Opposition Brief — Shell Oil Products Co., L.L.C., et al., Petitioners v. Rhode Island

Supreme Court briefFeb 6, 2023

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No. 22-524

In The

Supreme Court of the United States

Shell Oil Products Company LLC, et al.,

Petitioners,

State of Rhode Island,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

BRIEF FOR RESPONDENT

STATE OF RHODE ISLAND

Victor M. Sher,

Counsel of Record

Matthew K. Edling

Martin D. Quiñones

Quentin C. Karpilow

Sher Edling LLP

100 Montgomery St.,

Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

matt@sheredling.com

marty@sheredling.com

quentin@sheredling.com

Sarah W. Rice

Special Assistant

Attorney General and

Deputy Chief of the

Civil Division,

Public Protection Bureau

Alison Hoffman

Special Assistant

Attorney General

State of Rhode Island

Office of

The Attorney General

150 South Main Street

Providence, RI 02903

srice@riag.ri.gov

ahoffman@riag.ri.gov

Counsel for Respondent—State of Rhode Island

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

49261_Ltrhd.indd

6/11/08

12:44:0

QUESTION PRESENTED

Should this Court create a new exception to the wellpleaded complaint rule that confers federal-question

jurisdiction over respondent’s state-law complaint

based on petitioners’ assertion that respondent’s claims

are “governed by” federal common law when: (1) the

common law on which petitioners purport to rely has

been displaced by a federal statute; (2) the statute does

not completely preempt state law; and (3) petitioners

cannot show that respondent’s state-law claims necessarily present a substantial federal question that could

be adjudicated in federal court without upsetting the

federal-state division of judicial responsibility, as required by Grable & Sons Metal Products, Inc. v. Darue

Engineering & Manufacturing, 545 U.S. 308 (2005).

iii

TABLE OF CONTENTS

Page

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

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

I. Legal background........................................

II. Facts and procedural history......................

REASONS THE PETITION SHOULD

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

I. There is no circuit conflict...........................

A. The decision below does not conflict

with City of New York............................

B. The decision below does not conflict

with any of the pre-Grable cases

cited by petitioners.................................

II. The decision below is correct.......................

A. Rhode Island’s claims are not

“governed” by the congressionally

displaced federal common law of

interstate pollution................................

B. There is no third exception to the

well-pleaded complaint rule for

state-law claims that were formerly

governed by a now-displaced body of

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

III. The Question Presented is neither

important nor cleanly raised in this case....

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

TABLE OF AUTHORITIES

Page

Cases

Aetna Health Inc. v. Davila,

542 U.S. 200 (2004)..........................................

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011).............................. 3, 21, 22, 27

Am. Fuel & Petrochemical Mfrs. v. O’Keeffe,

903 F.3d 903 (9th Cir. 2018)............................

Arbaugh v. Y&H Corp.,

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

Banco Nacional de Cuba v. Sabbatino,

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

Beneficial Nat. Bank v. Anderson,

539 U.S. 1 (2003)........................................ 6, 26, 28

Bernhard v. Whitney Nat. Bank,

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

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

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

Board of County Commissioners of Boulder

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

25 F.4th 1238 (10th Cir. 2022)............. 1, 11, 17, 23

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

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

2, 8

California v. ARC Am. Corp.,

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

California v. Rooney,

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

Caterpillar Inc. v. Williams,

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

5, 6, 10

TABLE OF AUTHORITIES—Continued

Page

Chevron Corp. v. City of Oakland,

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

City of Hoboken v. Chevron Corp.,

45 F.4th 699 (3d Cir. 2022).......................... 1, 11, 18

City of Oakland v. BP PLC,

969 F.3d 895 (9th Cir. 2020)........................ 1, 17, 23

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021).............. 3, 10, 12, 13, 15

Cnty. of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022)........................ 1, 17, 28

Connecticut v. Exxon Mobil Corp.,

No. 3:20-CV-1555 (JCH), 2021 WL 2389739

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

Edenfield v. Fane,

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

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

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

Franchise Tax Bd. of State of Cal. v.

Constr. Laborers Vacation Tr. for S. Cal.,

463 U.S. 1 (1983)..............................................

5, 6

Georgia v. Tenn. Copper Co.,

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

Georgia v. Tenn. Copper Co.,

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

Grable & Sons Metal Products, Inc. v.

Darue Engineering & Mfg.,

545 U.S. 308 (2005).......................................... 2, 27

vii

TABLE OF AUTHORITIES—Continued

Page

Gully v. First Nat’l Bank,

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

Gunn v. Minton,

568 U.S. 251 (2013).......................... 1, 5, 18, 19, 26

Illinois v. City of Milwaukee,

406 U.S. 91 (1972)............................................

In re MTBE Prod. Liab. Litig.,

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

In re Otter Tail Power Co.,

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

International Paper Co. v. Ouellette,

479 U.S. 481 (1987).................................. 21, 22, 27

Jennings v. Rodriguez,

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

Kansas v. Colorado,

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

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994)..........................................

Lawson v. Murray,

515 U.S. 1110 (1995)........................................

Lorillard Tobacco Co. v. Reilly,

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

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

31 F.4th 178 (4th Cir. 2022)..... 1, 7, 8, 11, 13, 17, 21

McKesson v. Doe,

141 S. Ct. 48 (2020)..........................................

viii

TABLE OF AUTHORITIES—Continued

Page

Merrell Dow Pharms. Inc. v. Thompson,

478 U.S. 804 (1986)..........................................

Merrill Lynch, Pierce, Fenner & Smith Inc.

v. Manning,

578 U.S. 374 (2016).................... 4, 6, 19, 27, 28, 30

Metro. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987)........................................ 5, 6, 28

Milwaukee v. Illinois,

451 U.S. 304 (1981)........................................ 22, 27

Miree v. DeKalb Cty.,

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

Missouri v. Illinois,

180 U.S. 208 (1901)..........................................

Morgan Cty. War Mem’l Hosp. ex rel.

Bd. of Directors of War Mem’l Hosp. v. Baker,

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

New Jersey v. City of New York,

283 U.S. 473 (1931)..........................................

Newton v. Capital Assurance Co.,

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

Nicodemus v. Union Pac. Corp.,

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

O’Melveny & Myers v. F.D.I.C.,

512 U.S. 79 (1994).......................................... 23, 24

Oneida Indian Nation v. County of Oneida,

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

TABLE OF AUTHORITIES—Continued

Page

Provincial Gov’t of Marinduque v.

Placer Dome, Inc.,

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

Republic of Philippines v. Marcos,

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

Rhode Island v. Shell Oil Prod. Co.,

979 F.3d 50 (1st Cir. 2020)..............................

Rivet v. Regions Bank of Louisiana,

522 U.S. 470 (1998)..........................................

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

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

Salazar-Limon v. City of Houston,

137 S. Ct. 1277 (2017)......................................

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

117 F.3d 922 (5th Cir. 1997).................... 17, 18, 19

Shell Oil Prod. Co. v. Rhode Island,

141 S. Ct. 2666 (2021)......................................

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

451 U.S. 630 (1981)........................................ 27, 30

Ticor Title Ins. Co. v. Brown,

511 U.S. 117 (1994)..........................................

Torres v. S. Peru Copper Co.,

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

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979)..........................................

United States v. Standard Oil Co. of California,

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

TABLE OF AUTHORITIES—Continued

Page

Vaden v. Discover Bank,

556 U.S. 49 (2009)............................................ 6, 26

Virginia Uranium, Inc. v. Warren,

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

Wallis v. Pan Am. Petroleum Corp.,

384 U.S. 63 (1966)............................................

Yee v. City of Escondido,

503 U.S. 519 (1992)..........................................

Statutes

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

2, 5, 6, 11

28 U.S.C. § 1441(a)..............................................

2, 5

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

INTRODUCTION

Petitioners seek to remove Rhode Island’s state-law

claims to federal court based on a body of federal common law that no longer exists and an exception to the

well-pleaded complaint rule that this Court has never

recognized. All five circuit courts to consider petitioners’ “perplexing” theory of removal jurisdiction have

rejected it, including the First Circuit below. Mayor &

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

204 (4th Cir. 2022) (“Baltimore”).1 That is for good reason. Adopting such a theory would undermine this

Court’s recent efforts to bring “order to [the] unruly

doctrine” of arising-under jurisdiction. See Gunn v.

Minton, 568 U.S. 251, 258 (2013). It would also represent a breathtaking expansion in federal common law,

elevating the lawmaking powers of federal judges

above those of Congress. This Court has already declined to review a nearly identical petition filed two

years ago. See Chevron Corp. v. City of Oakland, 141

S. Ct. 2776 (2021) (No. 20-1089). It should do so again

here, because nothing has changed except that wellsettled law has become even more firm: four more circuits have now rejected petitioners’ novel theory of

federal-common-law removal.

Like other climate-deception cases that have come

before this Court, Rhode Island’s lawsuit seeks to hold

See also City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir.

2020), cert. denied, 141 S. Ct. 2776 (2021) (“Oakland”); Board of

County Commissioners of Boulder County v. Suncor Energy

(U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022) (“Boulder”); Cnty. of

San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022), reh’g

denied, Nos. 18-15499, 18-15502, 18-15503, 18-16376 (June 27,

2022) (“San Mateo”); City of Hoboken v. Chevron Corp., 45 F.4th

699 (3d Cir. 2022), reh’g denied, Nos. 21-2728, 22-1096 (Sep. 30,

2022) (“Hoboken”).

fossil-fuel companies liable “for promoting fossil fuels

while allegedly concealing their environmental impacts” over many years. BP P.L.C. v. Mayor & City

Council of Baltimore, 141 S. Ct. 1532, 1536 (2021).

The State pleads claims exclusively under Rhode Island law, and as in other climate-deception cases, all

of Rhode Island’s claims “center[] on the [petitioners’]

alleged failure to warn about the dangers of their

products.” Id. Applying settled legal principles, the

First Circuit rejected petitioners’ attempts to remove

this state-law action to federal court based on arisingunder jurisdiction, 28 U.S.C. §§ 1331, 1441(a). The

court recognized that, under the well-pleaded complaint rule, arising-under jurisdiction ordinarily does

not attach to cases that plead only state-law causes of

action. And it concluded that Rhode Island’s state-law

claims do not fall into either of the two exceptions to

the well-pleaded complaint rule that this Court has

recognized: (1) the claims do not satisfy the requirements of Grable & Sons Metal Products, Inc. v. Darue

Engineering & Manufacturing, 545 U.S. 308 (2005),

because they do not necessarily raise a federal issue;

and (2) the claims do not satisfy the requirements of

complete preemption, because they are not encompassed by a federal cause of action that Congress intended to be exclusive. See Pet. App. 19a–24a.

Petitioners do not challenge any of those conclusions. Instead, they urge this Court to grant certiorari

to upend Grable and create a third, standalone exception to the well-pleaded complaint rule for state-law

claims that are purportedly “governed” by federal

common law. The Court should decline that invitation

for three main reasons.

First, petitioners identify no circuit conflict, much

less one that warrants this Court’s review. The First,

Third, Fourth, Ninth, and Tenth Circuits have all

unanimously rejected identical attempts to remove

climate-deception lawsuits on the basis of federal common law. No circuit court has reached a contrary result. Although petitioners rely heavily on City of New

York v. Chevron Corp., that decision expressly “reconciled” its analysis of an ordinary-preemption defense

with “the parade of recent opinions holding that statelaw claims for public nuisance brought against fossil

fuel producers do not arise under federal law” for purposes of removal jurisdiction, thereby carefully avoiding conflict. 993 F.3d 81, 93 (2d Cir. 2021). Nor can

petitioners create a split based on a handful of old appellate decisions that predate this Court’s opinion in

Grable. The results of those decisions are fully consistent with the decision below, even though they applied

outdated jurisdictional tests that have since been superseded by Grable.

Second, petitioners’ theory of federal-common-law

removal cannot be reconciled with this Court’s precedent. As petitioners necessarily concede, the Clean

Air Act displaced any federal common law relating to

greenhouse gas emissions, the very same body of

judge-made law petitioners invoke as the basis for removal. See Pet. 25 –26. And as this Court’s cases make

clear, federal common law—and its effect on state

law—“disappears” entirely once it is displaced by statute. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410,

423 (2011) (“AEP”). In any event, even if the federal

common law of interstate air pollution still existed, it

would not encompass Rhode Island’s state-law claims,

which vindicate core state interests in protecting consumers and the public from deceptive marketing activities. And even if federal common law did somehow

“govern” Rhode Island’s state-law claims, that would

not create arising-under jurisdiction because petition-

ers do not even try to argue that Rhode Island’s suit

satisfies the requirements of Grable or complete preemption, the only two exceptions to the well-pleaded

complaint rule this Court has approved. There is no

need to create a third exception specific to federal common law, because Grable already “provides ready answers to jurisdictional questions” and gives sufficient

“guidance whenever borderline cases crop up.” Merrill

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

578 U.S. 374, 392 (2016).

Finally, the Petition does not raise an important and

recurring question of law. Petitioners conflate subjectmatter jurisdiction with the merits of their preemption

defenses, but the only question decided below was

whether petitioners properly removed Rhode Island’s

lawsuit to federal court. The answer to that jurisdictional question will not jeopardize national security, as

petitioners suggest. Nor will it have broad implications

for removal jurisdiction. Besides a handful of other

climate-deception lawsuits, petitioners cannot identify

a single case that would be affected by their theory of

federal-common-law removal. Regardless, this case is

a poor vehicle for reviewing the Question Presented,

even if that question were worthy of certiorari review.

The First Circuit did not decide whether to create a

third exception to the well-pleaded complaint rule, and

so this Court would need to act as a court of first view

in order to reverse the judgment below.

The Petition here is nearly identical to the one filed

in the Boulder climate-deception case. Accordingly, if

the Court grants review in Boulder, it should do the

same here and consolidate the petitions for argument,

thereby ensuring that the sovereign State of Rhode

Island has adequate opportunity to present its position to the Court. Conversely, if the Court denies cer-

tiorari review of the Boulder petition, it should reach

the same result here because the two petitions

“present[] the same issues,” as petitioners themselves

acknowledge. Pet. 4.

STATEMENT

I. Legal background

“Federal courts are courts of limited jurisdiction,

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

Congress has, in turn, granted federal district courts

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

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

28 U.S.C. §§ 1331, 1441.

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

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

that requires jurisdiction under sections 1331 and

1441 to “be determined from what necessarily appears

in the plaintiff ’s statement of his own claim.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 9–10 (1983). For more

than a century, that rule has been “the basic principle

marking the boundaries of the federal question jurisdiction of the federal district courts.” Metro. Life Ins.

Co. v. Taylor, 481 U.S. 58, 63 (1987). The rule “makes

the plaintiff the master of the claim” such that “he or

she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482

U.S. 386, 392 (1987). “Jurisdiction may not be sustained on a theory that the plaintiff has not advanced,”

Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804,

809 n.6 (1986), and it cannot be “predicated on an ac-

tual or anticipated defense,” Vaden v. Discover Bank,

556 U.S. 49, 60 (2009), “including the defense of preemption,” Franchise Tax Bd., 463 U.S. at 14.

There are only two recognized exceptions to the

well-pleaded complaint rule. The first is Grable, a doctrine this Court developed to resolve the lower courts’

long-standing difficulty in applying the well-pleaded

complaint rule where “a question of federal law is

lurking in the background” of a case pleaded under

state law. See Gully v. First Nat’l Bank, 299 U.S. 109,

117 (1936); see also Manning, 578 U.S. at 385 (describing the previous “caselaw construing § 1331” before

Grable as “highly ‘unruly’ ”). The Grable doctrine allows removal only in a “special and small category” of

state-law actions in which “a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial,

and (4) capable of resolution in federal court without

disrupting the federal-state balance approved by Congress.” Gunn, 568 at 258.

The second is the doctrine of complete preemption,

which applies only when “the pre-emptive force of a

statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a

federal claim for purposes of the well-pleaded complaint rule.’ ” Caterpillar, 482 U.S. at 393 (quoting Metro. Life, 481 U.S. at 65). To invoke this exception to the

well-pleaded complaint rule, a defendant must show—

at a minimum—that a plaintiff ’s state-law claim falls

within the scope of a federal cause of action that “Congress intended . . . to be exclusive.” Beneficial Nat.

Bank v. Anderson, 539 U.S. 1, 9 & n.5 (2003). The

Court has been “reluctant to find that extraordinary

pre-emptive power,” and it has identified only three

statutes that have “complete preemption” effect, none

of which are at issue here. Metro. Life, 481 U.S. at 65.

II. Facts and procedural history

In 2018, the State brought this action in Rhode Island state court, alleging exclusively state-law claims

for relief, including nuisance, trespass, and failure to

warn. See Ct. App. JA.137–62. As detailed in the Complaint, Rhode Island’s theory of liability is straightforward. For decades, petitioners knowingly concealed

and misrepresented the climate impacts of their fossil-fuel products, using sophisticated disinformation

campaigns to cast doubt on the science, causes, and

effects of global warming. Id. JA.23, 72–109. That deception inflated global consumption of fossil fuels, including within Rhode Island, which increased greenhouse gas emissions, exacerbated climate change, and

created hazardous conditions in Rhode Island. Id.

JA.95, 111–136. In this way, petitioners’ failure to

warn and deceptive promotion were substantial factors in bringing about Rhode Island’s climate-related

harms, which include damage to property and infrastructure from rising seas, stronger storm surges, and

more frequent heat waves. Id. JA.119–136.

As the First Circuit correctly noted, this lawsuit does

not seek to “regulate greenhouse-gas emissions.” Pet.

App. 18a n.8. Rather, it seeks to hold petitioners liable

for “ ‘deliberately and unnecessarily deceiv[ing]’ consumers about the scientific consensus on climate

change and its devastating effects.” Id. (quoting Compl. ¶ 177, Ct. App. JA.108). As in other climate-deception cases, moreover, Rhode Island does “not seek to

impose liability on [petitioners] for their direct emissions of greenhouse gases [or] to restrain [petitioners]

from engaging in their business operations.” See Baltimore, 31 F.4th at 195. Instead, the Complaint requests

damages for harms caused by petitioners’ deception

campaigns and equitable relief to abate the local haz-

ards created by those campaigns—e.g., infrastructure

to protect Rhode Island from sea-level rise. Pet. App.

34a. The “source of tort liability” is therefore petitioners’ “concealment and misrepresentation of the[ir]

products’ known dangers,” not their lawful production

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

Petitioners removed the case to the District of Rhode

Island, asserting numerous theories of federal subjectmatter jurisdiction. See Pet. App. 7a. The district

court granted Rhode Island’s motion to remand. Id.

7a–8a. The First Circuit affirmed the district court’s

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

§ 1442, and it held that it lacked appellate jurisdiction

to review the other rejected grounds for removal.

Rhode Island v. Shell Oil Prod. Co., 979 F.3d 50 (1st

Cir. 2020). After its decision in Baltimore, 141 S. Ct.

1532, this Court granted certiorari, vacated the First

Circuit’s decision, and then remanded the case for

consideration of petitioners’ remaining removal

grounds. Shell Oil Prod. Co. v. Rhode Island, 141 S.

Ct. 2666 (2021).

On remand, the First Circuit again affirmed the district court’s remand order, rejecting all of petitioners’

jurisdictional theories. See Pet. App. 9a. As relevant

here, the court concluded that no body of federal common law governs this lawsuit. Id. 18a–19a. It explained that Rhode Island’s state-law claims fall outside the federal common law of interstate pollution, as

defined by this Court’s caselaw. Id. 18a. In the alternative, the First Circuit held that the federal common

law of interstate air pollution no longer exists, having

been displaced by the Clean Air Act, and that petitioners failed to satisfy the preconditions for creating new

federal common law. Id. 15a–19a. The court declined

to address whether there exists a third exception to

the well-pleaded complaint rule for state-law claims

that are purportedly governed by federal common law.

Id. 14a–15a. In distinguishing City of New York, however, it reaffirmed that ordinary-preemption defenses

cannot create arising-under jurisdiction in light of the

well-pleaded complaint rule. Id. 17a–18a.

The court below also rejected petitioners’ invocation

of Grable and their argument that the Clean Air Act

completely preempts this lawsuit. Id. 19a–24a. It refused to find Grable jurisdiction because “none of

Rhode Island’s claims has as an element a violation of

federal law; [petitioners] pinpoint no specific federal

issue that must necessarily be decided for Rhode Island to win its case; and [petitioners’] speaking about

federal law or federal concerns in the most generalized way is not enough for Grable purposes.” Id. 21a.

As for complete preemption, the court concluded the

Clean Air Act meets none of that doctrine’s requirements: the Act does not provide a federal cause of action that encompasses Rhode Island’s claims, and in

light of the Act’s broad savings clauses, it does not

evince clear congressional intent that federal law

should exclusively govern. Id. 21a–24a.

REASONS THE PETITION

SHOULD BE DENIED

I. There is no circuit conflict.

The circuit courts have uniformly rejected identical

attempts to remove climate-deception cases based on a

congressionally displaced body of federal common law

that no longer exists. Those decisions do not conflict

with City of New York, which presented no question of

removal jurisdiction because the case was initiated in

federal court on diversity grounds. Nor are they inconsistent with the pre-Grable decisions petitioners cite,

none of which addressed whether displaced federal

common law could convert state-law claims into federal ones for purposes of arising-under jurisdiction.

A. The decision below does not conflict with

City of New York.

City of New York cannot conflict with the decision

below for two independent reasons. First, the decisions

address entirely different questions: the First Circuit

evaluated the existence of removal jurisdiction on appeal from an order granting the State’s remand motion,

whereas the Second Circuit analyzed the merits of a

federal preemption defense on appeal from an order

granting the defendants’ motion to dismiss for failure

to state a claim. Second, the two cases involve different

factual allegations and different theories of liability,

making the Second Circuit’s ordinary-preemption analysis entirely inapplicable to Rhode Island’s lawsuit.

1. In City of New York, the Second Circuit held that

federal common law preempted certain state-law

claims brought against several oil-and-gas companies.

993 F.3d 81. In affirming dismissal of those claims under Rule 12(b)(6), the court expressly “reconcile[d]

[its] conclusion” with the Ninth Circuit’s decision in

Oakland and “the parade of [other] recent opinions

holding that state-law claims for public nuisance

brought against fossil fuel producers do not arise under federal law” for purposes of removal jurisdiction.

Id. at 93. The Second Circuit acknowledged that, under the well-pleaded complaint rule, “the fact that a

defendant might ultimately prove that a plaintiff ’s

claims are pre-empted under federal law does not establish that they are removable to federal court.” Id.

at 94 (quoting Caterpillar, 482 U.S. at 398, in parenthetical) (cleaned up). But because New York City had

“filed suit in federal court in the first instance,” the

court determined that it was “free to consider the [defendants’] preemption defense on its own terms, not

under the heightened standard unique to the removability inquiry.” Id. at 94. For that reason, the Second

Circuit concluded that its preemption finding did not

conflict with “the fleet of [other] cases” holding that

“anticipated defense[s]”—including defenses based on

federal common law—could not “singlehandedly create federal-question jurisdiction under 28 U.S.C.

§ 1331 and the well-pleaded complaint rule.” Id.

The First Circuit also did not discern any conflict

between its rejection of arising-under jurisdiction and

City of New York’s affirmance of an ordinary-preemption defense. See Pet. App. 17a–18a. Nor did the Third,

Fourth, or Tenth Circuits, all of which have recently

addressed City of New York in affirming orders granting remand in similar climate-deception cases. See

Hoboken, 45 F.4th at 708; Baltimore, 31 F.4th at 203;

Boulder, 25 F.4th at 1262. Like the Second Circuit,

those courts distinguished City of New York based on

its “completely different procedural posture.” E.g.,

Baltimore, 31 F.4th at 203. They acknowledged—as

the Second Circuit did—that the well-pleaded complaint rule prohibits federal courts from exercising

arising-under jurisdiction based on an ordinary-preemption defense. They recognized—as the Second Circuit did—that City of New York resolved an ordinarypreemption defense, not any question of federal

subject-matter jurisdiction. And so, they concluded—

as the Second Circuit did—that City of New York’s

ordinary-preemption analysis sheds no light on the

removability of state-law claims to federal courts.2

A federal district court in the Second Circuit reached the

same conclusion, holding that City of New York did not control

the removal of Connecticut’s climate-deception lawsuit because

Unable to identify any conflict between the actual

holdings of the decision below and City of New York,

petitioners argue that “[t]he First Circuit’s approach

is irreconcilable with that of the Second Circuit.” Pet.

15 (emphasis added). But this Court grants certiorari

to resolve conflicts in the “results” of appellate decisions, not conflicts in their approaches or reasoning.

Yee v. City of Escondido, 503 U.S. 519, 537–38 (1992);

California v. Rooney, 483 U.S. 307, 311 (1987) (“This

Court reviews judgments, not statements in opinions.”

(cleaned up)). And here, the preemption result of City

of New York does not conflict in any way with the jurisdictional result of the decision below.

In any event, there is no conflict in rationale. The

First and Second Circuits both recognized that City of

New York addressed an ordinary-preemption defense,

and they both acknowledged that an ordinary-preemption defense cannot create arising-under jurisdiction “in light of the well-pleaded complaint rule.” Pet.

App. 17a–18a (quoting City of New York, 993 F.3d at

94). Contrary to petitioners’ assertion, then, the First

Circuit did adequately “explain how th[e] difference in

[procedural] posture” distinguished its decision from

City of New York. See Pet. 15. And regardless, this

Court does not grant certiorari to line edit the opinions of lower courts. See Rooney, 483 U.S. at 311 (“The

fact that the Court of Appeal reached its decision

through analysis different than this Court might have

used does not make it appropriate for this Court to

rewrite the California court’s decision, or for the prevailing party to request us to review it.”).

that decision only concerned an ordinary-preemption defense.

Connecticut v. Exxon Mobil Corp., No. 3:20-CV-1555 (JCH), 2021

WL 2389739, at *7 n.7 (D. Conn. June 2, 2021), appeal pending,

No. 21-1446 (2d Cir.).

2. Even if City of New York’s ordinary-preemption

analysis were relevant to the question of removal jurisdiction, it would not apply to the specific claims

pleaded by Rhode Island, all of which rest on different

factual allegations and target qualitatively different

types of tortious conduct.

In City of New York, the plaintiff sought to hold fossil-fuel companies “strict[ly] liab[le]” for climate impacts caused by their “lawful commercial activity,”

namely: their lawful production, promotion, and sale

of fossil fuels. 993 F.3d at 87, 93 (cleaned up). As the

Second Circuit observed, the complaint did not “concern itself with aspects of fossil fuel production and

sale that [were] unrelated to emissions.” Id. at 97.

Based on that understanding, the court concluded

that the plaintiff ’s “lawsuit would regulate cross-border emissions” because the defendants would need to

“cease global [fossil-fuel] production” if they “want[ed]

to avoid all liability.” Id. at 93.

By contrast, the First Circuit concluded that Rhode

Island’s state-law claims do not seek to “regulate

greenhouse-gas emissions,” but rather to hold petitioners liable for “deliberately and unnecessarily

deceiv[ing] consumers about the scientific consensus

on climate change and its devastating effects, and

about the starring role their products play in causing

it.” Pet. App. 18a n.8 (cleaned up). As in other climatedeception cases, the “source of tort liability” here is

petitioners’ “concealment and misrepresentation of

[their] products’ known dangers,” not their lawful production and sale of fossil fuels. Baltimore, 31 F.4th at

233. And so, unlike the defendants in City of New

York, petitioners here would not need to “cease global

[fossil-fuel] production” under Rhode Island’s Complaint to avoid future liability. City of New York, 993

F.3d at 93. Indeed, so long as they adequately warn of

their products’ climate impacts and stop spreading climate disinformation, petitioners can produce and sell

as much fossil fuel as they are able without fear of

incurring any “ongoing liability.” Id.

Unsurprisingly, the First and Second Circuits

reached different conclusions when they applied the

same test for federal common law to different facts

and different claims. Because New York City sought

to hold fossil-fuel companies strictly liable for the discharge of greenhouse gas emissions, the Second Circuit viewed the lawsuit as “no different” from prior

cases in which this Court has applied the federal common law of interstate pollution abatement. Id. at 92.

But because Rhode Island seeks to hold petitioners liable for harms “caused by deliberately misrepresenting the dangers [of fossil fuels],” the First Circuit concluded that the same cases cited by City of New York

“d[o] not address the types of acts Rhode Island seeks

redress for.” Pet. App. 16a, 18a & n.8. Far from demonstrating an “intractable conflict,” Pet. 11, City of

New York and the decision below simply illustrate

that the same test for federal common law yields different results when applied to different facts in different cases with different theories of liability—as it

should. See United States v. Kimbell Foods, Inc., 440

U.S. 715, 728 (1979) (federal common law “depend[s]

upon a variety of considerations always relevant to

the nature of the specific governmental interests and

to the effects upon them of applying state law”).

Resisting that conclusion, petitioners suggest that

the First and Second Circuits used different tests to

determine whether federal common law “govern[ed]”

the plaintiffs’ claims. Pet. 13–14. That is incorrect.

Both courts applied the same two-part test for fash-

ioning new federal common law. Compare Pet. App.

15a–17a (requiring (1) a uniquely federal interest and

(2) a conflict between the federal interest and the use

of state law), with City of New York, 993 F.3d at 90

(similar). And both courts evaluated whether the

plaintiffs’ state-law claims were encompassed by the

Court’s prior “cases that once (or possibly) recognized

federal common law in the context of interstate pollution and greenhouse-gas emissions.” Pet. App. 18a. In

reality, then, “the thrust of [petitioners’] claim is that

a lower court simply erred in applying a settled rule of

law to the facts of a particular case.” Salazar-Limon v.

City of Houston, 137 S. Ct. 1277, 1278 (2017) (Alito, J.,

concurring in denial of certiorari). That case-specific

claim of error does not warrant this Court’s review,

even if it were true. See id.; see also Ticor Title Ins. Co.

v. Brown, 511 U.S. 117, 122 (1994) (“achiev[ing] justice in [a] particular case . . . is ordinarily not sufficient reason for our granting certiorari”).

Petitioners also insist that the First Circuit departed from City of New York when it concluded that statutorily displaced federal common law cannot convert

state-law claims into federal ones for purposes of subject-matter jurisdiction. See Pet. 15. But again, City

of New York did not address any question of jurisdiction because none was before the court, and so that

decision says nothing about the jurisdictional effects

of displaced federal common law. In any event, the

First Circuit’s decision below expressly identified

statutory displacement as an alternative ground for

rejecting petitioners’ theory of federal-common-law

removal. Pet. App. at 18a (“Even accepting the [petitioners’] description of Rhode Island’s claims as being

‘transboundary pollution’ claims (again, just for argument’s sake), . . . .”). As explained above, the First

Circuit also rejected petitioners’ theory because no

federal common law governs Rhode Island’s claims

and because ordinary-preemption defenses cannot

create arising-under jurisdiction. Because those two

grounds “present[] no clear conflict” with City of New

York, certiorari review is not warranted, even if there

is some tension between the First and Second Circuit’s conclusions regarding the jurisdictional effects

of statutorily displaced federal common law. Lawson

v. Murray, 515 U.S. 1110, 1116 (1995) (Scalia, J., concurring in denial of certiorari).

B. The decision below does not conflict with

any of the pre-Grable cases cited by

petitioners.

Petitioners also try to manufacture a circuit split

based on a handful of circuit decisions that predate

this Court’s opinion in Grable. See Pet. 17–19. They

insist that these pre-Grable cases recognized a standalone exception to the well-pleaded complaint rule

for claims that are exclusively pleaded under state

law, but that are actually federal-common-law claims

in disguise. That effort fails for at least four independent reasons.

1. As petitioners concede, the First Circuit never

addressed their novel re-imagining of the “artfulpleading doctrine.” Pet. 20; Pet. App. 14a–15a. Instead, the court below rejected their theory of removal

on the grounds that (1) no federal common law governs Rhode Island’s state-law claims, and (2) ordinary-preemption defenses—like the one raised in

City of New York—cannot create arising-under jurisdiction in light of the well-pleaded complaint rule.

Pet. App. 15a–19a. Those two grounds raise no conflict with any of the pre-Grable decisions cited by petitioners. To the contrary, all of those decisions concluded that the plaintiffs’ claims implicated existing

federal common law, and none of those decisions contradicted the time-honored rule that an ordinarypreemption defense cannot create arising-under jurisdiction. See, e.g., Sam L. Majors Jewelers v. ABX,

Inc., 117 F.3d 922, 925 (5th Cir. 1997).

2. In addition, there is no circuit split because none

of petitioners’ pre-Grable decisions involved congressionally displaced federal common law. Petitioners

do not dispute that the Clean Air Act has “displaced

the federal common law of interstate air pollution,”

the very same body of judge-made law upon which

they predicate removal. Pet. 25–27 (cleaned up). Yet

they fail to identify a single appellate decision holding that statutorily displaced federal common law

somehow retains the power to convert state-law

claims into federal ones for purposes of arising-under

jurisdiction. That is because every court to consider

that jurisdictional question has concluded that a defendant “cannot premise removal on a federal common law that no longer exists.” See Pet. App. 15a; see

also Baltimore, 31 F.4th at 204–07; San Mateo, 32

F.4th at 747; Oakland, 969 F.3d at 906; Boulder, 25

F.4th at 1260.

3. Even if Congress had not displaced the federal

common law invoked by petitioners, the results of the

decision below would be fully consistent with the preGrable cases cited in the Petition.

In all but one of those cases, the appellate courts

applied a precursor of the Grable test, finding jurisdiction only because the state-law claims necessarily

raised “a substantial question of federal law.”3 That

Newton v. Capital Assurance Co., 245 F.3d 1306, 1308–09

(11th Cir. 2001); In re Otter Tail Power Co., 116 F.3d 1207, 1213–

14 (8th Cir. 1997); Torres v. S. Peru Copper Co., 113 F.3d 540,

“substantial question” standard was later incorporated into the Grable test, which clarified that arisingunder jurisdiction exists when a state-law claim necessarily raises federal issues that are substantial,

actually disputed, and capable of resolution in federal

court without disrupting the federal-state balance approved by Congress. Gunn, 568 U.S. at 258. In its decision below, the First Circuit applied Grable’s controlling test for arising-under jurisdiction, and it

concluded that Rhode Island’s state-law claims do not

“necessarily raise a federal issue.” Pet App. 20a (“We

begin and end at prong (1), the necessarily-raised

prong [of Grable].”). Had the panel applied the substantial-question standard from earlier cases, it would

have reached the same conclusion. Petitioners’ disagreement is therefore with the First Circuit’s application of law to facts, not its articulation of any governing legal principles.

That leaves Sam L. Majors, 117 F.3d 922. But as

“most courts recognize,” that Fifth Circuit decision is

“not good law” to the extent it endorsed a third exception to the well-pleaded complaint rule for federal

common law. Hoboken, 45 F.4th at 708. Indeed, the

Fifth Circuit has clearly abandoned any such endorsement in the aftermath of Grable, holding instead that arising-under jurisdiction encompasses a

state-law claim “only if” the claim satisfies the requirements of Grable or complete preemption. Bernhard v. Whitney Nat. Bank, 523 F.3d 546, 551 (5th

Cir. 2008). Post-Grable, the Fifth Circuit has never

cited Sam L. Majors for any jurisdictional holdings,

and it has never suggested that federal common law

creates a third exception to the well-pleaded com542–43 (5th Cir. 1997); Republic of Philippines v. Marcos, 806

F.2d 344, 352, 354 (2d Cir. 1986).

plaint rule—separate and apart from Grable and

complete preemption.

In any event, the Fifth Circuit’s jurisdictional

analysis in Sam L. Majors turned on two conditions

plainly not present here: (1) the plaintiff had a “clearly established federal common law cause of action

against air carriers for lost shipments” (the subject

of its lawsuit), and (2) Congress affirmatively

“preserv[ed]” that cause of action through the Airline

Deregulation Act of 1978. 117 F.3d at 928. Petitioners identify no federal-common-law cause of action

that gives Rhode Island a right to sue petitioners for

the deceptive and wrongful promotion of their products. And Congress displaced the one body of federal

common law that, according to petitioners, governs

the State’s claims. As a result, there is no reason to

believe that this case would be decided differently

under the Fifth Circuit’s former jurisprudence in

Sam L. Majors.

4. Finally, even if there were some tension between

petitioners’ pre-Grable cases and the decision below,

that tension would merely highlight Grable’s success

at cleaning up a “muddled” jurisprudence on arisingunder jurisdiction. Manning, 578 U.S. at 385. Before

Grable, the test for arising-under jurisdiction was

not “well-defined,” id., and the “canvas” of opinions

on this subject “look[ed] like one that Jackson Pollock got to first,” Gunn, 568 U.S. at 258. In Grable,

the Court endeavored to “bring some order to this

unruly doctrine.” Gunn, 568 U.S. at 258. It succeeded. Courts in every circuit now use Grable to determine whether, in the absence of complete preemption, a state-law claim arises under federal law for

jurisdictional purposes. To the extent, then, that a

circuit split once existed over petitioners’ proposed

third exception to the well-pleaded complaint rule,

Grable ended any disunity.

II. The decision below is correct.

The First Circuit correctly rejected petitioners’ novel third exception to the well-pleaded complaint rule

for state-law claims that are purportedly “governed”

by congressionally displaced federal common law. As

this Court’s precedent makes clear, Rhode Island’s

claims for deceptive marketing do not fall within the

boundaries that once defined the federal common law

of interstate pollution, which—in any event—no longer exists following the passage of the Clean Air Act.

This Court has, moreover, only recognized two exceptions to the well-pleaded complaint rule (Grable and

complete preemption), and petitioners offer no basis

for creating a third exception. To the contrary, accepting their theory of removal would not only expand federal common lawmaking in unprecedented ways, but

also undermine the success of Grable at bringing clarity to arising-under jurisdiction.

A. Rhode Island’s claims are not “governed”

by the congressionally displaced federal

common law of interstate pollution.

Petitioners’ theory of removal assumes that the federal common law of interstate pollution “governs”

Rhode Island’s state-law claims. That assumption is

fatally flawed for at least two reasons. First, the federal common law of interstate pollution no longer exists, having been displaced by the Clean Air Act. Second, even if that body of judge-made law still existed,

it would not encompass Rhode Island’s state-law

claims, which seek to vindicate core state interests in

ensuring that companies do not conceal and misrepresent the dangers of their products.

1. Petitioners concede—as they must—that the

Clean Air Act displaced the federal common law upon

which they premise removal. Pet. 25–26. They nevertheless insist that congressionally displaced judgemade law retains the power to convert Rhode Island’s

state-law claims into federal ones for purposes of arising-under jurisdiction. See id.

That striking proposition cannot be reconciled with

this Court’s analysis in AEP and International Paper

Co. v. Ouellette, 479 U.S. 481 (1987). In Ouellette, the

Court considered a preemption challenge to state-law

public nuisance claims formerly governed by the federal common law of interstate water pollution. 479

U.S. at 484, 487. Because the Clean Water Act had

displaced that body of federal judge-made law, the

Court framed the relevant inquiry as whether the Act

preempted the plaintiff ’s state-law claims—a question it answered by conducting a traditional statutory

preemption analysis. See id. at 491–500. Twenty years

later, this Court gave the same instructions when discussing the displacement of federal common law as it

related to greenhouse gas emissions—the same body

of judge-made law that petitioners invoke here. AEP,

564 U.S. at 429. After holding that the Clean Air Act

displaced the plaintiffs’ federal-common-law claims,

the Court remanded their state-law claims for further

consideration by the lower courts, noting that “the

availability vel non of a state lawsuit depends, inter

alia, on the preemptive effect of the federal Act.” Id.

As these decisions make clear, “federal common law

ceases to exist” after it has been displaced by a federal

statute, leaving the federal statute as the sole basis for

trol[ling]” a plaintiff ’s state-law

preempting or “con

claims. Baltimore, 31 F.4th at 204–05. To conclude otherwise would be incompatible with this Court’s “com-

mitment to the separation of powers”—a commitment

that is “too fundamental” to permit “rel[iance] on federal common law” after Congress has spoken. Milwaukee v. Illinois, 451 U.S. 304, 315 (1981) (“Milwaukee

II”). Accordingly, the First Circuit did not err in rejecting petitioners’ attempts to “premise removal on a federal common law that no longer exists.” Pet. App. 15a.

2. Nor did it err in concluding that Rhode Island’s

state-law claims have nothing to do with any federal

common law that has ever existed. This Court has

only ever applied the federal common law of interstate pollution in nuisance cases where a sovereign

State sought to regulate the amount of pollution released from a specific out-of-state source. AEP, 564

U.S. at 421 (“Decisions of this Court . . . have approved federal common-law suits brought by one

State to abate pollution emanating from another

State.”).4 And notwithstanding petitioners’ mischaracterizations of the Complaint, Rhode Island does not

seek to “regulate greenhouse-gas emissions” or otherwise set climate-change policy. Pet. App. 18a n.8. Instead, as the First Circuit rightly concluded, this lawsuit seeks to hold petitioners liable for “ ‘deliberately

and unnecessarily deceiv[ing]’ consumers about the

See also Illinois v. City of Milwaukee, Wis., 406 U.S. 91, 107

(1972) (“Milwaukee I”); New Jersey v. City of New York, 283 U.S.

473, 477, 481–483 (1931) (seeking “an injunction” that would “restrain[] the city from dumping garbage into the ocean or waters

of the United States off the coast of New Jersey and from otherwise polluting its waters and beaches”); Georgia v. Tenn. Copper

Co., 240 U.S. 650 (1916) (seeking to enjoin defendant copper companies from discharging noxious gas); Missouri v. Illinois, 180

U.S. 208, 241–43, 248 (1901) (seeking to restrain the discharge of

sewage); see also Ouellette, 479 U.S. at 488 (“The Court’s opinion

in [Milwaukee I] affirmed the view that the regulation of interstate water pollution is a matter of federal, not state, law. . . .”).

scientific consensus on climate change and its devastating effects.” Id. (quoting Compl. ¶ 177, Ct. App.

JA.108). This Court’s cases on the federal common

law of interstate pollution simply do “not address the

type of acts Rhode Island seeks judicial redress for.”

Id. 18a; see also Boulder, 25 F.4th at 1261 n.5 (“It is

also unsettled whether the federal common law of interstate pollution covers suits brought against product sellers rather than emitters—suits in which outof-state third-party emitters are only steps in the

causal chain.” (cleaned up)); Oakland, 969 F.3d at

906 (expressing doubt as to whether federal common

law applied to climate-deception claims).

3. Furthermore, the First Circuit rightly refused to

expand federal common law to encompass Rhode Island’s state-law claims. “[B]efore federal judges may

claim a new area for common lawmaking, strict conditions must be satisfied.” Rodriguez v. F.D.I.C., 140 S.

Ct. 713, 717 (2020). Among others, the party invoking

federal common law must identify a “specific,” “concrete,” and “significant conflict” between a uniquely

federal interest and the use of state law. O’Melveny &

Myers v. F.D.I.C., 512 U.S. 79, 87–88 (1994); see also

Miree v. DeKalb Cty., 433 U.S. 25, 31 (1977); Wallis v.

Pan Am. Petroleum Corp., 384 U.S. 63, 68–72 (1966).

“The cases in which federal courts may engage in common lawmaking are few and far between,” and this

Court has “underscore[d] the care federal courts

should exercise before taking up an invitation to try

their hand at common lawmaking,” lest they “ma[k]e

the mistake of moving too quickly past important

threshold questions at the heart of our separation of

powers.” Rodriguez, 140 S. Ct. at 716, 718.

Far from raising a uniquely federal interest, Rhode

Island’s claims rests firmly on longstanding state in-

terests. This lawsuit vindicates a core state “interest

in ensuring the accuracy of commercial information in

the marketplace.” Edenfield v. Fane, 507 U.S. 761,

769 (1993). It targets misconduct that has traditionally been regulated by the States. See, e.g., Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 541–42 (2001)

(identifying “advertising” as “a field of traditional

state regulation” (cleaned up)); California v. ARC Am.

Corp., 490 U.S. 93, 101 (1989) (identifying “unfair

business practices” as “an area traditionally regulated

by the States”); Fla. Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 150 (1963) (underscoring the

States’ “traditional power to enforce otherwise valid

regulations designed for the protection of consumers”). It pursues state tort remedies that are rooted in

“the state’s historic powers to protect the health, safety, and property rights of its citizens.” In re MTBE

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

it redresses injuries that “the states have a legitimate

interest in combating,” namely: “the adverse effects of

climate change.” Am. Fuel & Petrochemical Mfrs. v.

O’Keeffe, 903 F.3d 903, 913 (9th Cir. 2018). To the extent, then, that the federal government has an interest in the resolution of this case, it is shared with the

states, rather than uniquely federal.

As the First Circuit correctly concluded, moreover,

petitioners failed to identify a “significant conflict” between any concrete federal interest and Rhode Island’s “state-law claims, which (again) seek to hold

[petitioners] 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.” Pet. App. 16a (cleaned up).

“[T]he existence of such a conflict [is] a precondition

for recognition of a federal [common law] rule of decision.” O’Melveny, 512 U.S. at 87. And for good reason:

It safeguards against “the runaway tendencies of ‘federal common law’ untethered to a genuinely identifiable (as opposed to judicially constructed) federal policy.” Id. at 89. Here, petitioners wave vaguely at “the

basic scheme of the Constitution” and “our federal

system” to justify their proposed expansion of federal

common law. Pet. 24–25. But “[i]nvoking some brooding federal interest or appealing to a judicial policy

preference should never be enough to win preemption

of a state law.” Virginia Uranium, Inc. v. Warren, 139

S. Ct. 1894, 1901 (2019) (lead opinion).

In short, there is no existing federal common law

that could apply to Rhode Island’s claims and no justification for creating new federal common law in this

area. The court below was correct and no further review by this Court is warranted.

B. There is no third exception to the

well-pleaded complaint rule for

state-law claims that were formerly

governed by a now-displaced body of

federal common law.

Even if federal common law did somehow encompass Rhode Island’s state-law claims for the deceptive

promotion of a dangerous consumer product, petitioners’ theory of removal would still fail in light of the

well-pleaded complaint rule. This Court has only ever

recognized two exceptions to the well-pleaded complaint rule (Grable and complete preemption), and

petitioners do not challenge the First Circuit’s determination that neither of those exceptions applies

here. Nor do they offer this Court any basis for creating a bespoke third exception that applies only to

state-law claims that are purportedly governed by

judge-made federal law.

1. Under the century-old well-pleaded complaint

rule, a case arises under federal law “only when the

plaintiff ’s statement of his own cause of action shows

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

60 (brackets omitted). In the “vast bulk of suits,” then,

“a case arises under federal law when federal law creates the cause of action asserted.” Gunn, 568 U.S. at

257. This Court has recognized only two narrow exceptions where a case arises under federal law even

though it pleads claims exclusively under state law.

The first encompasses the “special and small category” of state-law claims that satisfy Grable. Id. at 258.

The second consists of state-law claims that are completely preempted by a federal statutory cause of action that “Congress intended . . . to be exclusive.” Beneficial Nat’l Bank, 539 U.S. at 9 n.5. This Court has

never recognized a standalone third exception for

state-law claims that are purportedly governed by

federal common law.

In suggesting otherwise, petitioners lean on United

States v. Standard Oil Co. of California, 332 U.S. 301

(1947). In that case, however, subject-matter jurisdiction undisputedly existed because the United States

was the plaintiff. Id. at 303. The Court therefore did

not consider any questions of arising-under jurisdiction, much less address whether federal common law

can convert state-law claims into federal ones for jurisdictional purposes. Oneida Indian Nation v. County

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

petitioners. In that case, the plaintiffs expressly

pleaded a federal cause of action, alleging that the defendants had interfered with “a current right to possession conferred [on them] by federal law.” Id. at 666.

As a result, Oneida says nothing about when a claim

pleaded under state law arises under federal law for

purposes of subject-matter jurisdiction. Nor do any of

petitioners’ other citations to this Court’s case law. In

fact, most of those cases do not even address subjectmatter jurisdiction.5 The remainder either concern jurisdictional disputes that have nothing to do with

arising-under jurisdiction,6 or cases where—as in

Oneida—the plaintiff expressly pleaded a federal

cause of action.7 None of them addressed the removability of claims pleaded exclusively under state law.

2. There is no reason for this Court to grant petitioners’ request to create a custom-made jurisdictional

test for cases “governed by” a displaced body of federal

common law. In fact, doing so would undo the progress this Court achieved in Grable in clarifying the

arising-under doctrine.

The petitioner in Grable, like petitioners here, asked

the Court to create different jurisdictional tests for

different sources of federal law. See 545 U.S. at 320

n.7. The Court declined that invitation, observing that

there is “no reason in [the] text [of Section 1331] or

otherwise to draw such a rough line.” Id. Instead, it

developed a test that applies comfortably to any category of federal law, thereby advancing the Court’s

stated goal of providing “[j]urisdictional tests [that]

are built for more than a single dispute.” Manning,

578 U.S. at 393. The Court has no reason to revisit

that choice, as lower courts have applied Grable with

See, e.g., Ouellette, 479 U.S. 483; Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398 (1964); BMW of N. Am., Inc. v. Gore, 517

U.S. 559 (1996); Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907).

Kansas v. Colorado, 206 U.S. 46, 97 (1907); Milwaukee I, 406

U.S. at 93.

Milwaukee II, 451 U.S. at 310; AEP, 564 U.S. at 418; Arbaugh v. Y&H Corp., 546 U.S. 500, 503–04 (2006); Texas Indus.,

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

no apparent difficulty, including to cases involving

federal common law. See, e.g., Provincial Gov’t of

Marinduque v. Placer Dome, Inc., 582 F.3d 1083,

1090–92 (9th Cir. 2009); Nicodemus v. Union Pac.

Corp., 440 F.3d 1227, 1235–36 (10th Cir. 2006); Morgan Cty. War Mem’l Hosp. ex rel. Bd. of Directors of

War Mem’l Hosp. v. Baker, 314 F. App’x 529, 533,

535–36 (4th Cir. 2008). The Court should not adopt

the “untested approach” proposed by petitioners here,

because “forcing courts to toggle back and forth between [that approach] and the ‘arising under’ standard, would undermine consistency and predictability

in litigation.” Manning, 578 U.S. at 383–84.

Nor should this Court dramatically expand the artful pleading doctrine to encompass preemption by federal common law. See Pet. 17–22. As this Court has

explained, the artful pleading doctrine is simply another name for complete preemption. See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998)

(“The artful pleading doctrine allows removal where

federal law completely preempts a plaintiff ’s state-law

claim.” (citations omitted)). And complete preemption

exists only when a state-law claim is wholly subsumed

by a federal statutory cause of action that Congress

intended to be exclusive. Beneficial Nat’l Bank, 539

U.S. at 9 & n.5. This Court has been “reluctant” to expand the scope of the complete preemption doctrine,

recognizing that doing so raises significant federalism

concerns. See Metro Life, 481 U.S. at 65. Indeed, it has

only ever identified three federal statutes that have

the “extraordinary pre-emptive power” necessary to

“convert[] an ordinary state common law complaint

into one stating a federal claim for purposes of the

well-pleaded complaint rule.” Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004) (cleaned up); San Mateo,

32 F.4th at 748 (identifying those three statutes).

The Court should not endow judge-made federal

law with that sort of extraordinary preemptive force.

If it did, a federal judge could expand its own subjectmatter jurisdiction simply by making new federal

common law, contrary to the foundational axiom that

the “limited jurisdiction” of the federal courts “is not

to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

III. The Question Presented is neither

important nor cleanly raised in this case.

The Question Presented does not warrant this

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

well-presented in this Petition and arises in only a

single, discrete category of cases.

1. This case is a poor vehicle for addressing petitioners’ theory of federal-common-law removal, even assuming that novel theory warranted certiorari review.

To reverse the judgment below, this Court would need

to (1) conclude that a congressionally displaced body

of federal common law governs Rhode Island’s statelaw claims, and then (2) create a new exception to the

well-pleaded complaint rule that stands separate and

apart from both Grable and complete preemption. But

as petitioners necessarily concede, the First Circuit

never addressed the second step of their theory. Pet.

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

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

to grant certiorari in this case. Jennings v. Rodriguez,

138 S. Ct. 830, 851 (2018) (citation omitted).

2. Denying certiorari is also appropriate because

the Petition does not present any questions of recurring importance. To the contrary, petitioners present

an exceedingly narrow and atypical question of subject-matter jurisdiction: whether defendants can re-

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

though they fail to satisfy the requirements of Grable

and complete preemption. The cases affected by the

Question Presented are necessarily few in number because federal common law applies only in “limited areas” that are “few and restricted.” Texas Indus., 451

U.S. at 640 (cleaned up). Indeed, the only potentially

affected cases that petitioners identify are other lawsuits targeting the fossil-fuel industry’s climate deception, a vanishingly small fraction of the thousands

of cases remanded each year to state court.

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

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

on the merits of Rhode Island’s claims, rather than a

federal court. Pet. 30. As this Court has reaffirmed

time and again, state courts are perfectly capable of

applying federal law and adjudicating federal defenses. See, e.g., McKesson v. Doe, 141 S. Ct. 48, 51 (2020)

(“Our system of ‘cooperative judicial federalism’ presumes federal and state courts alike are competent to

apply federal and state law.”).

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

review. Pet. 30. But it is petitioners who seek to undo

the progress that this Court has made in clarifying

the “muddled backdrop” of jurisdictional rules that existed prior to Grable. Manning, 578 U.S. at 385. Courts

have no need for a one-off jurisdictional test that ap-

plies only to judge-made federal law, because Grable

already “provides ready answers to jurisdictional

questions” and already “gives guidance whenever borderline cases crop up.” Id. at 392.

CONCLUSION

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

Respectfully Submitted,

VIcTOr m. Sher,

Counsel of Record

maTThew K. EdlIng

marTIn D. QuIñOnes

QuenTIn C. KarPIlOw

Sher EdlIng LLP

100 Montgomery St.,

Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

Sarah W. RIce

Special Assistant

Attorney General and

Deputy Chief of the

Civil Division,

Public Protection Bureau

AlIsOn HOffman

Special Assistant

Attorney General

State of Rhode Island

OffIce Of

The ATTOrney General

150 South Main Street

Providence, RI 02903

srice@riag.ri.gov

ahoffman@riag.ri.gov

Counsel for Respondents

February 6, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.