaint rule.” Id. at 1256 (internal quotation marks and citation omitted). The
court held that, because the defendants did not argue
that a “statute” governed the claims, the artful-pleading doctrine was inapplicable. See id. at 1262.
Finally, in City of Hoboken v. Chevron Corp., 45
F.4th 699 (3d Cir. 2022), the Third Circuit reached the
same conclusion. Like the Tenth Circuit, it held that
a federal court can “recharacterize a state law claim
as a federal claim removable to federal court . . . only
when some federal statute completely preempts state
law.” Id. at 707 (cleaned up). The Third Circuit further concluded that federal common law cannot provide a basis for removal of claims artfully pleaded under state law because federal common law provides
only a “garden-variety preemption” defense in that
circumstance. Id. at 708.
*
*
*
Thus, the decision below deepens a widespread
conflict of federal law among the courts of appeals.
Four courts of appeals have held that 28 U.S.C. § 1331
17
provides a basis for jurisdiction over claims necessarily and exclusively governed by federal law but labeled as arising under state law, while four other
courts of appeals, including the Ninth Circuit, have
reached the opposite conclusion. That conflict is developed and entrenched, and the Court’s intervention
is necessary.
B. This Case Also Implicates A Conflict
Among The Courts Of Appeals Over
Whether Federal Law Necessarily And Exclusively Governs Claims Based On Transboundary Emissions.
The question presented in this petition also necessarily encompasses a threshold issue that has divided
the circuits: whether claims seeking relief for harms
allegedly caused by transboundary emissions are necessarily governed by federal law. The Second Circuit
has explained, based on this Court’s precedent, that
claims centered on transboundary emissions “demand
the existence of federal common law” because those
emissions span state and even national boundaries,
and “a federal rule of decision is necessary to protect
uniquely federal interests.” City of New York v. Chevron Corp., 993 F.3d 81, 90 (2d Cir. 2021). Three other
courts of appeals, however, have rejected that conclusion. Granting certiorari in this case would thus enable the Court to resolve that conflict as well.
1. In City of New York, the City alleged that the
defendant energy companies (including some of petitioners here) were liable under state law for injuries
caused by the effects of interstate greenhouse-gas
emissions on global climate change. 993 F.3d at 88.
The Second Circuit described the question before it as
18
“whether municipalities may utilize state tort law to
hold multinational oil companies liable for the damages caused by global greenhouse gas emissions.” Id.
at 85. The court unanimously held that “the answer
is ‘no’”; New York City’s “sprawling” claims, which—
like respondents’—sought “damages for the cumulative impact of conduct occurring simultaneously
across just about every jurisdiction on the planet,”
were “simply beyond the limits of state law” and thus
necessarily were “federal claims” that “must be
brought under federal common law.” Id. at 85, 92, 95.
In reaching this conclusion, the Second Circuit emphasized that, “[f]or over a century, a mostly unbroken string of [this Court’s] cases has applied federal
law to disputes involving interstate air or water pollution.” City of New York, 993 F.3d at 91. Such “quarrels often implicate two federal interests that are incompatible with the application of state law,” namely,
the “overriding need for a uniform rule of decision” on
matters influencing national energy and environmental policy, and “basic interests of federalism.” Id. at
91–92 (internal quotation marks and alteration omitted) (quoting Milwaukee I, 406 U.S. at 105 n.6).
The court explained that application of state law to
the city’s claims would “risk upsetting the careful balance that has been struck between the prevention of
global warming, a project that necessarily requires
national standards and global participation, on the
one hand, and energy production, economic growth,
foreign policy, and national security, on the other.”
City of New York, 993 F.3d at 93.
The Second Circuit rejected the plaintiff’s argument that displacement by the Clean Air Act of any
19
remedy under federal common law allows state law to
“snap back into action.” City of New York, 993 F.3d at
98. Although the Clean Air Act displaces any remedy
under federal common law, it does not displace the entire source of law altogether. See id. at 95 & n.7; accord United States v. Swiss Am. Bank, Ltd., 191 F.3d
30, 43 (1st Cir. 1999) (explaining that United States v.
Standard Oil Co. of Cal., 332 U.S. 301 (1947), established a two-step analysis that first asks whether “the
source of the controlling law [should] be federal or
state” and next considers the separate question
whether that federal law provides for a remedy). The
court explained that the city’s contrary position was
“difficult to square with the fact that federal common
law governed this issue in the first place” because
“where ‘federal common law exists, . . . state law cannot be used.’” Id. at 98 (quoting City of Milwaukee v.
Illinois, 451 U.S. 304, 313 n.7 (1981) (“Milwaukee
II”)). In the Second Circuit’s view, “state law does not
suddenly become presumptively competent to address
issues that demand a unified federal standard simply
because Congress saw fit to displace a federal courtmade standard with a legislative one.” Ibid. Such an
outcome would be “too strange to seriously contemplate.” Id. at 98–99.
2. Several other courts of appeals, considering
identical climate change suits, have squarely rejected
the Second Circuit’s approach in City of New York, creating a clear conflict among the circuits.
Whereas the Second Circuit held that the plaintiff’s climate-change claims necessarily were “federal
claims” that “must be brought under federal common
law,” 993 F.3d at 92, 95, the Fourth Circuit declined
to “follow City of New York,” reasoning that—under
20
the test for fashioning a new rule of federal common
law—the Second Circuit had “fail[ed] to explain a significant conflict between the state-law claims before it
and the federal interests at stake,” Baltimore, 31
F.4th at 202–03. The First Circuit, too, rejected the
argument that federal law governs transboundaryemissions claims, stating that it did not see “how any
significant conflict exists between these federal interests and the state-law claims.” Rhode Island v. Shell
Oil Prod. Co., 35 F.4th 44, 54 (1st Cir. 2022) (cleaned
up). Those courts thus departed from both City of New
York and a long line of precedent in which this Court
has already recognized that federal law alone necessarily governs interstate pollution claims. See City of
New York, 993 F.3d at 91 (“For over a century, a
mostly unbroken string of cases has applied federal
law to disputes involving interstate air or water pollution.” (citing cases)).
Additionally, the First, Fourth, and Tenth Circuits
have explicitly disagreed with the Second Circuit’s
holding that the Clean Air Act’s displacement of a federal common law remedy does not allow state law to
“snap back into action.” City of New York, 993 F.3d at
98. In Suncor, 25 F.4th 1238, the Tenth Circuit held
precisely the opposite, reasoning that federal jurisdiction was not present because, after statutory displacement by the Clean Air Act, the otherwise-applicable
federal common law “no longer exists.” Id. at 1260
(emphasis omitted). The Fourth Circuit similarly departed from the Second Circuit’s holding, rejecting the
view “that any federal common law controls Baltimore’s state-law claims” on the ground that “federal
common law in this area ceases to exist due to statutory displacement.” Baltimore, 31 F.4th at 204. And
21
the First Circuit, too, held that it “cannot rule that any
federal common law controls Rhode Island’s claims”
because “Congress displaced the federal common law
of interstate pollution.” Rhode Island, 35 F.4th at 55–
56.
The First, Fourth, and Tenth Circuits attempted
to distinguish City of New York on the ground that the
Second Circuit did not need to apply the well-pleaded
complaint rule because “the city initiated the action in
federal court.” Suncor, 25 F.4th at 1262; see also Baltimore, 31 F.4th at 203; Rhode Island, 35 F.4th at 55.
But those courts did not explain how this difference in
posture affects the answer to the distinct question
whether federal law necessarily governs the claims at
issue, a substantive question of federal law that requires the same answer regardless of the court in
which a plaintiff chooses to file suit. The explicit conflict over that core question of federal law is squarely
implicated in this case.
II. THE DECISION BELOW WAS WRONGLY DECIDED.
In addition to exacerbating two circuit conflicts,
the Ninth Circuit erred in remanding the case to state
court. Respondents’ claims are necessarily and exclusively governed by federal law, and, accordingly, this
case is removable to federal court.
1. The Ninth Circuit’s decision departed from a
long line of this Court’s precedent making clear that,
under our Constitution’s structure, claims based on
interstate emissions necessarily arise under federal
law, not state law.
In our federal system, each State may make law
within its own borders, but no State may “impos[e] its
22
regulatory policies on the entire Nation,” BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 585 (1996), or dictate
our “relationships with other members of the international community,” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964). The Constitution’s
allocation of sovereignty between the States and the
federal government, and among the States themselves, precludes application of state law in certain areas that are inherently interstate in nature. Allowing
state law to govern such claims would permit one
State to “impose its own legislation on . . . the others,”
violating the “cardinal” principle that “[e]ach state
stands on the same level with all the rest.” Kansas v.
Colorado, 206 U.S. 46, 97 (1907).
For this reason, the Court has made clear that
claims seeking redress for out-of-state emissions must
be governed by federal law alone, and therefore can
arise only under federal law, not state law. The allocation of sovereignty between the States and the federal government prevents applying state law in certain areas that are inherently interstate in nature.
When the States “by their union made the forcible
abatement of outside nuisances impossible to each,”
they necessarily agreed that disputes of that sort
would be governed by federal law. Georgia v. Tenn.
Copper Co., 206 U.S. 230, 237 (1907). Thus, in cases
involving “interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations,” “our federal system does
not permit the controversy to be resolved under state
law” “because the interstate or international nature of
the controversy makes it inappropriate for state law
to control.” Tex. Indus., Inc. v. Radcliff Materials,
Inc., 451 U.S. 630, 641 (1981).
23
Accordingly, this Court has long held unequivocally that, as a matter of constitutional structure,
claims based on interstate and international emissions are necessarily governed exclusively by federal
law. “[T]he basic scheme of the Constitution . . . demands” that “federal common law” govern disputes involving “air and water in their ambient or interstate
aspects.” AEP, 564 U.S. at 421; see also Milwaukee I,
406 U.S. at 105 n.6 (“basic interests of federalism . . .
demand[]” this result). In disputes concerning interstate and international emissions, “[t]he rule of decision [must] be[] federal,” id. at 108 n.10, and “state
law cannot be used” at all, Milwaukee II, 451 U.S. at
313 n.7; see also Int’l Paper Co. v. Ouellette, 479 U.S.
481, 488 (1987) (interstate pollution “is a matter of
federal, not state, law”).
Applying these principles and precedents here, respondents’ claims are necessarily governed by and
“arise under” federal law because they seek damages
based on interstate—and international—greenhousegas emissions. Respondents seek damages for injuries
that they allege are caused by the cumulative impact
of emissions emanating from every State in the Nation and every country in the world, and the claims
are therefore necessarily governed by federal law.
That remains true whether the plaintiff claims
that the defendant emitted greenhouse gases directly
or instead claims that the defendant contributed to
greenhouse-gas emissions by producing and promoting fossil-fuel products. Whatever the allegedly tortious conduct, the alleged injury is the result of greenhouse-gas emissions and their effect on the global climate.
24
The Ninth Circuit nevertheless determined that it
was powerless to hear this case merely because respondents labeled their inherently federal claims as
sounding in state common law. The Ninth Circuit
should have followed this Court’s long line of precedent holding that claims of this sort necessarily arise
under federal law alone, regardless of the labels that
plaintiffs choose to give them.
2. The Ninth Circuit’s error was rooted in its
flawed interpretation of the well-pleaded complaint
rule.
As noted above, because respondents seek to impose liability for injuries allegedly resulting from interstate and international emissions, their claims are
inherently governed by and “arise under” federal law.
Such claims are, in turn, removable to federal court
under federal-question jurisdiction because a defendant can remove any claim that a plaintiff could have
originally filed in federal court. See Home Depot, 139
S. Ct. at 1748. Moreover, this Court has observed that
it is “well settled” that 28 U.S.C. § 1331’s “grant of jurisdiction will support claims founded upon federal
common law.” Nat’l Farmers Union Ins. Cos. v. Crow
Tribe of Indians, 471 U.S. 845, 850 (1985) (internal
quotation marks omitted). Accordingly, respondents’
claims here, based on the alleged harms to respondents arising from global climate change, are governed
by federal law, could have been filed in federal court,
and are therefore removable to federal court.
Under the well-pleaded complaint rule, an action
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
25
U.S. 49, 60 (2009) (internal quotations marks, citation, and alteration omitted). An “independent corollary” to the well-pleaded complaint rule, however, is
that “a plaintiff may not defeat removal by omitting to
plead necessary federal questions.” Franchise Tax
Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 22
(1983). Thus, “courts will not permit plaintiff to use
artful pleading to close off defendant’s right to a federal forum,” and sometimes the well-pleaded complaint rule requires a federal court to “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) (internal quotation marks and citation omitted); see also
14C Wright & Miller, Fed. Prac. & Proc. Juris.
§ 3722.1 (4th ed.) (“[A] plaintiff cannot frustrate a defendant’s right to remove by pleading a case without
reference to any federal law when the plaintiff’s claim
is necessarily federal” or by disguising an “inherently
federal cause of action.”).
The panel’s narrow theory of federal jurisdiction
would result in absurd consequences that are inconsistent with our federal system and common sense. Illinois could sue the City of Milwaukee in state court
under Illinois state law for interstate water pollution,
and Milwaukee would be denied a federal forum to address the interstate dispute. Contra Milwaukee II,
451 U.S. 304. Connecticut could bring suit in state
court under Connecticut state law against an out-ofstate defendant seeking to abate interstate air pollution, and the defendant could not remove to federal
court. Contra AEP, 564 U.S. 410. Or Georgia could
subject a Tennessee company to Georgia law to enjoin
it from discharging fumes across state lines. Contra
26
Tenn. Copper Co., 206 U.S. at 236. The holding of the
panel is irreconcilable with this Court’s rulings that
these claims arise under federal law alone and thus
are properly heard in federal court.
3. The Ninth Circuit also erred in holding that,
even assuming respondents’ claims implicate federal
law, the Clean Air Act had “displaced” the federal
common law of interstate pollution and that such displacement prevented the exercise of removal jurisdiction. App. 23a.
The Ninth Circuit’s reasoning erroneously conflates the merits of respondents’ claims with federal
courts’ jurisdiction over them, breaking from long-established precedent from this Court. As the Second
Circuit made clear in City of New York, although the
Clean Air Act displaces any remedy under federal
common law, it does not displace the entire source of
law altogether, which remains exclusively federal. 993 F.3d at 95 & n.7. Whether a party can obtain a remedy under federal common law is a merits
question distinct from the jurisdictional question
whether federal law must supply the rule of decision
in the first instance.
Indeed, whether a claim arises under state or federal law for jurisdictional purposes turns on which
law governs; it does not depend on whether the plaintiff has stated a viable claim under federal law. Under
this Court’s two-step analytical approach set forth in
United States v. Standard Oil Co. of California, 332
U.S. 301 (1947), courts must: (1) determine whether
the source of law is federal or state based on the nature of the claims asserted and the issues at stake;
and then (2) if federal law is the source, determine the
27
substance of the federal law and decide whether the
plaintiff has stated a viable federal claim for relief under federal law. See Swiss Am. Bank, 191 F.3d at 42–
45 (citing Standard Oil, 332 U.S. at 305). Whether a
claim “arises under” federal law “turns on the resolution of the source question,” not the “substance question.” Id. at 44. And, critically, that “choice-of-law
task is a federal task for federal courts.” Milwaukee
II, 451 U.S. at 349 (Blackmun, J., dissenting) (internal
quotation marks omitted).
Thus, sometimes—as here—federal law governs,
even when the party has no remedy under federal law
on the merits. When “the interstate or international
nature of the controversy makes it inappropriate for
state law to control,” Tex. Indus., 451 U.S. at 641, federal law necessarily governs for “jurisdictional purposes,” even if that claim “may fail at a later stage,”
Oneida Indian Nation v. Cnty. of Oneida, 414 U.S.
661, 675 (1974); see also City of New York, 993 F.3d at
95. Courts must not “conflate[ ]” these distinct “jurisdiction” and “merits-related determination[s].” Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006); see also
Al-Qarqani v. Chevron Corp., 8 F.4th 1018, 1025 (9th
Cir. 2021) (“[I]t has long been understood that a claim
can arise under federal law even if a court ultimately
concludes that federal law does not provide a cause of
action.”).
Nor does the displacement of federal law remedies
mean that respondents can bring their claims under
state law. As the Second Circuit explained, such an
outcome “is difficult to square with the fact that federal common law governed this issue in the first place”
because, “where federal common law exists, it is because state law cannot be used.” City of New York,
28
993 F.3d at 98 (internal quotation marks omitted).
“[S]tate law does not suddenly become presumptively
competent to address issues that demand a unified
federal standard simply because Congress saw fit to
displace a federal court-made standard with a legislative one.” Ibid. Accordingly, statutory displacement
cannot “give birth to new state-law claims,” ibid., because our constitutional structure “does not permit
the controversy to be resolved under state law,” Tex.
Indus., 451 U.S. at 641. Indeed, the Second Circuit
concluded that such an outcome is “too strange to seriously contemplate.” City of New York, 993 F.3d at
98–99. Regardless of displacement, our constitutional
structure requires “a federal rule of decision” for such
claims. Id. at 90.
The Seventh Circuit, too, addressed this same
question on remand after this Court held in Milwaukee II that the Clean Water Act displaced federal common law. The Seventh Circuit noted that this Court
“continue[d] to cite Milwaukee I for the inapplicability
of state law” to interstate pollution disputes “despite
the displacement of federal common law.” Illinois v.
City of Milwaukee, 731 F.2d 403, 409 (7th Cir. 1984)
(“Milwaukee III”). “The very reasons [this] Court gave
for resorting to federal common law in Milwaukee I
are the same reasons why the state . . . cannot apply
its own state law to out-of-state discharges now,” and
“Milwaukee II did nothing to undermine that result.”
Id. at 410. Notwithstanding displacement, the Seventh Circuit held that the interstate pollution claims
were “a problem of uniquely federal dimensions requiring the application of uniform federal standards.”
Id. at 410–11.
29
The Ninth Circuit’s contrary conclusion here is incorrect and conflicts with established precedent of this
Court.
III. THIS CASE RAISES AN IMPORTANT QUESTION
THAT WARRANTS THE COURT’S REVIEW.
This case presents a straightforward vehicle for
the Court to resolve a persistent question concerning
the scope of federal jurisdiction. As this Court’s call
for the views of the Solicitor General in Suncor suggests, this question is legally and practically important and merits the Court’s review. Furthermore,
petitioners’ vital role in maintaining a dependable
supply of oil and gas is a matter of national security,
and a rule of decision on international-emissions-related suits that would open the energy industry to a
patchwork of conflicting state laws and state lawsuits
would undermine this important mission.
1. The question presented in this case concerns
core principles of our federal system—specifically, the
exclusive power of federal law over transboundary
pollution cases and the inability of state law to adjudicate disputes in areas of unique federal importance,
from interstate pollution to foreign affairs to tribal relations.
The Court has long recognized the “great importance” of maintaining clear and uniform rules on
issues relating to removal. Tennessee v. Davis, 100
U.S. 257, 260 (1879); see also Direct Mktg. Ass’n v.
Brohl, 575 U.S. 1, 14 (2015) (“jurisdictional rules
should be clear” (internal quotation marks and brackets omitted)). “Clarity is to be desired in any statute,
but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must
30
expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has
the power to hear a case.” United States v. Sisson, 399
U.S. 267, 307 (1970). Indeed, conflicting and uncertain jurisdictional rules “produce appeals and reversals, encourage gamesmanship, and, again, diminish
the likelihood that results and settlements will reflect
a claim’s legal and factual merits.” Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010).
The Court should take this opportunity to clarify
the enduring role of federal law as the rule of decision
for claims based on interstate and international emissions, and confirm the common-sense conclusion that
claims necessarily and exclusively governed by federal
law are removable to federal court.
2. The case is also important because of petitioners’ vital role in ensuring a steady supply of oil and
gas for domestic use and in support of the U.S. military. The United States currently faces record high
gas prices, and just last month, the White House
called on energy companies to “invest in production
right now” in order to “help[] . . . improve U.S. energy
security and bring down energy prices that have been
driven up” by the conflict in Ukraine. See FACT
SHEET: President Biden to Announce New Actions to
Strengthen U.S. Energy Security, Encourage Production, and Bring Down Costs, White House Briefing
Room
(Oct.
18,
2022),
https://tinyurl.com/2p8z6mee. Against this backdrop, this
case presents a timely opportunity for this Court to
clarify a uniform removal right for energy companies
sued on interstate- and international-emissions-related grounds and to prevent a patchwork of lawsuits
31
in state courts across the country from undermining
this crucial work.
3. Finally, this case is a suitable vehicle for resolving the question presented. The question was pressed
below, fully briefed by the parties, and passed on by
the Ninth Circuit. Petitioners also raised the relevant
issues in their timely petition for rehearing en banc,
which the Ninth Circuit denied. App. 69a.
CONCLUSION
The Court should hold this petition for a writ of
certiorari pending its disposition of Suncor, No. 211550. If the Court does not grant review in Suncor,
this petition should be granted.
32
Respectfully submitted.
Jonathan W. Hughes
ARNOLD & PORTER KAYE
SCHOLER LLP
Three Embarcadero Center,
10th Floor
San Francisco, California
94111-4024
Matthew T. Heartney
John D. Lombardo
ARNOLD & PORTER KAYE
SCHOLER LLP
777 South Figueroa Street,
44th Floor
Los Angeles, California
90017-5844
Nancy Milburn
ARNOLD & PORTER KAYE
SCHOLER LLP
250 West 55th Street
New York, NY 10019-9710
Attorneys for Petitioners BP
P.L.C. and BP AMERICA
INC.
Theodore J. Boutrous, Jr.
Counsel of Record
William E. Thomson
Joshua D. Dick
GIBSON, DUNN
& CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
tboutrous@gibsondunn.com
Thomas G. Hungar
Lochlan F. Shelfer
GIBSON, DUNN &
CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Neal S. Manne
Johnny W. Carter
Erica Harris
Steven Shepard
SUSMAN GODFREY LLP
1000 Louisiana, Suite 5100
Houston, TX 77002
Attorneys for Petitioners
CHEVRON CORP. and CHEVRON U.S.A., INC.
33
Jameson R. Jones
Daniel R. Brody
BARTLIT BECK LLP
1801 Wewatta St., Suite 1200
Denver, Colorado 80202
Raymond A. Cardozo
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, California
94105
Attorneys for Petitioners
CONOCOPHILLIPS and
CONOCOPHILLIPS COMPANY
M. Randall Oppenheimer
Dawn Sestito
O’MELVENY & MYERS LLP
400 South Hope Street
Los Angeles, California
90071-2899
Theodore V. Wells, Jr.
Daniel J. Toal
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON
LLP
1285 Avenue of the Americas
New York, New York 100196064
Kannon Shanmugam
PAUL, WEISS, RIFKIND,
WHARTON, GARRISON
LLP
2001 K Street, NW
Washington, DC 20006-1047
Attorneys for Petitioner
EXXON MOBIL CORPORATION
34
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
Gary T. Lafayette
Brian H. Chun
LAFAYETTE & KUMAGAI
LLP
1300 Clay Street, Suite 810
Oakland, CA 94612
Kevin Orsini
Vanessa A. Lavely
CRAVATH, SWAINE &
MOORE LLP
825 Eighth Avenue
New York, NY 10019
Attorneys for Petitioner
ANADARKO PETROLEUM
CORPORATION
Attorneys for Petitioners
SHELL PLC (F/K/A ROYAL
DUTCH SHELL PLC) and
SHELL OIL PRODUCTS
COMPANY LLC
Steven M. Bauer
Margaret A. Tough
LATHAM & WATKINS LLP
505 Montgomery Street,
Suite 2000
San Francisco, CA 941116538
Attorneys for Petitioner
PHILLIPS 66
Mortimer Hartwell
VINSON & ELKINS LLP
555 Mission Street Suite
2000
San Francisco, CA 94105
Patrick W. Mizell
VINSON & ELKINS LLP
845 Texas Ave.
Suite 4700
Houston, TX 77002
Attorneys for Petitioner
APACHE CORPORATION
35
Bryan A. Merryman
WHITE & CASE LLP
555 S. Flower Street, Suite
2700
Los Angeles, CA 90071-2433
Mark McKane, P.C.
KIRKLAND & ELLIS LLP
555 California Street
San Francisco, California
94104
Attorneys for Petitioner
ENI OIL & GAS INC.
Andrew A. Kassof, P.C.
Brenton Rogers
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, Illinois 60654
Attorneys for Petitioners
RIO TINTO ENERGY
AMERICA INC., RIO TINTO
MINERALS, INC., and RIO
TINTO SERVICES INC.
36
Gregory Evans
MCGUIREWOODS LLP
Wells Fargo Center
South Tower
355 S. Grand Avenue, Suite
4200
Los Angeles, CA 90071-3103
Joy C. Fuhr
Brian D. Schmalzbach
MCGUIREWOODS LLP
800 East Canal Street
Richmond, VA 23219-3916
Attorneys for Petitioners
DEVON ENERGY CORPORATION and DEVON ENERGY PRODUCTION COMPANY, L.P.
Christopher W. Keegan
KIRKLAND & ELLIS LLP
555 California Street
San Francisco, California
94104
Andrew R. McGaan, P.C.
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, Illinois 60654
Anna G. Rotman, P.C.
KIRKLAND & ELLIS LLP
609 Main Street
Houston, Texas 77002
Bryan D. Rohm
TOTAL E&P USA, INC.
1201 Louisiana Street, Suite
1800
Houston, TX 77002
Attorneys for Petitioners
TOTAL E&P USA, INC.
and TOTAL SPECIALTIES
USA, INC.
37
Michael F. Healy
SHOOK HARDY & BACON
LLP
555 Mission Street, Suite
2300
San Francisco, CA 94104
Michael L. Fox
DUANE MORRIS LLP
Spear Tower
One Market Plaza, Suite 2200
San Francisco, CA 941051127
Attorneys for Petitioner
OVINTIV CANADA ULC
(fka “Encana Corporation”)
Robert E. Dunn
EIMER STAHL LLP
99 S. Almaden Blvd., Suite
642
San Jose, CA 95113
Nathan P. Eimer
Lisa S. Meyer
EIMER STAHL LLP
224 South Michigan Avenue,
Ste. 1100
Chicago, IL 60604
Attorneys for Petitioner
CITGO PETROLEUM CORPORATION
38
J. Scott Janoe
BAKER BOTTS LLP
910 Louisiana Street
Houston, Texas 77002-4995
Megan Berge
BAKER BOTTS LLP
101 California Street, Suite
3200
San Francisco, CA 94111
Attorneys for Petitioners
HESS CORP., REPSOL
ENERGY NORTH AMERICA CORP., and
REPSOL TRADING USA
CORP.
Shannon S. Broome
Ann Marie Mortimer
HUNTON ANDREWS
KURTH LLP
50 California Street, Suite
1700
San Francisco, CA 94111
Shawn Patrick Regan
HUNTON ANDREWS
KURTH LLP
200 Park Avenue
New York, NY 10166-0136
Attorneys for Petitioner
MARATHON PETROLEUM
CORPORATION
39
Kevin Orsini
Vanessa A. Lavely
CRAVATH, SWAINE &
MOORE LLP
825 Eighth Avenue
New York, NY 10019
Stephen C. Lewis
R. Morgan Gilhuly
BARG COFFIN LEWIS &
TRAPP, LLP
350 California Street, 22nd
Floor
San Francisco, California
94104-1435
Attorneys for Petitioners
OCCIDENTAL PETROLEUM CORP. and OCCIDENTAL CHEMICAL
CORP.
November 22, 2022
Donald W. Carlson
A. David Bona
CARLSON, CALLADINE &
PETERSON LLP
275 Battery Street,
16th Floor
San Francisco, CA 94111
Attorneys for Petitioners
MARATHON OIL CORPORATION and MARATHON
OIL COMPANY
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