On Monday, the city of Oakland, the city and county of San Francisco on behalf of the people of the state of California filed a brief in the Supreme Court opposing five oil-and-gas companies’ petition for a writ of certiorari in an appeal from the Ninth Circuit’s ruling.
The case was brought by the California cities against BP PLC, Chevron Corporation, ConocoPhillips Company, Exxon Mobil Corporation, and Royal Dutch Shell PLC, for their purported “substantial() contribut(ions) 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.”
While the case concerns climate change, the petition for certiorari concerns more procedural issues. According to the brief, the case presents two questions: “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” and “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.”
The respondents noted that the Ninth Circuit rejected the companies’ attempts to remove the state law claims to federal court under federal “arising under” jurisdiction, finding that none of the exceptions to the well-pleaded-complaint rule applied. The respondents asserted that the petitioners urged the Supreme Court to “grant certiorari to create a third exception to the well-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.”
Oakland and San Francisco argued that the Supreme Court should deny the petition because no federal law “governs” their claims. The respondents claim that the Supreme Court would need to create a new category of federal common law, adding that the municipalities seek to hold the companies liable for their alleged deceptive marketing tactics and dangerous conduct, not to regulate cross-border air pollution. They noted that their claims “do not conflict with any uniquely federal interest, which federal common lawmaking demands.” Rather, according to the respondents, their claims “fit squarely within the states’ traditional authority to protect residents from the impacts of misleading marketing and related practices.” Thus, making their claims federal “would result in an unprecedented shift of lawmaking authority to federal judges.”
The respondents proffer edthat the petitioners’ federal-common-law theory of removal does not warrant review because the Ninth Circuit’s application of the well-pleaded complaint rule does not implicate a circuit split and the appellate panel properly applied the Supreme Court’s precedent in that established a test for determining if a state-law claim “arises under” federal law without complete preemption. The respondents added that the Clean Air Act displaces the federal common law that the petitioners claim controls the instant action and the Supreme Court “has never held that displaced federal common law can render state-law claims removable, and long-settled precedent makes clear that it cannot.”
Lastly, the respondents aver that the questions presented in this case have “minimal practical importance” and this Supreme Court petition “is a poor vehicle to review them” because the Supreme Court has a precedent that already has clear answers to the questions and “the petitioners’ proposed departures from that precedent would affect at most a small number of cases” adding that this petition only addresses one possible ground for removal and there are four other fully-briefed grounds for removal awaiting adjudication by the district court.
BP is represented by Arnold & Porter Kaye Scholer LLP. Chevron is represented by Sidley Austin LLP and Gibson, Dunn & Crutcher LLP. ConocoPhillips is represented by Bartlit Beck LLP. Exxon Mobil is represented by Paul, Weiss, Rifkind, Wharton & Garrison LLP and O’Melveny & Myers LLP. Royal Dutch Shell is represented by Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C..