Supplemental 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

RESPONDENT STATE OF MINNESOTA’S

SUPPLEMENTAL BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Keith Ellison

Attorney General,

State of Minnesota

Liz Kramer

Solicitor General

Oliver Larson

Peter Surdo

Assistant Attorneys General

State of Minnesota

445 Minnesota St., Ste. 1400

St. Paul, MN 55101

(651) 757-1291

oliver.larson@ag.state.mn.us

peter.surdo@ag.state.mn.us

Victor M. Sher

Counsel of Record

Matthew K. Edling

Martin D. Quiñones

Quentin C. Karpilow

Gretel Lee

Sher Edling LLP

100 Montgomery St., Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

matt@sheredling.com

marty@sheredling.com

quentin@sheredling.com

gretel@sheredling.com

Counsel for Respondent – State of Minnesota

Mosaic - (301) 927-3800 - Cheverly, MD

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6/11/08

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SUPPLEMENTAL BRIEF FOR RESPONDENT

Pursuant to Rule 15.8, respondent writes to notify

the Court of District of Columbia v. Exxon Mobil Corporation, No. 22-7163, __F.4th__, 2023 WL 8721812

(D.C. Cir. Dec. 19, 2023), which affirmed remand of a

materially similar case to state court. Writing for a

unanimous panel of the D.C. Circuit, Judge Rao rejected the same theory of federal jurisdiction that petitioners advance here.

1. In D.C., the plaintiff brought claims under the

District of Columbia Consumer Protection Procedures

Act (“CPPA”), alleging that the defendants “deceived

consumers about the causal link between fossil fuel

usage and climate change.” Id. at *1. The defendants

removed the case to federal court. Ibid. Among other

grounds for removal, they insisted that federal jurisdiction existed under the artful-pleading doctrine because the plaintiff’s state-law claims were “necessarily governed by federal common law.” Id. at *3.

2. The D.C. Circuit disagreed. As Judge Rao explained, the Supreme Court “has rejected the idea

that there might be some generic artful pleading basis

for federal jurisdiction.” Ibid. And “even assuming

federal common law could provide a basis for removal

under the artful pleading doctrine,” the defendants’

removal theory failed because the Clean Air Act has

displaced the body of federal common law invoked by

the defendants. See id. at *3–4. “It would be inconsistent with Congress’s directives . . . for [a] court to conclude that federal common law persists solely for the

purpose of removing the [plaintiff’s] CPPA claims to

federal court.” Id. at *5. And the defendants’ theory of

federal-common-law removal “simply cannot be

squared with [the Supreme Court’s decisions in]

American Electric or Ouellette,” which confirm that

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the availability of the plaintiff’s state-law claims “depends on the preemptive effect of the Clean Air Act,

not on the preemptive effect of federal common law.”

Ibid. The D.C. Circuit therefore refused to imbue “federal common law [with] the Schrödinger quality advanced by the [defendants]—where one does not know

if it is alive or dead until the case is removed to federal court.” Id. at *4.

3. In reaching that result, the D.C. Circuit is “in accord with the other courts of appeals, which have

unanimously found there is no federal jurisdiction

where state or local governments have brought statelaw actions against energy companies for conduct relating to climate change.” Id. at *2. And as Judge Rao

explained, City of New York v. Chevron Corp. does not

break that judicial unanimity because “the Second

Circuit expressly did not decide” the jurisdictional

question at issue here. Id. at *5 n.5.

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CONCLUSION

D.C. confirms that there is no circuit split on the

Question Presented and that the decision below is correct. The Court should deny the petition for certiorari

review.

Respectfully Submitted,

/s/ Victor M. Sher

KeITh EllIson

Attorney General,

State of Minnesota

LIz KrAmer

Solicitor General

OlIver LArson

PeTer Surdo

Assistant Attorneys General

State of Minnesota

445 Minnesota St., Ste. 1400

St. Paul, MN 55101

(651) 757-1291

oliver.larson@ag.state.mn.us

peter.surdo@ag.state.mn.us

VIcTor M. Sher

Counsel of Record

MATThew K. EdlIng

MArTIn D. QuIñones

QuenTIn C. KArpIlow

GreTel Lee

Sher Edling LLP

100 Montgomery St., Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

matt@sheredling.com

marty@sheredling.com

quentin@sheredling.com

gretel@sheredling.com

Counsel for Respondent – State of Minnesota

January 3, 2024