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

No. 23-168

IN THE

Supreme Court of the United States

AMERICAN PETROLEUM INSTITUTE, ET AL.,

Petitioners,

v.

STATE OF MINNESOTA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE

SUPPORTING PETITIONERS

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

September 21, 2023

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

wjay@goodwinlaw.com

(202) 346-4000

TABLE OF CONTENTS

PAGE

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

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ............................................................... 5

I.

II.

This Court should grant certiorari to

reconcile conflicting decisions on

whether federal common law applies to

claims based on alleged global

emissions. .......................................................... 5

A.

Federal common law governs

where a dispute implicates

interstate and international

interests.................................................. 6

B.

Displacement does not cause a

federal-common-law claim

regarding global climate change

to lose its federal “character.”.............. 12

C.

The practical problems created by

allowing inherently federal

claims for climate change to be

recast as state-law claims will

only worsen without immediate

review. .................................................. 15

This Court should grant certiorari to

resolve the split on whether the artful

pleading doctrine encompasses more

than just complete preemption. ..................... 17

CONCLUSION .......................................................... 23

i

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ......... 9, 10, 11, 13, 14, 21, 22

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ............................................. 8

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ........................................... 17

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ................................. 7, 12, 14

City of N.Y. v. BP P.L.C.,

325 F. Supp. 3d 466 (S.D.N.Y. 2018) .................. 9

City of N.Y. v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ........ 11, 13, 16, 20, 21

Cnty. of Oneida v.

Oneida Indian Nation of N.Y.,

470 U.S. 226 (1985) ....................................... 8, 14

Delaware v. Pennsylvania,

598 U.S. 115 (2023) ............................................. 8

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) ........................................... 6, 7

ii

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

452 U.S. 394 (1981) ........................................... 22

Franchise Tax Bd. v. Constr. Laborers

Vacation Tr. for S. Cal.,

463 U.S. 1 (1983) ............................................... 17

Fry v. Napoleon Cmty. Schs.,

580 U.S. 154 (2017) ........................................... 18

Georgia v. Tenn. Copper Co.,

206 U.S. 230 (1907) ........................................... 10

Grable & Sons Metal Products, Inc. v.

Darue Eng’g & Mfg.,

545 U.S. 308 (2005) ..................................... 12, 22

Hinderlider v. La Plata River &

Cherry Creek Ditch Co.,

304 U.S. 92 (1938) ..................................... 8, 9, 13

Holmes Grp., Inc. v. Vornado Air

Circulation Sys., Inc.,

535 U.S. 826 (2002) ............................... 19, 20, 21

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ................. 6, 7, 8, 9, 10, 19, 23

Illinois v. Outboard Marine Corp.,

680 F.2d 473 (7th Cir. 1982) ............................. 14

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ............................... 11, 17, 20

Kansas v. Colorado,

206 U.S. 46 (1907) ............................................... 8

iii

Nat’l Farmers Union Ins. Cos. v.

Crow Tribe of Indians,

471 U.S. 845 (1985) ......................................... 5, 9

Native Vill. of Kivalina v.

ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) ......................... 9, 14

North Carolina ex rel. Cooper v.

Tenn. Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ............................. 11

OBB Personenverkehr AG v. Sachs,

577 U.S. 27 (2015) ............................................. 18

Provincial Gov’t of Marinduque v.

Placer Dome, Inc.,

582 F.3d 1083 (9th Cir. 2009) ............................. 8

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998) ........................................... 22

Rodriguez v. FDIC,

140 S. Ct. 713 (2020) ..................................... 7, 20

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

117 F.3d 922 (5th Cir. 1997) ......................... 7, 19

Ohio ex rel. Skaggs v. Brunner,

629 F.3d 527 (6th Cir. 2010) ............................. 22

Sola Elec. Co. v. Jefferson Elec. Co.,

317 U.S. 173 (1942) ............................................. 7

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

451 U.S. 630 (1981) ..... 8, 9, 10, 12, 13, 19, 20, 21

iv

Texas v. Pankey,

441 F.2d 236 (10th Cir. 1971) ............................. 9

Treiber & Straub, Inc. v. UPS, Inc.,

474 F.3d 379 (7th Cir. 2007) ............................... 8

Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004) ........................... 8

United Jersey Banks v. Parell,

783 F.2d 360 (3d Cir. 1986) ........................ 18, 19

Wheeldin v. Wheeler,

373 U.S. 647 (1963) ........................................... 20

Other Authorities

Wright & Miller, 14C Fed. Prac. & Proc.

Juris. § 3722.1 (4th ed. 2022) ........................... 18

Wright & Miller, 19 Fed. Prac. & Proc.

Juris. § 4514 (4th ed. 2022) ................................ 8

15A Moore's Fed. Practice-Civil § 103.43

(2022) ................................................................. 22

v

INTEREST OF THE AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members in

matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber often files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the nation’s business community.

The Chamber has a strong interest in legal and

policy issues relating to climate change. The global

climate is changing, and human activities contribute to

these changes. There is much common ground on

which all sides could come together to address climate

change with policies that are practical, flexible,

predictable, and durable. The Chamber believes that

durable climate policy must be made by Congress,

which should both encourage innovation and

investment to ensure significant emissions reductions

and avoid economic harm for businesses, consumers,

and disadvantaged communities. See, e.g., Press

Release, Sen. Sheldon Whitehouse, New Bipartisan,

Bicameral Proposal Targets Industrial Emissions for

Reduction (July 25, 2019), https://www.whitehouse.

senate.gov/news/release/new-bipartisan-bicameralproposal-targets-industrial-emissions-for-reduction

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

all parties. No counsel for any party authored this brief in whole

or in part, and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

1

2

(reporting the Chamber’s support for the bipartisan

Clean Industrial Technology Act). U.S. climate policy

should recognize the urgent need for action, while

maintaining the national and international

competitiveness of U.S. industry and ensuring

consistency with free enterprise and free trade

principles. See U.S. Chamber of Commerce, The

Chamber’s Climate Position: ‘Inaction is Not an

Option’, https://www.uschamber.com/climate-change/

the-chambers-climate-position-inaction-is-not-anoption (Oct. 27, 2021). Governmental policies aimed at

achieving these goals should not be made by the courts,

much less by a patchwork of actions under state law.

Under this Court’s precedent, cases involving

“uniquely federal interests,” for which a uniform

federal policy is necessary, should be decided under

federal common law.

In the limited range of

circumstances in which such uniquely federal interests

arise, the relevant legal questions often intersect with

the interests of many of the Chamber’s members, who

rely on the predictability and uniformity of federal

policy. This case presents an example of a court

veering from this Court’s precedent and allowing a

claim about global emissions—for which no State can

claim a superior tie or interest—to be decided by a

single state’s law. The Chamber has an interest in

ensuring that claims for which a uniform federal

standard is necessary, because of their interstate or

international aspects, are heard in federal court.

3

SUMMARY OF ARGUMENT

I. Climate change is a global phenomenon. The

emissions that cause climate change cross state and

national borders. As a result, claims about those

emissions necessarily concern the interests of more

than one State or foreign sovereign.

In our federal system, such cross-border claims

implicate “uniquely federal interests” that trigger the

application of federal common law. Federal common

law applies where state law cannot. State laws are

designed to address localized problems; they are illequipped to deliver effective cross-border solutions.

Moreover, applying the law of one particular State to a

cross-border claim risks intruding on the sovereign

prerogatives of other States and nations, which may

have a different perspective on how to resolve a crossborder problem.

Here, the State of Minnesota wants Minnesota

courts to apply Minnesota law to address allegations

regarding global climate change. The court of appeals

failed to recognize that this case presents a

paradigmatic example of where federal common law

should apply, and where federal common law supplies

federal jurisdiction. Applying complete preemption

principles, the court concluded that, because federal

common law does not provide the remedies that

Minnesota seeks through the vindication of its own

laws, the State could continue pursuing its claims of

transboundary pollution under its own laws, in its own

courts. But that holding cannot be squared with the

rule that federal common law provides a cause of

action where no state law can apply. That principle

holds true even if federal common law does not also

provide a remedy.

4

This Court should grant certiorari to resolve the

split over whether federal common law applies to

claims seeking liability for the local impact of global

climate change (thereby giving rise to federal

jurisdiction). In an area where the need for a uniform

federal approach is at its highest, piecemeal decisions

applying the laws of the 50 states will only undermine

efforts to find a workable and effective solution. A

proliferating number of lawsuits similar to Minnesota’s

are already underway in state courts across the

country; if they proceed on that course, the result will

be competing state courts ordering the same companies

to change their behavior in different, irreconcilable

ways.

II. This Court should also grant certiorari to

address the conflict regarding whether a plaintiff may

evade federal jurisdiction by artfully pleading its

federal common law claims as state-law claims. A

plaintiff may be the master of its complaint, but this

Court has repeatedly reaffirmed the principle that a

plaintiff cannot frustrate federal jurisdiction by

characterizing an inherently federal claim as a statelaw claim.

The court of appeals limited “artful pleading” to

only those cases where a state-law claim is completely

preempted by a federal statute. But Judge Stras was

right to recognize in his concurrence (as other courts of

appeals have held) that “[a]rtful pleading comes in

many forms,” Pet. App. 20a (Stras, J., concurring), and

should not be limited to complete preemption. None of

the principles underlying the well-pleaded-complaint

rule supports such a narrow construction of artful

pleading.

5

For these reasons, and those set forth below, this

Court should grant the petition.

ARGUMENT

I. This Court should grant certiorari to reconcile conflicting decisions on whether federal

common law applies to claims based on alleged global emissions.

Federal courts may consider any claim arising

under federal law, including federal common law.

Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians,

471 U.S. 845, 850, 852 (1985). While federal common

law is limited in scope, common-law claims arising

from a transboundary dispute that implicates the

interests of more than one State or other sovereign

must, by necessity, arise under federal common law,

because a single state’s law cannot adequately

reconcile competing sovereign interests in resolving the

claim. For decades, this Court has identified claims

regarding the air and water in their “ambient and

interstate aspects” as entailing the sort of dispute that

is fit for the application of federal common law.

Because emissions cross state and national borders,

the laws of a single state cannot resolve an emissions

dispute like this one.

Such a nationally and

internationally significant dispute necessarily arises

under federal common law and belongs in federal

court.

The court of appeals nevertheless incorrectly held

that Minnesota’s purported state-law claims—which

invoke both state common law and state consumer

protection statutes, but concern global emissions—

should proceed in state court. The court began its

analysis by expressing skepticism about whether

“federal common law still exists in this space and

6

provides a cause of action to govern transboundary

[disputes],” in light of “subsequent federal

environmental legislation.” Pet. App. 7a. It then

concluded that, even if federal common law did apply

to the State’s allegations, it did not supply a basis for

removal jurisdiction because (1) federal common law

did not completely preempt the state-law causes of

action, as it did not supply a substitute cause of action,

id., and (2) the State’s claims did not “necessarily

raise” an issue of federal common law. Pet. App. 9a10a.

The Eighth Circuit’s reasoning was flawed in three

respects. First, to the extent that the court of appeals

doubted whether federal common law applies to

Minnesota’s allegations, Pet. App. 7a, this Court’s

decisions—which apply federal common law in cases

involving “air and water in their ambient or interstate

aspects”—resolve any such doubts. Second, where

federal common law applies, state law does not—and

cannot. Thus, even if a federal statute prevents the

plaintiff from obtaining a remedy under federal

common law, that does not make a claim based on

interstate (indeed, global) air emissions any less

“federal” in character. Finally, the court of appeals

erred in treating displacement as an issue affecting

jurisdiction, not remedies.

A. Federal common law governs where a

dispute implicates interstate and international interests.

1. “There is no federal general common law,” Erie

R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (emphasis

added), but federal courts may “fashion federal law” in

limited areas “where federal rights are concerned.”

Illinois v. City of Milwaukee (Milwaukee I), 406 U.S.

7

91, 103 (1972) (citation omitted). Erie does not undermine this principle. Indeed, on “the same day Erie was

decided, the Supreme Court released an opinion in

which Justice Brandeis, the author of Erie, relied upon

federal common law to resolve a case.” Sam L. Majors

Jewelers v. ABX, Inc., 117 F.3d 922, 927 n.8 (5th Cir.

1997) (citing Hinderlider v. La Plata River & Cherry

Creek Ditch Co., 304 U.S. 92 (1938)).

Courts typically apply federal common law in cases

presenting one (or more) of three characteristics. First,

federal common law applies in cases where “common

lawmaking must be ‘necessary to protect uniquely federal interests.’” Rodriguez v. FDIC, 140 S. Ct. 713, 717

(2020) (quoting Tex. Indus., Inc. v. Radcliff Materials,

Inc., 451 U.S. 630, 640 (1981)). Second, federal common law is used in “those areas of judicial decision

within which the policy of the law is so dominated by

the sweep of federal statutes that legal relations which

they affect must be deemed governed by federal law

having its source in those statutes, rather than by local

law.” Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173,

173-74 (1942). Finally, federal common law applies

“[w]hen Congress has not spoken to a particular issue,”

City of Milwaukee v. Illinois (Milwaukee II), 451 U.S.

304, 313 (1981), but federal policy calls for a “uniform

standard.” Milwaukee I, 406 U.S. at 107 n.9 (citation

omitted).

Several types of cross-border disputes—particularly

those that implicate the interests of more than one

State or sovereign—present “uniquely federal interests” that require the application of a federal common

law because state law cannot govern. Courts have applied federal common law in cases involving interstate

8

water disputes, 2 tribal land rights, 3 interstate air carrier liability, 4 interstate disputes over intangible property, 5 and foreign relations. 6 In such cases, federal

common law is necessary because “local law will not be

sufficiently sensitive to federal concerns, it is not likely

to be uniform across state lines, and it will develop at

various rates of speed in different states.” Wright &

Miller, 19 Fed. Prac. & Proc. Juris. § 4514 (4th ed.

2022). Moreover, the structure of the Constitution does

not allow States to engage in such cross-border regulation. Tex. Indus., 451 U.S. at 641 (“In these instances,

our federal system does not permit the controversy to

be resolved under state law….”).

Cases about global emissions, like this one, squarely give rise to the concerns that necessitate federal

common law. As this Court has recognized, allowing

states to apply their own varying common-law rules to

environmental concerns crossing state lines would

mean “more conflicting disputes, increasing assertions

and proliferating contentions” about the standards for

adjudging claims of “improper impairment.” Milwau2 Hinderlider, 304 U.S. at 110; Kansas v. Colorado, 206 U.S. 46, 95

(1907).

3 Cnty. of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226,

235-36 (1985).

4 Treiber & Straub, Inc. v. UPS, Inc., 474 F.3d 379, 384 (7th Cir.

2007).

5 Delaware v. Pennsylvania, 598 U.S. 115, 128-29 (2023) (discuss-

ing federal common law rules for escheatment of money orders).

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

Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d

1083, 1088 (9th Cir. 2009); Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227, 1233 (11th Cir. 2004).

9

kee I, 406 U.S. at 107 n.9 (quoting Texas v. Pankey, 441

F.2d 236, 241-42 (10th Cir. 1971)). Thus, “[w]hen we

deal with air and water in their ambient or interstate

aspects, there is a federal common law.” Id. at 103 (citing Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971)); accord Am. Elec. Power Co. v. Connecticut (“AEP”), 564

U.S. 410, 421 (2011); see also Hinderlider, 304 U.S. at

110 (apportionment of interstate stream “is a question

of ‘federal common law’”). “Environmental protection”

is, after all, “an area ‘within national legislative power,’” and thus, it is appropriate for federal courts to “fill

in ‘statutory interstices,’ and, if necessary, even ‘fashion federal law.’” AEP, 564 U.S. at 421 (citation omitted).

Because claims regarding transboundary emissions

implicate “uniquely federal interests,” “our federal system does not permit the controversy to be resolved under state law,” as the “interstate or international nature of the controversy makes it inappropriate for state

law to control.” Tex. Indus., 451 U.S. at 640-41 & n.13;

Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d

849, 855 (9th Cir. 2012) (“[F]ederal common law can

apply to transboundary pollution suits.”). And where,

as here, a claim falls within an area that is exclusively

federal in nature, the case falls within federal jurisdiction. Nat’l Farmers, 471 U.S. at 850, 852.

2. Climate change is an international and interstate phenomenon. In order for climate change to occur, as alleged by the State here, myriad events caused

by myriad actors must occur all around the world. City

of N.Y. v. BP P.L.C., 325 F. Supp. 3d 466, 472

(S.D.N.Y. 2018) (climate-change claims “are ultimately

based on the ‘transboundary’ emission of greenhouse

gases”), aff’d sub nom. City of N.Y. v. Chevron Corp.,

10

993 F.3d 81 (2d Cir. 2021). As Judge Stras recognized,

what Minnesota seeks is “a global remedy for a global

issue,” an issue on which other states may have a different point of view, Pet. App. 21a (Stras, J., concurring). That makes the State’s case “in effect, an interstate dispute.” Id. And in interstate disputes like this

one, “[s]tate law is no substitute,” as “[a]pplying state

law … only raises the risk of conflict between states,

which never ‘agree[d] to submit to whatever might be

done’ to their citizens.” Pet. App. 22a (quoting Georgia

v. Tenn. Copper Co., 206 U.S. 230, 237 (1907)). Allowing Minnesota to “set national energy policy through

its own consumer-protection laws would ‘effectively

override the policy choices made by’ the federal government and the other states.” Pet. App. 24a (citation

omitted).

That the State’s claims are about “air and water in

their ambient or interstate aspects” would be enough

by itself to “undoubtedly” call for the application of federal common law, AEP, 564 U.S. at 421 (citation omitted); Milwaukee I, 406 U.S. at 103. But there is more.

Because Minnesota seeks to press a “global issue,” its

claims also implicate foreign policy and the United

States’ sovereign interests, which, too, call out for federal common law. Tex. Indus., 451 U.S. at 641 (identifying instances where “our federal system does not

permit [a] controversy to be resolved under state law,

… because the interstate or international nature of the

controversy makes it inappropriate for state law to

control”).

No state or local government can claim a unique tie

to the phenomenon of global climate change. To be

sure, some commercial activity may happen within a

particular state’s or locality’s borders, but that local-

11

ized activity is not the sole basis of Minnesota’s claims.

And localized activity hardly justifies allowing the law

of one state to decide a sweeping claim concerning

emissions that cross state and national borders. After

all, Minnesota is not arguing that what happened within its jurisdiction caused the alleged harm of global

warming. Nor could Minnesota do so: as this Court

explained in AEP, “emissions in New Jersey may contribute no more to flooding in New York than emissions

in China.” 564 U.S. at 422; see also Pet. App. 23a

(Stras, J., concurring) (noting that, as alleged, global

climate change may have “allegedly led to a host of

costly problems within Minnesota,” but “they are by no

means limited to the ‘effects of [local] emissions’” (quoting New York, 993 F.3d at 92)).

The Eighth Circuit’s decision favoring the application of state law over federal common law encourages a

patchwork of outcomes arising under disparate state

laws, which are poor frameworks for “regulat[ing] the

conduct of out-of-state sources.” Int’l Paper Co. v.

Ouellette, 479 U.S. 481, 495 (1987). Allowing claims

about global emissions to be decided by the varied laws

of the 50 states would lead to fragmentation of judicial

decisionmaking that in turn would hinder a coordinated and effective federal response to climate change.

Moreover, leaving state courts to adjudicate disputes

about interstate emissions while applying disparate

standards would only make it “increasingly difficult for

anyone to determine what standards govern.” North

Carolina ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d

291, 298 (4th Cir. 2010).

12

B. Displacement does not cause a federalcommon-law claim regarding global climate change to lose its federal “character.”

The court of appeals effectively concluded that, because Minnesota’s claims did not neatly check one of

two jurisdictional boxes—either complete preemption,

or “federal ingredient” jurisdiction under Grable &

Sons Metal Products, Inc. v. Darue Engineering &

Manufacturing, 545 U.S. 308, 312 (2005)—those claims

should move forward in state court. The court of appeals thought that outside those two boxes, the federal

common law governing transboundary air issues could

not supply a basis for federal jurisdiction even if it did

apply to the State’s claims.

But the court of appeals’ reasoning overlooks a critical problem: where federal common law applies, state

law cannot govern. Tex. Indus., 451 U.S. at 641 (federal common law governs where the nature of the claim

“makes it inappropriate for state law to control”); Milwaukee II, 451 U.S. at 313 n.7 (“[I]f federal common

law exists, it is because state law cannot be used.”).

Congress’s decision to displace any right to sue under

federal common law does not make state law capable of

resolving interstate disputes. “[C]onflicts between

states with different tolerances for greenhouse-gas

emissions can only be resolved at the federal level because of the ‘unique[] federal interests’ involved.” Pet.

App. 23a (Stras, J., concurring) (citation omitted).

That does not change simply because federal common

law does not “supply a substitute cause of action.” Pet.

App. 7a.

13

As the Second Circuit explained—using reasoning

that conflicts with the Eighth Circuit’s reasoning here,

Pet. 19—the notion that a state-law claim lies dormant

and may “snap back into action” once federal law is

displaced is “difficult to square with the fact that federal common law governed [the] issue in the first

place.” New York, 993 F.3d at 98. When a federal

statute displaces federal common law, it eliminates the

causes of action or remedies that might have been

available under common law—“our federal system”

does not allow state-law claims into an area that is exclusively federal in character. Tex. Indus., 451 U.S. at

641. Thus, for example, a State may surrender its federal common-law cause of action over water rights in

an interstate compact. See Hinderlider, 304 U.S. at

104-05. But that does not invite state-law causes of

action that otherwise are plainly displaced by federal

common law. See id. at 110. “Such an outcome is too

strange to seriously contemplate.” New York, 993 F.3d

at 98-99.

In discussing whether complete preemption provided a basis for removal jurisdiction in this case, the

court of appeals remarked that “there is a serious

question about whether, and to what extent, this area

of federal common law [concerning transboundary air

and water pollution] survived subsequent federal environmental legislation.” Pet. App. 7a. But whether

“subsequent federal environmental legislation” displaced any causes of action provided by federal common law is not relevant to the jurisdictional analysis.

Congress’s displacement of a federal common law cause

of action goes to remedy, not jurisdiction. In AEP, for

example, this Court explained that the scope of the

displacement was to be determined by the “reach of

14

remedial provisions” available in the displacing statute. 564 U.S. at 425 (citing Cnty. of Oneida, 470 U.S.

at 237-39); see also Milwaukee II, 451 U.S. at 332 (observing that Congress’s changes to the Clean Water

Act meant that “no federal common-law remedy was

available”); Illinois v. Outboard Marine Corp., 680 F.2d

473, 476 (7th Cir. 1982) (statutory displacement of “the

federal common law remedy for nuisances resulting

from discharges of pollutants”); Kivalina, 696 F.3d at

857 (“displacement of a federal common law right of

action means displacement of remedies.”).

Displacement concerns “whether the field has been

occupied, not whether it has been occupied in a particular manner.” Milwaukee II, 451 U.S. at 324. When

a state-law claim is impermissible because of the federal nature of the interests at stake, and federal common law is displaced by a federal statute, the case continues to arise under federal law and establish federal

jurisdiction. The fact that federal common law provides no remedy does not make the interests at stake

any less federal; it means only that Congress has exercised its right to make rules for an exclusively federal

area, and has elected not to create a remedy in that

space.

Here, the claims concerning interstate emissions do

not become any less “interstate” simply because an environmental statute displaces remedies under federal

common law. The court of appeals’ reasoning looks

nothing like displacement by Congress; it is replacement of Congress—by state courts.

15

C. The practical problems created by allowing inherently federal claims for climate

change to be recast as state-law claims

will only worsen without immediate review.

In 2017 and 2018, 13 state and local governments

filed lawsuits in their respective home state courts

against petitioners, alleging, as Minnesota does here,

that petitioners violated state law by producing and

marketing fossil fuels in a way that altered global climate. 7 The number of lawsuits has only ballooned over

the years; just last week, the State of California sued

petitioners over purported conduct that allegedly increased “anthropogenic [greenhouse gas] emissions and

accelerated global warming.” 8

7 Rhode Island v. Chevron Corp., No. PC-2018-4716 (R.I. Super.

Ct. July 2, 2018); King Cnty. v. BP p.l.c., No. 18-2-11859-0 (Wash.

Super. Ct. May 9, 2018); Bd. of Cnty. Comm’rs of Boulder Cnty. v.

Suncor Energy (U.S.A.) Inc., No. 2018CV030349 (Colo. Dist. Ct.

Apr. 17, 2018); City of Richmond v. Chevron Corp., No. C18-00055

(Cal. Super. Ct. Jan. 22, 2018); Mayor & City Council of Balt. v.

BP p.l.c., No. 24-C-18-004219 (Md. Cir. Ct. July 20, 2018); City of

Imperial Beach v. Chevron Corp., No. C17-01227 (Cal. Super. Ct.

July 17, 2017); Cnty. of Marin v. Chevron Corp., No. CIV1702586

(Cal. Super. Ct. July 17, 2017); Cnty. of San Mateo v. Chevron

Corp., No. 17CIV03222 (Cal. Super. Ct. July 17, 2017); City of

Santa Cruz v. Chevron Corp., No. 17CV03243 (Cal. Super. Ct. Dec.

20, 2017); Cnty. of Santa Cruz v. Chevron Corp., No. 17CV03242

(Cal. Super. Ct. Dec. 20, 2017); Cal. ex rel. Herrera v. BP p.l.c., No.

CGC-17-561370 (Cal. Super. Ct. Sept. 19, 2017) (San Francisco);

Cal. ex rel. Oakland City Att’y v. BP p.l.c., No. RG17875889 (Cal.

Super. Ct. Sept. 19, 2017) (Oakland).

8 Compl. ¶ 5, People of the State of Cal. ex. rel. Bonta v. Exxon Mo-

bil Corp., No. CGC23609134 (Cal. Super. Ct. Sept. 15, 2023).

16

The essence of Minnesota’s claims, filed in 2020, is

no different from the thrust of the claims brought by

other governmental entities; the crux of the State’s

case is that “energy production has ‘caused a substantial portion of global atmospheric greenhouse-gas concentrations,’” which, in turn, “have resulted in ‘climate

change.’” Pet. App. 21a (Stras, J., concurring) (citation

omitted). The State seeks recovery for the “environmental and social harms from increased consumption

of fossil fuels, including changes in climate, damage to

infrastructure, and worsening public health.” Pet. App.

32a.

The ambitious scope of the State’s case makes it a

cross-border dispute. “There is no hiding the obvious,

and Minnesota does not even try: it seeks a global

remedy for a global issue.” Pet. App. 21a (Stras, J.,

concurring). In our federal system, global issues are

not resolved in state court—whether one or many. See

pp. 5-11, supra. But under the Eighth Circuit’s toonarrow construction of removal jurisdiction, “fifty state

courts get to handle” what is essentially an interstate

and international dispute by quirk of the fact that

“surrogate[s] of … private part[ies]” are the defendants.

Pet. App. 24a.

Unless this Court grants review, state courts across

the country, entertaining claims similar to Minnesota’s, will begin to deliver a patchwork of decisions resolving interstate pollution claims under disparate

state laws. Rulings in the plaintiffs’ favor will inevitably attempt to “[r]egulat[e] the production and sale of

fossil fuels worldwide,” using the limited tools of state

law in a misguided attempt to solve problems that are

“‘simply beyond the limits of state law.’” Pet. App. 24a

(Stras, J., concurring) (quoting New York, 993 F.3d at

17

92). In doing so, the decisions will only promote the

unraveling of our federal system, undermining “national energy policy” and collectively “‘overrid[ing] …

the policy choices made by’ the federal government and

other states.” Id. (quoting Ouellette, 479 U.S. at 495).

Each case seeks to “change the companies’ behavior on

a global scale.” Id. And so long as the cases remain in

state court, nothing will compel any one state’s court to

conform its decision to that of any other. The result

will be competing states ordering the same companies

to change their companies’ behavior in different, and

quite possibly irreconcilable, ways.

To resolve the question whether federal common

law applies to claims of global climate change, this

Court should grant certiorari now, before the effects of

an individualized, state-by-state approach begin to

take hold.

II. This Court should grant certiorari to resolve the split on whether the artful pleading doctrine encompasses more than just

complete preemption.

A. Under the well-pleaded complaint rule, “federal

jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded

complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386,

392 (1987). But an “independent corollary” of the rule

is that “a plaintiff may not defeat removal by omitting

to plead necessary federal questions in a complaint.”

Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for

S. Cal., 463 U.S. 1, 22 (1983) (citation omitted). Thus,

a plaintiff may be the “master of his complaint” and

ordinarily may choose to bring a state-law claim in

state court, but he cannot deliberately disguise an “in-

18

herently federal cause of action.” Wright & Miller, 14C

Fed. Prac. & Proc. Juris. § 3722.1 (4th ed. 2022).

Where a plaintiff obscures the inherently federal nature of her claim, the plaintiff’s case is removable to

federal court. United Jersey Banks v. Parell, 783 F.2d

360, 367 (3d Cir. 1986) (noting “ample precedent”

demonstrating that federal jurisdiction lies where “the

state claim pleaded is ‘really one’ of federal law” (citation omitted)).

In other jurisdictional contexts, this Court has

looked to the “gravamen” of the complaint, not just to

the label the plaintiff attaches, to determine whether

the complaint invokes federal jurisdiction. OBB Personenverkehr AG v. Sachs, 577 U.S. 27, 35-36 (2015)

(looking not just at how the plaintiff “recast[s]” her

negligence claims, but instead at the “‘essentials’ of her

suit,” to determine whether jurisdiction existed under

the Foreign Sovereign Immunities Act (citation omitted)); see also Fry v. Napoleon Cmty. Schs., 580 U.S.

154, 169 (2017) (courts must look to the “gravamen” of

the plaintiff’s complaint and “set[] aside any attempts

at artful pleading” to determine whether the plaintiff’s

claim requires exhaustion under federal law). What

matters is “substance, not surface”: “[t]he use (or nonuse) of particular labels and terms is not what matters.” Fry, 580 U.S. at 169. Focusing on the “gravamen” of a complaint, rather than whether a plaintiff

used or avoided the right “magic words,” ensures that a

plaintiff cannot manipulate federal jurisdiction

“through artful pleading.” Id. at 169-70 (citation omitted).

The rule is no different in the narrow but important

circumstances where a claim is inherently federal; in

those situations, casting the claim in different lan-

19

guage does not make it arise under different law. One

such inherently federal claim is a common law cause of

action governed by a uniform federal decisional standard, e.g., Sam L. Majors, 117 F.3d at 924, 929, which

the Eighth Circuit disavowed here by effectively limiting artful pleading to complete preemption. Pet. App.

5a-10a. “Artful pleading comes in many forms,” Pet.

App. 20a (Stras, J., concurring); where the claim arises

in an area that is governed exclusively by federal law,

a plaintiff cannot “deny a defendant a federal forum”

by artfully pleading “a federal claim … as a state law

claim.” United Jersey, 783 F.2d at 367. Thus, a federal

common law claim may be readily apparent from the

“essentials” of a complaint if the allegations involve

matters such as “air and water in their ambient or interstate aspects,” Milwaukee I, 406 U.S. at 103, or other “especial federal concerns to which federal common

law applies,” such as “the rights and obligations of the

United States,” or “the conflicting rights of States or

our relations with foreign nations.” Tex. Indus., 451

U.S. at 641 & n.13. In those areas where “especial federal concern[s]” are implicated, the only claim that can

be pleaded is a federal one, as federal common law governs where the nature of the claim “makes it inappropriate for state law to control.” Id. at 641. That claim

can be governed only by the laws of the United States

and thus is properly brought in federal court. See Milwaukee I, 406 U.S. at 100.

B. The “longstanding policies” justifying the application of the well-pleaded complaint rule support allowing the removal of federal-common-law claims.

Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc.,

535 U.S. 826, 831-32 (2002). Put another way, none of

these policies—(1) respect for plaintiffs’ deliberate

20

choice to “eschew[] claims based on federal law”; (2)

avoiding the unnecessary expansion of “the class of

removable cases”; and (3) preventing the “undermin[ing] [of] the clarity and ease of administration of

the well-pleaded-complaint doctrine” as a “‘quick rule

of thumb’”—justifies leaving a case in state court when

its subject matter is inherently federal. Id. (citations

omitted).

First, a plaintiff cannot invoke the prerogative to

choose the law and forum when the plaintiff alleges a

common-law claim that is inherently federal; where

federal common law applies, there is no state-law option to choose. As explained above, where federal

common law governs, the “implicit corollary” is that

there is no state law to apply. Ouellette, 479 U.S. at

488. That corollary is best demonstrated in cases

where federal common law necessarily governs because

the claim is interstate and international in nature;

transboundary issues cannot be resolved by a patchwork of state courts applying local law in an uncoordinated manner. E.g., New York, 993 F.3d at 85-86 (observing that climate change is “not well-suited to the

application of state law”).

Second, there is no risk of flooding federal courts

with a new wave of removal cases premised on federal

common law. Holmes, 535 U.S. at 832. Federal common law plays “a necessarily modest role,” Rodriguez,

140 S. Ct. at 717, and thus the “instances where [federal courts] have created federal common law are few

and restricted,” Wheeldin v. Wheeler, 373 U.S. 647, 651

(1963). See Tex. Indus., 451 U.S. at 641 (federal common law exists only in “narrow areas”). In those few

areas where federal common law applies, there is little

risk of intruding upon the “independence of state gov-

21

ernments,” as those areas necessarily fall outside state

authority. Holmes, 535 U.S. at 832 (citation omitted).

Conversely, failing to recognize federal common law

claims for what they are, just because the plaintiff refuses to acknowledge it, risks allowing state courts and

state law to intrude upon federal priorities. As the

Second Circuit has warned, attempting to apply state

law in an area where federal common law should apply

risks “upsetting the careful balance” of federal prerogatives. New York, 993 F.3d at 93. In AEP, a case very

similar to this one that presented claims for relief

based on climate change, this Court made clear that

“[e]nvironmental protection” is one such area that is

“undoubtedly … within national legislative power, one

in which federal courts may fill in statutory interstices,

and, if necessary, even fashion federal law.” AEP, 564

U.S. at 421 (emphasis added, citation and internal quotation marks omitted); see id. (quoting Milwaukee I,

406 U.S. at 103); id. at 422 (noting not only that the

subject of tort law claims based on climate change “is

meet for federal law governance,” but that “borrowing

the law of a particular State would be inappropriate”

for federal common law claims based on climate

change).

Finally, using the artful pleading doctrine to recognize federal jurisdiction in cases presenting federal

common law claims does not make the well-pleaded

complaint rule any more complicated to apply as a

“rule of thumb.” It is not difficult to identify the few

specific areas of the law that raise the sorts of “especial

federal concerns to which federal common law applies.”

Tex. Indus., 451 U.S. at 641 n.13; e.g., id. at 641 (identifying “narrow areas” in which federal common law

applies). The subject of “air and water in their ambient

22

or interstate aspects,” AEP, 564 U.S. at 421 (quoting

Milwaukee I, 406 U.S. at 103), is one such category,

and a claim of harm resulting from global climate

change from interstate and international emissions fits

squarely into it. There is no mystery that in the

State’s litigation, which focuses on allegations of

transboundary pollution, federal law will become “the

focal point.” Pet. App. 25a (Stras, J., concurring).

C. The court of appeals concluded that artful pleading can defeat removal, with only two exceptions: complete preemption and “federal ingredient” jurisdiction

as articulated in Grable. Pet. App. 5a-10a. But as other courts have recognized, artful pleading exists as a

basis for federal jurisdiction beyond complete preemption. E.g., Ohio ex rel. Skaggs v. Brunner, 629 F.3d

527, 532 (6th Cir. 2010) (artful pleading doctrine may

apply independently of complete preemption “where

federal issues necessarily must be resolved to address

the state law causes of action”); 15A Moore’s Fed. Practice—Civil § 103.43 (2022) (observing that “the complete preemption doctrine is a specific application of

the artful pleading doctrine”). “The artful pleading

doctrine allows removal where federal law completely

preempts a plaintiff’s state-law claim,” Rivet v. Regions

Bank of La., 522 U.S. 470, 475 (1998), but that is not

all it does. Pet. App. 26a-27a n.14 (Stras, J., concurring) (“artful pleading … applies whenever the complaint obscures the suit’s federal nature”). Complete

preemption is not the only circumstance where claims

have a “sufficient federal character to support removal.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.

394, 397 n.2 (1981). Claims that must necessarily

arise under federal common law due to their interstate

23

and transboundary character constitute another such

circumstance. Milwaukee I, 406 U.S. at 103.

*

*

*

Without this Court’s intervention, state-court decisions on competing claims of global climate change will

give rise to the very problem that the application of

federal common law is intended to prevent: conflicting

decisions on a common interstate (and international)

problem that requires a uniform approach. Different

states applying their own laws will have different

views on how to “change the companies’ behavior on a

global scale,” Pet. App. 24a (Stras, J., concurring),

which will result in inconsistent judgments governing

the very same activities crossing state and national

borders. This Court should grant certiorari now, before

those competing interests collide.

CONCLUSION

ed.

The petition for a writ of certiorari should be grantRespectfully submitted.

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

September 21, 2023

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

wjay@goodwinlaw.com

(202) 346-4000