throbber

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`Case: 19-1818 Document: 317 Page: 1 Date Filed: 08/04/2021 Entry ID: 6438325Case: 19-1818 Document: 00117771775 Page: 1 Date Filed: 08/05/2021 Entry ID: 6438494
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`UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
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`No. 19-1818
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`STATE OF RHODE ISLAND,
`Plaintiff/Appellee,
`
`v.
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`SHELL OIL PRODUCTS CO., LLC; CHEVRON CORP.; CHEVRON USA,
`INC.; EXXONMOBIL CORP.; BP, PLC; BP AMERICA, INC.; BP PRODUCTS
`NORTH AMERICA, INC.; ROYAL DUTCH SHELL PLC; MOTIVA ENTER-
`PRISES, LLC; CITGO PETROLEUM CORP.; CONOCOPHILLIPS; CONO-
`COPHILLIPS COMPANY; PHILLIPS 66; MARATHON OIL COMPANY;
`MARATHON OIL CORPORATION; MARATHON PETROLEUM CORP.;
`MARATHON PETROLEUM COMPANY, LP; SPEEDWAY, LLC; HESS
`CORP.; LUKOIL PAN AMERICAS LLC; DOES 1-100,
`Defendants/Appellants
`
`GETTY PETROLEUM MARKETING, INC.,
`Defendant.
`
`
`On Appeal from the United States District Court for the
`District of Rhode Island, No. 1:18-cv-00395-WES-LDA,
`The Honorable William E. Smith, Judge
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`
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`AMICUS BRIEF OF INDIANA AND 14 OTHER STATES
`IN SUPPORT OF APPELLANTS AND REVERSAL
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`Office of the Attorney General
`IGC South, Fifth Floor
`302 W. Washington Street
`Indianapolis, IN 46204
`(317) 232-6255
`Tom.Fisher@atg.in.gov
`
`
`
`THEODORE E. ROKITA
`Attorney General of Indiana
`THOMAS M. FISHER
`Solicitor General
`KIAN J. HUDSON
`Deputy Solicitor General
`JULIA C. PAYNE
`Deputy Attorney General
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`Counsel for Amici Curiae
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ...................................................................... ii
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`INTEREST OF AMICI STATES ............................................................... 1
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`SUMMARY OF THE ARGUMENT .......................................................... 1
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`ARGUMENT ............................................................................................. 4
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`I.
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`Federal Law Must Govern Any Common-Law Claims To Abate
`Global Climate Change .................................................................... 4
`
`
`II. Because Rhode Island’s Public-Nuisance Claim Is Governed
`by Federal Common Law, It Necessarily Arises Under Federal
`Law, and Removal Is Therefore Proper ......................................... 10
`
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`CONCLUSION ........................................................................................ 16
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`ADDITIONAL COUNSEL ...................................................................... 17
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`CERTIFICATE OF COMPLIANCE ........................................................ 18
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`CERTIFICATE OF SERVICE ................................................................. 19
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`i
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`

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`
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`CASES
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`TABLE OF AUTHORITIES
`
`American Electric Power Co., Inc. v. Connecticut,
`564 U.S. 410 (2011) ........................................................................... 7, 8
`
`Avco Corp. v. Aero Lodge No. 735,
`390 U.S. 557 (1968) ............................................................................. 12
`
`Banco Nacional de Cuba v. Sabbatino,
`376 U.S. 398 (1964) ................................................................. 4, 5, 7, 14
`
`BIW Deceived v. Local S6,
`132 F.3d 824 (1st Cir. 1997) ............................................................... 12
`
`Boyle v. United Techs. Corp.,
`487 U.S. 500 (1988) ..................................................................... passim
`
`BP P.L.C. v. Mayor & City Council of Baltimore,
`141 S. Ct. 1532 (2021) ........................................................................... 1
`
`Caterpillar Inc. v. Williams,
`482 U.S. 386 (1987) ............................................................................. 11
`
`City of New York v. Chevron Corp.,
`993 F.3d 81 (2d Cir. 2021) ............................................................ 13, 14
`
`Clearfield Trust Co. v. United States,
`318 U.S. 363 (1943) ............................................................................... 4
`
`Erie Railroad Co. v. Tompkins,
`304 U.S. 64 (1938) ................................................................................. 4
`
`Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust
`for S. Cal.,
`463 U.S. 1 (1983) ................................................................................. 12
`
`Hinderlider v. La Plata River Co.,
`304 U.S. 92 (1938) ........................................................................... 4, 7
`
`ii
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`

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`CASES [CONT’D]
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`Home Depot U.S.A., Inc. v. Jackson,
`139 S. Ct. 1743 (2019) ..................................................................... 2, 10
`
`Illinois v. City of Milwaukee,
`406 U.S. 91 (1972) ....................................................................... passim
`
`Martin v. Franklin Capital Corp.,
`546 U.S. 132 (2005) ............................................................................... 2
`
`New SD, Inc. v. Rockwell Int’l Corp.,
`79 F.3d 953 (9th Cir. 1996) ................................................................. 13
`
`Rivet v. Regions Bank of La.,
`522 U.S. 470 (1998) ............................................................................. 12
`
`Sam L. Majors Jewelers v. ABX, Inc.,
`117 F.3d 922 (5th Cir. 1997) ............................................................... 13
`
`Texas v. Pankey,
`441 F.2d 236 (10th Cir. 1971) ............................................................... 6
`
`Tex. Indus., Inc. v. Radcliff Materials, Inc.,
`451 U.S. 630 (1981) ............................................................................... 6
`
`STATUTES
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`28 U.S.C. § 1331 ...................................................................................... 10
`
`28 U.S.C. § 1441 ........................................................................................ 2
`
`28 U.S.C. § 1447(d) .................................................................................... 1
`
`OTHER AUTHORITIES
`
`Charles Alan Wright & Arthur R. Miller, Federal Common
`Law, 19 Fed. Prac. & Proc. Juris. § 4514 (3d ed. 2021) ..................... 11
`
`Henry J. Friendly, In Praise of Erie—and of the New Federal
`Common Law, 39 N.Y.U. L. Rev. 383 (1964) ................................... 5, 7
`
`
`
`iii
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`

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`INTEREST OF AMICI STATES
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`The States of Indiana, Alabama, Alaska, Arkansas, Georgia, Kan-
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`sas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, South Caro-
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`lina, Texas, Utah, and Wyoming respectfully submit this brief as amici
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`curiae in support of the defendant energy producers. The Supreme Court
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`remanded this case in light of BP P.L.C. v. Mayor & City Council of Bal-
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`timore, 141 S. Ct. 1532, 1538 (2021), which held that 28 U.S.C. §
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`1447(d)—a statute that permits appellate review of orders remanding
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`cases removed under the federal-officer or civil-rights removal statutes—
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`authorizes appellate consideration of all grounds raised for removal.
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`Amici States urge this Court to hold that federal law entitled the defend-
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`ants to remove this case—and to thereby prevent a state court from re-
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`solving a common-law claim expressly premised on global climate
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`change.
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`SUMMARY OF THE ARGUMENT
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`In this case the State of Rhode Island seeks judicial resolution of
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`one of the most complicated and contentious issues confronting policy-
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`makers today—global climate change. It seeks abatement of injuries it
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`claims are caused by global climate change, which it in turn argues is
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`1
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`caused by greenhouse gases emitted by countless entities around the
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`world. Yet in this suit, Rhode Island takes aim at just a handful of com-
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`panies: It contends that these companies, by producing fossil fuels and
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`promoting their use, have broken the law—but not law enacted by a leg-
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`islature, promulgated by an agency, or negotiated by a President. Rather,
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`the law Rhode Island invokes is the common law: It claims the production
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`and promotion of fossil fuels constitutes a common-law “public nuisance”
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`such that courts may impose on the defendant energy producers all the
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`costs of remedying its alleged climate-change injuries. Federal law gives
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`the defendants a right to have this claim heard by a federal court.
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`For more than 230 years, federal law has, in certain circumstances,
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`“grant[ed] defendants a right to a federal forum.” Martin v. Franklin Cap-
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`ital Corp., 546 U.S. 132, 137 (2005). Today, the general removal statute,
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`28 U.S.C. § 1441, entitles a defendant to remove a case filed in state court
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`if the state-court “action could have been brought originally in federal
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`court”—such as when the case “raises claims arising under federal law”
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`under the federal-question statute. Home Depot U.S.A., Inc. v. Jackson,
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`139 S. Ct. 1743, 1748 (2019).
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`2
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`

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`Here, the defendant energy producers were entitled to remove the
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`case because Rhode Island’s common-law public-nuisance claim arises
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`under federal law. The Supreme Court has long held that federal common
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`law must govern common-law claims concerning interstate pollution, see
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`Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972), and Rhode Island’s
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`claim pertains not merely to interstate air pollution, but to international
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`air pollution: It asks courts to craft rules of decision assigning liability
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`for global climate change—an incredibly complex, value-laden question
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`that affects every State and every citizen in the country. The claim thus
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`necessarily arises under federal common law, and Rhode Island cannot
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`evade federal-court jurisdiction by merely affixing a state-law label to
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`what is in truth a federal-law claim.
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`The district court’s contrary conclusion not only contravenes bind-
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`ing precedent, but also threatens to give Rhode Island state courts the
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`power to set climate-change policy for the entire country. Such a result
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`excludes other States from the climate-change policymaking process and
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`threatens to undermine the cooperative federalism model our country
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`has long used to address environmental problems. This Court should re-
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`ject this outcome and reverse the decision below.
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`3
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`ARGUMENT
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`I.
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`Federal Law Must Govern Any Common-Law Claims To
`Abate Global Climate Change
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`1.
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`In Erie Railroad Co. v. Tompkins, the Supreme Court recog-
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`nized that federal courts have no power to supplant state common law
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`with “federal general common law,” 304 U.S. 64, 78 (1938) (emphasis
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`added). The Court soon made it clear, however, that this principle does
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`not prevent specialized federal common law from exclusively governing ar-
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`eas that implicate unique federal interests. “[I]n an opinion handed down
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`the same day as Erie and by the same author, Mr. Justice Brandeis, the
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`Court declared, ‘For whether the water of an interstate stream must be
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`apportioned between the two States is a question of federal common
`
`law.’” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964)
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`(quoting Hinderlider v. La Plata River Co., 304 U.S. 92, 110 (1938)).
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`Indeed, less than five years after Erie, the Court issued its seminal
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`decision in Clearfield Trust Co. v. United States, holding that federal
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`common law governs the “rights and duties of the United States on
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`commercial paper which it issues.” 318 U.S. 363, 366 (1943). And in the
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`nearly eighty years since Clearfield, the Court has held that federal
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`common law necessarily and exclusively governs disputes in numerous
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`4
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`other areas as well. See, e.g., Banco Nacional de Cuba, 376 U.S. at 425–
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`27 (holding, in light of “the potential dangers were Erie extended to legal
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`problems affecting international relations,” that “the scope of the act of
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`state doctrine must be determined according to federal law”); Boyle v.
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`United Techs. Corp., 487 U.S. 500, 507 (1988) (holding that the unique
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`federal concerns pertaining to military procurement and the potential for
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`significant conflicts with federal policy mean that federal common law,
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`not state common law, must govern design-defect claims brought against
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`manufacturers of military equipment).
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`Accordingly, the “clarion yet careful pronouncement of Erie, ‘There
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`is no federal general common law,’ opened the way to what, for want of a
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`better term, we may call specialized federal common law.” Henry J.
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`Friendly, In Praise of Erie—and of the New Federal Common Law, 39
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`N.Y.U. L. Rev. 383, 405 (1964) (quoting Erie, 304 U.S. at 78). And it is
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`now firmly established that this specialized federal common law applies
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`to the “few areas, involving ‘uniquely federal interests,’” that “are so com-
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`mitted by the Constitution and laws of the United States to federal con-
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`trol” that they must be “governed exclusively by federal law.” Boyle, 487
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`5
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`

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`U.S. at 504 (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.
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`630, 640 (1981)).
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`2.
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`Of relevance here, for nearly half a century the Supreme
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`Court has held that one area of “uniquely federal interest” to which fed-
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`eral common law must apply is interstate pollution: “When we deal with
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`air and water in their ambient or interstate aspects, there is a federal
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`common law.” Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972). In
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`Illinois, the Court considered “whether pollution of interstate or naviga-
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`ble waters creates actions arising under the ‘laws’ of the United States
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`within the meaning of § 1331(a) [the federal-question statute].” Id. at 99.
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`And, crucially, it held “that it does.” Id.
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`The Court explained that an earlier Tenth Circuit decision had
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`“stated the controlling principle”—“‘the ecological rights of a State in the
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`improper impairment of them from sources outside the State’s own terri-
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`tory. . . [is] a matter having basis and standard in federal common law
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`and so directly constituting a question arising under the laws of the
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`United States.’” Id. at 99–100 (quoting Texas v. Pankey, 441 F.2d 236,
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`240 (10th Cir. 1971)). It further analogized interstate-pollution disputes
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`to disputes “concerning interstate waters,” which Hinderlider more than
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`6
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`

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`three decades prior had “‘recognized as presenting federal questions.’” Id.
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`at 105 (quoting Hinderlider, 304 U.S. at 110). The result: A common-law
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`claim that arises from a dispute over interstate pollution implicates “an
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`overriding federal interest in the need for a uniform rule of decision” and
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`“touch[] basic interests of federalism,” and accordingly in such cases fed-
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`eral courts have jurisdiction to “fashion[] federal common law.” Id. at 105
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`n.6 (citing Banco Nacional de Cuba, 376 U.S. at 421–27).
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`Notably, in American Electric Power Co., Inc. v. Connecticut, the
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`Court reiterated its conclusion that “‘[w]hen we deal with air and water
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`in their ambient or interstate aspects, there is a federal common law.’”
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`564 U.S. 410, 421 (2011) (quoting Illinois, 406 U.S. at 103). Again, the
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`Court explained that specialized federal common law governs “‘subjects
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`within national legislative power where Congress has so directed’ or
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`where the basic scheme of the Constitution so demands.” Id. (quoting
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`Friendly, supra, at 408 n.119, 421–22). And because the “‘national legis-
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`lative power’” includes the power to adopt “environmental protection”
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`laws addressing interstate pollution, federal courts can, “if necessary,
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`even ‘fashion federal law’” in this area. Id. (quoting Friendly, supra, at
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`421–22).
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`7
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`

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`In sum, the Supreme Court has repeatedly held that federal com-
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`mon law governs disputes involving air in its “‘ambient or interstate as-
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`pects.’” Id. at 421 (quoting Illinois, 406 U.S. at 103). Federal common law
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`must therefore apply to Rhode Island’s public-nuisance claim, which
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`plainly seeks redress for injuries allegedly caused by interstate air pollu-
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`tion. Indeed, the Court’s reasons for employing federal common law in
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`Illinois apply with even greater force here, where Rhode Island itself
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`claims its injuries have been produced by a long chain of conduct—in-
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`cluding conduct of third parties—that occurred all over the globe. Under
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`Illinois and American Electric Power, if the complex and controversial
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`policy questions underlying such claims are going to be resolved by courts
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`at all, those defending against them are entitled to have federal courts
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`resolve these claims by applying federal common law.
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`3.
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`This case powerfully illustrates why the Supreme Court has
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`held that in such areas of unique federal interest any common-law rules
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`of decision must be articulated by federal courts. State courts have no
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`business deciding how global climate change should be addressed and
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`who—among all the countless actors around the world whose conduct
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`contributes to it—bears legal responsibility for creating it. In addition to
`
`8
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`

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`the obvious potential for gross unfairness, such state-court-created com-
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`mon-law rules would inevitably intrude upon the federal government’s
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`constitutional authority over foreign policy and “present a ‘significant
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`conflict’ with federal policy” in this area. Boyle, 487 U.S. at 512. Among
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`many other problems, state-common-law rules would undermine the reg-
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`ulatory authority States themselves have under carefully calibrated co-
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`operative-federalism programs—programs that are administered by po-
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`litically accountable officials at the federal, state, and local levels.
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`Making matters still worse, Rhode Island is not alone in urging
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`state courts to impose judicial answers to the question of climate change.
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`Many other jurisdictions have filed similar common-law public-nuisance
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`claims, and if such claims are left in state court, chances are that at least
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`some state courts will be receptive. The result would inevitably be a
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`patchwork of conflicting standards purporting to create liability for the
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`same extraterritorial conduct.
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`Any worldwide allocation of responsibility for remediation of cli-
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`mate change requires national or international action, not ad hoc inter-
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`vention by individual state courts acting at the behest of a handful of
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`9
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`

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`state and local governments. It is precisely for this reason that the Su-
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`preme Court long ago held that if plaintiffs are going to ask courts to give
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`common-law answers to questions of interstate pollution, defendants
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`have a right to ensure that any such courts are federal courts applying
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`federal common law. See Illinois, 406 U.S. at 103.
`
`II. Because Rhode Island’s Public-Nuisance Claim Is Governed
`by Federal Common Law, It Necessarily Arises Under Fed-
`eral Law, and Removal Is Therefore Proper
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`That federal common law governs Rhode Island’s public-nuisance
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`claim necessarily means this case is removable to federal court. The fed-
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`eral-question statute gives district courts jurisdiction to hear claims
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`sounding in federal common law, which means Rhode Island’s action
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`“could have been brought originally in federal court,” Home Depot U.S.A.,
`
`Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019). Accordingly, “the general
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`removal statute[] permits” the defendant energy producers “to remove
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`that action to federal court.” Id. at 1746.
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`1.
`
`The federal-question statute gives federal district courts
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`“original jurisdiction” over “all civil actions arising under the Constitu-
`
`tion, laws, or treaties of the United States.” 28 U.S.C. § 1331. And it is
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`well-established that a “case ‘arising under’ federal common law presents
`
`10
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`

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`a federal question and as such is within the original subject matter juris-
`
`diction of the federal courts.” Charles Alan Wright & Arthur R. Miller,
`
`Federal Common Law, 19 Fed. Prac. & Proc. Juris. § 4514 (3d ed. 2021).
`
`The Supreme Court applied this rule in Illinois v. City of Milwaukee: It
`
`held that common-law claims that, as here, seek abatement of interstate
`
`pollution must be governed by federal common law and thus create “ac-
`
`tions arising under the ‘laws’ of the United States within the meaning of
`
`§ 1331(a).” 406 U.S. 91, 99 (1972).
`
`2.
`
`Crucially, the district court had jurisdiction over this case be-
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`cause Rhode Island’s public-nuisance claim—rather than merely being
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`subject to a federal-law defense—necessarily arises under federal com-
`
`mon law. And that means Rhode Island cannot simply stamp its public
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`nuisance claim with a state-law label and thereby deprive federal courts
`
`of jurisdiction.
`
`Generally, a plaintiff is “the master of the claim” and “may avoid
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`federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v.
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`Williams, 482 U.S. 386, 392 (1987). Yet, “[a]llied as an ‘independent cor-
`
`ollary’ to the well-pleaded complaint rule is the further principle that ‘a
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`plaintiff may not defeat removal by omitting to plead necessary federal
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`11
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`

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`questions.’” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quot-
`
`ing Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S.
`
`Cal., 463 U.S. 1, 22 (1983)). Rhode Island cannot evade the reach of fed-
`
`eral law or federal courts by declaring unilaterally that its claims arise
`
`under state law. “If a court concludes that a plaintiff has ‘artfully pleaded’
`
`claims in this fashion, it may uphold removal even though no federal
`
`question appears on the face of the plaintiff’s complaint.” Id. In other
`
`words, when a plaintiff raises a nominal state-law claim that is actually
`
`governed by federal law, removal is proper.
`
`Such was the foundation of the Supreme Court’s decision in Avco
`
`Corp. v. Aero Lodge No. 735, which held that an action to enforce a pro-
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`vision of a collective bargaining agreement was “controlled by federal
`
`substantive law even though it is brought in a state court”—and was
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`therefore removable to federal court—because the action necessarily
`
`arose under federal law. 390 U.S. 557, 560 (1968). And this Court—as
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`well as other circuit courts—has applied this reasoning to uphold re-
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`moval of cases raising purportedly state-law claims that in truth arise
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`under federal law. See BIW Deceived v. Local S6, 132 F.3d 824, 831 (1st
`
`Cir. 1997) (“If the claim appears to be federal in nature—that is, if it
`
`12
`
`

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`meets the applicable test for one that arises under federal law—then the
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`federal court must recharacterize the complaint to reflect that reality and
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`affirm the removal despite the plaintiff’s professed intent to pursue only
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`state-law claims.”); Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922,
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`926–28 (5th Cir. 1997) (citing Illinois and holding that, notwithstanding
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`plaintiff’s nominal plea of a state-law claim, federal common law applies
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`to—and confers federal-question jurisdiction over—air-transit lost-cargo
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`claims because Congress preserved a “federal common law cause of action
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`against air carriers for lost shipments”); New SD, Inc. v. Rockwell Int’l
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`Corp., 79 F.3d 953, 955 (9th Cir. 1996) (holding that federal, rather than
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`state, common law provides the rule of decision—and a basis for federal
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`question jurisdiction—to a dispute over a federal defense contract).
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`Indeed, the Second Circuit recently held that New York City—
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`which raised a remarkably similar climate-change public-nuisance claim
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`against many of the same defendants—could not evade the reach of fed-
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`eral law by simply declaring that its claim arose under state law. See City
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`of New York v. Chevron Corp., 993 F.3d 81, 91–93 (2d Cir. 2021). Federal
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`common law must govern claims “seeking to recover damages for the
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`13
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`harms caused by global greenhouse gas emissions,” regardless of the la-
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`bel used in the complaint: “Artful pleading cannot transform the City’s
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`complaint into anything other than a suit over global greenhouse gas
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`emissions.” Id. at 91. As here, it was “precisely because fossil fuels emit
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`greenhouse gases—which collectively ‘exacerbate global warming’—that
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`the [plaintiff was] seeking damages.” Id.
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`Because these claims are governed by federal common law, artful
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`pleading cannot be allowed to avert the removal of such claims, for bar-
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`ring removal would put state courts in the position of creating federal
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`common-law. And that would undermine the very purpose of federal
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`common law, which is to ensure that in “a few areas, involving uniquely
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`federal interests,” the rules of decision “are governed exclusively by
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`federal law.” Boyle v. United Techs. Corp., 487 U.S. 500, 504 (1988)
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`(internal quotation marks and citations omitted). Where, as here, the
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`rules of decision “must be determined according to federal law,” “state
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`courts [are] not left free to develop their own doctrines.” Banco Nacional
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`de Cuba v. Sabbatino, 376 U.S. 398, 426–27 (1964).
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`In contrast with disputes over the meaning of federal statutory or
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`constitutional provisions, common-law cases require courts to make
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`14
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`difficult judgments about what “seem[s] to [them] sound policy,” Boyle,
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`487 U.S. at 513, which is why state-court common-law decisions are
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`usually understood to announce state common law. Permitting plaintiffs
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`to compel state-court adjudication of federal-common-law claims, how-
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`ever, would put state courts in the position of deciding for themselves
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`federal common law—or perhaps guessing what policy judgments the
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`Supreme Court would adopt.
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`The Supreme Court’s decisions do not give plaintiffs such power.
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`They instead hold that in certain areas, such as those involving interstate
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`pollution, any common-law rules claim must be decided under federal
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`common-law rules. And because such claims arise under federal law, de-
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`fendants have the right to ensure such rules are crafted by federal
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`judges—that is, judges appointed by a nationally elected president and
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`confirmed by a Senate in which every State is entitled to equal
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`representation. Here, because Rhode Island’s interstate-pollution public-
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`nuisance claim necessarily arises under federal common law, the district
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`court had jurisdiction to consider the claim, and the defendants were
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`entitled to remove the case to federal court.
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`15
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`CONCLUSION
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`This Court should reverse the district court’s remand order.
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`Respectfully submitted,
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`THEODORE E. ROKITA
`Attorney General of Indiana
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`s/Thomas M. Fisher
`THOMAS M. FISHER
`Solicitor General
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`KIAN J. HUDSON
`Deputy Solicitor General
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`JULIA C. PAYNE
`Deputy Attorney General
`
`Office of the Attorney General
`IGC South, Fifth Floor
`302 W. Washington Street
`Indianapolis, IN 46204
`(317) 232-6255
`Tom.Fisher@atg.in.gov
`
`16
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`Case: 19-1818 Document: 317 Page: 21 Date Filed: 08/04/2021 Entry ID: 6438325Case: 19-1818 Document: 00117771775 Page: 21 Date Filed: 08/05/2021 Entry ID: 6438494
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`ADDITIONAL COUNSEL
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`
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`STEVE MARSHALL
`Attorney General
`State of Alabama
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`TREG TAYLOR
`Attorney General
`State of Alaska
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`LESLIE RUTLEDGE
`Attorney General
`State of Arkansas
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`CHRISTOPHER CHARR
`Attorney General
`State of Georgia
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`DEREK SCHMIDT
`Attorney General
`State of Kansas
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`DANIEL CAMERON
`Attorney General
`Commonwealth of Kentucky
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`JEFF LANDRY
`Attorney General
`State of Louisiana
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`LYNN FITCH
`Attorney General
`State of Mississippi
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`AUSTIN KNUDSEN
`Attorney General
`State of Montana
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`DOUG PETERSON
`Attorney General
`State of Nebraska
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`ALAN WILSON
`Attorney General
`State of South Carolina
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`KEN PAXTON
`Attorney General
`State of Texas
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`SEAN REYES
`Attorney General
`State of Utah
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`BRIDGET HILL
`Attorney General
`State of Wyoming
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`17
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`Case: 19-1818 Document: 317 Page: 22 Date Filed: 08/04/2021 Entry ID: 6438325Case: 19-1818 Document: 00117771775 Page: 22 Date Filed: 08/05/2021 Entry ID: 6438494
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`CERTIFICATE OF COMPLIANCE
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`Pursuant to Federal Rule of Appellate Procedure 32(g)(1), the un-
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`dersigned certifies that this brief complies with the applicable typeface,
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`type-style, and type-volume limitations. This brief was prepared using a
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`proportionally spaced type (Century Schoolbook, 14 point). Exclusive of
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`the portions exempted by Federal Rule of Appellate Procedure 32(f), this
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`brief contains 2,999 words. This certificate was prepared according to
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`the word-count function of Microsoft Word, the word-processing program
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`used to prepare this brief.
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` By: s/ Thomas M. Fisher
`Thomas M. Fisher
`Solicitor General
`
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`18
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`

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`Case: 19-1818 Document: 317 Page: 23 Date Filed: 08/04/2021 Entry ID: 6438325Case: 19-1818 Document: 00117771775 Page: 23 Date Filed: 08/05/2021 Entry ID: 6438494
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 4, 2021, I electronically filed the
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`foregoing with the Clerk of the Court for the United States Court of Ap-
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`peals for the First Circuit by using the CM/ECF system. I certify that all
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`participants in the case are reg

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