United States District Court, D. Maryland
Lipton Hollander United States District Judge
Memorandum Opinion, the Court determines whether a suit
concerning climate change was properly removed from a
Maryland state court to federal court.
Mayor and City Council of Baltimore (the “City”)
filed suit in the Circuit Court for Baltimore City against
twenty-six multinational oil and gas companies. See
ECF 42 (Complaint). The City alleges that defendants have
substantially contributed to greenhouse gas pollution, global
warming, and climate change by extracting, producing,
promoting, refining, distributing, and selling fossil fuel
products (i.e., coal, oil, and natural gas), while
simultaneously deceiving consumers and the public about the
dangers associated with those products. Id.
¶¶ 1-8. As a result of such conduct, the City
claims that it has sustained and will sustain “climate
change-related injuries.” Id. ¶ 102.
According to the City, the injuries from
“[a]nthropogenic (human-caused) greenhouse gas
pollution, ” id. ¶ 3, include a rise in
sea level along Maryland's coast, as well as an increase
in storms, floods, heatwaves, drought, extreme precipitation,
and other conditions. Id. ¶ 8.
Complaint asserts eight causes of action, all founded on
Maryland law: public nuisance (Count I); private nuisance
(Count II); strict liability for failure to warn (Count III);
strict liability for design defect (Count IV); negligent
design defect (Count V); negligent failure to warn (Count
VI); trespass (Count VII); and violations of the Maryland
Consumer Protection Act, Md. Code (2013 Repl. Vol., 2019
Supp.), Com. Law §§ 13-101 to 13-501 (Count VIII).
Id. ¶¶ 218-98. The City seeks monetary
damages, civil penalties, and equitable relief. Id.
the defendants, Chevron Corp. and Chevron U.S.A., Inc.
(collectively, “Chevron”), timely removed the
case to this Court. ECF 1 (Notice of Removal). Asserting a
battery of grounds for removal, Chevron underscores that the
case concerns “global emissions”
(id. at 3) with “uniquely federal
interests” (id. at 6) that implicate
“bedrock federal-state divisions of
responsibility[.]” Id. at 3.
eight grounds for removal are as follows: (1) the case is
removable under 28 U.S.C. § 1441(a) and § 1331,
because the City's claims are governed by federal common
law, not state common law; (2) the action raises disputed and
substantial issues of federal law that must be adjudicated in
a federal forum; (3) the City's claims are completely
preempted by the Clean Air Act (“CAA”), 42 U.S.C.
§ 7401 et seq., and/or other federal statutes
and the Constitution; (4) this Court has original
jurisdiction under the Outer Continental Shelf Lands Act
(“OCSLA”), 43 U.S.C. § 1349(b); (5) removal
is authorized under the federal officer removal statute, 28
U.S.C. § 1442(a)(1); (6) this Court has federal question
jurisdiction under 28 U.S.C. § 1331 because the
City's claims are based on alleged injuries to and/or
conduct on federal enclaves; (7) removal is authorized under
28 U.S.C. § 1452(a) and 28 U.S.C. § 1334(b),
because the City's claims are related to federal
bankruptcy cases; and (8) the City's claims fall within
the Court's original admiralty jurisdiction under 28
U.S.C. § 1333. ECF 1 at 6-12, ¶¶ 5-12.
the City filed a motion to remand the case to state court,
pursuant to 28 U.S.C. § 1447(c). ECF 111. The motion is
supported by a memorandum of law (ECF 111-1) (collectively,
“Remand Motion”). Defendants filed a joint
opposition to the Remand Motion (ECF 124,
“Opposition”), along with three supplements
containing numerous exhibits. ECF 125; ECF 126; ECF
The City replied. ECF 133.
also filed a conditional motion to stay the execution of any
remand order. ECF 161. They ask that, in the event the Court
grants the City's Remand Motion, the Court issue an order
staying execution of the remand for thirty days to allow them
to appeal the ruling. Id. at 1- 2. The City
initially opposed that motion (ECF 162), but subsequently
stipulated to the requested stay. ECF 170. This Court
accepted the parties' stipulation by Consent Order of
April 22, 2019. ECF 171.
hearing is necessary to resolve the Remand Motion.
See Local Rule 105.6. For the reasons that follow, I
conclude that removal was improper. Therefore, I shall grant
the Remand Motion. However, I shall stay execution of the
remand for thirty days, in accordance with the parties'
joint stipulation and the Court's prior Order.
The Contours of Removal
matter presents a primer on removal jurisdiction; defendants
rely on the proverbial “laundry list” of grounds
for removal. I begin by outlining the general contours of
removal jurisdiction and then turn to the specific bases for
removal on which defendants rely.
courts of the United States are courts of limited
jurisdiction and possess only the “power authorized by
Constitution and statute.” Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005)
(citation omitted); see Home Buyers Warranty Corp. v.
Hanna, 750 F.3d 727, 432 (4th Cir. 2014). They
“may not exercise jurisdiction absent a statutory basis
. . . .” Exxon Mobil Corp, 545 U.S. at 552.
Indeed, a federal court must presume that a case lies outside
its limited jurisdiction unless and until jurisdiction has
been shown to be proper. United States v. Poole, 531
F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)).
§ 28 U.S.C. § 1441, the general removal statute,
“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 the United States
for the district and division embracing the place where such
action is pending.” Id. § 1441(a).
Congress has conferred jurisdiction on the federal courts in
several ways. Of relevance here, to provide a federal forum
for plaintiffs who seek to vindicate federal rights, Congress
has conferred on the district courts original jurisdiction
over civil actions that arise under the Constitution, laws,
or treaties of the United States. See U.S. Const.
art. III, § 2 (“The Judicial Power shall extend to
all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties
made . . .”); see also 28 U.S.C. § 1331;
Exxon Mobil Corp., 545 U.S. at 552. This is
sometimes called federal question jurisdiction.
burden of demonstrating jurisdiction and the propriety of
removal rests with the removing party. See McBurney v.
Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010); Robb
Evans & Assocs. v. Holibaugh, 609 F.3d 359, 362 (4th
Cir. 2010); Dixon v. Coburg Dairy, Inc., 369 F.3d
811, 816 (4th Cir. 2004) (en banc). Therefore, “[i]f a
plaintiff files suit in state court and the defendant seeks
to adjudicate the matter in federal court through removal, it
is the defendant who carries the burden of alleging in his
notice of removal and, if challenged, demonstrating the
court's jurisdiction over the matter.” Strawn
v. AT & T Mobility LLC, 530 F.3d 293, 296 (4th Cir.
2008). And, if “a case was not properly removed,
because it was not within the original jurisdiction” of
the federal court, then “the district court must remand
[the case] to the state court from which it was
removed.” Franchise Tax Bd. of Cal. v. Constr.
Laborers Vacation Trust, 463 U.S. 1, 8 (1983) (citing 28
U.S.C. § 1447(c)).
are required to construe removal statutes narrowly.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108-09 (1941). This is because “the removal of
cases from state to federal court raises significant
federalism concerns.” Barbour v. Int'l
Union, 640 F.3d 599, 605 (4th Cir. 2011) (en banc),
abrogated in part on other grounds by the Federal
Courts Jurisdiction and Venue Clarification Act of 2011, Pub.
L. No. 112-63, 125 Stat. 758 (2011); see also Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.
1994) (“Because removal jurisdiction raises significant
federalism concerns, [courts] must strictly construe removal
jurisdiction.”) (citing Shamrock, 313 U.S. at
108-09). Thus, “any doubts” about removal must be
“resolved in favor of state court jurisdiction.”
Barbour, 640 F.3d at 617; see also Cohn v.
Charles, 857 F.Supp.2d 544, 547 (D. Md. 2012)
(“Doubts about the propriety of removal are to be
resolved in favor of remanding the case to state
assert a host of grounds for removal; four of their eight
grounds are premised on federal question jurisdiction under
28 U.S.C. § 1331. These grounds are as follows: (1) the
City's public nuisance claim is necessarily governed by
federal common law; (2) the City's claims raise disputed
and substantial issues of federal law; (3) the City's
claims are completely preempted by the Clean Air Act, 42
U.S.C. § 7401 et seq., and the foreign affairs
doctrine; and (4) the City's claims are based on conduct
or injuries that occurred on federal enclaves. ECF 1,
¶¶ 5-7; ECF 124 at 8-49. I shall address each of
these arguments in turn and then consider defendants'
alternative bases for removal.
alternative grounds, defendants assert that this Court has
original jurisdiction under the OCSLA, 43 U.S.C. §
1349(b); removal is authorized under the federal officer
removal statute, 28 U.S.C. § 1442(a)(1); removal is
authorized under 28 U.S.C. § 1452(a) and 28 U.S.C.
§ 1334(b) because the City's claims are related to
bankruptcy cases; and the City's claims fall within the
Court's original admiralty jurisdiction under 28 U.S.C.
Federal Question Jurisdiction
III of the United States Constitution provides: “The
judicial Power shall extend to all Cases, in Law and Equity,
arising under . . . the Laws of the United States.”
U.S. Const. art. III, § 2, cl. 1. Section 1331 of 28
U.S.C. grants federal district courts “original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
“Article III ‘arising under' jurisdiction is
broader than federal question jurisdiction under [28 U.S.C.
§ 1331].” Verlinden B.V. v. Cent. Bank of
Nigeria, 461 U.S. 480, 495 (1983). Although Congress has
the power to prescribe the jurisdiction of federal courts
under U.S. Const. art. I, § 8, cl. 9, it “may not
expand the jurisdiction of the federal courts beyond the
bounds established by the Constitution.”
Verlinden, 461 U.S. at 491.
“propriety” of removal on the basis of federal
question jurisdiction “depends on whether the claims
‘aris[e] under' federal law.” Pinney v.
Nokia, Inc., 402 F.3d 430, 441 (4th Cir. 2005) (citation
omitted). And, when jurisdiction is based on a claim
“arising under the Constitution, treaties or laws of
the United States, ” the case is “removable
without regard to the citizenship or residence of the
parties.” 28 U.S.C. § 1441(b).
“‘aris[es] under' federal law in two
ways.” Gunn v. Minton, 568 U.S. 251, 257
(2013); see Beneficial Nat'l Bank v. Anderson,
539 U.S. 1, 8 (2003). First, and most commonly, “a case
arises under federal law when federal law creates the cause
of action asserted.” Gunn, 568 U.S. at 257;
see also Am. Well Works Co. v. Layne & Bowler
Co., 241 U.S. 257, 260 (1916) (stating that a
“suit arises under the law that creates the cause of
action”). Second, a claim is deemed to arise under
federal law for purposes of § 1331 when, although it
finds its origins in state law, “the plaintiff's
right to relief necessarily depends on resolution of a
substantial question of federal law.” Empire
Healthchoice Assurance Inc. v. McVeigh, 547 U.S. 677,
690 (2006); see Franchise Tax Bd., 463 U.S. at 13.
latter set of circumstances arises only in a
“‘special and small category' of
cases.” Gunn, 568 U.S. at 258 (quoting
Empire Healthchoice, 547 U.S. at 699). Specifically,
jurisdiction exists under this category only when “a
federal issue is: (1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of resolution in
federal court without disrupting the federal-state balance
approved by Congress.” Id.; see Grable
& Sons Metal Prods., Inc. v. Darue Eng'g &
Mfg., 545 U.S. 308, 313-14 (2005); Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988);
Flying Pigs, LLC v. RRAJ Franchising, LLC, 757 F.3d
177, 181 (4th Cir. 2014).
“presence or absence of federal question jurisdiction
is governed by the ‘well-pleaded complaint rule,'
which provides that federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint.” Rivet
v. Regions Bank of La., 522 U.S. 470, 475 (1998)
(citation omitted); see Pressl v. Appalachian Power
Co., 842 F.3d 299, 302 (4th Cir. 2016). This
“makes the plaintiff the master of [its] claim, ”
because in drafting the complaint, the plaintiff may
“avoid federal jurisdiction by exclusive reliance on
state law.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987); see Pinney, 402 F.3d at 442.
even when a well-pleaded complaint sets forth a state law
claim, there are instances when federal law “is a
necessary element” of the claim. Christianson,
486 U.S. at 808. Under certain circumstances, such a case may
be removed to federal court. The Pinney Court
explained, 402 F.3d at 442 (internal citation omitted):
Under the substantial federal question doctrine, ‘a
defendant seeking to remove a case in which state law creates
the plaintiff's cause of action must establish two
elements: (1) that the plaintiff's right to relief
necessarily depends on a question of federal law, and (2)
that the question of federal law is substantial.' If the
defendant fails to establish either of these elements, the
claim does not arise under federal law pursuant to the
substantial federal question doctrine, and removal cannot be
justified under this doctrine.
(internal citations omitted).
may also be removed from state court to federal court based
on the doctrine of complete preemption. The complete
preemption doctrine is a “corollary of the well-pleaded
complaint rule.” Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 63 (1987); see In re Blackwater
Sec. Consulting, LLC, 460 F.3d 576, 584 (4th Cir. 2006).
The Supreme Court has explained: “When [a] federal
statute completely pre-empts [a] state-law cause of
action, a claim which comes within the scope of that cause of
action, even if pleaded in terms of state law, is in reality
based on federal law.” Beneficial, 539 U.S. at
8 (emphasis added). Therefore, federal question jurisdiction
is satisfied “when a federal statute wholly displaces
the state-law cause of action through complete
pre-emption.” Id. (emphasis added); see
also Vaden v. Discover Bank, 556 U.S. 49, 61 (2009);
Aetna Health Inc. v. Davila, 542 U.S. 200, 207-08
preemption is a jurisdictional doctrine that
“‘converts an ordinary state common-law complaint
into one stating a federal claim for purposes of the
well-pleaded complaint rule.”' Caterpillar
Inc., 482 U.S. at 393 (quoting Metro. Life
Ins., 481 U.S. at 65); see Pinney, 402 F.3d at
449. But, to remove an action on the basis of complete
preemption, a defendant must show that Congress intended for
federal law to provide the “exclusive cause of
action” for the claim asserted. Beneficial,
539 U.S. at 9; see also Barbour, 640 F.3d at 631.
it is “settled law that a case may not be removed to
federal court on the basis of a federal defense,
including the defense of pre-emption, even if the
defense is anticipated in the plaintiff's complaint, and
even if both parties concede that the federal defense is the
only question truly at issue.” Caterpillar
Inc., 482 U.S. at 393 (emphasis added); see
Vaden, 556 U.S. at 60. Therefore, in examining the well
pleaded allegations in the complaint for purposes of removal,
the court must “ignore potential defenses.”
Beneficial, 539 U.S. at 6. Put another way, when
preemption is a defense, it “does not appear on the
face of a well-pleaded complaint, and, therefore, does not
authorize removal to federal court.” Metro. Life
Ins., 481 U.S. at 63; see Pinney, 402 F.3d at
seem to conflate complete preemption with the defense of
ordinary preemption. See Caterpillar Inc., 482 U.S.
at 392. The “existence of a federal defense normally
does not create statutory ‘arising under'
jurisdiction, and ‘a defendant [generally] may not
remove a case to federal court unless the
plaintiff's complaint establishes that the case
‘arises under' federal law.'”
Davila, 542 U.S. at 207 (internal citations
law may preempt state law under the Supremacy Clause in three
ways―by ‘express preemption,' by ‘field
preemption,' or by ‘conflict
preemption.'” Anderson v. Sara Lee Corp.,
508 F.3d 181, 191 (4th Cir. 2007) (citation omitted); see
also Decohen v. Capital One, N.A., 703 F.3d 216, 223
(4th Cir. 2012). These three types of preemption, however,
are forms of “ordinary preemption” that serve
only as federal defenses to a state law claim. Lontz v.
Tharp, 413 F.3d 435, 441 (4th Cir. 2005); see Wurtz
v. Rawlings Co., LLC, 761 F.3d 232, 238 (2d Cir. 2014).
As one federal court recently explained: “The doctrine
of complete preemption should not be confused with ordinary
preemption, which occurs when there is the defense of
‘express preemption,' ‘conflict
preemption,' or ‘field preemption' to state law
claims.” Meade v. Avant of Colorado, LLC, 307
F.Supp.3d 1134, 1140 (D. Colo. 2018). Unlike the doctrine of
complete preemption, these forms of preemption do not appear
on the face of a well-pleaded complaint and therefore they do
not support removal. Lontz, 413 F.3d at 440;
Wurtz, 761 F.3d at 238.
preemption “regulates the interplay between federal and
state laws when they conflict or appear to conflict . . .
.” Decohen, 703 F.3d at 222. “[S]tate
law is naturally preempted to the extent of any conflict with
a federal statute, ” Crosby v. Nat'l Foreign
Trade Council, 530 U.S. 363, 372 (2000), because the
Supremacy Clause of the Constitution, U.S. Const. art. VI,
cl. 2, provides that a federal enactment is superior to a
state law. As a result, pursuant to the Supremacy Clause,
“[w]here state and federal law ‘directly
conflict,' state law must give way.” PLIVA,
Inc. v. Mensing, 564 U.S. 604, 617 (2011) (citation
omitted); see also Merck Sharp & Dohme Corp. v.
Albrecht, ___ U.S. ___, 2019 WL 2166393, at *8 (May 20,
2019) (discussing impossibility or conflict preemption, and
reiterating that “‘state laws that conflict with
federal law are without effect, '” but noting that
the “‘possibility of impossibility [is] not
enough'”) (citations omitted); Mutual Pharm.
Co., Inc. v. Bartlett, 570 U.S. 472, 480 (2013). In
Drager v. PLIVA USA, Inc., 741 F.3d 470 (4th Cir.
2014), the Fourth Circuit stated: “The Supreme Court
has held that state and federal law conflict when it is
impossible for a private party to simultaneously comply with
both state and federal requirements. In such
circumstances, the state law is preempted and without
effect.” Id. at 475.
preemption of state law under the Supremacy Clause -
including state causes of action - is ‘fundamentally .
. . a question of congressional intent.'” Cox
v. Duke Energy, Inc., 876 F.3d 625, 635 (4th Cir. 2017)
(quoting English v. Gen. Elec. Co., 496 U.S. 72, 79
(1990)); see also Beneficial, 539 U.S. at 9.
Congress manifests its intent in three ways: (1) when
Congress explicitly defines the extent to which its enactment
preempts state law (express preemption); (2) when state law
“regulates conduct in a field that Congress intended
the Federal Government to occupy exclusively” (field
preemption); and (3) when state law “actually conflicts
with federal law” (conflict or impossibility
preemption). English, 496 U.S. at 78-79.
Federal Common Law
first argue that federal question jurisdiction exists because
the City's public nuisance claim implicates
“uniquely federal interests” and thus “is
governed by federal common law.” ECF 124 at 9-11.
According to defendants, the federal government has a unique
interest both in promoting fossil fuel production and in
crafting multilateral agreements with foreign nations to
address global warming. Id. at 16. Therefore, they
insist that federal common law supports removal. Id.
City counters that this argument is no more than an ordinary
preemption defense. ECF 111-1 at 9. In effect, argues the
City, defendants contend that federal common law applies to
any cause of action “touching on climate change, such
that state law claims under any theory have been obliterated
. . . .” ECF 111-1 at 8. In the City's view,
federal common law does not provide a proper basis for
removal. Id. I agree.
true that federal question jurisdiction exists over claims
“founded upon” federal common law. Illinois
v. City of Milwaukee, 406 U.S. 91, 100 (1972) (stating
that 28 U.S.C. § 1331 “will support claims founded
upon federal common law as well as those of a statutory
origin”). It is also true, however, that the presence
of federal question jurisdiction is governed by the
well-pleaded complaint rule. Rivet, 522 U.S. at 475.
The well-pleaded complaint rule is plainly not satisfied here
because the City does not plead any claims under federal law.
See ECF 42.
assertion that the City's public nuisance claim under
Maryland law is in fact “governed by federal common
law” is a cleverly veiled preemption argument. See
Boyle v. United Tech. Corp., 487 U.S. 500, 504
(1988) (finding that a state law claim against a federal
government contractor that involved “uniquely federal
interests” was governed exclusively by federal common
law and, thus, state law was preempted); Int'l Paper
Co. v. Ouellette, 479 U.S. 481, 488 (1987) (stating that
if a case “should be resolved by reference to federal
common law … state common law [is] preempted”);
see also Merkel v. Fed. Exp. Corp., 886 F.Supp. 561,
564-65 (N.D. Miss. 1995) (stating that if
“plaintiff's claims are governed by federal common
law, ” as defendant argued to support removal,
“then [defendant] is entitled to assert the defense of
preemption against the plaintiff's state law
claims”). Unfortunately for defendants, ordinary
preemption does not allow the Court to treat the City's
public nuisance claim as if it had been pleaded under federal
law for jurisdictional purposes. See Franchise Tax
Bd., 463 U.S. at 14.
indicated, unlike ordinary preemption, complete preemption
does “‘convert an ordinary state
common-law complaint into one stating a federal claim for
purposes of the well-pleaded complaint rule.'”
Caterpillar Inc., 482 U.S. at 393 (quoting
Metro. Life Ins., 481 U.S. at 65); see
Lontz, 413 F.3d at 439 (noting that the complete
preemption doctrine is the only “exception” to
the well-pleaded complaint rule); Goepel v. Nat'l
Postal Mail Handlers Union, 36 F.3d 306, 311-12 (3d Cir.
1994) (“[T]he only state claims that are
‘really' federal claims and thus removable to
federal court are those that are preempted completely by
federal law.”) (citations omitted); see also
Hannibal v. Fed. Exp. Corp., 266 F.Supp.2d 466, 469
(E.D. Va. 2003) (observing that, where the defendant argued
that removal was proper because the plaintiff's contract
claim was governed exclusively by federal common law,
“the Defendant is attempting to argue that federal
common law completely preempts the Plaintiff's state
breach of contract claim”). But, defendants do not
argue that the City's public nuisance claim is completely
preempted by federal common law. Rather, they contend only
that the City's claims are completely preempted by the
Clean Air Act and the foreign affairs doctrine. See
ECF 124 at 43- 48.
see it, defendants' assertion that federal common law
supports removal is without merit, even if construed as a
complete preemption argument.
district judges in the Northern District of California
considered the matter of removal in cases similar to the one
sub judice. They reached opposing conclusions as to removal.
County of San Mateo v. Chevron Corp., 294 F.Supp.3d
934 (N.D. Cal. 2018), plaintiffs lodged tort claims against
fossil fuel producers for injuries stemming from climate
change. Id. at 937. Judge Chhabria expressly
determined that “federal common law does not govern
plaintiffs' claims” and thus the cases
“should not have been removed to federal court on the
basis of federal common law . . . .” Id. He
considered almost every ground for removal that has been
asserted here, and rejected each one. He concluded that
removal was not warranted under the doctrine of complete
preemption, id., or on the basis of Grable
jurisdiction, id. at 938, or under the Outer
Continental Shelf Lands Act, id., or because two of
the defendants had earlier bankruptcy proceedings.
Id. at 939. An appeal is pending. See County of
Marin v. Chevron Corp., Appeal No. 18-15503 (9th Cir.
Mar. 27, 2018).
in California v. BP P.L.C., Civ. No. WHA-16-6011,
2018 WL 1064293 (N.D. Cal. Feb. 27, 2018), appeal
docketed sub. nom., City of Oakland v. BP,
P.L.C., No. 18-16663 (9th Cir. Sept. 4, 2018), Judge
Alsup ruled in favor of removal. I pause to review that
opinion and to elucidate my point of disagreement.
State of California and the cities of Oakland and San
Francisco asserted public nuisance claims against energy
producers - many of whom are defendants in this action - for
injuries stemming from climate change. Id. at *1.
The plaintiffs alleged that the defendants produced and sold
fossil fuels while simultaneously deceiving the public
regarding the dangers of global warming and the benefits of
fossil fuels. Id. at *1, 4. After the defendants
removed the action to federal court, the plaintiffs moved to
remand. Id. Although the plaintiffs' public
nuisance claims were pleaded under California law, the court
found that federal question jurisdiction existed because the
claims were “necessarily governed by federal common
law.” Id. at *2.
court reasoned that “a uniform standard of decision is
necessary to deal with the issues raised” in the suits,
in light of the “worldwide predicament . . . .”
Id. at *3. The court explained, id.:
“A patchwork of fifty different answers to the same
fundamental global issue would be unworkable.” Further,
the court observed that the plaintiffs' claims
“depend on a global complex of geophysical cause and
effect involving all nations of the planets, ” and that
“the transboundary problem of global warming raises
exactly the sort of federal interests that necessitate a
uniform solution.” Id. at *3, 5. Accordingly,
the court denied the plaintiffs' motion to remand.
Id. at *5.
court's reasoning was well stated and presents an
appealing logic. Nevertheless, the court did not find that
the plaintiffs' state law claims fell within either of
the carefully delineated exceptions to the well-pleaded
complaint rule - i.e., that they were completely
preempted by federal law or necessarily raised substantial,
disputed issues of federal law. See Gunn, 568 U.S.
at 257-58; Caterpillar Inc., 482 U.S. at 393.
Instead, the court looked beyond the face of the
plaintiffs' well-pleaded complaint and authorized removal
because it found that the plaintiffs' public nuisance
claims were “governed by federal common law.”
BP, 2018 WL 1064293, at *5. But, the ruling is at
odds with the firmly established principle that ordinary
preemption does not give rise to federal question
jurisdiction. See Caterpillar Inc., 482 U.S. at 393;
Marcus v. AT & T Corp., 138 F.3d 46, 53-54 (2d
Cir. 1998) (rejecting the defendants' argument that
federal common law provided a basis for removal of
plaintiff's state law claims where federal common law did
not completely preempt plaintiff's claims);
Hannibal, 266 F.Supp.2d at 469 (holding that federal
common law did not support removal where it did not
completely preempt the plaintiff's state law claim).
the ruling has been harshly criticized by at least one law
professor. See Gil Seinfeld, Climate Change
Litigation in the Federal Courts: Jurisdictional Lessons from
California v. BP, 117 Mich. L. Rev. Online 25, 32-35
(2018) (asserting that the decision “disregards”
and “transgresses the venerable rule that the plaintiff
is the master of her complaint, ” including whether
“to eschew federal claims in favor of ones grounded in
state law alone”; stating that the case is “best
understood as a complete preemption case” because that
is the “only doctrine that is … capable of
justifying the holding”; observing that the district
court's application of the preemption doctrine was
“unorthodox, ” as congressional intent was
“out of the picture”; and stating that the ruling
“is out of step with prevailing doctrine”).
also rely on 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), to support their argument
that federal common law provides an independent basis for
removal. There, the plaintiffs brought claims for nuisance
and trespass under state law against oil companies for
producing and selling fossil fuel products that contributed
to global warming. Id. at 468. In their motion to
dismiss the complaint, the defendants argued that the
plaintiffs' claims were governed by federal common law
rather than state law. Id. at 470. After concluding
that the plaintiffs' claims were “ultimately based
on the ‘transboundary' emission of greenhouse
gases, ” the court agreed. Id. at 472 (citing
BP, 2018 WL 1064293, at *3). Significantly, however,
the court did not consider whether this finding conferred