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

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.

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