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

──────────────────────────

MOTION FOR LEAVE TO FILE AMICI CURIAE

BRIEF AND BRIEF OF ALABAMA AND

16 OTHER STATES AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

──────────────────────────

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Robert M. Overing*

Deputy Solicitor General

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

*Admitted to the California

bar; supervised by members

of the Alabama bar.

Counsel for Amici States

(additional counsel listed on signature page)

SEPTEMBER 21, 2023

1

MOTION FOR LEAVE

TO FILE AMICI CURIAE BRIEF

Movants, the States of Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Carolina, Texas, and Wyoming respectfully request leave to file the accompanying brief as amici curiae in support of Petitioners’ Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit.

IDENTITY AND INTERESTS OF MOVANTS

Movants are States of the United States of America. Amici States have historic and traditional powers

within their borders to regulate the development of

energy and fuel products and to abate any related air

pollution or environmental hazards. Those powers are

threatened by any one State’s ability to force companies to defend against liability for interstate gas emissions in that State’s courts under that State’s laws.

REASONS TO GRANT THE MOTION

Rule 37.2 provides that an amicus curiae filing a

brief at the petition stage must ensure that counsel of

record for all parties receives notice of its intention to

file at least 10 days prior to the due date. Amici States

provided such notice 9 days prior and asked if counsel

of record would oppose this motion for leave. Counsel

did not object. Amici States thus respectfully move for

leave to file the attached brief, notwithstanding the

ten-day rule, for the following reasons.

1. Amici States believe their brief will aid the

Court’s disposition of the petition. The brief

2

stresses the importance to States of resolving

disputes over interstate pollution through federal law. The States offer a unique public-policy

perspective in addition to argument from history and precedent.

2. No party opposes the motion, and no party will

be prejudiced. The Court has already granted to

Respondent a 30-day extension of the time to

respond, resulting in 39-days’ notice before

their deadline of the Amici States’ intention to

file a brief in support of the petition.

Amici States respectfully request the Court grant this

motion for leave to file the accompanying brief.

Respectfully submitted,

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Robert M. Overing*

Deputy Solicitor General

*Admitted to the California

bar; supervised by members of

the Alabama bar.

Counsel for Amici States

i

QUESTION PRESENTED

Whether a federal district court has removal

jurisdiction under 28 U.S.C. 1331 and 1441 over

putative state-law claims seeking redress for injuries

allegedly caused by the effect of interstate

greenhouse-gas emissions on the global climate.

ii

TABLE OF CONTENTS

INTEREST OF AMICI STATES................................. 1

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

ARGUMENT................................................................ 3

I. Federal Law Must Govern Claims

Based on Interstate Gas Emissions ................. 3

A. The States are co-equal sovereigns with

equal authority to regulate energy

production and environmental protection

within their respective borders ................... 4

B. Federalism requires federal resolution of

cases involving interstate gas emissions .... 8

C. Traditionally, federal common law

governs cases involving interstate gas

emissions ................................................... 11

II. Where Federal Law Governs, Artful

Pleading Does Not Defeat Federal

Jurisdiction ..................................................... 17

CONCLUSION .......................................................... 20

iii

TABLE OF AUTHORITIES

Cases

Am. Elec. Power Co. v. Connecticut (AEP),

464 U.S. 410 (2011) .................................. 11, 14, 15

Anne Arundel County v. BP P.L.C.,

No. 22-2082 (4th Cir. calendared for oral

argument Dec. 2023) ............................................ 10

Avco Corp. v. Aero Lodge No. 735,

390 U.S. 557 (1968) .............................................. 18

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) .............................................. 12

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

517 U.S. 559 (1996) .......................................... 7, 11

Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor

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

25 F.4th 1238 (10th Cir. 2022), cert. denied,

143 S. Ct. 1795 (2023) .................................... 10, 15

Bonaparte v. Appeal Tax Ct. of Baltimore,

104 U.S. 592 (1881) ................................................ 7

Boomer v. Atl. Cement Co.,

257 N.E.2d 870 (1970)............................................ 5

Boyle v. United States,

487 U.S. 500 (1998) .................................. 12, 16, 17

California ex rel. Bonta v. Exxon Mobil Corp.,

No. CGC23609134 (S.F. Super. Ct. filed

Sept. 15, 2023) ...................................................... 10

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) .............................................. 18

iv

Cent. Iowa Power Co-op. v. Midwest Indep.

Transmission Sys. Operator, Inc.,

561 F.3d 904 (8th Cir. 2009) ................................ 19

City & Cnty. of Honolulu v. Sunoco LP,

39 F.4th 1101 (9th Cir. 2022), cert. denied,

143 S. Ct. 1795 (2023) .......................................... 10

City of Charleston v. Brabham Oil Co.,

No. 23-1802 (4th Cir.) .......................................... 10

City of Hoboken v. Chevron Corp.,

45 F.4th 699 (3d Cir. 2022), cert. denied,

143 S. Ct. 2483 (2023) .......................................... 10

City of Milwaukee v. Illinois (Milwaukee II),

451 U.S. 304 (1981) .............................................. 15

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ................... 9, 10, 12, 16

City of Oakland v. BP P.L.C.,

969 F.3d 895 (9th Cir. 2020), cert. denied,

141 S. Ct. 2776 (2021) .......................................... 10

Clearfield Tr. Co. v. United States,

318 U.S. 363 (1943) .......................................... 9, 12

County of Maui v. Chevron U.S.A. Inc.,

39 F.4th 1101 (9th Cir. 2022) .............................. 10

Connecticut v. Exxon Mobil Corp.,

No. 21-1446 (2d Cir. argued Sept. 23, 2022) ....... 10

Connecticut v. Massachusetts,

282 U.S. 660 (1931) ............................................. 14

County of Multnomah v. Exxon Mobil Corp.,

No. 23-CV25164 (Or. Cir. Ct. filed June 22,

2023) ..................................................................... 10

v

County of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022), cert. denied,

143 S. Ct. 1797 (2023) .......................................... 10

Coyle v. Smith,

221 U.S. 559 (1911) ................................................ 8

Delaware ex rel. Jennings v. B.P. America, Inc.,

No. 22-1096 (3rd Cir. 2022) ................................. 10

District of Columbia v. Exxon Mobil Corp.,

No. 22-7163 (D.C. Cir. argued May 8, 2023) ....... 10

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) .......................................... 11, 13

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

452 U.S. 394 (1981) .............................................. 18

First Nat. Bank of Canton v. Williams,

252 U.S. 504 (1920) .............................................. 18

Franchise Tax Bd. of Cal. v. Hyatt,

139 S. Ct. 1485 (2019) ........................................ 3, 8

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

463 U.S. 1 (1983) ............................................ 18, 19

Georgia v. Tenn. Copper Co.,

206 U.S. 230 (1907) .......................................... 5, 13

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

Mfg.,

545 U.S. 308 (2005) .........................................18-20

Gully v. First Nat. Bank,

299 U.S. 109 (1936) .............................................. 12

Healy v. Beer Inst.,

491 U.S. 324 (1989) ................................................ 7

vi

Hinderlider v. La Plata River & Cherry Creek Ditch

Co.,

304 U.S. 92 (1938) ................................................ 12

Hopkins v. Walker,

244 U.S. 486 (1917) .............................................. 18

Hoyt v. Sprague,

103 U.S. 613 (1880) ................................................ 4

Huron Portland Cement Co. v. City of Detroit,

362 U.S. 440 (1960) ................................................ 5

Illinois v. City of Milwaukee (Milwaukee I),

406 U.S. 91 (1972) ........................... 8, 10, 13-15, 17

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) .................................... 9, 15, 17

Iowa v. Illinois,

147 U.S. 1 (1893) .................................................. 14

Kansas v. Colorado,

206 U.S. 46 (1907) .............................................. 3, 7

King County v. BP P.L.C.,

No. C18-758-RSL (W.D. Wash. 2018).................. 10

Lane County v. Oregon,

74 U.S. 71 (1868) .................................................... 7

Lochner v. New York,

198 U.S. 45 (1905) .................................................. 4

Marlett’s Lessee v. Silk,

36 U.S. 1 (1837) .................................................... 11

Martin v. Franklin Capital Corp.,

546 U.S. 132 (2005) .............................................. 17

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816) ................................................ 17

vii

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

31 F.4th 178 (4th Cir. 2022), cert. denied,

143 S. Ct. 1795 (2023) .......................................... 10

Missouri v. Illinois,

180 U.S. 208 (1901) ................................................ 3

Missouri v. Illinois,

200 U.S. 496 (1906) .............................................. 13

Municipalities of Puerto Rico v. Exxon Mobil,

No. 3:22-cv-01550 (D.P.R. 2022) .......................... 10

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

Indians,

471 U.S. 845 (1985) .............................................. 17

Native Vill. of Kivalina v. ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) ................................ 17

New Jersey v. Exxon Mobil,

No. 22-cv-06733 (D.N.J. 2022) ............................. 10

New Jersey v. New York,

283 U.S. 336 (1931) ................................................ 4

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................ 4

Newton v. Capital Assur. Co.,

245 F.3d 1306 (11th Cir. 2001) ............................ 12

North Carolina ex rel. Cooper v. Tenn. Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ........................... 9, 11

Nw. Laundry v. City of Des Moines,

239 U.S. 486 (1916) ................................................ 5

Oneida Indian Nation of N.Y. v. Oneida County,

414 U.S. 661 (1974) ........................................ 16, 17

viii

Rhode Island v. Massachusetts,

37 U.S. 657 (1838) .............................................. 3, 8

Rhode Island v. Shell Oil Prods. Co.,

35 F.4th 44 (1st Cir. 2022), cert. denied,

143 S. Ct. 1796 (2023) .................................... 10, 11

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998) ........................................ 18, 19

Sable Commc’ns of Cal., Inc. v. FCC,

492 U.S. 115 (1989) ................................................ 4

San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236 (1959) .............................................. 11

Shelby County v. Holder,

570 U.S. 529 (2013) ................................................ 8

Shoshone Mining Co. v. Rutter,

177 U.S. 505 (1900) .............................................. 19

South Carolina ex rel. Tillman v. Coosaw Mining Co.,

45 F. 804 (C.C.D.S.C. 1891), aff’d 144 U.S.

50 (1892) ......................................................... 18, 20

Starin v. City of New York,

115 U.S. 248 (1885) .............................................. 18

State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408 (2003) ................................................ 4

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) .............................................. 16

Torres v. S. Peru Copper Co.,

113 F.3d 540 (5th Cir. 1997) ................................ 12

Train v. Nat. Res. Def. Council,

421 U.S. 60 (1975) .................................................. 6

ix

United States v. Little Lake Misere Land Co.,

412 U.S. 580 (1973) .............................................. 18

United States v. Standard Oil Co.,

332 U.S. 301 (1947) ........................................ 11, 16

Vermont v. Exxon Mobil,

No. 2:221-cv-00260 (D. Vt. 2021) ......................... 10

Virginia v. Tennessee,

148 U.S. 503 (1893) .............................................. 14

Wisconsin Dept. of Ind. v. Gould Inc.,

475 U.S. 282 (1986) ................................................ 9

Statutory Provisions

28 U.S.C. § 1331 ............................................... i, 14, 17

28 U.S.C. § 1441 ...........................................................i

42 U.S.C. § 7401, et seq. .............................. 5, 6, 12, 15

Ala. Code § 6-5-127 ...................................................... 6

Ala. Code § 9-1-6 .......................................................... 7

Ala. Code § 9-2-2 .......................................................... 6

Ala. Code § 9-17-1, et seq. ............................................ 6

Ala. Code § 22-23-47 .................................................... 6

Ala. Code § 22-28-3 ...................................................... 6

Cal. Gov’t Code § 7513.75(a)(3) ................................... 7

Cal. Pub. Res. Code § 25000.5(a) ................................ 7

Tex. Water Code Ann. § 7.257 .................................... 6

Utah Code Ann. § 78B-4-515 ...................................... 6

x

Other Authorities

The Federalist No. 80 (C. Rossiter ed. 1961).............. 3

Henry J. Friendly, In Praise of Erie—And of the New

Federal Common Law, 39 N.Y.U. L. Rev. 383

(1964) .................................................................... 11

Stephen E. Sachs, Finding Law,

107 Cal. L. Rev. 527 (2019) .................................. 13

A. Dan Tarlock, Environmental Law: Then and Now,

32 Wash. U. J. L. & Pol’y 1 (2010)......................... 6

1

INTEREST OF AMICI*

The States of Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana,

Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Carolina, Texas, and Wyoming respectfully submit this brief as amici curiae in support of the

petitioners. In this case, one State seeks billions in

damages against energy companies for allegedly causing a global “climate-change crisis.” Whether that

State can force the companies to defend against liability for interstate gas emissions in that State’s courts

under that State’s laws is of significant interest to

Amici States.

SUMMARY OF ARGUMENT

Each State has the historic power to regulate the

development of energy and fuel products within its

borders. Some States may promote the development of

oil and gas; others, solar and wind. Second, each State

has the traditional authority to abate air pollution and

other environmental hazards within its borders. Some

States may enact aggressive cap-and-trade programs

to reduce carbon-dioxide emissions; others may be

more focused on acute sources of high lead levels in

tap water. While federal regulation plays a major role

in both energy production and environmental

* Amici substantially complied with Supreme Court Rule 37 by

providing notice to counsel for all parties of amici’s intention to

file this brief nine days prior to its due date. But because amici

did not provide ten days’ notice, a motion for leave to file has been

submitted with this brief.

2

protection, they remain objects of tremendous State

concern, prompting unique policy solutions across the

country.

The ruling below upends the sovereign power of

each State to set energy and environmental policy

within its borders. It permits one State to set the national agenda by litigating in its courts an issue that

“is, in effect, an interstate dispute.” App.21a (Stras, J.,

concurring). Worse, it portends chaos and ruin for traditional energy companies, which must comply with

an unknowable number of vague and conflicting State

laws carrying billion-dollar penalties. Basic principles

of federalism and federal jurisdiction must be applied

to avoid such disaster.

Because this case involves claims based on interstate emissions, federal law must govern. Minnesota’s

attempts to disguise the federal aspects of its global

climate-change suit do not change the fact that its

claims are controlled by federal substantive law and

belong in federal court.

3

ARGUMENT

I. Federal Law Must Govern Claims Based on

Interstate Gas Emissions

Upon declaring independence, the American Colonies laid claim “to all the rights and powers of sovereign states.” Franchise Tax Bd. of Cal. v. Hyatt, 139 S.

Ct. 1485, 1493 (2019). “A sovereign decides by his own

will, which is the supreme law within his own boundary.” Rhode Island v. Massachusetts, 37 U.S. 657, 737

(1838). Disputes among independent sovereigns may

be settled by treaty or war, but by joining the Union,

the States “surrendered to congress, and its appointed

Court, the right and power of settling their mutual

controversies.” Id.; see also id. at 743-44; Missouri v.

Illinois, 180 U.S. 208, 241 (1901).

Because the States are not “absolutely independent nations,” no State “can enforce its own policy upon

the other[s],” and it falls on the federal government to

resolve interstate conflicts. Kansas v. Colorado, 206

U.S. 46, 95, 98 (1907). Consequently, “[w]hatever

practices may have a tendency to disturb the harmony

between the States are proper objects of federal superintendence and control.” The Federalist No. 80, p. 476

(C. Rossiter ed. 1961). A dispute over territorial borders may be the quintessential example, but there are

many kinds of cases that by their nature demand federal resolution. Id. at 475-77.

The question of this case is whether claims based

on interstate gas emissions are among those that demand resolution by the federal government. An affirmative answer follows from basic principles of

4

federalism and this Court’s precedents. “This is, in effect, an interstate dispute.” App.21a (Stras, J., concurring).

A. The States are co-equal sovereigns with

equal authority to regulate energy production and environmental protection

within their respective borders.

It is axiomatic that “each State may make its own

reasoned judgment about what conduct is permitted

or proscribed within its borders.” State Farm Mut.

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003).

At the heart of State sovereignty is the police power to

enact legislation “designed and calculated to promote

the general welfare, or to guard the public health, the

public morals, or the public safety.” Lochner v. New

York, 198 U.S. 45, 67 (1905) (Harlan, J., dissenting).

But States may exercise their police powers only

“upon persons and property within the limits of its

own territory.” Hoyt v. Sprague, 103 U.S. 613, 630

(1880). Thus, the genius of American federalism is

that it allows “different communities” to live “with different local standards” according to local preferences.

Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126

(1989). Acting within its proper domain, a State may

“serve as a laboratory[] 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) (Brandeis, J., dissenting).

The regulation of energy production and environmental protection lies well within a State’s traditional

police powers. Undoubtedly, each State has “real and

substantial interests” in the natural environment,

New Jersey v. New York, 283 U.S. 336, 342 (1931),

5

including “all the earth and air within its domain.”

Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907).

Accordingly, States have long enacted regulations on

in-state pollution—whether related to the development and use of energy and fuel products or otherwise.

States exercise such authority through a variety of

legal mechanisms ranging from local ordinances to

private-law nuisance suits. For example, in 1916, this

Court considered a Des Moines ordinance that limited

the smoke permitted from furnaces, “requir[ing] the

remodeling of practically all furnaces” in the city. Nw.

Laundry v. City of Des Moines, 239 U.S. 486, 490

(1916). The Court had “no doubt” that “such emission

of smoke [was] within the regulatory power of the

state.” Id. at 491-92. In a case that became famous for

its remedy, New York courts awarded continuing and

permanent nuisance damages against a plant for

emissions of smoke, dirt, and vibration. Boomer v. Atl.

Cement Co., 257 N.E.2d 870 (1970). States may choose

different means to “free from pollution the very air

that people breathe,” but as a general matter, such

regulation “clearly falls within the exercise of even the

most traditional concept of … the police power.” Huron Portland Cement Co. v. City of Detroit, 362 U.S.

440, 442 (1960).

States have retained their traditional powers to

regulate energy and to protect the environment, notwithstanding the substantial federal intervention of

the Clean Air Act (CAA), 42 U.S.C. § 7401, et seq. In

fact, the CAA provides that States and local governments have “the primary responsibility” of “air pollution prevention … and air pollution control at its

source.” Id. § 7401(a)(3) (emphasis added); see also id.

6

§ 7410(a)(1) (providing that each State establish plans

for the implementation and enforcement of EPA

standards “within such State”). The CAA’s scheme exemplifies cooperative federalism, which this Court famously described as “taking a stick to the states.”

Train v. Nat. Res. Def. Council, 421 U.S. 60, 64 (1975).

The CAA’s cooperative two-step approach provides

that (1) the federal government sets a floor for environmental regulation, and (2) States are primarily responsible for administering consistent regulatory regimes within their borders. See, e.g., A. Dan Tarlock,

Environmental Law: Then and Now, 32 Wash. U. J. L.

& Pol’y 1, 23-25 (2010).

Thus, a State may wield the CAA’s “stick” more or

less aggressively depending on its own prerogatives.

Some States have largely eliminated state-law claims

arising from certain emissions. See, e.g., Utah Code

Ann. § 78B-4-515 (West) (limiting liability for “greenhouse gas emissions”); Tex. Water Code Ann. § 7.257

(West) (providing affirmative defenses to torts allegedly “arising from greenhouse gas emissions”).

For its part, Alabama has enacted air-quality laws

pursuant to its public policy “to achieve and maintain

such levels of air quality as will protect human health

and safety and, to the greatest degree practicable, prevent injury to plant and animal life.” Ala. Code § 2228-3; see, e.g., id. § 9-2-2 (wildlife conservation); id.

§§ 6-5-127, 22-23-47 (water pollution). At the same

time, Alabama highly values the production and use

of traditional energy sources. See, e.g., id. § 9-17-1, et

seq. (conservation and production of oil and gas). It is

Alabama’s policy “that the extraction of coal provides

a major present and future source of energy and is an

essential and necessary activity which contributes to

7

the economic and material well-being of the state.” Id.

§ 9-1-6(a). Other States may feel differently. See, e.g.,

Cal. Gov’t Code § 7513.75(a)(3) (West) (noting “the

state’s broad[] efforts to decarbonize”); Cal. Pub. Res.

Code § 25000.5(a) (West) (declaring “overdependence

on … petroleum based fuels” to be “a threat”).

Our federal system allows the several States to

pursue divergent policies with respect to energy production and environmental protection. But those regulatory powers stop at the state line: A State “can impose its own legislation on no one of the other[]

[States], and is bound to yield its own views to none.”

Kansas, 206 U.S. at 97; see also Bonaparte v. Appeal

Tax Ct. of Baltimore, 104 U.S. 592, 594 (1881) (“No

State can legislate except with reference to its own jurisdiction.”). Indeed, the Court has made abundantly

clear that no single State can overpower the others,

foisting “its own policy choice on neighboring States.”

BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 571 (1996);

see also Healy v. Beer Inst., 491 U.S. 324, 335-36

(1989) (“[T]he Constitution[] [has] special concern

both with the maintenance of a national economic union unfettered by state-imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres.” (footnote

omitted)). The Constitution commits to the States

“nearly the whole charge of interior regulation,” but

only “within their proper spheres.” Lane County v. Oregon, 74 U.S. 71, 76 (1868).

This territorial limitation on State power dovetails

with “equality of right”—the “cardinal rule” of federalism that “[e]ach state stands on the same level with

all the rest.” Kansas, 206 U.S. at 97. Our Nation “was

and is a union of States, equal in power, dignity and

8

authority.” Shelby County v. Holder, 570 U.S. 529, 544

(2013) (quoting Coyle v. Smith, 221 U.S. 559, 567

(1911)). And “the constitutional equality of the States

is essential to the harmonious operation of the scheme

upon which the Republic was organized.” Id. (quoting

Coyle, 221 U.S. at 580).

B. Federalism requires federal resolution of

cases involving interstate gas emissions.

In light of the principles of State sovereignty and

equality, certain cases require resolution by a federal

mechanism, rather than a State one. Otherwise, one

State could use its judicial system to impose its will on

another, violating the “cardinal rule.” Over two centuries, this Court has steadfastly protected the States by

applying federal rules of decision to controversies

among the States. In “an interstate dispute” such as

this one, “[t]he rule of decision … has always been

‘known and settled principles of national or municipal

jurisprudence’—what we now know as the federal

common law.” App.21a-22a (Stras, J., concurring)

(quoting Rhode Island, 37 U.S. at 657). “State law is

no substitute,” id., in “disputes implicating [States’]

conflicting rights.” Franchise Tax Bd., 139 S. Ct. at

1498.

In Illinois v. City of Milwaukee (Milwaukee I), this

Court clearly defined two circumstances requiring federal resolution: (1) “where there is an overriding federal interest in the need for a uniform rule or decision”

and (2) “where the controversy touches basic interests

of federalism.” 406 U.S. 91, 105 n.6 (1972). Milwaukee

I itself involved interstate pollution, making the subject matter of this case an exemplar for the supersedure of federal law.

9

The interstate emission of alleged pollutants presents an overriding need for a uniform rule of decision

and touches basic interests of federalism. Uniformity

is necessary where the application of conflicting state

law “would lead to great diversity in results by making

identical transactions subject to the vagaries of the

laws of several states.” Clearfield Tr. Co. v. United

States, 318 U.S. 363, 367 (1943). To describe the effect

of the ruling below as permitting a “diversity of results” would be putting it lightly: Because the gas

emissions at issue here are national and global, the

ruling below would mean that energy companies (and

other emitters) could be subjected to every State’s regulatory and enforcement regime simultaneously, resulting in unpredictable and irreconcilable duties.

The result is the “balkanization of clean air regulations and a confused patchwork of standards, to the

detriment of industry and the environment alike.”

North Carolina ex rel. Cooper v. Tenn. Valley Auth.,

615 F.3d 291, 296 (4th Cir. 2010); see also City of New

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

Wisconsin Dept. of Ind. v. Gould Inc., 475 U.S. 282,

286 (1986) (“Conflict is imminent whenever two separate remedies are brought to bear on the same activity.” (cleaned up)). The application of many different

State laws to the same conduct creates “vagueness”

and “uncertainty” for energy companies and risks

“chaotic confrontation between sovereign states.” Int’l

Paper Co. v. Ouellette, 479 U.S. 481, 496 (1987).

Unfortunately, such chaos is already unfolding, as

dozens of States and localities have brought enforcement actions like this one under the aegis of their

10

laws,1 rather than under federal statutory law or “interstate common law.” Milwaukee I, 406 U.S. at 10506. This lack of uniformity will continue to breed confusion and potentially ruinous liability for traditional

energy companies.

Moreover, as the States have (increasingly) divergent energy policies and environmental prerogatives,

see supra at 6-7, these suits imperil their sovereign interests as well. Imposing its own laws on out-of-state

emissions, one State could unilaterally “scuttle the

See, e.g., California ex rel. Bonta v. Exxon Mobil Corp., No.

CGC23609134 (S.F. Super. Ct. filed Sept. 15, 2023); City of

Charleston v. Brabham Oil Co., No. 23-1802 (4th Cir.); County of

Multnomah v. Exxon Mobil Corp., No. 23-CV25164 (Or. Cir. Ct.

filed June 22, 2023); Anne Arundel County v. BP P.L.C., No. 222082 (4th Cir. calendared for oral argument Dec. 2023); District

of Columbia v. Exxon Mobil Corp., No. 22-7163 (D.C. Cir. argued

May 8, 2023); Connecticut v. Exxon Mobil Corp., No. 21-1446 (2d

Cir. argued Sept. 23, 2022); Rhode Island v. Shell Oil Prods. Co.,

35 F.4th 44 (1st Cir. 2022), cert. denied, 143 S. Ct. 1796 (2023);

City of Hoboken v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022),

cert. denied, 143 S. Ct. 2483 (2023) (consolidated with Delaware

ex rel. Jennings v. B.P. America, Inc., No. 22-1096 (3rd Cir.

2022)); City & Cnty. of Honolulu v. Sunoco LP, 39 F.4th 1101 (9th

Cir. 2022), cert. denied, 143 S. Ct. 1795 (2023) (consolidated with

County of Maui v. Chevron U.S.A. Inc., 39 F.4th 1101 (9th Cir.

2022)); County of San Mateo v. Chevron Corp., 32 F.4th 733 (9th

Cir. 2022), cert. denied, 143 S. Ct. 1797 (2023); Mayor & City

Council of Baltimore v. BP P.L.C., 31 F.4th 178 (4th Cir. 2022),

cert. denied, 143 S. Ct. 1795 (2023); Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir.

2022), cert. denied, 143 S. Ct. 1795 (2023); New Jersey v. Exxon

Mobil, No. 22-cv-06733 (D.N.J. 2022); Municipalities of Puerto

Rico v. Exxon Mobil, No. 3:22-cv-01550 (D.P.R. 2022); City of

Oakland v. BP P.L.C., 969 F.3d 895 (9th Cir. 2020), cert. denied,

141 S. Ct. 2776 (2021); Vermont v. Exxon Mobil, No. 2:221-cv00260 (D. Vt. 2021); City of New York, 993 F.3d 81; King County

v. BP P.L.C., No. C18-758-RSL (W.D. Wash. 2018).

1

11

nation’s carefully created system for accommodating

the need for energy production and the need for clean

air.” North Carolina, 615 F.3d at 296. A State may disagree with balance struck by federal law or with the

policy of another State, but it “may not impose economic sanctions on violators of its laws with the intent

of changing … lawful conduct in other States.” BMW,

517 U.S. at 572. Suits like this one are improperly “designed to … govern[] conduct and control[] policy” well

beyond the plaintiff’s borders. San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236, 247 (1959); see also

Ouellette, 479 U.S. at 495. That one State might design state-law claims to intrude upon the policy

choices of others is precisely why federal law must apply to protect the co-equal sovereignty of all States.

C. Traditionally, federal common law governs cases involving interstate gas emissions.

From the Founding, our constitutional order has

operated against the backdrop of federal common law.

See e.g., Rhode Island, 37 U.S. 657; Marlett’s Lessee v.

Silk, 36 U.S. 1, 22-23 (1837). While there “is no

[longer] federal general common law,” Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938), “specialized federal

common law” has survived. Am. Elec. Power Co. v.

Connecticut (AEP), 564 U.S. 410, 421 (2011) (quoting

Henry J. Friendly, In Praise of Erie—And of the New

Federal Common Law, 39 N.Y.U. L. Rev. 383, 405

(1964)). Specialized federal common law “remain[s]

unimpaired for dealing … with essentially federal

matters,” United States v. Standard Oil Co., 332 U.S.

301, 307 (1947), i.e., those implicating “uniquely federal interests … committed by the Constitution and

12

laws of the United States to federal control.” Boyle v.

United States, 487 U.S. 500, 504 (1998) (cleaned up).

Examples of the persistence of specialized federal

common law abound. See e.g., Hinderlider v. La Plata

River & Cherry Creek Ditch Co., 304 U.S. 92, 110

(1938) (apportionment between States of water from

interstate stream); Clearfield, 318 U.S. at 366 (rights

and duties arising from federally-issued commercial

paper); Boyle, 487 U.S. at 508-13 (design-defect claims

against federal military contractor); see also Newton

v. Capital Assur. Co., 245 F.3d 1306, 1309 (11th Cir.

2001) (FEMA-subsidized insurance policies); Torres v.

S. Peru Copper Co., 113 F.3d 540, 543 (5th Cir. 1997)

(claims implicating “important foreign policy concerns”). Each of these “enclaves of federal judge-made

law … bind[s] the States,” whose courts are “not left

free to develop their own doctrines.” Banco Nacional

de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964).

Cases involving interstate pollution of air and water are another enclave of specialized federal common

law. The federal judiciary has long understood the

need for federal resolution of these cases—even before

statutory interventions like the Clean Air Act of 1963.

“For over a century,” this Court has “applied federal

law to disputes involving interstate air or water pollution.” City of New York, 993 F.3d at 91 (collecting

cases). In this context, federal common law was never

“lurking in the background” but arose from “plain necessity,” thereby “extinguish[ing] the jurisdiction of

the states.” Gully v. First Nat. Bank, 299 U.S. 109, 117

(1936).

13

While this Court has not always labeled “specialized federal common law” as such,2 the reports are full

of interstate air and water pollution cases applying it.

In Missouri v. Illinois, Missouri sued to enjoin the

dumping of Chicago sewage into a river connected to

the Mississippi River, which, the State alleged, deposited into Missouri riverbeds and poisoned Missouri

water. 200 U.S. 496, 517 (1906). The Court found that

Missouri had not established injury and causation,

discerning whether principles “known to the older

common law” might allow Missouri to recover. Id. at

522.

In Georgia v. Tennessee Copper Co., the State of

Georgia sought to enjoin a Tennessee copper manufacturer from “discharging noxious gas from their works

in Tennessee over the plaintiff’s territory.” 206 U.S. at

236. Georgia tort law did not govern. Rather, the

Court announced a rule of federal common law that a

State’s “quasi-sovereign[ty]” in “all the earth and air

within its domain” “entitled [it] to specific relief” because “[i]t is not lightly to be required to give up quasisovereign rights for pay.” Id. at 237-38. Whatever purchase that principle may have today, its application

reflects the tradition of a federal equity jurisprudence

governing interstate gas emissions.

Erie did not extinguish the federal common law applicable to controversies involving interstate emissions. In Milwaukee I, for example, this Court considered whether nuisance claims for “pollution of

2 What today makes up “specialized federal common law” was

simply a part of the “general law” before Erie. See Stephen E.

Sachs, Finding Law, 107 Cal. L. Rev. 527, 558 (2019) (“Many

rules of so-called federal common law are, in substance, just the

old general-law doctrines in disguise.”).

14

interstate or navigable waters” were governed by federal common law and whether such claims “ar[ose] under the ‘laws’ of the United States,” creating a federal

question. 406 U.S. at 99 (quoting 28 U.S.C. § 1331(a)).

There, the State of Illinois had sued four Wisconsin

cities to abate their alleged dumping into Lake Michigan, a “body of interstate water.” Id. at 93. The Court

could not have been clearer: claims implicating “the

ecological rights of a State in the improper impairment of them from sources outside the State’s territory” have their “basis and standard in federal common law.” Id. at 100. Only federal common law, “not

the varying common law of individual states,” could

serve as a “basis for dealing in uniform standard with

the environmental rights” of each State. Id. at 108 n.9;

see also Iowa v. Illinois, 147 U.S. 1, 7-8, 13 (1893) (rejecting the views of dueling state-courts in favor of

“equality” in river rights); Connecticut v. Massachusetts, 282 U.S. 660, 669-70 (1931) (declining to apply

“municipal law”); Virginia v. Tennessee, 148 U.S. 503,

523-24 (1893) (applying public law, international law,

and moral law).

More recently, this Court has maintained that

“[e]nvironmental protection is undoubtedly an area”

where “federal courts may … fashion federal law.”

AEP, 564 U.S. at 421. In AEP, State and private plaintiffs sued electric utilities, alleging that the defendants’ gas emissions changed the climate and created a

“substantial and unreasonable interference with public rights, in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort

law.” Id. at 418 (emphasis added). The Court held that

borrowing state law in a suit filed by a State, implicating the validity of another State’s policy on emissions, would simply be “inappropriate.” Id. at 422. The

15

AEP Court thus re-affirmed the foundational holding

of Milwaukee I: “When we deal with air and water in

their ambient or interstate aspects, there is a federal

common law.” Id. at 421 (quoting Milwaukee I, 406

U.S. at 103); see also Ouellette, 479 U.S. at 483.

If federal common law supplies the governing law,

it precludes decision under state law in the same manner as a preemptive federal statute. See, e.g., Boyle,

487 U.S. at 504 (“[S]tate law is pre-empted and replaced, where necessary, by federal law of a content

prescribed (absent explicit statutory directive) by the

courts—so-called ‘federal common law.’”); AEP, 564

U.S. at 429. In fact, “federal common law exists ... because state law cannot be used.” City of Milwaukee v.

Illinois (Milwaukee II), 451 U.S. 304, 313 n.7 (1981)

(emphasis added); see also Ouellette, 479 U.S. at 487

(rejecting principle that “an interstate dispute between a State and a private company should be resolved by reference to state nuisance law”). Because

this case “should be resolved by reference to federal

common law,” state law is “preempted.” Id. at 488.

Some courts have resisted this conclusion, reasoning that federal common law governing interstate

emissions is “obsolete” after the Clean Air Act and

Clean Water Act. Baltimore, 31 F.4th at 206; see also

Boulder, 25 F.4th at 1260. One circuit held that there

can be no removal of “claims that have been displaced

by federal statutes.” 31 F.4th at 206. But that objection puts the cart before the horse; federal-question

jurisdiction is determined by the subject matter, see

infra § II, not by the “viability” of relief. 31 F.4th at

206. Almost by definition, federal common law occupies fields in which state law does not exist or cannot

be used. Replacement of one federal rule (e.g., common

16

law) by another (e.g., a statute) has no effect on the

propriety of using state law to govern areas it has not

traditionally occupied. In other words, “state law does

not suddenly become competent to address issues that

demand a unified federal standard simply because

Congress saw fit to displace a federal court-made

standard with a legislative one.” City of New York, 993

F.3d at 98. Whether federal law is governed by common law or statute, it remains equally “inappropriate

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

Materials, Inc., 451 U.S. 630, 641 (1981).

The Court addressed this issue in United States v.

Standard Oil Co., where the United States sought to

recover for expenses arising from the collision of a

Standard Oil truck with a U.S. Army soldier. 332 U.S.

301, 302 (1947). The Court addressed the choice-oflaw question at the outset, deciding that Standard

Oil’s liability was “not a matter to be determined by

state law” because the matter “vitally affect[ed] [federal] interests, powers, and relations … as to require

uniform national disposition rather than diversified

state rulings.” Id. at 305, 307. “The only question,”

then, was “which organ of the Government is to make

the determination that liability exists.” Id. at 316. Deciding that liability was best left “for the Congress, not

for the courts,” id. at 317, the Court did not then revisit its choice-of-law holding, which effectively barred

a remedy.

Thus, when the area is one of unique federal concern, Congress or federal common law will supply the

rule of decision. A claim traditionally governed by federal common law remains so, notwithstanding

whether and how that “claim may fail at a later stage.”

Oneida Indian Nation of N.Y. v. Oneida County, 414

17

U.S. 661, 675 (1974); see also Ouellette, 479 U.S. at

499-500; Native Vill. of Kivalina v. ExxonMobil Corp.,

696 F.3d 849, 857 (9th Cir. 2012) (“[D]isplacement of

a federal common law right of action” is a “displacement of remedies”). Here, because federal common

law has traditionally governed cases involving interstate gas emissions, any displacement by federal statutes is irrelevant to whether the case can proceed under state law.

II. Where Federal Law Governs, Artful Pleading

Does Not Defeat Federal Jurisdiction

Because this case involves claims based on interstate emissions, federal law must govern. And where

federal law governs, “state law is pre-empted and replaced,” Boyle, 487 U.S. at 504, and defendants are entitled to federal review. See Martin v. Franklin Capital Corp., 546 U.S. 132, 137, (2005) (describing 28

U.S.C. § 1441 as “grant[ing] defendants a right to a

federal forum”); see also Martin v. Hunter’s Lessee, 14

U.S. 304, 348-49 (1816) (removal provides “protection,” “security,” and “equal rights”). “It is well settled

that this statutory grant of ‘jurisdiction will support

claims founded upon federal common law as well as

those of a statutory origin.’ Federal common law as articulated in rules that are fashioned by court decisions

are ‘laws’ as that term is used in § 1331.” Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S.

845, 850 (1985) (quoting Milwaukee I, 406 U.S. at

100).

This Court has recognized for over “100 years that

in certain cases federal-question jurisdiction will lie

over state-law claims that implicate significant federal issues.” Grable & Sons Metal Prods., Inc. v. Darue

18

Eng’g & Mfg., 545 U.S. 308, 312 (2005) (citing Hopkins

v. Walker, 244 U.S. 486, 490-91 (1917)); see also

United States v. Little Lake Misere Land Co., 412 U.S.

580, 592–93 (1973). Because the removal right stems

from nature of the case, not particularities of the

pleadings, plaintiffs cannot block access to federal review by so-called artful pleading. See Starin v. City of

New York, 115 U.S. 248, 257 (1885) (“The character of

a case is determined by the questions involved.”);

South Carolina ex rel. Tillman v. Coosaw Mining Co.,

45 F. 804, 811 (C.C.D.S.C. 1891), aff’d 144 U.S. 50

(1892) (removal depends on the matter’s “nature and

essence” “notwithstanding the skillful statements and

omissions of the plaintiff”).

The artful-pleading doctrine appreciates that a

case may raise “necessary federal questions” despite

their absence from the face of a complaint. Franchise

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

22 (1983). “Artful pleading comes in many forms.”

App.20a (Stras, J., concurring). At least where a claim

is “controlled by federal substantive law,” it may be

removed to federal court, notwithstanding the plaintiff’s attempts to disguise its federal aspects. Avco

Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560 (1968);

see also Rivet v. Regions Bank of La., 522 U.S. 470,

475-76 (1998); Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394, 398 n.2 (1981). What matters is whether

“an appropriate statement by the plaintiff” would

have disclosed that the case “really and substantially

involves a dispute or controversy” over a federal issue.

First Nat. Bank of Canton v. Williams, 252 U.S. 504,

512 (1920); see also Caterpillar Inc. v. Williams, 482

U.S. 386, 392 (1987); Hopkins, 244 U.S. at 489.

19

Because liability for interstate gas emissions

raises a disputed and substantial federal issue, not

“simply a determination of local rules and customs,”

this case is removable. Cf. Shoshone Mining Co. v.

Rutter, 177 U.S. 505, 508 (1900). Interstate gas emissions cannot be properly considered an “area of state

law” for the many reasons stated supra. Rivet, 522

U.S. at 476. But the court of appeals erred in applying

the artful-pleading rule to defeat removal. In the

main, the court imposed its own requirement that the

federal issue must be an “element” of the plaintiff’s

state claims. App.9a (quoting Franchise Tax Bd., 463

U.S. at 13). On its view, even claims “governed by federal common law” are not removable unless defendants can “identify which specific elements” require the

court to “apply federal common law.” App.9a.

The court below not only relied on the idiosyncratic

phrasing of Franchise Tax Board, it also omitted half

the test that case applied: “[whether] federal law is a

necessary element … or that one [of the] claim[s] is

‘really’ one of federal law.” 463 U.S. at 13 (emphasis

added). And while Grable relied on “an essential element” of the state-law claim, it stopped short of requiring one for removal jurisdiction. 545 U.S. at 315. Circuit precedent embracing that misreading of Grable is

also wrong. App.9a (citing Cent. Iowa Power Co-op. v.

Midwest Indep. Transmission Sys. Operator, Inc., 561

F.3d 904, 914 (8th Cir. 2009)). Grable does not support

the view that unless a specific element requires application of federal law, “any … conflict” with federal law

“speaks to a potential defense, rather than to … jurisdiction[].” App.10a. Regardless of their label and their

20

elements, the State claims here implicate and conflict

with the federal law of interstate gas emissions.

Particularly where the plaintiff is a sovereign with

the power to define its own causes of action, the lower

court’s element-based approach inadequately polices

artful pleading. “If the court can look only into the

complaint,” defendants would be unfairly “remanded

to the encounter of [State] attachments, prejudices,

jealousies, and interests, dependent upon the want of

skill or the grace of his adversary.” South Carolina ex

rel. Tillman, 45 F. at 810. The lower court’s acquiescence thus denies defendants the “advantages … inherent in a federal forum” and denies the Nation “the

experience, solicitude, and hope of uniformity that a

federal forum offers” on a quintessential federal issue.

Grable, 545 U.S. at 312-13.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Robert M. Overing*

Deputy Solicitor General

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

*Admitted to the California

bar; supervised by members

of the Alabama bar.

Counsel for Amici States

21

ADDITIONAL COUNSEL

TREG TAYLOR

Attorney General

State of Alaska

LYNN FITCH

Attorney General

State of Mississippi

TIM GRIFFIN

Attorney General

State of Arkansas

ANDREW BAILEY

Attorney General

State of Missouri

CHRISTOPHER M. CARR

Attorney General

State of Georgia

AUSTIN KNUDSEN

Attorney General

State of Montana

RAÚL R. LABRADOR

Attorney General

State of Idaho

DREW WRIGLEY

Attorney General

State of North Dakota

THEODORE E. ROKITA

Attorney General

State of Indiana

GENTNER DRUMMOND

Attorney General

State of Oklahoma

KRIS KOBACH

Attorney General

State of Kansas

ALAN WILSON

Attorney General

State of South Carolina

DANIEL CAMERON

Attorney General

Commonwealth of

Kentucky

KEN PAXTON

Attorney General

State of Texas

JEFF LANDRY

Attorney General

State of Louisiana

BRIDGET HILL

Attorney General

State of Wyoming