Petition for Writ of Certiorari — Sunoco LP, et al., Petitioners v. City and County of Honolulu, Hawaii, et al.

No.

IN THE

Supreme Court of the United States

_______________

SUNOCO LP, ET AL.,

Petitioners,

v.

CITY AND COUNTY OF HONOLULU, 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]

QUESTIONS PRESENTED

This case is one of numerous lawsuits filed in state

courts seeking to hold energy companies liable for

global climate change based on their worldwide oil

and gas production activities dating back many decades. Petitioners removed this case to federal court

on numerous grounds, including the federal officer removal statute, 28 U.S.C. § 1442, arguing that, under

respondents’ theory of harm, their alleged injuries resulted from petitioners’ cumulative production and

supply of oil and gas, a substantial portion of which

occurred at the direction of federal officers. The Ninth

Circuit, however, affirmed remand on the ground that

the defenses petitioners intended to raise—including

preemption and constitutional defenses—did not arise

out of petitioners’ official federal duties. In so holding,

the Ninth Circuit created a circuit conflict with multiple courts including the Third Circuit, which has rejected that very argument.

The first question presented is:

1. Whether the court of appeals erred in holding

that 28 U.S.C. § 1442 precludes removal by federal officers and persons acting under them unless the removing defendant’s colorable federal defense arises

out of the defendant’s federal duty.

Additionally, this case presents a second question

on which the Court has asked the Solicitor General to

provide the United States’s views in a similar case:

2. 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 Chevron Corporation, Chevron

U.S.A. Inc., Aloha Petroleum, Ltd., Aloha Petroleum

LLC, BHP Group Ltd., BHP Group plc, BP plc, BP

America Inc., ConocoPhillips, ConocoPhillips Company, Exxon Mobil Corporation, ExxonMobil Oil Corporation, Marathon Petroleum Corporation, Phillips

66, Phillips 66 Company, Shell plc (f/k/a Royal Dutch

Shell plc), Shell USA, Inc. (f/k/a Shell Oil Company),

Shell Oil Products Company LLC, Sunoco LP, and

Woodside Energy Hawaii Inc. (f/k/a BHP Hawaii

Inc.).

Petitioner Chevron Corporation is a publicly

traded company. It does not have a parent corporation, and no publicly held company owns more than

10% of its stock.

Petitioner Chevron U.S.A. Inc. is an indirect subsidiary of Chevron Corporation. No publicly traded

corporation owns 10% or more of Chevron U.S.A.’s

stock.

Petitioner Aloha Petroleum, Ltd. is a wholly

owned subsidiary of Sunoco LP. No other publicly

held corporation owns 10% or more of its stock.

Petitioner Aloha Petroleum LLC is a wholly

owned subsidiary of Sunoco LP. No other publicly

held corporation owns 10% or more of its stock.

Petitioner BP plc is a publicly traded corporation

organized under the laws of England and Wales. No

publicly traded corporation owns 10% or more of its

stock.

Petitioner BP America Inc. is a wholly owned indirect subsidiary of BP plc.

iii

Petitioner ConocoPhillips is a publicly traded corporation incorporated under the laws of Delaware

with its principal place of business in Texas. It does

not have a parent corporation, and no publicly held

company owns more than 10% of its stock.

Petitioner ConocoPhillips Company is wholly

owned by ConocoPhillips.

Petitioner Exxon Mobil Corporation is a publicly

traded corporation and has no corporate parent. No

publicly held corporation owns 10% or more of Exxon

Mobil Corporation’s stock.

Petitioner ExxonMobil Oil Corporation’s corporate parent is Mobil Corporation, which owns 100% of

ExxonMobil Oil Corporation’s stock. Mobil Corporation, in turn, is wholly owned by Exxon Mobil Corporation.

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 Phillips 66 has no parent corporation.

The Vanguard Group is the only shareholder owning

10% or more of Phillips 66.

Petitioner Phillips 66 Company is wholly owned

by Phillips 66.

Petitioner Shell plc (f/k/a Royal Dutch Shell plc)

has no parent corporation, and no publicly held company owns 10% or more of its stock.

Petitioner Shell USA, Inc. (f/k/a Shell Oil Company) is a wholly owned indirect subsidiary of petitioner Shell plc (f/k/a Royal Dutch Shell plc).

iv

Petitioner Shell Oil Products Company LLC is a

wholly owned indirect subsidiary of petitioner Shell

plc (f/k/a Royal Dutch Shell plc).

Petitioner Sunoco LP is a publicly traded master

limited partnership, currently listed on the New York

Stock Exchange. Sunoco LP and its general partner,

Sunoco GP LLC, are subsidiaries of Energy Transfer

Operating, L.P. and Energy Transfer LP, which are

publicly traded master limited partnerships listed on

the New York Stock Exchange. No other publicly held

corporation owns 10% or more of Sunoco LP’s stock.

Petitioner Woodside Energy Hawaii Inc. (f/k/a

BHP Hawaii Inc.) is a wholly but indirectly owned

subsidiary of Woodside Energy Group Ltd., a publicly

traded company. No other publicly held company

owns more than 10% of the stock of Woodside Energy

Group Ltd. ∗

Respondents are the City and County of Honolulu,

the Honolulu Board of Water Supply, and the County

of Maui.

∗

BHP Group Ltd. and BHP Group plc were defendants in the

district court and appellants before the court of appeals. However, they do not have an interest in the outcome of this petition

because they were dismissed for lack of personal jurisdiction by

the Circuit Court for the First Circuit, State of Hawaii on April

7, 2022, in the case brought by the City and County of Honolulu

and on May 24, 2022, in the case brought by the County of Maui.

v

RULE 14.1(b)(iii) STATEMENT

This case directly relates to the following proceedings:

United States District Court (D. Haw.):

City & Cnty. of Honolulu v. Sunoco LP, et al.,

No. 20-cv-163 (Feb. 12, 2021).

Cnty. of Maui v. Chevron U.S.A. Inc., et al.,

No. 20-cv-470 (Feb. 12, 2021).

United States Court of Appeals (9th Cir.):

City & Cnty. of Honolulu v. Sunoco LP, et al.,

No. 21-15313 (July 7, 2022).

Cnty. of Maui v. Chevron U.S.A. Inc., et al.,

No. 21-15318 (July 7, 2022).

vi

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................... i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT ........................................ ii

RULE 14.1(b)(iii) STATEMENT ............................. iv

TABLE OF APPENDICES ................................... viii

TABLE OF AUTHORITIES .................................... ix

OPINIONS BELOW ................................................. 1

JURISDICTION ....................................................... 1

STATUTORY PROVISIONS INVOLVED .............. 1

INTRODUCTION ..................................................... 2

STATEMENT ........................................................... 5

A. Background ................................................ 5

B. Facts and procedural history ..................... 7

REASONS FOR GRANTING THE PETITION .... 10

I.

THE NINTH CIRCUIT’S HOLDING CREATES A

CIRCUIT CONFLICT OVER WHETHER THE

“COLORABLE FEDERAL DEFENSE” MUST ARISE

FROM A REMOVING DEFENDANT’S OFFICIAL

DUTIES .............................................................. 11

II. THE DECISION BELOW CONTRADICTS THIS

COURT’S PRECEDENTS AND IS INCORRECT ........ 16

III. THIS CASE RAISES AN IMPORTANT QUESTION

THAT WARRANTS THE COURT’S REVIEW ............ 21

vii

TABLE OF CONTENTS (continued)

Page

IV. THIS CASE PRESENTS ANOTHER IMPORTANT

QUESTION WARRANTING REVIEW: WHETHER

CLAIMS SEEKING REDRESS FOR INJURIES

ALLEGEDLY CAUSED BY TRANSBOUNDARY

EMISSIONS ARE REMOVABLE BECAUSE THEY ARE

GOVERNED NECESSARILY AND EXCLUSIVELY BY

FEDERAL LAW.................................................... 24

CONCLUSION ....................................................... 28

viii

TABLE OF APPENDICES

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Ninth Circuit

(July 7, 2022) ....................................................... 1a

APPENDIX B: Order of the United States District

Court for the District of Hawaii Granting Motions

to Remand (Feb. 12, 2021) ................................. 24a

ix

TABLE OF AUTHORITIES

Cases

Page(s)

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) .............................................. 26

Arizona v. Manypenny,

451 U.S. 232 (1981) ........................................ 18, 19

Baker v. Atl. Richfield Co.,

962 F.3d 937 (7th Cir. 2020) ................................ 13

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) .............................................. 25

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

517 U.S. 559 (1996) .............................................. 25

Butler v. Coast Elec. Power Ass’n,

926 F.3d 190 (5th Cir. 2019) .......................... 13, 14

Caver v. Cent. Ala. Elec. Coop.,

845 F.3d 1135 (11th Cir. 2017) ............................ 14

City of Cookeville v. Upper Cumberland

Elec. Membership Corp.,

484 F.3d 380 (6th Cir. 2007) ................................ 14

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) .............................................. 26

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ....................... 20, 26, 27

x

City of Oakland v. BP PLC,

969 F.3d 895 (9th Cir. 2020) ................................ 28

Cnty. of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022) ................................ 28

In re Commonwealth’s Mot. to Appoint

Counsel Against or Directed to Def.

Ass’n of Phila.,

790 F.3d 457 (3d Cir. 2015) ........... 3, 11, 12, 13, 16

Direct Mktg. Ass’n v. Brohl,

575 U.S. 1 (2015) .................................................. 22

Georgia v. Tenn. Copper Co.,

206 U.S. 230 (1907) .............................................. 25

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ................................................ 22

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) .................................... 26, 27, 28

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) .............................................. 26

Jefferson Cnty. v. Acker,

527 U.S. 423 (1999) .................... 2, 6, 13, 15, 18, 21

Kansas v. Colorado,

206 U.S. 46 (1907) ................................................ 25

Louisville & Nashville R.R. Co. v.

Mottley,

211 U.S. 149 (1908) ................................................ 6

xi

Mesa v. California,

489 U.S. 121 (1989) .................. 6, 12, 17, 18, 20, 22

St. Charles Surgical Hospital, L.L.C. v.

La. Health Service & Indemnity Co.,

935 F.3d 352 (5th Cir. 2019) ................................ 14

Tennessee v. Davis,

100 U.S. 257 (1880) ........................ 7, 12, 17, 18, 22

Tex. Indus., Inc. v. Radcliff Materials,

Inc.,

451 U.S. 630 (1981) .............................................. 25

United States v. Sisson,

399 U.S. 267 (1970) .............................................. 22

Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480 (1983) .............................................. 17

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ................................................ 5

Willingham v. Morgan,

395 U.S. 402 (1969) ........................ 6, 17, 19, 22, 23

Statutes

28 U.S.C. § 1441(a) ...................................... 1, 6, 10, 24

28 U.S.C. § 1442(a) .................................... 5 ,11, 14, 17

28 U.S.C. § 1442(a)(1) ....................... 2, 5, 9, 17, 18, 19

28 U.S.C. § 1442(a)(3) ................................................. 2

xii

Other Authorities

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) ............................................ 23

PETITION FOR A WRIT OF CERTIORARI

Petitioners Chevron Corporation, Chevron U.S.A.

Inc., Aloha Petroleum, Ltd., Aloha Petroleum LLC,

BHP Group Ltd., BHP Group plc, BP plc, BP America

Inc., ConocoPhillips, ConocoPhillips Company, Exxon

Mobil Corporation, ExxonMobil Oil Corporation, Marathon Petroleum Corporation, Phillips 66, Phillips 66

Company, Shell plc (f/k/a Royal Dutch Shell plc),

Shell USA, Inc. (f/k/a Shell Oil Company), Shell Oil

Products Company LLC, Sunoco LP, and Woodside

Energy Hawaii Inc. (f/k/a BHP Hawaii Inc.) 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 39

F.4th 1101. App. 1a–23a. The district court’s order in

City and County of Honolulu v. Sunoco LP is reported

at 2021 WL 531237. App. 24a–45a.

JURISDICTION

The Ninth Circuit issued its judgment on July 7,

2022. On September 21, 2022, Justice Kagan extended the time within which to file a petition for a

writ of certiorari until December 4, 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

2

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.”

28 U.S.C. § 1442(a)(1) provides: “(a) A civil action

or criminal prosecution that is commenced in a State

court and that is against or directed to any of the following may be removed by them to the district court

of the United States for the district and division embracing the place wherein it is pending: (1) The

United States or any agency thereof or any officer (or

any person acting under that officer) of the United

States or of any agency thereof, in an official or individual capacity, for or relating to any act under color

of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.”

INTRODUCTION

Congress empowered federal courts to hear any

claim “for or relating to any act” taken under a federal

officer’s direction. 28 U.S.C. § 1442(a)(1). To qualify

for federal officer removal, a defendant must establish

that the suit is for or relating to “a[n] act under color

of office,” and must also “raise a colorable federal defense.” Jefferson Cnty. v. Acker, 527 U.S. 423, 431

(1999) (alteration in original) (quoting 28 U.S.C.

§ 1442(a)(3)).

This case presents a recurring and important question regarding the “colorable federal defense” requirement that has divided the federal courts of appeals:

whether the federal defense must arise from a defend-

3

ant’s federal duties, or may encompass any federal defense. The Ninth Circuit here limited federal officer

removal to those instances where the removing defendant’s federal defense arises out of the defendant’s

federal duty. See App. 16a–17a. But other courts, like

the Third Circuit, have rejected this position, holding

that “[w]hat matters is that a defense raises a federal

question, not that a federal duty forms the defense.”

In re Commonwealth’s Mot. to Appoint Counsel

Against or Directed to Def. Ass’n of Phila., 790 F.3d

457, 473 (3d Cir. 2015).

Respondents are Hawaii political subdivisions that

have asked Hawaii state courts to apply Hawaii state

law to impose massive monetary liability on petitioners—a group of energy companies—for harms allegedly attributable to global climate change. This suit

is one of nearly two dozen actions that have been filed

in state courts across the country as part of a coordinated campaign to use novel and unprecedented constructions of state common law to hold a subset of the

energy industry liable for global climate change.

Petitioners removed these cases to federal court,

contending, among other grounds, that removal was

appropriate under the federal officer removal statute

because respondents’ complaint encompassed petitioners’ exploration for and production of fossil fuels

at the direction of federal officers. The district court

remanded the cases to state court, and petitioners appealed.

The Ninth Circuit affirmed, rejecting several of petitioners’ bases for federal officer removal because it

concluded that petitioners’ federal defenses—including preemption and constitutional defenses—do not

4

arise from their federal duties. In so holding, the

court’s decision departed from the rule followed by

other courts of appeals. Indeed, under the Ninth Circuit’s holding, most constitutional and preemption defenses would never qualify as a colorable federal defense sufficient to support removal under Section

1442—a result that conflicts with the approach followed by several other circuits.

This case provides an ideal vehicle for addressing

this important and recurring jurisdictional question.

Respondents’ claims expose the energy sector to vast,

indeterminate monetary liability that will deter investment and damage employment in the industry

and across the broader economy. And if these cases

reach judgment in state courts around the country,

they will inevitably create a patchwork of conflicting

tort standards related to the interstate production

and supply of oil and gas under the laws of multiple

States. Before state courts around the nation begin

issuing decisions on these matters, this Court should

first decide whether these cases are governed by federal law and removable to federal court under the federal officer removal statute.

Additionally, this case implicates another question

on which the Court has already requested the views of

the United States. Petitioners argued below that respondents’ claims are also removable under 28 U.S.C.

§ 1331(a) because they are necessarily and exclusively

governed by federal law by virtue of the Constitution’s

structure. See Appellants’ C.A. Br. 64–65. The same

issue is presented in Suncor Energy (U.S.A.) Inc. v.

Board of County Commissioners of Boulder County,

No. 21-1550, in which the Court has called for the

5

views of the Solicitor General. Accordingly, this petition should be held pending the Court’s disposition of

Suncor. If the judgment in Suncor is not overturned,

this petition should be granted.

STATEMENT

A. Background

The federal officer removal statute authorizes removal to federal court of any civil action against “any

officer (or any person acting under that officer) of the

United States . . . for or relating to any act under color

of such office.” 28 U.S.C. § 1442(a)(1). That statute

allows those who help the federal government achieve

federal objectives to defend actions taken under federal direction in federal court, rather than in state

courts that “may reflect ‘local prejudice.’” Watson v.

Philip Morris Cos., 551 U.S. 142, 150 (2007).

In accordance with that overarching purpose, the

statute extends its protection not only to federal officers, but also to “any person acting under” a federal officer. 28 U.S.C. § 1442(a)(1). Thus, the right to removal encompasses private individuals enlisted to

support federal efforts. See Watson, 551 U.S. at 150.

As this Court has recognized, “[t]he words ‘acting under’ are broad,” and their scope in Section 1442(a)

“must be ‘liberally construed’” to further the statute’s

basic purpose: to provide federal officers, and those

acting under their direction, with a federal forum in

which to defend their actions. Id. at 147 (citation

omitted). This Court has long cautioned that, absent

such protection, federal officers and those acting under them could be harassed and their work frustrated

“at any time” “for an alleged offense against the law of

the State, yet warranted by the Federal authority

6

they possess.” Willingham v. Morgan, 395 U.S. 402,

406 (1969) (internal quotation marks omitted).

Generally, actions may be removed to federal court

only if a federal district court would have original jurisdiction over the suit. See 28 U.S.C. § 1441(a).

Thus, for most cases, removal is viable only if the federal question appears on the face of the complaint.

See, e.g., Louisville & Nashville R.R. Co. v. Mottley,

211 U.S. 149, 152 (1908). But the federal officer removal statute is different. Because such cases implicate important interests of the federal government,

Congress granted broad rights of removal for cases

against federal officers and those acting at their behest. Therefore, “suits against federal officers may be

removed despite the nonfederal cast of the complaint;

the federal-question element is met if the defense depends on federal law.” Jefferson Cnty., 527 U.S. at

431.

Accordingly, this Court has recognized two requirements for federal officer removal: a defendant

must establish that the suit is for or relating to “a[n]

act under color of office,” and must “raise a colorable

federal defense.” Jefferson Cnty., 527 U.S. at 431 (alteration in original).

The text of the federal officer removal statute does

not include any requirement of a colorable federal defense. Rather, this Court has inferred that requirement as the necessary predicate for federal jurisdiction. See Mesa v. California, 489 U.S. 121, 136 (1989)

(“[I]t is the raising of a federal question in the officer’s

removal petition that constitutes the federal law under which the action against the federal officer arises

for Art. III purposes.”). Thus, for more than a century,

this Court has allowed federal officer removal as long

as “a Federal question or a claim to a Federal right is

7

raised in the case, and must be decided therein.” Tennessee v. Davis, 100 U.S. 257, 262 (1880).

B. Facts and procedural history

1. Beginning in 2017, state and local governments have filed lawsuits in state courts across the

country against a handful of energy companies, alleging that the companies’ worldwide extraction, production, promotion, and sale of fossil fuels has contributed to global climate change and thereby caused injury. Nearly two dozen actions have been brought under this theory against scores of defendants in state

courts across the country, including in Honolulu,

Maui, San Francisco, Seattle, Boulder, New York

City, and Baltimore. ∗

∗

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. BP P.L.C., No. CGC-17-561370 (Cal. Super.

Ct. S.F. Cnty.); Mayor & City Council of Balt. 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. 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 Cnty. 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

8

2. The cases at issue here are part of this coordinated campaign. The City and County of Honolulu,

the Honolulu Board of Water Supply, and the County

of Maui each asserted various state tort law claims in

Hawaii state court, seeking damages arising from “anthropogenic global warming.” C.A. 8-ER-1533, -1642.

Respondents contend that “pollution from [petitioners’] fossil fuel products plays a direct and substantial

role in the unprecedented rise in emissions of greenhouse gas pollution,” which “is the main driver of”

global climate change, which respondents allege

caused their injuries. C.A. 4-ER-480.

Respondents’ theory is global—it depends on

“worldwide” greenhouse gas emissions since at least

the 1950s. See C.A. 8-ER-1531–32. And respondents

seek to hold petitioners—20 energy companies—liable

for “sea level rise” and “more frequent and intense extreme precipitation events,” “flooding,” “heat waves,”

and “droughts” allegedly resulting from the normal

production, promotion, and sale of fossil fuels. C.A. 8ER-1531. Asserting numerous causes of action nominally under Hawaii state tort law, including for public

and private nuisance, trespass, and failure to warn,

respondents demand compensatory and punitive

damages, disgorgement of profits, abatement of the alleged nuisances, and other relief. C.A. 8-ER-1628–35,

-1640–42.

Petitioners removed both actions to the U.S. District Court for the District of Hawaii. App. 9a. The

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.).

9

notices of removal asserted numerous bases for federal jurisdiction, including that respondents’ claims

involve conduct undertaken at the direction of federal

officers under 28 U.S.C. § 1442(a)(1), and that respondents’ claims necessarily and exclusively arise

under federal law by virtue of constitutional structure. In particular, petitioners explained that they

acted under federal officers by producing and supplying highly specialized, non-commercial grade fuels for

the military, and by producing and supplying a steady

supply of fuels under government control and guidance during World War II. App. 34a–35a. Petitioners

also argued that they acted under federal officers by

producing oil and gas during the Korean War and under the Defense Production Act in the 1970s, by operating the Strategic Petroleum Reserve, by conducting

offshore oil operations via federal leases pursuant to

the Outer Continental Shelf Lands Act, and by operating the federal Elk Hills oil reserve under the

Navy’s supervision. App. 12a.

The district court rejected petitioners’ bases for removal and remanded the cases to state court. App.

36a–39a, 44a–45a.

3. Petitioners appealed to the Ninth Circuit, which

affirmed the remand orders. App. 8a.

Relevant here, the Ninth Circuit rejected federal

officer removal based on petitioners’ provision of specialized fuels to the military and support for wartime

efforts without determining whether those actions

constituted “act[ions] under” a federal officer. App.

11a–12a. Instead, the court held that petitioners’ asserted federal defenses “must arise out of defendant[s’] official duties,” and found that most of petitioners’ “defenses do not flow from official duties,” such as

petitioners’ defenses based on “the First Amendment,”

10

“due process, Interstate and Foreign Commerce

Clauses, foreign affairs doctrine, and preemption.”

App. 16a–17a (cleaned up). In other words, the Ninth

Circuit held that these legal defenses, even if valid,

could not support removal because the defenses did

not arise directly from federal duties. In so holding,

the Ninth Circuit functionally barred federal officer

removal based on most constitutional or statutory

preemption defenses.

For the two duty-related defenses that petitioners

did raise—official immunity and federal contractor

defenses—the Ninth Circuit concluded that petitioners did not plead sufficient facts to make their defenses “colorable.” App. 17a–18a. Notably, however,

the Ninth Circuit did not express that view with respect to petitioners’ other proffered defenses, such as

preemption.

The Ninth Circuit thus concluded that none of petitioners’ defenses qualified as a “colorable federal defense.” App. 12a.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s decision creates a conflict

among the courts of appeals on the important question

whether a defendant’s “colorable federal defense”

must arise from its official duties in order to qualify

for federal officer removal. It also presents another

question that has divided the circuits: whether claims

that necessarily and exclusively are governed by federal law under the Constitution’s structure are removable under 28 U.S.C. § 1441(a).

11

I.

THE NINTH CIRCUIT’S HOLDING CREATES A

CIRCUIT CONFLICT OVER WHETHER THE

“COLORABLE FEDERAL DEFENSE” MUST ARISE

FROM A REMOVING DEFENDANT’S OFFICIAL

DUTIES.

The Ninth Circuit’s decision creates a circuit conflict concerning whether the “colorable federal defense” that is necessary for federal officer removal under 28 U.S.C. § 1442(a) must itself arise from the defendant’s federal duties. That decision squarely conflicts with the rule of law announced by the Third Circuit in In re Commonwealth’s Motion to Appoint Counsel Against or Directed to Defender Association of Philadelphia, 790 F.3d 457 (3d Cir. 2015). Moreover, several other circuits have held that federal preemption

defenses satisfy the colorable federal defense requirement, without regard to whether they arise from a federal duty. The Ninth Circuit’s decision is thus inconsistent with the holdings of other courts of appeals.

That conflict warrants the Court’s resolution.

1. In In re Commonwealth’s Motion, the Third

Circuit rejected the argument that the colorable federal defense must arise from the defendant’s federal

duties, holding instead that “[w]hat matters is that a

defense raises a federal question, not that a federal

duty forms the defense.” 790 F.3d at 473 (emphasis

added).

There, the Commonwealth of Pennsylvania sought

to disqualify attorneys working for the Federal Community Defender Organization for the Eastern District of Pennsylvania (“Federal Community Defender”) from representing clients in state post-conviction proceedings. In re Commonwealth’s Motion, 790

12

F.3d at 461. The Commonwealth sued in Pennsylvania state court, and the Federal Community Defender

removed to federal court. Id. at 465.

The Third Circuit concluded that jurisdiction was

proper under the federal officer removal statute. The

court of appeals first noted that the Federal Community Defender satisfied the “acting under” requirement for federal officer removal because the entire

non-profit organization was “created through the

Criminal Justice Act [(‘CJA’)]” and was “delegated the

authority to provide representation under the CJA

and [18 U.S.C.] § 3599.” 790 F.3d at 469.

The Third Circuit then concluded that the Federal

Community Defender had raised a “colorable federal

defense” to the Commonwealth’s claims. The court

noted that, “[s]ince at least 1880, the Supreme Court

has required that federal officer removal be allowed if,

and only if, ‘it appears that a Federal question or a

claim to a Federal right is raised in the case, and must

be decided therein.’” 790 F.3d at 472–73 (quoting

Mesa, 489 U.S. at 126–27 (quoting Davis, 100 U.S. at

262)). Such a requirement ensures that “federal

courts have Article III jurisdiction over federal officer

removal cases.” Id. at 473. Accordingly, the Third

Circuit concluded that removal was proper because

the Federal Community Defender had raised three

colorable federal defenses—two rooted in preemption

and one rooted in the lack of a private right of action.

See id. at 473–75.

The Commonwealth objected to this conclusion, arguing that “the federal defense must coincide with an

asserted federal duty.” 790 F.3d at 473. But the Third

Circuit rejected this argument, explaining that

“[w]hat matters is that a defense raises a federal question, not that a federal duty forms the defense.” Ibid.

13

Indeed, although many federal officer removal cases

involve duty-based defenses, like official immunity or

federal contractor defenses, “the fact that duty-based

defenses are the most common defenses does not make

them the only permissible ones.” Ibid. (emphasis

added). In reaching that conclusion, the Third Circuit

relied on Jefferson County, in which this Court allowed federal judges to remove a state case based on

the judges’ assertion of an intergovernmental-tax-immunity defense (i.e., a defense not related to their judicial duties). See ibid. (“[T]he judges’ duties did not

require them to resist the tax.” (citing Jefferson Cnty.,

527 U.S. at 437)). Thus, the Third Circuit held that

defenses rooted in, for example, preemption—which

typically raises a purely legal question not related to

specific federal duties—satisfied the “colorable federal

defense” requirement. See also Baker v. Atl. Richfield

Co., 962 F.3d 937, 942 n.1 (7th Cir. 2020) (quoting approvingly the Third Circuit’s statement that “[w]hat

matters is that a defense raises a federal question, not

that a federal duty forms the defense,” and “the fact

that duty-based defenses are the most common defenses does not make them the only permissible

ones”).

2. Several other courts of appeals have also followed this understanding of the “colorable federal defense” requirement in holding that federal preemption

defenses satisfy the requirement without regard to

whether they arise from the asserted federal duty.

The Fifth Circuit in Butler v. Coast Electric Power

Association, 926 F.3d 190 (5th Cir. 2019), found removal proper where defendants asserted a “federal

preemption defense”—specifically, that the Mississippi statute under which the plaintiffs claimed they

were owed a refund of excess patronage capital was

14

preempted by federal loan agreements. Id. at 192,

198–99. Similarly, in St. Charles Surgical Hospital,

L.L.C. v. Louisiana Health Service & Indemnity Co.,

the Fifth Circuit concluded that the defendants’

“preemption defense” was “sufficient for purposes of

the federal officer removal statute.” 935 F.3d 352,

357–58 (5th Cir. 2019). In neither case did the court

require that the preemption defense arise from a federal duty.

Likewise, the Eleventh Circuit has concluded that

a defendant raised a “colorable federal defense” by arguing that federal regulations “concerning equity levels and distribution of patronage capital” preempted

an Alabama state law upon which the plaintiff based

its claims. Caver v. Cent. Ala. Elec. Coop., 845 F.3d

1135, 1146 (11th Cir. 2017). That defense did not

arise out of the federal duty, which was to “bring[]

electricity to rural areas.” Id. at 1144. In setting forth

the standard for a “colorable federal defense,” moreover, the Eleventh Circuit emphasized that it gives “‘a

broad reading’” to § 1442(a) and allows for removal “if

the defense depends on federal law” because “a core

purpose of federal officer removal is to have the validity of the federal defense tried in federal court.” Id. at

1145 (citations omitted).

Likewise, the Sixth Circuit has held that the “colorable federal defense” prong is satisfied when a defendant argues that federal law preempted the plaintiff’s condemnation action under Tennessee law “because the condemnation frustrated the purposes of the

Rural Electrification Act of 1936.” City of Cookeville

v. Upper Cumberland Elec. Membership Corp., 484

F.3d 380, 391 (6th Cir. 2007). The court did not require any showing that the defense arose out of a federal duty.

15

3. The Ninth Circuit’s holding conflicts with the

Third Circuit’s decision in In re Commonwealth’s Motion and sits in serious tension with the approach to

the “colorable federal defense” prong applied by the

Fifth, Sixth, and Eleventh Circuits.

To demonstrate that they had “act[ed] under” a

federal officer, petitioners raised six categories of activities they had undertaken at the direction, supervision, and control of federal officers: (1) the sale of specialized fuels to the U.S. military; (2) the production

of vast quantities of oil and gas for the federal government during World War II; (3) the production of oil

and gas for the U.S. military during the Korean War

and under the Defense Production Act; (4) the operation of the Strategic Petroleum Reserve; (5) offshore

oil operations pursuant to the Outer Continental

Shelf Lands Act; and (6) operating the federal Elk

Hills oil reserve under the Navy’s supervision. App.

11a–16a. Petitioners also raised several “colorable

federal defenses,” including preemption and constitutional protections under the Interstate and Foreign

Commerce Clauses, the Due Process Clause, and the

First Amendment.

The Ninth Circuit rejected the last four categories

of federal officer removal, holding that petitioners

failed to satisfy the first prong of federal officer removal because they did not qualify as “act[s] under

color of office.” Jefferson Cnty., 527 U.S. at 431.

The court did not consider, however, whether the

first two bases for federal officer removal—petitioners’

sale of specialized fuels to the U.S. military and their

production of vast quantities of oil and gas for the federal government during World War II—satisfied the

“acting under” requirement. Instead, the court re-

16

jected those bases for removal on the ground that petitioners had failed to make out a “colorable federal

defense.” App. 11a–12a. Although petitioners had

raised numerous federal defenses, the Ninth Circuit

held that all but the government contractor and official immunity defenses were insufficient to support

removal because they “do not flow from official duties.” App. 17a. The panel announced that a qualifying “defense must arise out of [a] defendant’s official

duties.” App. 16a (cleaned up; citation omitted). Accordingly, the panel rejected petitioners’ “First

Amendment . . . , due process, Interstate and Foreign

Commerce Clauses, foreign affairs doctrine, and

preemption defenses” on that basis. App. 17a.

The Ninth Circuit’s holding squarely conflicts with

the Third Circuit’s decision in In re Commonwealth’s

Motion. The Third Circuit rejected any requirement

that the “colorable federal defense” must “coincide

with an asserted federal duty,” 790 F.3d at 473, directly contrary to the approach taken by the court below. And because the Ninth Circuit’s holding denies

federal officer removal for non-duty-based defenses,

which includes most preemption defenses, its reasoning is inconsistent with the approach followed in the

Fifth, Sixth, and Eleventh Circuits as well. This

Court’s review is therefore necessary.

II. THE DECISION BELOW CONTRADICTS THIS

COURT’S PRECEDENTS AND IS INCORRECT.

The Ninth Circuit’s holding that a “colorable federal defense” “must arise out of defendant’s official duties,” App. 16a (cleaned up), in addition to creating a

circuit conflict, also contradicts a long line of this

Court’s precedents and incorrectly narrows the scope

of federal officer removal under 28 U.S.C. § 1442(a).

17

For almost 150 years, this Court has recognized

the importance of providing a federal forum to adjudicate disputes involving federal officers’ actions challenged under state law. In Davis, this Court explained that, because the federal government “can act

only through its officers and agents, and they must act

within the States,” the United States must have the

power to protect its officers through removal to federal

court, lest state governments harass them with “unfriendly” civil and criminal prosecutions. 100 U.S. at

262–63. “For this very basic reason, the right of removal under § 1442(a)(1) is made absolute whenever

a suit in a state court is for any act ‘under color’ of

federal office, regardless of whether the suit could

originally have been brought in a federal court.”

Willingham, 395 U.S. at 406. Jurisdiction in such

cases “rests on a ‘federal interest in the matter’”—specifically, “the very basic interest in the enforcement of

federal law through federal officials.” Ibid. (citation

omitted).

Congress codified this right of removal for federal

officers in 28 U.S.C. § 1442(a). As this Court explained in Mesa, however, § 1442(a) is a “pure jurisdictional statute[],” meaning that it provides for a federal forum “over a particular class of cases,” but it

“cannot independently support [Article] III ‘arising

under’ jurisdiction.” 489 U.S. at 136 (quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 496

(1983)). Rather, “it is the raising of a federal question

in the officer’s removal petition that constitutes the

federal law under which the action against the federal

officer arises for [Article] III purposes.” Ibid.

For this reason, the Court has long required the

presence of a federal question to allow federal officer

18

removal. As the Court stated in Davis, federal jurisdiction exists so long as “a Federal question or a claim

to a Federal right is raised in the case, and must be

decided therein.” 100 U.S. at 262. Thus, the Court

has made clear that the “colorable federal defense”

prong is necessary simply to ensure that a federal

court is properly exercising jurisdiction over a federal

question. Mesa, 489 U.S. at 136. Any colorable federal defense, regardless of whether it arises out of the

federal duty, suffices to fulfill that rationale.

Accordingly, the Court has never required that the

federal defense arise out of the defendant’s official duties. Rather, the Court has permitted removal even in

cases that are not grounded in a duty-based defense.

For example, in Jefferson County, the Court allowed

federal judges to remove a state case based on their

asserted defense of “intergovernmental tax immunity,” even though the judges were not duty-bound to

oppose the tax. 527 U.S. at 437.

The Ninth Circuit came to its erroneous conclusion

based on this Court’s statement in Arizona v. Manypenny, 451 U.S. 232 (1981), that “[h]istorically, removal under § 1442(a)(1) and its predecessor statutes

was meant to ensure a federal forum in any case

where a federal official is entitled to raise a defense

arising out of his official duties.” Id. at 241. The

Ninth Circuit converted this passing observation into

a requirement by adding the word “must.” See App.

16a (holding that the defense “must ‘arise out of defendant’s official duties’” (quoting Manypenny, 451

U.S. at 241) (cleaned up; emphasis added)). But nothing in Manypenny stated or held that the federal defense “must” arise out of a federal duty; this Court

simply noted that the historical background generally

involved defenses that did so, which is unsurprising,

19

given that federal immunity has long been the first

line of defense against hostile state prosecutions of

federal officers.

Indeed, one of the cases on which Manypenny relies made clear that federal defenses arising from federal duties are the floor, not the ceiling, of federal officer removal. See Manypenny, 451 U.S. at 242 (citing

Willingham, 395 U.S. at 407). In Willingham, the

Court made clear that, “[a]t the very least, [the federal

officer removal statute] is broad enough to cover all

cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.”

395 U.S. at 406–07 (emphasis added). In other words,

the Court in no way limited removal to situations

where the defense arises from the official federal duty;

rather, it contemplated that removal would not be so

limited. And this conclusion was consistent with the

Court’s emphasis that “[t]he federal officer removal

statute is not ‘narrow’ or ‘limited’”; rather, “the right

of removal under [the federal officer removal statute]

is made absolute whenever a suit in a state court is

for any act ‘under color’ of federal office, regardless of

whether the suit could originally have been brought

in a federal court.” Id. at 406.

The Ninth Circuit’s approach also makes little

sense logically. To be sure, federal officer removal is

appropriate only when the dispute concerns a defendant’s official duties. See 28 U.S.C. § 1442(a)(1) (permitting removal of an action “for or relating to any act

under color of such office”). But the panel itself

acknowledged that a separate prong of the federal officer removal test already covers that requirement:

“To establish federal jurisdiction, a defendant must

show” a “nexus between its actions, taken pursuant to

a federal officer’s directions, and [the] plaintiff’s

20

claims.” App. 10a. Grafting an additional federal

duty requirement onto the “colorable federal defense”

prong is thus unnecessary and inappropriate within

the statute’s broader framework. After all, the statutory text says nothing about a colorable federal defense; that element’s sole justification, as explained by

this Court in Mesa, is to ensure federal question jurisdiction under Article III. 489 U.S. at 136. Any “colorable federal defense” achieves that goal.

Moreover, whereas the Ninth Circuit rejected petitioners’ government contractor and official immunity

defenses on the basis that they were not “colorable,”

see App. 17a, the court did not hold that petitioners’

preemption and constitutional defenses were not “colorable.” Nor could it. As the Second Circuit has held,

“sprawling” climate change claims of this sort—which

seek “damages for the cumulative impact of conduct

occurring simultaneously across just about every jurisdiction on the planet”—are “simply beyond the limits of state law” and thus necessarily are “federal

claims” that “must be brought under federal common

law.” City of New York v. Chevron Corp., 993 F.3d 81,

92, 95 (2d Cir. 2021).

The United States has made this same point in

parallel climate change-related cases raising nearly

identical claims: Only federal law, not state law, can

govern these claims because they “seek to apply the

law of an affected State to conduct in another

State.” U.S. Amicus Curiae Br. 27, BP p.l.c. v. Mayor

& City Council of Baltimore, No. 19-1189 (U.S. Nov.

23, 2020). These inherently federal claims, however,

have been displaced by the Clean Air Act. Ibid.

At oral argument in Baltimore, the United States

confirmed its view that the plaintiff ’s claims were “inherently federal in nature.” Tr. of Oral Arg. 31:4–5,

21

Baltimore, 2021 WL 197342 (U.S. Jan. 19, 2021). Although the plaintiff “tried to plead around” contrary

precedent, “its case still depends on alleged injuries to

[the plaintiff] caused by emissions from all over the

world, and those emissions just can’t be subjected to

potentially conflicting regulations by every state and

city.” Id. at 31:7–13.

Similarly, as the United States explained to the

Ninth Circuit, “[a]s a matter of constitutional structure, any claims asserted in this area are inherently

federal,” so “state law could never validly apply in the

first place.” U.S. Amicus Curiae Br. 5, City of Oakland v. BP p.l.c., No. 18-16663, Dkt. 198 (9th Cir. Aug.

3, 2020). Only federal common law could apply, but

the Clean Air Act “displaced federal common law” and

did “not authorize States to impose their state tort law

on [this] conduct.” Id. at 7. Thus, respondents’ claims

based on interstate emissions are necessarily displaced by federal law. This defense is more than colorable; it is compelling.

The decision below is incorrect, and irreconcilable

with this Court’s holding in Jefferson County that federal officer removal was appropriate based on an asserted defense that did not arise out of the defendants’

federal duties. 527 U.S. at 437. Further review is necessary.

III. THIS CASE RAISES AN IMPORTANT QUESTION

THAT WARRANTS THE COURT’S REVIEW.

This case presents a straightforward vehicle for

the Court to resolve this important and persistent

question concerning the “colorable federal defense”

prong of federal officer removal.

1. The question presented in this case concerns

core principles of our federal system—specifically, the

22

supremacy of federal law and “the very basic interest

in the enforcement of federal law through federal officials.” Willingham, 395 U.S. at 406. For more than

five decades, this Court has “recognized that Congress’ enactment of federal officer removal statutes

since 1815 served ‘to provide a federal forum for cases

where federal officials must raise defenses arising

from their official duties . . . [and] to protect federal

officers from interference by hostile state courts.’”

Mesa, 489 U.S. at 137 (alterations in original; citation

omitted).

The Court has also long recognized the “great importance” of maintaining clear and uniform rules on

issues relating to removal more generally. Davis, 100

U.S. at 260; see also Direct Mktg. Ass’n v. Brohl, 575

U.S. 1, 14 (2015) (“[J]urisdictional rules should be

clear.” (citation 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 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 thus take this opportunity to

clarify the vital importance of providing federal officials, and those acting under their direction, with a

federal forum in which to defend their actions.

2. The question presented is also important because of petitioners’ vital role in ensuring a steady

supply of oil and gas for domestic use and supporting

23

the U.S. military. The United States recently experienced record high gas prices, and just this past October, 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. 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 international emissions-related grounds and

to prevent a patchwork of lawsuits in state courts

across the country from undermining this crucial

work.

The purpose of the federal officer removal statute

is to ensure that those acting under federal officers

are not haled into potentially hostile state courts,

which could impede and frustrate the federal government’s ability to accomplish important national objectives. See Willingham, 395 U.S. at 406. Amicus briefs

submitted in similar cases vividly demonstrate that

States have different approaches to and positions on

these issues. Compare, e.g., Amicus Br. of Indiana &

14 Other States, City of New York v. Chevron Corp.,

No. 18-2188 (2d Cir. Feb. 14, 2019) (arguing for the

non-justiciability and preemption of New York’s climate change claims), with Amicus Br. of New York &

8 Other States, City of New York v. Chevron Corp., No.

18-2188 (2d Cir. Nov. 16, 2018) (arguing the opposite).

Allowing cases to proceed in different state courts

24

with different views would undermine the very purpose of the federal officer removal statute.

3. This case is an excellent vehicle for resolving

the question presented because the resolution of the

question could prove case-dispositive. The Ninth Circuit’s holding on the “colorable federal defense” question led it to avoid addressing petitioners’ compelling

grounds for federal officer removal, especially petitioners’ production of specialized, non-commercial

fuels for the U.S. military and provision of fuels under

government control and guidance during World War

II.

The petition for a writ of certiorari thus provides

the Court with an ideal opportunity to consider and

resolve the question presented. That question is undeniably important, and the court of appeals’ answer

to the question cannot be defended. The Court should

grant certiorari in this case and set aside the judgment below.

IV. THIS CASE PRESENTS ANOTHER IMPORTANT

QUESTION WARRANTING REVIEW: WHETHER

CLAIMS SEEKING REDRESS FOR INJURIES

ALLEGEDLY CAUSED BY TRANSBOUNDARY

EMISSIONS ARE REMOVABLE BECAUSE THEY ARE

GOVERNED NECESSARILY AND EXCLUSIVELY BY

FEDERAL LAW.

This case also presents another question that has

divided the circuits and on which the Court is awaiting the views of the Solicitor General: whether claims

necessarily and exclusively governed by federal law

under the Constitution’s structure are removable under 28 U.S.C. § 1441(a).

25

In our federal system, each State may make law

within its own borders, but no State may “impos[e] its

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. 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).

26

Accordingly, this Court has long held unequivocally that, as a matter of constitutional structure,

claims based on interstate and international emissions necessarily are 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.’” Am. Elec. Power Co. v. Connecticut,

564 U.S. 410, 421 (2011) (citation omitted); see also Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6 (1972)

(“Milwaukee I”) (“basic interests of federalism . . . demand[]” this result). In disputes concerning interstate and international emissions, “the rule of decision [must] be[] federal,” id. at 108 n.10, and “state

law cannot be used” at all, City of Milwaukee v. Illinois, 451 U.S. 304, 313 n.7 (1981) (“Milwaukee II”); 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—greenhouse

gas emissions. Respondents seek damages for injuries

allegedly caused by the cumulative impact of emissions emanating from every State in the Nation and

every country in the world. The claims are therefore

necessarily governed by federal law.

Thus, the Second Circuit has explained that claims

that are centered on transboundary emissions—like

respondents’—“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

27

of New York, 993 F.3d at 90. In City of New York, the

plaintiff, New York 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. Id. at 88. The Second Circuit

described the question before it as “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

28

standards and global participation, on the one hand,

and energy production, economic growth, foreign policy, and national security, on the other.” Id. at 93.

The court below did not address this argument because it was foreclosed by prior circuit precedent. See

Cnty. of San Mateo v. Chevron Corp., 32 F.4th 733,

750 (9th Cir. 2022), cert. pet. filed, No. 22-495 (U.S.

Nov. 22, 2022); City of Oakland v. BP PLC, 969 F.3d

895, 906 (9th Cir. 2020). But petitioners preserved

the argument for further review. Appellants’ C.A. Br.

64–65.

This Court 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 Court thus should hold

this petition pending its disposition of Suncor, No. 211550. If the Court does not overturn the judgment in

Suncor, this petition should be granted.

CONCLUSION

The Court should hold this petition for a writ of

certiorari pending its resolution of Suncor Energy

(U.S.A.) Inc. v. Board of County Commissioners of

Boulder County, No. 21-1550, and then either grant

this petition and vacate and remand for further proceedings in light of its decision in Suncor or grant this

petition and set the case for plenary consideration.

29

Respectfully submitted.

Deborah K. Wright

WRIGHT & KIRSCHBRAUN,

LLLC

1885 Main Street, Suite 108

Wailuku, HI 97693

Paul Alston

DENTONS US LLP

1001 Bishop St., Suite 1800

Honolulu, HI 96813

Theodore V. Wells, Jr.

Daniel J. Toal

Caitlin Grusauskas

Yahonnes Cleary

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

LLP

1285 Avenue of the Americas

New York, NY 10019-6064

Kannon K. Shanmugam

William T. Marks

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

LLP

2001 K Street, NW

Washington, DC 20006-1047

Attorneys for Petitioners

EXXON MOBIL

CORPORATION and

EXXONMOBIL OIL

CORPORATION

Theodore J. Boutrous, Jr.

Counsel of Record

William E. Thomson

GIBSON, DUNN &

CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tboutrous@gibsondunn.com

Thomas G. Hungar

Lochlan F. Shelfer

GIBSON, DUNN &

CRUTCHER LLP

1050 Connecticut Avenue,

N.W.

Washington, DC 20036-5306

Andrea E. Neuman

GIBSON, DUNN &

CRUTCHER LLP

200 Park Avenue

New York, NY 10166

Joshua D. Dick

GIBSON, DUNN &

CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA

94105-0921

Melvyn M. Miyagi

WATANABE ING LLP

999 Bishop Street, Suite 1250

Honolulu, HI 96813

Attorneys for Petitioners

CHEVRON CORP. and

CHEVRON U.S.A. INC.

30

Crystal K. Rose

Adrian L. Lavarias

Sharon Paris

LUNG ROSE VOSS &

WAGNILD

Topa Financial Center, Suite

900

700 Bishop Street

Honolulu, HI 96813

Steven M. Bauer

Margaret A. Tough

LATHAM & WATKINS LLP

505 Montgomery Street, Suite

2000

San Francisco, CA 94111-6538

Attorneys for Petitioners

CONOCOPHILLIPS,

CONOCOPHILLIPS

COMPANY, PHILLIPS 66,

and PHILLIPS 66 COMPANY

Jameson R. Jones

Daniel R. Brody

BARTLIT BECK LLP

1801 Wewatta Street, Suite

1200

Denver, CO 80202

Attorneys for Petitioners

CONOCOPHILLIPS and

CONOCOPHILLIPS

COMPANY

Lisa Bail

David Hoftiezer

GOODSILL ANDERSON

QUINN & STIFEL

A Limited Liability Law Partnership LLP

999 Bishop Street, Suite 1600

Honolulu, Hawaii 96813

John D. Lombardo

Matthew T. Heartney

ARNOLD AND PORTER

KAYE SCHOLER LLP

777 S. Figueroa St., 44th Floor

Los Angeles, CA 90017-2513

Jonathan W. Hughes

ARNOLD AND PORTER

KAYE SCHOLER LLP

Three Embarcadero Center,

10th Floor

San Francisco, CA 94111

Attorneys for Petitioners

BP PLC and BP AMERICA

INC.

31

C. Michael Heihre

CADES SCHUTTE A

LIMITED LIABILITY LAW

PARTNERSHIP LLP

Cades Schutte Building

1000 Bishop Street, Suite 1200

Honolulu, HI 96813

David C. Frederick

Daniel S. Severson

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M. St., N.W., Suite 400

Washington, D.C. 20036

J. Scott Janoe

BAKER BOTTS LLP

910 Louisiana Street

Houston, Texas 77002

Joachim P. Cox

Randall C. Whattoff

COX FRICKE LLP

Queen’s Court

800 Bethel Street, Suite 600

Honolulu, HI 96813

Megan Berge

Sterling Marchand

BAKER BOTTS LLP

700 K Street, N.W.

Washington, D.C. 20001

Attorneys for Petitioners

SUNOCO LP, ALOHA

PETROLEUM, LTD., and

ALOHA PETROLEUM LLC

Attorneys for Petitioners

SHELL PLC (f/k/a ROYAL

DUTCH SHELL PLC), SHELL

USA, INC. (f/k/a SHELL OIL

COMPANY), and SHELL OIL

PRODUCTS COMPANY LLC

32

Victor L. Hou

Boaz S. Morag

CLEARY GOTTLIEB

One Liberty Plaza

New York, NY 10006

Shannon S. Broome

HUNTON ANDREWS

KURTH LLP

50 California St., Suite 1700

San Francisco, CA 94111

Margery S. Bronster

Lanson Kupau

BRONSTER FUJICHAKU

ROBBINS

1003 Bishop St. #2300

Honolulu, HI 96813

Shawn Patrick Regan

HUNTON ANDREWS

KURTH LLP

200 Park Avenue, 52nd Floor

New York, NY 10166

Attorneys for Petitioners BHP

GROUP LIMITED, BHP

GROUP PLC, and WOODSIDE

ENERGY HAWAII INC. (f/k/a

BHP HAWAII INC.)

Ann Marie Mortimer

HUNTON ANDREWS

KURTH LLP

550 South Hope Street, Suite

2000

Los Angeles, CA 90071

Ted N. Pettit

CASE LOMBARDI &

PETTIT

737 Bishop St. #2600

Honolulu, HI 96813

Attorneys for Petitioner

MARATHON PETROLEUM

CORP.

December 2, 2022