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Mayor and City Council of Baltimore v. BP P.L.C.

United States District Court, D. Maryland

June 10, 2019

MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff,
v.
BP P.L.C., et al., Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         In this Memorandum Opinion, the Court determines whether a suit concerning climate change was properly removed from a Maryland state court to federal court.

         The 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.

         The 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.

         Two of the defendants, Chevron Corp. and Chevron U.S.A., Inc. (collectively, “Chevron”), timely removed the case to this Court. ECF 1 (Notice of Removal).[1] 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.

         The 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.

         Thereafter, 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 127.[2] The City replied. ECF 133.

         Defendants 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.

         No 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.

         I. Discussion

         A. The Contours of Removal

         This 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.

         District 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)).

         Under § 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.[3]

         The 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)).

         Courts 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 court.”).

         Defendants 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.

         As 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. § 1333.

         B. Federal Question Jurisdiction

         Article 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.

         The “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).

         A case “‘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.

         This 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).

         The “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.

         However, 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).

         A case 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 (2004).

         Complete 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.

         Moreover, 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 449.

         Defendants 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 omitted).

         “Federal 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.

         Ordinary 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.[4]

         “Federal 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.

         1. Federal Common Law

         Defendants 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.

         The 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.

         It is 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.

         Defendants' 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.

         As 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.

         As I see it, defendants' assertion that federal common law supports removal is without merit, even if construed as a complete preemption argument.

         Two 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.

         In 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).

         Conversely, 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.

         The 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.

         The 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.

         The 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).

         Indeed, 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”).

         Defendants 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 ...


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