Petition for Writ of Certiorari — American Petroleum Institute, et al., Petitioners v. Minnesota
Supreme Court briefAug 18, 2023
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No.
In the Supreme Court of the United States
AMERICAN PETROLEUM INSTITUTE, ET AL.,
PETITIONERS
v.
STATE OF MINNESOTA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
WILLIAM A. BURCK
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
1300 I Street, N.W.,
Suite 900
Washington, DC 20005
BRIAN D. SCHMALZBACH
MCGUIREWOODS LLP
Gateway Plaza
800 East Canal Street
Richmond, VA 23219
KANNON K. SHANMUGAM
Counsel of Record
WILLIAM T. MARKS
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street, N.W.
Washington, DC 20006
(202) 223-7300
kshanmugam@paulweiss.com
THEODORE V. WELLS, JR.
DANIEL J. TOAL
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
(additional counsel on signature page)
QUESTION PRESENTED
Whether a federal district court has removal jurisdiction under 28 U.S.C. 1331 and 1441 over putative statelaw claims seeking redress for injuries allegedly caused
by the effect of interstate greenhouse-gas emissions on
the global climate.
(I)
PARTIES TO THE PROCEEDING
AND CORPORATE DISCLOSURE STATEMENT
Petitioners are American Petroleum Institute; Exxon
Mobil Corporation; ExxonMobil Oil Corporation; Koch
Industries; Flint Hills Resources LP; and Flint Hills Resources Pine Bend LLC.
Petitioner American Petroleum Institute has no parent corporation, and no publicly held company owns 10%
or more of its stock.
Petitioner Exxon Mobil Corporation has no parent
corporation, and no publicly held company owns 10% or
more of its stock.
Petitioner ExxonMobil Oil Corporation is a wholly
owned indirect subsidiary of Exxon Mobil Corporation.
Petitioner Koch Industries has no parent corporation,
and no publicly held company owns 10% or more of its
stock.
Petitioner Flint Hills Resources LP is a wholly owned
subsidiary of Koch Industries.
Petitioner Flint Hills Resources Pine Bend LLC is a
wholly owned indirect subsidiary of Koch Industries.
Respondent is the State of Minnesota.
(II)
RELATED PROCEEDINGS
United States District Court (D. Minn.):
Minnesota v. American Petroleum Institute, et al.,
Civ. No. 20-1636 (Mar. 31, 2021) (remand order)
United States Court of Appeals (8th Cir.):
Minnesota v. American Petroleum Institute, et al.,
No. 21-1752 (Mar. 23, 2023)
American Petroleum Institute, et al. v. Minnesota,
No. 21-8005 (Mar. 23, 2023)
(III)
TABLE OF CONTENTS
Page
Opinions below ................................................................................1
Jurisdiction ......................................................................................2
Statutory provisions involved .......................................................2
Statement .........................................................................................2
A. Background ........................................................................ 5
B. Facts and procedural history ........................................... 7
Reasons for granting the petition...............................................11
A. The decision below implicates two conflicts
among the courts of appeals .......................................... 12
1. The courts of appeals are divided over
the removal of claims governed by
federal common law but labeled as
arising under state law ............................................. 12
2. The courts of appeals are divided over
whether federal law necessarily and
exclusively governs climate-change claims .......... 17
3. The federal government has taken conflicting
positions on the question presented ....................... 21
B. The decision below is incorrect ...................................... 24
C. The question presented is important and
warrants the Court’s review in this case ...................... 31
Conclusion ......................................................................................34
Appendix A ....................................................................................1a
Appendix B ..................................................................................28a
(V)
VI
TABLE OF AUTHORITIES
Page
Cases:
American Electric Power Co. v. Connecticut,
564 U.S. 410 (2011) ........................................................ 7, 25
Board of County Commissioners of Boulder
County v. Suncor Energy (U.S.A.) Inc.,
25 F.4th 1238 (10th Cir. 2022),
cert. denied, 143 S. Ct. 1795 (2023) ......... 16, 17, 21-23, 30
Caterpillar Inc. v. Williams,
482 U.S. 386 (1987) ...................................................... 27, 28
City of Hoboken v. Chevron Corp.,
45 F.4th 699 (3d Cir. 2022),
cert. denied, 143 S. Ct. 2483 (2023) ................................. 17
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) ...................................................... 19, 30
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021) .................... 7, 17-21, 25, 31, 32
City of Oakland v. BP p.l.c.,
969 F.3d 895 (9th Cir. 2020),
cert. denied, 141 S. Ct. 2776 (2021) ..................... 15, 16, 22
County of San Mateo v. Chevron Corp.,
32 F.4th 733 (9th Cir. 2022) ............................................. 16
Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938) ................................................................ 6
Federated Department Stores, Inc. v. Moitie,
452 U.S. 394 (1981) .............................................................. 6
Franchise Tax Board v. Construction Laborers
Vacation Trust, 463 U.S. 1 (1983) .............................. 6, 28
Grable & Sons Metal Products, Inc.
v. Darue Engineering & Manufacturing,
545 U.S. 308 (2005) .................................................... 8, 9, 29
Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743 (2019) ......................................................... 5
Illinois v. City of Milwaukee,
406 U.S. 91 (1972) .............................................. 7, 18, 25, 27
VII
Page
Cases—continued:
International Paper Co. v. Ouellette,
479 U.S. 481 (1987) ............................................................ 25
Mayor & City Council of Baltimore v. BP p.l.c.,
31 F.4th 178 (4th Cir. 2022),
cert. denied, 143 S. Ct. 1795 (2023) .........16, 19, 20, 29, 30
National Farmers Union Insurance Cos.
v. Crow Tribe of Indians, 471 U.S. 845 (1985) .......... 6, 27
Newton v. Capital Assurance Co.,
245 F.3d 1306 (11th Cir. 2001) ......................................... 13
Oneida Indian Nation v. County of Oneida,
414 U.S. 661 (1974) ............................................................ 30
Republic of Philippines v. Marcos,
806 F.2d 344 (2d Cir. 1986) .............................................. 14
Rhode Island v. Shell Oil Products Co.,
35 F.4th 44 (1st Cir. 2022),
cert. denied, 143 S. Ct. 1796 (2023) ..................... 20, 29, 30
Sam L. Majors Jewelers v. ABX, Inc.,
117 F.3d 922 (5th Cir. 1997) ................................. 13, 15, 17
Tennessee v. Davis, 100 U.S. 257 (1879) ............................. 32
Texas Industries, Inc. v. Radcliff Materials, Inc.,
451 U.S. 630 (1981) .................................................. 7, 24, 30
Torres v. Southern Peru Copper Corp.,
113 F.3d 540 (5th Cir. 1997) ............................................. 14
United States v. Standard Oil Co.,
332 U.S. 301 (1947) .................................................... 6, 7, 30
Vaden v. Discover Bank, 556 U.S. 49 (2009) ........................ 6
Constitution and statutes:
U.S. Const., Art. III:
§ 2 .......................................................................................... 5
§ 2, cl. 1 ................................................................................. 6
Clean Air Act, 42 U.S.C. 7401-7671q ....................... 19-23, 30
28 U.S.C. 1254(1) ...................................................................... 2
28 U.S.C. 1331 ............................ 2, 4-6, 8, 11-13, 15, 23, 27, 31
28 U.S.C. 1441 ...................................................4, 11, 12, 15, 23
28 U.S.C. 1441(a) ................................................ 2, 5, 13, 27, 31
VIII
Page
Miscellaneous:
Richard H. Fallon, Jr., et al.,
Hart & Wechsler’s Federal Courts
and the Federal System (7th ed. 2015) .......................... 29
Charles Alan Wright et al., Federal Practice
and Procedure (4th ed. 2018) .......................................... 28
In the Supreme Court of the United States
No.
AMERICAN PETROLEUM INSTITUTE, ET AL.,
PETITIONERS
v.
STATE OF MINNESOTA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
American Petroleum Institute; Exxon Mobil Corporation; ExxonMobil Oil Corporation; Koch Industries; Flint
Hills Resources LP; and Flint Hills Resources Pine Bend
LLC respectfully petition for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the Eighth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a27a) is reported at 63 F.4th 703. The opinion of the district
court (App., infra, 28a-61a) is unreported.
(1)
2
JURISDICTION
The judgment of the court of appeals was entered on
March 23, 2023. On June 13, 2023, Justice Kavanaugh extended the time within which to file a petition for a writ of
certiorari until August 20, 2023. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Section 1331 of Title 28 of the United States Code provides:
The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States.
Section 1441(a) of Title 28 of the United States Code
provides:
Except as otherwise expressly provided by Act of Congress, any 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.
STATEMENT
This case presents an important and recurring question of federal jurisdiction that implicates two conflicts
among the courts of appeals. Under this Court’s precedents, federal common law necessarily and exclusively
governs claims seeking redress for injuries allegedly
caused by interstate emissions. And federal courts have
subject-matter jurisdiction over claims that arise under
federal common law under 28 U.S.C. 1331, rendering such
claims removable from state court to federal court under
28 U.S.C. 1441(a). The question presented is whether a
3
district court has removal jurisdiction over putative statelaw claims seeking redress for injuries allegedly caused
by the effect of interstate greenhouse-gas emissions on
the global climate.
Petitioners include energy companies and their
affiliates that produce or sell fossil fuels and an industry
organization; respondent is the State of Minnesota. Like
a number of other state and local governments in similar
cases across the country, respondent filed this action
against petitioners in local state court, asserting claims
purportedly arising under state law to recover for harms
that respondent alleges it has sustained and will sustain
from petitioners’ operations because of global climate
change.
Petitioners removed this case to federal district court,
asserting federal subject-matter jurisdiction on multiple
grounds. Among other grounds, petitioners contended
that respondent’s claims necessarily and exclusively arise
under federal common law. The district court “reluctan[tly]” remanded the case to state court, App., infra,
57a, and petitioners appealed.
The court of appeals affirmed. As is relevant here, the
court held that removal on the basis of federal common
law was impermissible because respondent’s complaint
did not expressly invoke federal common law as the basis
for any of its claims. The court concluded that the wellpleaded complaint rule allows a plaintiff to avoid federal
jurisdiction by affixing state-law labels to claims necessarily and exclusively governed by federal common law.
Judge Stras concurred. In his view, respondent’s complaint was an “obvious” example of “artful pleading,” because respondent “purport[ed] to bring state-law consumer protection claims against a group of energy companies” but was in fact “seek[ing] a global remedy for [the]
global issue” of climate change. App., infra, 20a, 21a.
4
“The problem, of course, is that [respondent’s] attempt to
set national energy policy through its own consumer-protection laws would effectively override the policy choices
made by the federal government and other states.” Id. at
24a (internal quotation marks, citation, and alteration
omitted). Judge Stras opined that, “for a uniquely federal
interest like interstate pollution,” perhaps removal
“should” be allowed. Id. at 25a (internal quotation marks,
citation, and alteration omitted). Judge Stras ultimately
concluded, however, that “only Congress or the Supreme
Court gets to make that call.” Id. at 26a.
The court of appeals’ decision was incorrect, and it implicates two circuit conflicts on important and recurring
issues of federal law. The decision below deepens the existing conflict on the question whether the well-pleaded
complaint rule precludes removal jurisdiction under 28
U.S.C. 1331 and 1441 over claims necessarily and exclusively governed by federal common law but labeled as
arising under state law. The decision also implicates the
related question of whether federal law necessarily and
exclusively governs claims seeking redress for the alleged
effect of interstate greenhouse-gas emissions on the
global climate.
Although the Court recently declined review of those
jurisdictional issues in related climate-change cases, the
need for the Court’s intervention has only become more
pressing. Dozens of state and local governments have
filed similar claims in state courts across the country. And
as Judge Stras observed, the plaintiffs’ “end game” in
these lawsuits is “clear”: “[to] change the companies’ behavior on a global scale” in order to affect the nationalsecurity, economic, and energy policy of the United
States. App., infra, 24a. Absent review, similar cases will
continue to proliferate, and similar claims could be
brought against members of any number of industries
5
that plaintiffs believe have contributed to climate change.
Cases presenting the same jurisdictional issues are also
currently pending in two other courts of appeals. Because
this case is an ideal vehicle for resolving multiple conflicts
on important and recurring issues of federal jurisdiction,
the petition for a writ of certiorari should be granted.
A. Background
As the Court has long explained, “federal courts are
courts of limited jurisdiction.” Home Depot U.S.A., Inc.
v. Jackson, 139 S. Ct. 1743, 1746 (2019) (citation and alteration omitted). Article III, Section 2, of the Constitution
sets forth the categories of cases “over which federal judicial authority may extend.” Ibid. (citation omitted).
And the jurisdiction of lower federal courts is “further
limited to those subjects encompassed within a statutory
grant of jurisdiction.” Ibid. (citation omitted). A federal
district court thus “may not exercise jurisdiction absent a
statutory basis” for doing so. Ibid. (citation omitted).
In addition to creating jurisdiction over certain actions
originally filed in federal court, Congress also authorized
the removal to federal court of certain cases initially filed
in state court. Of particular relevance here, the general
removal statute, 28 U.S.C. 1441(a), authorizes the removal
of “any civil action brought in a [s]tate court of which the
district courts of the United States have original jurisdiction.” A defendant may thus remove a case to federal
court if the plaintiff “could have filed its operative complaint in federal court” in the first instance. Home Depot,
139 S. Ct. at 1748.
One of the most familiar statutes conferring original
jurisdiction on the district courts is the federal-question
statute, 28 U.S.C. 1331. It provides that “[t]he district
courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
6
United States.” Although the Constitution similarly authorizes federal jurisdiction over all cases “arising under
this Constitution, the laws of the United States, and treaties made,” Art. III, § 2, cl. 1, this Court has interpreted
the jurisdictional grant in Section 1331 to stop short of
constitutional limits. Instead, under the well-pleaded
complaint rule, an action arises under federal law for purposes of Section 1331 “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)
(citation and alteration omitted).
An “actual or anticipated defense” under federal law
does not give rise to jurisdiction under Section 1331. Vaden, 556 U.S. at 60. At the same time, an “independent
corollary” to the well-pleaded complaint rule is that “a
plaintiff may not defeat removal by omitting to plead necessary federal questions.” Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 22 (1983).
The well-pleaded complaint rule thus sometimes requires
a federal court to “determine whether the real nature of
the claim is federal, regardless of [the] plaintiff ’s characterization.” Federated Department Stores, Inc. v. Moitie,
452 U.S. 394, 397 n.2 (1981) (citation omitted).
The grant of jurisdiction in Section 1331 covers not
only constitutional or statutory claims, but also those
“founded upon federal common law.” National Farmers
Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S.
845, 850 (1985). Despite this Court’s familiar pronouncement in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78
(1938), that “[t]here is no federal general common law,”
the “federal judicial power to deal with common law problems” remains “unimpaired for dealing independently,
wherever necessary or appropriate, with essentially federal matters, even though Congress has not acted affirmatively about the specific question.” United States v.
7
Standard Oil Co., 332 U.S. 301, 307 (1947). Of particular
relevance here, federal law necessarily supplies the rule
of decision for certain narrow categories of claims that implicate “uniquely federal interests,” including where “the
interstate or international nature of the controversy
makes it inappropriate for state law to control.” Texas
Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630,
640-641 (1981) (citation omitted).
One established category of claims governed by federal common law is claims seeking redress for injuries allegedly caused by interstate pollution. Indeed, “[f]or over
a century, a mostly unbroken string of cases has applied
federal law to disputes involving” such claims. City of
New York v. Chevron Corp., 993 F.3d 81, 91 (2d Cir. 2021)
(collecting cases); see, e.g., American Electric Power Co.
v. Connecticut, 564 U.S. 410, 420-423 (2011); Illinois v.
City of Milwaukee (Milwaukee I), 406 U.S. 91, 103 (1972).
As the Court has explained, federal common law must
govern such controversies because they “touch[] basic interests of federalism” and implicate the “overriding federal interest in the need for a uniform rule of decision.”
Milwaukee I, 406 U.S. at 105 n.6. The “basic scheme of
the Constitution” requires the application of a federal rule
of decision, because “borrowing the law of a particular
State would be inappropriate” to resolve such interstate
disputes. American Electric Power, 564 U.S. at 421, 422.
B. Facts And Procedural History
1. This case is one of dozens brought by state and local governments against various energy companies, alleging that the companies’ worldwide production, sale, and
promotion of fossil fuels led to the emission of greenhouse
gases and thereby contributed to global climate change.
Petitioners are five energy companies and affiliates that
8
produce or sell fossil fuels around the world and an industry association.
On June 24, 2020, respondent filed a complaint against
petitioners in Minnesota state court, claiming violations of
state consumer-protection statutes, common-law fraud,
and common-law strict and negligent failure to warn. The
complaint alleged that petitioners’ production, sale, and
promotion of fossil fuels have increased greenhouse-gas
emissions and contributed to climate change, purportedly
causing wide-ranging harm to Minnesota, its citizens, and
fossil-fuel consumers. The complaint seeks restitution,
disgorgement, civil penalties, and injunctive relief. App.,
infra, 2a-3a, 32a-33a.
Petitioners removed this action to the United States
District Court for the District of Minnesota on several
grounds. As is relevant here, petitioners asserted that the
district court had federal-question jurisdiction under 28
U.S.C. 1331 because federal common law necessarily governed respondent’s claims, in part because respondent
seeks redress for injuries allegedly caused by interstate
and international emissions. While respondent styled its
complaint as alleging only state-law claims, petitioners
contended that artful pleading could not obscure the fact
that the complaint is predicated on harms allegedly
caused by climate change. Petitioners additionally argued that the State’s claims necessarily raised disputed
federal issues and thus were removable under Grable &
Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005). App., infra, 33a.
The district court remanded the case to state court
based on a lack of subject-matter jurisdiction. App., infra,
28a-61a. With respect to federal common law as a basis
for removal, the district court concluded that the wellpleaded complaint rule precluded removal because the
complaint did not label the claims as arising under federal
9
law. The district court also rejected removal under Grable, holding that respondent’s claims did not necessarily
raise any federal issues. Id. at 36a-46a. The court nevertheless expressed “some reluctance in remanding such
significant litigation to state court,” noting that “[t]he
complex environmental impacts of climate change, and its
far-reaching consequences for health, economy, and social
wellbeing of all people cannot be understated.” Id. at 57a.
2. The court of appeals affirmed. App., infra, 1a-27a.
a. At the outset, the court of appeals acknowledged
that respondent’s claims sought redress for “wide-ranging” harms allegedly caused by “more fossil fuel being
sold, accelerating climate change.” App., infra, 2a. Applying the well-pleaded complaint rule, however, the court
determined that federal-question jurisdiction was not present because no “federal question [was] presented on the
face of [respondent’s] properly pleaded complaint.” Id. at
4a (citation omitted). Instead, respondent purported to
bring only state-law claims. Id. at 5a.
The court recognized that the well-pleaded complaint
rule is subject to certain “exceptions.” App., infra, 5a.
But it concluded that only two such exceptions exist: complete preemption and the substantial-federal-question
doctrine. Ibid. Complete preemption, the court explained, applies 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.” Ibid. (citation omitted). The substantial-federal-question doctrine,
the court noted, permits removal of state-law claims
where 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.” Id. at 8a (citation omitted).
10
The court concluded that neither exception applied to
respondent’s claims. With respect to complete preemption: the court reasoned that a “strong presumption
against complete preemption” applied because “[t]here is
no substitute federal cause of action for the state-law
claims [respondent] brings.” App., infra, 7a. The court
added that, because federal common law is “not statutory”
in nature, it cannot express the necessary “[c]ongressional intent * * * to completely displace any particular
state-law claim.” Ibid. In concluding that complete preemption did not apply, the court reasoned that the artfulpleading principle—which applies “when a plaintiff disguises federal claims as state ones”—does not constitute
a “separate exception to the well-pleaded complaint rule.”
Id. at 5a n.4. Instead, it treated the artful-pleading principle as coextensive with complete preemption. Ibid.
With respect to the substantial-federal-question doctrine: the court acknowledged petitioners’ argument that
respondent’s claims “necessarily raise issues governed by
federal common law.” App., infra, 9a. But it faulted petitioners for “fail[ing] to identify which specific elements of
[respondent’s] claims require the court” to “interpret and
apply federal common law.” Ibid.
b. Judge Stras wrote a separate concurring opinion.
App., infra, 20a-27a. “Artful pleading comes in many
forms,” he began, and “this is one of them.” Id. at 20a.
Judge Stras noted that, while respondent “purport[ed] to
bring state-law consumer-protection claims against a
group of energy companies,” the substance of respondent’s lawsuit “takes aim at the production and sale of fossil
fuels worldwide.” Ibid. Judge Stras found respondent’s
“end game” to be “clear”: “[to] change [petitioners’] behavior on a global scale.” Id. at 24a. Judge Stras concluded that granting such relief would “override the policy
choices made by the federal government and other
11
[S]tates” and is thus “beyond the limits of state law.” Ibid.
(citations and alterations omitted).
Judge Stras nevertheless agreed with the majority
that removal was impermissible under existing law. App.,
infra, 24a-27a. In reaching that conclusion, Judge Stras
expressed the view that, “[m]ost of the time, the wellpleaded complaint rule works well,” because “[t]he complaint usually does not say whether a federal defense is
available and, if so, whether anyone will raise it.” Id. at
25a. But “[n]one of those mysteries exist here,” Judge
Stras observed, because “[t]he complaint itself all but
dares [petitioners] to raise a federal-preemption defense,”
and “no one doubts that [petitioners] will or that it will be
the focal point of the litigation.” Ibid.
In Judge Stras’s view, “[t]here is no reason for the removal rules to operate in such a confounding way.” App.,
infra, 25a. Judge Stras reasoned that, “[p]erhaps for a
uniquely federal interest like interstate pollution,” removal of a putative state-law claim “should” be permissible. Ibid. He also expressed the view that the artfulpleading doctrine is not “limited to complete preemption”
and “is best understood as an umbrella term that applies
whenever the complaint obscures the suit’s federal nature.” Id. at 26a-27a n.14 (internal quotation marks omitted). Still, he ultimately concluded that “only Congress or
the Supreme Court gets to make th[e] call” whether cases
similar to this one are removable. Id. at 26a.
REASONS FOR GRANTING THE PETITION
This case presents the question whether a federal district court has jurisdiction under 28 U.S.C. 1331 and 1441
over putative state-law claims seeking redress for injuries
allegedly caused by the effect of interstate greenhousegas emissions on the global climate. The court of appeals’
12
decision on that question implicates two independent circuit conflicts. The court of appeals reached the incorrect
conclusion on the question presented, and this case is an
ideal vehicle in which to address it. Although the Court
recently declined to review the jurisdictional question at
issue in related climate-change cases, the Court’s review
remains urgently needed. Absent review, climate-change
cases will continue to proliferate in state courts, resulting
in the application of the laws of fifty states to climatechange-related disputes, in conflict with the national-security, economic, and energy policies of the United States.
The importance of the jurisdictional question raised by
this petition cannot be overstated. The petition should
therefore be granted.
A. The Decision Below Implicates Two Conflicts Among
The Courts Of Appeals
The decision below deepens a circuit conflict on the issue of whether the well-pleaded complaint rule precludes
removal jurisdiction under 28 U.S.C. 1331 and 1441 over
claims necessarily and exclusively governed by federal
common law but labeled as arising under state law. The
decision also implicates a conflict on the issue of whether
federal common law necessarily and exclusively governs
claims seeking redress for injuries allegedly caused by the
effect of interstate greenhouse-gas emissions on the
global climate.
1. The Courts Of Appeals Are Divided Over The Removal Of Claims Governed By Federal Common
Law But Labeled As Arising Under State Law
The court of appeals held that the well-pleaded complaint rule precludes federal jurisdiction under 28 U.S.C.
1331 and 1441 over claims necessarily and exclusively governed by federal common law but labeled as arising under
state law. See App., infra, 4a-10a. That holding deepens
13
an existing circuit conflict among the courts of appeals
and warrants the Court’s review.
a. In Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d
922 (1997), the Fifth Circuit upheld the removal of putative state-law claims on the ground that they were governed by federal common law. There, the plaintiff filed
claims in state court for breach of contract, negligence,
and violations of a state statute, seeking damages from an
airline that allegedly lost some of the plaintiff ’s goods.
See id. at 924. The defendant removed the case to federal
court.
In assessing whether removal was proper, the Fifth
Circuit recognized that jurisdiction under Section 1331
exists only “when a federal question is presented on the
face of a plaintiff ’s properly pleaded complaint.” 117 F.3d
at 924. The court further 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” in the
case: where “the complaint raises an express or implied
cause of action that exists under a federal statute”; where
the relevant “area of law is completely preempted by the
federal regulatory regime”; and where “the cause of action arises under federal common law principles.” Ibid.
The court concluded that removal was proper under the
third theory, because an action against a common air carrier for lost or damaged goods “arises under federal common law.” Id. at 929.
In addition to the decision in Sam L. Majors, several
courts of appeals have upheld the removal of claims governed by federal common law because those claims necessarily raised substantial questions of federal law. See
Newton v. Capital Assurance Co., 245 F.3d 1306, 1309
(11th Cir. 2001) (involving a federally subsidized contract
14
that courts interpret using principles of federal common
law); Torres v. Southern Peru Copper Corp., 113 F.3d 540,
542-543 (5th Cir. 1997) (raising substantial questions of
federal common law by implicating foreign policy concerns); Republic of Philippines v. Marcos, 806 F.2d 344,
352-354 (2d Cir. 1986) (similar).
b. In the decision below, the court of appeals held that
removal was impermissible even if federal common law
necessarily and exclusively governed respondent’s claims.
See App., infra, 6a-7a. In the court’s view, there are only
two limited exceptions to the well-pleaded complaint
rule—namely, complete preemption and the substantialfederal-question doctrine—and claims entirely governed
by federal common law do not fall within either exception.
See id. at 5a-10a.
With respect to complete preemption, the court concluded that federal common law cannot provide the evidence of congressional intent necessary to invoke the doctrine, because federal common law involves no action from
Congress. See App., infra, 7a. And with respect to the
substantial-federal-question doctrine, the court concluded
that federal common law did not provide a basis for removal unless the defendant can “identify which specific elements” of a state-law claim “require the court” to “interpret and apply federal common law.” Id. at 9a.
The court separately concluded that the artful-pleading doctrine, “which occurs when a plaintiff disguises federal claims as state ones,” is not a “standalone exception”
to the well-pleaded complaint rule. App., infra, 5a n.4.
Judge Stras, however, rejected the notion that the artfulpleading doctrine is “limited to complete preemption”; in
his view, the doctrine “is best understood as an umbrella
term that applies whenever the complaint obscures the
suit’s federal nature.” Id. at 26a-27a n.14 (internal quotation marks omitted). Judge Stras explained that “[a]rtful
15
pleading comes in many forms,” and this case—in which
respondent “purports to bring state-law” claims and in actuality “takes aim at the production and sale of fossil fuels
worldwide”—is “one of them.” Id. at 20a.
The court of appeals’ reasoning cannot be reconciled
with the Fifth Circuit’s decision in Sam L. Majors or the
cases permitting the removal of claims governed entirely
by federal common law under the substantial-federalquestion doctrine. Under the court of appeals’ logic, a district court is bound by the labels the plaintiff applies to
the claims in the complaint, even where federal common
law necessarily and exclusively governs the issues
pleaded on the face of the complaint. The court of appeals’
reasoning also leads to the bizarre result that a state-law
claim may be removable under the substantial-federalquestion doctrine when federal common law governs a
specific element of the claim, but not when it governs
every element of the claim. That result is inconsistent
with the courts of appeals that applied the substantial-federal-question doctrine to claims governed entirely by federal common law. See pp. 13-14, supra.
c. In addition to the court of appeals in the decision
below, four other courts of appeals have held—in the particular context of climate-change litigation—that Sections
1331 and 1441 do not permit the removal of claims necessarily governed by federal common law but labeled as
arising under state law.
i. In City of Oakland v. BP p.l.c., 969 F.3d 895 (2020),
cert. denied, 141 S. Ct. 2776 (2021), the Ninth Circuit declined to permit the removal of similar climate-change
claims on the basis of federal common law. It started from
the premise that, under the well-pleaded complaint rule,
“a civil action arises under federal law for purposes of
[Section] 1331 when a federal question appears on the face
16
of the complaint.” Id. at 903. The court saw only two “exceptions” to that rule: the substantial-federal-question
doctrine and complete preemption. See id. at 904-906.
The Ninth Circuit addressed removal on the basis of federal common law as part of the substantial-federal-question inquiry and concluded that no such federal question
was present because the plaintiffs’ claims, labeled as arising under state law, neither “require[d] an interpretation
of a federal statute nor challenge[d] a federal statute’s
constitutionality.” Ibid. (citations omitted); see County of
San Mateo v. Chevron Corp., 32 F.4th 733, 747-748 (9th
Cir. 2022) (following City of Oakland in similar climatechange cases).
ii. In Mayor & City Council of Baltimore v. BP p.l.c.,
31 F.4th 178 (2022), cert. denied, 143 S. Ct. 1795 (2023),
the Fourth Circuit, on remand from this Court, similarly
rejected the premise that federal common law provides a
basis for removal of claims artfully pleaded under state
law. Before considering whether federal common law
governed the climate-change claims at issue, the Fourth
Circuit explained that the complaint “never alleges an existing federal common law claim” and “only brings claims
originating under [state] law.” Id. at 200. The court concluded that “subject-matter jurisdiction via federal common law” does not exist where the complaint did not
“clearly seek recovery under federal law.” Ibid. (citation
omitted).
iii. In Board of County Commissioners of Boulder
County v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238
(2022), cert. denied, 143 S. Ct. 1795 (2023), the Tenth Circuit, on remand from this Court, rejected federal common
law as a basis for removal of claims artfully pleaded under
state law. The Tenth Circuit acknowledged the principle
that a plaintiff cannot defeat removal by omitting necessary federal questions from the complaint. See id. at 1261.
17
But the court concluded that the so-called “artful pleading” doctrine is coextensive with the doctrine of complete
preemption. See ibid. The court proceeded to hold that
federal common law cannot have complete preemptive effect. See id. at 1262.
iv. The Third Circuit reached the same conclusion in
City of Hoboken v. Chevron Corp., 45 F.4th 699 (2022),
cert. denied, 143 S. Ct. 2483 (2023). Like the Tenth Circuit, it held that a federal court can “recharacterize a state
law claim as a federal claim removable to federal court
* * * only when some federal statute completely
preempts state law.” Id. at 707 (internal quotation marks,
citations, and alterations omitted). The court further concluded that federal common law cannot provide a basis for
removal of claims artfully pleaded under state law, because federal common law provides only a “garden-variety preemption” defense in that circumstance. Id. at 708.
In so concluding, the Third Circuit expressly departed
from the Fifth Circuit’s decision in Sam L. Majors. See
ibid.
2. The Courts Of Appeals Are Divided Over Whether
Federal Law Necessarily And Exclusively Governs
Climate-Change Claims
Because the court of appeals resolved the question
presented under the well-pleaded complaint rule, it did
not proceed to decide the related question of whether federal law necessarily and exclusively governs claims seeking redress for the effect of interstate greenhouse-gas
emissions on the global climate. See App., infra, 7a n.5.
The decision below implicates that question, however,
which has divided the federal courts of appeals. Review is
warranted to resolve that conflict as well.
a. In City of New York v. Chevron Corp., 993 F.3d 81
(2d Cir. 2021), the municipal government of New York
18
City filed suit in federal court based on diversity jurisdiction, alleging that the defendant energy companies (including some of the petitioners here) were liable for injuries allegedly caused by the contribution of interstate
greenhouse-gas emissions to global climate change. The
plaintiff asserted claims for public nuisance, private nuisance, and trespass under state law. See id. at 88.
The question before the Second Circuit was “whether
municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by
global greenhouse gas emissions.” 993 F.3d at 85. The
Second Circuit unanimously held that “the answer is ‘no’ ”
and that claims seeking redress for global climate change
presented “the quintessential example of when federal
common law is most needed.” Id. at 85, 92.
Relying on this Court’s precedents, the Second Circuit
began its analysis by noting that, “[f]or over a century, a
mostly unbroken string of cases has applied federal law to
disputes involving interstate air or water pollution.” 993
F.3d at 91. The Second Circuit explained that “such quarrels often implicate two federal interests that are incompatible with the application of state law”: the “overriding
need for a uniform rule of decision” on matters influencing
national energy and environmental policy, and “basic interests of federalism.” Ibid. (internal quotation marks
and alterations omitted) (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6 (1972)).
In the Second Circuit’s view, claims seeking to hold
the defendants liable for injuries arising from “the cumulative impact of conduct occurring simultaneously across
just about every jurisdiction on the planet” are far too
“sprawling” for state law to govern. 993 F.3d at 92. 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
19
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.” Id. at 93.
The Second Circuit rejected the plaintiff ’s argument
that displacement by the Clean Air Act of any remedy under federal common law allows state law to “snap back
into action.” 993 F.3d at 98. “[That] position is difficult to
square with the fact that federal common law governed
this issue in the first place,” the court reasoned, because
“where ‘federal common law exists, it is because state law
cannot be used.’ ” Ibid. (quoting City of Milwaukee v. Illinois, 451 U.S. 304, 313 n.7 (1981)). In the court’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, the Second Circuit concluded, is “too
strange to seriously contemplate.” Id. at 98-99.
b. Three other courts of appeals have rejected the
Second Circuit’s approach in virtually identical climatechange suits.
i. In Baltimore, supra, the Fourth Circuit expressly
declined to “follow City of New York,” reasoning that the
Second Circuit’s decision “fails to explain a significant
conflict between the state-law claims before it and the federal interests at stake.” 31 F.4th at 203. In the Fourth
Circuit’s view, the defendants needed to make such a
showing and could not rely solely on this Court’s
longstanding precedent applying federal rules of decision
to common-law claims relating to interstate pollution. See
id. at 201-202. The Fourth Circuit further departed from
the Second Circuit by holding that federal common law
did not govern similar climate-change claims because the
20
Clean Air Act displaced any federal-common-law remedy.
See id. at 206-207.
The Fourth Circuit attempted to distinguish City of
New York on the ground that the Second Circuit did not
need to apply the well-pleaded complaint rule because
“New York City initially filed suit in federal court.” 31
F.4th at 203. But again, that distinction does not elide the
conflict: the Fourth Circuit saw “no reason to fashion any
federal common law for [d]efendants,” id. at 202, whereas
the Second Circuit held that similar climate-change
claims “must be brought under federal common law,” City
of New York, 993 F.3d at 92, 95.
ii. Using similar reasoning, the First Circuit held that
the district court lacked jurisdiction on the basis of federal
common law in Rhode Island v. Shell Oil Products Co., 35
F.4th 44 (2022), cert. denied, 143 S. Ct. 1796 (2023). Like
the Fourth Circuit, the First Circuit faulted the defendants for relying on this Court’s precedents rather than describing “any significant conflict” between the “federal interests” at issue and the plaintiff ’s “state-law claims.” Id.
at 54 (citation omitted). The First Circuit also concluded
that, even if such a conflict were present, removal on the
basis of federal common law was impermissible because
the displacement of federal common law by the Clean Air
Act meant that no “federal common law controls [the
plaintiff ’s] claims.” Id. at 55.
In reaching those conclusions, the First Circuit expressly declined to rely on the Second Circuit’s reasoning
and held that City of New York was “distinguishable” because the complaint there was filed “in federal court in the
first instance.” Rhode Island, 35 F.4th at 55 (citation and
emphasis omitted). But like the Fourth Circuit, the First
Circuit did not explain how the fact that the lawsuit was
21
first filed in federal court altered the answer to the distinct question whether federal common law governs the
claims.
iii. The Tenth Circuit in Boulder, supra, held that federal common law did not permit the removal of similar climate-change claims because, after statutory displacement by the Clean Air Act, the otherwise-applicable federal common law “no longer exists.” 25 F.4th at 1260 (emphasis omitted). Like the First and Fourth Circuits, the
Tenth Circuit attempted to distinguish City of New York
because it was first filed in federal court and not subject
to the well-pleaded complaint rule. See id. at 1262. But
again, that distinction does not avoid the conflict: the
Tenth Circuit held that the relevant federal common law
“no longer exists,” id. at 1260 (emphasis omitted),
whereas the Second Circuit held that similar climatechange claims “must be brought under federal common
law,” City of New York, 993 F.3d at 95.
3. The Federal Government Has Taken Conflicting
Positions On The Question Presented
The question presented has also divided two consecutive presidential administrations.
Two years ago, the federal government argued before
this Court that claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas
emissions are removable because they are inherently federal in nature. See U.S. Br. at 26-27, BP p.l.c. v. Mayor &
City Council of Baltimore, 141 S. Ct. 1532 (2021) (No. 191189); Oral Arg. Tr. at 31, BP, supra. It maintained that,
although the Clean Air Act displaced the federal common
law in this area, that “d[id] not mean the door was opened
for tort claims based on the common law of an affected
State targeting conduct in another State.” U.S. Br. at 27,
BP, supra. Instead, “[a]ny putative tort claims that seek
22
to apply the law of an affected State to conduct in another
State * * * continue to arise under federal, not state,
law for jurisdictional purposes, given their inherently federal nature.” Ibid. (internal quotation marks, citation, and
emphasis omitted). The government did not see the wellpleaded complaint rule as an obstacle to removal. See id.
at 28.
The government also insisted in the lower courts that
claims like respondent’s “must be governed by federal
common law.” U.S. En Banc Br. at 11, Oakland, supra
(No. 18-16663). Such claims, the government argued, are
“irreconcilable with the constitutional commitment of
such matters to the national government and the relative
rights and obligations of the national government and
States under the structure of the Constitution.” Id. at 12.
The government took the opposite position, however,
when this Court called for its views on the recent petition
for certiorari in Suncor Energy (U.S.A.) Inc. v. Board of
County Commissioners of Boulder County, 143 S. Ct.
1795 (2023). Citing a change in administration, the government suddenly took the position that the well-pleaded
complaint rule precludes removal of similar climatechange claims and that, in the wake of the Clean Air Act,
federal law no longer exclusively governs claims alleging
injury from interstate emissions. See U.S. Br. at 7-16 (No.
21-1550).
The current administration has now suggested that,
under the well-pleaded complaint rule, federal jurisdiction turns on a plaintiff ’s express invocation of federal law
in its complaint, either as creating the cause of action asserted or governing the issue. See U.S. Br. at 9-10, Suncor, supra. Confusingly, it simultaneously acknowledged
that a “federal court may uphold removal even though no
federal question appears on the face of the plaintiff ’s complaint if the court concludes that the plaintiff has artfully
23
pleaded claims by omitting to plead necessary federal
questions.” Id. at 11 (internal quotation marks and citation omitted). The government maintained that there was
no such defect with the complaint in Suncor because federal common law has been “displaced” by the Clean Air
Act and thus could not govern the plaintiffs’ claims. See
id. at 11-15. In its view, any arguments that the Clean Air
Act also displaced state-law claims should be asserted as
an ordinary preemption defense. See ibid.
Setting aside the motives behind such an about-face,
the fact that two consecutive presidential administrations
have taken such diverging positions on the question presented further confirms that the question involves significant, consequential issues that require resolution. As
Judge Stras urged in his concurring opinion below, there
are strong reasons to believe that claims such as respondent’s should proceed in federal court. See App., infra,
25a-26a. This Court should definitively resolve the issue.
*
*
*
*
*
In sum, the decision below implicates two circuit conflicts on issues of federal law that have also divided two
consecutive presidential administrations. As matters currently stand, the Fifth Circuit has held that 28 U.S.C. 1331
and 1441 provide a basis for jurisdiction over claims necessarily and exclusively governed by federal common law
but labeled as arising under state law. Five courts of appeals, including the Eighth Circuit in the decision below,
have reached the opposite conclusion. Separately, one
court of appeals has held that federal common law necessarily and exclusively governs claims seeking redress for
injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate; three other
courts of appeals have rejected that conclusion. Those
conflicts are developed and entrenched.
24
To be sure, the Court recently declined to resolve
those conflicts after calling for the views of the Solicitor
General. See pp. 22-23, supra. But the Court’s intervention remains urgently needed. The same question of jurisdiction is currently pending in two courts of appeals
that have not yet addressed the issue. See Connecticut v.
Exxon Mobil Corp., No. 21-1446 (2d Cir. argued Sept. 23,
2022); District of Columbia v. Exxon Mobil Corp., No. 227163 (D.C. Cir. argued May 8, 2023). And new climatechange lawsuits continue to be filed in state court. See
County of Multnomah v. Exxon Mobil Corp., No. 23CV25164 (Or. Cir. Ct. filed June 22, 2023) (seeking $51.55
billion in damages on behalf of a single county).
The dozens of climate-change cases filed by state and
local governments to date are intended “effectively [to]
override” the national-security, economic, and energy policy of the United States, by “chang[ing] [petitioners’] behavior on a global scale.” App., infra, 24a. That collateral
attack on federal climate-change policy through the
courts, rather than Congress, will not end with this case.
Absent clarity from this Court, the question of jurisdiction
over these lawsuits will only continue to arise.
B. The Decision Below Is Incorrect
The Eighth Circuit’s decision is incorrect. Respondent’s claims are necessarily and exclusively governed by
federal common law and thus removable to federal court.
1. Federal common law supplies the rule of decision
for certain narrow categories of claims that implicate
“uniquely federal interests,” including where “the interstate or international nature of the controversy makes it
inappropriate for state law to control.” Texas Industries,
Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-641
(1981) (citation omitted). For over a century, this Court
has applied uniform federal common-law rules of decision
25
to claims seeking redress for interstate pollution. See
City of New York, 993 F.3d at 91 (collecting cases). For
example, in Illinois v. City of Milwaukee (Milwaukee I),
406 U.S. 91 (1972), the Court reasoned that “[f]ederal
common law,” and not the “varying common law of the individual States,” is “necessary to be recognized as a basis
for dealing in uniform standard with the environmental
rights of a State against improper impairment by sources
outside its domain.” Id. at 108 n.9 (citation omitted). In
International Paper Co. v. Ouellette, 479 U.S. 481 (1987),
the Court unambiguously reaffirmed that “the regulation
of interstate water pollution is a matter of federal, not
state, law.” Id. at 488 (citation omitted); see id. at 492.
And in American Electric Power Co. v. Connecticut, 564
U.S. 410 (2011)—a case involving similar claims alleging
injury from the contribution of greenhouse-gas emissions
to global climate change—the Court reiterated that federal common law “undoubtedly” governs claims involving
“air and water in their ambient or interstate aspects.” Id.
at 421 (citation omitted).
As those precedents explain, the Constitution dictates
that federal law must govern controversies over interstate pollution, because those controversies “touch[] basic
interests of federalism” and implicate the “overriding federal interest in the need for a uniform rule of decision.”
Milwaukee I, 406 U.S. at 103 n.6. The Constitution prohibits States from “regulat[ing] the conduct of out-ofstate sources” of pollution. Ouellette, 479 U.S. at 495. Because “borrowing the law of a particular State would be
inappropriate” to resolve such interstate disputes, “the
basic scheme of the Constitution” requires the application
of a federal rule of decision. American Electric Power,
564 U.S. at 421, 422.
Applying the foregoing precedents here leads to a
straightforward result: respondent’s climate-change
26
claims necessarily arise under federal, not state, law.
Through those claims, respondent is seeking restitution
based on the interstate—and indeed international—emissions of greenhouse gases over many decades, allegedly
resulting in part from the use of fossil-fuel products produced or sold by petitioners and consumed throughout the
world. See App., infra, 2a, 21a, 32a-33a. Those claims fall
squarely within the long line of cases holding that federal
common law governs claims seeking redress for interstate
air and water pollution.
Judge Stras recognized as much in his concurring
opinion below. He explained that, while “[respondent] has
strong views about how to deal with the issue,” “[o]ther
[S]tates do too,” as “[t]hey do not believe that one or two
individual [S]tates like [respondent] should be able to dictate environmental policy for other sovereign States.”
App., infra, 21a (internal quotation marks omitted).
Judge Stras thus concluded that “[t]his is, in effect, an interstate dispute.” Ibid. Judge Stras further reasoned
that “[t]he rule of decision in these cases has always been
* * * the federal common law,” and “[s]tate law is no
substitute.” Id. at 22a. Where, as here, respondent’s lawsuit is not “limited to the effects of local emissions,” and
instead targets “the consumption of fossil fuels both in
and outside of Minnesota,” it must be governed by federal
common law. Id. at 23a-24a (internal quotation marks, citations, and emphasis omitted).
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
27
injury is the result of greenhouse-gas emissions and their
effect on the global climate.
2. Under Section 1331, federal district courts “have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” That
includes claims “founded upon federal common law as well
as those of a statutory origin.” National Farmers Union
Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845,
850 (1985) (citation omitted). As a result, if the “dispositive issues stated in the complaint require the application”
of a uniform rule of federal law, the action “arises under”
federal law for purposes of Section 1331, Milwaukee I, 406
U.S. at 103 (citation omitted), and the case is removable to
federal court, see 28 U.S.C. 1441(a). Because respondent’s claims are necessarily and exclusively governed by
federal common law, petitioner properly removed them to
federal court.
The court of appeals nevertheless held that the wellpleaded complaint rule prohibited removal on the basis of
federal common law. App., infra, 4a-10a. The wellpleaded complaint rule provides that federal-question jurisdiction exists only when “a federal question is presented on the face of the plaintiff ’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). According to the court of appeals, the well-pleaded
complaint rule prevented removal of respondent’s claims
because respondent did not expressly plead any claims
under federal common law. See App., infra, 4a-5a. The
court thus concluded that petitioners were invoking federal common law merely as the basis for an ordinary
preemption defense. See id. at 6a.
That reasoning misunderstands the well-pleaded complaint rule as well as petitioners’ arguments on federal
common law. As this Court has long explained, an “independent corollary” of the well-pleaded complaint rule is
28
that “a plaintiff may not defeat removal by omitting to
plead necessary federal questions” in the complaint.
Franchise Tax Board v. Construction Laborers Vacation
Trust, 463 U.S. 1, 22 (1983). Put another way, a plaintiff
cannot “block removal” by artfully pleading its claims in
an effort to “disguise [an] inherently federal cause of action.” 14C Charles Alan Wright et al., Federal Practice
and Procedure § 3722.1, at 131-132 (4th ed. 2018).
The artful-pleading principle allows the removal of respondent’s claims. Petitioners’ invocation of federal common law is not merely a defense to respondent’s claims
alleging injury from interstate and international air pollution. As just explained, respondent’s claims do not just
implicate federal-law issues; they inherently are federal
claims, arising under federal law. No state law exists in
this area for respondent to invoke. The artful-pleading
principle prohibits a plaintiff from avoiding federal jurisdiction over such claims by dressing them in state-law
garb.
The court of appeals rejected petitioners’ invocation of
the artful-pleading principle on the ground that it is not a
“standalone exception” to the well-pleaded complaint
rule. App., infra, 5a n.4. Instead, the court treated the
artful-pleading principle as synonymous with complete
preemption, such that even a constitutional requirement
that federal common law necessarily and exclusively govern a claim cannot permit removal in the face of a plaintiff ’s artful pleading. See ibid. But this Court has already
recognized that federal common law can function in the
same way as completely preemptive statutes in the context of “a state-law complaint that alleges a present right
to possession of Indian tribal lands.” Caterpillar, 482 U.S.
at 393 n.8. Accordingly, as Judge Stras explained, the artful-pleading principle is “best understood as an umbrella
29
term that applies whenever the complaint obscures the
suit’s federal nature.” App., infra, 26a-27a n.14.
Nor would it make sense that only Congress, and not
the structure of the Constitution, can transform a statelaw claim into a federal one. 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). Whether one views
a putative state-law claim governed by federal common
law as a disguised federal claim or as a state-law claim the
elements of which each raise substantial federal questions, see Grable & Sons Metal Products, Inc. v. Darue
Engineering & Manufacturing, 545 U.S. 308, 314 (2005),
such a claim is properly understood to arise under federal
law.
3. Although the court of appeals did not reach the
question of whether federal common law governs claims
seeking redress for injuries allegedly caused by climate
change, other courts of appeals have held that federal
common law does not govern such claims. See pp. 19-21,
supra. Those decisions suffer from two common errors.
First, some courts have required defendants to satisfy
the test for fashioning a new rule of common law by identifying “a significant conflict between the state-law claims
before it and the federal interests at stake.” Baltimore,
31 F.4th at 203; see Rhode Island, 35 F.4th at 54. But the
defendants in those cases never asked the courts of appeals to expand federal common law; instead, they relied
on a long line of precedent in which this Court has already
recognized that federal law alone necessarily governs interstate pollution.
30
Second, some courts have reasoned that, because the
Clean Air Act has displaced the remedy for federal-common-law claims involving interstate emissions, federal
common law “no longer exists” in this context, and state
law can fill the void. Boulder, 25 F.4th at 1260 (emphasis
omitted); see Rhode Island, 35 F.4th at 55; Baltimore, 31
F.4th at 206. But whether a party can obtain a remedy
under federal common law is a distinct question from
whether federal common law applies in the first instance.
Indeed, a claim governed by federal common law arises
under federal law for “jurisdictional purposes” even if that
claim “may fail at a later stage for a variety of reasons.”
Oneida Indian Nation v. County of Oneida, 414 U.S. 661,
675 (1974); see United States v. Standard Oil Co., 332 U.S.
301, 307, 313, 316 (1947) (deciding first whether federal
common law governed and only then whether a remedy
under federal common law exists).
In failing to recognize as much, those courts have also
fundamentally misunderstood the relationship between
state law and federal common law. In cases that involve
“interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations,” only federal law can apply, because “our federal
system does not permit the controversy to be resolved under state law” at all. Texas Industries, 451 U.S. at 641.
In other words, where federal common law applies, “state
law cannot be used.” City of Milwaukee v. Illinois, 451
U.S. 304, 313 n.7 (1981).
As a result, there is no state law for the Clean Air Act
(or any other federal statute) to resurrect: state law did
not govern interstate emissions before Congress acted,
and the application of state law to interstate-pollution
claims remains inconsistent with our constitutional structure after the statutory displacement, even if federal law
provides no remedy for the particular claim alleged. Were
31
it otherwise, Congress’s decision to address an inherently
federal issue by statute so directly as to displace federal
common-law remedies would result in state common-law
remedies suddenly becoming viable. As the Second Circuit put it, that result is “too strange to seriously contemplate.” City of New York, 993 F.3d at 98-99.
Accordingly, respondent’s claims are necessarily and
exclusively governed by federal common law, even when
styled as state-law claims, and district courts have federal-question jurisdiction under Section 1331, and thus removal jurisdiction under Section 1441(a).
C. The Question Presented Is Important And Warrants
The Court’s Review In This Case
The question presented in this case is recurring and
has substantial legal and practical importance. It has now
divided the courts of appeals, as well as two consecutive
administrations. And the answer to it will dictate whether
this and future climate-change lawsuits—lawsuits that
“seek[] a global remedy for a global issue,” App., infra,
21a—should proceed in federal or state court. This case,
which cleanly presents the question of removal jurisdiction, is an ideal vehicle for the Court’s review.
The question presented squarely implicates the
longstanding principle that federal law alone necessarily
governs disputes related to interstate pollution. As the
Second Circuit recognized, a “mostly unbroken string of
cases” spanning a century has applied federal law to such
disputes. City of New York, 993 F.3d at 91. Now, given
the consequential question presented and the enormous
stakes as it relates to the national-security, economic, and
energy policy of the United States, the Court’s guidance
is urgently needed. Indeed, as Judge Stras wrote, “only
* * * the Supreme Court gets to make th[e] call” as to
32
whether these lawsuits will ultimately proceed in state or
federal court. App., infra, 26a.
More broadly, whether a putative state-law claim is removable because it is necessarily and exclusively governed by federal common law is a significant jurisdictional
question that arises in several contexts 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 more generally. Tennessee v.
Davis, 100 U.S. 257, 260 (1879).
The decision below creates particularly problematic
results in light of those precedents. Under the court of
appeals’ understanding of the operation of federal common law and federal-question jurisdiction, an artfully
pleaded claim for interstate pollution could never be removed to federal court absent complete diversity between
the parties (which able plaintiffs’ lawyers will readily
avoid). Such outcomes cannot be squared with this
Court’s decisions holding that claims seeking redress for
interstate air and water pollution arise under federal law
alone and thus are properly heard in federal court.
Resolution of the question presented is especially important in the context of the nationwide climate-change
litigation brought by state and local governments against
energy companies. The decision below leaves open the
door to countless state-court lawsuits applying state law
to claims seeking redress for the global phenomenon of
climate change. The potentially conflicting results of such
lawsuits could “upset[] the careful balance that has been
struck between the prevention of global warming,” 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. In light of this Court’s refusal
to intervene to date, numerous climate-change lawsuits
33
are marching forward in state courts across the country.
Absent the Court’s intervention, our national energy policy may be decided by juries in state courts applying varying standards of state law.
This case is also an ideal vehicle for resolution of the
question presented. That question was pressed below,
fully briefed by the parties, and passed on by the court of
appeals.
The petition for a writ of certiorari provides the Court
with an opportunity to consider and resolve the question
presented. That question is important; it has divided the
courts of appeals; and the decision of the court of appeals
was erroneous. The Court should grant certiorari here
and provide clarity as to whether the climate-change
cases should proceed in federal or state court.
34
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
WILLIAM A. BURCK
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
1300 I Street, N.W.,
Suite 900
Washington, DC 20005
MICHELLE SCHMIT
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
191 North Wacker Drive,
Suite 2700
Chicago, IL 60606
Counsel for Petitioners
Koch Industries; Flint Hills
Resources LP; and Flint Hills
Resources Pine Bend LLC
BRIAN D. SCHMALZBACH
MCGUIRE WOODS LLP
Gateway Plaza
800 East Canal Street
Richmond, VA 23219
Counsel for Petitioner
American Petroleum Institute
AUGUST 2023
KANNON K. SHANMUGAM
WILLIAM T. MARKS
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street, N.W.
Washington, DC 20006
(202) 223-7300
kshanmugam@paulweiss.com
THEODORE V. WELLS, JR.
DANIEL J. TOAL
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
Counsel for Petitioners
Exxon Mobil Corporation
and ExxonMobil Oil
Corporation
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.