Petition for Writ of Certiorari — American Petroleum Institute, et al., Petitioners v. Minnesota

APPENDIX

TABLE OF CONTENTS

Appendix A:

Appendix B:

Court of appeals opinion,

March 23, 2023 ................................................ 1a

District court order,

March 31, 2021 .............................................. 28a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 21-1752

STATE OF MINNESOTA, BY ITS ATTORNEY GENERAL

KEITH ELLISON, PLAINTIFF-APPELLEE

v.

AMERICAN PETROLEUM INSTITUTE; EXXON MOBIL

CORPORATION; KOCH INDUSTRIES, INC.; FLINT HILLS

RESOURCES, LP; FLINT HILLS RESOURCES PINE BEND,

DEFENDANTS-APPELLANTS

No. 21-8005

AMERICAN PETROLEUM INSTITUTE; EXXON MOBIL

CORPORATION; KOCH INDUSTRIES, INC.; FLINT HILLS

RESOURCES, LP; FLINT HILLS RESOURCES PINE BEND,

PETITIONERS

v.

STATE OF MINNESOTA, RESPONDENT

Filed: March 23, 2023

(1a)

2a

Before: GRASZ, STRAS, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

Minnesota sued a litany of fossil fuel producers1 (together, the Energy Companies) in state court for common

law fraud and violations of Minnesota’s consumer protection statutes. In doing so, it joined the growing list of

states and municipalities trying to hold fossil fuel producers responsible for alleged misrepresentations about the

effects fossil fuels have had on the environment. The Energy Companies removed to federal court. The district

court2 granted Minnesota’s motion to remand, and the

Energy Companies appealed. We affirm.

I.

Minnesota claims that the Energy Companies have

known for decades that the production and use of fossil

fuels damages the environment. Instead of owning up to

these harmful effects, Minnesota alleges the Energy

Companies engaged in a misinformation campaign to deceive consumers and suppress the truth about climate

change. Minnesota claims that this deception resulted in

more fossil fuel being sold, accelerating climate change

and causing wide-ranging harm to Minnesota, its citizens,

and fossil fuel consumers.

Minnesota sued the Energy Companies in state court.

It alleged exclusively state law claims—common law

fraud and violations of various Minnesota consumer

American Petroleum Institute, Exxon Mobil Corporation, ExxonMobil Oil Corporation, Koch Industries, Flint Hills Resources LP,

and Flint Hills Resources Pine Bend.

1

2

The Honorable John R. Tunheim, then Chief Judge, United States

District Court for the District of Minnesota.

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protection statutes.3 The Energy Companies removed the

case under the general removal statute, 28 U.S.C. § 1441,

and the federal officer removal statute, 28 U.S.C. § 1442.

Minnesota filed a motion to remand, which the district

court granted. The court reasoned that it lacked original

jurisdiction and that the claims didn’t have sufficient connection to the Energy Companies’ purported federally directed activities. The Energy Companies appeal, maintaining that federal original jurisdiction exists and that

the case is otherwise removable under § 1442.

Minnesota is not the first state or local government to

file this type of climate change litigation. Nor is this the

first time that the Energy Companies, or their oil producing peers, have made these jurisdictional arguments. But

our sister circuits rejected them in each case. See, e.g.,

Rhode Island v. Shell Oil Prods. Co., L.L.C. (Shell Oil

III), 35 F.4th 44 (1st Cir. 2022); City of Hoboken v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022); Mayor & City

Council of Balt. v. BP P.L.C. (Baltimore III), 31 F.4th 178

(4th Cir. 2022); Cnty. of San Mateo v. Chevron Corp. (San

Mateo III), 32 F.4th 733 (9th Cir. 2022); Bd. of Cnty.

Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc.

(Boulder III), 25 F.4th 1238 (10th Cir. 2022). But cf. City

of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021).

Today, we join them.

II.

“Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and

statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quotation omitted). 28 U.S.C. § 1441 allows the defendants in

state court civil actions to remove the case to federal court

3

Minn. Stat. §§ 325D.44(1), 325F.67, 325F.69(1).

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if the case “originally could have been filed there.” Baker

v. Martin Marietta Materials, Inc., 745 F.3d 919, 923 (8th

Cir. 2014) (quotation omitted). In other words, the federal

court must have original jurisdiction over the case. Removal is permitted as long as at least one claim falls within

the original jurisdiction of the federal court. See In re PreFilled Propane Tank Antitrust Litig., 893 F.3d 1047,

1059–60 (8th Cir. 2018); 28 U.S.C. § 1367(a). We review

the district court’s decision to remand de novo. See Bell v.

Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009).

A.

28 U.S.C. § 1331 establishes that “[t]he district courts

shall have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United

States.” In addition to cases arising under federal positive

law, federal courts also have jurisdiction over “claims

founded upon federal common law.” Illinois v. City of

Milwaukee, 406 U.S. 91, 100 (1972), recognized as superseded by statute on other grounds, Am. Elec. Power Co.,

Inc. v. Connecticut, 564 U.S. 410, 419 (2011).

This is known as federal question jurisdiction. Generally, “federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly

pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction

by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citation omitted). However, the potential applicability of a defense arising under

federal law doesn’t create jurisdiction. Aetna Health Inc.

v. Davila, 542 U.S. 200, 207 (2004). We call this pair of

principles the well-pleaded complaint rule.

But “a plaintiff may not defeat removal by omitting to

plead necessary federal questions.” Franchise Tax Bd. v.

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Constr. Laborers Vacation Tr., 463 U.S. 1, 22 (1983).4

There are two important exceptions to the well-pleaded

complaint rule: when the state-law claims (1) are completely preempted by federal law or (2) necessarily raise

a substantial, disputed federal question. Shell Oil III, 35

F.4th at 51–52. If either exception is met, the case is removable although no federal question appears on the face

of the complaint.

Although Minnesota’s complaint pleads exclusively

state-law torts, the Energy Companies insist that both exceptions apply because federal common law governing

transboundary pollution provides the rule of decision for

Minnesota’s claims. We address each exception in turn.

i.

Complete preemption 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.” Caterpillar, 482 U.S. at 393 (quotation omitted).

Complete preemption “exists only where federal preemption is so strong that ‘there is no such thing as a state-law

claim.’” Johnson v. MFA Petroleum Co., 701 F.3d 243, 248

(8th Cir. 2012) (quoting Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 11 (2003)) (cleaned up). When federal law

completely preempts state law, the cause of action is removable even if it’s based entirely in state law. Franchise

This principle has also been described as artful pleading, which

occurs when a plaintiff disguises federal claims as state ones. See 14C

Wright et al., Federal Practice & Procedure § 3722.1 (artful pleading). The Energy Companies argue that artful pleading is a separate

exception to the well-pleaded complaint rule. We have never applied

the doctrine as a standalone exception, so we decline to do so here.

See generally Johnson v. Humphreys, 949 F.3d 413 (8th Cir. 2020);

In re Otter Tail Power Co., 116 F.3d 1207 (8th Cir. 1997).

4

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Tax Bd., 463 U.S. at 23. But less aggressive forms of

preemption, such as ordinary preemption, do not provide

a basis for removal. See Johnson, 701 F.3d at 248 (“Ordinary preemption is a federal defense that exists where a

federal law has superseded a state law claim.”).

To determine whether a state-law claim is completely

preempted, we ask whether Congress intended a federal

statute to provide “the exclusive cause of action for the

claim asserted and also set forth procedures and remedies

governing that cause of action.” Beneficial Nat’l Bank,

539 U.S. at 8. Because “[t]he lack of a substitute federal

[cause of] action would make it doubtful that Congress intended” to preempt state-law claims, “without a federal

cause of action which in effect replaces a state law claim,

there is an exceptionally strong presumption against complete preemption.” Johnson, 701 F.3d at 252. Complete

preemption is very rare. The Supreme Court has applied

it to only three statutes: § 301 of the Labor Management

Relations Act, Avco Corp. v. Aero Lodge No. 735, 390 U.S.

557, 560–61 (1968); § 502(a) of ERISA, Metro. Life Ins.

Co. v. Taylor, 481 U.S. 58, 66 (1987); and §§ 85 and 86 of

the National Bank Act, Beneficial Nat’l Bank, 539 U.S. at

10–11.

Contrary to the Energy Companies’ insistence, federal common law on transboundary pollution does not

completely preempt Minnesota’s claims. At several points

in our nation’s history, courts have applied federal common law to public nuisance claims involving transboundary air or water pollution. Boulder III, 25 F.4th at 1258–

61 (detailing the history of federal common law in pollution cases); City of New York v. Chevron Corp., 993 F.3d

81, 91 (2d Cir. 2021) (collecting cases). And the Second

Circuit recently held that federal common law still provides a defense—ordinary preemption—to state-law

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public nuisance. New York, 993 F.3d at 94–95. Though,

there is a serious question about whether, and to what extent, this area of federal common law survived subsequent

federal environmental legislation.5

Even if federal common law still exists in this space

and provides a cause of action to govern transboundary

pollution cases, that remedy doesn’t occupy the same substantive realm as state-law fraud, negligence, products liability, or consumer protection claims. There is no substitute federal cause of action for the state-law causes of action Minnesota brings, which means we apply the strong

presumption against complete preemption. And more importantly, the federal law at issue is common law, not statutory. Because Congress has not acted, the presence of

federal common law here does not express Congressional

intent of any kind—much less intent to completely displace any particular state-law claim. Boulder III, 25 F.4th

at 1262.

Because Congress has not acted to displace the statelaw claims, and federal common law does not supply a substitute cause of action, the state-law claims are not completely preempted.

Some of our sister circuits have addressed both whether the Clean

Air Act displaced federal common law on transboundary pollution,

Baltimore III, 31 F.4th at 204, and whether the Clean Air Act

preempts state-law claims seeking to recover damages for the effects

of climate change, Boulder III, 25 F.4th at 1265. We decline to reach

either question. Unlike in those cases, the Energy Companies didn’t

raise the CAA as a basis for complete preemption here. And, even

assuming that federal common law still exists in this space, it doesn’t

completely preempt Minnesota’s claims for the reasons explained below.

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ii.

The second exception to the well-pleaded complaint

rule is when the complaint includes “claims recognized under state law that nonetheless turn on substantial questions of federal law.” Grable & Sons Metal Prods., Inc. v.

Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). When that’s

true, we treat the claims as arising under federal law even

though state law creates the cause of action. Franchise

Tax Bd., 463 U.S. at 13. This is because “there is a ‘serious

federal interest in claiming the advantages thought to be

inherent in a federal forum,’ which can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.” Gunn, 568 U.S. at 258 (citation omitted). The Grable doctrine, as we call it, applies

to a “special and small category” of cases. Empire

Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677,

699 (2006). Under Grable, federal question jurisdiction exists “if a federal issue is: (1) necessarily raised, (2) actually

disputed, (3) substantial, and (4) capable of resolution in

federal court without disrupting the federal-state balance

approved by Congress.” Gunn, 568 U.S. at 258.

The best example is Grable itself. In that case, the IRS

seized and sold Grable’s property to satisfy his tax liability. Grable, 545 U.S. at 310. Grable tried to invalidate the

sale by filing a quiet title claim in state court, arguing that

the buyer’s title was invalid because the IRS did not follow

the notice requirements prescribed by federal law. Id. at

311. The buyer promptly removed to federal court. Id.

Although Grable pled a purely state-law claim, the dispositive issue of whether the IRS had valid title over the

property depended entirely on whether the IRS followed

those federal notice requirements. Id. at 315–16. Because

the dispositive state-law issue ultimately depended on the

resolution of a federal-law issue—the notice require-

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ments—the Supreme Court held that the quiet-title claim

arose under federal law. Id. In other words, while state

law provided the mechanism for the lawsuit, the legal

questions central to the case were exclusively federal.

A federal issue is necessarily raised when it “is a necessary element of one of the well-pleaded state claims” in

the plaintiff’s complaint. Franchise Tax Bd., 463 U.S. at

13 (emphasis added); see also Boulder III, 25 F.4th at

1266 (“To determine whether an issue is ‘necessarily’

raised, the Supreme Court has focused on whether the issue is an ‘essential element’ of a plaintiff’s claim.” (citation

omitted)). “This inquiry demands precision.” Cent. Iowa

Power Coop v. Midwest Indep. Transmission Sys. Oper.,

Inc., 561 F.3d 904, 914 (8th Cir. 2009). A removing defendant “should be able to point to the specific elements of [the

plaintiff’s] state law claims” that require proof under federal law. Id.

The Energy Companies argue that Minnesota’s claims

“necessarily raise issues governed by federal common law

and amount to a collateral attack on cost benefit analyses

committed to, and already performed by, the federal government.” App. Br. at 34. To date, none of our sister circuits have found that argument persuasive. See, e.g., Shell

Oil III, 35 F.4th at 57 (“[F]aced with comparable arguments, cases akin to this one flatly reject the idea that federal law is an essential element to the kind of classic statelaw claims [the State] raises.” (emphasis omitted) (citing

San Mateo III, 32 F.4th at 747–48; Baltimore III, 31

F.4th at 208–15)). We agree with them.

Although the Energy Companies list a variety of federal interests potentially impacted should a court hold

them liable, they fail to identify which specific elements of

Minnesota’s claims require the court to either interpret

and apply federal common law or second-guess

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Congress’s cost-benefit rationales in allowing the production and sale of fossil fuels.6 Unlike Grable, where deciding ownership of the property under state law required

the court to determine whether the IRS properly followed

federal notice requirements, resolving only the merits of

Minnesota’s claims does not require the court to resolve

any questions governed by federal law.

To be fair, allowing the State to recover damages for

injuries caused by climate change may have the practical

effect of impacting the Energy Companies’ ability to produce and sell fossil fuels, thereby affecting any federal interest that relies in part on the availability and affordability of energy. But, as the Tenth Circuit reasoned, “any implied conflict between the . . . state-law claims and federal

cost-benefit determinations speaks to a potential defense

on the merits of those claims, specifically a preemption defense, rather than to the jurisdictional issue.” Boulder III,

25 F.4th at 1266. Because federal law is not a necessary

element to any of Minnesota’s claims, the complaint

doesn’t “necessarily raise” a federal issue.

Because the “necessarily raised” element is not satisfied, the Grable exception to the well-pleaded complaint

rule does not apply to Minnesota’s claims.

B.

The Energy Companies also argue that federal question jurisdiction exists under the Outer Continental Shelf

Though failure to warn under Minnesota law does require the involvement of a dangerous product, it does not require a court to determine whether a product is unreasonably dangerous or opine on

whether it should be sold generally. See, e.g., Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572, 582 (Minn. 2012) (explaining that the duty

to warn consists of “two duties: (1) the duty to give adequate instructions for safe use; and (2) the duty to warn of dangers inherent in improper usage.” (citation omitted) (cleaned up)).

6

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Lands Act (OCSLA). The OCSLA gives federal courts

original jurisdiction over “cases and controversies arising

out of, or in connection with (A) any operation conducted

on the [O]uter Continental Shelf . . . , or which involves

rights to such minerals, or (B) the cancellation, suspension, or termination of a lease or permit under this subchapter.” 43 U.S.C. § 1349(b)(1). To determine whether

there is jurisdiction, we consider “whether (1) the activities that caused the injury constituted an ‘operation’ ‘conducted on the [OCS]’ that involved the exploration and

production of minerals, and (2) the case ‘arises out of, or

in connection with’ the operation.” In re Deepwater Horizon, 745 F.3d 157, 163 (5th Cir. 2014). Some of our sister

circuits have interpreted the second element to require “a

but-for connection.” See id. (quotation omitted). Others

have held that a causal connection is not required and only

a “close link” is necessary. See Hoboken, 45 F.4th at 709.

Although either approach allows broad jurisdiction, “the

statute must stop somewhere.” Id. at 710; see Boulder III,

25 F.4th at 1273 (quotation omitted) (“[A] blind application . . . would result in federal court jurisdiction over all

state law claims even tangentially related to offshore oil

production on the OCS.”).

Neither requirement is met here. Contrary to the Energy Companies’ argument, the activity causing injury in

this case is not the mere production of fossil fuels—some

of which occurred on OCS leases—but rather the alleged

“misinformation campaign” carried out via false advertising and misrepresentations in Minnesota. Because there

is no indication that the Energy Companies’ marketing

activities are an “operation” under § 1349(b)(1) or were

conducted on the OCS, the first prong of OCSLA jurisdiction isn’t met.

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Even if the relevant activity was an OCSLA operation,

the nexus to Minnesota’s claims is lacking under the “butfor” or “close link” approach. Minnesota’s challenge to the

Energy Companies’ marketing activities has no connection to their OCS-based fossil fuel production. Even if

they hadn’t conducted operations on the OCS, the Energy

Companies still would have marketed and sold fossil fuels

in Minnesota—because the OCS is just one of many sites

the companies produce fossil fuels from.7 As a result,

there is no connection, causal or otherwise, between Minnesota’s claims and the OCSLA operations.

Precedent from the Fifth Circuit, which has taken the

lead in interpreting OCSLA jurisdiction, supports our

conclusion. The Fifth Circuit has found federal jurisdiction under § 1349 only in cases involving close connections

to fossil fuel operations on the outer continental shelf—

“[t]hey each feature either claims with a direct physical

connection to an OCS operation (collision, death, personal

injury, loss of wildlife, toxic exposure) or a contract or

property dispute directly related to an OCS operation.”8

See Maps: Oil and Gas Exploration, Resources, and Production,

U.S. ENERGY INFO. ADMIN., https://www.eia.gov/maps/maps.htm

(compiling maps of oil production sites in the United States). The

Complaint lists some of these other drilling locations, which include

sites in Canada and North Dakota. Appx. at 28.

7

See In re Deepwater Horizon, 745 F.3d 157, 163–64 (5th Cir. 2014)

(finding removal jurisdiction over a lawsuit to recover damages to

wildlife caused by the blowout of an OCS drilling rig); Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir. 2013) (finding removal

jurisdiction over a lawsuit involving the death of an OCS rig worker

in a workplace accident); Tenn. Gas Pipeline v. Hous. Cas. Ins. Co.,

87 F.3d 150, 155 (5th Cir. 1996) (finding removal jurisdiction over

claims resulting from a ship allision with an OCS oil rig platform); EP

Operating Ltd. P’ship v. Placid Oil Co., 26 F.3d 563, 567–68 (5th Cir.

1994) (exercising original jurisdiction over a lawsuit seeking to partition property located on the OCS); Amoco Prod. Co. v. Sea Robin

8

13a

Boulder III, 25 F.4th at 1273 (collecting cases); see also

Hoboken, 49 F.4th at 712 (describing four buckets of

§ 1349 cases: “disputes about who may operate on the

Shelf[,] [c]ases about transporting oil or gas from the

Shelf[,] [d]isputes over first-order contracts to buy oil or

gas produced on the Shelf[,] [a]nd tort suits about accidents on the Shelf.” (citation omitted) (collecting cases)).

But claims “one step removed from the actual transfer of

minerals to shore” are not sufficiently connected, such as

“a contractual dispute over the control of an entity which

operates a gas pipeline.” United Offshore Co. v. S. Deepwater Pipeline Co., 899 F.2d 405, 407 (5th Cir. 1990). The

connection between the Energy Companies’ marketing

activities and their OCS operations is even more attenuated. Because neither requirement is met, there is no federal jurisdiction under § 1349.

III.

Next, the Energy Companies argue the case is removable under 28 U.S.C. § 1442, the federal officer removal

statute. That statute authorizes removal of civil and criminal cases “against or directed to . . . any officer (or any

person acting under that officer) of the United States or

of any agency thereof, in an official or individual capacity,

for or relating to any act under color of such office.”

§ 1442(a). The federal officer removal statute’s basic purpose is:

Pipeline Co., 844 F.2d 1202, 1210 (5th Cir. 1988) (finding removal jurisdiction over a contract dispute involving natural gas extracted from

OCS wells); Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754

F.2d 1223, 1227 (5th Cir. 1985) (exercising original jurisdiction over a

contract dispute involving construction of a stationary offshore platform on the OCS).

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to protect the Federal Government from the interference with its operations that would ensue were a State

able, for example, to arrest and bring to trial in a State

court for an alleged offense against the law of the

State, officers and agents of the Federal Government

acting within the scope of their authority.

Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 150

(2007) (quotation omitted) (cleaned up). To effectuate that

purpose, § 1442 “grants independent jurisdictional

grounds over cases involving federal officers where a district court otherwise would not have jurisdiction.” Jacks

v. Meridian Res. Co., LLC, 701 F.3d 1224, 1230 (8th Cir.

2012) (quotation omitted), abrogated on other grounds by

BP P.L.C. v. Mayor and City Council of Balt., 141 S. Ct.

1532, 1538 (2021). Unlike general removal, § 1442 is liberally construed and not constrained by the well-pleaded

complaint rule. Buljic v. Tyson Foods, Inc., 22 F.4th 730,

738 (8th Cir. 2021).

Section 1442(a)(1) removal applies to private parties

“who lawfully assist” federal officers “in the performance

of [their] official dut[ies].” Davis v. South Carolina, 107

U.S. 597, 600 (1883). This requires the private party to be

“authorized to act with or for federal officers or agents in

affirmatively executing duties under federal law.” Watson, 551 U.S. at 151 (citation omitted) (cleaned up). This

applies to private corporations as well. Isaacson v. Dow

Chem. Co., 517 F.3d 129, 136 (2d Cir. 2008). To remove the

case, a private defendant must establish that (1) it acted

under the direction of a federal officer, (2) there is a connection between the claims and the official authority, (3)

the defendant has a colorable federal defense to the

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plaintiffs’ claims, and (4) the defendant is a “person,”

within the meaning of the statute. Bulic, 22 F.4th at 738.9

Even if the Energy Companies have acted under a federal officer, those activities must have sufficient connection to Minnesota’s claims. Graves v. 3M Co., 17 F.4th 764,

769 (8th Cir. 2021). We have historically required a

“causal connection” to the conduct charged in the complaint. Watson v. Philip Morris Cos., Inc., 420 F.3d 852,

861 (8th Cir. 2005), rev’d on other grounds, 551 U.S. 142

(2007). That standard required “that the acts that form

the basis for the state civil or criminal suit were performed pursuant to an officer’s direct orders or to comprehensive and detailed regulations.” Id. (citation omitted).

Congress later passed the Removal Clarification Act

of 2011, which added the words “or relating to” into

§ 1442(a)(1). Pub. L. No. 112-51, sec. 2(b)(1)(A), 125 Stat.

545 (2011).10 Some of our sister circuits have recognized

The parties do not dispute that the Energy Companies are “persons” under § 1442.

9

10

That section, as amended, reads:

(a) A civil action or criminal prosecution that is commenced in a

State court and that is against or directed to any of the following

may be removed by them to the district court of the United States

for the district and division embracing the place wherein it is

pending:

(1) The United States or any agency thereof or any officer (or

any person acting under that officer) of the United States or

of any agency thereof, sued in an official or individual capacity for capacity, for or relating to any act under color of such

office or on account of any right, title or authority claimed

under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

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that this amendment changed the requirement to a lower

“relates to” standard. Moore v. Elec. Boat Corp., 25 F.4th

30, 35 (1st Cir. 2022); In re Commonwealth’s Motion to

Appoint Couns. Against or Directed to Def. Ass’n of

Phila., 790 F.3d 457, 471 (3d Cir. 2015); Baltimore III, 31

F.4th at 233; Latiolais v. Huntington Ingalls, Inc., 951

F.3d 286, 296 (5th Cir. 2020) (en banc); Baker v. Atl. Richfield Co., 962 F.3d 937, 944 (7th Cir. 2020); see also Ohio

State Chiropractic Ass’n v. Humana Health Plan Inc.,

647 F. App’x 619, 624 (6th Cir. 2016) (recognizing that the

Removal Clarification Act was “intended to broaden the

universe of acts that enable Federal officers to remove to

Federal court.” (quotation omitted)); Boulder III, 25

F.4th at 1251 (citing and incorporating the Fourth and

Fifth Circuits’ standard); Under this standard, the requirement is met if the charged conduct has a “connection” or “association” with the federal action. Baltimore

III, 31 F.4th at 233.

Though we have continued to describe the standard in

terms of “causal connection,” see Buljic, 22 F.4th at 738;

Graves, 17 F.4th at 769, the causal connection required by

§ 1442(a)(1) is for the activity in question to relate to a federal office. See Caver v. Cent. Ala. Elec. Coop., 845 F.3d

1135, 1144 (11th Cir. 2017) (using what it called a “causal

connection” standard that is identical to the “relates to”

standard described by the other circuits).

Despite this lower, post-amendment standard, the

connection between Minnesota’s claims and military fuel

production, OCS operations, or participation in the strategic petroleum infrastructure is still too remote. Again,

Minnesota alleges that the Energy Companies fraudu28 U.S.C. § 1442(a)(1) (amended 2011) (strikethrough denoting deletion; underline denoting addition).

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lently marketed their products and misinformed their

customers about the dangers of fossil fuel use, thereby enhancing both their sales and their contribution to climate

change. Although the “relating to” requirement presents

a low bar, the Energy Companies fall short of that threshold. As the district court explained, the Energy Companies “do not claim that any federal officer directed their

respective marketing or sales activities, consumer-facing

outreach, or even their climate-related data collection.”

Minnesota v. Am. Petroleum Inst., 20-CV-1636-JRT,

2021 WL 1215656, at *9 (D. Minn. March 31, 2021). The

Energy Companies’ production of military-grade fuel, operation of federal oil leases, and participation in strategic

energy infrastructure, even if done at federal direction,

bears little to no relationship with how they conducted

their marketing activities to the general public. At most,

those activities relate to the general production of fossil

fuels. But none of Minnesota’s claims try to hold the Energy Companies liable for production activities—only

marketing.11 See Baltimore III, 31 F.4th at 233–34. As a

result, the relationship between Minnesota’s claims and

“any federal authority over a portion of [the Energy Companies’] production and sale of fossil-fuel products is too

tenuous to support removal under § 1442.” Id. at 234.

11

We note that Minnesota has no nuisance claim in its complaint.

The federal common law applies to suits “brought by one State to

abate pollution emanating from another state.” Am. Elec. Power Co.,

564 U.S. at 421 (collecting cases). We believe that a nuisance claim

creates a stronger case for federal jurisdiction, and as the claims

move away from “abat[ing] pollution emanating from another state,”

the case becomes weaker. Am. Elec. Power Co., 564 U.S. at 421; see

In re Otter Tail Power Co., 116 F.3d 1207, 1214 (8th Cir. 1997). But

see Hoboken, 49 F.4th at 712 (holding that City’s nuisance claim was

still “too far away from Shelf oil production.”).

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Because the claims do not satisfy all four requirements,

the Energy Companies cannot remove under § 1442.12

IV.

Finally, the Energy Companies argue that the Class

Action Fairness Act (CAFA) provides a basis for removal.

Although this is a novel argument, we are not persuaded.

CAFA allows the defendant in a civil class action to remove a case if (1) more than $5 million is in controversy

and (2) the parties are minimally diverse. 28 U.S.C.

§ 1332(d)(2). The statute defines “class action” as “any

civil action filed under rule 23 of the Federal Rules of Civil

Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more

representative persons as a class action.” § 1332(d)(1)(B).

Here, Minnesota exercised its authority under Minn. Stat.

§ 8.31, which allows the State’s Attorney General to file

civil actions to enforce state law and distribute any recovery to injured consumers. The Energy Companies argue

that § 8.31 is a “similar State statute” under CAFA because it allows Minnesota to represent a larger class of

affected, but unnamed, individuals—similar to the named

plaintiffs in a Rule 23 class action.

But a State’s exercise of parens patriae13 authority is

not the same as a class action, even when the State seeks

recovery for and on behalf of its citizens’ injuries. The Supreme Court has held that civil suits filed by a state

Because the Energy Companies fail the first and second prongs

of federal officer removal, we do not address whether they have a colorable federal defense.

12

13

“The doctrine of parens patriae allows a sovereign to bring an

action on behalf of the interest of all of its citizens.” United States v.

Santee Sioux Tribe of Neb., 254 F.3d 728, 734 (8th Cir. 2001) (citing

Louisiana v. Texas, 176 U.S. 1, 19 (1900)).

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executive to enforce consumer protection laws are not

“mass actions” under § 1332(d)(11)(B)(i)—a category of

civil cases that try common issues of law or fact for at least

100 plaintiffs and classify as a “class action” for CAFA removal purposes. Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 164 (2014). And at least half of our

sister circuits have held that state-led civil enforcement

actions likewise don’t quality as “class actions” under the

statute. See Purdue Pharma L.P. v. Kentucky, 704 F.3d

208, 212–20 (2d Cir. 2013); West Virginia ex rel. McGraw

v. CVS Pharmacy, Inc., 646 F.3d 169, 176 (4th Cir. 2011);

Mississippi ex rel. Hood v. AU Optronics Corp., 701 F.3d

796, 799 (5th Cir. 2012), rev’d on other grounds, 571 U.S.

161 (2014); Nessel ex rel. Mich. v. AmeriGas Partners,

L.P., 954 F.3d 831, 838 (6th Cir. 2020); LG Display Co. v.

Madigan, 665 F.3d 768, 770–72 (7th Cir. 2011); Washington v. Chimei Innolux Corp., 659 F.3d 842, 847–49 (9th

Cir. 2011).

We reach the same conclusion here. Though § 8.31 authorizes Minnesota to file claims and recover for injuries

felt by Minnesotans, it bears little similarity to Rule 23.

As we have previously explained, “Rule 23(a) of the Federal Rules of Civil Procedure establishes four prerequisites to the maintenance of a class action.” Paxton v. Union Nat. Bank, 688 F.2d 552, 559 (8th Cir. 1982). First,

“the class must be ‘so numerous that joinder of all members is impracticable.’” Id. (quoting Fed. R. Civ. P.

23(a)(1)). Next, there must be “questions of law or fact

common to the class,” and “the claims or defenses of the

class representative must be ‘typical of the claims or defenses of the class.’” Id. (quoting Fed. R. Civ. P. 23(a)(2)–

(3)). And finally, the representative party must be able to

“fairly and adequately protect the interests of the class.”

Id. (quoting Fed. R. Civ. P. 23(a)(4)). “The Rule’s four requirements—numerosity, commonality, typicality, and

20a

adequate representation” are the defining characteristics

of Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

349 (2011); see also Paxton, 688 F.2d at 559.

Minn. Stat. § 8.31 has no such requirements. Neither the State nor the Attorney General needs to suffer a

sufficiently common injury—or any injury for that matter—to pursue claims on behalf of Minnesota residents.

Nor does the State’s exercise of this authority bar Minnesota residents from pursuing these claims, to the extent a

private cause of action exists, on their own. We conclude

that § 8.31 does not provide a similar mechanism to Rule

23, which means this lawsuit is not a removable “class action” under CAFA.

V.

For the foregoing reasons, we hold that Minnesota’s

claims are not removable under the general removal statute, the federal officer removal statute, the Outer Continental Shelf Lands Act, or the Class Action Fairness Act.

The district court was correct to remand the case, so we

affirm. Accordingly, we deny as moot the petition for permission to appeal in case 21-8005.

STRAS, Circuit Judge, concurring.

Artful pleading comes in many forms. This is one of

them. Minnesota purports to bring state-law consumerprotection claims against a group of energy companies.

But its lawsuit takes aim at the production and sale of fossil fuels worldwide. I agree with the court that, as the law

stands now, the suit does not “aris[e] under” federal law.

28 U.S.C. § 1331. I write separately, however, to explain

why it should.

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I.

There is no hiding the obvious, and Minnesota does not

even try: it seeks a global remedy for a global issue. According to the complaint, energy production has “caused

a substantial portion of global atmospheric greenhousegas concentrations.” Those gases, the argument goes,

have resulted in “climate change”—a label that appears in

the complaint over 200 times. The relief sought is ambitious too: a far-reaching injunction, restitution, and disgorgement of “all profits made as a result of [the companies’] unlawful conduct.” The case, in other words, presents “a clash over regulating worldwide greenhouse gas

emissions and slowing global climate change.” City of

New York v. Chevron Corp., 993 F.3d 81, 91 (2d Cir. 2021).

A.

Minnesota has strong views about how to deal with the

issue. Other states do too. See Brief of Indiana et al. as

Amici Curiae in Support of Petitioners at 1, Suncor Energy (U.S.A.) Inc. v. Bd. of Cnty. Comm’rs, No. 21-1550

(U.S. July 11, 2022). They do not believe that “one or two”

individual states like Minnesota should be able to “dictate

environmental policy for other sovereign States.” Id. at 7.

This is, in effect, an interstate dispute.

Not surprisingly, disputes between states are as old as

the country itself. See, e.g., Charles Warren, The Supreme

Court and Sovereign States 38–44 (1924) (listing examples); see also Thomas Paine, Common Sense 69–70 (1776)

(discussing a “difference between Pennsylvania and Connecticut, respecting some unlocated lands”); Don Faber,

The Toledo War: The First Michigan-Ohio Rivalry (2008)

(describing a boundary dispute over the Toledo Strip). Interstate disputes were so common and complicated, in

fact, that the Framers specifically vested original

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jurisdiction over them in the Supreme Court. See U.S.

Const. art. III, § 2 (giving the Supreme Court original jurisdiction over “all Cases . . . in which a State shall be

Party”); Delaware v. New York, 507 U.S. 490, 500 (1993);

Warren, supra, at 65–67. The rule of decision in these

cases has always been “known and settled principles of

national or municipal jurisprudence”—what we now know

as the federal common law. Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 737 (1838); Lessee of Marlatt

v. Silk, 36 U.S. (11 Pet.) 1, 22–23 (1837) (explaining that

“the rule of decision” in cases involving interstate compacts “is not to be collected from the decisions of either

state, but is one, if we may so speak, of an international

character”).

State law is no substitute. See Connecticut v. Massachusetts, 282 U.S. 660, 670 (1931) (rejecting reliance on

“the same rules of law that are applied in such States for

the solution of similar questions of private right”); see also

Hinderlider v. La Plata River & Cherry Creek Ditch Co.,

304 U.S. 92, 110 (1938) (noting that “neither the statutes

nor the decisions of either State can be conclusive” of their

respective water rights). When it comes to “outside nuisances” like this one, courts have long looked to commonlaw principles like “considerations [of] equity,” “quasisovereign interests,” and the need for “caution.” Georgia

v. Tenn. Copper Co., 206 U.S. 230, 237–38 (1907) (emphasis omitted); Missouri v. Illinois, 200 U.S. 496, 520–21

(1906). Applying state law, by contrast, only raises the

risk of conflict between states, which never “agree[d] to

submit to whatever might be done” to their citizens. Tennessee Copper, 206 U.S. at 237. For that reason, state law

has never “st[oo]d in the way” of using “recognized” (federal) common-law principles. Missouri, 200 U.S. at 520;

see The Federalist No. 80 (Alexander Hamilton) (“Whatever practices may have a tendency to disturb the

23a

harmony between the States, are proper objects of federal

superintendence and control.”).

The point is that federal law still reigns supreme in

these types of disputes, notwithstanding Erie’s famous

declaration that “[t]here is no federal general common

law.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938);

see Collins v. Virginia, 138 S. Ct. 1663, 1678–79 (2018)

(Thomas, J., concurring) (explaining why the federal common law may have preemptive force). The reason is the

“‘overriding . . . need for a uniform rule of decision’ on

matters influencing national energy and environmental

policy.” City of New York, 993 F.3d at 91–92 (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6 (1972), superseded by statute, Federal Water Pollution Control Act

Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816). As

the Second Circuit has put it in circumstances like these,

conflicts between states with different tolerances for

greenhouse-gas emissions can only be resolved at the federal level because of the “unique[] federal interests” involved. Id. at 90; see Int’l Paper Co. v. Ouellette, 479 U.S.

481, 496–97 (1987) (warning that regulation by multiple

states “would lead to chaotic confrontation” (citation omitted)).

Today’s lawsuit is as good an example as any. Minnesota accuses the energy companies of “caus[ing] a substantial portion of global atmospheric greenhouse-gas

concentrations, and the attendant historical, projected,

and committed disruptions to the environment” that go

with them. (Emphasis added). Although those “disruptions” have allegedly led to a host of costly problems

within Minnesota, they are by no means limited to the “effects of [local] emissions.” City of New York, 993 F.3d at

92. Rather, the complaint claims that the companies encouraged the consumption of fossil fuels “both in and

24a

outside of Minnesota,” (emphasis added), meaning that it

“intends to hold the [companies] liable, under [state] law,

for the effects of emissions made around the globe,” City

of New York, 993 F.3d at 92.

Minnesota’s end game is equally clear: change the

companies’ behavior on a global scale. “[T]he obligation to

pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.”

Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 637

(2012) (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959)); see Cipollone v. Liggett

Grp., 505 U.S. 504, 548 (1992) (Scalia, J., concurring in the

judgment in part and dissenting in part) (observing that

“general tort-law duties” can “impose ‘requirement[s] or

prohibition[s]’” on private parties (quoting 15 U.S.C.

§ 1334(b)). And the wide ranging request for injunctive relief speaks for itself.

The problem, of course, is that the state’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. Ouellette, 479 U.S. at 495. Regulating the production and sale of fossil fuels worldwide, in other words, is

“simply beyond the limits of state law.” City of New York,

993 F.3d at 92.

B.

Yet somehow, when interstate disputes are litigated

through the surrogate of a private party as the defendant,

fifty state courts get to handle them. Under the well

pleaded complaint rule, federal preemption operates only

“as a defense to the allegations in a plaintiff’s complaint.”

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).

And a defense, “even [one that] is anticipated in the

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plaintiff’s complaint, and even if both parties admit that

[it] is the only question truly at issue in the case,” is not a

reason to remove a case to federal court. Franchise Tax

Bd. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S.

1, 14 (1983).

Most of the time, the well-pleaded complaint rule

works well. After all, federal courts can’t know what they

don’t know. The complaint usually does not say whether a

federal defense is available and, if so, whether anyone will

raise it. See Louisville & Nashville R.R. Co. v. Mottley,

211 U.S. 149, 153 (1908); see also Grable & Sons Metal

Prods. v. Darue Eng’g & Mfg., 545 U.S. 308, 313–14 (2005)

(requiring a “disputed federal issue”). Nor does it generally say whether the federal issue, if raised, will play a

“substantial” role in the litigation. Grable, 545 U.S. at

314–15.

None of those mysteries exist here. The complaint itself all but dares the companies to raise a federal-preemption defense. And no one doubts that they will or that it

will be the focal point of the litigation. There is no reason

for the removal rules to operate in such a confounding

way.

And at one point, they didn’t. See Tennessee v. Union

& Planters’ Bank, 152 U.S. 454, 460 (1894) (collecting

cases). If there was a “real and substantial dispute or controversy which depend[ed] altogether upon the construction and effect of an act of Congress,” even if “the claim

. . . might[] possibly be determined by reference alone to

State enactments,” it was removable. R.R. Co. v. Mississippi, 102 U.S. 135, 140 (1880); see Union & Planters’

Bank, 152 U.S. at 460–62 (discussing the history). Perhaps for a “uniquely federal interest[]” like interstate pollution, it should still be that way. City of New York, 993

F.3d at 90; see Franchise Tax Bd., 463 U.S. at 11–12

26a

(describing the well-pleaded complaint rule “as a quick

rule of thumb” that “may produce awkward results”).

C.

But only Congress or the Supreme Court gets to make

that call. And we have our marching orders: even the

strongest arguments for removal don’t work here.

One is complete preemption. In rare cases, a federal

statute “may so completely pre-empt” state law that any

claim within its scope “is necessarily federal.” Metro. Life

Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). In those circumstances, we can take “a peek behind” the complaint to figure out whether the suit raises a federal question. Krakowski v. Allied Pilots Ass’n, 973 F.3d 833, 836 (8th Cir.

2020). The problem is that the energy companies identify

no federal statute that completely preempts the consumer-protection claims in Minnesota’s complaint. See

ante, at 5–7; see also Krakowski, 973 F.3d at 839–40 (explaining why “a judicial creation” cannot give rise to complete preemption (quotation marks omitted)).

The other is the substantial-federal-question test. See

Grable, 545 U.S. at 314–15; see also Gunn v. Minton, 568

U.S. 251, 258 (2013). It applies when state law claims “implicate significant federal issues.” Grable, 545 U.S. at 312.

At first glance, this possibility looks promising because

regulating interstate pollution does, as I explain above,

have a long federal pedigree. But Minnesota’s consumer

protection claims do not “necessarily require application

of [federal] law.” Gunn, 568 U.S. at 259; see ante, at 7–10.

Even if federal questions are lying in wait, Minnesota has

artfully pleaded around them.14

Although at times we have described the artful-pleading doctrine

as “limited” to complete preemption, M. Nahas & Co. v. First Nat’l

14

27a

For the time being, that is. As the case progresses,

Minnesota may make it even clearer that the case necessarily “turn[s] on substantial questions of federal law.”

Grable, 545 U.S. at 312. And developments along those

lines could give rise to federal jurisdiction. See 28 U.S.C.

§ 1446(b)(3) (authorizing removal “within 30 days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first

be ascertained that the case is one which is or has become

removable”); see also Parish of Plaquemines v. Chevron

USA, Inc., 7 F.4th 362, 365 (5th Cir. 2021); Chaganti &

Assocs., P.C. v. Nowotny, 470 F.3d 1215, 1220–21 (8th Cir.

2006). Until then, however, I am duty bound to agree that

this lawsuit does not “aris[e] under” federal law. 28 U.S.C.

§ 1331.

Bank of Hot Springs, 930 F.2d 608, 612 (8th Cir. 1991), it is best understood as an umbrella term that applies whenever the complaint obscures the suit’s federal nature, see Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 3722.1 (4th ed. 2022); see

also Ohio ex rel. Skaggs v. Brunner, 629 F.3d 527, 532 (6th Cir. 2010)

(recognizing that the description might apply when “federal issues

necessarily must be resolved to address the state law causes of action”).

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APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Civ. No. 20-1636 (JRT/HB)

STATE OF MINNESOTA, BY ITS ATTORNEY GENERAL

KEITH ELLISON, PLAINTIFFS

v.

AMERICAN PETROLEUM INSTITUTE; EXXON MOBIL

CORPORATION; KOCH INDUSTRIES, INC.; FLINT HILLS

RESOURCES, LP; FLINT HILLS RESOURCES PINE BEND,

DEFENDANTS

Filed: March 31, 2021

MEMORANDUM OPINION AND ORDER

GRANTING MOTION TO REMAND AND

DENYING MOTION TO STAY

TUNHEIM, Chief United States Judge.

Plaintiff State of Minnesota (“the State”) commenced

this action in Minnesota state court against Defendants

American Petroleum Institute (“API”), Exxon Mobil Corporation, ExxonMobil Oil Corporation, Koch Industries,

Inc., Flint Hills Resources LP, and Flint Hills Resources

Pine Bend asserting five causes of action for violations of

29a

Minnesota common law and consumer protection statutes. The State alleges that Defendants developed a widespread campaign to deceive the public about the dangers

of fossil fuels and to undermine the scientific consensus

linking fossil fuel emissions to climate change.

Defendants removed the action to federal court on

seven independent grounds: federal common law; disputed and substantial federal issues (the Grable doctrine);

the federal officer removal statute; the Outer Continental

Shelf Lands Act; federal enclaves; the Class Action Fairness Act; and diversity. Plaintiff filed a Motion to Remand

to state court. Because Defendants have not met their

burden of establishing that federal jurisdiction is warranted on any of the grounds presented, the Court will

grant the State’s Motion.

Defendants Koch Industries, Inc., Flint Hills Resources LP, and Flint Hills Resources Pine Bend (collectively, “FHR Defendants”) have also filed a Motion to

Stay to await the Supreme Court’s decision in BP p.l.c. v.

Mayor & City Council of Baltimore, No. 19-1189 (U.S.)

and the Court’s determination on a Petition for Certiorari

in Chevron Corporation et al. v. City of Oakland, et al.

(U.S., Jan. 8, 2021). Plaintiff opposes this motion. Because

the Court finds that the Baltimore case is before the Supreme Court on a narrow procedural question not at issue

here and the dispensation of the petition in City of Oakland is too speculative to warrant a stay in the instant proceedings, the Court will deny FHR Defendants’ Motion to

Stay.

BACKGROUND

I.

FACTUAL BACKGROUND

The Attorney General brings this action pursuant to

his authority under Minnesota Statutes Chapter 8 and his

30a

parens patriae authority under state common law. (Notice of Removal, Ex. A (“Compl.”) ¶ 12, July 27, 2020,

Docket No. 1-1.)

Defendant American Petroleum Institute (API) is a

nonprofit corporation registered to do business in Minnesota. (Id. ¶ 13.) API was established in 1919 and is the

country’s largest oil trade association, with over 600 members. (Id.) Defendant Exxon Mobil Corporation is a multinational, vertically integrated energy and chemicals

company incorporated in New Jersey with a principal

place of business in Irving, Texas. (Id. ¶ 17.) Exxon Mobil

Corporation is the parent company for numerous subsidiaries and has done business as or is the successor in liability to numerous entities. (Id.) Defendant ExxonMobil Oil

Corporation is a wholly owned subsidiary of Exxon Mobil

Corporation, incorporated in New York with a principal

place of business in Irving, Texas. (Id. ¶ 19.) Defendant

Koch Industries, Inc. (“Koch”) is an American multinational corporation based in Wichita, Kansas. (Id. ¶ 28.)

Koch is the parent company for numerous subsidiaries involved in the manufacturing, refining, and distribution of

petroleum products. (Id. ¶ 29.) Koch, as well as many of

its subsidiaries and affiliates, is registered to do business

in Minnesota. (Id. ¶ 31.)

Defendants Flint Hills Resources LP and Flint Hills

Resources Pine Bend, LLC, subsidiaries of Koch, are licensed distributors of petroleum products in Minnesota.

(Id.) Koch subsidiaries import crude oil from Canada to a

terminal in Clearbrook, Minnesota, which is owned and

operated by Koch. (Id. ¶ 32.) Oil is piped from the Clearbrook terminal to the Flint Hills Resources Pine Bend Refinery via other Koch-owned pipelines. (Id.) Flint Hills

Resources’ Pine Bend Refinery refines the majority of the

motor gasoline consumed in Minnesota. (Id. ¶ 37.)

31a

A. Climate Change & Fossil Fuels

Beginning in the 1950s, scientists—including many

employed by the fossil fuel industry—began to understand that burning fossil fuels released additional greenhouse gasses, drove up atmospheric concentration,

changed the carbon ratio in the atmosphere, and impacted

global temperature and climate. (Id. ¶¶ 55–59.) The State

alleges that by 1965, Defendants and their predecessorsin-interest were aware that widely used fossil-fuel products would cause global warming by the end of the century

and would have wide-ranging and costly consequences.

(Id. ¶ 60.)

The State alleges that Defendants were at the forefront of scientific discourse about climate change and its

relationship to fossil fuels, and were privy to research developed by industry-employed scientists as well as independent analyses, including research commissioned by

Defendants and their colleagues. (Id. ¶¶ 60–72.) By the

1980s, there was an established consensus among scientists and within the fossil fuel industry that atmospheric

CO2 concentrations were reaching dangerous levels and

would significantly impact the earth’s climate, and international coalitions had begun to emerge to address the issue. (Id. ¶ 73.)

B. Defendants’ Alleged Misinformation Campaign

The State alleges that, as the international and scientific consensus coalesced around the relationship between

fossil fuels emissions and climate change, Defendants

mounted an aggressive campaign to undermine the public’s perception of climate science. (Id. ¶¶ 82–87.) Defendants allegedly spent millions of dollars on advertising and

public relations campaigns, in Minnesota and elsewhere,

to mislead consumers and the general public about the

32a

scientific consensus around climate change, the relationship between climate change and their fossil-fuel products, and the urgency of the dangers of climate change.

(Id. ¶¶ 88–90). The State further alleges that Defendants

funneled hundreds of millions more dollars to organizations that publicly promoted false statements about and

denied the existence of climate change, and paid scientists

to produce misleading reports and materials, which Defendants’ then cited and promoted to support their own

fraudulent statements. (Id. ¶¶ 92–131.)

The State identifies two broad categories of alleged injuries caused by Defendants’ misinformation campaign:

(1) harms to consumers who relied on Defendants’ false

information, (id. ¶¶ 172–83); and (2) environmental and

social harms from increased consumption of fossil fuels,

including changes in climate, damage to infrastructure,

and worsening public health, (id. ¶¶ 139–71), all of which,

the State avers, could have been mitigated, but for Defendants’ campaign, (id. ¶¶ 172, 213–14).

II.

PROCEDURAL HISTORY

Plaintiff commenced this action in Minnesota state

court asserting five counts related to Defendants’ alleged

misinformation campaign: (1) violations of the Minnesota

Consumer Fraud Act (“CFA”), Minnesota Statutes

§ 325F.69; (2) failure to warn under common law theories

of strict liability and negligence, against all Defendants

except API; (3) common law fraud and misrepresentation;

(4) violations of the Minnesota Deceptive Trade Practices

Act (“DTPA”),Minnesota Statutes § 325D.44; and (5) violations of the Minnesota False Statement in Advertising

Act (“FSAA”),Minnesota Statutes § 325F.67. (Id. ¶¶ 184–

242.) The State seeks damages, civil penalties, disgorgement of profits made as a result of unlawful conduct, and

an order enjoining Defendants from continued violations

33a

of the CFA, DTPA, and FSAA. (Id. ¶¶ 244, 247–249.). The

State also requests that Defendants be compelled to disclose, disseminate, and publish all research that they conducted directly or indirectly relating to climate change,

and fund a corrective climate change public education

campaign in Minnesota, administered and controlled by

an independent third party. (Id. ¶¶ 245–246).

On July 27, 2020, Defendants removed the action to

federal court. (Notice of Removal, July 27, 2020, Docket

No. 1.) Defendants raise seven grounds for asserting federal jurisdiction over this matter: (1) the claims arise under federal, not state, common law; (2) the action raises

disputed and substantial federal issues that must be adjudicated in a federal forum (the “Grable doctrine”); (3) removal is authorized by the federal officer removal statute,

28 U.S.C. § 1442(a)(1); (4) federal jurisdiction arises under

the Outer Continental Shelf Lands Act (“OCSLA”), 43

U.S.C. § 1349(b); (5) the claims are based on conduct arising out of federal enclaves; (6) the action is actually a class

action governed by the Class Action Fairness Act

(“CAFA”), 28 U.S.C. § 1332(d), 28 U.S.C. § 1453(b); and

(7) the court has diversity jurisdiction under 28 U.S.C.

§ 1332(a), on the theory that the real parties in interest

are not the State, but the citizens of Minnesota.

On August 26, 2020, Minnesota moved to remand the

case to state court, arguing that the Court lacks subject

matter jurisdiction because (a) neither federal common

law nor the Grable doctrine apply; (b) no federal enclaves

are implicated; (c) the Outer Continental Shelf Lands Act

is not implicated; (d) the federal officer removal statute

does not apply; (e) the suit is not a “class action” and

therefore not subject to the Class Action Fairness Act;

and (f) the suit was brought by the State, which is not a

citizen for purposes of diversity jurisdiction. (Mot.

34a

Remand, Aug. 26, 2020, Docket No. 32.) Defendants oppose this Motion.

The FHR Defendants filed a Motion to Stay, on January 15, 2021, arguing that staying proceedings until the

Supreme Court issues a decision in BP p.l.c. v. Mayor &

City Council of Baltimore, and makes a determination on

the Petition for Certiorari in Chevron Corporation v. City

of Oakland, et al., would conserve judicial resources and

would not prejudice the State. (Mot. Stay, Jan. 15, 2021,

Docket No. 56.) The State opposes staying the Motion to

Remand.

DISCUSSION

I. MOTION TO REMAND

A. Standard of Review

“Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and

statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quotation omitted). A defendant may remove a civil action to

federal court only if the action could have been filed originally in federal court. See 28 U.S.C. § 1441(a)–(b); Gore v.

Trans World Airlines, 210 F.3d 944, 948 (8th Cir. 2000).

The party seeking removal bears the burden of demonstrating that removal was proper, and “all doubts about

federal jurisdiction must be resolved in favor of remand.”

Cent. Iowa Power Co-op. v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009).

Remand is mandatory “at any time before final judgment

[if] it appears that the district court lacks subject matter

jurisdiction.” 28 U.S.C. § 1447(c).

C. The Well-Pleaded Complaint Rule

“[F]ederal jurisdiction exists only when a federal

question is presented on the face of the plaintiff's properly

35a

pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction

by exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citation omitted). Where

a complaint pleads only state law claims, a federal court

does not have jurisdiction based on a federal defense. See,

e.g., Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004).

There are two relevant exceptions to the well-pleaded

complaint rule. First, “[w]hen a plaintiff has artfully

pleaded in a manner that avoids an element of the tort that

rests on federal law, the court ‘may uphold removal even

though no federal question appears on the face of plaintiff’s complaint.’” Gore, 210 F.3d at 950 (quoting Rivet v.

Regions Bank of La., 522 U.S. 470, 475 (1998)). The artful

pleading doctrine allows removal where Congress either

expressly provides for removal of a particular state law

action or where federal law completely preempts a plaintiff’s state-law claim. Rivet, 522 U.S. at 475.

Second, even where “federal law does not create the

cause of action, federal question jurisdiction may exist if

[Plaintiff’s] ‘state-law claim necessarily raise[s] a stated

federal issue, actually disputed and substantial, which a

federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial

responsibilities.’” Great Lakes Gas Trans. Ltd. P’ship v.

Essar Steel Minnesota LLC, 843 F.3d 325, 331 (8th Cir.

2016) (quoting Grable & Sons Metal Prods., Inc. v. Darue

Eng’g & Mfg., 545 U.S. 308, 314 (2005)). The Supreme

Court has recognized a “special and small category” of

cases that fit into this framework, Empire Healthchoice

Assur., Inc. v. McVeigh, 547 U.S. 677, 699 (2006), “where

vindication of a right under state law necessarily turned

on some construction of federal law,” Merrell Dow

36a

Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808–09

(1986) (quotation omitted).

B. Analysis

1. Federal Common Law

Defendants’ first asserted ground for removal is that

the Court has original jurisdiction because the State’s

claims arise under federal common law and cannot be resolved under state law. Only a few limited areas of federal

common law survived Erie R.R. Co. v. Tompkins, 304 U.S.

64, 78 (1938). In particular, courts have determined that

federal common law applies where a federal decision is required “to protect uniquely federal interests,” Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964),

or where “our federal system does not permit the controversy to be resolved under state law, either because the

authority and duties of the United States as sovereign are

intimately involved or because the interstate or international nature of the controversy makes it inappropriate

for state law to control.” Texas Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 641 (1981). Defendants argue that the State’s Complaint necessarily arises under

three areas controlled by federal common law: interstate

pollution, navigable waters, and foreign affairs. Defendants further argue that federal jurisdiction is proper because state law cannot apply to the claims alleged.

i. Interstate Pollution

First, Defendants argue that the State’s claims are

premised upon interstate pollution because the State’s alleged injuries stem from climate change impacts, which

are caused by global emissions and are inherently transboundary in nature. The Supreme Court has specifically

recognized federal common law in the arena of transboundary pollution and environmental protection, see

37a

Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 421

(2011) (“When we deal with air and water in their ambient

or interstate aspects, there is federal common law.”), but

has also held that this area of federal common law has

largely (though not entirely) been displaced by environmental statutes, including the Clean Air Act and Clean

Water Act, see e.g., id. at 424 (finding that the “Clean Air

Act and the EPA actions it authorizes displace any federal

common-law right to seek abatement of carbon-dioxide

emissions from fossil-fuel fired powerplants”); Int’l Paper

v. Ouellette, 479 U.S. 481, 497 (1987) (“The CWA precludes only those suits that may require standards of effluent control that are incompatible with those established

by the procedures set forth in the Act.”).

Defendants cite a number of cases to support their argument that federal common law should govern; however,

in each of these precedential cases, a cause of action for

interstate pollution was alleged on the face of the complaint, which is not the case here.1 Despite the fact that

the State alleges no causes of action related to pollution

regulations or disputes between states over emissions

See, AEP, 564 U.S. at 415 (federal common law public nuisance

claims against carbon-dioxide emitters seeking cap on emissions); Illinois v. Milwaukee, 406 U.S. 91, 93 (1972), superseded by statute

(cause of action for pollution of Lake Michigan); Ouellette, 479 U.S. at

483–84 (1987) (common law nuisance for discharges into interstate

lake); Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849,

853 (2012) (federal common law public nuisance claims against for

greenhouse gas emissions and climate change injuries); City of New

York v. BP p.l.c., 325 F. Supp. 3d 466, 470 (S.D.N.Y. 2018) (public nuisance, private nuisance, and trespass claims related to sea level rise,

increased flooding, and temperature increases). However, City of

New York does not provide a framework for removal based upon federal common law because the action was originally filed in federal

court.

1

38a

standards, Defendants argue that the State has not

pleaded sufficient facts to support its consumer protection

claims, and therefore the complaint must actually establish a cause of action for interstate pollution under the federal common law. To adopt Defendants’ theory, the Court

would have to weave a new claim for interstate pollution

out of the threads of the Complaint’s statement of injuries. This is a bridge too far. Because Defendants do not

plausibly identify any actual disputes related to interstate

pollution that must be resolved to reach the merits of the

State’s pleaded claims, federal common law does not establish a basis for jurisdiction on this ground.

ii. Navigable Waters

Similarly, Defendants argue that federal common law

must govern because the State seeks remedies for injuries

related to flooding, damage, and contamination of navigable waters. Again, the cases that Defendants rely on establish that federal common law is required to resolve issues not present here; in particular, to mediate conflict

between the states or between states and the federal government related to interstate water bodies.2 Although

flooding is an alleged injury related to the consumer protection claims, the State’s action does not purport to regulate, apportion, or mediate other states’ or agencies’ relationships to navigable waters, and the federal common

law of navigable waters is not necessarily raised here.

2

See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304

U.S. 92, 110 (1938) (apportionment of water of an interstate stream

between two states is a question of federal common law); Milwaukee

I, 406 U.S. at 105 n.6 (conflict over pollution discharged by one state

into water body that bordered four states); Michigan v. U.S. Army

Corps of Engineers, 667 F.3d 765, 767–68 (7th Cir. 2011) (action related to federal management of interstate waterway).

39a

iii. Foreign Affairs

Third, Defendants argue that the State’s claims are of

an inherently international nature because the regulation

of energy production and trade has important foreign policy implications and is accordingly within the exclusive

purview of the federal courts. Defendants claim that, because fossil fuels are strategically important domestic and

international resources, the State’s case is intended to

have significant impacts on United States foreign policy.

The Court declines Defendants’ invitation to interpret

this well-pleaded consumer protection action as a wholesale attack on all features of global fossil fuel extraction,

production, and policy.

iv. State Law

Finally, Defendants contend that federal jurisdiction

is proper because state law cannot control claims that

seek to regulate the interstate and international production and sale of fossil fuels. The State does, however, have

a clear interest in preventing fraud and deception and ensuring that citizens have access to accurate information in

the consumer marketplace. See e.g., Edenfield v. Fane,

507 U.S. 761, 768–69 (1993). Because the State’s claims fall

squarely within that area of state interest, the claims do

not open the door for substantive challenges to Minnesota’s (or any other state’s) emissions or water quality

standards. Neither do the claims alleged require the

Court to assess federal management of navigable waters

or weigh any issues of foreign policy. Accordingly, federal

common law is not applicable.

v. Federal Common Law as a Basis for

Removal

Even if the Court could conjure a separate claim arising from the State’s alleged environmental injuries that

40a

would fall within an area of federal common law, it still

may not confer jurisdiction. Defendants argue that federal common law provides a basis for federal jurisdiction

because (1) courts have recognized an exception to the

well-pleaded complaint rule where plaintiff’s putative

state law claims arise under federal common law, and (2)

federal common law presents a substantial federal question for the purposes of asserting jurisdiction under the

Grable doctrine. The Court will address the Grable doctrine in Section 2.

As noted above, the Supreme Court has established

two exceptions to the well-pleaded complaint rule: express provision of Congress and complete preemption.

Rivet, 522 U.S. at 475. A federal statute completely

preempts artfully pleaded state law claims if it “provide[s]

the exclusive cause of action for the claim asserted and

also set[s] forth procedures and remedies governing that

cause of action[,]” Beneficial Nat’l Bank v. Anderson, 539

U.S. 1, 8 (2003), and the statute’s pre-emptive force is “so

extraordinary that it converts an ordinary state commonlaw complaint into one stating a federal claim for purposes

of the well-pleaded complaint rule.” Caterpillar, Inc., 482

U.S. at 393 (quotation omitted). Complete preemption is

distinct from ordinary preemption, which provides a defense against state law claims, but does not establish a

pathway for federal jurisdiction. See Johnson v. MFA Petroleum Co., 701 F.3d 243, 247 (8th Cir. 2012).

Defendants suggest that complete preemption is not

required for removal because the State’s claims inherently arise under federal common law, and artful pleading

that disguises a federal cause of action is a separate and

distinct basis for removal than complete preemption.

However, neither the Eighth Circuit nor the Supreme

Court has found that implied federal common law claims

41a

establish a separate and independent exception to the

well-pleaded complaint rule. To the extent that the cases

Defendants cite carve out a third exception, this approach

lacks support in this circuit and is contrary to Supreme

Court precedent establishing the specific and defined parameters for federal jurisdiction over exclusively state

law claims. See Caterpillar, 482 U.S. at 392–94; Rivet, 522

U.S. at 474–75.

Further, in each of the cases Defendants cite to support this argument, plaintiffs’ precise claims were explicitly connected to or relied upon interpretations of a discrete area of federal law.3 Here, Defendants proffer multiple theories for how Plaintiff’s claims might be related

to federal common law but as noted above, each of these

theories lacks a substantial relationship to the actual

claims alleged and would require the Court to invent a

separate cause of action. That is beyond the Court’s discretion and is not a sound foundation for asserting federal

jurisdiction.

See In re Otter Tail Power Co., 116 F.3d 1207, 1215 (8th Cir. 1997)

(state law claims involved tribal regulatory authority and raised important questions of federal law requiring interpretation of treaties,

federal statutes, and the federal common law of inherent tribal sovereignty); Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 928. (5th

Cir. 1997) (claims arising out of “clearly established federal common

law cause of action against air carriers for lost shipments.”); Treiber

& Straub, Inc. v. UPS, Inc., 474 F.3d 379, 384 (7th Cir. 2007) (same);

Caudill v. Blue Cross and Blue Shield of N.C., 999 F.2d 74, 76–77 (4th

Cir. 1993) (applying federal jurisdiction to state-law claims pursuant

to Federal Employees Health Benefits Act), abrogated by Empire

HealthChoice Assur. Inc. v. McVeigh, 547 U.S. 677, 693 (2006); Battle

v. Seibels Bruce Ins. Co., 288 F.3d 596, 607 (claims requiring interpretation of insurance policies issued pursuant to the National Flood

Insurance Program governed exclusively by federal common law);

Newton v. Captial Assur. Co., Inc., 245 F.3d 1306, 1308–09 (11th Cir.

2001) (same).

3

42a

Because the Court finds that the claims alleged by the

State do not arise under federal common law and Defendants do not plausibly allege that the claims are completely

preempted, federal common law is not a sufficient independent basis for removal in this manner.

2. Grable Jurisdiction

Defendants’ second argument for removal is that this

action necessarily raises and requires the resolution of

substantial questions of federal law. Federal jurisdiction

may be asserted over a state-law claim if a federal issue

is: “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S. at 258 (citing Grable & Sons Metal

Products, Inc. v. Darue Eng. & Mf’g, 545 U.S. 308, 313–

14 (2005)). All four criteria, often referred to as the “Grable doctrine,” must be met to exercise federal jurisdiction.

Id.

i. Necessarily Raised

Defendants offer various avenues for the Court to find

that the claims necessarily raise disputed federal issues,

including foreign policy considerations, injuries to and

management of the navigable waters of the United States,

and transboundary pollution. Defendants also assert that

the claims implicate Congress’s careful policymaking balance between energy production and environmental protection, Defendants’ alleged influence over policymakers’

decisions, and constitutional questions of federalism.

The Court has already rejected Defendants’ arguments that the Complaint necessarily raises issues related

to management of navigable waters, transboundary pollution, or foreign policy. Contrary to Defendants’ assertions, the Complaint does not require interpretation of

43a

any federal environmental regulations or climate treaties,

nor does it ask a court to review federal agencies’ management of interstate waters. The Complaint only requires a

court to determine whether Defendants engaged in a misinformation campaign that ran afoul of Minnesota’s consumer protection statutes and common law, and whether

the State can demonstrate that those alleged violations of

discrete state laws caused harm to Minnesota and Minnesota consumers.

With regard to Congress’s careful balance between

energy and environmental priorities, Defendants do not

appear to argue that Congress sanctioned, directed, or

participated in the alleged scheme to defraud the public.

Accordingly, determining whether Defendants engaged

in a misinformation campaign in violation of Minnesota

law does not require a court to second-guess Congress’s

priorities regarding energy production and environmental protection.

Defendants further argue that the Complaint necessarily asserts federal claims to the extent that it alleges

that federal policymakers would have adopted different

energy and climate policies but-for Defendants’ alleged

misrepresentations. However, the Complaint includes

policymakers as a category of individuals who relied on

Defendants’ allegedly fraudulent misrepresentations in

deciding to continue to purchase and use Defendants’ fossil-fuel products. It does not argue that any particular policies or regulatory decisions would be different but-for

Defendants’ actions, and therefore does not implicate

Congress’ careful regulatory framework.

As to questions of federalism, Defendants allege that

the State seeks to supplant the federal government’s authority over federal questions and requires the Court to

consider the constitutional division of authority between

44a

the federal government and the states. This gravely overstates the State’s case, and it is unclear to the Court how

a state court adjudicating a set of claims that fall well

within a state’s consumer protection interest will necessarily challenge the foundations of our system of government.

Defendants also claim that proving the specific elements of the causes of action will require a court to wade

into disputed and substantial federal questions, including

whether fossil fuels are unreasonably dangerous, and

whether Defendants actually misrepresented the dangers

of climate change and the urgency required to mitigate

climate change. Again, Defendants overstate both the

State’s claims and what is required to prove them under

Minnesota law.4

It is not necessary for the Court to weigh Minnesota’s ability to

prove the elements of the state law claims here; it is Defendants’ burden to demonstrate that these claims warrant federal jurisdiction.

Nevertheless, the Court notes that adjudicating the State’s failure to

warn claims do not require a court to supplant its judgment for Congress’s regarding the safety and use of a product, as Defendants allege. While the danger of a product is raised in a failure to warn action, it is in the context of whether a warning was adequate under

state law, and does not require a court to determine whether the product should have been manufactured, sold, and consumed generally.

See, e.g., Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572, 582

(Minn. 2012) (explaining that the duty to warn consists of two duties:

(1) to give adequate instructions for safe use; and (2) to warn of dangers inherent in improper use); Frey v. Montgomery Ward & Co., 258

N.W.2d 782, 788 (Minn. 1977) (stating the rule that, where a manufacturer has “actual or constructive knowledge of danger to users, the

. . . the manufacturer has a duty to warn of such dangers.”); Gray v.

Badger Mining Corp., 676 N.W.2d 268, 274 (Minn. 2004) (explaining

conditions of legal adequacy for warnings). As to the State’s other

statutory claims under Minnesota’s various consumer protection and

trade practices statutes, Defendants’ own explanations of the law

demonstrate that the State’s claims only require proving that

4

45a

Although Defendants have identified ways in which

State’s claims may be tangentially related to federal law,

“it takes more than a federal element to open the ‘arising

under’ door” to federal jurisdiction. Empire Healthchoice,

547 U.S. at 701 (quoting Grable, 545 U.S. at 313). The federal issues that Defendants offer are not necessarily

raised by the Complaint’s state-law claims, and vindication of the State’s rights under state consumer protection

law does not “necessarily turn on some construction of

federal law.” Franchise Tax Board, 463 U.S. at 9.

ii. Actually Disputed and Substantial

Having found that the State’s action does not necessarily raise the federal issues offered by Defendants, the

Court need not proceed to address the other Grable factors. However, the Court notes that, while the complex

features of global climate change certainly present many

issues of great federal significance that are both disputed

and substantial, the State here does not bring claims capable of addressing the panoply of social, environmental,

and economic harms posed by climate change. The State’s

Complaint, far more simply, seeks to address one particular feature of the broader problem—Defendants’ alleged

misinformation campaign. The State’s case is constrained

by the causes of action asserted in its Complaint. Accordingly, the State must prove that its purported injuries are

related to Defendants’ alleged violations of state laws, and

any judicial remedies will likely be limited and responsive

to those specific claims. As a result, this action does not

present the doomsday scenario that Defendants present,

Defendants engaged in misinformation, deception, fraud, or otherwise unfair practices prohibited by state law; the claims alleged do

not require the Court to make determinations about fossil fuels or

federal energy policy in general.

46a

and neither does it necessarily raise the disputed and substantial issues of federal law that are required for the

Court to assert jurisdiction pursuant to Grable.

iii. Federal/State Balance

Moreover, the Court finds that its efforts to exercise

jurisdiction over this case may disrupt the balance between federal and state courts. In this case, the state court

will not need to reach any question of federal law to litigate these claims, nor will the state court’s holding “stand

as binding precedent for any future [consumer fraud or

climate-change injury] claim[.]” Gunn, 568 U.S. 264. The

State asks the court to determine only whether Defendants are liable for misleading the public and engaging in

consumer fraud under state law. For the federal court to

assert jurisdiction over these areas of traditional state jurisdiction may disrupt the balance between state and federal judicial authority.

Ultimately, Defendants question whether there can be

a state law action for alleged climate change injuries at all.

The Court does not disagree that assessing this type of

injury raises broad and complicated questions. However,

allegations of a complex injury do not create a pathway

for federal jurisdiction when the actual causes of action

arise only under state law. Accepting Defendants’ interpretation of Grable jurisdiction would require the Court

to make an exceptional logical leap and interpret this

Complaint as a full-scale assault on all aspects of fossil fuel

extraction, production, distribution, and use. That is not

what the Complaint asserts on its face, and it is not within

the Court’s authority to rewrite the Complaint and make

it so.

47a

3. Federal Officer Removal Statute

Defendants’ next proffered removal ground is the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which

requires that the removing defendant plausibly allege

that (1) the defendant is a “person” under the statute,

which is undisputed here; (2) the defendant was “acting

under” the direction of a federal officer when it engaged

in the allegedly tortious conduct; (3) there is a causal connection between the defendant’s actions and the official

authority; and (4) the defendant raises a “colorable” federal defense. See Jacks v. Meridian Res. Co., 701 F.3d

1224, 1230 (8th Cir. 2012). Relevant here is the federal

government contractor defense, which provides that suits

against defendants acting on behalf of federal officers

“may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense

depends on federal law[.]” Jefferson County v. Acker, 527

U.S. 423, 431 (1999).

i. “Acting Under”

Defendants first argue that they were “acting under”

the direction of federal officers in the production of fossil

fuels and the development of specialized military products

in support of multiple war efforts since at least World War

II. Second, Defendants argue that they have worked under federal direction to extract and produce critical energy resources for the nation, including exploration and

development of resources in the Outer Continental Shelf

and as operators and lessees of the Strategic Petroleum

Reserve infrastructure. The Court finds that these are

plausible ways in which Defendants may have acted under

the direction of federal officers, and because the Court

lacks information about whether Defendants’ alleged tortious conduct occurred when Defendants were acting

48a

under federal officer control, the Court will proceed with

the analysis.

ii. Connection to Claims

Historically, courts have considered the causal connection requirement to be a low hurdle. See, e.g., Graves

v. 3M Co., 447 F. Supp. 3d 908, 913 (D. Minn. 2020) (citing

Isaacson v. Dow Chem. Co., 517 F.3d 129, 137 (2d Cir.

2008). Indeed, in 2011, Congress amended the statute to

encompass suits “for or relating to any act under color of

[federal] office.” 28 U.S.C. § 1442(a)(1) (2011) (emphasis

added); see also In re Commonwealth’s Motion to Appoint Counsel Against or Directed to Def. Ass’n of Philadelphia, 790 F.3d 457, 471 (3d Cir. 2015), as amended

(June 16, 2015) (discussing the 2011 amendment). As a result of the amendment, all that is required is that the case

relates to an official act. For example, the Third Circuit

has found that the condition is met so long as Defendants’

conduct has a “connection” or “association” with a governmental act. In re Commonwealth’s Motion, 790 F.3d at

471. However, Defendants are still required to demonstrate that the act for which they are being sued occurred

at least in part “because of what they were asked to do by

the Government.” Graves, 447 F. Supp. 3d at 913. (emphasis in original) (quoting Isaacson v. Dow Chem Co., 517

F.3d 1129, 137 (2d Cir. 2008)).

Defendants argue that their fossil fuel activities satisfy the low threshold of connection to or association with

actions directed by the federal government. However, Defendants do not claim that any federal officer directed

their respective marketing or sales activities, consumerfacing outreach, or even their climate-related data collection. Accordingly, despite the low bar, there does not appear to be any direction from or connection to the federal

government related to the specific claims alleged here.

49a

iii. Colorable Defense

Although the lack of connection to a federal officer

alone is fatal to federal officer jurisdiction, the Court

notes that the fourth prong also fails. The federal officer

removal statute requires that the defendant identify a federal defense to the claim brought against them in state

court, but a defendant need only demonstrate that its defense is “colorable,” not “clearly sustainable.” Jacks v.

Meridian Res. Co., LLC, 701 F.3d 1224, 1235 (8th Cir.

2012). “For a defense to be considered colorable, it need

only be plausible; § 1442(a)(1) does not require a court to

hold that a defense will be successful before removal is appropriate.” United States v. Todd, 245 F.3d 691, 693 (8th

Cir. 2001).

In a footnote, Defendants claim a number of defenses,

including preemption under the Clean Air Act, the Commerce Clause, the First Amendment, and the foreign affairs doctrine, although they do not describe any particular defense or why it justifies application of the federal officer removal statute. As discussed with regard to the

Grable doctrine and federal common law, the State does

not raise claims related to environmental regulation or

foreign policy, therefore the Clean Air Act and foreign affairs doctrine do not pose colorable defenses. As to the

Commerce Clause and the First Amendment, Defendants

do not explain exactly how these defenses relate either to

the claims or actions taken at the direction of a foreign

officer. Because it is the Defendants’ burden to demonstrate a colorable defense now, and not “the mere possibility of some future evidence as the basis for removal,”

Graves, 447 F. Supp. 3d at 916 n.8, Defendants have not

met this hurdle to federal jurisdiction.

50a

Defendants have failed to satisfy three of the four elements of the federal officer removal statute, and the Court

cannot, therefore, exercise jurisdiction on this basis.

4. Outer Continental Shelf Lands Act

The Outer Continental Shelf Lands Act (“OCSLA”)

establishes original jurisdiction in federal district courts

over “cases and controversies arising out of, or in connection with (A) any operation conducted on the outer Continental Shelf, or which involves rights to such minerals, or

(B) the cancellation, suspension, or termination of a lease

or permit under this subchapter.” 43 U.S.C. § 1349(b)(1).

The outer Continental Shelf (“OCS”) includes all submerged lands lying seaward that are subject to the jurisdiction and control of the United States, but are outside of

any particular State. 43 U.S.C. §§ 1301(a), (f), 1331(a). The

Fifth Circuit has interpreted the jurisdictional grant under OCSLA broadly, only requiring a “but-for connection” between the cause of the action and OCS operation.

In re Deepwater Horizon, 745 F.3d 157, 163 (5th Cir.

2014).

Despite Defendants’ argument that their various activities on the OCS necessarily account for a significant

portion of the conduct attributable to alleged climate

change injuries in Minnesota, the State’s claims are

rooted not in the Defendants’ fossil fuel production, but in

its alleged misinformation campaign. Further, Defendants offer no basis for the Court to conclude that Minnesota’s alleged injuries would not have occurred but-for the

Defendants’ extraction activities on the OCS. Accord

Mayor and City Council of Baltimore v. BP, 388 F. Supp.

3d 538, 566–67 (D. Md. 2019) (rejecting federal jurisdiction under OCSLA based on lack of evidence of but-for

causation).

51a

Defendants also argue that, because the Complaint

seeks potentially billions of dollars in damages, restitution, and equitable relief, this action could substantially

discourage production on the OCS and undermine the viability of the federal government’s leasing program. This

argument is highly speculative and quite unlikely and

asks the Court to assume both the outcome of the suit in

state court and the highest damages award possible. This

type of speculation, however, does not establish a stable

ground for supporting removal, and the Court finds that

it lacks jurisdiction under OCSLA.

5. Federal Enclave

Defendants next argue that federal jurisdiction is appropriate because the action implicates federal enclaves

in four distinct ways: (1) by targeting the alleged impacts

of Defendants’ oil and gas operations, the Complaint necessarily sweeps in operations that occur on military bases

and other federal enclaves; (2) the Complaint’s allegations

of climate change injuries—including extreme heat, crop

damage, drought, flooding, infrastructural damage, and

disease—necessarily impact federal enclaves in Minnesota, including Fort Snelling Military Reservation, Federal Correctional Institute Sandstone, and Cass Lake Indian Hospital5; (3) the claims arise out of sales of certain

5

To establish a federal enclave, (1) the United States must acquire

land in a state for one of the purposes mentioned in the Enclave

Clause, (2) the state legislature must consent to the jurisdiction of the

federal government, and (3) the federal government must accept the

jurisdiction by filing a notice of acceptance with the state governor or

in another manner prescribed by the laws of the state. See 40 U.S.C.

§ 3112(b); Paul v. United States, 371 U.S. 245, 264 (1963); see also

U.S. Const. Art. I, § 8, cl. 17. Defendants state that these sites in Minnesota are federal enclaves, but do not provide documentation to satisfy the criteria.

52a

Defendants’ products within Minnesota, which include

sales on unspecified federal enclaves; and (4) to the extent

the Complaint asserts that federal policymakers would

have adopted different energy and climate policies absent

Defendants’ alleged misrepresentations, the Complaint

touches on conduct occurring in the District of Columbia,

a federal enclave.

“A federal enclave is created when a state cedes jurisdiction over land within its borders to the federal government and Congress accepts that cession. These enclaves

include numerous military bases [and] federal facilities.”

Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1235

(10th Cir. 2012). The constitutional grant of legislative

power to Congress over federal enclaves “bars state regulation without specific congressional action.” W. River

Elec. Ass’n, Inc. v. Black Hills Power & Light Co., 918

F.2d 713, 716 (8th Cir. 1990) (quoting Paul v. United

States, 371 U.S. 245, 263 (1963)).

“[I]n enclave jurisdiction, the determinative fact is the

precise location of the events giving rise to the claims for

relief.” Akin v. Big Three Indus., Inc., 851 F. Supp. 819,

824 (E.D. Tex. 1994) (emphasis omitted). When an alleged

injury has occurred both on and off the federal enclave,

federal jurisdiction is proper if the federal enclave was the

locus in which the tort claim arose. See Sultan v. 3M Co.,

No. 20-1747, 2020 WL 7055576, at *8 (D. Minn. Dec. 2,

2020). Even if some of the injuries occur inside while some

occur outside of the federal enclave, the federal interest

in exercising federal jurisdiction over the resultant claims

decreases. See Akin, 851 F. Supp. at 825 n.4.

The State specifically disclaims “injuries arising on

federal property and those that arose from Defendants’

provision of fossil fuel products to the federal government

for military and national defense purposes.” (Compl. ¶ 9

53a

n.4.) Defendants contend that this disclaimer is ineffective

because it offers no method to isolate injuries that arose

on federal property.6 However, the burden is on Defendants to demonstrate that federal enclaves are the locus in

which the claims arose, and they have not done so. See

Sultan, 2020 WL 7055576, at *4. While the various injuries alleged in the complaint may be felt on federal enclaves as much as they are felt anywhere, the Court requires a more substantive and explicit relationship between the actual claims alleged and a specific federal enclave to exercise jurisdiction.

6. Class Action Fairness Act

Defendants also raise the possibility of jurisdiction under CAFA, 28 U.S.C. § 1453(b), on the theory that the

case is actually a class action in which the Attorney General has brought a representative suit on behalf of a group

of similarly situated persons. CAFA expands federal diversity jurisdiction to allow for minimal diversity in class

Further, Defendants counter that the Attorney General cannot

sidestep federal jurisdiction by disclaiming damages for events that

took place in federal enclaves. However, both of the cases that Defendants cite for this proposition, Fung v. Abex Corp., 816 F. Supp.

569, 571 (N.D. Cal. 1992) and Richard v. Lockheed Martin Corp., 2012

WL 13081667, at *2 (D.N.M. Feb. 24, 2012), involve personal injury

claims in which the injuries largely occurred on federal enclaves. In

Fung, the injuries involved asbestos exposure on submarines that

were supervised by a contractor, but that were regularly docked at

United States naval bases (there, the Court found the Federal Officer

Removal Statute to be of greater significance than the enclaves); in

Richards, the injuries largely occurred on White Sands Missile

Range. Here, Defendants do not claim that any particular injury occurred on a federal enclave; they merely allege that the State cannot

effectively disclaim injuries on enclaves. Because neither party has

identified injuries that specifically occurred on a federal enclave,

these cases do not support Defendants’ argument that federal enclave

jurisdiction is proper here.

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actions filed under Federal Rule of Civil Procedure 23 or

similar state statute or rule of judicial procedure, 28

U.S.C. § 1332(d)(1)(B), in which more than $5 million is in

controversy and there are greater than 100 members of

proposed plaintiff classes. Id. § 1332(d)(5), (6); Pirozzi v.

Massage Envy Franchising, Inc., 938 F.3d 981, 983 (8th

Cir. 2019). Defendants argue that, while this case is not

styled as a class action, because it is brought in a representative capacity and seeks restitution and damages on

behalf of many potential plaintiffs, it resembles a purported class action and should therefore be considered a

class action under CAFA.

However liberally interpreted, federal jurisdiction under CAFA is limited to civil actions either filed under Rule

23 or brought under a similar state mechanism that authorizes class actions. In the Eighth Circuit, an action can

be interpreted as a class action subject to CAFA even

where Plaintiff has omitted reference to the authorizing

procedural rule or statute, but only where the state class

action rule actually governs the action. See Williams v.

Emp’rs Mut. Cas. Co., 845 F.3d 891, 901 (8th Cir. 2017).

Defendants have identified no state statute or procedural

rule that would classify a suit of this nature as a class action.7 Further, as the State points out, every court to have

The cases Defendants cite do not support their argument that the

present action should, or even could, be subject to CAFA. Both Addison Automatics, Inc. v. Hartford Cas. Ins. Co., 731 F.3d 740 (7th Cir.

2013) and Williams, 845 F.3d 891 are cases in which representatives

of certified classes attempted to make separate claims against the

same defendants as individuals. In both of those cases, the Courts

found that omitting reference to the existing class or applicable state

statute did not allow the defendant to dodge CAFA jurisdiction. Neither of these cases dealt with an action brought by an Attorney General on behalf of a state where no class action has been claimed or

certified. The case that Defendants characterize as most “instructive,” Song v. Charter Comm’ns. Inc., is an order on a Motion to

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addressed the application of CAFA to actions brought by

a State in parens patriae under state common law or consumer protection statutes has found that CAFA is not applicable.8 Because neither the Eighth Circuit nor any

Compel Arbitration and Stay Proceedings that does not substantively

deal with the CAFA issue at all, except to include a short footnote

noting that Plaintiff opposed CAFA jurisdiction, but the Court felt

that the jurisdictional determination was within its discretion. No. 17325, 2017 WL 1149286, at *1 n.1 (S.D. Cal. Mar. 28, 2017). Dart Cherokee Basin Op. Co. LLC v. Owens deals with a case filed as a class

action in state court, where the dispute was about whether the

amount in controversy met the $5 million CAFA threshold. 574 U.S.

81, 85 (2014). Defendants also cite Missouri ex rel. Koster v. Portfolio

Recovery Assocs., Inc., for the proposition that the Eighth Circuit has

not weighed in on the issue of CAFA application to parens patriae

actions. 686 F. Supp. 2d 942, 944–47 (E.D. Mo. 2010). However, the

court in Koster found that a request for treble damages did not convert a parens patriae action into either a “mass action” or a “class

action” under CAFA and declined to exercise federal jurisdiction. Id.

See Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161,

164 (2014) (parens patriae suit is not a “mass action” under CAFA);

Hawaii ex rel. Louie v. HSBC Bank Nevada, 761 F.3d 1027, 1040 (9th

Cir. 2014) (“Failure to request class status or its equivalent is fatal to

CAFA jurisdiction.”); Purdue Pharma L.P. v. Kentucky, 704 F.3d

208, 212–20 (2d Cir. 2013) (determining parens patriae action was not

“filed under” state statute or rule of judicial procedure “similar” to

federal class action rule, and thus action did not qualify as a “class

action” within the meaning of CAFA); Mississippi ex rel. Hood v. Au

Optronics Corp., 701 F.3d 796, 799 (5th Cir. 2012), rev’d on other

grounds, 571 U.S. 161 (2014) (parens patriae action to enforce state

law did not justify removal under CAFA); LG Display Co. v. Madigan, 665 F.3d 768, 770–72 (7th Cir. 2011) (case brought by Attorney

General was brought under state anti-trust law that did not impose

any of the familiar Rule 23 constraints); Washington v. Chimei Innolux Corp., 659 F.3d 842, 847–49 (9th Cir. 2011) (“[P]arens patriae

suits filed by state Attorneys General may not be removed to federal

court because the suits are not ‘class actions’ within the plain meaning

of CAFA.”); W. Va. ex rel. McGraw v. CVS Pharmacy, Inc., 646 F.3d

169, 174–78 (4th Cir. 2011); Massachusetts v. Exxon Mobil Corp., 462

F. Supp. 3d 31, 48–51 (D. Mass. 2020) (finding CAFA does not apply

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other court has applied CAFA to a State Attorney General’s representative action in this way, and because Defendants have not demonstrated that this action was

brought under or would meet the standards of either Rule

23 or any state rule for class certification, CAFA is not

applicable here.

7. Diversity Jurisdiction

Finally, Defendants argue that the Court has diversity

jurisdiction because the real parties in interest are the citizens of Minnesota, who are completely diverse from Defendants, and the amount in controversy undisputedly exceeds $75,000. Defendants argue that the Attorney General seeks compensation for alleged injuries related only

to Minnesota consumers, not the State in general, and

that the harm alleged is only to consumers who were influenced by the purported misinformation campaign, and

thus only applies to a subset of identifiable Minnesotans.

A state “may act as the representative of its citizens in

original actions where the injury alleged affects the general population of a State in a substantial way.” Maryland

v. Louisiana, 451 U.S. 725, 737 (1981). “There is no question that a State is not a ‘citizen’ for purposes of the diversity jurisdiction.” Moor v. Alameda Cty., 411 U.S. 693, 717

(1973). The Complaint alleges injury to all Minnesotans

and the Attorney General brings the action pursuant to

state statutes and under parens patriae authority on behalf of Minnesota citizens and consumers. Defendants

to parens patriae Attorney General actions); Town of Randolph v.

Purdue Pharma L.P., No. 19-10813, 2019 WL 2394253, at *4 (D.

Mass. June 6, 2019) (finding no federal jurisdiction under CAFA in

parens patriae opioid action); City of Galax, Virginia v. Purdue

Pharma, L.P., No. 18-617, 2019 WL 653010, at *5–6 (W.D. Va. Feb.

14, 2019) (same).

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have not offered any precedent or a cognizable argument

for treating this as anything other than an action by the

State of Minnesota, and therefore this action does not give

rise to federal diversity jurisdiction.

CONCLUSION ON MOTION TO REMAND

The Court recognizes that the vast threat of climate

change requires a comprehensive federal, and indeed,

global response. The complex environmental impacts of

climate change, and its far-reaching consequences for

health, economy, and social wellbeing of all people cannot

be understated. Given the stakes, the Court has some reluctance in remanding such significant litigation to state

court. But the Court is also mindful of the limits of its jurisdiction. If the State were—as Defendants suggest—

seeking a referendum on the broad landscape of fossil fuel

extraction, production, and emission, state court would

most certainly be an inappropriate venue. However, the

State’s action here is far more modest than the caricature

Defendants present. States have both the clear authority

and primary competence to adjudicate alleged violations

of state common law and consumer protection statutes,

and a complex injury does not a federal action make. The

limits written into the Complaint likely will restrict the ultimate possible recovery in this case and thus, its possible

impact on climate change, but that is the choice the State

has made. Because this Court does not have original jurisdiction over this action, and because the claims alleged

neither explicitly raise federal claims nor fall within one

of the exceptions to the well-pleaded complaint rule, the

Court must decline to exercise jurisdiction and remand

the matter to state court.

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II.

MOTION TO STAY

The FHR Defendants move the Court to stay proceedings until the Supreme Court issues a decision in BP p.l.c.

et al. v. Baltimore and makes a determination on the Petition for Certiorari in Chevron et al. v. City of Oakland et

al. (U.S., Jan. 8, 2021). The FHR Defendants argue that a

stay is warranted because these cases are similar to the

instant action and granting a stay would preserve judicial

resources by alleviating the Court’s need to decide issues

now that may be ruled on by the Supreme Court within a

few months. In addition, the FHR Defendants argue that

a stay is necessary to prevent serious hardship, particularly if the Court grants the Motion to Remand and the

Supreme Court’s decisions in either Baltimore or Oakland cast doubt on the remand. Finally, the FHR Defendants argue that the State cannot plausibly claim any

meaningful harm from such a brief stay. The State opposes this Motion.

Because the Court finds that neither pending matter

relied on by the FHR Defendants bear upon the Court’s

decision to remand the case for lack of federal jurisdiction,

the Court will deny the FRH Defendants’ Motion.

A. STANDARD OF REVIEW

The Court has the inherent power and broad discretion to stay proceedings to control its docket, to conserve

judicial resources, and to ensure that each matter is handled with economy of time and effort. Sierra Club v. U.S.

Army Corp of Engineers, 446 F.3d 808, 816 (8th Cir. 2006)

(citing Clinton v. Jones, 520 U.S. 681, 706 (1997)). A court

may consider factors, including “conservation of judicial

resources and the parties’ resources, maintaining control

of the court’s docket, providing for the just determination

of cases, and hardship or inequity to the party opposing

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the stay.” Frable v. Synchrony Bank, 215 F. Supp. 3d 818,

821 (D. Minn. 2016). The moving party bears the burden

of establishing that a stay is necessary. Jones, 520 U.S. at

708. When the stay is requested pending disposition of a

petition for certiorari, “[a]pplicants bear the burden of

persuasion on two questions: whether there is a balance

of hardships in their favor; and whether four Justices of

[the Supreme Court] would likely vote to grant a writ of

certiorari.” New York Times Co. v. Jascalevich, 439 U.S.

1304, 1304 (1978).

B. ANALYSIS

The question addressed by the Supreme Court in Baltimore is specific to the scope of appellate review of remand orders under 28 U.S.C. § 1447(d). That issue is not

present here, and it will arise only if Defendants appeal

the Court’s decision to grant the motion to remand. The

Eighth Circuit, like the Fourth Circuit, has interpreted 28

U.S.C. § 1447(d) to limit its scope of remand review to the

removal grounds established in 28 U.S.C. § 1442 (federal

officer removal) or § 1443 (civil rights claims). See Jacks,

701 F.3d at 1229; Thornton v. Holloway, 70 F.3d 522, 524

(8th Cir. 1995). Accordingly, the Supreme Court’s decision in Baltimore will only potentially affect this action at

the appellate stage, and does not bear upon a district

court’s determination.

While the petition in the Oakland case raises issues

that are more pertinent to the instant proceedings, the

FHR Defendants speculate that at least four Justices of

the Supreme Court are likely to vote to grant certiorari

because the Court granted certiorari in Baltimore. However, the scope of the Oakland defendants’ petition is

much broader than the narrow petition granted in Baltimore. The FHR Defendants generally assert that the

Ninth Circuit’s rejection of the federal common law as a

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basis for removal is contrary to Supreme Court precedent, but provide little else to support their position that

certiorari is likely to be granted.

Additionally, although the FHR Defendants argue

that a stay will not prejudice the State, the State counters

that a stay would be highly prejudicial to the public interest by delaying the proceedings for an indeterminate

amount of time for the sake of pending decisions that do

not bear upon the merits of this action. Of course, Defendants may appeal this decision which would result inevitably in a much longer delay. But balancing the hardships

between the two parties, and not knowing whether the

Defendants will appeal the remand, the Court finds that

the State would likely be more prejudiced by a stay than

Defendants would be by proceeding, particularly because

Defendants cannot anticipate any relevant relief at this

juncture related to the Baltimore case and the status of

the Oakland petition is still very much uncertain. Ultimately, the possible prejudice to both sides is quite similar, and the Court will choose to try to move the case along

as quickly as possible.

The Court therefore finds that Defendants have not

met their burden of persuasion that a stay is necessary

and denies the Motion.

ORDER

Based on the foregoing, and all the files, records, and

proceedings herein, IT IS HEREBY ORDERED that:

1. Plaintiff’s Motion to Remand [Docket No. 32] is

GRANTED.

2. FHR Defendants’ Motion to Stay [Docket No. 56]

is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY

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DATED: March 31, 2021

at Minneapolis, Minnesota.

/s/ John R. Tunheim

JOHN R. TUNHEIM

Chief Judge

United States District Court