throbber
No. 20-1089
`
`
`
`IN THE
`Supreme Court of the United States
`___________________
`
`
`CHEVRON CORPORATION, et al.,
`
`Petitioners,
`
` v.
`
`CITY OF OAKLAND, et al.,
`
`
`
`
`
`
`
`
`
`
`___________________
`
`Respondents.
`
`On Petition for Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`
`
`
`
`
`
`BRIEF OF RESPONDENTS IN OPPOSITION TO
`PETITION FOR A WRIT OF CERTIORARI
`________________________________________________________
`
`BARBARA J. PARKER
`MARIA BEE
`ZOE M. SAVITSKY
`MALIA MCPHERSON
`CITY OF OAKLAND
`One Frank Ogawa Plaza, 6th Fl.
`Oakland, CA 94612
`
`Counsel for the People of the
`State of California and
`City of Oakland
`
`DENNIS J. HERRERA,
`RONALD P. FLYNN
`YVONNE R. MERÉ
`MATTHEW D. GOLDBERG
`ROBB W. KAPLA
`CITY AND COUNTY OF
` SAN FRANCISCO
`City Hall, Room 234
`1 Dr. Carlton B. Goodlett Place
`San Francisco, CA 94102
`
`Counsel for the People of the
`State of California and
`City & County of San Francisco
`
`VICTOR M. SHER
` Counsel of Record
`MATTHEW K. EDLING
`MICHAEL BURGER
`MARTIN D. QUIÑONES
`KATIE H. JONES
`QUENTIN C. KARPILOW
`SHER EDLING, LLP
`100 Montgomery St., Ste. 1410
`San Francisco, CA 94104
`(628) 231-2500
`vic@sheredling.com
`
`MICHAEL RUBIN
`CORINNE JOHNSON
`BARBARA J. CHISHOLM
`ALTSHULER BERZON LLP
`177 Post Street, Suite 300
`San Francisco, CA 94108
`
`Counsel for the People of the
`State of California, City of Oakland,
`and City & County of San Francisco
`
`

`

`QUESTIONS PRESENTED
`
`
`
`I.
`
`Whether a California state law public
`nuisance claim alleging wrongful and
`deceptive promotion of hazardous consumer
`goods “arises under” a congressionally
`displaced body of federal common law
`regarding
`interstate air pollution
`for
`purposes of removal jurisdiction.
`
`
`II. Whether respondents waived their right to
`appeal an erroneously denied remand
`motion by filing an amended complaint to
`conform to that erroneous ruling while
`expressly preserving their appellate rights,
`and then opposing petitioners’ motion to
`dismiss that amended complaint.
`
`
`
`
`
`
`
`

`

`
`
`ii
`
`TABLE OF CONTENTS
`
`
`INTRODUCTION ...................................................... 1
`
`STATEMENT OF THE CASE ................................... 4
`
`A. Background ....................................................... 4
`
`B. Proceedings Below ............................................ 5
`
`REASONS FOR DENYING THE PETITION ........... 7
`
`I. No federal common law “governs” the
`People’s claims. ............................................. 7
`
`II.
`
`Petitioners’ federal-common-law theory of
`removal does not warrant review. ............. 12
`
`1. The Ninth Circuit’s application of the
` well-pleaded complaint rule does not
`
`implicate any circuit split. .................... 13
`
`2. The Ninth Circuit correctly applied
`
`this Court’s precedent. .......................... 18
`
`III. The Ninth Circuit’s application of
`Caterpillar does not warrant review. ........ 26
`
`IV. The Questions Presented have minimal
`practical importance, and this petition
`is a poor vehicle to review them. ................ 33
`
`CONCLUSION ......................................................... 35
`
`
`
`
`
`
`
`
`

`

`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`
`
`CASES
`
`Albert v. Smith’s Food & Drug Centers, Inc.,
`356 F.3d 1242 (10th Cir. 2004) ............................ 28
`Altria Grp., Inc. v. Good,
`555 U.S. 70 (2008) .................................................. 9
`Am. Elec. Power Co. v. Connecticut,
`564 U.S. 410 (2011) ....................................... passim
`Armstrong v. Exceptional Child Ctr., Inc.,
`575 U.S. 320 (2015) .............................................. 22
`Atherton v. F.D.I.C.,
`519 U.S. 213 (1997) .............................................. 25
`Banco Nacional de Cuba v. Sabbatino,
`376 U.S. 398 (1964) .............................................. 21
`Barbara v. N.Y. Stock Exch., Inc.,
`99 F.3d 49 (2d Cir. 1996) ...................................... 29
`Battle v. Seibels Bruce Ins. Co.,
`288 F.3d 596 (4th Cir. 2002) ................................ 16
`Bd. of Cty. Comm’rs of Boulder Cty. v. Suncor
`Energy (U.S.A.) Inc.,
`405 F. Supp. 3d 947 (D. Colo. 2019) ..................... 18
`Beneficial Nat’l Bank v. Anderson,
`539 U.S. 1 (2003) ............................................ 13, 20
`Bernstein v. Lind-Waldock & Co.,
`738 F.2d 179 (7th Cir. 1984) ................................ 29
`Bond v. United States,
`572 U.S. 844 (2014) .............................................. 33
`Brough v. United Steelworkers of Am., AFL-CIO,
`437 F.2d 748 (1st Cir. 1971) ................................. 28
`California v. ARC Am. Corp.,
`490 U.S. 93 (1989) ............................................ 9, 11
`Caterpillar Inc. v. Lewis,
`519 U.S. 61 (1996) ......................................... passim
`
`
`
`
`
`

`

`
`
`iv
`
`TABLE OF AUTHORITIES—continued
`
`Page
`
`Caterpillar Inc. v. Williams,
`482 U.S. 386 (1987) .................................. 12, 13, 14
`Caudill v. Blue Cross & Blue Shield of N.C.,
`999 F.2d 74 (4th Cir. 1993) .................................. 17
`Chamber of Com. of U.S. v. Whiting,
`563 U.S. 582 (2011) .............................................. 11
`Cipollone v. Liggett Grp., Inc.,
`505 U.S. 504 (1992) .............................................. 22
`Citizens for Odor Nuisance Abatement v.
`City of San Diego,
` 8 Cal.App.5th 350 (2017) ........................................ 9
`City of Milwaukee v. Illinois & Michigan,
`451 U.S. 304 (1981) .................................. 21, 25, 26
`City of Modesto Redev. Agency v. Superior Ct.,
`119 Cal.App.4th 28 (2004) ...................................... 8
`City of New York v. Chevron Corp.,
`993 F.3d 81 (2d Cir. 2021) ........................ 14, 15, 16
`Cty. of San Mateo v. Chevron Corp.,
`294 F. Supp. 3d 934 (N.D. Cal. 2018) ............ 18, 20
`Cty. of Santa Clara v. Atl. Richfield Co.,
`137 Cal.App.4th 292 (2006) ................................ 5, 8
`Earth Island Institute v. Crystal Geyser Water Co.,
`__ F. Supp. 3d __, 2021 WL 684961 (N.D. Cal.
`Feb. 23, 2021) ........................................................ 18
`Ellingsworth v. Vermeer Mfg. Co.,
`949 F.3d 1097 (8th Cir. 2020) .............................. 30
`Empire Healthchoice Assurance, Inc. v. McVeigh,
`547 U.S. 677 (2006) .............................................. 17
`Fla. Lime & Avocado Growers, Inc. v. Paul,
`373 U.S. 132 (1963) ................................................ 9
`Franchise Tax Bd. of State of Cal. v. Constr.
`Laborers Vacation Tr. for S. Cal.,
`463 U.S. 1 (1983) ............................................ 12, 23
`
`
`
`
`
`

`

`
`
`v
`
`TABLE OF AUTHORITIES—continued
`
`Page
`
`Georgia v. Tenn. Copper Co.,
`240 U.S. 650 (1916) .............................................. 10
`Grable & Sons Metal Prods., Inc. v. Darue
`Eng’g & Mfg.,
`545 U.S. 308 (2005) ....................................... passim
`Grupo Dataflux v. Atlas Glob. Grp., L.P.,
`541 U.S. 567 (2004) .............................................. 33
`Gunn v. Minton,
`568 U.S. 251 (2013) ...............................2, 12, 14, 15
`Hinderlider v. La Plata River & Cherry
`Creek Ditch Co.,
`304 U.S. 92 (1938) ................................................ 21
`Illinois v. City of Milwaukee, Wis.,
`406 U.S. 91 (1972) ................................................ 10
`In re Otter Tail Power Co.,
`116 F.3d 1207 (8th Cir. 1997) .............................. 16
`Int’l Paper Co. v. Ouellette,
`479 U.S. 481 (1987) ....................................... passim
`Kansas v. Colorado,
`206 U.S. 46 (1907) ................................................ 21
`King v. Marriott Int’l Inc.,
`337 F.3d 421 (4th Cir. 2003) ................................ 28
`Kurns v. R.R. Friction Prods. Corp.,
`565 U.S. 625 (2012) .............................................. 21
`Mayor & City Council of Baltimore v. BP P.L.C.,
`388 F. Supp. 3d 538 (D. Md. 2019) ...................... 18
`McKesson v. Doe,
`141 S. Ct. 48 (2020) ........................................ 34, 35
`Merrell Dow Pharms. Inc. v. Thompson,
`478 U.S. 804 (1986) .............................................. 12
`Merrill Lynch, Pierce, Fenner & Smith Inc. v.
`Manning,
`136 S. Ct. 1562 (2016) ............................ 2, 3, 14, 22
`
`
`
`
`
`

`

`
`
`vi
`
`TABLE OF AUTHORITIES—continued
`
`
`Page
`
`Miree v. DeKalb Cty., Ga.,
`433 U.S. 25 (1977) .......................................... 10, 11
`Missouri v. Illinois,
`180 U.S. 208 (1901) .............................................. 10
`Moffitt v. Residential Funding Co.,
`604 F.3d 156 (4th Cir. 2010) .......................... 31, 33
`Morgan Cty. War Mem’l Hosp. ex rel. Bd. of
`Directors of War Mem’l Hosp. v. Baker,
`314 F. App’x 529 (4th Cir. 2008) .................... 14, 22
`Nat’l Farmers Union Ins. Cos. v. Crow Tribe
`of Indians,
`471 U.S. 845 (1985) .............................................. 21
`Negrón-Fuentes v. UPS Supply Chain, Sols.,
`532 F.3d 1 (1st Cir. 2008) ..................................... 27
`New Jersey v. City of New York,
`283 U.S. 473 (1931) .............................................. 10
`New Mexico ex rel. Balderas v. Monsanto Co.,
`454 F. Supp. 3d 1132 (D.N.M. 2020) .................... 18
`Newton v. Capital Assurance Co.,
`245 F.3d 1306 (11th Cir. 2001) ............................ 16
`Nicodemus v. Union Pac. Corp.,
`440 F.3d 1227 (10th Cir. 2006) ................ 14, 19, 22
`Nw. Airlines, Inc. v. Transp. Workers
`Union of Am., AFL-CIO,
`451 U.S. 77 (1981) ................................................ 25
`O’Melveny & Myers v. F.D.I.C.,
`512 U.S. 79 (1994) ................................................ 10
`Paros Props., LLC v. Colo. Cas. Ins. Co.,
`835 F.3d 1264 (10th Cir. 2016) ............................ 30
`People ex rel. Gallo v. Acuna,
`14 Cal.4th 1090 (1997) ..................................... 9, 10
`People v. ConAgra Grocery Prods. Co.,
`17 Cal.App.5th 51 (2017) .................................... 8, 9
`
`
`
`
`
`

`

`
`
`vii
`
`TABLE OF AUTHORITIES—continued
`
`Page
`Provincial Gov’t of Marinduque v. Placer Dome, Inc.,
`582 F.3d 1083 (9th Cir. 2009) .............................. 14
`Puerto Rico Dep’t of Consumer Affairs v. Isla
`Petroleum Corp.,
`485 U.S. 495 (1988) .............................................. 25
`Quintero Cmty. Ass’n Inc. v. F.D.I.C.,
`792 F.3d 1002 (8th Cir. 2015) .............................. 30
`Republic of Philippines v. Marcos,
`806 F.2d 344 (2d Cir. 1986) .................................. 16
`Rhode Island v. Chevron Corp.,
`393 F. Supp. 3d 142 (D.R.I. 2019) ........................ 18
`Rodriguez v. F.D.I.C.,
`140 S. Ct. 713 (2020) ...................................... 10, 25
`Sam L. Majors Jewelers v. ABX, Inc.,
`117 F.3d 922 (5th Cir. 1997) ................................ 17
`San Diego Gas & Elec. Co. v. Superior Ct.,
`13 Cal.4th 893 (1996) ............................................. 9
`Sosa v. Alvarez-Machain,
`542 U.S. 692 (2004) .............................................. 21
`Stewart v. U.S. Bancorp,
`297 F.3d 953 (9th Cir. 2002) ...................... 6, 27, 32
`Texas Indus., Inc. v. Radcliff Materials, Inc.,
`451 U.S. 630 (1981) ........................................ 21, 34
`Torres v. S. Peru Copper Co.,
`113 F.3d 540 (5th Cir. 1997) ................................ 16
`Treiber & Straub, Inc. v. UPS, Inc.,
`2005 WL 2108081 (E.D. Wis. Aug. 31, 2005) ....... 16
`Treiber & Straub, Inc. v. UPS, Inc.,
`474 F.3d 379 (7th Cir. 2007) .......................... 15, 16
`United States v. Standard Oil Co. of Cal.,
`332 U.S. 301 (1947) .............................................. 20
`United States v. Swiss Am. Bank, Ltd.,
`191 F.3d 30 (1st Cir. 1999) ................................... 20
`
`
`
`
`
`

`

`
`
`viii
`
`TABLE OF AUTHORITIES—continued
`
`Page
`
`United States v. Swiss Am. Bank, Ltd.,
`23 F. Supp. 2d 130 (D. Mass. 1998) ..................... 21
`Va. Military Inst. v. United States,
`508 U.S. 946 (1993) .............................................. 35
`Va. Uranium, Inc. v. Warren,
`139 S. Ct. 1894 (2019) .......................................... 11
`Vaden v. Discover Bank,
`556 U.S. 49 (2009) ................................................ 12
`Wallis v. Pan Am. Petroleum Corp.,
`384 U.S. 63 (1966) ................................................ 10
`Waste Control Specialists, LLC v. Envirocare of
`Texas, Inc., 199 F.3d 781 (5th Cir. 2000) ............. 28
`Zschernig v. Miller,
`389 U.S. 429 (1968) .............................................. 11
`
`STATUTES
`
`28 U.S.C. § 1331 ........................................ 1, 6, 15, 18
`28 U.S.C. § 1441(a) ........................................ 1, 26, 31
`Cal. Civ. Code §§ 3479, 3480, 3490 ...................... 4, 10
`Cal. Civ. Proc. Code § 731 .......................................... 4
`
`OTHER AUTHORITIES
`
`Restatement (Second) of Torts § 435 ....................... 10
`Restatement (Second) of Torts, §§ 826–31 .............. 10
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`1
`
`INTRODUCTION
`
`California’s 150-year-old public nuisance statute
`authorizes city and county attorneys to bring
`representative public nuisance claims on behalf of the
`People of the State of California for the wrongful and
`deceptive promotion of consumer products. This case
`involves two such actions against five oil-and-gas
`companies. The People allege that those companies
`substantially contributed to the creation of a public
`nuisance affecting infrastructure in Oakland and San
`Francisco by conducting a decades-long campaign to
`discredit the science of global warming, misrepresent
`and conceal the dangers of fossil fuels, and downplay
`the catastrophic consequences of climate change—all
`for the purpose and with the effect of inflating the
`market for their products.
`
`Applying settled legal principles, a unanimous
`Ninth Circuit panel (Ikuta, J.) rejected the companies’
`efforts to remove those state-law claims to federal
`court based on federal “arising-under” jurisdiction
`(28 U.S.C. §§ 1331, 1441(a)). The panel concluded
`that neither of “the two exceptions to the well-
`pleaded-complaint rule” applied: (1) the People’s
`claims did not satisfy Grable & Sons Metal Products,
`Inc. v. Darue Engineering & Manufacturing, 545 U.S.
`308 (2005), because they did not necessarily raise a
`substantial federal issue; and (2) those claims did not
`satisfy the complete-preemption doctrine, because
`they were not encompassed by a federal cause of
`action that Congress intended to be exclusive. Pet.
`App. 12a–16a.
`
`Petitioners do not challenge either of those
`conclusions. Instead, they urge this Court to grant
`certiorari to create a third exception to the well-
`
`
`
`
`
`

`

`2
`
`
`pleaded complaint rule for cases in which federal
`common law purportedly “governs” the plaintiff’s
`state-law claims but neither Grable nor complete
`preemption support removal. The Court should
`decline the invitation.
`
`First, this Court could not even consider
`petitioners’ proposed exception without creating an
`entirely new category of federal common law.
`Contrary to petitioners’ mischaracterizations of the
`complaints and California law, the People seek
`neither to regulate emissions nor to set climate
`change policy, but simply to hold petitioners liable for
`conducting deceptive marketing
`tactics while
`knowingly misrepresenting the dangers of their
`products. The People’s claims do not conflict with any
`uniquely federal interest, which federal common
`lawmaking demands. Instead, the claims fit squarely
`within the states’ traditional authority to protect
`residents from the impacts of misleading marketing
`and related practices. Federalizing the People’s
`claims would result in an unprecedented shift of
`lawmaking authority to federal judges.
`
`Second, petitioners identify no circuit conflict that
`warrants review of their proposed third exception to
`the well-pleaded complaint rule. In Grable, this Court
`established a straightforward test for determining
`whether a state-law claim “arises under” federal law
`absent complete preemption. Petitioners rely on cases
`pre-dating Grable, when no “well-defined test”
`existed, Merrill Lynch, Pierce, Fenner & Smith Inc. v.
`Manning, 136 S. Ct. 1562, 1571 (2016), and the
`“canvas” of opinions “look[ed] like one that Jackson
`Pollock got to first,” Gunn v. Minton, 568 U.S. 251,
`258 (2013). Grable brought “order to this unruly
`doctrine,” Gunn, 568 U.S. at 257, and appellate courts
`
`
`
`
`
`

`

`3
`
`
`have applied Grable to a range of federal issues since,
`including federal common law.
`
`Third, the Ninth Circuit properly applied Grable
`to the facts of these cases, and petitioners offer no
`persuasive reason to return to the “muddled” pre-
`Grable era of jurisdictional uncertainty. Manning,
`136 S. Ct. at 1571. Nor do they supply a principled
`basis for treating federal common law as anything
`more than an ordinary preemption defense that,
`under longstanding precedent, cannot create arising-
`under jurisdiction. Moreover, the Clean Air Act (CAA)
`displaced the body of federal common law that
`petitioners contend controls here. This Court has
`never held that displaced federal common law can
`render state-law claims removable, and long-settled
`precedent makes clear that it cannot. See Int’l Paper
`Co. v. Ouellette, 479 U.S. 481, 488–89, 500 (1987); Am.
`Elec. Power Co. v. Connecticut, 564 U.S. 410, 423
`(2011) (AEP).
`
`As for petitioners’ second Question Presented, the
`Ninth Circuit’s fact-bound application of Caterpillar
`Inc. v. Lewis, 519 U.S. 61 (1996), is equally
`uncertworthy. The People did not waive their
`objections to removal by amending their complaints
`to conform to the district court’s adverse remand
`ruling—as every circuit to consider analogous
`amendments has concluded. Nor did the panel hold
`that every case decided at the pleading stage must be
`remanded if the district court lacked jurisdiction at
`the time of removal. Instead, the panel appropriately
`declined to excuse the defects in petitioners’ removal
`based on the particular circumstances of these cases,
`after considering the relevant Caterpillar factors.
`
`
`
`
`
`

`

`
`
`4
`
`Finally, these questions are of minimal practical
`importance. This Court’s precedent already supplies
`clear answers to both, and petitioners’ proposed
`departures from that precedent would affect at most
`a small number of cases. Even if the Court were
`inclined to create a new exception to the well-pleaded
`complaint rule or revisit its decision in Caterpillar,
`these cases would be a poor vehicle for doing so. The
`petition addresses only one potential ground for
`removal, and four other fully briefed grounds for
`removal await adjudication by the district court.
`
`STATEMENT OF THE CASE
`
`A. Background
`
`City Attorneys for the City of Oakland and the
`City and County of San Francisco brought these two
`public nuisance actions in California state court
`under California’s representative public nuisance
`law, on behalf of the People of the State of California.
`Cal. Civ. Code §§ 3479, 3480, 3490; Cal. Civ. Proc.
`Code § 731. The complaints allege that petitioners
`have, for at least thirty years, “engaged in large-scale,
`sophisticated advertising and public relations
`campaigns to promote pervasive fossil fuel usage and
`to portray fossil fuels as environmentally responsible
`and essential to human well-being,” “even in the face
`of overwhelming scientific evidence that fossil fuels
`are altering the climate and that global warming has
`become an existential threat to modern life.” CA9
`Excerpts of Record (ER) 295, 362 (ECF 29). The
`People allege that petitioners’ wrongful campaign “to
`deny and discredit
`the mainstream scientific
`consensus on global warming” was designed to
`expand the market for products petitioners knew
`were harmful. Id.
`
`
`
`
`
`

`

`
`
`5
`
`Under California’s public nuisance statutes, the
`People must show that petitioners knowingly
`promoted and marketed their products for a use they
`knew was dangerous. Cty. of Santa Clara v. Atl.
`Richfield Co., 137 Cal.App.4th 292, 309 (2006)
`(“Liability is not based merely on production of a
`product or failure to warn,” but on “far more
`egregious” promotion activities akin “to instructing
`the purchaser to use the product in a hazardous
`manner”). Meeting that burden will entitle the People
`to an equitable abatement order requiring petitioners
`to ameliorate the public nuisance (e.g., to reinforce
`local infrastructure to improve resiliency to rising sea
`levels). See, e.g., ER 296–97, 331, 363–64, 398. The
`People’s complaints do not seek to stop global
`warming by regulating or enjoining emissions, but to
`mitigate the local nuisance impacts through discrete
`abatement measures.
`
`Although petitioners now acknowledge that fossil-
`fuel products “have led to global warming and ocean
`rise and will continue to do so,” Pet. App. 31a, they
`asserted the exact opposite throughout most of the
`period covered by these lawsuits, despite knowing the
`truth. The principal liability issues in these cases are
`whether petitioners misled the public about that
`knowledge, and whether their misrepresentations
`substantially contributed to the creation of a public
`nuisance as defined by California law. To the extent
`federal law may come into play at all, it will only be
`in connection with a potential affirmative defense of
`ordinary preemption.
`
`B. Proceedings Below
`
`The People’s state-court complaints each alleged a
`single claim under California’s representative public
`
`
`
`
`
`

`

`6
`
`
`nuisance statute. After petitioners removed, the
`People timely moved to remand, but the district court
`ruled that their claim arose under federal law and
`could only be pursued as a federal-common-law claim.
`Pet. App. 56a. In compliance with Stewart v. U.S.
`Bancorp, 297 F.3d 953, 959 (9th Cir. 2002), the People
`amended their complaints “to conform to the Court’s
`ruling” by adding a claim for public nuisance under
`federal common law, while “reserv[ing] all rights with
`respect to whether jurisdiction is proper in federal
`court.” ER 63, 115, 134, 180. Shortly thereafter, the
`district court granted petitioners’ Rule 12(b)(6)
`motions, concluding that although federal common
`law “governed” the People’s claims, it provided no
`rights or remedies. Pet. App. 45a.
`
`The Ninth Circuit rejected the district court’s
`analysis and vacated the order denying remand,
`holding that the People’s “state-law claim for public
`nuisance does not arise under federal law for
`purposes of 28 U.S.C. § 1331.” Pet. App. 2a. The panel
`further held that the People had not waived their
`challenge to subject-matter jurisdiction by amending
`their complaints to conform to the district court’s
`ruling while expressly preserving their appellate
`rights, and that considerations of finality, efficiency,
`and economy did not excuse the jurisdictional defect
`at the time of removal because the cases had been
`pending for “just over eight months” at the time of
`dismissal and “there had been no discovery.” Id. 17a–
`18a, 22a. The court remanded for the district court to
`adjudicate other asserted grounds for removal that
`the district court had not yet addressed. Id. 22a–23a.
`Those alternative grounds for federal subject-matter
`jurisdiction remain pending.
`
`
`
`
`
`

`

`
`
`7
`
`REASONS FOR DENYING THE PETITION
`
`I. No federal common law “governs” the
`People’s claims.
`
`1. Petitioners’ first Question Presented rests upon
`the mistaken
`premise
`that
`the People’s
`representative public nuisance claims seek to
`regulate cross-border air pollution. Petitioners argue
`that those claims “require a court to decide whether
`global
`fossil-fuel production and
`sales are
`‘unreasonable’—and thus tortious,” which they assert
`can only be decided under the federal common law of
`“interstate and international pollution.” Pet. 2, 4.
`That assertion misrepresents the allegations in the
`People’s complaints, misunderstands the standard for
`liability under California’s representative public
`nuisance statute, and mischaracterizes the available
`remedies.
`
`The People’s complaints charge that petitioners
`wrongfully “engaged in large-scale, sophisticated
`advertising and public relations campaigns” “to deny
`and discredit the mainstream scientific consensus on
`global warming, downplay the risks of global
`warming,” and “mislea[d] the public about global
`warming”—even as petitioners’ internal research
`confirmed that climate change was an inevitable and
`growing danger and that their products are a primary
`cause of that danger. ER 295, 315, 420–21, 439. The
`People’s claims invoke core state responsibilities
`rather than uniquely federal interests. No federal
`common law has ever encompassed claims of wrongful
`promotion and deceptive business practices, which
`are within the states’ traditional authority to
`regulate—especially where, as here, the defendants’
`conduct poses severe harms to public health and
`
`
`
`
`
`

`

`8
`
`
`safety. Whatever application federal common law
`might have when a plaintiff seeks to impose liability
`for
`“interstate pollution,” neither petitioners’
`emissions nor anyone else’s are the claimed basis for
`liability here. Consequently, the Court could not
`reach petitioners’ first Question Presented without
`creating a new category of federal common law, never
`before recognized, to “govern” the People’s wrongful-
`promotion claims.
`
`2. The People’s representative public nuisance
`claims under California law do not rest on allegations
`that a defendant “simply fail[ed] to warn of a defective
`product” or engaged in the “manufacture and
`distribution” of a hazardous product. People v.
`ConAgra Grocery Prods. Co., 17 Cal.App.5th 51, 84
`(2017), reh’g denied (Dec. 6, 2017), rev. denied
`(Feb. 14, 2018), cert. denied, 139 S. Ct. 377 (2018).
`Rather, the People allege “affirmative promotion [of
`the product] for a use [petitioners] knew to be
`hazardous.” Id.; see also City of Modesto Redev.
`Agency v. Superior Ct., 119 Cal.App.4th 28, 37–43
`(2004). That additional “affirmative conduct that
`assisted in the creation of a hazardous condition” is
`essential to the People’s public nuisance claims. Cty.
`of Santa Clara, 137 Cal.App.4th at 309.
`
`While the scope of an equitable abatement remedy
`may reflect the extent to which petitioners’ wrongful
`conduct was a proximate cause of damage to local
`infrastructure, petitioners’ liability in these cases
`rests upon proof that they conducted advertising and
`communications campaigns to promote the use of
`their products at levels they falsely claimed were safe
`and environmentally responsible, while deliberately
`concealing their risks. See ER 294–95, 315–23, 420–
`
`
`
`
`
`

`

`9
`
`
`21, 439–46; Pet. App. 12a. Remedying public
`nuisances and protecting consumers from deceptive
`business practices are core state responsibilities
`within the purview of state court systems. See, e.g.,
`California v. ARC Am. Corp., 490 U.S. 93, 101 (1989);
`Altria Grp., Inc. v. Good, 555 U.S. 70, 91 (2008) (state
`deceptive practices claims were not preempted by
`federal law); Fla. Lime & Avocado Growers, Inc. v.
`Paul, 373 U.S. 132, 150 (1963).
`
`3. Adjudicating these cases under California law
`will not require courts to “balance” or “weigh[]” the
`value of fossil-fuel production against its harms. Pet.
`2, 8, 10. Petitioners’ contrary argument reflects their
`continuing mischaracterization of
`the People’s
`complaints. While petitioners assert that the People
`must establish “fossil-fuel production and sales are
`‘unreasonable,’” Pet. 2 (emphasis added), the issue
`under California law is whether the interference with
`a public right caused by petitioners’ wrongful
`promotion is “substantial and unreasonable,” People
`ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1105 (1997);
`Cal. Civ. Code §§ 3479, 3480. Liability follows upon
`proof that petitioners’ affirmative and deceptive
`conduct was a “substantial factor in bringing about”
`the nuisance. ConAgra, 17 Cal.App.5th at 101; see,
`e.g., Citizens for Odor Nuisance Abatement v. City of
`San Diego, 8 Cal.App.5th 350, 359
`(2017);
`Restatement (Second) of Torts § 435. To the extent
`any “balancing” is required, the court will balance the
`social utility of petitioners’ tortious deception against
`its benefits. See, e.g., San Diego Gas & Elec. Co. v.
`Superior Ct., 13 Cal.4th 893, 938 (1996) (citing
`Restatement (Second) of Torts, §§ 826–31); Acuna, 14
`Cal.4th at 1105.
`
`
`
`
`
`

`

`
`
`10
`
`4. The People’s legal and factual allegations are
`qualitatively different from any this Court has held
`can give rise to federal common law. “The cases in
`which
`federal courts may engage
`in common
`lawmaking are few and far between.” Rodriguez v.
`F.D.I.C., 140 S. Ct. 713, 716 (2020). “[B]efore federal
`judges may claim a new area for common lawmaking,
`strict conditions must be satisfied,” id. at 717, the
`most basic being a “specific,” “concrete,” and
`“significant conflict” between a uniquely federal
`interest and the use of state law, O’Melveny & Myers
`v. F.D.I.C., 512 U.S. 79, 88 (1994); see also Miree v.
`DeKalb Cty., Ga., 433 U.S. 25, 31 (1977); Wallis v. Pan
`Am. Petroleum Corp., 384 U.S. 63, 69–71 (1966).
`
`In the nuisance context, the Court has recognized
`a federal common law only where a State plaintiff’s
`cause of action had the purpose and effect of
`regulating releases of contaminants from a specific
`out-of-state source. See Illinois v. City of Milwaukee,
`Wis., 406 U.S. 91, 107 (1972) (Milwaukee I); New
`Jersey v. City of New York, 283 U.S. 473, 477, 481–483
`(1931); Georgia v. Tenn. Copper Co., 240 U.S. 650
`(1916); Missouri v. Illinois, 180 U.S. 208, 241–43
`(1901); see also Ouellette, 479 U.S. at 488. The
`People’s allegations here, the elements of a California
`public nuisance action, and the relief they seek—all of
`which sound in consumer and public deception—
`do not fit that mold.
`
`The Ninth Circuit correctly held that petitioners
`have not “identif[ied] a legal issue” requiring federal
`adjudication that could satisfy Grable, and that
`petitioners’ invocation of generic “federal interests”
`was insufficient to support removal jurisdiction. Pet.
`App. 13a. Yet, petitioners’ arguments here rest on
`
`
`
`
`
`

`

`11
`
`
`their same “suggest[ion] that the [People’s] state-law
`claim implicates a variety of ‘federal interests,’”
`broadly construed. Pet. App. 13a. Even traditional
`conflict preemption analysis (which cannot support
`removal) does not countenance a “freewheeling
`judicial inquiry into whether a state statute is in
`tension with federal objectives,” because “such an
`endeavor would undercut the principle that it is
`Congress rather than the courts that pre-empts state
`law.” Chamber of Com. of U.S. v. Whiting, 563 U.S.
`582, 607 (2011) (cleaned up); see, e.g., Miree, 433 U.S.
`at 29. “Invoking some brooding federal interest or
`appealing to a judicial policy preference should never
`be enough to win preemption of a state law.” Va.
`Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1901 (2019).
`
`Petitioners ignore those bedrock principles of
`federalism and separation of powers when they ask
`this Court to create a new category of federal common
`law encompassing the People’s deception-based
`claims. Holding petitioners liable for knowing and
`deceitful corporate conduct does not implicate—much
`less conflict with—any uniquely federal interest. See
`e.g., California v. ARC Am. Corp., 490 U.S. at 101.
`Nor does combatting such conduct impermissibly
`“launch the State upon a prohibited voyage into a
`domain of exclusively federal competence.” Zschernig
`v. Miller, 389 U.S. 429, 442 (1968) (Stewart, J.,
`concurring). Petitioners urge the Court to conclude
`that arising-under jurisdiction applies to a public
`entity’s state-law efforts “to regulate interstate and
`international greenhouse-gas emissions,” Pet. 20, but
`the People’s complaints do nothing of the kind.
`
`
`
`
`
`

`

`
`
`12
`
`II. Petitioners’ federal-common-law theory
`of removal does not warrant review.
`
`Even if the Court were inclined to create a new
`category of federal common law to encompass the
`People’s deception-based claims, the Ninth Circuit’s
`application of the well-pleaded complaint rule would
`not warrant review.
`
`A case arises under federal law (and is therefore
`removable) “only when the plaintiff’s statement of his
`own cause of action shows that it is based upon
`federal law.” Vaden v. Discover Bank, 556 U.S. 49, 60
`(2009) (brackets omitted). Federal “[j]urisdiction may
`not be sustained on a theory that the plaintiff has not
`advanced.” Merrell Dow Pharms. Inc. v. Thompson,
`478 U.S. 804, 809 n.6 (1986). Nor can it rest on “a
`federal defens

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket