Petition for Writ of Certiorari — Chevron Corporation, et al., Petitioners v. City of Hoboken, New Jersey, et al.

No. 22-_______

IN THE

Supreme Court of the United States

BP AMERICA INC., ET AL.,

Petitioners,

v.

STATE OF DELAWARE

Respondent.

CHEVRON CORPORATION, ET AL.,

Petitioners,

v.

CITY OF HOBOKEN

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS G. HUNGAR

LOCHLAN F. SHELFER

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

THEODORE J. BOUTROUS, JR.

Counsel of Record

WILLIAM E. THOMSON

JOSHUA D. DICK

GIBSON, DUNN

& CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tboutrous@gibsondunn.com

Counsel for Petitioners

[Additional counsel listed on signature page]

QUESTION PRESENTED

Whether a federal district court has jurisdiction

under 28 U.S.C. § 1331 over nominally state-law

claims seeking redress for injuries allegedly caused by

the effect of transboundary greenhouse gas emissions

on the global climate, on the ground that federal law

necessarily and exclusively governs such claims.

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioners are American Petroleum Institute;

Apache Corporation; B.P. America Inc.; BP p.l.c.;

Chevron Corporation; Chevron U.S.A. Inc.; CITGO

Petroleum Corporation; CNX Resources Corporation;

ConocoPhillips; ConocoPhillips Company; CONSOL

Energy Inc.; Devon Energy Corporation; Exxon Mobil

Corporation; ExxonMobil Oil Corporation; Hess Corporation; Marathon Oil Corporation; Marathon Petroleum Company LP; Marathon Petroleum Corporation;

Murphy Oil Corporation; Murphy USA Inc.; Occidental Petroleum Corporation; Ovintiv Inc.; Phillips

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

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

Speedway LLC; TotalEnergies Marketing USA, Inc.;

TotalEnergies SE (f/k/a Total S.A.); and XTO Energy

Inc.

Petitioner American Petroleum Institute is a nonprofit, tax-exempt organization incorporated in the

District of Columbia. It is a non-stock corporation and

thus has no parent organization, and no publicly held

corporation holds 10% or more of its stock.

Petitioner Apache Corporation does not have a

parent corporation, and there is no publicly held corporation that owns 10% or more of Apache Corporation’s stock.

Petitioner B.P. America Inc. is a 100% wholly

owned indirect subsidiary of petitioner BP p.l.c., and

no intermediate parent of BP America Inc. is a publicly traded corporation.

Petitioner BP p.l.c., a publicly traded corporation

organized under the laws of England and Wales, has

iii

no parent corporation, and there is no publicly held

corporation that owns 10% or more of BP p.l.c.’s stock.

Petitioner Chevron Corporation has no parent corporation, and no publicly held company holds 10% or

more of its stock.

Petitioner Chevron U.S.A. Inc. is a wholly owned

subsidiary of petitioner Chevron Corporation.

Petitioner CITGO Petroleum Corporation is a

wholly owned indirect subsidiary of Petróleos de Venezuela S.A., which is the national oil company of the

Bolivarian Republic of Venezuela. No publicly held

company owns 10% or more of its stock.

Petitioner CNX Resources Corporation is a publicly held corporation and does not have a parent corporation. BlackRock, Inc., through itself or its subsidiaries, owns 10% or more of CNX Resources Corporation’s stock.

Petitioner ConocoPhillips has no parent corporation, and no publicly held company holds 10% or more

of its stock.

Petitioner ConocoPhillips Company is a wholly

owned subsidiary of petitioner ConocoPhillips.

Petitioner CONSOL Energy Inc. is a publicly held

corporation and does not have a parent corporation.

BlackRock, Inc., through itself or its subsidiaries,

owns 10% or more of CONSOL Energy Inc.’s stock.

Petitioner Devon Energy Corporation has no parent corporation, and there is no publicly held corporation that owns 10% or more of Devon Energy Corporation’s stock.

iv

Petitioner Exxon Mobil Corporation has no parent

corporation, and no publicly held corporation owns

10% or more of its stock.

Petitioner ExxonMobil Oil Corporation’s corporate

parent is Mobil Corporation, which owns 100% of ExxonMobil Oil Corporation’s stock. Mobil Corporation,

in turn, is wholly owned by petitioner Exxon Mobil

Corporation.

Petitioner Hess Corporation has no parent corporation, and no publicly held corporation holds 10% or

more of its stock.

Petitioner Marathon Oil Corporation does not have

a parent corporation and is a publicly traded entity.

The Vanguard Group, Inc., an investment advisor

that is not a publicly traded corporation, disclosed

through a Schedule 13G/A filed with the SEC that it

beneficially owns 10% or more of Marathon Oil Corporation’s stock.

Petitioner Marathon Petroleum Company LP is a

wholly owned indirect subsidiary of petitioner Marathon Petroleum Corporation. No other publicly held

company owns 10% or more of Marathon Petroleum

Company LP’s stock.

Petitioner Marathon Petroleum Corporation is a

publicly held corporation and does not have a parent

corporation. BlackRock, Inc., through itself or its subsidiaries, owns 10% or more of Marathon Petroleum

Corporation’s stock.

Petitioner Murphy Oil Corporation has no parent

corporation, and there is no publicly held corporation

that owns 10% or more of Murphy Oil Corporation’s

stock.

v

Petitioner Murphy USA Inc. is a publicly held corporation, and it has no corporate parent. Murphy

USA Inc. further discloses that BlackRock, Inc. owns

more than 10% of Murphy USA Inc.’s outstanding

stock.

Petitioner Occidental Petroleum Corporation, a

publicly traded company, has no parent company.

Berkshire Hathaway Inc. indirectly owns 10% or more

of the issued and outstanding shares of common stock

of Occidental Petroleum Corporation. No other publicly traded company owns more than 10% of the common stock of Occidental Petroleum Corporation.

Petitioner Ovintiv Inc. is a publicly held corporation and does not have a parent corporation. No publicly held corporation owns 10% or more of Ovintiv

Inc.’s stock.

Petitioner Phillips 66 has no parent corporation.

The Vanguard Group is the only shareholder owning

10% or more of Phillips 66.

Petitioner Phillips 66 Company is wholly owned by

Phillips 66.

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

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

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

Petitioner Speedway LLC is an indirect subsidiary

of Seven & i Holdings, Co., Ltd. Seven & i Holdings

Co., Ltd., through itself or its subsidiaries, owns more

than 10% of Speedway LLC’s ownership interests.

Petitioner TotalEnergies Marketing USA, Inc. is a

wholly owned subsidiary of TotalEnergies Marketing

vi

Services. TotalEnergies Marketing Services is a

wholly owned subsidiary of petitioner TotalEnergies

S.E., a publicly held French company.

Petitioner TotalEnergies SE (f/k/a Total S.A.) is a

publicly held French company.

Petitioner XTO Energy Inc.’s corporate parent is

petitioner Exxon Mobil Corporation, which owns

95.5% of XTO Energy Inc.’s stock.

Respondents are the City of Hoboken and the State

of Delaware ex rel. Kathleen Jennings, Attorney General of the State of Delaware.

vii

RULE 14.1(b)(iii) STATEMENT

United States District Court (D. Del.):

State of Delaware ex rel. Jennings v. B.P.

America, Inc., et al., No. 1:20-cv-1429

(Jan. 5, 2022)

United States District Court (D.N.J.):

City of Hoboken v. Exxon Mobil Corp., et al.,

No. 2:20-cv-14243 (Sept. 8, 2021)

United States Court of Appeals (3d Cir.):

City of Hoboken v. Chevron Corp., et al.,

No. 21-2728 (Aug. 17, 2022)

State of Delaware ex rel. Jennings v. B.P.

America, Inc., et al., No. 22-1096 (Aug.

17, 2022)

viii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................................i

PARTIES TO THE PROCEEDING AND

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

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

TABLE OF APPENDICES ................................... x

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

JURISDICTION .................................................... 2

STATUTORY PROVISIONS INVOLVED ........... 2

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

STATEMENT OF THE CASE .............................. 4

A. The public-nuisance suits ................... 4

B. Proceedings in the district

courts ................................................... 8

C. Proceedings in the Third Circuit ........ 9

REASONS FOR GRANTING THE

PETITION ........................................................... 10

I. Whether Claims Necessarily And

Exclusively Governed By Federal

Law Are Removable To Federal

Court Is An Important And

Recurring Issue That Has Divided

The Circuits ............................................. 11

A. The Third Circuit’s Decision

Deepens A Circuit Conflict Over

When Nominally State-Law

Claims May Be Removed .................. 11

ix

B. This Case Also Implicates A

Conflict Among The Courts Of

Appeals Over Whether Federal

Law Necessarily And

Exclusively Governs Claims

Based On Transboundary

Emissions........................................... 17

II. The Decision Below Was Wrongly

Decided .................................................... 22

III. These Cases Raise An Important

Question That Warrants The

Court’s Review......................................... 28

CONCLUSION .................................................... 31

x

TABLE OF APPENDICES

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Third Circuit

(Aug. 17, 2022) .................................................... 1a

APPENDIX B: Opinion of the United States

District Court for the District of New

Jersey Granting Motions to Remand

(Sept. 8, 2021) ................................................... 37a

APPENDIX C: Opinion of the United States

District Court for the District of Delaware

Granting Motions to Remand (Jan. 5,

2022) .................................................................. 67a

APPENDIX D: Order of the United States

Court of Appeals for the Third Circuit

Denying Rehearing En Banc

(Sept. 30, 2022) ............................................... 109a

xi

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) .......................... 5, 6, 23, 26, 28

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) .............................................. 22

Battle v. Seibels Bruce Ins. Co.,

288 F.3d 596 (4th Cir. 2002) ................................ 27

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

517 U.S. 559 (1996) .............................................. 22

Bd. of Cnty. Comm’rs of Boulder Cnty.

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

25 F.4th 1238 (10th Cir. 2022) ...................... 16, 21

California v. Gen. Motors Corp.,

2007 WL 2726871

(N.D. Cal. Sept. 17, 2007) ...................................... 5

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ................................................ 9

City of Hoboken v. Exxon Mobil Corp.,

558 F. Supp. 3d 191 ............................................... 1

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) .................................. 19, 23, 26

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ........... 18, 19, 20, 21, 28

xii

City of Oakland v. BP PLC,

969 F.3d 895 (9th Cir. 2020) .......................... 16, 17

Direct Mktg. Ass’n v. Brohl,

575 U.S. 1 (2015) .................................................. 29

Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394 (1981) .............................................. 25

Franchise Tax Bd. v. Constr. Laborers

Vacation Tr.,

463 U.S. 1 (1983) .................................................. 25

Franchise Tax Bd. v. Hyatt,

139 S. Ct. 1485 (2019) .......................................... 23

Georgia v. Tenn. Copper Co.,

206 U.S. 230 (1907) ........................................ 23, 26

Goepel v. Nat’l Postal Mail Handlers

Union,

36 F.3d 306 (3d Cir. 1994) ..................................... 9

Grable & Sons Metal Prods., Inc. v.

Darue Eng’g & Mfg.,

545 U.S. 308 (2005) .................................... 9, 10, 27

Gunn v. Minton,

568 U.S. 251 (2013) .............................................. 27

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ................................................ 29

Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743 (2019) .................................... 11, 24

xiii

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) .................................... 11, 19, 23

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) .............................................. 23

Delaware ex rel. Jennings v. BP

America Inc.,

578 F. Supp. 3d 618 ............................................... 1

Kansas v. Colorado,

206 U.S. 46 (1907) ................................................ 22

Manning v. Merrill Lynch Pierce Fenner

& Smith, Inc.,

772 F.3d 158 (3d Cir. 2014) ................................. 28

Mayor & City Council of Baltimore v.

BP P.L.C.,

31 F.4th 178 (4th Cir. 2022) .................... 16, 20, 21

Nat’l Farmers Union Ins. Cos. v. Crow

Tribe of Indians,

471 U.S. 845 (1985) .............................................. 24

Native Vill. of Kivalina v. ExxonMobil

Corp.,

663 F. Supp. 2d 863 (N.D. Cal. 2009) .................... 4

Native Village of Kivalina v.

ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) .............................. 5, 6

Newton v. Capital Assurance Co.,

245 F.3d 1306 (11th Cir. 2001) ...................... 13, 27

xiv

In re Otter Tail Power Co.,

116 F.3d 1207 (8th Cir. 1997) ........................ 12, 13

PPL Montana, LLC v. Montana,

565 U.S. 576 (2012) .............................................. 22

Republic of Philippines v. Marcos,

806 F.2d 344 (2d Cir. 1986) ................................. 14

Rhode Island v. Shell Oil Prods. Co.,

35 F.4th 44 (1st Cir. 2022) ............................. 20, 21

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

117 F.3d 922 (5th Cir. 1997) ............................ 9, 12

Tennessee v. Davis,

100 U.S. 257 (1880) .............................................. 29

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

Inc.,

451 U.S. 630 (1981) .............................................. 23

Torres v. S. Peru Copper Corp.,

113 F.3d 540 (5th Cir. 1997) ................................ 14

United States v. Sisson,

399 U.S. 267 (1970) .............................................. 29

United States v. Standard Oil Co. of

Cal.,

332 U.S. 301 (1947) .............................................. 19

United States v. Swiss Am. Bank, Ltd.,

191 F.3d 30, 43 (1st Cir. 1999) ............................ 19

xv

Vaden v. Discover Bank,

556 U.S. 49 (2009) ................................................ 25

Statutes

28 U.S.C. § 1331 ........................................ 2, 10, 12, 16

28 U.S.C. § 1441(a) .................................... 2, 10, 11, 12

Other Authorities

FACT SHEET: President Biden to

Announce New Actions to Strengthen

U.S. Energy Security, Encourage

Production, and Bring Down Costs,

White House Briefing Room (Oct. 18,

2022) ..................................................................... 30

Richard H. Fallon, Jr., et al.,

Hart & Wechsler’s Federal Courts

and the Federal System (7th ed.

2015) ..................................................................... 26

14C Wright & Miller, Federal Practice

& Procedure § 3722.1 (4th ed.) ............................ 25

PETITION FOR A WRIT OF CERTIORARI

Petitioners American Petroleum Institute; Apache

Corporation; B.P. America Inc.; BP p.l.c.; Chevron

Corporation; Chevron U.S.A. Inc.; CITGO Petroleum

Corporation; CNX Resources Corporation; ConocoPhillips; ConocoPhillips Company; CONSOL Energy Inc.; Devon Energy Corporation; Exxon Mobil

Corporation; ExxonMobil Oil Corporation; Hess Corporation; Marathon Oil Corporation; Marathon Petroleum Company LP; Marathon Petroleum Corporation;

Murphy Oil Corporation; Murphy USA Inc.; Occidental Petroleum Corporation; Ovintiv Inc.; Phillips

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

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

Speedway LLC; TotalEnergies Marketing USA, Inc.;

TotalEnergies SE (f/k/a Total S.A.); and XTO Energy

Inc. respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in these cases.

OPINIONS BELOW

The opinion of the Third Circuit is reported at 45

F.4th 699. App. 1a–36a. The order denying petitioners’ timely petition for rehearing en banc is not reported. App. 109a–11a. The district court’s order in

City of Hoboken v. Exxon Mobil Corp. is reported at

558 F. Supp. 3d 191. App. 37a–66a. The district

court’s order in Delaware ex rel. Jennings v. BP America Inc. is reported at 578 F. Supp. 3d 618. App. 67a–

108a.

JURISDICTION

The Third Circuit issued its opinion on August 17,

2022, and denied panel rehearing and rehearing en

2

banc on September 30, 2022. On December 16, 2022,

Justice Sotomayor extended the time within which to

file a petition for a writ of certiorari until February 27,

2023. See No. 22A528. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1331 provides: “The district courts

shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the

United States.”

28 U.S.C. § 1441(a) provides: “[A]ny civil action

brought in a State court of which the district courts of

the United States have original jurisdiction, may be

removed by the defendant or the defendants, to the

district court of the United States for the district and

division embracing the place where such action is

pending.”

INTRODUCTION

Respondents, the State of Delaware and the City

of Hoboken, New Jersey, have asked state courts to

apply state tort law to impose massive monetary liability on petitioners—a group of 29 energy companies

and an industry association—for harms allegedly attributable to global climate change. These suits are

among nearly two dozen actions that have been filed

in state courts across the country, from Rhode Island

to Hawaii, as part of a coordinated campaign to use

state law to hold some but not all of the energy industry liable for global climate change—a phenomenon

that, on respondents’ own theory, is the cumulative

result of billions of individual decisions stretching

3

back more than a century. If respondents’ unprecedented effort to transform state courts into global climate-change regulators succeeds, every state court in

the Nation will be empowered to use state law to impose its own view of energy and environmental policy

nationwide and, indeed, worldwide.

Under our constitutional structure, however, these

claims necessarily arise under federal law alone. As

this Court has repeatedly held, a State cannot use its

own law to obtain relief for harms allegedly caused by

out-of-state emissions. Rather, claims related to interstate and international emissions are inherently

federal and, accordingly, are governed exclusively by

federal law, even when they are nominally pleaded

under state law.

These cases present the question whether these inherently federal claims can be removed to federal

court. The Third Circuit held that they could not. In

so holding, the court deepened a circuit conflict over

whether federal district courts have subject-matter jurisdiction over claims necessarily and exclusively governed by federal law but nominally pleaded under

state law.

Not only are the circuits divided over this question,

but this Court also recently invited the Solicitor General to file a brief expressing the views of the United

States on this question in Suncor Energy (U.S.A.) Inc.

v. Board of County Commissioners of Boulder County,

No. 21-1550. The United States has previously taken

the position that climate-change claims of this sort are

removable because they are inherently and necessarily federal.

4

The significance of these cases supports immediate

review. Respondents’ claims expose the energy sector

to vast, indeterminate monetary relief that will deter

investment and employment across the industry and

the broader economy, and cause disruption to the

global economy. These cases will also disrupt and impede the political branches’ international climatechange initiatives and negotiations. And these cases

threaten to impose a patchwork of conflicting tort

standards applicable to global production, marketing,

and emissions under the laws of multiple States. This

Court should thus decide whether these cases are governed by federal law and, in turn, removable to federal

court.

Because this petition presents the same issues as

those presented in Suncor, it should be held pending

the Court’s disposition of that case. If the Court does

not grant review in Suncor, this petition should be

granted.

STATEMENT OF THE CASE

A. The public-nuisance suits

These cases are part of a long series of climatechange-related nuisance actions that “seek[ ] to impose liability and damages on a scale unlike any prior

environmental pollution case.” Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 876

(N.D. Cal. 2009). For nearly two decades, state and

local governments, working with private plaintiffs’

lawyers, have tried to use novel tort claims in an attempt to regulate global greenhouse gas emissions by

imposing massive civil liability on a selection of energy and other companies that produce goods and provide services essential to modern life.

5

The first wave of such lawsuits asserted nuisance

claims against automobile companies for alleged contributions to climate change. See California v. Gen.

Motors Corp., 2007 WL 2726871 (N.D. Cal. Sept. 17,

2007) (dismissing state and federal common-law nuisance claims against automakers based on emissions

for failing to state a claim and because claims were

not justiciable).

The next round of litigation invoked federal common law to enjoin emissions from power plants. In

July 2004, a group of private and public entities

sought to enjoin emissions from five power companies

on the ground that their “carbon-dioxide emissions

created a substantial and unreasonable interference

with public rights, in violation of the federal common

law of interstate nuisance, or, in the alternative, of

state tort law.” Am. Elec. Power Co. v. Connecticut,

564 U.S. 410, 418 (2011) (“AEP”) (internal quotation

marks omitted). This Court stated that such claims

were “meet for federal law governance” and that “borrowing the law of a particular State would be inappropriate.” Id. at 422. Turning to the merits, the Court

held that federal common law did not provide a remedy because “the Clean Air Act and the EPA actions it

authorizes displace any federal common-law right to

seek abatement of carbon-dioxide emissions from fossil-fuel fired powerplants.” Id. at 424.

The third wave of litigation again invoked federal

common law, but this time in actions seeking damages

for harms allegedly attributable to global climate

change rather than an injunction against emissions.

In Native Village of Kivalina v. ExxonMobil Corp., 696

F.3d 849 (9th Cir. 2012), the plaintiffs “s[ought] dam-

6

ages under a federal common law claim of public nuisance” allegedly for harm caused by climate change to

a coastal community in Alaska, id. at 853. Although

“[t]his case present[ed] the question in a slightly different context” than AEP, the Kivalina court found

this distinction immaterial because this “Court has instructed that the type of remedy asserted is not relevant to the applicability of the doctrine of displacement.” Id. at 857.

In response to these repeated failures, state and

local governments opened a fourth front in their campaign to use the courts to remedy harms allegedly attributable to greenhouse gas emissions, launching a

series of lawsuits in state court seeking to hold energy

companies liable for global climate change under state

laws. Nearly two dozen actions have been brought under this theory against scores of defendants in state

courts across the country, including in Rhode Island,

New York City, Baltimore, Boulder, San Francisco,

Seattle, and Hawaii. 1

See, e.g., Cnty. of San Mateo v. Chevron, No. 17-3222 (Cal. Super. Ct. San Mateo Cnty.); City of Imperial Beach v. Chevron, No.

17-1227 (Cal. Super. Ct. Contra Costa Cnty.); Cnty. of Marin v.

Chevron, No. 17-2586 (Cal. Super. Ct. Marin Cnty.); City of Richmond v. Chevron, No. 18-55 (Cal. Super. Ct. Contra Costa Cnty.);

Cnty. of Santa Cruz v. Chevron, No. 17-3242 (Cal. Super. Ct.,

Santa Cruz Cnty.); City of Santa Cruz v. Chevron, No. 17-3243

(Cal. Super. Ct. Santa Cruz Cnty.); City of Oakland v. BP P.L.C.,

No. RG17875889 (Cal. Super. Ct. Alameda Cnty.); City & Cnty.

of San Francisco v. B.P. P.L.C., No. CGC-17-561370 (Cal. Super.

Ct. S.F. Cnty.); Mayor & City Council of Baltimore v. BP P.L.C.,

No. 18-4219 (Balt. Cir. Ct.); Pac. Coast Fed’n of Fishermen’s

Ass’ns, Inc. v. Chevron, No. CGC-18-571285 (Cal. Super. Ct. S.F.

Cnty.); King Cnty. v. BP P.L.C., No. 18-2-11859-0 (Wash. Super.

Ct. King Cnty.); State v. Chevron, No. PC-2018-4716 (R.I. Super.

1

7

The cases at issue here are part of this campaign.

They were filed by the State of Delaware and the City

of Hoboken, New Jersey, in the Superior Court of the

State of Delaware and the Superior Court of New Jersey, respectively. Delaware C.A. JA.239; Hoboken

C.A. JA.41. Each case asserts state-law claims for

nuisance, negligence, trespass, and violation of state

consumer-fraud statutes. Delaware C.A. JA.444–62;

Hoboken C.A. JA.118–84. Both respondents seek compensatory damages. Delaware C.A. JA.463; Hoboken

C.A. JA.184. And both respondents’ complaints demand injunctions requiring energy companies “to

abate the nuisance[ ] [caused by sea level rise]” related

to “global warming”—a nuisance that they contend

petitioners were substantially responsible for creating. Hoboken C.A. JA.170–72, 184–85; Delaware C.A.

JA.454.

Respondents’ theory implicates worldwide conduct. They allege that global consumption of petitioners’ fossil fuel products is “directly responsible for” the

“dramatic increase in atmospheric CO2 and other

greenhouse gases,” which in turn is “the main driver

of the gravely dangerous changes occurring to the

Ct.); Bd. of Cnty. Comm’rs of Boulder v. Suncor Energy (U.S.A.),

No. 2018-CV-030349 (Colo. Dist. Ct.); City & Cnty. of Honolulu

v. Sunoco, No. 20-380 (1st Cir. Haw.); District of Columbia v.

Exxon, No. 2020 CA 002892 B (D.C. Super. Ct.); Cnty. of Maui v.

Sunoco LP, No. 2CCV-20-0000283 (2d Cir. Haw.); City of

Charleston v. Brabham Oil Co., No. 2020-CP-10 (S.C. Ct. Com.

Pl.); City of Annapolis v. BP P.L.C., No. C-02-CV-21-000250 (Md.

Cir. Ct. Anne Arundel Cnty.); Anne Arundel Cnty. v. BP P.L.C.,

No. C-02-CV-21-000565 (Md. Cir. Ct. Anne Arundel Cnty.); State

v. Exxon Mobil Corp., No. MER-L-001797-22 (N.J. Super. Ct.

Mercer Cnty.).

8

global climate.” Delaware C.A. JA.249, 251. And respondents seek to hold petitioners liable for causing

“sea level rise, more frequent and intense storms, extreme heat, and extreme precipitation events.” Hoboken C.A. JA.80; accord Delaware C.A. JA.445.

B. Proceedings in the district courts

Respondents filed separate actions against partially overlapping groups of petitioners in Delaware

and New Jersey state courts respectively, each alleging that “the dominant cause of global warming” is

worldwide “greenhouse gas pollution,” Delaware C.A.

JA.249; accord Hoboken C.A. JA.70, and that petitioners, by “extract[ing], produc[ing], market[ing], and

sell[ing]” fossil fuels, caused more than 12% of global

CO2 emissions between 1965 and 2017, Hoboken C.A.

JA.42–43. Asserting causes of action under Delaware

and New Jersey state law for nuisance, negligence,

trespass, and violation of state consumer-fraud statutes, respondents demand compensatory and punitive

damages, disgorgement of profits, abatement of the alleged nuisances, and other relief. See Delaware C.A.

JA.444–63; Hoboken C.A. JA.118–85.

Petitioners removed the actions to the U.S. District

Court for the District of Delaware and the U.S. District Court for the District of New Jersey. Delaware

C.A. JA.88; Hoboken C.A. JA.137. The notices of removal asserted various bases for federal jurisdiction,

including that respondents’ claims are necessarily

governed by and thus arise under federal law, and involve conduct undertaken at the direction of federal

officers, permitting removal under 28 U.S.C.

§ 1442(a)(1). Delaware C.A. JA.113–23, 129–75; Hoboken C.A. JA.230–42, 250–307. The district courts

9

granted respondents’ motions to remand the cases to

state court. App. 37a–38a, 74a.

C. Proceedings in the Third Circuit

The Third Circuit affirmed the remand orders.

App. 20a. The court recognized that respondents’

claims are “sweeping,” ibid., but concluded that, because the complaints facially pleaded only state-law

claims, petitioners could remove the complaints only

if they could “show either that [the] state claims are

completely preempted by federal law or that some

substantial federal issue must be resolved,” App. 22a–

23a (citing Caterpillar Inc. v. Williams, 482 U.S. 386,

393 (1987), and Grable & Sons Metal Prods., Inc. v.

Darue Eng’g & Mfg., 545 U.S. 308 (2005)). The court

recognized that its decision conflicted with the approach of other circuits permitting the removal of

claims pleaded under state law but exclusively governed by federal common law, including the Fifth Circuit’s decision in Sam L. Majors Jewelers v. ABX, Inc.,

117 F.3d 922 (5th Cir. 1997), but it declined to “follow”

that court’s decision, App. 25a.

The Third Circuit concluded that neither of its two

recognized bases for removal was present. The court

first held that respondents’ claims were not completely preempted by federal law. App. 25a. Petitioners argued that the claims are necessarily federal because “only federal common law can resolve far-reaching climate-change suits,” App. 24a, but the court held

that this was insufficient for complete preemption,

which it viewed as arising only where a federal statute

“authorizes a federal claim[ ] ‘vindicating the same interest as the state claim,’” App. 23a (quoting Goepel v.

Nat’l Postal Mail Handlers Union, 36 F.3d 306, 315

10

(3d Cir. 1994)). It found no such statute implicated in

this litigation.

The Third Circuit also concluded that petitioners

could not satisfy Grable, which authorizes removal

where a state-law claim necessarily implicates a substantial federal question. App. 26a; see 545 U.S. at

313–14. Petitioners argued that respondents’ claims

raise a substantial federal question because they

“arise in an area governed exclusively by federal law,”

but the court deemed this a mere defense that was insufficient to support federal jurisdiction. App. 26a. It

also rejected petitioners’ argument that respondents’

claims necessarily raise important First Amendment

issues. App. 27a. The consequence of this decision is

that, in the Third Circuit, claims that are necessarily

and exclusively governed by federal law as a matter of

constitutional structure cannot be removed to federal

court when they are nominally pleaded under state

law.

REASONS FOR GRANTING THE PETITION

The Third Circuit’s decision deepens an existing

conflict on the question whether federal jurisdiction

under 28 U.S.C. §§ 1331 and 1441 exists over claims

necessarily and exclusively governed by federal law

but pleaded under state law. The decision also implicates a circuit conflict on the question whether federal

law necessarily and exclusively governs claims seeking redress for injuries allegedly caused by the effects

of interstate and international greenhouse gas emissions.

This petition should be held pending the Court’s

disposition of Suncor. If the Court denies review in

Suncor, this petition should be granted.

11

I.

WHETHER

CLAIMS

NECESSARILY

AND

EXCLUSIVELY GOVERNED BY FEDERAL LAW ARE

REMOVABLE TO FEDERAL COURT IS AN

IMPORTANT AND RECURRING ISSUE THAT HAS

DIVIDED THE CIRCUITS.

Congress has authorized removal to federal court

of any case brought in state court over which federal

district courts “have original jurisdiction.” 28 U.S.C.

§ 1441(a). Thus, defendants may remove claims to

federal court when the plaintiff could have “filed its

operative complaint in federal court” in the first instance, Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct.

1743, 1748 (2019). And a long line of precedent from

this Court has made clear that claims for damages

based on interstate emissions must be governed by

federal law alone, and therefore can arise only under

federal law, not state law. See Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6, 108 n.10 (1972) (“Milwaukee I”) (“basic interests of federalism . . . demand[ ]” that, in disputes concerning interstate and

international emissions, “[t]he rule of decision [must]

be[ ] federal”). Yet the Third Circuit held that such

claims cannot be removed to federal court. That erroneous decision deepens one circuit conflict and implicates another.

A. The Third Circuit’s Decision Deepens A

Circuit Conflict Over When Nominally

State-Law Claims Are Removable.

The decision below exacerbates the existing conflict among the federal courts of appeals concerning

whether and when a claim pleaded under state law

arises under federal law for purposes of establishing

removal jurisdiction.

12

1. Several courts of appeals have expressly held

that federal courts have jurisdiction under Section

1331 over claims artfully pleaded under state law but

necessarily governed by federal law—specifically, federal common law.

In Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d

922 (5th Cir. 1997), a shipper sued a carrier in state

court to recover the value of goods that had been lost

in transit, “alleging breach of contract, negligence,

and violations of the Texas deceptive trade practice

law.” Id. at 924. The court noted that, under Section

1441(a), “only actions that originally could have been

filed in federal court can be removed to federal court.”

Ibid. The court then reasoned that there are “three

theories that might support federal question jurisdiction”: where “the complaint raises an express or implied cause of action that exists under a federal statute”; where the relevant “area of law is completely

preempted by the federal regulatory regime”; and

where “the cause of action arises under federal common law principles.” Ibid. (emphases added). Citing

a long tradition in which, “applying federal common

law, federal courts found that civil actions against air

carriers for lost or damaged goods arose under federal

law,” id. at 927–28, the Fifth Circuit held that the

shipper’s ostensibly state-law “negligence action . . .

arises under federal common law,” id. at 929. As a

result, the court concluded that “[it] ha[d] jurisdiction

over this action.” Ibid.

Similarly, the Eighth Circuit found federal jurisdiction over a removed state-court complaint that

raised putative state-law claims. In re Otter Tail

Power Co., 116 F.3d 1207, 1213–15 (8th Cir. 1997).

The complaint “raise[d] important questions of federal

13

law requiring interpretation of treaties, federal statutes, and the federal common law of inherent tribal

sovereignty.” Ibid. (emphasis added). In that situation, the “plaintiff ’s characterization of a claim as

based solely on state law is not dispositive” because

the complaint “necessarily presents a federal question,” and removal is proper. Id. at 1213–14 (internal

quotation marks omitted).

Other cases have used a Grable-type analysis to

uphold federal jurisdiction over claims governed by

federal common law because such claims necessarily

raise a substantial question of federal law. The rule

of law announced in these cases is irreconcilable with

the Third Circuit’s view that plaintiffs can opt to plead

only nominally state-law claims, and thus avoid removal, in an area where federal law exclusively governs.

For example, in Newton v. Capital Assurance Co.,

245 F.3d 1306 (11th Cir. 2001), the Eleventh Circuit

considered whether a state-court breach-of-contract

claim brought by the plaintiff against his flood insurer

had been properly removed to federal court. Id. at

1308. The court answered in the affirmative, holding

that the complaint “satisfie[d] § 1331 by raising a substantial federal question on its face” because the contract was a federally subsidized Standard Flood Insurance Policy that courts “interpret[ ] using principles of federal common law rather than state contract

law.” Id. at 1309.

In addition, the Fifth Circuit has affirmed the removal of “state-law tort claims” against a foreign company—despite the plaintiffs’ invocation of “the wellpleaded complaint rule”—because the case “raise[d]

14

substantial questions of federal common law by implicating important foreign policy concerns.” Torres v. S.

Peru Copper Corp., 113 F.3d 540, 542–43 (5th Cir.

1997).

Likewise, the Second Circuit has upheld federal jurisdiction over claims governed by the federal common

law of foreign relations under a Grable-like theory. In

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

Cir. 1986), the Philippine government sought an injunction in state court against its former president’s

transfer of properties, id. at 346. Although “the face

of the complaint” asserted a claim “more nearly akin

to a state cause of action for conversion,” the Second

Circuit indicated that removal would be proper on the

ground that the case “arises under federal common

law because of the necessary implications of such an

action for United States foreign relations.” Id. at 352–

54. In any event, the court held that removal was

proper because the claim raised, “as a necessary element,” a “federal question to be decided with uniformity as a matter of federal law, and not separately

in each state.” Id. at 354.

Each of these circuits recognizes that claims asserted in an area governed exclusively by federal law

arise under federal law and create federal jurisdiction—however they are pleaded, and whatever approach to federal jurisdiction applies.

2. In the decision below, the Third Circuit declined

to “follow” the approach adopted by these other circuits; in fact, the court expressly rejected the Fifth

Circuit’s decision in Sam L. Majors Jewelers. App.

25a.

15

Instead, relying on its prior precedent, the Third

Circuit held that there are only two exceptions to the

well-pleaded complaint rule: “either that the[ ] state

claims are completely preempted by federal law or

that some substantial federal issue must be resolved

[under Grable].” App. 22a–23a. The Third Circuit

stated that “complete preemption”—which allows the

removal of a state-law claim where the pre-emptive

force of federal law is so great that it converts a statelaw claim into a federal claim—is “rare” and limited

to “three” federal statutes identified by this Court.

App. 23a–24a. The Third Circuit rejected the view

that courts can “recast a state-law claim as a federal

one” when the defendant’s position “relies not on statutes but federal common law.” App. 23a. Thus, the

court dismissed petitioners’ argument that courts

should “ask if our constitutional system permits the

controversy to be resolved under state law,” concluding that this was a “garden-variety preemption” argument. App. 24a (cleaned up).

The Third Circuit’s approach skips the threshold

question that the Second, Fifth, and Eleventh Circuits

ask: whether respondents engaged in artful pleading

by framing their claims in state-law terms even

though those claims are inherently federal in nature.

Under the Third Circuit’s logic, even in a case where

federal law necessarily and exclusively governs the issues pleaded on the face of the complaint, a district

court is bound by the labels the plaintiff applies to the

claims in the complaint. That conclusion conflicts

with the decisions of the Second, Fifth, Eighth, and

Eleventh Circuits permitting the removal of putative

state-law claims necessarily and exclusively governed

by federal common law.

16

In addition to the Third Circuit, three other courts

of appeals examining similar climate-change suits

have held that Section 1331 does not permit the exercise of jurisdiction over claims necessarily governed by

federal law but pleaded under state law.

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

31 F.4th 178 (4th Cir. 2022), pet. for cert. filed, No. 22361, a similar climate-change case, the Fourth Circuit

held that, under the well-pleaded complaint rule, federal common law cannot provide a basis for jurisdiction under Section 1331, and removal is thus improper, where the plaintiff omits any reference to federal law in the complaint. See id. at 200.

In Board of County Commissioners of Boulder

County v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238

(10th Cir. 2022), pet. for cert. filed, No. 21-1550, yet

another climate-change case, the Tenth Circuit likewise rejected the premise that federal common law

provides a basis for removal of claims artfully pleaded

under state law. See id. at 1261. The court concluded

that the “artful pleading” doctrine does not exist outside of the context of complete preemption. Id. at

1256. The court held that, because the defendants did

not argue that a “statute” governed the claims, the

artful-pleading doctrine was inapplicable. See id. at

1262.

Finally, in City of Oakland v. BP PLC, 969 F.3d

895 (9th Cir. 2020), cert. denied, 141 S. Ct. 2776

(2021), the Ninth Circuit reached the same conclusion, noting that its circuit precedent recognized only

two “exceptions to the well-pleaded-complaint rule”:

complete preemption and Grable removal. Id. at 904–

06. Like the Tenth Circuit, it held that the plaintiffs’

17

claims “fail[ ] to raise a substantial federal question”

because “the claim neither requires an interpretation

of a federal statute, nor challenges a federal statute’s

constitutionality,” nor “necessarily raise[s]” a “legal

issue” “that, if decided, will be controlling in numerous other cases.” Ibid. (internal quotation marks and

citation omitted). The Ninth Circuit further concluded that the complete-preemption doctrine did not

apply because complete preemption can exist only by

virtue of “a federal statute,” and “the Clean Air Act

[does not] meet either of the two requirements for

complete preemption.” Id. at 905, 907–08.

*

*

*

Thus, the decision below deepens a widespread

conflict of federal law among the courts of appeals.

Four circuits have recognized federal jurisdiction over

claims necessarily and exclusively governed by federal

law but labeled as arising under state law, while four

other circuits, including the Third Circuit below, have

reached the opposite conclusion. That conflict is developed and entrenched, and the Court’s intervention

is necessary to resolve it.

B. These Cases Also Implicate A Conflict

Among The Courts Of Appeals Over

Whether Federal Law Necessarily And

Exclusively Governs Claims Based On

Transboundary Emissions.

The question presented in this petition also necessarily encompasses a threshold issue that has divided

the circuits: whether claims seeking relief for harms

allegedly caused by transboundary emissions are necessarily governed by federal law. The Second Circuit

has explained, based on this Court’s precedent, that

18

claims centered on the effect of transboundary greenhouse gas emissions on the global climate “demand

the existence of federal common law” because those

emissions span state and even national boundaries,

and “a federal rule of decision is necessary to protect

uniquely federal interests.” City of New York v. Chevron Corp., 993 F.3d 81, 90 (2d Cir. 2021). Three other

courts of appeals, however, have rejected that conclusion. Granting certiorari in these cases would thus

enable the Court to resolve that conflict as well.

1. In City of New York, the City alleged that the

defendant energy companies (including some petitioners here) were liable under state law for injuries

caused by the effects of interstate greenhouse gas

emissions on global climate change. 993 F.3d at 88.

The Second Circuit described the question before it as

“whether municipalities may utilize state tort law to

hold multinational oil companies liable for the damages caused by global greenhouse gas emissions.” Id.

at 85. The court unanimously held that “the answer

is ‘no’”; New York City’s “sprawling” claims, which—

like respondents’—sought “damages for the cumulative impact of conduct occurring simultaneously

across just about every jurisdiction on the planet,”

were “simply beyond the limits of state law” and thus

necessarily were “federal claims” that “must be

brought under federal common law.” Id. at 85, 92, 95.

In reaching this conclusion, the Second Circuit emphasized that, “[f]or over a century, a mostly unbroken string of [this Court’s] cases has applied federal

law to disputes involving interstate air or water pollution.” City of New York, 993 F.3d at 91. Such “quarrels often implicate two federal interests that are incompatible with the application of state law,” namely,

19

the “overriding need for a uniform rule of decision” on

matters influencing national energy and environmental policy, and “basic interests of federalism.” Id. at

91–92 (internal quotation marks and alteration omitted) (quoting Milwaukee I, 406 U.S. at 105 n.6).

The court explained that application of state law to

the City’s claims would “risk upsetting the careful balance that has been struck between the prevention of

global warming, a project that necessarily requires

national standards and global participation, on the

one hand, and energy production, economic growth,

foreign policy, and national security, on the other.”

City of New York, 993 F.3d at 93.

The Second Circuit rejected the plaintiff ’s argument that the Clean Air Act’s displacement of any

remedy under federal common law could “give birth to

new state-law claims.” City of New York, 993 F.3d at

98. Although the Clean Air Act displaces any remedy

under federal common law, it does not displace the entire source of law altogether. See id. at 95 & n.7; accord United States v. Swiss Am. Bank, Ltd., 191 F.3d

30, 43 (1st Cir. 1999) (explaining that United States v.

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

established a two-step analysis that distinguishes between the question whether “the source of the controlling law [should] be federal or state” and the separate

question whether that federal law provides for a remedy). The court explained that the City’s contrary position was “difficult to square with the fact that federal common law governed this issue in the first place”

because “where ‘federal common law exists, . . . state

law cannot be used.’” City of New York, 993 F.3d at

98 (quoting City of Milwaukee v. Illinois, 451 U.S. 304,

20

313 n.7 (1981) (“Milwaukee II”)). In the Second Circuit’s view, “state law does not suddenly become presumptively competent to address issues that demand

a unified federal standard simply because Congress

saw fit to displace a federal court-made standard with

a legislative one.” Ibid. Such an outcome would be

“too strange to seriously contemplate.” Id. at 98–99.

2. Three other courts of appeals, considering identical climate-change suits, have squarely rejected the

Second Circuit’s approach in City of New York, creating a clear conflict among the circuits.

Whereas the Second Circuit held that the plaintiff ’s climate-change claims necessarily were “federal

claims” that “must be brought under federal common

law,” 993 F.3d at 92, 95, the Fourth Circuit expressly

declined to “follow City of New York,” reasoning that—

under the test for fashioning a new rule of federal

common law—the Second Circuit had “fail[ed] to explain a significant conflict between the state-law

claims before it and the federal interests at stake,”

Baltimore, 31 F.4th at 202–03. The First Circuit, too,

rejected the argument that federal law governs transboundary-emissions claims, stating that it did not see

“how any significant conflict exists between these federal interests and the state-law claims.” Rhode Island

v. Shell Oil Prods. Co., 35 F.4th 44, 54 (1st Cir. 2022)

(cleaned up). Those courts thus departed from both

City of New York and a long line of precedent in which

this Court has already recognized that federal law

alone necessarily governs interstate-pollution claims.

See City of New York, 993 F.3d at 91 (“For over a century, a mostly unbroken string of cases has applied

federal law to disputes involving interstate air or water pollution.” (citing cases)).

21

Additionally, the First, Fourth, and Tenth Circuits

have explicitly disagreed with the Second Circuit’s

holding that the Clean Air Act’s displacement of a federal common law remedy does not “give birth to new

state-law claims” in an area where “federal common

law governed th[e] issue in the first place.” City of

New York, 993 F.3d at 98. In Suncor, the Tenth Circuit held precisely the opposite, reasoning that federal

jurisdiction was not present because, after statutory

displacement by the Clean Air Act, “the federal common law of nuisance that formerly governed transboundary pollution suits no longer exists.” 25 F.4th at

1260. The Fourth Circuit similarly departed from the

Second Circuit’s holding, rejecting the view “that any

federal common law controls Baltimore’s state-law

claims” on the ground that “federal common law in

this area ceases to exist due to statutory displacement.” Baltimore, 31 F.4th at 204. And the First Circuit, too, held that it “cannot rule that any federal

common law controls Rhode Island’s claims” because

“Congress displaced the federal common law of interstate pollution.” Rhode Island, 35 F.4th at 55–56.

The First, Fourth, and Tenth Circuits have attempted to distinguish City of New York on the ground

that the Second Circuit did not need to apply the wellpleaded complaint rule because “the [City] initiated

the action in federal court.” Suncor, 25 F.4th at 1262;

see also Baltimore, 31 F.4th at 203; Rhode Island, 35

F.4th at 55. But those courts did not explain how this

difference in posture affects the answer to the distinct

question whether federal law necessarily governs the

claims at issue, a substantive question of federal law

that requires the same answer regardless of the court

in which a plaintiff chooses to file suit. The explicit

22

conflict over that core question of federal law is

squarely implicated in these cases because it is a necessary element of the jurisdictional analysis.

II. THE DECISION BELOW WAS WRONGLY DECIDED.

In addition to exacerbating two circuit conflicts,

the Third Circuit’s decision is incorrect. Respondents’

claims are necessarily and exclusively governed by

federal law, and accordingly, these cases are removable to federal court.

1. In our federal system, each State may make

law within its own borders, but no State may “impos[e] its regulatory policies on the entire Nation,”

BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 585 (1996),

or dictate our “relationships with other members of

the international community,” Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398, 425 (1964). The

Constitution’s allocation of sovereignty between the

States and the federal government, and among the

States themselves, precludes application of state law

in certain areas that are inherently interstate in nature. Allowing state law to govern such claims would

permit one State to “impose its own legislation on . . .

the others,” violating the “cardinal” principle that

“[e]ach state stands on the same level with all the

rest.” Kansas v. Colorado, 206 U.S. 46, 97 (1907).

For this reason, the Court has made clear that

claims seeking redress for out-of-state emissions must

be governed by federal law alone, and therefore can

arise only under federal law, not state law. The States

are “coequal sovereigns,” PPL Montana, LLC v. Montana, 565 U.S. 576, 591 (2012), and the Constitution

“implicitly forbids” them from applying their own laws

to resolve “disputes implicating their conflicting

23

rights,” Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485,

1498 (2019) (alteration and citations omitted). When

the States “by their union made the forcible abatement of outside nuisances impossible to each,” they

necessarily agreed that disputes of that sort would be

governed by federal law. Georgia v. Tenn. Copper Co.,

206 U.S. 230, 237 (1907). Thus, in cases involving “interstate and international disputes implicating the

conflicting rights of States or our relations with foreign nations,” “our federal system does not permit the

controversy to be resolved under state law” “because

the interstate or international nature of the controversy makes it inappropriate for state law to control.”

Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.

630, 641 (1981).

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

claims based on interstate and international emissions are necessarily governed exclusively by federal

law. “[T]he basic scheme of the Constitution . . . demands” that “federal common law” govern disputes involving “air and water in their ambient or interstate

aspects.” AEP, 564 U.S. at 421; see also Milwaukee I,

406 U.S. at 105 n.6 (“basic interests of federalism . . .

demand[ ]” this result). In disputes concerning interstate and international emissions, “[t]he rule of decision [must] be[ ] federal,” id. at 108 n.10, and “state

law cannot be used” at all, Milwaukee II, 451 U.S. at

313 n.7; see also Int’l Paper Co. v. Ouellette, 479 U.S.

481, 488 (1987) (interstate pollution “is a matter of

federal, not state, law”).

Applying these principles and precedents here, respondents’ claims are necessarily governed by and

“arise under” federal law because they seek damages

24

based on interstate—and international—greenhouse

gas emissions. Respondents seek damages for injuries

that they allege are caused by the cumulative impact

of emissions emanating from every State in the Nation and every country in the world, and the claims

are therefore necessarily governed by federal law.

That remains true whether the plaintiff claims

that the defendant emitted greenhouse gases directly

or instead claims that the defendant contributed to

greenhouse gas emissions by producing and promoting fossil-fuel products. Whatever the allegedly tortious conduct, the alleged injury is the result of greenhouse gas emissions and their effect on the global climate.

2. The Third Circuit nevertheless determined

that it was powerless to hear these cases merely because respondents labeled their inherently federal

claims as sounding in state common law. App. 20a.

The Third Circuit’s error was rooted in its flawed interpretation of the well-pleaded complaint rule.

As noted above, because respondents seek to impose liability for injuries allegedly resulting from interstate and international emissions, their claims are

inherently governed by and “arise under” federal law.

Such claims are, in turn, removable to federal court

under federal-question jurisdiction because a defendant can remove any claim that a plaintiff “could have”

originally filed in federal court. See Home Depot, 139

S. Ct. at 1748. Moreover, this Court has observed that

it is “well settled” that 28 U.S.C. § 1331’s “grant of jurisdiction will support claims founded upon federal

common law.” Nat’l Farmers Union Ins. Cos. v. Crow

Tribe of Indians, 471 U.S. 845, 850 (1985) (internal

25

quotation marks omitted). Accordingly, respondents’

claims here, based on the alleged harms to respondents arising from global climate change, are governed

by federal law, could have been filed in federal court

in the first instance, and are therefore removable to

federal court.

Under the well-pleaded complaint rule, an action

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 v. Discover Bank, 556

U.S. 49, 60 (2009) (internal quotations marks, citation, and alteration omitted). An “independent corollary” to the well-pleaded complaint rule, however, is

that “a plaintiff may not defeat removal by omitting to

plead necessary federal questions.” Franchise Tax

Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 22

(1983). Thus, “courts will not permit plaintiff to use

artful pleading to close off defendant’s right to a federal forum,” and sometimes the well-pleaded complaint rule requires a federal court to “determine

whether the real nature of the claim is federal, regardless of plaintiff ’s characterization.” Federated Dep’t

Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2 (1981) (internal quotation marks and citation omitted); see also

14C Wright & Miller, Federal Practice & Procedure

§ 3722.1 (4th ed.) (“[A] plaintiff cannot frustrate a defendant’s right to remove by pleading a case without

reference to any federal law when the plaintiff ’s claim

is necessarily federal” or by disguising an “inherently

federal cause of action.”).

The Third Circuit here, however, denied removal,

concluding that only a federal statute—and not federal common law or the structure of our Constitution—“can transform state-law claims into federal

26

ones,” based on its assumption that complete preemption by a statute is the only circumstance in which

courts may apply the artful-pleading doctrine. App.

23a. But this Court has never so held, nor would it

make sense to conclude that, although Congress can

completely preempt state law, the structure of the

Constitution itself is unable to transform state-law

claims into federal ones. As leading commentators

have observed, there is “[n]o plausible reason” why

“the appropriateness of and need for a federal forum

should turn on whether the claim arose under a federal statute or under federal common law.” Richard

H. Fallon, Jr., et al., Hart & Wechsler’s Federal Courts

and the Federal System 819 (7th ed. 2015).

The Third Circuit’s narrow theory of federal jurisdiction would result in absurd consequences that are

inconsistent with our federal system and common

sense. Illinois could sue the City of Milwaukee in

state court under Illinois state law for interstate water pollution, and Milwaukee would be denied a federal forum to address the interstate dispute. Contra

Milwaukee II, 451 U.S. 304. Connecticut could bring

suit in state court under Connecticut state law against

an out-of-state defendant seeking to abate interstate

air pollution, and the defendant could not remove to

federal court. Contra AEP, 564 U.S. 410. Or Georgia

could subject a Tennessee company to Georgia law to

enjoin it from discharging fumes across state lines.

Contra Tenn. Copper Co., 206 U.S. at 236. The holding of the court below is irreconcilable with this

Court’s rulings that these claims arise under federal

law alone and thus are properly heard in federal court.

3. The Third Circuit also erred in rejecting petitioners’ Grable argument. Federal jurisdiction exists

27

over respondents’ claims because they require resolution of substantial, disputed federal questions,

thereby independently justifying removal under Grable, 545 U.S. at 313–14.

As noted above, numerous courts have upheld removal over nominally state-law claims when “federal

common law alone governs” those claims because “the

plaintiff ’s right to relief necessarily depends on resolution of a substantial question of federal law.” Battle

v. Seibels Bruce Ins. Co., 288 F.3d 596, 607 (4th Cir.

2002); see also Newton, 245 F.3d at 1309 (similar).

Here, the Third Circuit rejected the argument

that the applicability of federal common law to respondents’ claims constitutes a substantial federal

question under Grable, deeming that argument

merely a “rehash[ed]” version of petitioners’ “commonlaw preemption argument.” App. 26a. In the court’s

view, the applicability of federal common law merely

gives rise to an “ordinary preemption . . . defense,” and

“[d]efenses are not the kinds of substantial federal

questions that support federal jurisdiction.” Ibid. The

court noted that, by contrast, in Grable and Gunn v.

Minton, 568 U.S. 251 (2013), federal jurisdiction was

present because “to prove some element of a state-law

claim, the plaintiff had to win on an issue of federal

law.” App. 26a.

But in characterizing petitioners’ Grable argument as a mere preemption defense, the Third Circuit

misapprehended the point. Petitioners’ central contention here is that respondents’ claims necessarily

sound in, and thus must proceed under, federal law,

not that petitioners have a mere “defense” under federal law. Respondents’ entire theory of harm stems

28

from “global warming and its attendant climate consequences,” Hoboken C.A. JA.124–25, allegedly

caused by the normal “use of [petitioners’] fossil fuels,”

Hoboken C.A. JA.158. Because such claims thus “deal

with air and water in their ambient or interstate aspects, there is a federal common law.” AEP, 564 U.S.

at 421. Accordingly, to make out an element of their

nominally state-law tort claims, respondents must

necessarily achieve favorable resolution of a question

of federal law.

That question is also “substantial” because,

among other reasons, these issues “directly implicate[ ] actions taken by the” federal government, Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 772

F.3d 158, 165 n.4 (3d Cir. 2014), to regulate the interstate and international phenomenon of global climate

change. These federal actions are disputed because

petitioners and respondents disagree over whether

federal law allows respondents to recover at all on

their claims. And the claims are properly adjudicated

in federal court because these “sprawling case[s] [are]

simply beyond the limits of state law.” City of New

York, 993 F.3d at 92.

The Third Circuit’s contrary conclusion here is incorrect and conflicts with established precedent of this

Court and numerous other circuits.

III. THESE CASES RAISE AN IMPORTANT QUESTION

THAT WARRANTS THE COURT’S REVIEW.

These cases present a straightforward vehicle for

the Court to resolve a persistent question concerning

the scope of federal jurisdiction. As this Court’s call

for the views of the Solicitor General in Suncor sug-

29

gests, this question is legally and practically important and merits the Court’s review. Furthermore,

petitioners’ vital role in maintaining a dependable

supply of oil and gas is a matter of national security,

and a rule of decision on international-emissions-related suits that would open the energy industry to a

patchwork of conflicting state laws and state lawsuits

would undermine this important mission.

1. The question presented in these cases concerns

core principles of our federal system—specifically, the

exclusive power of federal law over transboundary

pollution cases and the inability of state law to adjudicate disputes in areas of unique federal importance,

from interstate pollution to foreign affairs to tribal relations.

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

issues relating to removal. Tennessee v. Davis, 100

U.S. 257, 260 (1880); see also Direct Mktg. Ass’n v.

Brohl, 575 U.S. 1, 14 (2015) (“jurisdictional rules

should be clear” (internal quotation marks and brackets omitted)). “Clarity is to be desired in any statute,

but in matters of jurisdiction it is especially important. Otherwise, the courts and the parties must

expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has

the power to hear a case.” United States v. Sisson, 399

U.S. 267, 307 (1970). Indeed, conflicting and uncertain jurisdictional rules “produce appeals and reversals, encourage gamesmanship, and, again, diminish

the likelihood that results and settlements will reflect

a claim’s legal and factual merits.” Hertz Corp. v.

Friend, 559 U.S. 77, 94 (2010).

30

The Court should take this opportunity to clarify

the enduring role of federal law as the rule of decision

for claims based on interstate and international emissions, and confirm the common-sense conclusion that

claims necessarily and exclusively governed by federal

law are removable to federal court.

2. These cases are also important because of petitioners’ vital role in ensuring a steady supply of oil

and gas for domestic use and in support of the U.S.

military. The United States has recently faced record

high gas prices, and just late last year, the White

House called on energy companies to “invest in production right now” in order to “help[ ] . . . improve U.S.

energy security and bring down energy prices that

have been driven up” by the conflict in Ukraine. See

FACT SHEET: President Biden to Announce New Actions to Strengthen U.S. Energy Security, Encourage

Production, and Bring Down Costs, White House

Briefing

Room

(Oct.

18,

2022),

https://tinyurl.com/2p8z6mee. Against that backdrop, these

cases present a timely opportunity for the Court to

clarify a uniform removal right for energy companies

sued on interstate- and international-emissions-related grounds and to prevent a patchwork of lawsuits

in state courts across the country from undermining

this crucial work.

3. Finally, these cases present a suitable vehicle

for resolving the question presented. The question

was pressed below, fully briefed by the parties, and

passed on by the Third Circuit. Petitioners also raised

the relevant issues in their timely petition for rehearing en banc, which the Third Circuit denied. App.

111a.

31

CONCLUSION

The Court should hold this petition for a writ of

certiorari pending its disposition of Suncor, No. 211550. If the Court does not grant review in Suncor,

this petition should be granted.

Respectfully submitted.

Herbert J. Stern

Joel M. Silverstein

STERN, KILCULLEN

& RUFOLO, LLC

325 Columbia Turnpike,

Suite 110

Florham Park, NJ 07932

Neal S. Manne

Johnny W. Carter

Erica Harris

Steven Shepard

SUSMAN GODFREY LLP

1000 Louisiana, Suite 5100

Houston, TX 77002

David E. Wilks

WILKS LAW LLC

4250 Lancaster Pike,

Suite 200

Wilmington, DE 19805

Theodore J. Boutrous, Jr.

Counsel of Record

William E. Thomson

Joshua D. Dick

GIBSON, DUNN

& CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

Telephone: (213) 229-7000

Facsimile: (213) 229-7520

tboutrous@gibsondunn.com

Andrea E. Neuman

GIBSON, DUNN

& CRUTCHER LLP

200 Park Avenue

New York, NY 10166

Thomas G. Hungar

Lochlan F. Shelfer

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut Avenue,

N.W.

Washington, DC 20036

Attorneys for Petitioners

CHEVRON CORP. and

CHEVRON U.S.A., INC.

32

Anthony J. Zarillo, Jr.

Jeffrey M. Beyer

RIKER DANZIG LLP

One Speedwell Avenue

Morristown, NJ 07962

Kevin J. Mangan

WOMBLE BOND DICKINSON (US) LLP

1313 North Market Street,

Suite 1200

Wilmington, DE 19801

Kathryn M. Barber

MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

Attorneys for Petitioner

AMERICAN PETROLEUM

INSTITUTE

Robert W. Whetzel

Alexandra M. Ewing

RICHARDS LAYTON & FINGER, P.A.

One Rodney Square

902 North King Street

Wilmington, DE 19801

Attorneys for Petitioner

APACHE CORPORATION

Nancy G. Milburn

Diana E. Reiter

ARNOLD & PORTER KAYE

SCHOLER LLP

250 West 55th Street

New York, NY 10019

Jonathan W. Hughes

ARNOLD & PORTER KAYE

SCHOLER LLP

3 Embarcadero Center,

10th Floor

San Francisco, CA 94111

Matthew T. Heartney

John D. Lombardo

ARNOLD & PORTER KAYE

SCHOLER LLP

777 South Figueroa Street,

44th Floor

Los Angeles, CA 90017

Paul J. Fishman

ARNOLD & PORTER KAYE

SCHOLER LLP

One Gateway Center,

Suite 1025

Newark, NJ 07102

Attorneys for Petitioners B.P.

AMERICA INC. and BP

P.L.C.

33

Nathan P. Eimer

Lisa S. Meyer

EIMER STAHL LLP

224 South Michigan Avenue,

Suite 1100

Chicago, IL 60604

Steven M. Bauer

Margaret A. Tough

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 94111

Robert E. Dunn

EIMER STAHL LLP

99 S. Almaden Blvd., Suite

642

San Jose, CA 95113

Jameson R. Jones

Daniel R. Brody

BARTLIT BECK LLP

1801 Wewatta Street, Suite

1200

Denver, CO 80202

Attorneys for Petitioner

CITGO PETROLEUM

CORPORATION

Noel J. Francisco

David M. Morrell

J. Benjamin Aguiñaga

JONES DAY

51 Louisiana Avenue, N.W.

Washington, DC 20001

David C. Kiernan

JONES DAY

555 California Street,

26th Floor

San Francisco, CA 94104

Attorneys for Petitioner CNX

RESOURCES CORP.

Daniel J. Brown

Alexandra M. Joyce

MCCARTER & ENGLISH

LLP

Renaissance Centre

405 N. King St., 8th Floor

Wilmington, DE 19801

Jeffrey S. Chiesa

Dennis M. Toft

Michael K. Plumb

CHIESA SHAHINIAN & GIANTOMASI PC

One Boland Drive

West Orange, NJ 07052

Attorneys for Petitioners

CONOCOPHILLIPS and

CONOCOPHILLIPS COMPANY

34

Tracy A. Roman

CROWELL & MORING LLP

1001 Pennsylvania Avenue,

N.W.

Washington, DC 20004

Brian D. Schmalzbach

Joy C. Fuhr

MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

Attorneys for Petitioner

Honor R. Costello

CROWELL & MORING LLP DEVON ENERGY CORPORA590 Madison Avenue, 20th Fl. TION

New York, NY 10022

Attorneys for Petitioner

CONSOL ENERGY INC.

Michael A. Barlow

ABRAMS & BAYLISS LLP

20 Montchanin Road,

Suite 200

Wilmington, DE 19807

Robert P. Reznick

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street NW

Washington, DC 20005

Joseph J. Bellew

GORDON REES SCULLY

MANSUKHANI, LLP

824 N. Market Street,

Suite 220

Wilmington, DE 19801

J. Scott Janoe

BAKER BOTTS L.L.P.

910 Louisiana Street, Suite

3200

Houston, Texas 77002

Megan Berge

BAKER BOTTS L.L.P.

700 K Street, N.W.

Attorneys for Petitioner MAR- Washington, D.C. 20001

ATHON OIL CORPORATION

Attorneys for Petitioner HESS

CORPORATION

35

Kannon K. Shanmugam

William T. Marks

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

LLP

2001 K Street, N.W.

Washington, DC 20006

Theodore V. Wells, Jr.

Daniel J. Toal

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

LLP

1285 Avenue of the Americas

New York, NY 10019

Kevin H. Marino

John D. Tortorella

MARINO, TORTORELLA &

BOYLE, P.C.

437 Southern Boulevard

Chatham, NJ 07928

Attorneys for Petitioners

EXXON MOBIL CORPORATION, EXXONMOBIL OIL

CORPORATION, and

XTO ENERGY INC.

Shannon S. Broome

Ann Marie Mortimer

HUNTON ANDREWS

KURTH LLP

50 California Street

San Francisco, CA 94111

Shawn Patrick Regan

HUNTON ANDREWS

KURTH LLP

200 Park Avenue

New York, NY 10166

Antoinette D. Hubbard

Stephanie A. Fox

MARON MARVEL BRADLEY

ANDERSON & TARDY LLC

1201 N. Market Street,

Suite 900

Wilmington, DE 19801

Attorneys for Petitioners MARATHON PETROLEUM CORPORATION, MARATHON

PETROLEUM COMPANY LP,

and SPEEDWAY LLC

36

Joseph J. Bellew

GORDON REES SCULLY

MANSUKHANI, LLP

824 N. Market Street, Suite

220

Wilmington, DE 19801

Jeffrey L. Moyer

RICHARDS, LAYTON & FINGER, P.A.

One Rodney Square

920 North King Street

Wilmington, DE 19801

J. Scott Janoe

BAKER BOTTS L.L.P.

910 Louisiana Street, Suite

3200

Houston, Texas 77002

Kevin Orsini

Vanessa A. Lavely

CRAVATH, SWAINE &

MOORE LLP

825 Eighth Avenue

New York, NY 10019

Megan Berge

BAKER BOTTS L.L.P.

700 K Street, N.W.

Washington, D.C. 20001

Attorneys for Petitioner Murphy Oil Corporation

Tristan L. Duncan

Daniel B. Rogers

SHOOK, HARDY & BACON

L.L.P.

2555 Grand Blvd.

Kansas City, MO 64108

Attorneys for Petitioner OCCIDENTAL PETROLEUM CORPORATION

Ovintiv Inc.

Mackenzie M. Wrobel

DUANE MORRIS LLP

1201 N. Market Street, Suite

501

Wilmington, DE 19801

Michael F. Healy

SHOOK HARDY & BACON

LLP

Attorneys for Petitioner MUR- 555 Mission Street, Suite 2300

PHY USA INC.

San Francisco, CA 94105

Michael L. Fox

DUANE MORRIS LLP

Spear Tower

One Market Plaza, Suite 2200

San Francisco, CA 94105

Attorneys for Petitioner OVINTIV INC.

37

Steven M. Bauer

Margaret A. Tough

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 94111

Anthony P. Callaghan, Esq.

Thomas R. Valen, Esq.

Sylvia-Rebecca Gutiérrez,

Esq.

GIBBONS P.C.

One Gateway Center

Newark, NJ 07102

Daniel J. Brown

Alexandra M. Joyce

MCCARTER & ENGLISH

LLP

Renaissance Centre

405 N. King St., 8th Floor

Wilmington, DE 19801

Attorneys for Petitioners

PHILLIPS 66 and PHILLIPS

66 COMPANY

David C. Frederick

Grace W. Knofczynski

Daniel S. Severson

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, DC 20036

Steven L. Caponi

K&L GATES LLP

600 N. King Street, Suite 901

Wilmington, DE 19801

Loly G. Tor

K&L GATES LLP

One Newark Center, 10th Fl.

Newark, NJ 07102

Attorneys for Petitioners

SHELL PLC (f/k/a ROYAL

DUTCH SHELL PLC) and

SHELL USA, INC. (f/k/a

SHELL OIL COMPANY)

Robert W. Whetzel

Blake Rohrbacher

Alexandra Ewing

RICHARDS, LAYTON & FINGER, P.A.

One Rodney Square

920 N. King Street

Wilmington, DE 19801

Attorneys for Petitioners TOTALENERGIES MARKETING USA, INC. and TOTALENERGIES SE (f/k/a

TOTAL S.A.)

February 27, 2023