`No. 20-
`
`
`
`Petitioners,
`
`Respondents.
`
`IN THE
`Supreme Court of the United States
`___________
`CHEVRON CORPORATION, et al.,
`v.
`CITY OF OAKLAND, et al.,
`___________
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`___________
`PETITION FOR A WRIT OF CERTIORARI
`___________
`PETER D. KEISLER*
`VIRGINIA A. SEITZ
`C. FREDERICK BECKNER III
`RYAN C. MORRIS
`TOBIAS S. LOSS-EATON
`SIDLEY AUSTIN LLP
`1501 K St. NW
`Washington, DC 20005
`(202) 736-8000
`pkeisler@sidley.com
`THEODORE J. BOUTROUS, JR.
`THOMAS G. HUNGAR
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Ave. NW
`Washington, DC 20036
`Counsel for Chevron Corporation
`* Counsel of Record
`January 8, 2021
`[Additional Counsel Listed On Inside Cover]
`
`KANNON K. SHANMUGAM
`JUSTIN ANDERSON
`WILLIAM T. MARKS
`PAUL, WEISS, RIFKIND,
` WHARTON & GARRISON LLP
`2001 K St. NW
`Washington, DC 20006
`THEODORE V. WELLS, JR.
`DANIEL J. TOAL
`PAUL, WEISS, RIFKIND,
` WHARTON & GARRISON LLP
`1285 Avenue of the Americas
`New York, NY 10019
`Counsel for Exxon Mobil
`Corporation
`
`
`
`
`
`
`
`
`
`M. RANDALL OPPENHEIMER
`DAWN SESTITO
`O’MELVENY & MYERS LLP
`400 South Hope St.
`Los Angeles, CA 90071
`Counsel for Exxon Mobil
`Corporation
`
`DAVID C. FREDERICK
`BRENDAN J. CRIMMINS
`DANIEL S. SEVERSON
`KELLOGG, HANSEN, TODD,
` FIGEL & FREDERICK, P.L.L.C.
`1615 M St. NW
`Suite 400
`Washington, DC 20036
`Counsel for Royal Dutch
`Shell plc
`
`SEAN C. GRIMSLEY
`JAMESON R. JONES
`DANIEL R. BRODY
`BARTLIT BECK LLP
`1801 Wewatta St.
`Suite 1200
`Denver, CO 80202
`Counsel for ConocoPhillips
`
`NANCY G. MILBURN
`ARNOLD & PORTER KAYE
` SCHOLER LLP
`250 West 55th St.
`New York, NY 10019
`JONATHAN W. HUGHES
`MATTHEW T. HEARTNEY
`JOHN D. LOMBARDO
`ARNOLD & PORTER KAYE
` SCHOLER LLP
`Three Embarcadero Center,
` 10th Floor
`San Francisco, CA 94111
`ETHAN G. SHENKMAN
`ARNOLD & PORTER KAYE
` SCHOLER LLP
`601 Massachusetts Ave. NW
`Washington, DC 20001
`Counsel for BP p.l.c.
`
`
`
`
`
`
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`Two coastal California cities brought this case in
`state court, seeking to hold five energy companies li-
`able for an alleged state law “public nuisance”—
`global climate change—based on their production and
`sale of fossil fuels. The cities say this case is “about
`shifting the costs of abating sea level rise . . . back on-
`to the companies.” To date, over twenty state and lo-
`cal governments have brought similar cases in state
`courts across the country, each seeking to apply its
`own State’s law to conduct in the other States and
`abroad. The energy companies removed this case to
`federal court, asserting that federal common law gov-
`erns tort claims based on interstate or international
`pollution. The district court upheld removal, holding
`that such claims arise exclusively under federal law.
`After the cities amended their complaints to add fed-
`eral claims, the court dismissed the case for failure to
`state a claim. But the Ninth Circuit held that re-
`moval was improper under the well-pleaded com-
`plaint rule because the claims were labeled as state-
`law claims, and the cities’ amended complaints add-
`ing federal claims did not cure that defect.
`The questions presented are:
`I. Whether putative state-law tort claims alleging
`harm from global climate change are removable be-
`cause they arise under federal law.
`II. Whether a plaintiff is barred from challenging
`removal on appeal after curing any jurisdictional de-
`fect and litigating the case to final judgment in the
`district court.
`
`
`(i)
`
`
`
`ii
`
`PARTIES TO THE PROCEEDING
`AND RULE 29.6 STATEMENT
`Petitioners are Chevron Corporation, BP p.l.c.,
`ConocoPhillips, Exxon Mobil Corporation, and Royal
`Dutch Shell plc. No petitioner has a parent corpora-
`tion, and no publicly held corporation owns 10% or
`more of any petitioner’s stock.
`Respondents are the City of Oakland, a Municipal
`Corporation, and the People of the State of California,
`acting by and through the Oakland City Attorney;
`and the City and County of San Francisco, a Munici-
`pal Corporation, and the People of the State of Cali-
`fornia, acting by and through the San Francisco City
`Attorney Dennis J. Herrera.
`
`
`
`
`
`
`iii
`
`RULE 14.1(b)(iii) STATEMENT
`This case directly relates to these proceedings:
`People of the State of California v. BP, P.L.C., No.
`CGC17561370, San Francisco County Superior
`Court (removed October 20, 2017);
`People of the State of California v. BP, P.L.C., No.
`RG17875889, Alameda County Superior Court (re-
`moved October 20, 2017);
`City of Oakland v. BP P.L.C., No. C 17-06011 WHA,
`U.S. District Court for the Northern District of Cal-
`ifornia (judgment entered July 27, 2018);
`City and County of San Francisco v. BP P.L.C., No.
`C 17-06012 WHA, U.S. District Court for the
`Northern District of California (judgment entered
`July 27, 2018); and
`City of Oakland v. BP P.L.C., No. 18-16663, U.S.
`Court of Appeals for the Ninth Circuit (judgment
`entered May 26, 2020; opinion amended and re-
`hearing denied August 12, 2020).
`No other proceedings in state or federal trial or ap-
`pellate courts, or in this Court, directly relate to this
`case.
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ......................................... i
`PARTIES TO THE PROCEEDING AND RULE
`29.6 STATEMENT ................................................. ii
`RULE 14.1(b)(iii) STATEMENT ................................ iii
`TABLE OF AUTHORITIES ....................................... vi
`PETITION FOR WRIT OF CERTIORARI ................. 1
`OPINIONS BELOW .................................................... 1
`JURISDICTION........................................................... 1
`FEDERAL STATUTES INVOLVED .......................... 1
`INTRODUCTION ........................................................ 2
`STATEMENT OF THE CASE ..................................... 7
`A. The cities’ public nuisance theory. ................... 7
`B. The district court’s denial of remand. .............. 8
`C. The district court’s dismissal opinion. ........... 10
`D. The Ninth Circuit’s ruling. ............................. 11
`E. The pending Baltimore case. .......................... 13
`REASONS FOR GRANTING THE PETITION ........ 14
`federal-
`I. The Ninth Circuit’s rejection of
`common-law jurisdiction warrants review. ......... 14
`A. The Ninth Circuit’s conclusion that federal
`common law does not govern interstate-
`pollution claims conflicts with this Court’s
`decisions. ......................................................... 14
`
`(iv)
`
`
`
`v
`TABLE OF CONTENTS—continued
`
`Page
`B. The Ninth Circuit’s application of the well-
`pleaded complaint rule conflicts with
`decisions of this Court and other circuits. ..... 20
`II. The Ninth Circuit deepened a circuit split by
`letting the cities contest removal after amending
`their complaint to assert federal claims and
`litigating those claims to judgment. .................... 27
`III.The questions presented are important, and
`this case is an excellent vehicle. .......................... 31
`CONCLUSION .......................................................... 33
`APPENDICES
`APPENDIX A: Opinion, City of Oakland v. BP
`PLC, 960 F.3d 570 (9th Cir. 2020), amended
`& superseded on denial of reh’g, No. 18-16663,
`2020 WL 4678380 (9th Cir. Aug. 12, 2020) ...... 1a
`APPENDIX B: Order Granting Motion to Dis-
`miss Amended Complaints, City of Oakland
`v. BP P.L.C., 325 F. Supp. 3d 1017 (N.D.
`Cal. 2018), vacated and remanded sub nom.
`City of Oakland v. BP PLC, No. 18-16663,
`2020 WL 2702680 (9th Cir. May 26, 2020) ....... 24a
`APPENDIX C: Order Denying Motions to Re-
`mand, California v. BP p.l.c., No. C 17-06011
`WHA, 2018 WL 1064293 (N.D. Cal. Feb. 27,
`2018), vacated and remanded sub nom. City
`of Oakland v. BP PLC, No. 18-16663, 2020
`WL 2702680 (9th Cir. May 26, 2020) .............. 46a
`APPENDIX D: Order Denying Rehearing, City
`of Oakland v. BP PLC, No. 18-16663, 2020
`WL 4678380 (9th Cir. Aug. 12, 2020) ............. 57a
`
`
`
`
`
`vi
`TABLE OF AUTHORITIES
`
`Page
`CASES
`Am. Elec. Power Co. v. Connecticut, 564
`U.S. 410 (2011) ...................................... passim
`Banco Nacional de Cuba v. Sabbatino, 376
`U.S. 398 (1964) ........................................... 4, 17
`Barbara v. N.Y. Stock Exch., Inc., 99 F.3d 49
`(2d Cir. 1996), abrogated on other grounds
`by Merrill Lynch, Pierce, Fenner & Smith
`Inc. v. Manning, 136 S. Ct. 1562 (2016) ..... 28
`Battle v. Seibels Bruce Ins. Co., 288 F.3d
`596 (4th Cir. 2002) ..................................... 26
`Bernstein v. Lin-Waldock & Co., 738 F.2d
`179 (7th Cir. 1984) ................................... 28, 29
`Brough v. United Steelworkers of Am., 437
`F.2d 748 (1st Cir. 1971) ............................. 28
`Camsoft Data Sys., Inc. v. S. Elecs. Supply,
`Inc., 756 F.3d 327 (5th Cir. 2014) ............ 28, 29
`Caterpillar Inc. v. Williams, 482 U.S. 386
`(1987) ........................................................ 21, 23
`Caterpillar, Inc. v. Lewis, 519 U.S. 62
`(1996) .................................................. 27, 29, 30
`Caudill v. Blue Cross & Blue Shield of N.C.,
`999 F.2d 74 (4th Cir. 1993) .................. 5, 24, 25
`City of Milwaukee v. Illinois, 451 U.S. 304
`(1981) ..................................................... 3, 15, 21
`City of New York v. BP P.L.C., 325 F. Supp.
`3d 466 (S.D.N.Y. 2018), appeal docketed,
`No. 18-2188 (2d Cir. July 26, 2018) ........... 19
`North Carolina ex rel. Cooper v. Tenn. Valley
`Auth., 615 F.3d 291 (4th Cir. 2010) ............ 6, 32
`Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124
`(2015) .......................................................... 30
`Ellingsworth v. Vermeer Mfg. Co., 949 F.3d
`1097 (8th Cir. 2020) ................................... 30
`
`
`
`
`
`vii
`TABLE OF AUTHORITIES—continued
`
`Page
`Empire Healthchoice Assurance, Inc. v.
`McVeigh, 547 U.S. 677 (2006) .................... 25
`Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ... 4, 15
`Federated Dep’t Stores, Inc. v. Moitie, 452
`U.S. 394 (1981) ........................................... 22
`Franchise Tax Bd. v. Constr. Laborers
`Vacation Tr., 463 U.S. 1 (1983) ................. 21
`Gentek Bldg. Prods., Inc. v. Sherwin-
`Williams Co., 491 F.3d 320 (6th Cir.
`2007) ........................................................... 29
`Grable & Sons Metal Prods., Inc. v. Darue
`Eng’g & Mfg., 545 U.S. 308 (2005) ............ 12
`Hinderlider v. La Plata River & Cherry
`Creek Ditch Co., 304 U.S. 92 (1938) .......... 4, 16
`Illinois v. City of Milwaukee, 406 U.S. 91
`(1972) ...................................................... passim
`Int’l Paper Co. v. Ouellette, 479 U.S. 481
`(1987) .......................................................... 16
`Kansas v. Colorado, 206 U.S. 46 (1907) ....... 16
`Kurns v. R.R. Friction Prods. Corp., 565
`U.S. 625 (2012) ........................................... 20
`Massachusetts v. EPA, 549 U.S. 497 (2007) .
`7
`Moffitt v. Residential Funding Co., 604 F.3d
`156 (4th Cir. 2010) ..................................... 30
`Nat’l Farmers Union Ins. Cos. v. Crow
`Tribe, 471 U.S. 845 (1985) ......................... 20
`Native Vill. of Kivalina v. ExxonMobil
`Corp., 696 F.3d 849 (9th Cir. 2012) ........... 19
`Newton v. Capital Assurance Co., 245 F.3d
`1306 (11th Cir. 2001) ................................. 26
`In re Otter Tail Power Co., 116 F.3d 1207
`(8th Cir. 1997) ............................................ 5, 25
`Paros Props., LLC v. Colo. Cas. Ins. Co.,
`835 F.3d 1264 (10th Cir. 2016) .................. 30
`
`
`
`
`
`viii
`TABLE OF AUTHORITIES—continued
`
`Page
`Republic of Phil. v. Marcos, 806 F.2d 344
`(2d Cir. 1986) .......................................... 25, 26
`Sam L. Majors Jewelers v. ABX, Inc., 117
`F.3d 922 (5th Cir. 1997) ............................. 5, 24
`Sosa v. Alvarez-Machain, 542 U.S. 692
`(2004) .......................................................... 20
`Tex. Indus., Inc. v. Radcliff Materials, Inc.,
`451 U.S. 630 (1981) .................................. 19, 21
`Thermoset Corp. v. Bldg. Materials Corp.,
`849 F.3d 1313 (11th Cir. 2017) .................. 29
`Torres v. S. Peru Copper Corp., 113 F.3d
`540 (5th Cir. 1997) ..................................... 26
`Treiber & Straub, Inc. v. UPS, Inc., 474
`F.3d 379 (7th Cir. 2007) ............................. 24
`United States v. Standard Oil Co. of Cal.,
`332 U.S. 301 (1947) .............................. 4, 15, 23
`United States v. Swiss Am. Bank, Ltd., 191
`F.3d 30 (1st Cir. 1999) ............................... 23
`In re Wireless Tel. Fed. Cost Recovery Fees
`Litig., 396 F.3d 922 (8th Cir. 2005) ........... 28
`
`
`STATUTES
`1
`28 U.S.C. § 1331 ............................................
`
`
`§ 1441(a) ........................................ 1, 21
`
`SCHOLARLY AUTHORITY
`Bradford R. Clark, Federal Common Law: A
`Structural Reinterpretation, 144 U. Pa. L.
`Rev. 1245 (1996) ......................................... 16
`
`
`
`
`
`
`
`ix
`TABLE OF AUTHORITIES—continued
`Page
`OTHER AUTHORITIES
`Neta C. Crawford, Pentagon Fuel Use,
`Climate Change, and the Costs of War,
`Watson Inst. Int’l & Pub. Affairs (rev.
`Nov. 13, 2019) ............................................. 18
`Richard H. Fallon, Jr. et al., Hart &
`Wechsler’s the Federal Courts and the
`Federal System (7th ed. 2015) ................... 22
`Eugene Gressman et al., Supreme Court
`Practice (9th ed. 2007) ............................... 32
`Restatement (Second) of Torts (1979) ..........
`8
`14C Wright & Miller, Federal Practice and
`Procedure: Jurisdiction
`(rev. 4th ed.
`2020) ........................................................... 21
`19 Wright & Miller, Federal Practice and
`Procedure: Jurisdiction (3d ed. 2020) ........ 17
`
`
`
`
`
`
`
`
`
`PETITION FOR WRIT OF CERTIORARI
`Petitioners respectfully petition for a writ of certio-
`rari to review the judgment of the U.S. Court of Ap-
`peals for the Ninth Circuit.
`OPINIONS BELOW
`The Ninth Circuit’s opinion is reported at 960 F.3d
`570 and reproduced at App. 1a–23a. The order deny-
`ing rehearing and amending the opinion is published
`at 969 F.3d 895 and reproduced at App. 58a–59a.
`The district court’s dismissal opinion is reported at
`325 F. Supp. 3d 1017 and reproduced at App. 24a–
`45a. The district court’s opinion denying remand is
`available at 2018 WL 1064293 and reproduced at
`App. 46a–56a.
`
`JURISDICTION
`The Ninth Circuit issued its opinion on May 26,
`2020 and its amended opinion and order denying re-
`hearing on August 12, 2020. 28 U.S.C. § 1254(1) pro-
`vides jurisdiction.
`FEDERAL STATUTES INVOLVED
`28 U.S.C. § 1331 provides:
`The district courts shall have original jurisdiction
`of all civil actions arising under the Constitution,
`laws, or treaties of the United States.
`28 U.S.C. § 1441(a) provides:
`Except as otherwise expressly provided by Act of
`Congress, any civil action brought in a State court
`of which the district courts of the United States
`have original jurisdiction, may be removed by the
`defendant or the defendants, to the district court of
`
`
`
`
`
`2
`the United States for the district and division em-
`bracing the place where such action is pending.
`INTRODUCTION
`Plaintiffs across the country are asking state courts
`to regulate worldwide fossil-fuel production and sales
`through “public nuisance” suits seeking massive
`monetary judgments for the effects of global climate
`change. These claims, as this Court’s decisions show,
`necessarily arise under federal law because the Con-
`stitution prohibits applying state law in certain nar-
`row areas involving uniquely federal interests—
`including interstate and international pollution. The
`Ninth Circuit nonetheless rejected federal jurisdic-
`tion here. That rejection conflicts with this Court’s
`rulings and with other circuits’ decisions affirming
`removal of putative state-law claims that arise in ex-
`clusively federal areas. This case also raises a sepa-
`rate removal question that has split the circuits:
`Whether and when plaintiffs can contest removal on
`appeal after they cure any jurisdictional defect and
`litigate the case to judgment in federal court. As the
`United States explained in urging rehearing en banc
`below, both are “issue[s] of exceptional importance,”
`U.S. Reh’g Br. 3, 13 (ECF 198)—especially given that
`these cases seek to fundamentally reorder or elimi-
`nate a vital sector of our economy.
`Here, the Cities of San Francisco and Oakland seek
`to impose monetary liability on five energy companies
`for future harms they allege global climate change
`will cause, including “global warming-induced sea
`level rise.” App. 3a. The cities sued under California
`“public nuisance” law, which would require a court to
`decide whether global fossil-fuel production and sales
`are “unreasonable”—and thus tortious—by weighing
`their value against their harms. State trial judges
`
`
`
`
`
`3
`and juries, constrained only by the “vague and inde-
`terminate” standards of common-law public nuisance,
`City of Milwaukee v. Illinois, 451 U.S. 304, 317
`(1981), would thus resolve critical national and inter-
`national policy issues—and potentially impose devas-
`tating extraterritorial liability for lawful conduct en-
`couraged by Congress, other states, and foreign gov-
`ernments alike.
`The district court rightly described this theory as
`“breathtaking” in scope. App. 32a. And the theory is
`not limited to these plaintiffs and defendants, or even
`the parties in the many similar cases pending else-
`where. On the cities’ view, any party affected by cli-
`mate change could sue—in state court, under state
`law—“anyone who
`supplied
`fossil
`fuels with
`knowledge of” climate change. Id. A patchwork of
`conflicting state-law tort rules would inevitably re-
`sult. And while this particular case was filed in Cali-
`fornia, it seeks recovery based not only on the com-
`panies’ production and sales there, but on all produc-
`tion and sales across the nation and “worldwide.”
`CA9 Excerpts of Record (ER) 297 (ECF 29-1). Cali-
`fornia’s courts would thus use California law to make
`energy policy for, and impose liability for conduct oc-
`curring in, the other 49 States and many foreign na-
`tions.
`The district court correctly upheld removal because
`these claims necessarily arise under federal law. It
`then dismissed them on the merits. The Ninth Cir-
`cuit, however, rejected federal jurisdiction. It held
`that it was “not clear” that these claims implicate any
`federal-law questions, and that, in any event, the
`well-pleaded complaint rule barred the district court
`from looking past the complaints’ state-law labels.
`See App. 10a–12a. Both aspects of that ruling clash
`
`
`
`
`
`4
`with this Court’s decisions, and the second also con-
`flicts with rulings from other circuits.
`The cities’ claims, based on the effects of global cli-
`mate change, arise in an area “undoubtedly” gov-
`erned by federal law, where state law cannot reach:
`“When we deal with air and water in their ambient or
`interstate aspects, there is a federal common law.”
`Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 421
`(2011) (AEP); Illinois v. City of Milwaukee, 406 U.S.
`91, 103 (1972). This is not the general federal com-
`mon law that ended with Erie Railroad v. Tompkins,
`304 U.S. 64 (1938), but a limited and specialized body
`of law that arises from the constitutional structure,
`see AEP, 564 U.S. at 421. The Constitution’s alloca-
`tion of sovereignty between the States and the federal
`government, and among the States themselves, pre-
`cludes applying state law in certain narrow areas
`whose inherently interstate nature requires uniform
`national rules of decision. Just as “state courts [are]
`not left free to develop their own doctrines” of foreign
`relations, Banco Nacional de Cuba v. Sabbatino, 376
`U.S. 398, 426 (1964), or to decide disputes with
`neighboring states, e.g., Hinderlider v. La Plata River
`& Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938),
`neither can they make rules that govern interstate or
`international pollution. In these areas, “there is an
`overriding federal interest in the need for a uniform
`rule of decision,” Illinois, 406 U.S. at 105 n.6, so the
`“federal judicial power” must supply any rules neces-
`sary “to deal with common-law problems,” United
`States v. Standard Oil Co. of Cal., 332 U.S. 301, 307
`(1947).
`In turn, when a plaintiff brings a claim in one of
`these exclusively federal areas, that claim necessarily
`arises under federal law, creating federal jurisdiction.
`That is true even if the claim is couched in state-law
`
`
`
`
`
`5
`terms, because no state law exists for the plaintiff to
`invoke. The Ninth Circuit’s contrary ruling is, as the
`United States explained below, “irreconcilable with
`the constitutional commitment of such matters to the
`national government and the relative rights and obli-
`gations of the national government and States under
`the structure of the Constitution.” U.S. Reh’g Br. 12.
`Nor does it matter whether the claim is ultimately
`cognizable under federal law; this Court made clear
`in Standard Oil and reiterated in AEP that whether
`a federal court has jurisdiction over such a claim does
`not depend on whether that claim is viable.
`The ruling below also conflicts with other circuits’
`view that a “putative state-law claim is . . . removable
`if alleged in a field that is properly governed by fed-
`eral common law such that a cause of action, if any, is
`necessarily federal in character.” U.S. Reh’g Br. 2, 5.
`In these areas, the “uniquely federal interest [is] so
`important that the ‘federal common law’ supplants
`state law.” Caudill v. Blue Cross & Blue Shield of
`N.C., 999 F.2d 74, 77 (4th Cir. 1993). Thus, a “plain-
`tiff’s characterization of a claim as based solely on
`state law is not dispositive.” In re Otter Tail Power
`Co., 116 F.3d 1207, 1213 (8th Cir. 1997); see also Sam
`L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 923
`(5th Cir. 1997).
`The Ninth Circuit also erred—and deepened a sep-
`arate circuit split—by rejecting an alternative basis
`to affirm the district court’s exercise of jurisdiction.
`The district court certified its order denying remand
`for interlocutory review, but the cities declined to ap-
`peal. Instead, they amended their complaints to as-
`sert federal claims, added new plaintiffs, and litigat-
`ed the case to judgment. The Ninth Circuit recog-
`nized that the amendment “cured any subject-matter
`jurisdiction defect,” but it still allowed the cities to
`
`
`
`
`
`6
`challenge removal because the case ended with a mo-
`tion to dismiss, not a trial. App. 16a–19a. That rul-
`ing implicates circuit splits on whether and when (a)
`filing an amended complaint creating federal jurisdic-
`tion waives the right to dispute removal and (b) a
`challenge to removal is mooted when the federal
`court enters final judgment without a trial.
`The importance of these cases supports review now.
`They cast a shadow over the entire energy sector that
`will lengthen if they are allowed to run their long,
`slow course in state court, where they do not belong.
`The accompanying exposure to vast, indeterminate
`monetary relief will deter investment and employ-
`ment across the industry and the broader economy.
`This “economic disruption” and the resulting effect on
`“our Nation’s energy needs” warrant prompt inter-
`vention. See AEP, 564 U.S. at 427.
`These cases will also disrupt and impede the politi-
`cal branches’ international climate-change initiatives
`and negotiations. And if they reach judgment, they
`will inevitably produce a patchwork of conflicting tort
`standards asserting control over global production
`and emissions under the laws of multiple States. Al-
`lowing state-court judges and juries to regulate pro-
`duction and the resulting emissions based on state
`common-law nuisance standards, “whose content
`must await the uncertain twists and turns of litiga-
`tion[,] will leave whole states and industries at sea
`and potentially expose them to a welter of conflicting
`court orders across the country.” North Carolina ex
`rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291, 301
`(4th Cir. 2010).
`Before state courts across the nation set about de-
`ciding whether worldwide fossil-fuel production is un-
`lawful—and thus whether a vital sector of the econ-
`omy must be shuttered or remade—this Court should
`
`
`
`
`7
`first decide whether these cases are in the right fo-
`rum and governed by the right law. This Court has
`twice granted certiorari to address which governmen-
`tal bodies have the authority to address global cli-
`mate change, noting the “unusual importance” of the
`issue. Massachusetts v. EPA, 549 U.S. 497, 506
`(2007); see AEP, 564 U.S. at 420. And petitioners in
`a pending merits case have asked this Court to decide
`whether tort claims like these necessarily arise under
`federal law. See Br. for Petitioners 38–45, BP p.l.c. v.
`Mayor & City Council of Baltimore, No. 19-1189. The
`Court should make clear—if not in Baltimore, then
`here—that this issue “demands to be governed by as
`universal a rule . . . as is available,” which in our sys-
`tem means federal law. App. 56a.
`STATEMENT OF THE CASE
`A. The cities’ public nuisance theory.
`Over twenty governmental bodies, including five
`States and the District of Columbia, have brought
`suits like this one against a handful of energy com-
`panies. These suits seek to compel the companies to
`pay to climate-change-proof five entire States, at
`least seven large coastal cities, and many other mu-
`nicipalities. The theory pressed here could be assert-
`ed by anyone who can allege climate change will
`eventually affect them. The total damages available
`under this theory are thus incalculable.
`Oakland and San Francisco each asserted a public-
`nuisance claim in California state court, seeking to
`require the energy companies “to abate the global
`warming-induced sea level rise nuisance to which
`they have contributed by funding an abatement pro-
`gram.” E.g., ER 297. Their theory is global—it de-
`pends on “worldwide” greenhouse gas emissions since
`the Nineteenth Century. See id. They seek to hold
`
`
`
`
`8
`five energy companies liable for “accelerated sea level
`rise,” “causing flooding of low-lying areas . . . , in-
`creased shoreline erosion, and salt water impacts.”
`Id. at 293.
`A public nuisance is generally “an unreasonable in-
`terference with a right common to the general pub-
`lic.” Restatement (Second) of Torts § 821B (1979).
`This formulation requires “weighing . . . the gravity of
`the harm against the utility of the conduct.” Id. cmt.
`e. And the cities urge a more aggressive test, arguing
`that California public-nuisance law does not even
`“require proof that the harms caused by the use of
`Defendants’ fossil-fuel products outweigh the benefits
`of that use.” CA9 Reply Br. 21 (ECF 118). In their
`view, they need only show “a hazardous condition
`that substantially and unreasonably interferes with a
`public right.” Id. at 14. And while they recognize
`that climate change necessarily flows from the cumu-
`lative emissions of all global sources over decades,
`they claim these five energy companies are “jointly
`and severally liable” for all its effects. ER 297.
`B. The district court’s denial of remand.
`The energy companies removed the cases to the dis-
`trict court, which addressed them together. Among
`other grounds for removal, the companies argued that
`the cities’ claims arise under federal law because they
`“implicate[ ] uniquely federal interests” and thus can
`only be “governed by federal common law, and not
`state common law.” ER 206–07.
`Judge Alsup agreed that these claims “are neces-
`sarily governed by federal common law” and denied
`remand. App. 48a. District courts have original ju-
`risdiction over “claims brought under federal common
`law.” Id. And federal common law applies if “a fed-
`eral rule of decision is ‘necessary to protect uniquely
`
`
`
`
`
`9
`federal interests.’” Id. at 49a. Under AEP and Illi-
`nois, that “includes the general subject of environ-
`mental law and specifically includes ambient or in-
`terstate air and water pollution.” Id. at 49a–50a.
`The court explained that the cities’ claims fall in
`such an exclusively federal area: “If ever a problem
`cried out for a uniform and comprehensive solution, it
`is the geophysical problem” of global climate change.
`App. 51a. “Taking the complaints at face value, the
`scope of the worldwide predicament demands the
`most comprehensive view available, which in our
`American court system means our federal courts and
`our federal common law.” Id. And for similar rea-
`sons, a “patchwork of fifty different answers to the
`same fundamental global issue would be unworka-
`ble.” Id. Climate change also “necessarily involves
`the relationships between the United States and all
`other nations.” Id. at 55a–56a. Thus, “Plaintiffs’
`claims for public nuisance, though pled as state-law
`claims,” arise under federal law. Id. at 55a.
`Addressing the cities’ counterarguments, the court
`held that “the well-pleaded complaint rule does not
`bar removal” because “a claim ‘arises under’ federal
`law if the dispositive issues stated in the complaint
`require the application of federal common law.” App.
`55a (quoting Illinois, 406 U.S. at 100). And jurisdic-
`tion does not depend on whether the claims have
`merit: Whether “plaintiffs’ claims, if any, are gov-
`erned by federal common law” is a separate question
`from “whether (or not) plaintiffs have stated claims
`for relief.” Id. at 56a.
`Although the district court certified its order for
`immediate interlocutory appeal, App. 56a, the cities
`declined that option, instead amending their com-
`plaints to add new plaintiffs and “to plead a separate
`
`
`
`
`
`10
`claim for public nuisance under federal common law,”
`id. at 31a.
`C. The district court’s dismissal opinion.
`Having resolved the “threshold issue” of “whether
`federal common law should govern,” the district court
`turned to whether the cities’ allegations stated a
`claim. App. 30a–31a. Its answer was no. The issue,
`the court explained, “is not over science,” but whether
`plaintiffs stated a cognizable federal-common-law
`claim based on the theory “that defendants’ sale of
`fossil fuels leads to their eventual combustion, which
`leads to more carbon dioxide in the atmosphere,
`which leads to more global warming and consequent
`ocean rise.” Id. at 31a.
`This theory is “breathtaking”: “It would reach the
`sale of fossil fuels anywhere in the world, including
`all past and otherwise lawful sales, where the seller
`knew that the combustion of fossil fuels contributed
`to the phenomenon of global warming.” App. 32a. As
`a result, “anyone who supplied fossil fuels with
`knowledge of the problem would be liable.” Id. And
`since the cities “seek billions of dollars each,” it
`seemed to the district court “a near certainty” that
`success for these and similarly situated plaintiffs
`“would make the continuation of defendants’ fossil
`fuel production ‘not feasible.’” Id. at 42a–43a.
`The court concluded that federal common law does
`not confer a cause of action. App. 37a. Rather, the
`necessary “balancing” is “best left to Congress (or di-
`plomacy).” Id. at 41a. These claims raise “questions
`of how to appropriately balance [climate change’s]
`worldwide negatives against the worldwide positives
`of the energy itself, and of how to allocate the pluses
`and minuses among the nations of the world.” Id. at
`40a. The claims thus “demand the expertise of our
`
`
`
`
`
`11
`environmental agencies, our diplomats, our Execu-
`tive, and at least the Senate.” Id. “Nuisance suits in
`various United States judicial districts regarding
`conduct worldwide are far less likely to solve the
`problem and, indeed, could interfere with reaching a
`worldwide consensus.” Id.
`In particular, the global scope of the cities’ theory
`counseled against recognizing a cause of action: The
`theory rests on “production and sale of fossil fuels
`worldwide,” even though that activity is “lawful in
`every nation”—and indeed is “actively support[ed]” by
`“many foreign governments.” App. 39a. “Neverthe-
`less, plaintiffs would have a single judge or jury in
`California impose an abatement fund as a result of
`such overseas behavior,” which “would effectively al-
`low plaintiffs to govern conduct and control energy
`policy on foreign soil.” Id. The court thus dismissed
`the case for failure to state a claim (and dismissed
`the claims against four defendants
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