Petition for Writ of Certiorari — Shell Oil Products Co., L.L.C., et al., Petitioners v. Rhode Island
Supreme Court briefDec 2, 2022
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No.
IN THE
Supreme Court of the United States
SHELL OIL PRODUCTS COMPANY LLC, ET AL.,
Petitioners,
v.
STATE OF RHODE ISLAND,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The First Circuit
PETITION FOR A WRIT OF CERTIORARI
THOMAS G. HUNGAR
LOCHLAN F. SHELFER
GIBSON, DUNN
& CRUTCHER LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
THEODORE J. BOUTROUS, JR.
Counsel of Record
WILLIAM E. THOMSON
JOSHUA D. DICK
GIBSON, DUNN
& CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
tboutrous@gibsondunn.com
Counsel for Petitioners
[Additional counsel listed on signature page]
QUESTION PRESENTED
Whether a federal district court has jurisdiction
under 28 U.S.C. § 1331 over nominally state-law
claims seeking redress for injuries allegedly caused by
the effect of transboundary greenhouse gas emissions
on the global climate, on the ground that federal law
necessarily and exclusively governs such claims.
ii
PARTIES TO THE PROCEEDING AND
RULE 29.6 STATEMENT
Petitioners are Shell Oil Products Company LLC;
BP plc; BP America Inc.; BP Products North America
Inc.; Chevron Corporation; Chevron U.S.A. Inc.;
CITGO Petroleum Corporation; ConocoPhillips; ConocoPhillips Company; Exxon Mobil Corporation; Hess
Corporation; Marathon Oil Company; Marathon Oil
Corporation; Marathon Petroleum Corporation; Marathon Petroleum Company LP; Motiva Enterprises
LLC; Phillips 66; Shell plc (f/k/a Royal Dutch Shell
plc); and Speedway LLC.
Petitioner BP p.l.c., a publicly traded corporation
organized under the laws of England and Wales, has
no parent corporation, and there is no publicly held
corporation that owns 10% or more of BP p.l.c.’s stock.
Petitioner BP America Inc. is a 100% wholly owned
indirect subsidiary of petitioner BP p.l.c., and no intermediate parent of BP America Inc. is a publicly
traded corporation.
Petitioner BP Products North America Inc. is also
a 100% wholly owned indirect subsidiary of petitioner
BP p.l.c., and no intermediate parent of BP Products
North America Inc. is a publicly traded corporation.
Petitioner Chevron Corporation has no parent corporation, and no publicly held company holds 10% or
more of its stock.
Petitioner Chevron U.S.A. Inc. is a wholly owned
subsidiary of petitioner Chevron Corporation.
Petitioner CITGO Petroleum Corporation is a
wholly owned indirect subsidiary of Petróleos de Venezuela S.A., which is the national oil company of the
iii
Bolivarian Republic of Venezuela. No publicly held
company owns 10% or more of its stock.
Petitioner ConocoPhillips has no parent corporation, and no publicly held company holds 10% or more
of its stock.
Petitioner ConocoPhillips Company is a wholly
owned subsidiary of petitioner ConocoPhillips.
Petitioner Exxon Mobil Corporation has no parent
corporation, and no publicly held corporation owns
10% or more of its stock.
Petitioner Hess Corporation has no parent corporation, and no publicly held corporation holds 10% or
more of its stock.
Petitioner Marathon Oil Corporation does not have
a parent corporation and is a publicly traded entity.
The Vanguard Group, Inc., an investment advisor
that is not a publicly traded corporation, disclosed
through a Schedule 13G/A filed with the SEC that it
beneficially owns 10% or more of Marathon Oil Corporation’s stock.
Petitioner Marathon Oil Company is a wholly
owned direct subsidiary of petitioner Marathon Oil
Corporation, a publicly traded entity.
Petitioner Marathon Petroleum Corporation is a
publicly held corporation and does not have a parent
corporation. BlackRock, Inc., through itself or its subsidiaries, owns 10% or more of Marathon Petroleum
Corporation’s stock.
Petitioner Marathon Petroleum Company LP is a
limited partnership. Its limited partners are petitioner Marathon Petroleum Corporation and Giant
Industries, Inc. Marathon Petroleum Corporation is
a publicly traded corporation. Giant Industries, Inc.
iv
is a wholly owned subsidiary of TTC Holdings LLC,
the sole member of which is Western Refining, Inc.
Western Refining, Inc. is a publicly traded corporation.
Petitioner Motiva Enterprises LLC is a wholly
owned subsidiary of Saudi Refining, Inc. and Aramco
Financial Services Company. No publicly held company owns 10% or more of its stock.
Petitioner Phillips 66 has no parent corporation.
The Vanguard Group is the only shareholder owning
10% or more of Phillips 66.
Petitioner Shell plc (f/k/a Royal Dutch Shell plc)
has no parent corporation, and no publicly held corporation owns 10% or more of its stock.
Petitioner Shell Oil Products Company LLC is a
wholly owned indirect subsidiary of petitioner Shell
plc (f/k/a Royal Dutch Shell plc).
Petitioner Speedway LLC is an indirect subsidiary
of Seven & i Holdings, Co., Ltd. Seven & i Holdings
Co., Ltd., through itself or its subsidiaries, owns more
than 10% of Speedway LLC’s stock.
Respondent is the State of Rhode Island.
v
RULE 14.1(b)(iii) STATEMENT
This case directly relates to the following proceedings:
United States District Court (D.R.I.):
Rhode Island v. Chevron Corp., et al.,
No. 18-cv-00395 (July 22, 2019).
United States Court of Appeals (1st Cir.):
Rhode Island v. Shell Oil Products Co. LLC,
et al., No. 19-1818 (May 23, 2022).
vi
TABLE OF CONTENTS
Page
QUESTION PRESENTED ....................................i
PARTIES TO THE PROCEEDING AND
RULE 29.6 STATEMENT ................................... ii
RULE 14.1(b)(iii) STATEMENT .......................... v
TABLE OF APPENDICES ............................... viii
OPINIONS BELOW .............................................. 1
JURISDICTION .................................................... 1
STATUTORY PROVISIONS INVOLVED ........... 2
INTRODUCTION ................................................. 2
STATEMENT OF THE CASE .............................. 4
A. The State’s public-nuisance suit ......... 4
B. Proceedings in the district court ......... 8
C. Proceedings in the First Circuit
and this Court ..................................... 9
REASONS FOR GRANTING THE
PETITION ........................................................... 10
I. WHETHER CLAIMS NECESSARILY
AND EXCLUSIVELY GOVERNED BY
FEDERAL LAW ARE REMOVABLE TO
FEDERAL COURT IS AN IMPORTANT
AND RECURRING ISSUE THAT HAS
DIVIDED THE CIRCUITS ............................ 10
A. This Case Deepens A Conflict
Among The Courts Of Appeals
Over Whether Federal Law
Necessarily And Exclusively
Governs Claims Based On
Transboundary Emissions ................ 11
vii
B. The First Circuit’s Decision Also
Implicates A Circuit Conflict
Over When Nominally StateLaw Claims May Be Removed .......... 17
II. THE DECISION BELOW IS
INCORRECT ............................................... 22
III. THIS CASE RAISES AN IMPORTANT
QUESTION THAT WARRANTS THE
COURT’S REVIEW ...................................... 28
CONCLUSION .................................................... 31
viii
TABLE OF APPENDICES
Page
APPENDIX A: Opinion of the United States
Court of Appeals for the First Circuit
(May 23, 2022) ..................................................... 1a
APPENDIX B: Opinion and Order of the
United States District Court for the
District of Rhode Island Granting Motion
to Remand (July 22, 2019) ................................ 33a
APPENDIX C: Order of the United States
Court of Appeals for the First Circuit
Denying Panel Rehearing and Rehearing
En Banc (July 7, 2022) ...................................... 47a
ix
TABLE OF AUTHORITIES
Page(s)
Cases
Al-Qarqani v. Chevron Corp.,
8 F.4th 1018 (9th Cir. 2021) ................................ 27
Am. Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011) ................................ 5, 6, 24, 25
Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006) .............................................. 27
Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398 (1964) .............................................. 23
BMW of N. Am., Inc. v. Gore,
517 U.S. 559 (1996) .............................................. 23
BP P.L.C. v. Mayor & City Council of
Baltimore,
141 S. Ct. 1532 (2021) ............................................ 9
California v. Gen. Motors Corp.,
2007 WL 2726871
(N.D. Cal. Sept. 17, 2007) ...................................... 4
City of Hoboken v. Chevron Corp.,
45 F.4th 699 (3d Cir. 2022) .................................. 22
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) ...................... 13, 16, 24, 25, 27
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021) ................ 11, 12, 13, 14,
...................................................... 15, 16, 26, 27, 28
x
County of San Mateo v. Chevron Corp.,
32 F.4th 733 (9th Cir. 2022) ................................ 21
Direct Mktg. Ass’n v. Brohl,
575 U.S. 1 (2015) .................................................. 29
Georgia v. Tenn. Copper Co.,
206 U.S. 230 (1907) ........................................ 23, 25
Hertz Corp. v. Friend,
559 U.S. 77 (2010) ................................................ 30
Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743 (2019) .......................................... 10
Illinois v. City of Milwaukee,
406 U.S. 91 (1972) .................................... 11, 12, 24
Illinois v. City of Milwaukee,
731 F.2d 403 (7th Cir. 1984) ................................ 28
Int’l Paper Co. v. Ouellette,
479 U.S. 481 (1987) .............................................. 24
Kansas v. Colorado,
206 U.S. 46 (1907) ................................................ 23
Mayor & City Council of Baltimore v.
BP P.L.C,
31 F.4th 178 (4th Cir. 2022) .......................... 16, 20
Native Vill. of Kivalina v. ExxonMobil
Corp.,
663 F. Supp. 2d 863 (N.D. Cal. 2009) .................... 4
xi
Native Village of Kivalina v. ExxonMobil Corp.,
696 F.3d 849 (9th Cir. 2012) .............................. 5, 6
Newton v. Capital Insurance Co.,
245 F.3d 1306 (11th Cir. 2001) ............................ 18
Oneida Indian Nation v. Cnty. of
Oneida,
414 U.S. 661 (1974) .............................................. 27
In re Otter Tail Power Co.,
116 F.3d 1207 (8th Cir. 1997) .............................. 18
Republic of Philippines v. Marcos,
806 F.2d 344 (2d Cir. 1986) ................................. 19
Rhode Island v. Shell Oil Prods. Co.,
979 F.3d 50 (1st Cir. 2020) .................................... 9
Sam L. Majors Jewelers v. ABX, Inc.,
117 F.3d 922 (5th Cir. 1997) ................................ 17
Shell Oil Prods. Co. v. Rhode Island,
141 S. Ct. 2666 (2021) ............................................ 9
Suncor Energy (U.S.A.) Inc. v. Bd. of
Cnty. Comm’rs of Boulder Cnty.,
25 F.4th 1238 (10th Cir. 2022) ...................... 16, 21
Suncor Energy (U.S.A.) Inc. v. Bd. of
Cnty. Comm’rs of Boulder Cnty.,
No. 21-1550, 2022 WL 4651143
(U.S. Oct. 3, 2022) ................................................ 20
xii
Tennessee v. Davis,
100 U.S. 257 (1879) .............................................. 29
Tex. Indus., Inc. v. Radcliff Materials,
Inc.,
451 U.S. 630 (1981) .................................. 24, 27, 28
Torres v. S. Peru Copper Corp.,
113 F.3d 540 (5th Cir. 1997) ................................ 19
United States v. Sisson,
399 U.S. 267 (1970) .............................................. 29
United States v. Standard Oil Co. of
Cal.,
332 U.S. 301 (1947) ........................................ 13, 26
United States v. Swiss Am. Bank, Ltd.,
191 F.3d 30 (1st Cir. 1999) ............................ 13, 26
United States v. Williams,
504 U.S. 36 (1992) ................................................ 20
Statutes
28 U.S.C. § 1254(1) ...................................................... 1
28 U.S.C. § 1331 .................................. 2, 10, 17, 22, 31
28 U.S.C. § 1441(a) ................................................ 2, 10
28 U.S.C. § 1442(a)(1) ................................................. 8
28 U.S.C. § 1447(d) ...................................................... 9
xiii
Secondary Sources
FACT SHEET: President Biden to Announce
New Actions to Strengthen U.S. Energy
Security, Encourage Production, and
Bring Down Costs, White House Briefing
Room (Oct. 18, 2022), https://tinyurl.com/2p8z6mee ............................................ 30
PETITION FOR A WRIT OF CERTIORARI
Petitioners Shell Oil Products Company LLC; BP
plc; BP America Inc.; BP Products North America Inc.;
Chevron Corporation; Chevron U.S.A. Inc.; CITGO
Petroleum Corporation; ConocoPhillips; ConocoPhillips Company; Exxon Mobil Corporation; Hess Corporation; Marathon Oil Company; Marathon Oil Corporation; Marathon Petroleum Corporation; Marathon
Petroleum Company LP; Motiva Enterprises LLC;
Phillips 66; Shell plc (f/k/a Royal Dutch Shell plc);
and Speedway LLC respectfully petition for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the First Circuit in this case.
OPINIONS BELOW
The opinion of the First Circuit is reported at 35
F.4th 44. App. 1a–32a. The order denying petitioners’
timely petition for panel rehearing or rehearing en
banc is not reported. App. 47a–48a. The district
court’s order in Rhode Island v. Chevron Corp. is reported at 393 F. Supp. 3d 142. App. 33a–46a.
JURISDICTION
The First Circuit issued its judgment on May 23,
2022, and denied panel rehearing and rehearing en
banc on July 7, 2022. On September 16, 2022, the
Chief Justice 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).
2
STATUTORY PROVISIONS INVOLVED
28 U.S.C. § 1331 provides: “The district courts
shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.”
28 U.S.C. § 1441(a) provides: “[A]ny civil action
brought in a State court of which the district courts of
the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending.”
INTRODUCTION
Respondent, the State of Rhode Island, has asked
a Rhode Island state court to apply Rhode Island state
law, including common-law trespass and public-nuisance claims, to impose massive monetary liability on
petitioners—a group of 19 energy companies—for
harms allegedly attributable to global climate change.
This suit is just one of nearly two dozen actions that
have been filed in state courts across the country, from
Rhode Island to Hawaii, as part of a coordinated campaign to use state common law to hold some but not
all of the energy industry liable for global climate
change—a phenomenon that, on respondent’s own
theory, is the cumulative result of billions of individual decisions stretching back more than a century. If
respondent’s unprecedented effort to transform state
courts into global climate-change regulators succeeds,
every state court in the Nation will be empowered to
use state law to unilaterally impose its own view of
energy and environmental policy nationwide and, indeed, worldwide.
3
Under our constitutional structure, however, these
claims necessarily arise under federal law alone. As
this Court has repeatedly held, a State cannot use its
own law to obtain relief for harms allegedly caused by
out-of-state emissions. Rather, claims concerning interstate and international emissions are inherently
federal in nature and, accordingly, are governed exclusively by federal law, even when they are nominally pleaded under state law.
This case presents the question whether these inherently federal claims can be removed to federal
court. The First Circuit held that they could not. In
so holding, the court deepened a conflict by diverging
from the Second Circuit, as well as a long line of this
Court’s decisions, and aligning with the Fourth and
Tenth Circuits regarding whether federal law governs
claims seeking relief for the effects of transboundary
emissions.
Not only are the circuits divided over this question,
but this Court also recently invited the Solicitor General to file a brief expressing the views of the United
States on this question in Suncor Energy (U.S.A.) Inc.
v. Board of County Commissioners of Boulder County,
No. 21-1550. The United States has previously taken
the position that cases concerning transboundary
emissions are necessarily governed exclusively by federal law and, accordingly, are removable.
The significance of this case supports immediate
review. Respondent’s claims expose the energy sector
to vast, indeterminate monetary relief that will deter
investment and employment across the industry and
the broader economy, and cause disruption to the
4
global economy. This case will also disrupt and impede the political branches’ international climatechange initiatives and negotiations. And this case
threatens to impose a patchwork of conflicting tort
standards applicable to global production, marketing,
and emissions under the laws of multiple States. This
Court should decide whether this case is governed by
federal law and, in turn, removable to federal court.
Because this petition presents the same issues as
those presented in Suncor, it should be held pending
the Court’s disposition of that case. If the Court does
not grant review in Suncor, this petition should be
granted.
STATEMENT OF THE CASE
A. The State’s public-nuisance suit
This case is another in a long series of climate
change-related nuisance actions that “seek[] to impose
liability and damages on a scale unlike any prior environmental pollution case.” Native Vill. of Kivalina
v. ExxonMobil Corp., 663 F. Supp. 2d 863, 876 (N.D.
Cal. 2009). For nearly two decades, state and local
governments, working with private plaintiffs’ lawyers, have tried to use novel tort claims in an attempt
to regulate global greenhouse gas emissions by imposing massive civil liability on a selection of energy and
other companies that produce goods and services essential to modern life.
The first wave of such lawsuits asserted nuisance
claims against automobile companies for alleged contributions to climate change. See California v. Gen.
Motors Corp., 2007 WL 2726871 (N.D. Cal. Sept. 17,
5
2007) (dismissing state and federal common-law nuisance claims against automakers based on emissions
for failing to state a claim and because claims were
not justiciable).
The next round of litigation attempted to use federal common law to enjoin emissions from power
plants. In July 2004, a group of private and public
entities sought to enjoin emissions from five power
companies on the ground that their “carbon-dioxide
emissions created a substantial and unreasonable interference with public rights, in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law.” Am. Elec. Power Co. v.
Connecticut, 564 U.S. 410, 418 (2011) (“AEP”) (internal quotation marks omitted). This Court stated that
such claims were “meet for federal law governance”
and that “borrowing the law of a particular State
would be inappropriate.” Id. at 422. Turning to the
merits, the Court held that federal common law did
not provide a remedy because “the Clean Air Act and
the EPA actions it authorizes displace any federal
common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired powerplants.” Id.
at 424.
The third wave of litigation again invoked federal
common law, but this time in actions seeking damages
for harms allegedly attributable to global climate
change rather than an injunction against emissions.
In Native Village of Kivalina v. ExxonMobil Corp., 696
F.3d 849 (9th Cir. 2012), the plaintiffs “s[ought] damages under a federal common law claim of public nuisance” allegedly for harm caused by climate change to
a coastal community in Alaska, id. at 853. Although
6
“[t]his case present[ed] the question in a slightly different context” than AEP, the Kivalina court found
this distinction immaterial because this “Court has instructed that the type of remedy asserted is not relevant to the applicability of the doctrine of displacement.” Id. at 857.
In response to these repeated failures, state and
local governments opened a fourth front in their campaign to use the courts to remedy harms allegedly attributable to greenhouse gas emissions, by launching
a series of lawsuits in state court seeking to hold energy companies liable for global climate change under
state common law. Nearly two dozen actions have
been brought under this theory against scores of defendants in state courts across the country, including
in 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. B.P. P.L.C., No. CGC-17-561370 (Cal. Super.
Ct. S.F. Cnty.); Mayor & City Council of Baltimore v. BP P.L.C.,
No. 18-4219 (Balt. Cir. Ct.); Pac. Coast Fed’n of Fishermen’s
Ass’ns, Inc. v. Chevron, No. CGC-18-571285 (Cal. Super. Ct. S.F.
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
*
7
This case is part of that campaign. It was filed by
the State of Rhode Island, asserting Rhode Island
state tort law claims in Rhode Island state court, including common-law claims for public nuisance and
trespass. Respondent seeks compensatory damages
and an injunction requiring oil-and-gas companies to
abate “the nuisance[] [caused by sea level rise]” related to “global warming,” for which respondent
claims petitioners are “actually and proximately” responsible due to their “production, promotion, and
marketing of fossil fuel products.” Ct. App. JA.26,
162. Respondent’s theory is global, alleging that the
“dramatic increase in atmospheric CO2 and other
greenhouse gases is the main driver of the gravely
dangerous changes occurring to the global climate”
and that “Defendants are directly responsible . . . because of the consumption of their fossil fuel products.” Ct. App. JA.24, 26. And respondent seeks to
hold petitioners liable for the “cascading social and
economic impacts . . . aris[ing] out of localized climate
change-related conditions,” including “higher tides,”
“intensified wave and storm surge events,” and “aggravated wave impacts” leading to “erosion, damage,
and destruction of built structures and infrastructure.” Ct. App. JA.28.
Honolulu v. Sunoco, No. 20-380 (1st Cir. Haw.); District of Columbia v. Exxon, No. 2020 CA 002892 B (D.C. Super. Ct.); Cnty.
of Maui v. Sunoco LP, No. 2CCV-20-0000283 (2d Cir. Haw.);
State v. BP Am. Inc., No. N20C-09-097 (Del. Super. Ct.); City of
Charleston v. Brabham Oil Co., No. 2020-CP-10 (S.C. Ct. Com.
Pl.); City of Hoboken v. Exxon Mobil Corp., No. HUD-L-00317920 (N.J. Super. Ct. Hudson Cnty.); City of Annapolis v. BP P.L.C.,
No. C-02-CV-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-L001797-22 (N.J. Super. Ct. Mercer Cnty.).
8
B. Proceedings in the district court
Respondent filed this action against petitioners in
Rhode Island state court, alleging that “Defendants
bear a dominant responsibility for global warming
generally, and for [Rhode Island’s] injuries in particular,” due to their “extracting, refining, processing, producing, promoting, and marketing fossil fuel products.” Ct. App. JA.29. Respondent seeks to hold petitioners liable for the “severe impacts” of “global warming,” including “sea level rise,” “disruption of the hydrologic cycle,” “more frequent and more intense
drought,” “more frequent and more extreme precipitation,” and “more frequent and more intense heatwaves.” Ct. App. JA.24. Asserting numerous causes
of action under Rhode Island tort law, including for
public nuisance and trespass, respondent demands
compensatory and punitive damages, disgorgement of
profits, abatement of the alleged nuisances, and other
relief. Ct. App. JA.162.
Petitioners removed the action to the U.S. District
Court for the District of Rhode Island. App. 7a. The
notice of removal asserted various bases for federal jurisdiction, including that respondent’s claims are necessarily governed by and thus arise under federal law,
and involve conduct undertaken at the direction of
federal officers under 28 U.S.C. § 1442(a)(1). App. 7a.
The district court granted respondent’s motion to
remand the case to state court. App. 7a–8a.
9
C. Proceedings in the First Circuit and this
Court
The First Circuit affirmed the remand order, but
considered only the federal-officer removal argument,
concluding that it did not have appellate jurisdiction
under 28 U.S.C. § 1447(d) to review any other basis
for removal. Rhode Island v. Shell Oil Prods. Co., 979
F.3d 50, 58–59 (1st Cir. 2020).
This Court disagreed, holding that, when a party
seeks appellate review of an order remanding a “case
. . . removed pursuant to section 1442 or 1443,” “the
whole of [that] order bec[omes] reviewable on appeal.”
BP P.L.C. v. Mayor & City Council of Baltimore, 141
S. Ct. 1532, 1538 (2021). Accordingly, the Court vacated the First Circuit’s judgment and remanded for
further proceedings. See Shell Oil Prods. Co. v. Rhode
Island, 141 S. Ct. 2666 (2021).
On remand, the First Circuit again affirmed the
district court’s remand order. App. 9a. In relevant
part, the court concluded that “we cannot rule that
any federal common law controls Rhode Island’s
claims” because the Clean Water Act and the Clean
Air Act “‘have statutorily displaced any federal common law that previously existed’” with respect to interstate pollution and emissions. App. 18a–19a. According to the court, petitioners “cannot premise removal on a federal common law that no longer exists.”
App. 15a. In so holding, the First Circuit explicitly
avoided considering “the parties’ artful pleadingbased arguments,” App. 15a, by concluding that federal law had no role to play at all in Rhode Island’s
nominal state-law claims.
10
The consequence of this decision is that lawsuits in
the First Circuit involving transboundary emissions
will be subjected to varying rules of decisions of different state courts, in clear contradiction of our constitutional structure and numerous precedents of this
Court.
REASONS FOR GRANTING THE PETITION
The First Circuit’s decision deepens an existing
circuit conflict on the question whether federal law
necessarily and exclusively governs claims seeking redress for the alleged effects of interstate and international greenhouse gas emissions. The decision also
implicates an existing conflict on the question
whether federal jurisdiction under 28 U.S.C. § 1331
exists over claims necessarily and exclusively governed by federal law but pleaded under state law.
This petition should be held pending the Court’s
disposition of Suncor. If the Court denies review in
Suncor, this petition should be granted.
I.
WHETHER CLAIMS NECESSARILY AND EXCLUSIVELY GOVERNED BY FEDERAL LAW ARE REMOVABLE TO FEDERAL COURT IS AN IMPORTANT
AND RECURRING ISSUE THAT HAS DIVIDED THE
CIRCUITS.
Congress has authorized removal to federal court
of any case brought in state court over which federal
district courts “have original jurisdiction,” 28 U.S.C.
§ 1441(a), thereby allowing removal of claims when
the plaintiff could have “filed its operative complaint
in federal court” in the first instance, Home Depot
U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019).
And a long line of precedents from this Court has
11
made clear that claims for damages based on interstate emissions must be governed by federal law
alone, and therefore can arise only under federal law,
not state law. See Illinois v. City of Milwaukee, 406
U.S. 91, 105 n.6, 108 n.10 (1972) (“Milwaukee I”)
(“basic interests of federalism . . . demand[]” that, in
disputes concerning interstate and international
emissions, “[t]he rule of decision [must] be[] federal”).
Yet the First Circuit held that such transboundaryemissions-related claims are not necessarily governed
by federal law. That erroneous decision deepens one
circuit conflict and implicates another.
A. This Case Deepens A Conflict Among The
Courts Of Appeals Over Whether Federal
Law Necessarily And Exclusively Governs
Claims Based On Transboundary Emissions.
The First Circuit’s decision deepens a conflict
among the courts of appeals regarding whether claims
seeking relief for the alleged effects of transboundary
emissions are necessarily governed by federal law.
The Second Circuit has explained, based on this
Court’s precedents, that claims centered on transboundary emissions “demand the existence of federal
common law” because those emissions span state and
even national boundaries, and “a federal rule of decision is necessary to protect uniquely federal interests.” City of New York v. Chevron Corp., 993 F.3d 81,
90 (2d Cir. 2021). Three other courts of appeals—including the First Circuit here—have rejected that conclusion. Granting certiorari in this case would enable
the Court to resolve this intractable conflict.
12
1. In City of New York, 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.
993 F.3d 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 respondent’s—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
13
national standards and global participation, on the
one hand, and energy production, economic growth,
foreign policy, and national security, on the other.”
City of New York, 993 F.3d at 93.
The Second Circuit also rejected the plaintiff’s argument that displacement by the Clean Air Act of any
remedy under federal common law allows state law to
“snap back into action.” City of New York, 993 F.3d at
98. Although the Clean Air Act displaces any remedy
under federal common law, it does not displace the entire source of law altogether. See id. at 95 & n.7; accord United States v. Swiss Am. Bank, Ltd., 191 F.3d
30, 43 (1st Cir. 1999) (explaining that United States v.
Standard Oil Co. of Cal., 332 U.S. 301 (1947), established a two-step analysis that first asks whether “the
source of the controlling law [should] be federal or
state” and next considers the separate question
whether that federal law provides for a remedy). The
court explained that the City’s contrary position was
“difficult to square with the fact that federal common
law governed this issue in the first place,” because,
“where ‘federal common law exists, . . . state law cannot be used.’” City of New York, 993 F.3d at 98 (quoting City of Milwaukee v. Illinois, 451 U.S. 304, 313 n.7
(1981) (“Milwaukee II”)). In the Second Circuit’s view,
“state law does not suddenly become presumptively
competent to address issues that demand a unified
federal standard simply because Congress saw fit to
displace a federal court-made standard with a legislative one.” Ibid. Such an outcome would be “too
strange to seriously contemplate.” Id. at 98–99.
2. The First Circuit’s decision squarely conflicts
with the holding in City of New York in two important
ways. First, the First Circuit concluded that federal
14
common law did not govern respondent’s claims. Relying (erroneously) on the test for fashioning a new
rule of federal common law, the First Circuit noted
that it did not see “how any significant conflict exists
between these federal interests and the state-law
claims” because respondent “seek[s] to hold [petitioners] liable for the climate change-related harms they
caused by [their] deliberate[] misrepresent[ations].”
App. 16a (cleaned up). The First Circuit thus glossed
over the sprawling global scope of respondent’s
claims, which seek remedies for the cumulative effects
of interstate and international emissions. In so doing,
the First Circuit departed from the Second Circuit,
which concluded that claims nearly identical to respondent’s “would regulate cross-border emissions in
an indirect and roundabout manner” and are “simply
beyond the limits of state law.” City of New York, 993
F.3d at 92–93.
The First Circuit ignored that this Court has already held that federal law necessarily governs claims
that deal with interstate or international emissions,
and, therefore, there was no need to apply the test for
expanding federal common law. Federal common law
already applies, as the Second Circuit recognized in
noting that a “mostly unbroken string of cases has applied federal law to disputes involving interstate air
or water pollution.” City of New York, 993 F.3d at 91.
The First Circuit thus departed from both City of New
York and a long line of precedent in which this Court
has already recognized that federal law alone necessarily governs interstate pollution claims like the ones
at issue in this case. See ibid.
15
Second, the First Circuit’s holding conflicts with
the Second Circuit’s conclusion that statutory displacement of federal common law does not make state
law “presumptively competent to address issues that
demand a unified federal standard.” City of New York,
993 F.3d at 98. By contrast, the First Circuit held
that, because the Clean Water Act and the Clean Air
Act “have statutorily displaced any federal common
law that previously existed,” state law governs claims
in this area. Rhode Island, 35 F.4th at 55–56 (internal
quotation marks omitted).
The First Circuit’s approach is irreconcilable with
that of the Second Circuit. The First Circuit attempted to distinguish City of New York by highlighting that it was originally filed in federal court, “so the
court considered the fossil-fuel [companies’] preemption defense on its own terms, not under the heightened standard unique to the removability inquiry.”
App. 17a (internal quotation marks omitted). But the
First Circuit did not explain how this difference in
posture affects the answer to the distinct question
whether there is federal subject matter jurisdiction on
the ground that federal law necessarily governs the
claims at issue, a substantive question of federal law
that requires the same answer regardless of the court
in which a plaintiff chooses to file suit. Indeed, federal
common law is not merely a defense to the claims alleging injury from interstate and international emissions because respondent’s claims do not merely implicate federal-law issues; they inherently are federal
claims, arising under federal law. No state law exists
in this area for respondent to invoke.
3. Two other courts of appeals have also parted
ways with the approach taken in City of New York. In
16
Mayor & City Council of Baltimore v. BP P.L.C., a similar climate-change case, the Fourth Circuit also
failed to recognize the federal nature of respondent’s
sprawling claims and declined to “follow City of New
York,” opining that the Second Circuit had “fail[ed] to
explain a significant conflict between the state-law
claims before it and the federal interests at stake.” 31
F.4th 178, 202–03 (4th Cir. 2022), cert. pet. filed, No.
22-361 (U.S. Oct. 14, 2022).
Additionally, both the Fourth and the Tenth Circuits have explicitly disagreed with the Second Circuit’s holding that the Clean Air Act’s displacement of
a federal common-law remedy does not “give birth to
new state law claims.” City of New York, 993 F.3d at
98; see also ibid. (explaining that “where ‘federal common law exists, it is because state law cannot be used’”
(quoting Milkwaukee II, 451 U.S. at 313 n.7)). In Suncor, the Tenth Circuit held the opposite, reasoning
that federal jurisdiction was not present because, after statutory displacement by the Clean Air Act, the
otherwise-applicable federal common law “no longer
exists.” Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1260 (10th
Cir. 2022) (emphasis omitted), cert. pet. filed, No. 211550 (U.S. June 8, 2022). The Fourth Circuit similarly departed from the Second Circuit’s holding, rejecting the view “that any federal common law controls Baltimore’s state-law claims” on the ground that
“federal common law in this area ceases to exist due
to statutory displacement.” Baltimore, 31 F.4th at
204.
17
B. The First Circuit’s Decision Also Implicates A Circuit Conflict Over When Nominally State-Law Claims May Be Removed.
The decision below also implicates an existing conflict among the courts of appeals concerning whether
and when a claim pleaded under state law arises under federal law for purposes of establishing removal
jurisdiction.
1. Several courts of appeals have expressly held
that federal courts have jurisdiction under Section
1331 over claims artfully pleaded under state law but
necessarily governed by federal law—specifically, federal common law.
In Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d
922 (5th Cir. 1997), a shipper sued a carrier in state
court to recover the value of goods that had been lost
in transit, “alleging breach of contract, negligence,
and violations of the Texas deceptive trade practice
law.” Id. at 924. The court noted that, under Section
1441(a), “only actions that originally could have been
filed in federal court can be removed to federal court.”
Ibid. The court then reasoned that there were “three
theories that might support federal question jurisdiction” in the case: where “the complaint raises an express or implied cause of action that exists under a
federal statute”; where the relevant “area of law is
completely preempted by the federal regulatory regime”; and where “the cause of action arises under federal common law principles.” Ibid. (emphases added).
Citing a long tradition in which, “applying federal
common law, federal courts found that civil actions
against air carriers for lost or damaged goods arose
under federal law,” id. at 927–28, the Fifth Circuit
18
held that the shipper’s ostensibly state-law “negligence action . . . arises under federal common law,” id.
at 929. As a result, the court concluded that “[it] ha[d]
jurisdiction over this action.” Ibid.
Similarly, the Eighth Circuit has found federal jurisdiction over a removed state-court complaint that
raised putative state-law claims. In re Otter Tail
Power Co., 116 F.3d 1207, 1213–15 (8th Cir. 1997).
The complaint “raise[d] important questions of federal
law requiring interpretation of treaties, federal statutes, and the federal common law of inherent tribal
sovereignty.” Id. at 1215 (emphasis added). In that
situation, the “plaintiff’s characterization of a claim as
based solely on state law is not dispositive” because
the complaint “necessarily presents a federal question,” and removal is proper. Id. at 1213–14 (internal
quotation marks omitted).
Other cases have upheld federal jurisdiction over
claims implicating federal common law using a Grable-type analysis, because the complaint necessarily
raises a substantial question of federal law. For example, in Newton v. Capital Assurance Co., 245 F.3d
1306 (11th Cir. 2001), the Eleventh Circuit considered
whether a state-court breach-of-contract claim
brought by the plaintiff against his flood insurer had
been properly removed to federal court. Id. at 1308.
The court answered in the affirmative, holding that
the complaint “satisfie[d] § 1331 by raising a substantial federal question on its face” because the contract
was a federally subsidized Standard Flood Insurance
Policy (“SFIP”), and “SFIP contracts are interpreted
using principles of federal common law rather than
state contract law.” Id. at 1309.
19
In addition, the Fifth Circuit has affirmed the removal of “state-law tort claims” against a foreign company—despite the plaintiffs’ invocation of “the wellpleaded complaint rule”—because the case “raise[d]
substantial questions of federal common law by implicating important foreign policy concerns.” Torres v. S.
Peru Copper Corp., 113 F.3d 540, 542–43 (5th Cir.
1997).
Likewise, the Second Circuit has upheld federal jurisdiction over claims governed by the federal common
law of foreign relations under a Grable-like theory. In
Republic of Philippines v. Marcos, 806 F.2d 344 (2d
Cir. 1986), the Philippine government sought an injunction in state court against its former president’s
transfer of properties. Id. at 346. Although “the face
of the complaint” asserted a claim “more nearly akin
to a state cause of action for conversion,” the Second
Circuit indicated that removal would be proper on the
ground that the case “arises under federal common
law because of the necessary implications of such an
action for United States foreign relations.” Id. at 352–
54. In any event, the court held that removal was
proper “because the claim raise[d], as a necessary element,” a “federal question to be decided with uniformity as a matter of federal law, and not separately
in each state.” Id. at 354.
Each of these circuits recognizes that claims asserted in an area governed exclusively by federal law
arise under federal law and create federal jurisdiction—however they are pleaded, and whatever approach to federal jurisdiction applies.
20
2. In the decision below, the First Circuit did not
resolve this question regarding the well-pleaded complaint rule because the court erroneously determined
that federal law does not govern respondent’s claims.
But petitioners argued below that the artful-pleading
doctrine permits removal of claims (like those at issue
here) that are necessarily and exclusively federal as a
matter of constitutional structure. C.A. Suppl. Br.
12–18. Accordingly, the issue is properly presented
here. See, e.g., United States v. Williams, 504 U.S. 36,
41 (1992) (“Our traditional rule . . . precludes a grant
of certiorari only when ‘the question presented was
not pressed or passed upon below.’ . . . [T]his rule operates (as it is phrased) in the disjunctive . . . .”).
Moreover, the circuits are divided on that issue, and
its consideration is necessary to resolve the ultimate
jurisdictional question presented by this case. And
the Court has invited the views of the United States
on this same issue in Suncor. See Suncor Energy
(U.S.A.) Inc. v. Bd. of Cnty. Comm’rs of Boulder Cnty.,
No. 21-1550, 2022 WL 4651143, at *1 (U.S. Oct. 3,
2022).
Four other courts of appeals examining similar climate-change suits have held that Section 1331 does
not permit the exercise of jurisdiction over claims necessarily governed by federal law but nominally
pleaded under state law.
In Baltimore, the Fourth Circuit held that, under
the well-pleaded complaint rule, federal common law
cannot provide a basis for jurisdiction under Section
1331, and removal is thus improper where the plaintiff omits any reference to federal law in the complaint. 31 F.4th at 200.
21
In Suncor, another climate-change case, the Tenth
Circuit likewise rejected the premise that federal common law provides a basis for removal of claims artfully
pleaded under state law. 25 F.4th at 1261. The court
concluded that the artful-pleading doctrine does not
exist outside of the context of complete statutory
preemption, a doctrine that allows the removal of a
state-law claim where “the pre-emptive force of a statute is so extraordinary that it converts an ordinary
state common-law complaint into one stating a federal
claim for purposes of the well-pleaded complaint rule.”
Id. at 1256 (internal quotation marks and citation
omitted). The court held that, because the defendants
did not argue that a “statute” governed the claims, the
artful-pleading doctrine was inapplicable. Id. at 1262.
In County of San Mateo v. Chevron Corp., 32 F.4th
733 (9th Cir. 2022), cert. pet. filed, No. 22-495 (U.S.
Nov. 22, 2022), yet another climate-change suit, the
Ninth Circuit held that there are only two exceptions
to the well-pleaded complaint rule: the Grable doctrine, which permits the removal of state-law claims
that necessarily raise substantial and disputed federal issues, and the doctrine of complete statutory
preemption. Id. at 746. The court thus rejected the
idea that a nominally state-law claim that necessarily
is governed by non-statutory federal law—such as by
federal common law—can be removed to federal court.
The Ninth Circuit failed to ask the threshold question
whether the plaintiffs engaged in artful-pleading by
framing their claims in state-law terms even though
they are inherently federal in nature. See ibid. Under
the Ninth Circuit’s logic, even in a case where federal
law necessarily and exclusively governs the issues
22
pleaded on the face of the complaint, a district court is
bound by the plaintiffs’ labels.
Finally, the Third Circuit reached the same conclusion in City of Hoboken v. Chevron Corp., 45 F.4th
699 (3d Cir. 2022), another climate-change case. Like
the Tenth Circuit, it held that a federal court can “recharacterize a state law claim as a federal claim removable to federal court . . . only when some federal
statute completely preempts state law.” Id. at 707
(cleaned up). The Third Circuit further concluded
that federal common law cannot provide a basis for
removal of claims artfully pleaded under state law because federal common law provides only a “garden-variety preemption” defense in that circumstance. Id. at
708.
*
*
*
Thus, the decision below implicates a widespread
conflict of federal law among the courts of appeals.
Four courts of appeals have squarely held that 28
U.S.C. § 1331 provides a basis for federal jurisdiction
over claims necessarily and exclusively governed by
federal law but labeled as arising under state law,
while four other courts of appeals have reached the
opposite conclusion. That conflict is developed and entrenched, and the Court’s intervention is necessary.
II. THE DECISION BELOW IS INCORRECT.
In addition to exacerbating these circuit conflicts,
the First Circuit erred in remanding the case to state
court. Respondent’s claims are necessarily and exclusively governed by federal law and, accordingly, this
case is removable to federal court.
23
1. The First Circuit’s decision departed from a
long line of this Court’s precedents making clear that,
under our Constitution’s structure, claims seeking relief for the effects of interstate emissions necessarily
arise under federal law, not state law.
In our federal system, each State may make law
within its own borders, but no State may “impos[e] its
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
24
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).
Accordingly, this Court has long held unequivocally that, as a matter of constitutional structure,
claims dealing with interstate and international emissions are necessarily governed exclusively by federal
law. “[T]he basic scheme of the Constitution . . . demands” that “federal common law” govern disputes involving “air and water in their ambient or interstate
aspects.” AEP, 564 U.S. at 421; see also Milwaukee I,
406 U.S. at 105 n.6 (“basic interests of federalism . . .
demand[]” this result). In disputes concerning interstate and international emissions, “[t]he rule of decision [must] be[] federal,” id. at 108 n.10, and “state
law cannot be used” at all, Milwaukee II, 451 U.S. at
313 n.7; see also Int’l Paper Co. v. Ouellette, 479 U.S.
481, 488 (1987) (interstate pollution “is a matter of
federal, not state, law”).
Applying these principles and precedents here, respondent’s claims are necessarily governed by and
“arise under” federal law because they seek damages
based on interstate—and international—greenhouse
gas emissions. Respondent seeks damages for injuries
allegedly caused by the cumulative impact of emissions emanating from every State in the Nation and
every country in the world, and the claims are therefore necessarily governed by federal law.
That remains true whether the plaintiff claims
that defendants emitted greenhouse gases directly or
instead claims that defendants contributed to green-
25
house gas emissions by producing and promoting fossil-fuel products. Whatever the allegedly tortious conduct, the alleged injury is the result of greenhouse gas
emissions and their effect on the global climate.
The First Circuit nevertheless determined that it
lacked jurisdiction because respondent’s claims are
governed solely by state common law. But the panel’s
narrow view of the scope of federal law would result
in absurd consequences that are inconsistent with our
federal system and defy common sense. Illinois could
sue the City of Milwaukee in state court under Illinois
state law for interstate water pollution, and Milwaukee would be denied a federal forum to address the
interstate dispute. Contra Milwaukee II, 451 U.S. at
309–10. Connecticut could employ Connecticut law in
Connecticut state court to impose liability on out-ofstate defendants for failing to abate interstate air pollution. Contra AEP, 564 U.S. at 422. Or Georgia
could subject a Tennessee company to Georgia law to
enjoin it from discharging fumes across state lines.
Contra Tenn. Copper Co., 206 U.S. at 236. The holding of the panel is irreconcilable with this Court’s rulings that these claims arise under federal law alone
and thus are properly heard in federal court.
The First Circuit should have followed this Court’s
long line of precedent holding that claims of this sort
necessarily arise under federal law alone.
2. The First Circuit also erred in holding that the
effect of the Clean Air Act, having “displaced” the federal common law of interstate air pollution, was to
eviscerate federal subject matter jurisdiction over interstate air pollution claims. App. 18a–19a. The First
26
Circuit was correct that displacement of federal common law means there is no common-law remedy available, but it was incorrect that the displacement of one
federal law by another somehow erases federal jurisdiction.
The First Circuit’s reasoning erroneously conflates
the merits of respondent’s claims with federal courts’
jurisdiction over them, breaking from long-established precedent from this Court. As the Second Circuit made clear in City of New York, although the
Clean Air Act displaces any remedy under federal
common law, it does not displace the entire source of
law altogether, which remains exclusively federal. 993 F.3d at 95 & n.7. Whether a party can obtain a remedy under federal common law is a merits
question distinct from the jurisdictional question
whether federal law must supply the rule of decision
in the first instance.
Indeed, whether a claim arises under state or federal law for jurisdictional purposes turns on which
law governs; it does not depend on whether the plaintiff has stated a viable claim under federal law. Under
this Court’s two-step analytical approach set forth in
Standard Oil, 332 U.S. 301, courts must: (1) determine whether the source of law is federal or state
based on the nature of the claims asserted and the issues at stake; and then (2) if federal law is the source,
determine the substance of the federal law and decide
whether the plaintiff has stated a viable federal claim
for relief under federal law. See Swiss Am. Bank, 191
F.3d at 42–45 (citing Standard Oil, 332 U.S. at 305).
Whether a claim “arises under” federal law “turns on
the resolution of the source question,” not the “substance question.” Id. at 44. And, critically, that
27
“choice-of-law task is a federal task for federal courts.”
Milwaukee II, 451 U.S. at 349 (Blackmun, J., dissenting) (internal quotation marks omitted).
Thus, sometimes—as here—federal law governs,
even when the party has no remedy under federal law
on the merits. When “the interstate or international
nature of the controversy makes it inappropriate for
state law to control,” Tex. Indus., 451 U.S. at 641, federal law necessarily governs for “jurisdictional purposes,” even if that claim “may fail at a later stage,”
Oneida Indian Nation v. Cnty. of Oneida, 414 U.S.
661, 675 (1974); see also City of New York, 993 F.3d at
95. Courts must not “conflate[ ]” these distinct “jurisdiction” and “merits-related determination[s].” Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006); see also
Al-Qarqani v. Chevron Corp., 8 F.4th 1018, 1025 (9th
Cir. 2021) (“[I]t has long been understood that a claim
can arise under federal law even if a court ultimately
concludes that federal law does not provide a cause of
action.”).
Nor does the displacement of federal-law remedies
mean that respondent can bring its claims under state
law. As the Second Circuit explained, such an outcome “is difficult to square with the fact that federal
common law governed this issue in the first place” because, “where federal common law exists, . . . state
law cannot be used.” City of New York, 993 F.3d at 98
(internal quotation marks omitted). “[S]tate law does
not suddenly become presumptively competent to address issues that demand a unified federal standard
simply because Congress saw fit to displace a federal
court-made standard with a legislative one.” Ibid. Accordingly, statutory displacement cannot “give birth
28
to new state-law claims,” ibid., because our constitutional structure “does not permit the controversy to be
resolved under state law” ab initio, Tex. Indus., 451
U.S. at 641. Indeed, such an outcome is “too strange
to seriously contemplate.” City of New York, 993 F.3d
at 98–99. Regardless of displacement, our constitutional structure requires “a federal rule of decision”
for such claims. Id. at 90.
The Seventh Circuit, too, reached this same conclusion after this Court held in Milwaukee II that the
Clean Water Act displaced federal common law. On
remand, the Seventh Circuit noted that this Court
had “continue[d] to cite Milwaukee I for the inapplicability of state law” to interstate pollution disputes “despite the displacement of federal common law.” Illinois v. City of Milwaukee, 731 F.2d 403, 409 (7th Cir.
1984) (“Milwaukee III”). “The very reasons [this]
Court gave for resorting to federal common law in Milwaukee I are the same reasons why the state . . . cannot apply its own state law to out-of-state discharges
now,” and “Milwaukee II did nothing to undermine
that result.” Id. at 410. Notwithstanding displacement, the Seventh Circuit held that the interstate pollution claims were “a problem of uniquely federal dimensions requiring the application of uniform federal
standards.” Id. at 410–11.
The First Circuit’s contrary conclusion here is incorrect and conflicts with established precedent of this
Court and other courts of appeals.
III. THIS CASE RAISES AN IMPORTANT QUESTION
THAT WARRANTS THE COURT’S REVIEW.
This case presents a straightforward vehicle for
the Court to resolve these persistent disagreements
29
concerning the scope of federal jurisdiction. As this
Court’s call for the views of the Solicitor General in
Suncor suggests, this question is legally and practically important and merits the Court’s review. Furthermore, petitioners’ vital role in maintaining a dependable supply of oil and gas is a matter of national
security, and a rule of decision on international-emissions-related suits that would open the energy industry to a patchwork of conflicting state laws and state
lawsuits would undermine this important mission.
1. The question presented in this case concerns
core principles of our federal system—specifically, the
exclusive power of federal law over transboundary
pollution cases and the inability of state law to adjudicate disputes in areas of unique federal importance,
from interstate pollution to foreign affairs to tribal relations.
The Court has long recognized the “great importance” of maintaining clear and uniform rules on
issues relating to removal. Tennessee v. Davis, 100
U.S. 257, 260 (1879); see also Direct Mktg. Ass’n v.
Brohl, 575 U.S. 1, 14 (2015) (“jurisdictional rules
should be clear” (internal quotation marks and brackets omitted)). “Clarity is to be desired in any statute,
but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must
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
30
a claim’s legal and factual merits.” Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010).
The Court should take this opportunity to clarify
the enduring role of federal law as the rule of decision
for claims based on interstate and international emissions, and confirm the common-sense conclusion that
claims necessarily and exclusively governed by federal
law are removable to federal court.
2. The case is also important because of petitioners’ vital role in ensuring a steady supply of oil and
gas for domestic use and in support of the U.S. military. The United States has recently faced recordhigh 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
and others sued on interstate- and internationalemissions-related grounds and to prevent a patchwork of lawsuits in state courts across the country
from undermining this crucial work.
3. Finally, this case is a suitable vehicle for resolving the question presented. The question whether federal law necessarily governs suits involving transboundary emissions was pressed below and passed on
by the First Circuit. App. 14a–19a. And the question
31
whether such federal claims are removable under 28
U.S.C. § 1331, despite respondent’s use of state-law
labels, was briefed by the parties and is inextricably
intertwined with the ultimate jurisdictional question
presented by this case. See C.A. Suppl. Br. 12–18. Petitioners also raised the relevant issues in their timely
petition for rehearing en banc, which the First Circuit
denied on the ground that it lacked a quorum of circuit
judges “in regular active service who [were] not
recused.” App. 48a.
CONCLUSION
The Court should hold this petition for a writ of
certiorari pending its disposition of Suncor, No. 211550. If the Court does not grant review in Suncor,
this petition should be granted.
32
Respectfully submitted.
Nancy G. Milburn
ARNOLD & PORTER KAYE
SCHOLER LLP
250 West 55th Street
New York, NY 10019-9710
Theodore J. Boutrous, Jr.
Counsel of Record
William E. Thomson, III
Joshua D. Dick
GIBSON, DUNN &
CRUTCHER LLP
Matthew T. Heartney
333 South Grand Avenue
ARNOLD & PORTER KAYE
Los Angeles, CA 90071-3197
(213) 229-7000
SCHOLER LLP
777 South Figueroa Street, 44th tboutrous@gibsondunn.com
Floor
Los Angeles, California 90017- Thomas G. Hungar
5844
Lochlan F. Shelfer
GIBSON, DUNN &
Jonathan W. Hughes
CRUTCHER LLP
ARNOLD & PORTER KAYE
1050 Connecticut Avenue,
SCHOLER LLP
N.W.
Three Embarcadero Center,
Washington, D.C. 20036-5306
10th Floor
San Francisco, California
Anne Champion
94111-4024
GIBSON, DUNN &
CRUTCHER LLP
John A. Tarantino
200 Park Avenue
Patricia K. Rocha
New York, NY 10166-0193
Nicole J. Benjamin
ADLER POLLOCK &
Gerald J. Petros
SHEEHAN P.C.
Robin L. Main
One Citizens Plaza, 8th Floor
Ryan M. Gainor
Providence, RI 02903
HINCKLEY, ALLEN &
SNYDER LLP
Attorneys for Petitioners BP
100 Westminster Street, Suite
PRODUCTS NORTH AMER1500
ICA INC., BP P.L.C., and BP
Providence, RI 02903
AMERICA INC.
33
David C. Frederick
Daniel S. Severson
Grace W. Knofczynski
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK,
P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
Jeffrey S. Brenner
NIXON PEABODY LLP
One Citizens Plaza, Suite 500
Providence, RI 02903
Attorneys for Petitioners
SHELL PLC (F/K/A ROYAL
DUTCH SHELL PLC) and
SHELL OIL PRODUCTS
COMPANY LLC
Jeffrey S. Brenner
NIXON PEABODY LLP
One Citizens Plaza, Suite 500
Providence, RI 02903
Tracie J. Renfroe
Oliver Peter Thoma
KING & SPALDING LLP
1100 Louisiana Street, Suite
4100
Houston, TX 77002
Attorneys for Petitioner MOTIVA ENTERPRISES LLC
Neal S. Manne
SUSMAN GODFREY LLP
1000 Louisiana, Suite 5100
Houston, TX 77002
Attorneys for Petitioners
CHEVRON CORPORATION
and CHEVRON U.S.A. INC.
Theodore V. Wells, Jr.
Daniel J. Toal
Jaren Janghorbani
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON
LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Kannon Shanmugam
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON
LLP
2001 K Street, NW
Washington, DC 20006-1047
Matthew T. Oliverio, Esquire
OLIVERIO & MARCACCIO
LLP
30 Romano Vineyard Way,
Suite 109
North Kingstown, RI 02852
Attorneys for Petitioner
EXXON MOBIL CORPORATION
34
Stephen J. MacGillivray, Esq.
Rebecca Weinstein Bacon
PIERCE ATWOOD LLP
BARTLIT BECK LLP
One Financial Plaza, 26th Floor Courthouse Place
Providence, RI 02903-0000
54 West Hubbard Street
Chicago, IL 60654
Nathan P. Eimer, Esq.
Pamela R. Hanebutt, Esq.
Jameson R. Jones
Daniel R. Brody
Lisa S. Meyer, Esq.
BARTLIT BECK LLP
EIMER STAHL LLP
1801 Wewatta Street, Suite
224 South Michigan Avenue,
1200
Suite 1100
Chicago, IL 60604
Denver, CO 80202
Paul M. Kessimian
Robert E. Dunn
Christian R. Jenner
EIMER STAHL LLP
99 S. Almaden Blvd., Suite 642 PARTRIDGE SNOW &
San Jose, CA 95113
HAHN LLP
40 Westminster Street, Suite
Attorneys for Petitioner CITGO 1100
PETROLEUM CORPORATION Providence, RI 02903
Jason C. Preciphs
ROBERTS, CARROLL,
FELDSTEIN & PEIRCE,
INC.
10 Weybosset Street, Suite 800
Providence, RI 02903-2808
J. Scott Janoe
BAKER BOTTS LLP
910 Louisiana Street
Houston, Texas 77002-4995
Megan Berge
BAKER BOTTS LLP
700 K Street, N.W.
Washington, D.C. 20001-5692
Attorneys for Petitioner HESS
CORP
Attorneys for Petitioners
CONOCOPHILLIPS and
CONOCOPHILLIPS COMPANY
Robert G. Flanders, Jr.
Timothy K. Baldwin
WHELAN, CORRENTE &
FLANDERS, LLP
100 Westminster Street, Suite
710
Providence, RI 02903
Attorneys for Petitioner
PHILLIPS 66
35
Shannon S. Broome
HUNTON ANDREWS KURTH
LLP
50 California Street
San Francisco, CA 94111
Steven M. Bauer
Margaret A. Tough
LATHAM & WATKINS LLP
505 Montgomery Street, Suite
2000
San Francisco, CA 941116538
Shawn Patrick Regan
HUNTON ANDREWS KURTH
Attorneys for Petitioners
LLP
PHILLIPS 66, CONO200 Park Avenue
COPHILLIPS and CONONew York, NY 10166
COPHILLIPS COMPANY
Ann Marie Mortimer
HUNTON ANDREWS KURTH
LLP
Stephen M. Prignano
550 South Hope Street, Suite
MCINTYRE TATE LLP
2000
50 Park Row West, Suite 109
Los Angeles, CA 90071
Providence, RI 02903
Jeffrey B. Pine
James Stengel
Patrick C. Lynch
ORRICK, HERRINGTON &
LYNCH & PINE
SUTCLIFFE, LLP
One Park Row, 5th Floor
51 West 52nd Street
Providence, RI 02903
New York, NY 10019-6142
Attorneys for Petitioners MARATHON PETROLEUM CORPO- Robert Reznick
RATION, MARATHON PEORRICK, HERRINGTON &
TROLEUM COMPANY LP,
SUTCLIFFE, LLP
and SPEEDWAY, LLC
1152 15th Street NW
Washington, DC 20005
Attorneys for Petitioners
MARATHON OIL CORPORATION and MARATHON
OIL COMPANY
December 2, 2022
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