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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APPENDIX
1a
APPENDIX A
United States Court of Appeals
For the First Circuit
___________________
No. 19-1818
STATE OF RHODE ISLAND,
Plaintiff, Appellee,
v.
SHELL OIL PRODUCTS CO., L.L.C.; CHEVRON
CORP.; CHEVRON USA, INC.; EXXONMOBIL
CORP.; BP, PLC; BP AMERICA, INC.; BP PRODUCTS NORTH AMERICA, INC.; ROYAL DUTCH
SHELL P.L.C.; MOTIVA ENTERPRISES, L.L.C.;
CITGO PETROLEUM CORP.; CONOCOPHILLIPS;
CONOCOPHILLIPS CO.; PHILLIPS 66; MARATHON OIL CO.; MARATHON PETROLEUM
CORP.; MARATHON PETROLEUM CO., L.P.;
SPEEDWAY, L.L.C.; HESS CORP.;
LUKOIL PAN AMERICAS L.L.C.;
AND DOES 1-100,
Defendants, Appellants,
GETTY PETROLEUM MARKETING, INC.
Defendant.
______________________
2a
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, District Judge]
____________________
Before
Thompson and Howard,
Circuit Judges.
_______________________
Judge Torruella heard argument in this appeal. But he did
not participate in the decision, which is being rendered by a
“quorum” of the panel. See 28 U.S.C. § 46(d).
3a
Theodore J. Boutrous, Jr., Thomas G. Hungar,
Anne Champion, Gibson, Dunn & Crutcher LLP, Gerald J. Petros, Robin L. Main, Ryan M. Gainor, Hinckley, Allen & Snyder LLP, Neal S. Manne, Susman
Godfrey LLP, John A. Tarantino, Patricia K. Rocha,
Nicole J. Benjamin, Adler Pollock & Sheehan P.C.,
Nancy G. Milburn, Matthew T. Heartney, Jonathan
W. Hughes, Arnold & Porter Kaye Scholer LLP, Matthew T. Oliverio, Oliverio & Marcaccio LLP, Theodore
V. Wells, Jr., Daniel J. Toal, Jaren Janghorbani, Kannon Shanmugam, Paul, Weiss, Rifkind, Wharton,
Garrison LLP, Jeffrey S. Brenner, Nixon Peabody
LLP, David C. Frederick, Grace W. Knofczynski, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Daniel B. Levin, John E. Bulman, Stephen J. MacGillivray, Pierce Atwood LLP, Nathan P. Eimer, Pamela
R. Hanebutt, Lisa S. Meyer, Raphael Janove, Ryan J.
Walsh, Eimer Stahl LLP, Michael J. Colucci, Olenn &
Penza, LLP, Sean C. Grimsley, Jameson R. Jones,
Daniel R. Brody, Bartlit Beck LLP, Robert G. Flanders, Jr., Timothy K. Baldwin, Whelan, Corrente &
Flanders, LLP, Steven M. Bauer, Margaret A. Tough,
Latham & Watkins LLP, Shannon S. Broome, Shawn
Patrick Regan, Ann Marie Mortimer, Hunton Andrews Kurth LLP, Jeffrey B. Pine, Patrick C. Lynch,
Lynch & Pine, Jason C. Preciphs, Roberts, Carroll, Feldstein & Peirce, Inc., J. Scott Janoe, Megan Berge,
Baker Botts L.L.P., Lauren Motola-Davis, Samuel A.
Kennedy-Smith, Lewis Brisbois Bisgaard & Smith
LLP, Tracie J. Renfroe, Oliver Peter Thoma, King &
Spaulding LLP, Stephen M. Prignano, McIntyre Tate
LLP, James Stengel, Robert Reznick, and Orrick, Herrington & Sutcliffe, LLP, on supplemental brief for appellants.
Victor M. Sher, Matthew K. Edling, Sher Edling
LLP, and Neil F.X. Kelly, Assistant Attorney General,
4a
Office of the Attorney General, on supplemental brief
for appellee.
Andrew R. Varcoe, Stephanie A. Maloney, U.S.
Chamber Litigation Center, William M. Jay, Andrew
Kim, and Goodwin Procter LLP, on supplemental brief
for The Chamber of Commerce of The United States
of America, amicus curiae.
Linda E. Kelly, Patrick Hedren, Erica Klenicki,
Manufacturers’ Center for Legal Action, Philip S.
Goldberg, Christopher E. Appel, and Shook Hardy &
Bacon L.L.P., on supplemental brief for The National
Association of Manufacturers, Energy Marketers of
America, and The National Association of Convenience Stores, amici curiae.
Steve Marshall, Attorney General of Alabama,
Treg Taylor, Attorney General of Alaska, Leslie
Rutledge, Attorney General of Arkansas, Christopher
Charr, Attorney General of Georgia, Theodore E.
Rokita, Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, Kian J. Hudson, Deputy Solicitor General, Julia C. Payne, Deputy Attorney General, Derek Schmidt, Attorney General of Kansas,
Daniel Cameron, Attorney General of Kentucky, Jeff
Landry, Attorney General of Louisiana, Lynn Fitch,
Attorney General of Mississippi, Austin Knudsen, Attorney General of Montana, Doug Peterson, Attorney
General of Nebraska, Alan Wilson, Attorney General
of South Carolina, Ken Paxton, Attorney General of
Texas, Sean Reyes, Attorney General of Utah, and
Bridget Hill, Attorney General of Wyoming, on supplemental brief for State of Alabama, State of Alaska,
State of Arkansas, State of Georgia, State of Indiana,
State of Kansas, Commonwealth of Kentucky, State of
Louisiana, State of Mississippi, State of Montana,
State of Nebraska, State of South Carolina, State of
5a
Texas, State of Utah, and State of Wyoming, amici curiae.
Robert S. Peck and Center For Constitutional Litigation, P.C., on supplemental brief for The National
League of Cities, The U.S. Conference of Mayors, and
The International Municipal Lawyers Association,
amici curiae.
Rob Bonta, Attorney General of California, William Tong, Attorney General of Connecticut, Kathleen
Jennings, Attorney General of Delaware, Clare E. Connors, Attorney General of Hawaii, Aaron M. Frey, Attorney General of Maine, Brian E. Frosh, Attorney
General of Maryland, Maura Healey, Attorney General of Massachusetts, Seth Schofield, Senior Appellate Counsel, Keith Ellison, Attorney General of Minnesota, Leigh Currie, Special Assistant Attorney General, Andrew J. Bruck, Acting Attorney General of
New Jersey, Hector Balderas, Attorney General of
New Mexico, Letitia James, Attorney General of New
York, Ellen F. Rosenblum, Attorney General of Oregon, Josh Shapiro, Attorney General of Pennsylvania,
Thomas J. Donovan, Jr., Attorney General of Vermont, Robert W. Ferguson, Attorney General of Washington, Joshua L. Kaul, Attorney General of Wisconsin, and Karl A. Racine, Attorney General of the District of Columbia, on supplemental brief for State of
California, State of Connecticut, State of Delaware,
State of Hawaii, State of Maine, State of Maryland,
Commonwealth of Massachusetts, State of Minnesota, State of New Jersey, State of New Mexico, State
of New York, State of Oregon, Commonwealth of Pennsylvania, State of Vermont, State of Washington,
State of Wisconsin, and District of Columbia, amici curiae.
6a
Peter Huffman on supplemental brief for Natural
Resources Defense Council, amicus curiae.
Kaighn Smith, Jr., and Drummond Woodsum on
supplemental brief for Scholars of Foreign Relations
and Federal Courts, amici curiae.
____________________
May 23, 2022
____________________
For the names of the attorneys involved in the original appeal, see 979 F.3d 50, 51-53 (1st Cir. 2020).
7a
THOMPSON, Circuit Judge. This is our second pass at a climate-change case that requires us to
explore the mind-numbing complexities of federal removal jurisdiction. See Rhode Island v. Shell Oil
Prods. Co., 979 F.3d 50, 54 (1st Cir. 2020) (“Shell
Oil”). We start by bringing the reader up to speed. 1
Like other state and local governments across the
country, Rhode Island claims that the Energy Companies named in our caption knew for decades that burning fossil fuels is damaging the earth’s atmosphere but
duped the public into buying more and more of their
products (consequences be damned)—all to line their
very deep pockets. See id. at 53. Seeking relief for the
catastrophic harm they supposedly have done (and
will do) to its non-federal property and natural resources, Rhode Island—also like other governments
elsewhere—sued the Energy Companies in state
court. See id. at 53-54. And its longish complaint alleges state-law causes of action for public nuisance,
strict-liability design defect, negligent design defect,
negligent failure to warn, impairment of public-trust
resources, and violations of the state’s Environmental
Rights Act.
Not eager to try this case in a Rhode Island court,
the Energy Companies removed the matter to federal
court under the federal-officer removal statute, the
federal-question doctrine, the Outer Continental
Shelf Lands Act (just “OCSLA” from now on), the admiralty-jurisdiction statute, and the bankruptcy-removal statute. But to their disappointment, the district judge thought that none of those grounds could
1
For efficiency’s sake, we assume the reader’s general
familiarity with our Shell Oil opinion.
8a
provide a hook on which removal could hang. See id.
And so he remanded the case to state court. See id.
On the Energy Companies’ appeal—in our first goaround—we concluded that we could only review the
federal-officer removal ground. See id. at 58-60. And
ruling that the Energy Companies had not satisfied
the requirements of the federal-officer removal statute, we affirmed the judge’s remand order. See id. at
60. But on the Energy Companies’ petition for
certiorari, the Supreme Court (without reversing our
decision on the merits) GVR’d us (short for granted
certiorari, vacated, and remanded) and instructed
that we give “further consideration in light of BP p.l.c.
v. Mayor & City Council of Baltimore, 141 S. Ct. 1532
(2021)”—a then-hot-off-the-presses opinion requiring
courts of appeals to review the judge’s entire remand
order and consider all of the defendants’ removal
grounds, not just the part of the order resolving the
federal-officer removal ground.2 See Shell Oil Prods.
Co. v. Rhode Island, 141 S. Ct. 2666 (2021) (Mem.).
Pleased to oblige, we requested and received supplemental briefs from counsel.3 In them, the parties
continue battling over whether the Energy Companies
can remove the case on various bases. And it is to this
dispute that we turn to below, using a de novo standard
(which gives zero deference to the judge’s views) and
adding more details when needed to put the arguments into workable perspective. See Amoche v.
Guarantee Tr. Life Ins. Co., 556 F.3d 41, 48 (1st
2
For a good discussion of the GVR mechanism, see Gonzalez v.
Justices of the Municipal Court of Boston, 420 F.3d 5, 7-8 (1st
Cir. 2005). As a heads-up, today’s opinion requires some tolerance
for acronyms.
3
We wish to thank the amici and their attorneys for their
helpful insights as well.
9a
Cir. 2009). But to give away the opinion’s ending
up front: leaning hard on our sibling circuits’ analyses
in comparable climate-change cases—particularly
County of San Mateo v. Chevron Corp., Nos. 18-15499,
18-15502, 18-15503, 18-16376, 2022 WL 1151275 (9th
Cir. Apr. 19, 2022) (“San Mateo”); Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178 (4th Cir.
2022) (“BP P.L.C.”); Board of County Commissioners of
Boulder County v. Suncor Energy (U.S.A.) Inc., 25
F.4th 1238 (10th Cir. 2022) (“Suncor”); City of Oakland v. BP PLC, 969 F.3d 895, 907 (9th Cir. 2020)
(“Oakland”), cert. denied, 141 S. Ct. 2776 (2021)—we
once more affirm the judge’s remand order.
Overarching Considerations
Federal courts have limited jurisdiction,
charted (within constitutional limits) by federal statute. See, e.g., López-Muñoz v. Triple-S Salud, Inc., 754
F.3d 1, 5 (1st Cir. 2014); Fayard v. Ne. Vehicle Servs.,
LLC, 533 F.3d 42, 48 (1st Cir. 2008) (noting that “[b]oth
jurisdiction and removal are primarily creatures of
Congress”). And as we are about to see, lots of statutes control removal of state-filed cases to federal
court.
A generalized removal statute says that a defendant can remove a state-filed case to federal court only
if the plaintiff could have brought the case there
originally.
See 28 U.S.C. § 1441(a). Pertinently
here, a federal court has original jurisdiction over
cases that “aris[e] under” federal law—i.e., “the Constitution, laws, or treaties of the United States,” see 28
U.S.C. § 1331 (emphases added), plus “claims founded
upon federal common law,” see Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972). Section 1441 is
known as the general-removal statute. See, e.g.,
Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743,
10a
1746 (2019) (“Home Depot”). And section 1331 is
known as the general federal-question jurisdiction
statute. See, e.g., Holmes Grp., Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 829 (2002).
Specialized removal statutes exist too. Take, for
instance, the bankruptcy-removal statute, which (in
broad strokes) allows removal to a district court of any
claim of which that court would have jurisdiction under another provision that (generally speaking) creates federal jurisdiction for disputes “arising under”
the bankruptcy code, disputes “arising in” a bankruptcy case, and disputes “related to” the resolution of
a bankruptcy case. See 28 U.S.C. §§ 1452(a), 1334(a)(b).
Whether a case arises under federal law typically
is “determined from what necessarily appears” on the
face of a plaintiff’s complaint, “unaided by anything
alleged in anticipation or avoidance of defenses which
it is thought the defendant may interpose.” See Taylor v. Anderson, 234 U.S. 74, 75-76 (1914); see also
Franchise Tax Bd. v. Constr. Laborers Vacation
Tr., 463 U.S. 1, 9-12 (1983). This is known as the wellpleaded-complaint rule, because it concentrates our
attention on the complaint’s terms. See Franchise
Tax Bd., 463 U.S. at 9-10. And in most instances, that
rule makes plaintiff the “master” of the complaint—
including the master of “what law” plaintiff “will rely
upon.” See The Fair v. Kohler Die & Specialty Co., 228
U.S. 22, 25 (1913) (Holmes, J., for the Court).
As with many rules, however, exceptions exist. See
Rose v. RTN Fed. Credit Union, 1 F.4th 56, 59-60 (1st
Cir. 2021). One exception applies when “a state-law
claim necessarily raise[s] a stated federal issue,”
which is “actually disputed and substantial,” and
which a federal court can consider “without
11a
disturbing any congressionally approved balance” between state and federal power. See Grable & Sons
Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.
308, 313-16 (2005) (“Grable”); accord R.I. Fishermen’s All., Inc. v. R.I. Dep’t of Envtl. Mgmt., 585 F.3d
42, 49 (1st Cir. 2009). Only a “slim category” of statelaw claims satisfies Grable, however. See Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S.
677, 701 (2006) (“Empire Healthchoice”) (emphasis
added); San Mateo, 2022 WL 1151275, at *4. Another exception applies when federal law has completely displaced state law and so “provide[s] the exclusive cause of action for such claims”—thus making
the asserted claim necessarily federal. See Beneficial
Nat’l Bank v. Anderson, 539 U.S. 1, 11 (2003)
(“Beneficial”); accord Caterpillar Inc. v. Williams, 482
U.S. 386, 393 (1987); Lawless v. Steward Health Care
Sys., LLC, 894 F.3d 9, 17 (1st Cir. 2018); LópezMuñoz, 754 F.3d at 5.4 Complete preemption is a
4
Anything involving “preemption” can be confusing. And in
this setting, the word itself can cause even the most sophisticated
readers to scratch their collective heads over the difference between “complete preemption” and “ordinary preemption.” See
Rueli v. Baystate Health, Inc., 835 F.3d 53, 57 (1st Cir. 2016). As
a sort of cheat sheet: Only complete preemption affects the
court’s jurisdiction. See id. Where it exists, “there is . . . no such
thing as a state-law claim” in the regulated area because Congress intended federal law to provide the exclusive cause of action
for that claim. See Beneficial, 539 U.S. at 9, 11. And a court thus
treats the complaint as if a federal claim appears on the face of it.
See Rivet v. Regions Bank of La., 522 U.S. 470, 476 (1998). Ordinary preemption, contrastingly, “refer[s] to certain defenses” to the
claim’s merits, “of which a classic example is a state claim foreclosed because its assertion conflicts with a federal statute or falls
within a field preempted by federal law.” See Cavallaro v. UMass
Mem’l Healthcare, Inc., 678 F.3d 1, 4 n.3 (1st Cir. 2012)
12a
“narrow exception.” Beneficial, 539 U.S. at 5.5 But
in the rare situations when it applies, courts sometime derisively describe the complaint as “artfully
pleaded” to sidestep the federal claim. See, e.g., Rivet,
522 U.S. at 475.
As the parties trying to remove the case from state
to federal court, the Energy Companies must prove
that the federal court has original jurisdiction. See
28 U.S.C. § 1441(a); see also Danca v. Private Health
Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). And because removal jurisdiction raises serious federalism
concerns, we construe removal statutes strictly and
against removal. See, e.g., Syngenta Crop Prot., Inc.
v. Henson, 537 U.S. 28, 32 (2002); Rosselló-González
v. Calderón-Serra, 398 F.3d 1, 11 (1st Cir. 2004). So
if federal jurisdiction is doubtful, a federal court must
remand to state court. See, e.g., Rosselló-González,
398 F.3d at 11.
Issues in Play
The Energy Companies argue for removal based on
federal-question jurisdiction, which they think exists
(emphasis added). And as a mere defense, ordinary preemption—according to the well-pleaded-complaint rule—“will not provide a basis for removal.” See Beneficial, 539 U.S. at 6 (emphasis added).
5
Because complete preemption affects plaintiffs’ usual ability
to plead the law they want, the Supreme Court is “reluctant” to
find the exception applies. See Metro. Life Ins. v. Taylor, 481
U.S. 58, 65 (1987) (“Metro. Life”). The Court, in fact, has found
complete preemption in only three statutes, see San Mateo, 2022
WL 1151275, at *6: (1) Beneficial, 539 U.S. at 10-11 (National
Bank Act §§ 85 and 86); (2) Metro. Life, 481 U.S. at 66-67 (Employee Retirement Income Security Act § 502(a)); and (3) Avco
Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560 (1968) (Labor
Management Relations Act § 301).
13a
because (as they tell it) Rhode Island artfully pleaded
state claims that are at bottom governed by federal
common law; completely preempted by federal law;
necessarily dependent on substantial and disputed
federal issues; and based on injuries or conduct on federal enclaves. They also argue for removal based on
other jurisdictional and removal statutes, namely the
OCSLA-jurisdiction statute, the admiralty-jurisdiction statute, and the bankruptcy-removal statute.6
6
A word about the federal-officer removal statute—which, like
the bankruptcy-removal statute, is a specialized removal statute.
This provision allows private actors “acting under” color of federal
authority to remove a state-court action “for or relating to any
act under color of such office.” See 28 U.S.C. § 1442(a)(1). And
per our precedent, the Energy Companies must show that they
acted under a federal officer, that the claims against them are
“for or relating to” the alleged official authority, and that they
will raise a colorable federal defense. See Moore v. Elec. Boat
Corp., 25 F.4th 30, 34 & n.2 (1st Cir. 2022) (noting that Shell Oil
“described the ‘relating to’ requirement as a ‘nexus’ between ‘the
allegations in the complaint and conduct undertaken at the behest of a federal officer,’” but stating that “[t]his nexus requirement is not a causation requirement” (quoting Shell Oil, 979 F.3d
at 59)).
As reported in Shell Oil, the Energy Companies direct “us to
three contracts with the federal government related to the production of oil and argue that they were ‘acting under’ a federal officer because they ‘help[ed] the Government to produce an item
that it needs.’” See 979 F.3d at 59 (alteration in original and
quoting Watson v. Philip Morris Cos., 551 U.S. 142, 153 (2007)).
But Rhode Island’s complaint, we said, alleges that the Energy
Companies “produced and sold oil and gas products in Rhode Island that were damaging the environment and engaged in a misinformation campaign about the harmful effects of their products
on the earth’s climate.” Id. at 60. And, we ruled, the trio of contracts “mandate[s] none of those activities”—thus making the
case unremovable under the federal-officer removal statute. See
14a
In the pages that follow, we discuss and reject each
of the Energy Companies’ arguments (again, all in
keeping with the recent decisions of other circuit
courts).
Federal-Question Jurisdiction
Federal Common Law
Citing the artful-pleading doctrine, the Energy
Companies argue that even though Rhode Island’s
complaint says nothing about federal common law,
the claims alleged “are inherently federal” and necessarily arise under federal law because they are “based
on interstate and international emissions” (excess capitalization removed)—i.e., uniquely federal interests,
the theory goes, that must be governed by federal common law. To their way of thinking then, Rhode Island’s claims amount to federal claims in disguise.
Noting our “skepti[cism]” about “the applicability of
the artful pleading doctrine outside of complete federal preemption of a state cause of action,” see
Rossello-González, 398 F.3d at 12 (citing Franchise
Tax Bd. and Rivet), Rhode Island protests that the
well-pleaded-complaint rule (which—as already explained—generally bars removal unless a federal
question appears on the complaint’s face) stops us
from looking behind the complaint and construing the
state-law theories as federal common-law ones. But as
a fallback, Rhode Island argues that even if the Energy
Companies could get around that rule, they would still
id. Because nothing in the Supreme Court’s BP p.l.c. opinion undermines that holding (BP p.l.c., remember, only requires us to
consider the Energy Companies’ other removal grounds), we “adhere to” Shell Oil’s rejection of federal-officer removal jurisdiction
(and for what it is worth, the Energy Companies identify no
shortcomings with that rejection).
15a
lose because Congress has replaced the federal common law that they rely on.
Avoiding the kerfuffle over the parties’ artful
pleading-based arguments—our credo is that “if it is
not necessary to decide more, it is necessary not to decide more,” see PDK Labs. Inc. v. U.S. D.E.A., 362 F.3d
786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in
part and concurring in the judgment)—we take the
“even if” approach and ultimately conclude the Energy
Companies cannot premise removal on a federal common law that no longer exists, see generally 14C
Charles A. Wright, Federal Practice and Procedure
§ 3722.1 (Rev. 4th ed. Apr. 2022) (“Federal Practice
and Procedure”) (lamenting that “the artful-pleading doctrine lacks precise definition and has bred
considerable confusion”). Why we so rule requires
some unpacking, however.
While there is no general common law, pockets of
federal judge-made law exist that bind the states. See
BP P.L.C., 31 F.4th at 200 (providing examples). But
the circumstances where the “judicial creation of a
special federal rule” ought to displace state law are
“few and restricted,” see O’Melveny & Meyers v.
F.D.I.C., 512 U.S. 79, 89 (1994) (“O’Melveny”) (quotation marks omitted)—limited to those “extraordinary cases,” see id., involving both “uniquely federal
interests” and a “significant conflict . . . between
some federal policy or interest and the use of state
law,” see Boyle v. United Tech. Corp., 487 U.S. 500,
506 (1988) (quotation marks omitted). That makes
sense because where federal common law exists, it
“pre-empt[s] and replace[s]” state law, see id. at
504—which raises sensitive issues of separation of
powers and federalism, see Rodriguez v. F.D.I.C.,
140 S. Ct. 713, 717 (2020) (underscoring that
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“[j]udicial lawmaking in the form of federal common
law plays a necessarily modest role under a Constitution that vests the federal government’s ‘legislative
Powers’ in Congress and reserves most other regulatory authority to the States” (quoting U.S. Const. art. 1,
§ 1)). Critically as well, the side pushing a theory of
federal common law must show a “specific, concrete
federal policy or interest” with which state law directly conflicts “as a precondition for recognition of a
federal rule of decision.” See O’Melveny, 512 U.S. at
87-88 (emphases added).7
The Energy Companies spend a lot of time on the
“uniquely federal interests” point, highlighting (for instance) the federal government’s special concern
with “controlling interstate pollution, promoting energy independence, and negotiating multilateral treaties addressing global warning”—interests, they continue, that call for the application of a “uniform federal
rule of decision,” which makes the case “removable
under 28 U.S.C. §§ 1331 and 1441.” But even
“[a]ssuming” (without granting) that these concerns
constitute “uniquely federal interests,” see BP P.L.C.,
31 F.4th at 202, we—like the Fourth Circuit in BP
P.L.C.—find that the Energy Companies (despite being the burden-bearer on the removal issue) never adequately describe how “any significant conflict exist[s]
between” these “federal interests” and the state-law
claims, which (again) seek to hold them liable for the
climate change-related harms they caused by deliberately misrepresenting the dangers they knew would
arise from their deceptive hyping of fossil fuels, see
id. at 203-04. Not only does this “misstep” raise a
waiver problem. See, e.g., Rodríguez v. Mun. of San
7
Courts use “federal rule of decision” to mean “federal
common law,” and vice versa. See BP P.L.C., 31 F.4th at 200 n.3.
17a
Juan, 659 F.3d 168, 175-76 (1st Cir. 2011) (discussing how to set an issue up for decision); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (doing
the same and stressing that “[i]t is not enough merely
to mention a possible argument in the most skeletal
way, leaving the court to do counsel’s work”). It also
deals a “fatal” blow to the Energy Companies’ bid to
base federal-question jurisdiction on federal common
law. See BP P.L.C., 31 F.4th at 202 (quoting O’Melveny, 512 U.S. at 88); see Atherton v. F.D.I.C., 519 U.S.
213, 218 (1997) (confirming that “the guiding principle
is that a significant conflict between some federal policy or interest and the use of state law . . . must first
be specifically shown” (omission in original, emphasis
added, and quoting Wallis v. Pan Am. Petroleum
Corp., 384 U.S. 63, 68 (1966))).
To the extent the Energy Companies rely on City
of New York v. Chevron Corp., 993 F.3d 81 (2d Cir.
2021), to hint at a conflict between the federal government’s relations with foreign countries and the
rights of states, they are unable to do so. See BP
P.L.C., 31 F.4th at 202-03 (rebuffing a similar suggestion in a similar case); Suncor, 25 F.4th at 1262
(same). City of New York, after all, is distinguishable
in at least one key respect. There, unlike here, the
government “filed suit in federal court in the first instance” (relying on diversity jurisdiction)—so the
court considered the fossil-fuel producers’ “preemption
defense on its own terms, not under the heightened
standard unique to the removability inquiry.” See 993
F.3d at 94 (emphases added). And the court found that
its ordinary preemption analysis did not clash with the
“fleet of cases” (among them Oakland) recognizing
that “anticipated defenses”—including those based on
federal common law—could not “singlehandedly create federal-question jurisdiction under 28 U.S.C.
18a
§ 1331 in light of the well-pleaded complaint rule.”
See id.
Ignoring these problems just for discussion purposes, we still say the Energy Companies fall short.
Instead of handling “the threshold inquiry above,”
they here—like the energy companies in BP P.L.C.—
shine a spotlight on some old Supreme Court cases
“that once (or possibly) recognized federal common law
in the context of interstate pollution and greenhousegas emissions.” See 31 F.4th at 204. And from there,
they intimate that applying state law in this area would
upset our constitutional scheme. Put aside how the
federal common law they bring up does not address
the type of acts Rhode Island seeks judicial redress
for.8 Even accepting the Energy Companies’ description of Rhode Island’s claims as being “transboundary
pollution” claims (again, just for argument’s sake), we
know that “[w]hen Congress addresses a question previously governed by a decision rested on federal common law . . . the need for such an unusual exercise of
law-making by federal courts disappears.” See Am.
Elec. Power Co. v. Connecticut, 564 U.S. 410, 423
(2011) (“AEP”) (quoting City of Milwaukee v. Illinois,
451 U.S. 304, 314 (1981)). The Clean Water Act and
the Clean Air Act—neither of which Rhode Island invokes—“have statutorily displaced any federal common law that previously existed.” See BP P.L.C., 31
F.4th at 207. So we cannot rule that any federal
8
Rhode Island (to repeat) seeks to hold “[d]efendants” liable for
their “tortious conduct” that “deliberately and unnecessarily deceived” consumers about the scientific consensus on climate
change and its devastating effects, and about the starring role
their products play in causing it (quotes taken from the complaint), not to regulate greenhouse-gas emissions (Rhode Island
challenges no federal contract, permit, regulation, or treaty, for example).
19a
common law controls Rhode Island’s claims. See id. at
199, 205-06 (saying that although the energy companies “characterize [the government’s] claims as ‘interstate-pollution claims’ that arise under federal common law,” Congress displaced the federal common law
of interstate pollution, and it would “def[y] logic” to
base removal on a “federal common law claim [that]
has been deemed displaced, extinguished, and rendered null by the Supreme Court”).9
Grable
The Energy Companies next argue that “[e]ven if”
Rhode Island’s claims found their origins in state rather than federal law, “removal still would be proper
under Grable.” Grable, as we signaled a few pages
back, requires us to ask if Rhode Island’s claims fall
into the very rare class that (1) necessarily raise a federal issue that is (2) truly disputed and (3) substantial
and that (4) a federal court can decide without upsetting the balance between state and federal judiciaries. See Gunn v. Minton, 568 U.S. 251, 258 (2013)
(discussing Grable).
Just like other circuits in
9
Interestingly—and we think tellingly—some of the Energy
Companies successfully argued in another case that “the Clean
Air Act displaces any federal common law claims potentially arising from greenhouse[-]gas emissions” (excess capitalization omitted but emphasis added). See Answering Brief of ExxonMobil et
al. at 61, Native Village of Kivalina v. ExxonMobil Corp., 696
F.3d 849 (9th Cir. 2012) (“Kivalina”) (No. 09-17490), 2010 WL
3299982, at *61. “Displacement of the federal common law does
not leave those injured by air pollution without a remedy,” wrote
a concurring Kivalina panelist, because “[o]nce federal common
law is displaced, state nuisance law becomes an available option
to the extent it is not preempted by federal law.” See Kivalina,
696 F.3d at 866 (Pro, D.J., concurring) (citing AEP, 564 U.S. at
429).
20a
comparable cases, see San Mateo, 2022 WL 1151275,
at *4-6; BP P.L.C., 31 F.4th at 208-15, we answer no.
We begin and end at prong (1), the necessarilyraised prong—which the Energy Companies can satisfy only if a federal issue “is a necessary element of
one of the well-pleaded state claims” in Rhode Island’s
complaint. See Franchise Tax Bd., 463 U.S. at 13
(emphasis added); see also Gunn, 568 U.S. at 258
(stressing that jurisdiction lies under Grable only if
“all four” prongs “are met”). The best way to wrap
one’s mind around this prong is to consider what happened in Grable. The IRS seized and sold Grable’s real
property to satisfy a tax lien. See 545 U.S. at 310.
Grable challenged the sale via a quiet-title suit in state
court, calling the buyer’s title invalid because the IRS
had not complied with federal notice requirements. Id.
at 311. The buyer removed the case to federal court.
Id. The only disputed issue concerned whether Grable got “notice within the meaning of the federal
statute.” See id. at 315 (emphasis added). And the
Supreme Court held that such a claim “arises under”
federal law because (among other things) there was
nothing in the suit but federal law: state law provided the remedy, a declaration of ownership—but
ownership could not be decided without deciding if the
federal government respected federal legal demands.
See id. In other words, “[d]eciding an issue of federal
law was inescapable.” Hartland Lakeside Joint No. 3
Sch. Dist. v. WEA Ins. Corp., 756 F.3d 1032, 1035 (7th
Cir. 2014) (emphasis added). Importantly too, “the national government itself was vitally concerned about
the outcome; an adverse decision could undercut its
ability to collect taxes.” See id.
Nothing at all similar is involved here. True, the
Energy Companies say that Rhode Island’s claims are
21a
“bound up with,” “implicate,” or “seek[ ] to replace”
various “federal interests”—including energy policy,
economic policy, environmental regulation, national
security, and foreign affairs. But faced with comparable arguments, cases akin to this one flatly reject the
idea that federal law is an essential element to the
kind of classic state-law claims Rhode Island raises—
claims, as we keep saying, that accuse the Energy
Companies of contributing to climate change that (per
the complaint) is wreaking havoc on the state’s infrastructure and coastal communities. See San Mateo,
2022 WL 1151275, at *5; BP P.L.C., 31 F.4th at
208-15. To paraphrase these courts: none of Rhode
Island’s claims has as an element a violation of federal
law; the Energy Companies pinpoint no specific federal issue that must necessarily be decided for Rhode
Island to win its case; and their speaking about federal
law or federal concerns in the most generalized way is
not enough for Grable purposes. See San Mateo, 2022
WL 1151275, at *5; BP P.L.C., 31 F.4th 208-15. Hence
Rhode Island’s state-law claims—like those in San
Mateo and BP P.L.C.—are not among the rare few that
“can[ ] be squeezed into the slim category Grable
exemplifies.” See Empire Healthchoice, 547 U.S. at
701.
Complete Preemption
As intimated above, Congress can pass a statute so
broad that any complaint raising claims in that area
is necessarily federal in nature and so is removable to
federal court. See, e.g., Beneficial, 539 U.S. at 8.
“Complete preemption,” we must say (echoing a circuit relative of ours) “is ‘a doctrine only a judge could
love’”—“and one only judges could confusingly name.”
See Loffredo v. Daimler AG, 500 F. App’x 491, 495
(6th Cir. 2012) (quoting Bartholet v. Reishauer A.G.
22a
(Zurich), 953 F.2d 1073, 1075 (7th Cir. 1992)). “More
productively thought of as a jurisdictional rather than
a preemptive rule, complete preemption amounts to
an exception to the well-pleaded complaint rule that
converts a state-law claim . . . into a federal claim.”
Id.
Invoking this doctrine, the Energy Companies
contend that the Clean Air Act completely preempts
Rhode Island’s claims and thus authorizes removal.
So having ruled above “that the federal common law
does not completely preempt the state-law claims, we
now consider whether the federal act that displaced the
federal common law—the [Clean Air Act]—completely
preempts them.” See Suncor, 25 F.4th at 1263. No
circuit to consider the kind of argument the Energy
Companies press here has accepted it. See San Mateo,
2022 WL 1151275, at *6; BP P.L.C., 31 F.4th at 215-17;
Suncor, 25 F.4th 1263-65. And we will not be the first.
“[T]he Clean Air Act is not one of the three statutes that the Supreme Court has determined has extraordinary preemptive force.”10 See San Mateo, 2022
WL 1151275, at *6 (quoting Oakland, 969 F.3d at 907);
BP P.L.C., 31 F.4th at 215; Suncor, 25 F.4th at 1257.
Also—and as noted previously—complete preemption
requires that defendants show Congress clearly intended to supersede state authority. See, e.g., Metro.
Life, 481 U.S. at 65-66. But the Clean Air Act says that
“pollution prevention . .. and air pollution control at its
source is the primary responsibility of States and local governments.” See 42 U.S.C. § 7401(a)(3) (emphasis added); see also BP P.L.C., 31 F.4th at 215;
10
Recall our earlier footnoted comments about the National
Bank Act, the Employee Retirement Income Security Act, and
the Labor Management Relations Act.
23a
Oakland, 969 F.3d at 908. And the Act has two
“savings clauses” that expressly preserve non-Clean
Air Act claims. See BP P.L.C., 31 F.4th at 216 (discussing “savings clauses that preserve state and local governments’ legal right to impose standards and limitations on air pollution that are stricter than national
requirements”); see also Oakland, 969 F.3d at 907-08
(noting that the Act “preserves state-law causes of action pursuant to a saving clause” that “‘makes clear
that states retain the right to “adopt or enforce” common law standards that apply to emissions’ and preserves ‘[s]tate common law standards . . . against
preemption’” (discussing 42 U.S.C. § 7416, and quoting Merrick v. Diageo Ams. Supply, Inc., 805 F.3d 685,
690, 691 (6th Cir. 2015), which cites in turn W. Va.
Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 98 (1991))). All
of which takes complete preemption off the table. See
Suncor, 25 F.4th at 1263; accord BP P.L.C., 31 F.4th
at 215-17; Oakland, 969 F.3d at 907-08. If more were
needed, another prerequisite of complete preemption—do not forget—is that a statute supplies a federal cause of action to replace the state claim. See,
e.g., Beneficial, 539 U.S. at 9; López-Muñoz, 754 F.3d
at 5 (commenting that Supreme Court opinions “finding complete preemption share a common denominator: exclusive federal regulation of the subject matter
of the asserted state claim, coupled with a federal
cause of action for wrongs of the same type”). Accordingly then, the Clean Air Act’s not providing an “exclusive federal cause of action for suits against private polluters” makes complete preemption a nonstarter too.
24a
See Suncor, 25 F.4th at 1263; accord BP P.L.C., 31
F.4th 215-17; Oakland, 969 F.3d at 907-08.11
Federal Enclave
Federal courts have federal-question jurisdiction
over tort claims arising on federal enclaves. See, e.g.,
BP P.L.C., 31 F.4th at 217-18; Suncor, 25 F.4th at
1271. Rhode Island’s complaint, however, specifically
avoids seeking relief for damages to any federal lands in
the Ocean State.12 Faced with this reality, the Energy
Companies claim that a big chunk of their “operative
activities occurred on federal land”—like at the “Elk
Hills Naval Petroleum Reserve” in California. See
generally BP P.L.C., 31 F.4th at 217 (stating that “naval installations are generally considered federal enclaves”). The problem for them, though, is that “[t]he
doctrine of federal enclave jurisdiction generally requires that all pertinent events t[ake] place on a federal enclave.” See Suncor, 25 F.4th at 1271 (alterations by the Suncor Court and quotations omitted).
And some of the pertinent events—e.g., the Energy
Companies’ deceptive marketing and Rhode Island’s injuries— occurred outside federal enclaves.
See BP P.L.C., 31 F.4th at 217-18 (explaining that
11
The Energy Companies make much of a Clean Air Act provision that lets states initiate federal-court challenges to actions
by the Environmental Protection Agency regarding nationwide
emissions. But that section has nothing to do with Rhode Island’s
claims here, which (once again) concern the Energy Companies’
deceptive promotion of damaging fossil-fuel products. See BP
P.L.C., 31 F.4th at 215-17 (rejecting a similar complete-preemption argument); Suncor, 25 F.4th at 1264-65 (ditto); Oakland, 969
F.3d at 908 (ditto again).
12
“Ocean State” is a nickname of Rhode Island. “Little Rhody” is another. See “List of U.S. state and territory nicknames,” Wikipedia,
https://en.wikipedia.org/wiki/List_of_U.S._state_and_territory_nicknames.
25a
“federal-question jurisdiction is not conferred merely
because some of Defendants’ activities occurred on
military installations”); see also San Mateo, 2022
WL 1151275, at *8 (finding that “[t]he connection between conduct on federal enclaves and the Counties’
alleged injuries is too attenuated and remote to establish that the Counties’ cause of action is governed by
federal law applicable to any federal enclave”).
Enough said about that issue.
OCSLA Jurisdiction
Pointing to their “substantial” activities on the
outer continent shelf (“OCS”)—they say “the five” biggest “operators” there since the mid-1990s “have included at least three entities among the [Energy Companies] here (or a predecessor) or one of their subsidiaries”—the Energy Companies also maintain that federal jurisdiction exists under OCSLA.13 That statute
extends such jurisdiction to “cases and controversies
arising out of, or in connection with[,] . . . any operation conducted on the [OCS] which involves exploration, development, or production of . . . minerals.” 43
U.S.C. § 1349(b)(1) (emphasis added). The italicized
phrase—“in connection with”—bears directly on this
case. Our circuit (as the parties seem to agree) has
not yet addressed that phrase’s meaning. Which explains why the Energy Companies rely big time on
cases from the Fifth Circuit that have.14
OCSLA jurisdiction exists, says the Fifth Circuit, if “(1) the activities that caused the injury
13
The OCS includes the seabed and natural resources lying “3
miles to 200 miles off the United States coast.” See Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 472, (D.C.
Cir. 2009); see also 43 U.S.C. §§ 1301(a), 1331(a).
14
The Fifth Circuit is quite familiar with OCSLA, apparently.
26a
constituted an ‘operation’ ‘conducted on the [OCS]’ that
involved the exploration and production of minerals,
and (2) the case ‘arises out of, or in connection with’ the
operation,” In re Deepwater Horizon, 745 F.3d 157,
163 (5th Cir. 2014) (“Deepwater”) (quoting
OCSLA)— a “jurisdictional test” intended “to cover a
‘“wide range of activity occurring beyond the territorial
waters of the states,”’” Suncor, 25 F.4th at 1272 (quoting Barker v. Hercules Offshore, Inc., 713 F.3d 208,
213 (5th Cir. 2013), in turn quoting Texaco Expl.
& Prod., Inc. v. AmClyde Engineered Prods. Co., 448
F.3d 760, 768 (5th Cir. 2006), amended on reh’g, 453
F.3d 652 (5th Cir. 2006)); accord BP P.L.C., 31 F.4th at
219-20. Though the Energy Companies argue otherwise, the test’s “second prong”—the only prong in dispute—might require “‘a but-for connection.’” See Suncor, 25 F.4th at 1272 (quoting Deepwater, 745 F.3d
at 163); accord BP P.L.C., 31 F.4th at 220 (“declin[ing]
to disrupt th[e] settled and sensible trend” of cases
holding that “‘arise out of, or in connection with’ under
the OCSLA . . . imposes a but-for relationship between a party’s case and operations on the OCS”). Cf.
generally Maracich v. Spears, 570 U.S. 48, 60 (2013)
(noting that “[t]he phrase ‘in connection with’ provides
little guidance without a limiting principle”).15 We say
“might” because the Ninth Circuit holds “that the
15
Arguing against the but-for standard, the Energy Companies
hype Ford Motor Co. v. Montana Eighth Judicial District Court,
141 S. Ct. 1017 (2021). Ford Motor Co. held that the “requirement of a ‘connection’ between a plaintiff’s suit and a defendant’s
activities” for a court to exercise personal jurisdiction is not the
same as but-for causation. See id. at 1026. Like the Ninth Circuit, however, “we are skeptical that Ford Motor Co.’s interpretation of judicial rules delineating the scope of a court’s specific personal jurisdiction is pertinent in this different statutory context.”
See San Mateo, 2022 WL 1151275, at *10.
27a
language of § 1349(b), ‘aris[e] out of, or in connection
with,’ does not necessarily require but-for causation.”
See San Mateo, 2022 WL 1151275, at *10 (emphasis
added). But we need not wrestle the but-for-causation
issue to the ground today. And that is because “[d]espite [the] different approach[es] to construing
§ 1349(b), our sister circuits’ application of § 1349(b)
leads to a materially similar result,” see id.—as we
now explain.
Cases finding OCSLA jurisdiction involve “either
. . . a direct physical connection to an OCS operation
(collision, death, personal injury, loss of wildlife, toxic
exposure) or a contract or property dispute directly related to [that] operation.” See id. (quoting Suncor, 25
F.4th at 1273 (stockpiling cases)). The “core” of Rhode
Island’s suit concerns how the Energy Companies
“knew what fossil fuels were doing to the environment
and continued to sell them anyway, all while misleading consumers about the true impact of the products.”
See Shell Oil, 979 F.3d at 54. The Energy Companies
talk up how “extensive [their] OCS operations” are.
That may be. But Rhode Island’s claims concern their
“overall conduct, not whatever unknown fraction of
their fossil fuels was produced on the OCS.” See Bd. of
City. Comm’rs of Boulder Cty. v. Suncor Energy
(U.S.A.) Inc., 405 F. Supp. 3d 947, 979 (D. Colo.
2019).16 And just because the Energy Companies’
have “extensive OCS operations” does not mean that
Rhode Island’s claims satisfy OCSLA’s in-connectionwith benchmark. If it did then any suit against fossilfuel companies regarding any adverse impact linked
to their products would trigger OCSLA federal jurisdiction because (to quote Rhode Island’s latest brief)
“a significant portion” of the oil and gas we use comes
16
That is the decision the Tenth Circuit affirmed in Suncor.
28a
from the OCS—a consequence too absurd to be attributed to Congress. See generally Sheridan v. United
States, 487 U.S. 392, 402 n.7 (1988) (explaining that
“courts should strive to avoid attributing absurd designs to Congress”). Anyhow, Rhode Island’s allegations “do not refer to actions taken on the [OCS].” See
San Mateo, 2022 WL 1151275, at *11. Ergo, the Energy Companies have not shown that Rhode Island’s
“tort claims ‘aris[e] out of’” or are “‘in connection with’
[their] operations on the [OCS] for purposes of”
OCSLA jurisdiction. See id.
Pulling out all the stops, the Energy Companies
write that “OCSLA jurisdiction is also proper for the
additional and independent reason that the relief
[Rhode Island] seeks would” present an obstacle to
“the efficient exploitation of the minerals from the
OCS”—thus jeopardizing “the continued scope and viability of [their] OCS operations and the federal OCS
leasing program as a whole.” Their theory is that a
large monetary judgment against them “would inevitably deter” OCS operations. But like the Tenth Circuit, we fail “to see how such a prospective theory of
negative economic incentives—flowing from a lawsuit
that does not directly attack OCS exploration, resource development, or leases—is anything other than
contingent and speculative.” See Suncor, 25 F.4th at
1275. And “contingent and speculative” do not suffice
for OCSLA jurisdiction purposes. See id.; accord BP
P.L.C., 31 F.4th at 222.
Admiralty Jurisdiction
The Energy Companies also think they can get the
case into federal court under admiralty jurisdiction
because (to quote their brief) “fossil-fuel extraction occurs on vessels engaged in maritime commerce.” We
think not, however.
29a
The Constitution extends federal jurisdiction to
“admiralty and maritime” cases. See U.S. Const., art.
III, § 2, cl. 1. And Congress grants federal courts jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” See 28
U.S.C. § 1333(1).17 While “not entirely clear,” it seems
the drafters of the saving-to-suitors clause intended to
“preserve[ ] remedies and the concurrent jurisdiction
of state courts over some admiralty and maritime
claims.” See Lewis v. Lewis & Clark Marine, Inc.,
531 U.S. 438, 444, 445 (2001).18
The district judge in our case relied on a line of
decisions indicating that admiralty issues—without
more—cannot make a case removable from state to
federal court. The Energy Companies call this reversible error, writing that a recent amendment to section 1441 (the general-removal statute) jettisoned jargon that these courts had used “to block the removal
of admiralty claims absent another basis for federal
jurisdiction.” “[C]ourts,” however, “split on whether
the working of the amended statute changes the rule
for removal of maritime claims.” BP P.L.C., 31
F.4th at 226 (quoting Thomas J. Schoenbaum, Admiralty and Maritime Law § 4.3, Westlaw (database updated Dec. 2021)). We need not choose sides, because
even if saving-to-suitors actions are freely removable
under section 1441 (and we are not saying either way),
17
“Suitors” in this context is just another word for “plaintiffs.”
See 14A Federal Practice & Procedure Jurisdiction § 3672.
18
Courts often use “admiralty” and “maritime” synonymously.
See Adamson v. Port of Bellingham, 907 F.3d 1122, 1125 n.4 (9th
Cir. 2018). See generally Sisson v. Ruby, 497 U.S. 358, 362 (1990)
(using “admiralty jurisdiction” and “maritime jurisdiction” interchangeably).
30a
the Energy Companies still face an insurmountable
obstacle.
A tort claim comes within our admiralty jurisdiction if the party invoking that jurisdiction “satisf[ies]
conditions both of location and of connection with maritime activity.” See Jerome B. Grubart, Inc. v. Great
Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995).
The test is intricate. But we can make short work of
the Energy Companies’ effort by focusing on one facet.
When, as here, the “injury suffered” is on “land,” the
jurisdiction-invoking party must show that “a vessel on
navigable water” caused the tort. See id. So even if
the Energy Companies could show that fossil-fuel extraction occurs on “vessels,” that gets them nowhere.19
We say that because Rhode Island does not allege any
vessel caused the land-based injuries (the complaint alleges their dangerous products and misleading promotion caused Rhode Island’s injuries, not a vessel)—a
point made in Rhode Island’s brief, without contradiction from the Energy Companies in their reply brief.
And that means no admiralty jurisdiction exists in
this case. See BP P.L.C., 31 F.4th at 227.
Bankruptcy Jurisdiction
As we noted a little while ago, a party in a civil suit
may remove claims “related to” bankruptcy cases.
See 28 U.S.C. §§ 1452(a), 1334(b). Seizing on this, the
Energy Companies tell us that Rhode Island’s complaint is “related to” bankruptcy cases because it
“seeks to hold [them] liable for the pre-bankruptcy operations of Texaco Inc. (a subsidiary of Chevron) and
19
Rhode Island apparently disagrees with the Energy Companies’ claim that “a floating oil rig,” for example, is a vessel used
for navigation. Given our “even if” approach, we have no need to
wade into that debate.
31a
Getty Petroleum.” “Texaco’s confirmed bankruptcy
plan,” the Energy Companies say, “bars various
claims arising against it” before “March 15, 1988.”
And, they add, Rhode Island’s “allegations against
Texaco include conduct” before that date. Quoting a
Fourth Circuit opinion—Valley Historic Ltd. Partnership v. Bank of New York, 486 F.3d 831, 836-37 (4th
Cir. 2007)—they then write that deciding Rhode Island’s “claims would ‘affect the interpretation, implementation, consummation, execution, or administration of [Texaco’s] confirmed plan.’”20
But taking another page from the Fourth Circuit’s BP P.L.C. opinion—which considered and rejected a strikingly similar argument—we rule not only
that “there is no indication that the bankruptcy plan
involved climate change” but also that the Energy
Companies offer no convincing explanation for “how a
judgment more than thirty years later could impact
Texaco’s estate.” See 31 F.4th at 223. And even if they
think their appellate papers give the needed indication and explanation, we would consider the argument
“too skeletal or confusingly constructed and thus
waived.” See Págan-Lisboa v. Soc. Sec. Admin., 996
F.3d 1, 7 (1st Cir. 2021) (quotation marks omitted).
The Energy Companies also vaguely suggest (emphasis ours) that Rhode Island’s “theories of liability” are
based on the actions of their “predecessors, subsidiaries, and affiliates” and so “affect additional bankruptcy
matters.” But that perfunctory comment is insufficient
to preserve the issue for appeal. See, e.g., Rodríguez,
659 F.3d at 175-76. The bottom line is that “we find no
federal jurisdiction under the bankruptcy[-]removal
statute.” See BP P.L.C., 31 F.4th at 225.
20
The internal quotations are from the Fourth Circuit case.
32a
Final Words
We affirm the district judge’s order remanding the
case to Rhode Island state court. Costs to Rhode Island.
33a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
STATE OF
RHODE ISLAND,
C.A. No. 18-395 WES
Plaintiff,
v.
CHEVRON CORP.
et al.,
Defendants.
OPINION AND ORDER
WILLIAM E. SMITH, Chief Judge.
The State of Rhode Island brings this suit against
energy companies it says are partly responsible for
our once and future climate crisis. It does so under
state law and, at least initially, in state court. Defendants removed the case here; the State asks that it go
back. Because there is no federal jurisdiction under
the various statutes and doctrines adverted to by Defendants, the Court GRANTS the State’s Motion to
Remand, ECF No. 40.
I.
Background1
Climate change is expensive, and the State wants
help paying for it. Compl. ¶¶ 8, 12. Specifically from
Defendants in this case, who together have extracted,
advertised, and sold a substantial percentage of the
1
As given in the State’s complaint. See Ten Taxpayer Citizens
Grp. v. Cape Wind Assocs., 373 F.3d 183, 186 (1st Cir. 2004)
34a
fossil fuels burned globally since the 1960s. Id. ¶¶ 7, 12,
19, 97. This activity has released an immense amount of
greenhouse gas into the Earth’s atmosphere, id., changing its climate and leading to all kinds of displacement,
death (extinctions, even), and destruction, id. ¶¶ 53, 89–
90, 199–213, 216. What is more, Defendants understood
the consequences of their activity decades ago, when
transitioning from fossil fuels to renewable sources of energy would have saved a world of trouble. Id. ¶¶ 106–
46; 184–96. But instead of sounding the alarm, Defendants went out of their way to becloud the emerging
scientific consensus and further delay changes—however existentially necessary—that would in any way interfere with their multibillion-dollar profits. Id. ¶¶ 147–
77. All while quietly readying their capital for the coming fallout. Id. ¶¶ 178–83.
Pleading eight state-law causes of action, the State
prays in law and equity to relieve the damage Defendants have and will inflict upon all the non-federal property and natural resources in Rhode Island. Id. ¶¶ 225–
315. Casualties are expected to include the State’s
manmade infrastructure, its roads, bridges, railroads,
dams, homes, businesses, and electric grid; the location
and integrity of the State’s expansive coastline, along
with the wildlife who call it home; the mild summers
and the winters that are already barely tolerable; the
State fisc, as vast sums are expended to fortify before
and rebuild after the increasing and increasingly severe
weather events; and Rhode Islanders themselves, who
will be injured or worse by these events. Id. ¶¶ 8, 12,
15–18, 88–93, 197–218. The State says it will have
more to bear than most: Sea levels in New England are
increasing three to four times faster than the global average, and many of the State’s municipalities lie below
the floodplain. Id. ¶¶ 59–61, 76.
35a
This is, needless to say, an important suit for both
sides. The question presently before the Court is
where in our federal system it will be decided.
II. Discussion
Invented to protect nonresidents from state-court
tribalism, 14C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3721 (rev. 4th ed.
2018), the right to remove is found in various statutes,
which courts have taken to construing narrowly and
against removal. Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 108–09 (1941); Esposito v. Home Depot
U.S.A., Inc., 590 F.3d 72, 76 (1st Cir. 2009); Rosselló–
González v. Calderón-Serra, 398 F.3d 1, 11 (1st Cir.
2004). Defendants cite several of these in their notice as
bases for federal-court jurisdiction. Notice of Removal,
ECF No. 1. None, however, allows Defendants to carry
their burden of showing the case belongs here. See
Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97
(1921) (“[D]efendant must take and carry the burden
of proof, he being the actor in the removal proceeding.”).
A. General Removal
The first Defendants invoke is the general removal
statute. 28 U.S.C. § 1441. Section 1441 allows a defendant to remove “any civil action brought in a State
court of which the district courts of the United States
have original jurisdiction.” The species of original jurisdiction Defendants claim exists in this case is federal-question jurisdiction. 28 U.S.C. § 1331. They argue, in other words, that Plaintiff’s case arises under
federal law. Whether a case arises under federal law
is governed by the well-pleaded complaint rule. Vaden
v. Discover Bank, 556 U.S. 49, 60 (2009). The rule
states that removal based on federal-question
36a
jurisdiction is only proper where a federal question appears on the face of a well-pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). This
rule operationalizes the maxim that a plaintiff is the
master of her complaint: She may assert certain
causes of action and omit others (even ones obviously
available), and thereby appeal to the jurisdiction of
her choice. Merrell Dow Pharm. Inc. v. Thompson, 478
U.S. 804, 809 n.6 (1986); Caterpillar Inc., 482 U.S. at
392 (“[Plaintiff] may avoid federal jurisdiction by exclusive reliance on state law.”).
The State’s complaint, on its face, contains no federal question, relying as it does on only state-law
causes of action. See Compl. ¶¶ 225–315. Defendants
nevertheless insist that the complaint is not wellpleaded, and that if it were, it would, in fact, evince a
federal question on which to hang federal jurisdiction.
Here they invoke the artful-pleading doctrine. “[A]n independent corollary of the well-pleaded complaint rule
that a plaintiff may not defeat removal by omitting to
plead necessary federal questions in a complaint,” Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S.
Cal., 463 U.S. 1, 22 (1983), the artful-pleading doctrine
is “designed to prevent a plaintiff from unfairly placing
a thumb on the jurisdictional scales,” López–Muñoz v.
Triple–S Salud, Inc., 754 F.3d 1, 5 (1st Cir. 2014). See
Wright & Miller, supra, § 3722.1. According to Defendants, the State uses two strains of artifice in an attempt
to keep its case in state court: one based on complete
preemption, the other on a substantial federal question.
See Wright & Miller, supra, § 3722.1 (discussing the
three types of case in which the artful pleading doctrine
has applied).
37a
1.
Complete Preemption
Taking these in turn, Defendants first argue—and
two district courts have recently held—that a state’s
public-nuisance claim premised on the effects of climate
change is “necessarily governed by federal common law.”
California v. BP P.L.C., Nos. C 17-06011 WHA, C 1706012 WHA, 2018 WL 1064293, at *2 (N.D. Cal. Feb. 27,
2018); accord City of New York v. BP P.L.C., 325 F.
Supp. 3d 466, 471–72 (S.D.N.Y. 2018). Defendants, in
essence, want the Court to peek beneath the purported
state-law façade of the State’s public-nuisance claim,
see the claim for what it would need to be to have a
chance at viability, and convert it to that (i.e., into a
claim based on federal common law) for purposes of the
present jurisdictional analysis. The problem for Defendants is that there is nothing in the artful-pleading doctrine that sanctions this particular transformation.
The closest the doctrine gets to doing so is called
complete preemption. Compare Defs.’ Opp’n to Pl.’s Mot.
to Remand 9, ECF No. 87 (“[T]he Complaint pleads
claims that arise, if at all, under federal common law
. . . .”) and id. at 19 (“[Plaintiff’s claims] are necessarily
governed by federal common law.”), with Franchise Tax
Bd., 463 U.S. at 24 (“[I]f a federal cause of action completely preempts a state cause of action any complaint
that comes within the scope of the federal cause of action
necessarily ‘arises under’ federal law.”); see also Mayor
of Balt. v. BP P.L.C., Civil Action No. ELH-18-2357, 2019
WL 2436848, at *6–7 (D. Md. June 20, 2019). Complete
preemption is different from ordinary preemption, which
is a defense and therefore does not provide a basis for
removal, “even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the
defense is the only question truly at issue in the case.”
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Franchise Tax Bd., 463 U.S. at 14, 24.2 It is a difference
of kind, moreover, not degree: complete preemption is
jurisdictional. López–Muñoz, 754 F.3d at 5; Lehmann
v. Brown, 230 F.3d 916, 919–920 (7th Cir. 2000); Wright
& Miller, supra, § 3722.2. When a state-law cause of action is completely preempted, it “transmogrifies” into,
Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9,
17–18 (1st Cir. 2018), or less dramatically, “is considered, from its inception, a federal claim, and therefore
arises under federal law,” Caterpillar Inc., 482 U.S. at
393. The claim is then removable pursuant to Section
1441. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8
(2003).
Congress, not the federal courts, initiates this “extreme and unusual” mechanism. Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 47–49 (1st Cir. 2008); see,
e.g., Beneficial Nat’l Bank, 539 U.S. at 8 (“[W]here this
Court has found complete pre-emption . . . the federal
statutes at issue provided the exclusive cause of action
for the claim asserted and also set forth procedures and
remedies governing that cause of action.” (emphasis
added)); Caterpillar Inc., 482 U.S. at 393 (“On occasion,
2
Defendants cite Boyle v. United Technologies Corp. early in
their brief, and highlighted it at oral argument, as recommending that this Court consider the State’s suit as one implicating
“uniquely federal interests” and consequently governed by federal common law. 487 U.S. 500, 504 (1988). Boyle was not a
removal case, but rather one brought in diversity, where the
Court held that federal common law regarding the performance
of federal procurement contracts preempts, in the ordinary
sense, state tort law. Id. at 502, 507–08, 512. Boyle therefore
does not help Defendants. And although of no legal moment, it is
nonetheless a matter of historical interest that out of all his opinions, Boyle was the one Justice Scalia would have most liked to
have had back. Gil Seinfeld, The Good, the Bad, and the Ugly:
Reflections of a Counterclerk, 114 Mich. L. Rev. First Impressions 111, 115 & n.9 (2016).
39a
the Court has concluded that 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.”
(quotation marks omitted) (emphasis added)); Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58, 63–64 (1987) (“Congress may so completely pre-empt a particular area that
any civil complaint raising this select group of claims is
necessarily federal in character.” (emphasis added));
López–Muñoz, 754 F.3d at 5 (“The linchpin of the complete preemption analysis is whether Congress intended
that federal law provide the exclusive cause of action for
the claims asserted by the plaintiff.” (emphasis added));
Fayard, 533 F.3d at 45 (“Complete preemption is a shorthand for the doctrine that in certain matters Congress
so strongly intended an exclusive federal cause of action
that what a plaintiff calls a state law claim is to be recharacterized as a federal claim.” (first emphasis
added)); Marcus v. AT&T Corp., 138 F.3d 46, 55 (2d Cir.
1998) (“[T]here is no complete preemption without a
clear statement to that effect from Congress.” (emphasis
added)); Wright & Miller, supra, § 3722.2 (“In concluding
that a claim is completely preempted, a federal court
finds that Congress desired not just to provide a federal
defense to a state-law claim but also to replace the
state-law claim with a federal law claim . . . .” (emphasis added)). Without a federal statute wielding—or
authorizing the federal courts to wield—“extraordinary preemptive power,” there can be no complete
preemption. Metro. Life Ins. Co., 481 U.S. at 65.
Defendants are right that transborder air and water disputes are one of the limited areas where federal
common law survived Erie R. Co. v. Tompkins, 304
U.S. 64, 78 (1938). See, e.g., Am. Elec. Power Co. v.
Connecticut, 564 U.S. 410, 420–21 (2011); Illinois v.
City of Milwaukee, 406 U.S. 91, 103 (1972) (“When we
40a
deal with air and water in their ambient or interstate
aspects, there is a federal common law.”). At least some
of it, though, has been displaced by the Clean Air Act
(“CAA”). See Am. Elec. Power Co., 564 U.S. at 424 (holding that “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 power plants”); Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 856–58 (9th Cir. 2012).
But whether displaced or not, environmental federal
common law does not—absent congressional say-so—
completely preempt the State’s public-nuisance claim,
and therefore provides no basis for removal. Cf. Marcus, 138 F.3d at 54 (“After Metropolitan Life, it would be
disingenuous to maintain that, while the [Federal Communications Act of 1934] does not preempt state law
claims directly, it manages to do so indirectly under the
guise of federal common law.”).
With respect to the CAA, Defendants argue it too
completely preempts the State’s claims. The statutes
that have been found to completely preempt state-law
causes of action—the Employee Retirement Income
Security Act, for example, see Metro. Life Ins. Co., 481
U.S. at 67—all do two things: They “provide[ ] the exclusive cause of action for the claim asserted and also
set forth procedures and remedies governing that cause
of action.” Beneficial Nat’l Bank, 539 U.S. at 8; Fayard,
533 F.3d at 47 (“For complete preemption, the critical
question is whether federal law provides an exclusive
substitute federal cause of action that a federal court
(or possibly a federal agency) can employ for the kind of
claim or wrong at issue.”). Defendants fail to point to
where in the CAA this happens. As far as the Court can
tell, the CAA authorizes nothing like the State’s claims,
much less to the exclusion of those sounding in state
law. In fact, the CAA itself says that controlling air
41a
pollution “is the primary responsibility of States and local governments.” 42 U.S.C. § 7401(a)(3); see Am. Elec.
Power Co., 564 U.S. at 428 (“The Act envisions extensive cooperation between federal and state authorities
. . . .”); EPA v. EME Homer City Generation, L.P., 572
U.S. 489, 537 (2014) (Scalia, J., dissenting) (“Down to
its very core, the Clean Air Act sets forth a federalismfocused regulatory strategy.”).
Furthermore, in its section providing for citizen
suits, the CAA saves “any right which any person (or
class of persons) may have under any statute or common
law to seek enforcement of any emission standard or limitation or to seek any other relief.” 42 U.S.C. § 7604(e).
One circuit court has taken this language as an indication that “Congress did not wish to abolish state control”
over remediating air pollution. Her Majesty the Queen
in Right v. City of Detroit, 874 F.2d 332, 343 (6th Cir.
1989); see also Am. Fuel & Petrochemical Mfrs. v.
O’Keefe, 903 F.3d 903 (9th Cir. 2018) (“Air pollution prevention falls under the broad police powers of the states,
which include the power to protect the health of citizens
in the state.” (quotation marks omitted)). Elsewhere, the
Act protects “the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any
requirement respecting control or abatement of air pollution . . . .” 42 U.S.C. § 7416. A statute that goes so
far out of its way to preserve state prerogatives cannot
be said to be an expression of Congress’s “extraordinary pre-emptive power” to convert state-law into
42a
federal-law claims. Metro. Life Ins. Co., 481 U.S. at
65. No court has so held, and neither will this one. 3
2.
Grable Jurisdiction
There is, as mentioned above, a second brand of artful pleading of which Defendants accuse the State.
They aver the State has hid within their state-law
claims a “federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal
and state judicial responsibilities.” Grable & Sons
Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
314 (2005). If complete preemption is a state-law cloche
covering a federal-law dish, Grable jurisdiction is a
state-law recipe requiring a federal-law ingredient.
Although the latter, like the former, is rare. See Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S.
677, 699 (2006) (describing Grable jurisdiction as lying
in a “special and small category” of cases). And it too
does not exist here, because Defendants have not located “a right or immunity created by the Constitution
or laws of the United States” that is “an element and an
essential one, of the [State]’s cause[s] of action.” Gully
v. First Nat. Bank in Meridian, 299 U.S. 109, 112
(1936).
The State’s are thoroughly state-law claims.
Compl. ¶¶ 225–315. The rights, duties, and rules of
decision implicated by the complaint are all supplied
by state law, without reference to anything federal.
3
Defendants toss in an argument that the foreign-affairs doctrine completely preempts the State’s claims. The Court finds
this argument without a plausible legal basis. See Mayor of
Balt., 2019 WL 2436848, at *12 (“[T]he foreign affairs doctrine is
inapposite in the complete preemption context.” (quotation
marks omitted)).
43a
See id. Defendants’ best cases are all distinguishable
on this point. See Gunn v. Minton, 568 U.S. 251, 259
(2013) (finding Grable jurisdiction lies where “[t]o prevail on his legal malpractice claim . . . [plaintiff] must
show that he would have prevailed in his federal patent infringement case . . . [which] will necessarily require application of patent law to the facts of [his]
case”); Grable, 545 U.S. at 314–15 (same where plaintiff “premised its superior title claim on a failure by
the IRS to give it adequate notice, as defined by federal law”); Bd. of Comm’rs v. Tenn. Gas Pipeline Co.,
850 F.3d 714, 722 (5th Cir. 2017) (same where “[plaintiff’s] complaint draws on federal law as the exclusive
basis for holding [d]efendants liable for some of their
actions”); One & Ken Valley Hous. Grp. v. Me. State
Hous. Auth., 716 F.3d 218, 225 (1st Cir. 2013) (same
where “the “dispute . . . turn[s] on the interpretation
of a contract provision approved by a federal agency
pursuant to a federal statutory scheme” (quotation
marks omitted)); R.I. Fishermen’s All., Inc. v. R.I.
Dep’t of Envtl. Mgmt., 585 F.3d 42, 50 (1st Cir. 2009)
(same where the federal question “is inherent in the
state-law question itself because the state statute expressly references federal law”).
By mentioning foreign affairs, federal regulations,
and the navigable waters of the United States, Defendants seek to raise issues that they may press in the
course of this litigation, but that are not perforce presented by the State’s claims. Accord Cty. of San Mateo
v. Chevron Corp., 294 F. Supp. 3d 934, 938 (N.D. Cal.
2018) (declining to exercise Grable jurisdiction where
“defendants have not pointed to a specific issue of federal law that must necessarily be resolved to adjudicate
the state law claims” and instead “mostly gesture to federal law and federal concerns in a generalized way”); cf.
R.I. Fishermen’s All., 585 F.3d at 49 (upholding exercise
44a
of Grable jurisdiction where it was “not logically possible for the plaintiffs to prevail on [their] cause of action
without affirmatively answering the embedded question of . . . federal law”). These are, if anything, premature defenses, which even if ultimately decisive, cannot
support removal. See Merrell Dow, 478 U.S. at 808 (“A
defense that raises a federal question is inadequate to
confer federal jurisdiction.”); Franchise Tax Bd., 463
U.S. at 13 (holding that state-law claim did not support
federal jurisdiction where “California law establish[ed]
. . . [the relevant] set of conditions, without reference to
federal law . . . [which would] become[ ] relevant only by
way of a defense to an obligation created entirely by
state law, and then only if appellant has made out a
valid claim for relief under state law”). Nor, for that
matter, can the novelty of this suite of issues as applied
to claims like the State’s. Merrell Dow, 478 U.S. at 817.
B. Less-General Removal
The Court will be brief in dismissing Defendants’
arguments under bespoke jurisdictional law. The
Outer Continental Shelf Lands Act does not grant federal jurisdiction here, see 43 U.S.C. § 1349(b): Defendants’ operations on the Outer Continental Shelf may
have contributed to the State’s injuries; however, Defendants have not shown that these injuries would not
have occurred but for those operations. See In re DEEPWATER HORIZON, 745 F.3d 157, 163–64 (5th Cir.
2014). There is no federal-enclave jurisdiction: Although federal land used “for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings,” U.S. Const. art. I, § 8, cl. 17, exists in Rhode Island, and elsewhere may have been the site of Defendants’ activities, the State’s claims did not arise there,
especially since its complaint avoids seeking relief for
damages to any federal lands. See Washington v.
45a
Monsanto Co., 274 F. Supp. 3d 1125, 1132 (W.D.
Wash. 2017) (holding that exercise of federal-enclave
jurisdiction improper where “Washington avowedly
does not seek relief for [toxic-chemical] contamination
of federal territories”).
No causal connection between any actions Defendants took while “acting under” federal officers or agencies and the allegations supporting the State’s claims
means there are not grounds for federal-officer removal,
28 U.S.C. § 1442(a)(1): Defendants cannot show the alleged promotion and sale of fossil fuels abetted by a sophisticated misinformation campaign were “justified by
[their] federal duty.” Mesa v. California, 489 U.S. 121,
131–32 (1989). They are also unable to show removal is
proper under the bankruptcy-removal statute, 28
U.S.C. § 1452(a), or because of admiralty jurisdiction,
28 U.S.C. § 1333(1). Not the former because this is an
action “designed primarily to protect the public safety
and welfare. McMullen v. Sevigny (In re McMullen),
386 F.3d 320, 325 (1st Cir. 2004); see 28 U.S.C.
§ 1452(a) (excepting from bankruptcy removal any
“civil action by a governmental unit to enforce such
governmental unit’s police or regulatory power”); In re
Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab.
Litig., 488 F.3d 112, 133 (2d Cir. 2007) (rejecting bankruptcy removal in cases whose “clear goal . . . [was] to
remedy and prevent environmental damage with potentially serious consequences for public health, a significant area of state policy”). And not the latter either
because state-law claims cannot be removed based solely
on federal admiralty jurisdiction. See, e.g., Coronel v.
AK Victory, 1 F. Supp. 3d 1175, 1187–88 (W.D. Wash.
2014); Gonzalez v. Red Hook Container Terminal LLC,
16-CV5104 (NGG) (RER), 2016 WL 7322335, at *3
(E.D.N.Y. Dec. 15, 2016) (relying on “longstanding
46a
precedent holding that admiralty issues, standing alone,
are insufficient to make a case removable”).
III. Conclusion
Federal jurisdiction is finite. See, e.g., U.S. Const.
art. III, § 2, cl. 1. So while this Court thinks itself a fine
place to litigate, the law is clear that the State can take
its business elsewhere if it wants—by pleading around
federal jurisdiction—unless Defendants provide a valid
reason to force removal under statutes “strictly construed.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S.
28, 32 (2002); Great N. Ry. Co. v. Alexander, 246 U.S.
276, 280 (1918) (“[A] suit commenced in a state court
must remain there until cause is shown for its transfer
under some act of Congress.”). Because Defendants’ attempts in this regard fall short, the State’s Motion to
Remand, ECF No. 40, is GRANTED. The remand order shall be stayed for sixty days, however, giving the
parties time to brief and the Court to decide whether a
further stay pending appeal is warranted.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith
Chief Judge
Date: July 22, 2019
47a
APPENDIX C
United States Court of Appeals
For the First Circuit
_________________
No. 19-1918
STATE OF RHODE ISLAND,
Plaintiff - Appellee,
v.
SHELL OIL PRODUCTS COMPANY, LLC; CHEVRON CORP.; CHEVRON USA, INC.; EXXONMOBIL
CORP.; BP, PLC; BP AMERICA, INC.; BP PRODUCTS NORTH AMERICA, INC.; SHELL PLC, f/k/a
Royal Dutch Shell PLC; MOTIVA ENTERPRISES,
LLC; CITGO PETROLEUM CORP.; CONOCOPHILLIPS; CONOCOPHILLIPS COMPANY; PHILLIPS
66; MARATHON OIL COMPANY; MARATHON OIL
CORPORATION; MARATHON PETROLEUM
CORP.; MARATHON PETROLEUM COMPANY, LP;
SPEEDWAY, LLC; HESS CORP.; LUKOIL PAN
AMERICAS LLC; DOES 1-100,
Defendants - Appellants,
GETTY PETROLEUM MARKETING, INC.,
Defendant.
___________________
Before
Thompson, Howard, and Gelpí,
Circuit Judges.
_________________
48a
ORDER OF COURT
Entered: July 7, 2022
Appellants’ petition for panel rehearing is denied.
As it appears that there may be no quorum of circuit judges in regular active service who are not
recused who may vote on appellants’ request for rehearing en banc, the request for rehearing en banc is
also denied. See 28 U.S.C. § 46(d); 1st Cir. R.
35.0(a)(1).
By the Court:
Maria R. Hamilton, Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.