Amicus Curiae Brief — American Petroleum Institute, et al., Petitioners v. Minnesota

Supreme Court briefSep 21, 2023

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No. 23-168

In the

Supreme Court of the United States

_______________

AMERICAN PETROLEUM INSTITUTE, ET AL.,

Petitioners,

MINNESOTA,

Respondent.

_______

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

______________

BRIEF OF AMERICAN FREE ENTERPRISE

CHAMBER OF COMMERCE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

_______________

WILLIAM P. BARR

TORRIDON LAW PLLC

2311 WILSON BLVD,

SUITE 640

ARLINGTON, VA 22201

JONATHAN BERRY

Counsel of Record

R. TRENT MCCOTTER

MICHAEL B. BUSCHBACHER

JARED M. KELSON

JAMES R. CONDE

BOYDEN GRAY PLLC

801 17TH ST NW, SUITE 350

WASHINGTON, DC 20006

(202) 955-0620

jberry@boydengray.com

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT .................................... 1

REASONS FOR GRANTING THE PETITION ........ 4

II.

Federal Law Governs Minnesota’s Attempt to

Impose a Global Tax on Carbon. ........................ 4

The Federal Law of Transboundary Air

Pollution Is Exclusive.................................. 4

The Federal Law of Transboundary Air

Pollution Is Still Exclusive.......................... 6

Minnesota’s Suit Belongs in Federal Court. ...... 8

Petitioners’ Jurisdictional Argument Is

Consistent With the Original Meaning of

§ 1331. .......................................................... 9

The Decision Below Deprives Petitioners of

a Neutral Forum........................................ 16

III. This Case Is Extraordinarily Important. ......... 19

CONCLUSION ......................................................... 22

TABLE OF AUTHORITIES

Cases

Allstate Ins. Co. v. Hague,

449 U.S. 302 (1981) ................................................. 5

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ............................................. 7, 8

Ames v. Kansas,

111 U.S. 449 (1884) ............................................... 10

Beneficial Nat’l Bank v. Anderson,

539 U.S. 1 (2003) ............................................. 3, 8, 9

Caterpillar Inc. v. Williams,

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

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021)......................... 2, 6, 7, 19

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019) ........................................... 18

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) ................................................... 4

Grable & Sons Metal Prods., Inc. v. Darue Eng’g &

Mfg., 545 U.S. 308 (2005) ...................................... 15

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ................................................... 6

Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487 (1941) ................................................. 5

Little York Gold Washing & Water Co. v. Keyes,

96 U.S. 199 (1877) ............................................. 8, 10

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816) ................................................... 9

iii

Merrell Dow Pharms. Inc. v. Thompson,

478 U.S. 804 (1986) ......................................... 16, 18

Metcalf v. City of Watertown,

128 U.S. 586 (1888) ............................................... 14

Minnesota v. Am. Petrol. Inst.,

63 F.4th 703 (8th Cir. 2023)................ 1, 3, 6, 12, 15

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................. 5

R.R. Co. v. Mississippi,

102 U.S. 135 (1880) ................................... 10, 11, 13

Republican Party of Minn. v. White,

536 U.S. 765 (2002) ............................................... 17

Sackett v. EPA,

598 U.S. 651 (2023) ................................................. 7

Stokeling v. United States,

139 S. Ct. 544 (2019) ............................................. 10

Tennessee v. Union & Planters’ Bank,

152 U.S. 454 (1894) ..................................... 3, 13, 14

United States v. Standard Oil Co. of Cal.,

332 U.S. 301 (1947) ................................................. 6

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................. 4

Constitutional Provisions

U.S. Const. art. II, § 2, cl. 2....................................... 16

U.S. Const. art. III, § 1 .............................................. 16

U.S. Const. art. III, § 2, cl. 1 ..................................... 10

Minn. Const. art. VI, § 7 ........................................... 17

Statutes

28 U.S.C. § 1441(d)................................................ 4, 20

28 U.S.C. § 1604 ........................................................ 20

Act of Mar. 3, 1875, ch. 137,

18 Stat. 470.................................................. 9, 10, 12

Act of Mar. 3, 1887, ch. 373, 24 Stat. 552, as

amended by Act of Aug. 13, 1888, ch. 866,

25 Stat. 433...................................................... 12, 14

Judiciary Act of 1925, Pub. L. No. 68-415,

43 Stat. 936............................................................ 19

Other Authority

2 Cong. Rec. 4986 (1874) ........................................... 10

Alexander T. Tabarrok & Eric A. Helland, The

Effect of Electoral Institutions on Tort Awards,

4 Am. L. & Econ. Rev. 341 (2002) ......................... 17

Bradford R. Clark & Anthony J. Bellia,

General Law in Federal Court,

54 Wm. & Mary L. Rev. 655 (2013) ........................ 6

Brian T. Fitzpatrick, The Constitutionality of Federal

Jurisdiction-Stripping Legislation and the History

of State Judicial Selection and Tenure,

98 Va. L. Rev. 839 (2012) ................................ 16, 17

Caleb Nelson, A Critical Guide to Erie

Railroad Co. v. Tompkins,

54 Wm. & Mary L. Rev. 921 (2013) ........................ 5

Clifford Krauss, As Western Oil Giants Cut

Production, State-Owned Companies Step Up,

N.Y. Times (Oct. 14, 2021). ................................... 19

Climate Accountability Inst., Carbon Majors: Update

of Top Twenty Companies 1965–2017,

https://perma.cc/95YV-RY97 ................................. 20

Cold-Related Deaths, Minnesota Dep’t of Health,

https://perma.cc/SK7C-5KCG (Sept. 12, 2023) ...... 2

David Fickling & Elaine He, The Biggest

Polluters Are Hiding in Plain Sight,

Bloomberg (Sept. 30, 2020) ................................... 20

Donald L. Doernberg, There’s No Reason for It; It’s

Just Our Policy: Why the Well-Pleaded Complaint

Rule Sabotages the Purposes of Federal Question

Jurisdiction, 38 Hastings L.J. 597 (1987) ............ 12

Energy Info. Admin., Monthly Energy (2022) .......... 21

Erin A. O’Hara & Larry E. Ribstein,

The Law Market (2009) ......................................... 16

Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527 (1947) ............ 10

Henry J. Friendly, In Praise of Erie—

And of the New Federal Common Law,

39 N.Y.U. L. Rev. 383 (1964) .................................. 6

Henry M. Hart, Jr., The Relations Between State and

Federal Law, 54 Colum. L. Rev. 489 (1954) ........... 5

Jeffrey S. Sutton & Brittany Jones, The Certiorari

Process and State Court Decisions,

131 Harv. L. Rev. F. 167 (2018) ............................ 19

Jennifer Hiller, New York City Sues Exxon, BP,

Shell, in State Court Over Climate Change,

Reuters (Apr. 22, 2021) ......................................... 18

John Bouiver, A Law Dictionary

(15th ed. 1883) ................................................. 11, 12

Joseph Chitty, A Treatise on Pleading

(13th ed. 1859) ....................................................... 11

Michael S. Greve, The Upside-Down

Constitution (2012) .................................................. 5

Patrick R. P. Heller & David Mihalyi, Nat’l Resource

Governance Inst., Massive and Misunderstood:

Data Driven Insights into National Oil Companies

(Apr. 2019) ............................................................. 19

The Federalist No. 17 (Alexander Hamilton) ............ 5

The Federalist No. 80 (Alexander Hamilton)....... 7, 16

Richard Neely, Justice, West Virginia Supreme

Court, The Product Liability Mess: How Business

Can Be Rescued from the Politics of State Courts

(1988) ..................................................................... 17

Stephen E. Sachs, Pennoyer Was Right,

95 Tex. L. Rev. 1249 (2017)..................................... 5

INTEREST OF AMICUS CURIAE 1

Formed in 2022, the American Free Enterprise

Chamber of Commerce (“AmFree”) is a 501(c)(6)

organization that represents hard-working entrepreneurs and businesses across all sectors. AmFree’s

members are vitally interested in U.S energy security

and the continued viability of our commercial republic.

AmFree recently launched the Center for Legal

Action (“CLA”) to represent these interests in court.

CLA is spearheaded by two-time former U.S. Attorney

General Bill Barr. Under Attorney General Barr’s

leadership, the Department of Justice argued that

federal common law governs attempts to impose a

global carbon tax through litigation. Minnesota’s contrary view is not just wrong, it gravely threatens the

energy security of the United States, and therefore,

our national sovereignty.

SUMMARY OF ARGUMENT

“There is no hiding the obvious, and Minnesota

does not even try: it seeks a global remedy for a global

issue.” Minnesota v. Am. Petrol. Inst., 63 F.4th 703,

717 (8th Cir. 2023) (Stras, J., concurring). Minnesota

alleges that Petitioners, by selling fossil fuels, have

changed “the Earth’s energy balance.” Complaint

¶ 53. This has, it says, made Minnesota’s climate

1 Amicus curiae provided timely notice of intent to file this brief

to all parties. No party’s counsel authored this brief in whole or

in part, and no person or entity other than amicus or its counsel

made a monetary contribution intended to fund its preparation

or submission.

warmer, especially during the winter. Id. ¶ 139.

Minnesota alleges the warmer climate and other

effects have harmed the state and its citizens, and

that Minnesota has paid for this harm, unjustly

enriching Petitioners. Id. ¶¶ 197–98. 2 As a remedy,

Minnesota seeks “restitution,” among other things,

and an order requiring Petitioners “to disgorge all

profits made as a result of their [allegedly] unlawful

conduct.” Id. ¶¶ 248–49. In short, through this litigation, Minnesota wants to impose a global carbon tax

on Petitioners’ alleged “excess profits.”

Amicus writes to make three critical points.

1. Minnesota’s planetary power grab runs headlong into the exclusive federal law of transboundary

air pollution. Minnesota argues that by displacing the

federal common law, the Clean Air Act tacitly empowered states to enter a field they have never occupied,

allowing them for the first time to regulate transboundary emissions fifty times over. The Second

Circuit got it right: “Such an outcome is too strange to

seriously contemplate.” City of New York v. Chevron

Corp., 993 F.3d 81, 98–99 (2d Cir. 2021). Other courts,

however, have blessed this extraordinary theory of

implicit federal abdication to states. Pet. 17–21. The

Court should grant certiorari to resolve this important

split.

2 Minnesota alleges 60 heat-related deaths in the state from 2000

to 2017. Complaint ¶ 140. Minnesota omits that the number of

cold-related deaths is nearly an order of magnitude higher. ColdRelated Deaths, Minnesota Dep’t of Health, https://perma.cc/

SK7C-5KCG (Sept. 12, 2023).

2. The well-pleaded complaint rule is no obstacle.

Minnesota’s complaint is a clear case of artful pleading, long recognized by this Court. To be sure, some

dissenting Justices have criticized the artful pleading

doctrine as an “act of jurisdictional alchemy.”

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 14

(2003) (Scalia, J., dissenting). But the only thing that

belongs in the Occulta Jurisprudentia is the wellpleaded complaint rule itself. As explained in detail

below, the well-pleaded complaint rule rests on a seriously mistaken construction of the 1887 removal

amendment. See Tennessee v. Union & Planters’ Bank,

152 U.S. 454, 464–72 (1894) (Harlan, J., dissenting).

It has no basis in law, and it makes no sense as policy.

As Judge Stras rightly observed, “[t]here is no reason

for the removal rules to operate in such a confounding

way.” Minnesota, 63 F.4th at 720 (Stras, J., concurring).

Petitioners’ rule brings the Court closer to, not

further from, the original meaning of the law. The

Court should grant certiorari to make clear that

Petitioners’ reading of the law is correct or, in the

alternative, it should grant certiorari to overrule the

well-pleaded complaint rule.

3. If applied to deny jurisdiction here, the wellpleaded complaint rule would effectively deprive

defendants of a neutral federal forum to adjudicate a

federal defense. No federal system should tolerate

that answer, and no law compels it.

The stakes of this litigation could not be higher.

If Minnesota and like-minded states and localities

succeed in imposing an unwieldy patchwork of de

facto carbon taxes on private energy firms, then the

United States would soon become dependent on

energy companies owned by foreign states to meet its

energy needs, since those energy companies alone can

claim sovereign immunity and are free to remove

under 28 U.S.C. § 1441(d). Of course, many of those

companies are controlled by countries hostile to the

United States.

The Court’s review is urgently needed to stop this

grave threat to U.S energy security. The Court should

not be “willing to stand on the dock and wave goodbye

as [state courts] embark[ ] on this multiyear voyage of

discovery.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302,

328 (2014).

REASONS FOR GRANTING THE PETITION

Federal Law Governs Minnesota’s Attempt

to Impose a Global Tax on Carbon.

This petition raises an important question of federal jurisdiction. Lurking beneath the jurisdictional

surface, however, is an important dispute about the

nature of federal common law, and its relationship to

federal and state law. The artful pleading doctrine

urged by Petitioners applies only if this dispute is

inherently federal. We therefore turn first to that logically antecedent question.

A. The Federal Law of Transboundary Air

Pollution Is Exclusive.

In Erie Railroad Company v. Tompkins, this

Court held that Congress, and the federal courts, have

“no power to declare substantive rules of common law

applicable in a state.” 304 U.S. 64, 78 (1938). On some

accounts, by freeing states from general common law,

Erie empowered states to compete for the “affection”

of mobile citizens in “the ordinary administration of

. . . civil justice,” The Federalist No. 17 (Alexander

Hamilton), and “try novel social and economic experiments without risk to the rest of the country.” New

State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932). 3

Not long after Erie, the Court made clear that

state forum law would also generally govern choice-oflaw disputes, Klaxon Co. v. Stentor Elec. Mfg. Co., 313

U.S. 487, 496 (1941), even when a state decision is

“plainly unsound as a matter of normal conflicts law.”

Allstate Ins. Co. v. Hague, 449 U.S. 302, 324 (1981)

(Stevens, J., concurring). That is so even though

conflict-of-law “questions are essentially federal, in

the sense that they involve, by hypothesis, more than

one state.” Henry M. Hart, Jr., The Relations Between

State and Federal Law, 54 Colum. L. Rev. 489, 514

(1954).

Taken too far, Erie and Klaxon would have

turned every “interstate dispute into a race to the

courthouse, with each federal court equally obliged to

favor the state in which it sits.” Stephen E. Sachs,

Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1259

(2017). That is “absurd.” Id. And it is certainly not how

Erie itself was originally understood. “On the same

day that Erie declared ‘[t]here is no federal general

common law,’ the Supreme Court applied ‘federal

common law’ in Hinderlider v. La Plata River &

Cherry Creek Ditch Co. to determine an interstate

boundary and apportion water in an interstate

3 For a less cheerful account of Erie, see Michael S. Greve, The

Upside-Down Constitution 221–42 (2012); see also Caleb Nelson,

A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. &

Mary L. Rev. 921, 922 (2013) (criticizing Erie’s “shaky” legal reasoning).

stream.” Bradford R. Clark & Anthony J. Bellia,

General Law in Federal Court, 54 Wm. & Mary L. Rev.

655, 712 (2013).

From the day it was decided, then, Erie’s domain

has never been unlimited. It does not include, and has

never included, “matters essentially of federal character.” United States v. Standard Oil Co. of Cal., 332

U.S. 301, 307 (1947). Instead, in such disputes, “‘federal common law’” governs. Id. at 308.

Carved out of Erie’s domain are disputes that

“deal with air and water in their ambient or interstate

aspects.” Illinois v. City of Milwaukee, 406 U.S. 91,

103 (1972). This is such a case. City of New York, 993

F.3d at 91–92; Minnesota, 63 F.4th at 718–19 (Stras,

J., concurring).

Although narrow in breadth, federal common law

is exhaustive in depth. It is a source of “arising under”

jurisdiction and replaces state law. City of Milwaukee,

406 U.S. at 99–100; City of New York, 993 F.3d at 90.

This clears the way for a “truly uniform” national law,

“binding in every forum.” Henry J. Friendly, In Praise

of Erie—And of the New Federal Common Law, 39

N.Y.U. L. Rev. 383, 405 (1964). Minnesota’s air pollution claims therefore arise, if at all, under federal law.

The answer is “so beautifully simple, and so simply

beautiful, that we must wonder why” federal courts

are divided on this important question. Id. at 422; Pet.

17–21.

B. The Federal Law of Transboundary Air

Pollution Is Still Exclusive.

Minnesota, the current Solicitor General, and

several federal courts have a different take on federal

common law. It is neither simple nor beautiful. It is

an Erie nightmare.

The Solicitor General, like Minnesota, weaves an

intentionally complicated statutory narrative, arguing that although federal common law may have once

foreclosed Minnesota’s claims, that is no longer so.

Because Congress displaced federal common law with

the Clean Air Act, see Am. Elec. Power Co. v.

Connecticut, 564 U.S. 410, 423 (2011) (“AEP”), the

Solicitor General argues it has also tacitly empowered

fifty state courts to retroactively impose a carbon tax

on sales in other jurisdictions, all over the globe. See

Brief for the United States as Amicus Curiae at 11–

16, Suncor Energy (U.S.A.) Inc. v. Bd. of Cnty.

Commissioners of Boulder Cnty (No. 21-1550). The

Clean Air Act, on this account, silently delegated

extraordinary power to state courts, far beyond Erie’s

domain. City of New York, 993 F.3d at 99.

“Such an outcome is too strange to seriously contemplate.” Id. at 98–99. Empowering state courts to

govern fossil fuel sales and emissions on a planetary

scale does not advance state competition without risk

to the country. Instead, it advances a race to the courthouse, pervasive interstate exploitation, and “a hydra

in government, from which nothing but contradiction

and confusion can proceed.” The Federalist No. 80

(Alexander Hamilton).

The Solicitor General’s argument to the contrary

is squarely foreclosed by the federalism canon, which

“requires Congress to enact exceedingly clear language if it wishes to significantly alter the balance

between federal and state power.” Sackett v. EPA, 598

U.S. 651, 679 (2023) (cleaned up). Anything implied,

by definition, cannot satisfy this standard. Therefore,

if an issue was beyond the authority of Minnesota

before the Clean Air Act, it remains out of reach now.

The Clean Air Act could not implicitly empower states

to regulate in this domain.

A different question would arise if Minnesota

sought damages for hydrocarbon sales solely within

Minnesota. In such a case, the question may be

whether the Clean Air Act preempts the law of

Minnesota. See AEP, 564 U.S. at 429. Because

Minnesota’s complaint seeks to effectively tax fossil

fuel sales and emissions worldwide, however, references to Clean Air Act preemption fall flat. This case

is not about the Clean Air Act’s preemptive scope. It

is about the inherently federal nature of transboundary emissions, and the Clean Air Act’s failure to delegate extravagant extraterritorial power to Minnesota.

This question is worthy of certiorari.

II. Minnesota’s Suit Belongs in Federal Court.

Having answered the antecedent question, we

turn to the jurisdictional issue. The question is

whether state litigants may relegate federal claims to

their preferred state tribunals by using state-law labels.

The answer should be no. Whether a complaint is

well-pleaded does not turn on labels. As this Court has

noted, federal courts have jurisdiction when a claim,

“even if pleaded in terms of state law, is in reality

based on federal law.” Beneficial Nat’l Bank, 539 U.S.

at 8. “The office of pleading is to state facts, not conclusions of law. It is the duty of the court to declare

the conclusions, and of the parties to state the premises.” Little York Gold Washing & Water Co. v. Keyes,

96 U.S. 199, 202 (1877). A complaint that uses state-

law labels to describe a claim inherently governed by

federal law is not well-pleaded.

Some dissenting Justices, to be sure, have criticized the artful pleading doctrine as an “act of jurisdictional alchemy.” Beneficial Nat’l Bank, 539 U.S. at

14 (Scalia, J., dissenting). This criticism is misplaced.

As explained next, the well-pleaded complaint rule

rests on a seriously mistaken interpretation of the

1887 amendment to the removal statute that guts the

core purpose of removal: ensuring “the defendant” has

“equal rights” to a federal forum when raising a federal defense. Martin v. Hunter’s Lessee, 14 U.S. 304,

348–49 (1816).

A. Petitioners’ Jurisdictional Argument Is

Consistent With the Original Meaning of

§ 1331.

The Court has based the well-pleaded complaint

rule on the 1887 amendment to the 1875 removal law.

See Caterpillar Inc. v. Williams, 482 U.S. 386, 392–93

(1987). But the Court’s interpretation of the 1887

amendment was badly mistaken. To explain why, we

need to go back to 1875.

The 1875 Act. The 1875 grant of original federal

question jurisdiction, from which § 1331 descends,

extended the jurisdiction of federal circuit courts to

“all suits of a civil nature at common law or in equity

. . . arising under the Constitution or laws of the

United States, or treaties made, or which shall be

made, under their authority,” as long as the disputed

amount exceeded $500. Act of Mar. 3, 1875, ch. 137,

§ 1, 18 Stat. 470, 470.

Similarly, using parallel jurisdictional text, the

statute provided for removal of the same cases from

state court by “either party.” Id. § 2. Except for the

phrase “suits of a civil nature,” clearly meant to keep

criminal cases in state court, the text tracked the constitutional grant of “arising under” jurisdiction. U.S.

Const. art. III, § 2, cl. 1.

When a legal phrase is “obviously transplanted

from another legal source . . . it brings the old soil with

it.” Stokeling v. United States, 139 S. Ct. 544, 551

(2019) (quoting Felix Frankfurter, Some Reflections

on the Reading of Statutes, 47 Colum. L. Rev. 527, 537

(1947)). The text of the 1875 law was transplanted

from Article III, so it vested circuit courts with “arising under” jurisdiction to the maximum extent provided by the Constitution, excepting criminal cases

and disputes involving $500 or less. That is how this

Court contemporaneously interpreted the law in case

after case. See, e.g., Little York Gold Washing & Water

Co., 96 U.S. at 201; Railroad Co. v. Mississippi, 102

U.S. 135, 140 (1880); Ames v. Kansas, 111 U.S. 449,

462–63 (1884); see also 2 Cong. Rec. 4986, 4987 (1874)

(statement of Sen. Carpenter) (“This bill gives precisely the power which the Constitution confers—

nothing more, nothing less.”).

The 1875 law included one other restriction.

Federal courts had to dismiss a suit if “such suit does

not really and substantially involve a dispute or controversy properly within the” court’s jurisdiction. § 5,

18 Stat. at 472. Thus, a defendant could not use federal law labels to remove a state-law case from state

court. Little York Gold Washing & Water Co., 96 U.S.

at 201. But a defendant could remove a case to federal

court by raising a federal question in an answer or the

petition for removal, so long as the answer or petition

satisfied the requirements of “good pleading.” Id. at

203 (quoting 1 Joseph Chitty, A Treatise on Pleading

213 (13th ed. 1859)).

Soon after, in an opinion by Justice Harlan, the

Court confirmed that a federal defense provided a

basis for removal. Railroad Co., 102 U.S. at 135–36.

Mississippi filed suit in state court, seeking to compel

a railroad to remove a bridge. Id. at 137–38. The

railroad answered by asserting a federal defense and

seeking removal. Id. at 138–39.

The Court held this was “plainly a case which, in

the sense of the Constitution, and the statute of 1875,

arises under the laws of the United States.” Id. at 140

(emphasis omitted). As the Court observed, suits arise

under the laws of the United States even if the federal

“right or privilege” is raised as a “defence of the party.”

Id. at 141.

Justice Miller dissented. In his view, the use of

“suit of a civil nature” instead of “cases” in the 1875

law meant that removal was limited to a “cause of

action” that “is founded on” federal law. Railroad Co.,

102 U.S. at 143–44 (emphasis omitted). No other

Justice joined his dissent.

For good reason. Justice Miller’s view rested on a

thin reed. The phrase “all suits of a civil nature”

evidently sought to prevent the removal of criminal

cases to federal court, not to impose a novel “cause of

action” test. The word “suit” meant “[a]n action.” Suit,

2 John Bouiver, A Law Dictionary 683 (15th ed. 1883).

And in “common use,” an action included “all the

formal proceedings in a court of justice attendant

upon the demand of a right,” including “the answer of

the defendant.” Action, 1 John Bouiver, A Law

Dictionary 111–12. A restrictive reading of “suit” also

did not make sense of the removal statute’s operation,

which also authorized plaintiffs to remove. § 2, 18

Stat. at 470–71. “The only logical explanation is that

plaintiffs were given removal power in the event that

the answer or reply raised a federal question.” Donald

L. Doernberg, There’s No Reason for It; It’s Just Our

Policy: Why the Well-Pleaded Complaint Rule

Sabotages the Purposes of Federal Question

Jurisdiction, 38 Hastings L.J. 597, 602 (1987).

In sum, under the 1875 law, a defendant had

equal rights to a federal forum when raising a federal

defense, consistent with the purpose of removal.

Minnesota, 63 F.4th at 720 (Stras, J., concurring). In

fact, a properly pleaded federal defense even allowed

the plaintiff to invoke federal jurisdiction. § 2, 18 Stat.

at 470–71.

The 1887 Act. In 1887, Congress amended the

removal provision as follows:

That any suit of a civil nature, at law or in

equity, arising under the Constitution or laws

of the United States, or treaties made, or

which shall be made, under their authority, of

which the circuit courts of the United States

are given original jurisdiction by the preceding section, . . . may be removed by the defendant or defendants therein to the circuit court

of the United States for the proper district.

Act of Mar. 3, 1887, ch. 373, § 2, 24 Stat. 552, 553, as

amended by Act of Aug. 13, 1888, ch. 866, 25 Stat. 433.

This amendment included two notable changes. First,

plaintiffs could no longer remove to federal court.

Second, jurisdiction was limited by the “preceding

section” granting original jurisdiction, which required

more than $2000 in controversy. Otherwise, Congress

recodified the jurisdictional text unchanged, showing

it did not mean to depart from “firmly established”

precedent. Railroad Co., 102 U.S. at 141.

The Mistake. This Court thought otherwise. In

Tennessee v. Union & Planters’ Bank, the Court held

that the 1887 amendment codified “Mr. Justice

Miller[’s]” dissenting view. 152 U.S. at 462. The Court

offered two reasons.

First, the Court relied on the “general policy” of

the law “to contract the jurisdiction” of federal courts.

Id. But zeitgeist, real or not, does not amend the law.

Second, the Court read the use of “preceding

section” in § 2 as doing more—far more—than

incorporating the amount in controversy from § 1. The

Court read this phrase to mean removal was now

limited to cases that could have been brought by a

plaintiff in federal court. Id. at 461–62. And, because

a plaintiff in an action at law could not seek federal

jurisdiction by anticipating a federal defense, id. at

460–61, federal jurisdiction premised on a defense

was out. This elevated a pleading rule for plaintiffs

into a novel jurisdictional rule for defendants seeking

removal, eviscerating the core purpose of federal

removal along the way.

Justice Harlan, joined by Justice Field, dissented

from this construction of the statute, which had not

been “suggested at the bar” or “before suggested in

any case.” Id. at 469. No wonder. Why would Congress

permit removal but then make such a strange

“discrimination against a defendant”? Id. at 471.

Under the majority opinion, Justice Harlan observed,

defendants could sometimes obtain jurisdiction by

raising an anticipatory defense in a bill of equity, but

not by raising a defense in an action at law. Id. at 471–

72. This made little sense. Instead, the logical reading

of the removal law’s cross-reference is that it sought

to incorporate the amount in controversy from § 1, not

to radically alter removal. Id.

The Court’s contrary view rested on a confused

reading of § 1. The grant of original jurisdiction in § 1

was also co-extensive with the Constitution, just like

§ 2. So it made no sense to say that a reference to § 1

restricted § 2.

To be sure, plaintiffs suing directly in federal

court could not invoke jurisdiction under § 1 by

anticipating a federal defense. Metcalf v. City of

Watertown, 128 U.S. 586, 589 (1888) (Harlan, J.). But

that is because defendants, like plaintiffs, get to make

their own arguments. Therefore, a plaintiff suing in

federal court could not present a properly pleaded

federal defense “at the time the jurisdiction of the

circuit court of the United States attached.” Id.

Defendants, however, could do precisely that by

including a federal defense when filing a petition for

removal in state court. Under § 3 of the 1887 law,

defendants were permitted to delay removing a case

until the deadline for filing an answer, and a petition

for removal was filed in state court. 25 Stat. at 435.

And under § 3, once the state record was transferred

to federal court, “the cause shall then proceed . . . as if

it had been originally commenced” in federal court. 25

Stat. at 435. Because the record would contain a

properly raised federal question when jurisdiction

attached in federal court, there was no reason to deny

federal jurisdiction.

In short, Union & Planters’ Bank transmogrified

a rule of pleading for plaintiffs into a novel

jurisdictional rule that discriminates against

defendants and defeats the core purpose of removal to

federal court: protecting the equal federal rights of the

defendant.

***

Justice Harlan was right. Union & Planters’

Bank was wrong. For those who place less weight on

stare decisis, the solution is simple: Enforce “the

original meaning of § 1331’s text.” Grable & Sons

Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.

308, 320 (2005) (Thomas, J., concurring). The

jurisdictional rule would be “clear,” and all federal

defenses would get jurisdiction. Id. at 321. It is not too

late to get the law right. See Transcript of Oral

Argument at 38:7–10, United States. v. Texas, 143 S.

Ct. 1964 (2023) (22-58) (“I don’t think it’s ever too late

for this Court to give the statute its proper

construction when you actually look at its text,

context, and history.”).

For those who place strong weight on stare

decisis, however, the artful pleading doctrine urged by

Petitioners at least brings the Court closer to the

original meaning of the law, not further away from it.

The Court should therefore grant certiorari to

embrace the modest artful pleading rule urged by

Petitioners. See Minnesota, 63 F.4th at 720 (Stras, J.,

concurring). Failure to do so, as explained next, would

deprive Petitioners of a neutral forum.

B. The Decision Below Deprives Petitioners

of a Neutral Forum.

The Framers knew “it would be natural that

[state] judges, as men, should feel a strong predilection to the claims of their own government.” The

Federalist No. 80 (Alexander Hamilton). Therefore,

the Constitution extends jurisdiction over a range of

cases to federal courts, “which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing

[their] official existence to the Union, will never be

likely to feel any bias inauspicious to the principles on

which [they are] founded.” Id.

Human nature has not changed since 1789, and

incentives still matter. Federal judges are still

appointed by a President and confirmed by the

Senate, both of which represent the Nation. U.S.

Const. art. II, § 2, cl. 2. Federal judges still hold office

during good behavior and receive a fixed salary from

Congress. U.S. Const. art. III, § 1. Because Minnesota

does not control the appointment, tenure, removal,

budget, or salary of federal judges, they are unlikely

to be partial to the state. Erin A. O’Hara & Larry E.

Ribstein, The Law Market 69 (2009). But state judges

still answer to their states. The problem of bias therefore persists. See Merrell Dow Pharms. Inc. v.

Thompson, 478 U.S. 804, 827 n.6 (1986) (Brennan, J.,

dissenting).

It has arguably gotten worse. “[A]t the time of the

Founding, no state judges were elected; they were all

appointed by public officials like federal judges.”

Brian T. Fitzpatrick, The Constitutionality of Federal

Jurisdiction-Stripping Legislation and the History of

State Judicial Selection and Tenure, 98 Va. L. Rev.

839, 841 (2012). Beginning in the mid-nineteenth century, however, many state judges have been elected,

including in Minnesota. “Since Minnesota’s admission

to the Union in 1858, the State’s Constitution has provided for the selection of all state judges by popular

election.” Republican Party of Minn. v. White, 536 U.S.

765, 768 (2002) (quoting Minn. Const. art. VI, § 7).

All state judges, but particularly elected ones,

have incentives to deliver for their states. “Elected

judges cannot help being aware that if the public is

not satisfied with the outcome of a particular case, it

could hurt their reelection prospects.” Id. at 789

(O’Connor, J., concurring). Some state judges even say

the quiet part out loud:

As long as I am allowed to redistribute wealth

from out-of-state companies to in-state

plaintiffs, I shall continue to do so. Not only is

my sleep enhanced when I give someone else’s

money away, but so is my job security, because

the in-state plaintiffs, their families and their

friends will re-elect me.

Richard Neely, Justice, West Virginia Supreme Court,

The Product Liability Mess: How Business Can Be

Rescued from the Politics of State Courts 4 (1988); see

also Alexander T. Tabarrok & Eric A. Helland, The

Effect of Electoral Institutions on Tort Awards, 4 Am.

L. & Econ. Rev. 341 (2002) (analyzing 75,000 tort

cases and finding elected judges systematically redistribute wealth from out-of-state defendants (nonvoters) to in-state plaintiffs (voters)).

Although particularly acute in suits (such as this

one) involving out-of-state defendants, these incentives remain whenever the state has an overt interest

in the outcome of a case or its constituents stand to

score big at the expense of a few. Minnesota knows

this, and so do like-minded states and localities bringing these suits. That is why they are struggling mightily to keep cases before their judges. 4

Minnesota’s complaint does not bury the lede. It

emphasizes just how profitable these out-of-state

energy companies are, and what those profits could do

for the good people of Minnesota, if only the state

judge cooperates. See Complaint ¶¶ 17, 28, 197.

The Court is “‘not required to exhibit a naiveté

from which ordinary citizens are free.’” Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2575 (2019).

It should not do so here. The well-pleaded complaint

rule, as applied by the court below, leaves the

federally protected rights of defendants at the mercy

of hostile state judges.

The slim possibility of Supreme Court review on

certiorari—many years, if not a decade later—provides no light at the end of the tunnel. The Supreme

Court, as Justice Brennan noted, is not institutionally

equipped to do the job of supervising state courts.

Merrell Dow Pharms. Inc., 478 U.S. at 827 n.6

(Brennan, J., dissenting). Nor can defendants risk

their financial viability by awaiting the Court’s intercession. When the Court decided Union & Planters’

4 The only case brought in federal court so far suffered an igno-

minious end, and the plaintiff, New York City, chose not to seek

review from this Court. Instead, New York City immediately

refiled in state court, after joining a nominal in-state defendant

to the lawsuit in a transparent attempt to evade federal diversity

jurisdiction. See Jennifer Hiller, New York City Sues Exxon, BP,

Shell, in State Court Over Climate Change, Reuters (Apr. 22,

2021).

Bank, the Court at least had broad mandatory jurisdiction, so federal review was guaranteed. Today,

review by this Court on certiorari is far from certain:

it is extremely unlikely. See Judiciary Act of 1925,

Pub. L. No. 68-415, 43 Stat. 936. And as difficult as it

is to obtain this Court’s review of a federal judgment,

it is even more difficult to get this Court’s review of a

state judgment. See Jeffrey S. Sutton & Brittany

Jones, The Certiorari Process and State Court

Decisions, 131 Harv. L. Rev. F. 167 (2018).

III. This Case Is Extraordinarily Important.

The petition makes a convincing case for certiorari. Amicus writes to further elaborate on the “energy

production, economic growth, foreign policy, and

national security” consequences of this case, and the

many other coordinated cases around the country.

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

There is a pattern to these cases. All involve suits

against private energy companies. None involve suits

against energy companies owned by foreign states.

These companies, however, account for the “majority

of the world’s oil and gas, pumping out an estimated

85 million barrels of oil equivalent per day.” Patrick

R. P. Heller & David Mihalyi, Nat’l Resource

Governance Inst., Massive and Misunderstood: Data

Driven Insights into National Oil Companies 6 (Apr.

2019). They also control “up to 90 percent of global

reserves.” Id. And their market influence is growing.

Clifford Krauss, As Western Oil Giants Cut Production, State-Owned Companies Step Up, N.Y. Times

(Oct. 14, 2021).

Energy companies owned by foreign states, therefore, account for an enormous quantity of greenhouse

gases resulting from the eventual burning of their

products downstream. Saudi Aramco alone is responsible for an estimated 1.6 billion metric tons of greenhouse gases, more than Chevron, BP, and Shell combined. David Fickling & Elaine He, The Biggest

Polluters Are Hiding in Plain Sight, Bloomberg (Sept.

30, 2020). According to the data used in Minnesota’s

complaint, Saudi Aramco has contributed to an estimated 4.38% of global carbon since 1965, more than

any private energy firm. See Climate Accountability

Inst., Carbon Majors: Update of Top Twenty Companies 1965–2017, https://perma.cc/95YV-RY97. Several

other firms owned by foreign states make the top

twenty list. Id. These companies are therefore a big

part of the alleged problem.

They are not, however, part of Minnesota’s

litigation-driven solution. The reason is obvious.

Apart from personal jurisdiction hurdles, companies

owned by foreign sovereigns could remove the cases to

federal court. 28 U.S.C. § 1441(d). They are also

presumably immune from suit. Id. § 1604.

If successful, the suits brought by Minnesota and

other like-minded states and localities would therefore create a perverse two-tiered de facto tax system:

a patchwork of judge-made carbon taxes for private

energy companies, many of them domestic, and no

carbon taxes for energy companies owned by foreign

sovereigns, many of them hostile.

The result would be disastrous. Demand for oil

and gas will not go away. Oil and gas account for over

two-thirds of primary energy consumption in the

United States. Despite political platitudes, this will

not change any time soon, nor will this litigation

change consumer demand.

Other

13%

Coal

10%

Petroleum

36%

Nuclear

Natural Gas

33%

Energy Info. Admin., Monthly Energy Review, Table

1.3, U.S. Primary Energy Consumption By Source

(2022).

But our sources of supply could change—if these

lawsuits move forward. By biasing the market against

private firms, and toward unaccountable companies

owned by foreign states, the suits brought by

Minnesota and other states and localities would make

the U.S. captive to foreign countries, many of them

hostile to U.S. interests, threatening our national

security. The grave energy security implications of

these suits alone warrant this Court’s immediate

review.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,