Respondents Brief — Chevron Corporation, et al., Petitioners v. San Mateo County, California, et al.

Supreme Court briefJan 27, 2023

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No. 22-495

In The

Supreme Court of the United States

Chevron Corp., et al., Petitioners,

County of San Mateo, et al., Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENTS

COUNTY OF SAN MATEO, ET AL.

Victor M. Sher,

Counsel of Record

Matthew K. Edling

Martin D. Quiñones

Katie H. Jones

Quentin C. Karpilow

Sher Edling LLP

100 Montgomery St.,

Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

matt@sheredling.com

marty@sheredling.com

katie@sheredling.com

quentin@sheredling.com

John D. Nibbelin

David A. Silberman

San Mateo County Counsel

400 County Center, 6th Fl.

Redwood City, CA 94063

(650) 363-4250

Brian E. Washington

Marin County Counsel

3501 Civic Center Drive,

Suite 275

San Rafael, CA 94903

(415) 473-6117

Counsel for Respondents—County of San Mateo, City of

Imperial Beach, County of Marin, County of Santa Cruz,

City of Santa Cruz, and City of Richmond

[Additional counsel listed on signature page]

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

49261_Ltrhd.indd

6/11/08

12:44:0

QUESTION PRESENTED

Should this Court create a new exception to the

well-pleaded complaint rule that confers federal question jurisdiction over respondents’ state-law complaints based on petitioners’ assertion that respondents’ claims are “governed by” federal common law

when: (1) the common law on which petitioners purport to rely has been displaced by a federal statute;

(2) the statute does not completely preempt state law;

and (3) petitioners cannot show that respondents’

state-law claims necessarily present a substantial

federal question that could be adjudicated in federal

court without upsetting the federal-state division of

judicial responsibility, as required by Grable & Sons

Metal Products, Inc. v. Darue Engineering & Mfg.,

545 U.S. 308 (2005).

iii

TABLE OF CONTENTS

Page

INTRODUCTION................................................

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

I. Legal Background.......................................

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

REASONS THE PETITION SHOULD

BE DENIED.....................................................

I. There Is No Circuit Conflict.......................

A. The decision below does not conflict

with the pre-Grable cases cited by

petitioners..............................................

B. City of New York does not create any

circuit split.............................................

II. The Decision Below Was Correct...............

A. There is no third exception to the

well-pleaded complaint rule for

state-law claims that were formerly

governed by congressionally displaced

federal common law..............................

B. The Counties’ state-law claims are

not governed by congressionally

displaced federal common law..............

III. The Question Presented Has Minimal

Practical Importance And This Case Is

A Poor Vehicle For Addressing It..............

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

TABLE OF AUTHORITIES

Cases

Page

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011).......................................... 19, 21

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006)..........................................

Atherton v. F.D.I.C.,

519 U.S. 213 (1997)..........................................

Atl. Richfield Co. v. Christian,

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

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964)..........................................

Bd. of Cnty. Commissioners of Boulder

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

25 F.4th 1238 (10th Cir. 2022).............. 2, 8, 12, 21

Beneficial Nat. Bank v. Anderson,

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

Bernhard v. Whitney Nat. Bank,

523 F.3d 546 (5th Cir. 2008)............................

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996)..........................................

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

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

1, 7

California v. ARC Am. Corp.,

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

California v. Rooney,

483 U.S. 307 (1987)..........................................

TABLE OF AUTHORITIES—Continued

Caterpillar Inc. v. Williams,

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

Page

3, 5, 6, 12, 15

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

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

Chevron Corp. v. City of Oakland,

141 S. Ct. 2776 (2021)......................................

City of Hoboken v. Chevron Corp.,

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

2, 8, 10, 12

City of Milwaukee v. Illinois & Michigan,

451 U.S. 304 (1981)................................... 19, 22, 23

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021)......................... 2, 12, 14

City of Oakland v. BP PLC,

969 F.3d 895 (9th Cir. 2020)........................ 2, 8, 24

Cnty. of San Mateo v. Chevron Corp.,

960 F.3d 586 (9th Cir. 2020)............................

Connecticut v. Exxon Mobil Corp.,

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

2021 WL 2389739 (D. Conn. June 2, 2021)....

Edenfield v. Fane,

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

Empire Healthchoice Assurance, Inc. v.

McVeigh,

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

Federated Department Stores, Inc. v. Moitie,

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

vii

TABLE OF AUTHORITIES—Continued

Page

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

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

Franchise Tax Bd. of State of Cal. v. Constr.

Laborers Vacation Tr. for S. Cal.,

463 U.S. 1 (1983).......................................... 4, 5, 15

Georgia v. Tenn. Copper Co.,

206 U.S. 230 (1907)..........................................

Georgia v. Tenn. Copper Co.,

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

Goepel v. Nat’l Postal Mail Handlers Union,

a Div. of LIUNA,

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

Grable & Sons Metal Products, Inc. v. Darue

Engineering & Mfg.,

545 U.S. 308 (2005)...................................... 2, 5, 16

Gully v. First Nat’l Bank,

299 U.S. 109 (1936)..........................................

Gunn v. Minton,

568 U.S. 251 (2013)......................... 3-5, 8, 9, 11, 16

Illinois v. City of Milwaukee,

406 U.S. 91 (1972)............................................ 19, 23

In re Methyl Tertiary Butyl Ether (MTBE)

Prods. Liab. Litig.,

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

In re Otter Tail Power Co.,

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

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987).................................

19, 22, 23

viii

TABLE OF AUTHORITIES—Continued

Page

Jennings v. Rodriguez,

138 S. Ct. 830 (2018)........................................

Kansas v. Colorado,

206 U.S. 46 (1907)............................................

Lorillard Tobacco Co. v. Reilly,

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

Louisville & Nashville R. Co. v. Mottley,

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

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

31 F.4th 178 (4th Cir. 2022).......... 2, 6, 8, 11-14, 20

McKesson v. Doe,

141 S. Ct. 48 (2020).......................................... 4, 26

Merrell Dow Pharms. Inc. v. Thompson,

478 U.S. 804 (1986).......................................... 5, 15

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

Manning,

578 U.S. 374 (2016).................... 5, 8, 16, 17, 19, 26

Metro. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987)........................................ 5, 6, 17

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

Clammers Ass’n,

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

Miree v. DeKalb Cnty., Ga.,

433 U.S. 25 (1977)............................................

Missouri v. Illinois,

180 U.S. 208 (1901).......................................... 20, 23

TABLE OF AUTHORITIES—Continued

Page

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

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

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

Dirs. of War Mem’l Hosp. v. Baker,

314 F. App’x 529 (4th Cir. 2008)..................... 8, 17

Nat’l Farmers Union Ins. Cos. v. Crow

Tribe of Indians,

471 U.S. 845 (1985)..........................................

New Jersey v. City of New York,

283 U.S. 473 (1931).......................................... 21, 23

Newton v. Capital Assurance Co.,

245 F.3d 1306 (11th Cir. 2001)........................

Nicodemus v. Union Pac. Corp.,

440 F.3d 1227 (10th Cir. 2006)........................ 8, 17

Oneida Indian Nation v. Cnty. of Oneida,

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

Provincial Gov’t of Marinduque v. Placer

Dome, Inc.,

582 F.3d 1083 (9th Cir. 2009)..........................

Republic of Philippines v. Marcos,

806 F.2d 344 (2d Cir. 1986).............................

Rhode Island v. Shell Oil Prods. Co.,

35 F.4th 44 (1st Cir. 2022)...................... 2, 8, 12, 14

Rivet v. Regions Bank of Louisiana,

522 U.S. 470 (1998).......................................... 17-19

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

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

TABLE OF AUTHORITIES—Continued

Page

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

117 F.3d 922 (5th Cir. 1997)............................ 10, 11

Tennessee v. Davis,

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

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

451 U.S. 630 (1981).......................................... 19, 26

Torres v. S. Peru Copper Co.,

113 F.3d 540 (5th Cir. 1997)............................

United States v. Standard Oil Co. of California,

332 U.S. 301 (1947)..........................................

Va. Uranium, Inc. v. Warren,

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

Vaden v. Discover Bank,

556 U.S. 49 (2009)............................................ 5, 15

Zschernig v. Miller,

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

Statutes

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

1, 4, 5, 12

28 U.S.C. § 1345...................................................

28 U.S.C. § 1441...................................................

1, 4

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

Other Authorities

14C Wright & Miller, Fed. Prac. & Proc. Juris.

§ 3722.1 (4th ed.)..............................................

INTRODUCTION

More than five years ago, six California counties

and cities (“respondents” or “the Counties”) filed suit

in state court against several major fossil-fuel companies (“petitioners”). As in other climate-deception

cases that have come before this Court, the Counties’

lawsuits seek to hold petitioners liable “for promoting fossil fuels while allegedly concealing their environmental impacts” over many years. BP P.L.C. v.

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

1535 (2021). Although the Counties plead their

claims exclusively under California state law, petitioners removed the cases to federal court on the

grounds that those state-law claims actually “arise

under” federal law for jurisdictional purposes, 28

U.S.C. §§ 1331, 1441. The Ninth Circuit (Ikuta, J.)

rejected those removal grounds, concluding that the

Counties’ state-law claims did not satisfy the requirements of the Grable doctrine or the complete-preemption doctrine—the only two exceptions to the

well-pleaded complaint rule that this Court has ever

recognized. Pet. App. 20a–24a.

Petitioners do not challenge either of those conclusions. Instead, they ask this Court to create a third,

standalone exception to the well-pleaded complaint

rule for state-law claims that are purportedly “governed” by federal common law. Petitioners acknowledge that the Clean Air Act displaced the federal common law of interstate pollution—the same body of

judge-made law upon which they predicate removal.

See Pet. 26–29. Nevertheless, their Petition insists that

congressionally displaced federal common law has the

power to convert state-law claims into federal ones for

purposes of subject-matter jurisdiction. See id. This

Court already denied a nearly identical petition filed in

analogous climate-deception cases brought by other

California cities. See Chevron Corp. v. City of Oakland,

141 S. Ct. 2776 (2021) (No. 20-1089). The Court should

do so again here for three principal reasons.

First, the decision below does not implicate any circuit split. To the contrary, all five circuit courts to consider petitioners’ novel theory of federal-common-law

removal have rejected it.1 Petitioners’ citations to a

handful of decisions that predate this Court’s opinion

in Grable & Sons Metal Prods., Inc. v. Darue Eng’g &

Mfg., 545 U.S. 308 (2005), do not show any tension

between the circuits. Those cases applied outdated jurisdictional tests that have since been clarified and

synthesized into the Grable test, and their judgements

are in any event fully consistent with the decision below. Nor is there any conflict between the Ninth Circuit’s jurisdictional analysis in the Counties’ cases

and the Second Circuit’s preemption analysis in City

of New York v. Chevron Corp., 993 F.3d 81 (2d Cir.

2021). As the First, Second, Third, Fourth, and Tenth

Circuits have all explained, City of New York did not

address any questions of subject-matter jurisdiction

and so cannot say anything about the removability of

climate-deception cases to federal court.

Second, the decision below is correct. Under the century-old well-pleaded complaint rule, arising-under ju-

See Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44, 53–56

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

v. Chevron Corp., 45 F.4th 699, 707–08 (3d Cir. 2022); Mayor &

City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 201–08 (4th

Cir. 2022), petition for cert. filed, No. 22-361; City of Oakland v.

BP PLC, 969 F.3d 895, 906 (9th Cir. 2020), cert. denied, 141 S.

Ct. 2776 (2021); Bd. of Cnty. Commissioners of Boulder Cnty. v.

Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1257–61 (10th Cir.

2022), petition for cert. filed, No. 21-1550.

risdiction generally does not attach to claims pleaded

exclusively under state law. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). This Court has only

ever recognized two narrow exceptions to the rule, and

the Ninth Circuit properly applied them here. There is

no arising-under jurisdiction because (1) the Counties’

state-law claims do not necessarily raise a substantial

federal issue, as required by Grable; and (2) the Counties’ claims are not completely preempted by federal

law, as they are not wholly encompassed by a federal

statutory cause of action that Congress intended to be

exclusive. Pet. App. 20a–24a. This Court has never

recognized a third exception for state-law claims that

are purportedly “governed by” federal common law.

Nor should it. Accepting petitioners’ theory would undermine Grable’s success at bringing “order to [the]

unruly doctrine” of arising-under jurisdiction. See

Gunn v. Minton, 568 U.S. 251, 258 (2013). It would

also result in an unprecedented expansion in the lawmaking powers of the Federal Judiciary, requiring this

Court to hold for the first time that a nonexistent body

of congressionally displaced federal common law can

transmogrify state-law claims into federal ones for

purposes of arising-under jurisdiction.

Finally, the Petition does not raise any important or

recurring questions of law that warrant this Court’s

review. Except for a handful of other climate-deception lawsuits, petitioners cannot identify a single case

that would be affected by their bespoke theory of removing state-law claims based on congressionally displaced federal common law. And contrary to petitioners’ suggestions, neither national security nor national

energy policy will be jeopardized if these climate-deception cases proceed in state court rather than in federal court. After all, “[o]ur system of ‘cooperative judicial federalism’ presumes federal and state courts

alike are competent to apply federal and state law.”

McKesson v. Doe, 141 S. Ct. 48, 51 (2020).

The Petition here is nearly identical to the one filed

in the Boulder climate-deception case. Accordingly, if

the Court grants review in Boulder, it should do the

same here and consolidate the petitions for argument,

thereby ensuring that the Counties have adequate opportunity to present their position to the Court. Conversely, if the Court denies certiorari review of the

Boulder petition, it should reach the same result here

because the two petitions “present[] the same issues,”

as petitioners themselves acknowledge. Pet. 4.

STATEMENT

I. Legal Background

“Federal courts are courts of limited jurisdiction,

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

Congress has, in turn, granted federal district courts

original subject-matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties

of the United States,” and such actions “may be removed by the defendant” from state to federal court.

28 U.S.C. §§ 1331, 1441.

“[U]nder the present statutory scheme as it has existed since 1887,” the Court has applied a “powerful

doctrine,” known as the well-pleaded complaint rule,

which requires jurisdiction under Sections 1331 and

1441 to “be determined from what necessarily appears

in the plaintiff’s statement of his own claim in the bill

or declaration.” Franchise Tax Bd. of State of Cal. v.

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

9–10 (1983) (citation omitted). For more than a century, that rule has been “the basic principle marking the

boundaries of the federal question jurisdiction of the

federal district courts.” Metro. Life Ins. Co. v. Taylor,

481 U.S. 58, 63 (1987). The rule “makes the plaintiff

the master of the claim” such that “he or she may avoid

federal jurisdiction by exclusive reliance on state law.”

Caterpillar, 482 U.S. at 392. “Jurisdiction may not be

sustained on a theory that the plaintiff has not advanced,” Merrell Dow Pharms. Inc. v. Thompson, 478

U.S. 804, 809 n.6 (1986), and cannot be “predicated on

an actual or anticipated defense,” Vaden v. Discover

Bank, 556 U.S. 49, 60 (2009), “including the defense of

pre-emption,” Franchise Tax Bd., 463 U.S. at 14.

There are only two recognized exceptions to the wellpleaded complaint rule. The first is Grable jurisdiction,

a doctrine this Court developed to resolve the lower

courts’ long-standing difficulty in applying the wellpleaded complaint rule where “a question of federal

law is lurking in the background” of a case pleaded

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

109, 117 (1936); see also Merrill Lynch, Pierce, Fenner

& Smith Inc. v. Manning, 578 U.S. 374, 385 (2016) (describing the previous “caselaw construing § 1331” as

“highly ‘unruly’ ”). The Grable doctrine is applicable

only to a “special and small category” of cases in which

“federal jurisdiction over a state law claim will lie if a

federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in

federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S. at 258

(citing Grable, 545 U.S. at 314; Empire Healthchoice

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

The second exception is the doctrine of complete

preemption, which applies only when “the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into

one stating a federal claim for purposes of the well-

pleaded complaint rule.’ ” Caterpillar, 482 U.S. at 393

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

been “reluctant to find that extraordinary pre-emptive

power,” and has identified only three statutes that

have “complete preemption” effect, none of which are

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

II. Facts and Procedural History

Respondents in this action filed six separate lawsuits in California state court in 2017 and 2018, alleging exclusively state-law claims for nuisance, trespass, and products liability. See, e.g., Compl.

¶¶ 179–268, Cnty. of San Mateo v. Chevron Corp., No.

17-CIV-03222 (San Mateo Cnty. Super. Ct. filed July

17, 2017); Pet. App. 15a–16a. As the Ninth Circuit

correctly noted, “the Counties’ claims focus on the defective nature of [petitioners’] fossil fuel products, [petitioners’] knowledge and awareness of the harmful

effects of those products, and [petitioners’] ‘concerted

campaign’ to prevent the public from recognizing those

dangers.” Pet. App. 36a. As in other climate-deception

cases, the Counties’ lawsuits do “not seek to impose

liability on [petitioners] for their direct emissions of

greenhouse gases [or] to restrain [petitioners] from

engaging in their business operations.” Baltimore, 31

F.4 at 195. Instead, the complaints request damages

for harms caused by petitioners’ deception campaigns

and equitable relief to abate the local hazards created

by those campaigns—e.g., infrastructure to protect

the Counties from sea-level rise. Pet. App. 16a. The

“source of tort liability” is therefore petitioners’ “concealment and misrepresentation of the[ir] products’

known dangers,” not their lawful production and sale

of fossil fuels. Baltimore, 31 F.4th at 233.

Petitioners removed the Counties’ cases to federal

court, asserting various theories of federal subject-mat-

ter jurisdiction. See Pet. App. 58a–63a. The district

court granted the Counties’ motions to remand. Id.

57a–64a. The Ninth Circuit affirmed the district court’s

ruling as to federal officer removal under 28 U.S.C.

§ 1442, and held that it lacked appellate jurisdiction to

review the other rejected grounds for removal. Cnty. of

San Mateo v. Chevron Corp., 960 F.3d 586, 598–603

(9th Cir. 2020). After its decision in Baltimore, 141 S.

Ct. 1532, this Court granted certiorari and vacated the

Ninth Circuit’s decision, remanding for consideration

of petitioners’ remaining grounds for removal.

On remand, the Ninth Circuit again affirmed the

district court’s remand order, rejecting each of petitioners’ remaining theories of removal. See Pet. App.

15a–56a. As relevant here, the court concluded that

the Counties’ claims do not arise under federal law for

purposes of subject-matter jurisdiction, relying on its

earlier decision in Oakland. Id. 19a–23a. The court

recognized that there are only two exceptions to the

well-pleaded complaint rule, neither of which supports

removal of the Counties’ cases. Grable does not apply,

the panel explained, because the Counties’ state-law

claims “do not require resolution of a substantial question of federal law,” even assuming that those claims

might have once been governed by federal common

law. Id. 23a (cleaned up). And the complete-preemption exception does not apply, the court continued, because neither the Clean Air Act nor any of the other

federal laws cited by petitioners satisfies the exception’s “two requirements.” Id. 24a.

REASONS THE PETITION SHOULD BE DENIED

I. There Is No Circuit Conflict.

The circuit courts have unanimously rejected identical attempts to remove climate-deception cases

based on a congressionally displaced body of federal

common law that no longer exists. See Rhode Island,

35 F.4th at 53–56; Hoboken, 45 F.4th at 707–08; Baltimore, 31 F.4th at 201–208; Oakland, 969 F.3d at

906; Boulder, 25 F.4th at 1257–1261. Those decisions

do not conflict with any of the pre-Grable cases cited

by petitioners, all of which applied outdated jurisdictional tests that have since been superseded by Grable. Nor do they create any friction with City of New

York, which—by its own terms—did not address any

questions of removal jurisdiction.

A. The decision below does not conflict with

the pre-Grable cases cited by petitioners.

Before Grable, there was no “well-defined test” for

arising-under jurisdiction, Manning, 578 U.S. at 385,

and the “canvas” of opinions across the judiciary

“look[ed] like one that Jackson Pollock got to first,”

Gunn, 568 U.S. at 258. Grable established a straightforward, four-part test for determining when a district court may exercise arising-under jurisdiction

over a case that pleads only state-law claims for relief. See id. The courts of appeals have consistently

and effectively applied that test in a broad range of

cases, including those in which the plaintiff ’s statelaw claims allegedly implicate federal common law.

See, e.g., Mitchell v. Advanced HCS, L.L.C., 28 F.4th

580, 588–89 (5th Cir. 2022); Morgan Cty. War Mem’l

Hosp. ex rel. Bd. of Dirs. of War Mem’l Hosp. v. Baker, 314 F. App’x 529, 533–37 (4th Cir. 2008); Nicodemus v. Union Pac. Corp., 440 F.3d 1227, 1235–37

(10th Cir. 2006).

Although Grable is binding on the circuit courts, petitioners take the perplexing position that the Ninth

Circuit erred when it applied Grable and “refused to

follow the approach adopted by [certain] other cir-

cuits” in decisions predating Grable. Pet. 14. The cases petitioners cite do not evidence any circuit split because those cases would be decided under the Grable

doctrine today and, in any event, do not conflict with

the decision below.

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

14 (8th Cir. 1997), the plaintiff brought a suit for injunctive relief in state court, alleging that the defendant power company failed to comply with a federal

district court order regarding its authority to provide

electrical utility services to a tribal reservation. The

defendant successfully removed the case, based on the

Eighth Circuit’s conclusion that “the plaintiff ’s right

to relief necessarily depends on resolution of a substantial question of federal law” insofar as “the extent

of an Indian Tribe’s authority to regulate nonmembers on a reservation . . . is manifestly a federal question” because “tribal sovereignty is dependent on, and

subordinate to, only the Federal Government.” Id.

(cleaned up). Today, the same question would be resolved by reference to the Grable test, of which a substantial federal question is one of four elements. The

court in Otter Tail agreed that questions of Federal

Indian Law were necessarily raised, substantial, and

actually disputed, and the outcome of the case today

would depend on whether the issue could be adjudicated without upsetting any state-federal divisions of

judicial authority approved by Congress. Gunn, 568

U.S. at 258. Nothing in the Eighth Circuit’s reasoning

conflicts with the Ninth Circuit’s analysis here.

The other cases petitioners cite as using a “Grabletype analysis,” Pet. 13, are similarly consistent with

the Ninth Circuit’s decision below. In those cases, the

appellate courts applied a precursor of the Grable test,

finding federal jurisdiction only because the state-law

claims necessarily raised “a substantial question of

federal law.” See Newton v. Capital Assurance Co.,

245 F.3d 1306, 1308–09 (11th Cir. 2001); Torres v. S.

Peru Copper Co., 113 F.3d 540, 542–43 (5th Cir. 1997);

Republic of Philippines v. Marcos, 806 F.2d 344, 352,

354 (2d Cir. 1986). None of the legal principles articulated in those cases conflicts with the panel’s decision

here, which similarly concluded that the Counties’

claims “do not ‘raise a substantial question of federal

law.’ ” Pet. App. 23a.

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

117 F.3d 922 (5th Cir. 1997). But as “most courts recognize,” that Fifth Circuit decision is “not good law” to

the extent it endorsed a third exception to the wellpleaded complaint rule for federal common law. Hoboken, 45 F.4th at 708. Indeed, the Fifth Circuit has

clearly abandoned any such endorsement in the aftermath of Grable, holding instead that arising-under

jurisdiction encompasses a state-law claim “only if”

the claim satisfies the requirements of Grable or complete preemption. Bernhard v. Whitney Nat. Bank,

523 F.3d 546, 551 (5th Cir. 2008). Post-Grable, the

Fifth Circuit has never cited Sam L. Majors for any

jurisdictional holding, and it has never suggested that

federal common law creates a third exception to the

well-pleaded complaint rule—separate and apart from

Grable and complete preemption.

In any event, Sam L. Majors is by its own terms

narrow, limited, and easily distinguishable from the

Counties’ cases. The court there held that a plaintiff ’s

claims relating to jewelry lost by an airline arose under federal common law because there was a long-recognized, “clearly established federal common law

cause of action against air carriers for lost shipments,”

which Congress had affirmatively “preserv[ed]” in the

Airline Deregulation Act of 1978. 117 F.3d at 928. The

court expressly stated that “[b]ecause we rely upon

the historical availability of this common law remedy,

and the statutory preservation of the remedy, our

holding today is necessarily limited.” Id. at 929 n.16.

As discussed in greater detail below, the circumstances here are exactly opposite: If a federal common law

cause of action ever existed that could have encompassed the Counties’ claims, it has been displaced by

the Clean Air Act. There is no basis to conclude this

case would be decided differently under the Fifth Circuit’s former jurisprudence in Sam L. Majors, or that

the Ninth Circuit would reach a different conclusion

on the facts of Sam L. Majors today.

In short, any perceived tension between petitioners’

pre-Grable cases and the Ninth Circuit’s analysis only

demonstrates Grable’s success at cleaning up an “unruly doctrine.” Gunn, 568 U.S. at 258. Petitioners’ preGrable cases do not establish any present-day circuit

conflict because the Court has since provided clear

guidance in Grable that the circuits have unanimously followed.

City of New York does not create any

circuit split.

There is also no tension between the Second Circuit’s

ordinary preemption analysis in City of New York and

the First, Third, Fourth, Ninth, and Tenth Circuits’ decisions affirming remand of climate-deception cases to

state court. Instead, these decisions can be easily reconciled based on their “completely different procedural

posture[s],” as every court to consider the question has

concluded. Baltimore, 31 F.4th at 203.

In City of New York, the Second Circuit held that

federal common law preempted certain state-law

claims brought against several oil-and-gas companies. 993 F.3d 81. In affirming dismissal of those

claims under Rule 12(b)(6), the court expressly

“reconcile[d] [its] conclusion” about preemption with

the Ninth Circuit’s decision in Oakland and “the parade of [other] recent opinions holding that state-law

claims for public nuisance brought against fossil fuel

producers do not arise under federal law” for purposes of removal jurisdiction. Id. at 93. The Second Circuit acknowledged that, under the well-pleaded complaint rule, “the fact that a defendant might

ultimately prove that a plaintiff ’s claims are preempted under federal law does not establish that they

are removable to federal court.” Id. at 94 (quoting

Caterpillar, 482 U.S. at 398, in parenthetical) (cleaned

up). But because New York City had “filed suit in federal court in the first instance,” the court determined

that it was “free to consider the [defendants’] preemption defense on its own terms, not under the heightened standard unique to the removability inquiry.”

Id. For that reason, the Second Circuit concluded that

its preemption finding did not conflict with “the fleet

of [other] cases” holding that “anticipated defense[s]”—

including defenses based on federal common law—

could not “singlehandedly create federal-question jurisdiction under 28 U.S.C. § 1331 and the

well-pleaded complaint rule.” Id.

The First, Third, Fourth, and Tenth Circuits also

did not discern any conflict between their rejection of

petitioner’s theory of federal-common-law removal

and the Second Circuit’s affirmance of an ordinary

preemption defense in City of New York. See Rhode

Island, 35 F.4th at 55; Hoboken, 45 F.4th at 708; Baltimore, 31 F.4th at 203; Boulder, 25 F.4th at 1262.

Like the Second Circuit, those courts distinguished

City of New York based on its “completely different

procedural posture.” E.g., Baltimore, 31 F.4th at 203.

They acknowledged—as the Second Circuit did—that

the well-pleaded complaint rule prohibits federal

courts from exercising arising-under jurisdiction

based on an ordinary preemption defense. They recognized—as the Second Circuit did—that City of New

York resolved an ordinary preemption defense, not

any question of federal subject-matter jurisdiction.

And so they concluded—as the Second Circuit did—

that City of New York’s ordinary preemption analysis

sheds no light on the removability of state-law claims

to federal courts.2

Contrary to petitioners’ assertions, then, these circuit courts did adequately “explain how th[e] difference in [procedural] posture” distinguished City of

New York from their rejection of petitioners’ theory of

federal-common-law removal. Pet. 21. And in any

event, this Court does not grant certiorari to line edit

the opinions of lower courts. See California v. Rooney,

483 U.S. 307, 311 (1987) (“The fact that the Court of

Appeal reached its decision through analysis different

than this Court might have used does not make it appropriate for this Court to rewrite the California

court’s decision, or for the prevailing party to request

us to review it.”).

Moreover, even if City of New York’s ordinary preemption analysis were relevant to the question of

removal jurisdiction, it would not apply to the specific claims pleaded by the Counties, all of which rest

A federal district court in the Second Circuit reached the same

conclusion, holding that City of New York did not control the removal of a climate-deception lawsuit because that decision only

concerned an ordinary preemption defense. Connecticut v. Exxon

Mobil Corp., No. 3:20-CV-1555 (JCH), 2021 WL 2389739, at *7 n.7

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

on different factual allegations and target qualitatively different types of tortious conduct. In City of

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

conduct on which it premised liability was “lawful

commercial activity,” namely: the defendant’s lawful

production, promotion, and sale of fossil fuels. 993

F.3d at 87 (cleaned up). Accordingly, the Second Circuit concluded that the plaintiff ’s claims would “effectively impose strict liability for the damages

caused by fossil fuel emissions,” requiring the defendants to “cease global production altogether” to avoid

ongoing liability. Id. at 93. Because the plaintiff ’s

claims would “regulate cross-border emissions,” the

appellate panel viewed the lawsuit as “no different”

from prior cases in which this Court has applied the

federal common law of interstate pollution. Id. at

92, 93.

By contrast, climate-deception cases like the

Counties’ here “clearly seek[] to challenge the promotion and sale of fossil-fuel products without warning and abetted by a sophisticated disinformation

campaign.” Baltimore, 31 F.4th at 233. The tortious

conduct is therefore petitioners’ alleged “concealment and misrepresentation of [their] products’

known dangers,” not the lawful production and sale

of fossil fuels. For that reason, courts that have considered the question have concluded that the federal

common law of interstate pollution “does not address

the types of acts” that climate-deception cases “seek[]

redress for.” Rhode Island, 35 F.4th at 55. Whether

federal common law should have applied to the emissions-based claims in City of New York does not affect whether federal common law “governs” the deception-based claims brought by the Counties here,

as a basis for subject-matter jurisdiction or otherwise.

II. The Decision Below Was Correct.

The decision below correctly rejected petitioners’

novel third exception to the well-pleaded complaint

rule for state-law claims that are purportedly “governed” by congressionally displaced federal common

law. This Court has only ever recognized two exceptions to the well-pleaded complaint rule (Grable and

complete preemption), and petitioners offer no basis

for creating a third exception. In any event, petitioners’ theory of federal-common-law removal fails for a

second, independent reason: it relies on a body of federal common law that has been displaced by Congress

and that would not encompass the Counties’ claims

even if it still existed.

A. There is no third exception to the

well-pleaded complaint rule for

state-law claims that were formerly

governed by congressionally displaced

federal common law.

A case arises under federal law “only when the

plaintiff ’s statement of his own cause of action shows

that it is based upon federal law.” Vaden, 556 U.S. at

60 (quoting Louisville & Nashville R. Co. v. Mottley,

211 U.S. 149, 152 (1908)). Federal “[j]urisdiction

may not be sustained on a theory that the plaintiff

has not advanced.” Merrell Dow, 478 U.S. at 809 n.6.

Jurisdiction also may not rest on “a federal defense,

including the defense of preemption, even if the defense is anticipated in the plaintiff ’s complaint, and

even if both parties admit that the defense is the

only question truly at issue in the case.” Franchise

Tax Bd., 463 U.S. at 14. As masters of their complaints, plaintiffs “may avoid federal jurisdiction by

exclusive reliance on state law.” Caterpillar, 482

U.S. at 392.

This Court has recognized that, under the well-pleaded complaint rule, there are only two types of state-law

claims that arise under federal law: (1) the “special and

small category” of state-law actions that satisfy Grable,

see, e.g., Gunn, 568 U.S. at 258; and (2) cases completely

preempted by a federal statute that itself creates a

cause of action “Congress intended . . . to be exclusive,”

e.g., Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 9 n.

5 (2003). The Court has recently reiterated that it

“would not expect Congress to take [the] extraordinary

step” of “stripping state courts of jurisdiction to hear

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

“[e]xplicit, unmistakable, and clear” congressional directives will justify such an intrusion on federalism and

state sovereignty. Atl. Richfield Co. v. Christian, 140 S.

Ct. 1335, 1351 (2020).

There is no reason for this Court to grant petitioners’ request for a bespoke jurisdictional test for cases

“governed” by a displaced body of federal common law.

Doing so would undo the progress this Court achieved

in Grable in clarifying the arising-under doctrine. In

fact, the Court rejected in Grable itself an analogous

invitation to create different jurisdictional tests for different sources of federal law. See Grable, 545 U.S. at

320 n.7. The Court discerned “no reason in [the] text

[of Section 1331] or otherwise to draw such a rough

line.” Id. And so rather than creating separate tests for

different types of federal law (e.g., Constitution, statute, common law), the Court developed a single test

that applies comfortably to any category of federal law,

thereby advancing the Court’s stated goal of providing

“jurisdictional tests [that] are built for more than a

single dispute.” Manning, 578 U.S. at 393.

The Court need not revisit that choice, as lower

courts have applied Grable with no apparent difficulty,

including to cases involving federal common law. See,

e.g., Provincial Gov’t of Marinduque v. Placer Dome,

Inc., 582 F.3d 1083, 1090–92 (9th Cir. 2009); Nicodemus, 440 F.3d at 1235–37, Morgan, 314 F. App’x at

533, 535–37. Grable’s success is not surprising because

this flexible test “provides ready answers to jurisdictional questions” and already “gives guidance whenever borderline cases crop up.” Manning, 578 U.S. at

392. The Court should not undermine that success by

adopting the “untested approach” petitioners propose

here, because “forcing courts to toggle back and forth

between [that approach] and the ‘arising under’ standard would undermine consistency and predictability

in litigation.” See Manning, 578 U.S. at 392.

Nor should the Court dramatically expand the artfulpleading doctrine in the manner suggested by petitioners. Petitioners claim 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.” Pet. 15. However, petitioners cite no case where a

court has used federal common law and the artfulpleading doctrine together in this way because no court

has done so. Instead, this Court has treated the artfulpleading doctrine as simply another name for complete

preemption. See Rivet v. Regions Bank of Louisiana,

522 U.S. 470, 475 (1998) (“The artful pleading doctrine

allows removal where federal law completely preempts

a plaintiff ’s state-law claim.”). And so even before Grable, courts recognized that “the only state claims that

are ‘really’ federal claims and thus removable to federal

court, . . . are those that are preempted completely by

federal law,” because artful pleading and complete preemption are two sides of the same coin. Goepel v. Nat’l

Postal Mail Handlers Union, a Div. of LIUNA, 36 F.3d

306, 311–12 (3d Cir. 1994); see also Metro. Life, 481 U.S.

at 63–64 (explaining that complete preemption is so

powerful that it renders state-law claims “necessarily

federal in character”). This Court has never held that

federal common law may completely preempt state law,

and it has never applied the artful-pleading doctrine

outside the complete-preemption context.

None of petitioners’ cited cases call for a contrary

conclusion. Petitioners lean heavily on United States v.

Standard Oil Co. of California, 332 U.S. 301 (1947). In

that case, however, subject-matter jurisdiction undisputedly existed because the United States was the

plaintiff. Id. at 303; 28 U.S.C. § 1345. The Court therefore did not consider any questions of arising-under jurisdiction, much less address whether federal common

law could convert state-law claims into federal ones for

jurisdictional purposes. Oneida Indian Nation v. Cnty.

of Oneida, 414 U.S. 661 (1974), is equally unhelpful to

petitioners. In that case, the plaintiffs expressly pleaded a federal cause of action, alleging that the defendants had interfered with “a current right to possession

conferred [on them] by federal law.” Id. at 666. As a

result, Oneida says nothing about whether and when a

claim pleaded under state law arises under federal law

for purposes of subject-matter jurisdiction.

Petitioners also mistakenly rely on the second footnote in Federated Department Stores, Inc. v. Moitie,

452 U.S. 394, 397 n.2 (1981), to argue that courts evaluating a motion to remand should “determine whether the real nature of the claim is federal, regardless of

plaintiff ’s characterization.” Pet. 25. As this Court explained more than 20 years ago, the “marginal comment” in “Moitie’s enigmatic footnote” “caused considerable confusion in the circuit courts” and “will not

bear the heavy weight lower courts have placed on it.”

Rivet, 522 U.S. at 477–78. The Court thus expressly

limited Moitie to its “case-specific context,” id. at 477,

and it reaffirmed that the artful-pleading doctrine is

synonymous with the complete-preemption doctrine,

id. at 475; see also 14C Wright & Miller, Fed. Prac. &

Proc. Juris. § 3722.1 (4th ed.) (describing how Rivet

delivered “the coup de grace” to “the Moitie footnote”).

Petitioners’ remaining citations to this Court’s case

law fare no better. In fact, most do not even address

subject-matter jurisdiction.3 Those that do either concern jurisdictional disputes that have nothing to do

with arising-under jurisdiction,4 or involve complaints

that—as in Oneida—expressly pleaded a federal cause

of action.5 None of them address the removability of

claims pleaded exclusively under state law.

In summary, petitioners’ novel theory of federalcommon-law removal would undermine Grable and

the artful-pleading doctrine and return lower courts

to the “unruly” and “muddled backdrop” of jurisprudence that Grable was intended to overcome. Manning, 578 U.S. at 385 (cleaned up). Worse still, petitioners’ proposed approach would massively expand

the substantive and jurisdictional powers of federal

judges and introduce grave separation-of-powers and

See, e.g., Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987);

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); BMW

of N. Am., Inc. v. Gore, 517 U.S. 559 (1996); Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907).

Kansas v. Colorado, 206 U.S. 46, 80 (1907); Illinois v. City of

Milwaukee, 406 U.S. 91, 93 (1972) (“Milwaukee I”).

City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 310

(1981) (“Milwaukee II”); Am. Elec. Power Co. v. Connecticut, 564

U.S. 410, 418 (2011) (“AEP”); Nat’l Farmers Union Ins. Cos. v.

Crow Tribe of Indians, 471 U.S. 845, 848 (1985); Arbaugh v. Y&H

Corp., 546 U.S. 500, 503–04 (2006); Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 632 (1981).

federalism problems. That is because, under petitioners’ theory, a federal court could recognize a new area

of federal common law, find that it extinguishes state

law, and then bootstrap its own jurisdiction over a

state-law complaint based on those findings—all without any guidance from Congress. Understandably, no

court has adopted this approach.

B. The Counties’ state-law claims are not

governed by congressionally displaced

federal common law.

Even if this Court were inclined to create a third

exception to the well-pleaded complaint rule, petitioners’ theory of federal-common-law removal would fail

for two additional reasons. First, Congress displaced

the federal common law of interstate pollution—the

very same body of federal common law on which petitioners predicate removal. Second, even if that body of

judge-made law still existed, it would not encompass

the Counties’ state-law claims for failure to warn and

deceptive promotion.

More than a decade ago, this Court made clear that to

the extent any federal common law of interstate pollution previously existed, it was extinguished by Congress’s enactment of the Clean Air Act in 1963. While

this Court once “recognized public nuisance as a federal

common law claim” in the context of “disputes involving

[pollution in] interstate and navigable waters,” the

scope of that federal law was narrowly circumscribed.

Baltimore, 31 F.4th at 204. For example, although the

Court held that “States were permitted to sue to challenge activity harmful to their citizens’ health and welfare” under a federal common law of interstate pollution,6

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

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

it never had occasion to “decide[] whether private citizens . . . or political subdivisions . . . may invoke the federal common law of nuisance to abate out-of-state pollution.” AEP, 564 U.S. at 422 (emphasis added). That is

because Congress amended the Clean Water Act and

displaced any such claim (as this Court acknowledged

in Milwaukee II) before any case arose in which a private party alleged a claim for public nuisance under federal common law based on interstate water pollution.

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

Clammers Ass’n, 453 U.S. 1, 21–22 (1981) (“[W]e need

not decide whether a cause of action may be brought

under federal common law by a private plaintiff” because “the federal common law of nuisance in the area

of water pollution is entirely pre-empted by the more

comprehensive scope of” the Clean Water Act.).

Three decades later in AEP, the Court concluded that

nuisance claims based on interstate air pollution were

displaced by the Clean Air Act. See Boulder, 25 F.4th at

1259 (“What Milwaukee II did to the federal common

law of interstate water pollution, AEP did to the federal

common law of interstate air pollution.”). Importantly,

the Court did not hold, as petitioners contend, that “the

basic scheme of the Constitution” requires the application of a federal rule of decision to claims based on interstate and international emissions. See Pet. 23. To the

contrary, the Court expressly declined to consider the

“academic question whether, in the absence of the Clean

Air Act . . . , the plaintiffs could state a federal commonlaw claim for curtailment of greenhouse gas emissions,”

because “[a]ny such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.” AEP, 564 U.S. at 423.

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

(1931); Milwaukee I, 406 U.S. 91.

Further, the Court has made clear that the preemptive effects of federal common law disappear

once displaced by an act of Congress, leaving the new

statute as the sole basis for any preemption analysis.

The Court in AEP held that because the Clean Air

Act displaced any relevant federal common law, “the

availability vel non of a state lawsuit depends, inter

alia, on the preemptive effect of the federal Act,” not

whatever vestigial preemptive force the federal common law might once have held. Id. at 429. In Ouellette, the Court considered a preemption challenge to

state-law public nuisance claims formerly governed

by the federal common law of interstate water pollution. 479 U.S. at 484, 487. Because the Clean Water

Act had displaced that body of federal judge-made

law, the Court framed the relevant inquiry as whether the Act preempted the plaintiff’s state-law claims—

a question it answered by conducting a traditional

statutory preemption analysis. See id. at 491–500.

Indeed, this approach—looking to operative statutory law rather than displaced common law—upholds

the constitutional structure. This Court has “always

recognized that federal common law is subject to the

paramount authority of Congress,” and it has repeatedly emphasized that “[t]he decision whether to displace state law . . . is generally made not by the federal judiciary, purposefully insulated from democratic

pressures, but by the people through their elected representatives in Congress.” Milwaukee II, 451 U.S. at

313; see also Atherton v. F.D.I.C., 519 U.S. 213, 218

(1997). Under petitioners’ theory, however, a body of

federal common law continues to extinguish state law

even after it has been displaced by a federal statute

and even if Congress included a savings clause in the

federal statute that expressly preserves state-law

claims, as Congress did in the Clean Air Act. As a re-

sult, accepting petitioners’ theory would render Congress powerless to reverse a judicial declaration that

state-law claims are “governed” by federal common

law. That result cannot be reconciled with this Court’s

“commitment to the separation of powers”—a commitment that is “too fundamental” to permit “rel[iance]

on federal common law” after Congress has spoken.

Milwaukee II, 451 U.S. at 315.

In any event, even if congressionally displaced federal common law had the power to preempt state law,

the state-law claims pleaded in the Counties’ complaints have nothing to do with any federal common

law that has ever existed. In the nuisance context, the

Court has recognized a federal common law only where

a State plaintiff ’s cause of action had the purpose and

effect of regulating releases of contaminants from a

specific out-of-state source. See Milwaukee I, 406 U.S.

at 107; New Jersey, 283 U.S. at 477; Georgia, 240 U.S.

at 650; Missouri, 180 U.S. at 241–43; see also Ouellette,

479 U.S. at 488. The Counties’ allegations here and the

relief they seek—all of which sound in consumer protection and public deception—do not fit that mold.

Contrary to petitioners’ mischaracterizations of the

complaints, the Counties seek neither to regulate interstate emissions nor to set climate change policy,

but rather to hold petitioners liable for conducting deceptive marketing tactics while knowingly misrepresenting the dangers of their products. The Counties’

claims seek to vindicate a well-recognized state “interest in ensuring the accuracy of commercial information in the marketplace.” Edenfield v. Fane, 507 U.S.

761, 769 (1993). The allegations target misconduct

that states have long regulated in such recognized areas as “protection of consumers,” Fla. Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132, 150 (1963); “ad-

vertising,” Lorillard Tobacco Co. v. Reilly, 533 U.S.

525, 541–42 (2001); and “unfair business practices,”

California v. ARC Am. Corp., 490 U.S. 93, 101 (1989).

The complaints also seek statutory and tort remedies

that are deeply rooted in “the state’s historic powers

to protect the health, safety, and property rights of its

citizens.” In re Methyl Tertiary Butyl Ether (MTBE)

Prods. Liab. Litig., 725 F.3d 65, 96 (2d Cir. 2013).

As a result, holding petitioners liable for knowing

and deceitful corporate conduct does not implicate—

much less conflict with—any uniquely federal interest, a precondition for applying federal common law.

See Rodriguez v. F.D.I.C., 140 S. Ct. 713, 716 (2020).

Nor does combatting such conduct impermissibly

“launch the State upon a prohibited voyage into a domain of exclusively federal competence.” Zschernig v.

Miller, 389 U.S. 429, 442 (1968) (Stewart, J., concurring). Petitioners’ arguments here rest on a vague

“variety of ‘federal interests,’ ” broadly construed. Pet.

App. 22a (citing Oakland, 969 F.3d at 906–07). But

even traditional conflict preemption analysis (which

cannot support removal) does not countenance a

“freewheeling judicial inquiry into whether a state

statute is in tension with federal objectives,” because

“such an endeavor would undercut the principle that

it is Congress rather than the courts that pre-empts

state law.” Chamber of Com. of U.S. v. Whiting, 563

U.S. 582, 607 (2011) (cleaned up); see, e.g., Miree v.

DeKalb Cnty., Ga., 433 U.S. 25, 29 (1977). “Invoking

some brooding federal interest or appealing to a judicial policy preference should never be enough to win

preemption of a state law.” Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1901 (2019) (leading opinion).

At bottom, there is no existing federal common law

that could apply to the Counties’ claims. The Ninth

Circuit was therefore correct and no further review by

this Court is warranted.

III. The Question Presented Has Minimal

Practical Importance And This Case Is

A Poor Vehicle For Addressing It.

The Question Presented does not warrant this

Court’s review for the additional reasons that it is not

well-presented in this Petition and arises in only a

single, discrete category of cases.

This case is a poor vehicle for addressing petitioners’

theory of federal-common-law removal, even assuming

that novel theory warranted certiorari review. To reverse the judgment below, this Court would need to (1)

conclude that a congressionally displaced body of federal common law governed the Counties’ state-law

claims, and then (2) create a new exception to the wellpleaded complaint rule that stands separate and apart

from both Grable and complete preemption. But the

Ninth Circuit never addressed the first step of petitioners’ theory, holding instead that the well-pleaded complaint rule precluded arising-under jurisdiction “even

if” the Counties’ claims were governed by the displaced

federal common law of interstate pollution. Pet. App.

23a. As a result, this Court would need to function as a

court of “first view,” not “a court of review,” if it were to

grant certiorari here. Jennings v. Rodriguez, 138 S. Ct.

830, 851 (2018) (cleaned up).

Denying certiorari is also appropriate because the

Petition does not present any questions of recurring

importance. To the contrary, petitioners present an

exceedingly narrow and atypical question of subjectmatter jurisdiction: whether defendants can remove

state-law claims to federal court based on congressionally displaced federal common law, even though they

fail to satisfy the requirements of Grable and complete

preemption. The cases affected by the Question Presented are necessarily few in number because federal

common law applies in only a “few,” “restricted” “areas.” Texas Indus., 451 U.S. at 640. Indeed, the only

potentially affected cases that petitioners identify are

other lawsuits targeting the fossil-fuel industry’s climate deception, a vanishingly small fraction of the

thousands of cases remanded to state court each year.

Contrary to petitioners’ vague speculations, moreover, denying certiorari would not “undermine” “national security” or interfere with the “dependable supply of oil and gas.” Pet. 29. Again, the only question

raised in this Petition is whether the Counties’ lawsuits should proceed in state court or federal court. Petitioners cannot seriously argue that the nation’s energy security will be jeopardized if a state court rules

on the merits of the Counties’ claims, rather than a

federal court. As this Court has reaffirmed time and

again, state courts are perfectly capable of applying

federal law and adjudicating federal defenses. See, e.g.,

McKesson, 141 S. Ct. at 51 (“Our system of ‘cooperative

judicial federalism’ presumes federal and state courts

alike are competent to apply federal and state law.”).

Finally, petitioners invoke the need for clarity in jurisdictional rules as a reason for granting certiorari

review. Pet. 29–30. But it is petitioners who seek to

undo the progress that this Court has made in clarifying the “muddled backdrop” of jurisdictional rules

that existed prior to Grable. Manning, 578 U.S. at

385. Courts have no need for a one-off jurisdictional

test that applies only to judge-made federal law, because Grable already “provides ready answers to jurisdictional questions” and already “gives guidance

whenever borderline cases crop up.” Id. at 392.

CONCLUSION

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

Respectfully Submitted,

John D. Nibbelin

David A. Silberman

SAN MATEO COUNTY

COUNSEL

400 County Center, 6th Fl.

Redwood City, CA 94063

(650) 363-4250

Counsel for Respondent

County of San Mateo

Brian E. Washington

MARIN COUNTY COUNSEL

3501 Civic Center Drive, Suite 275

San Rafael, CA 94903

(415) 473-6117

Counsel for Respondent

County of Marin

Jennifer Lyon

Steven E. Boehmer

CITY ATTORNEY FOR

CITY OF IMPERIAL BEACH

8100 La Mesa Boulevard, Suite 200

La Mesa, CA 91942

(619) 440-4444

Counsel for Respondent

City of Imperial Beach

Victor M. Sher

Counsel of Record

Matthew K. Edling

Martin D. Quiñones

Katie H. Jones

Quentin C. Karpilow

SHER EDLING LLP

100 Montgomery St.,

Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

Counsel for Respondents

Jason M. Heath

Melissa Shaw

SANTA CRUZ OFFICE OF

THE COUNTY COUNSEL

701 Ocean Street, Room 505

Santa Cruz, CA 95060

(831) 454-2040

Counsel for Respondent

County of Santa Cruz

Anthony P. Condotti

CITY ATTORNEY FOR

CITY OF SANTA CRUZ

333 Church St.

Santa Cruz, CA 95060

(831) 423-8383

Dave Aleshire

Heather McLaughlin

CITY ATTORNEY’S OFFICE

FOR CITY OF RICHMOND

450 Civic Center Plaza

Richmond, CA 94804

(510) 620-6509

Counsel for Respondent

City of Richmond

Counsel for Respondent

City of Santa Cruz

January 27, 2023

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.