The Volokh Conspiracy

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SG Flips Position on Whether Removed Climate Change Cases Are "Inherently Federal In Nature"

"After the change in Administration and in light of those intervening developments, the United States has reexamined its position and has concluded that state-law claims like those pleaded here should not be recharacterized as claims arising under federal common law."


In 2021, the Supreme Court decided BP p.l.c. v. Mayor and City Council of Baltimore. In this case, the Charm City sued the oil company in state court for causing certain environmental harms. BP removed the case to federal court. The district court remanded the case to state court. On appeal, the Fourth Circuit held that it lacked jurisdiction to review the remand order. Justice Gorsuch's majority opinion reversed the Fourth Circuit.

In BP, the Trump Justice Department filed an amicus brief. The SG contended that removal was likely proper:

In this case, there may well be a valid alternative basis for federal jurisdiction. Petitioners have focused (Br. 37-45) on their contention that respondent's tort claims necessarily arise under federal common law. As the United States explained in an amicus brief filed in City of Oakland—another case brought by localities alleging tort claims against fossil-fuel-producing companies in response to climate-change-related injuries—claims may be removable under 28 U.S.C. 1441(a) on the ground that, although nominally couched as state-law claims, they are inherently and necessarily federal in nature. See U.S. Amicus Reh'g Br. at 6-12, City of Oak-land, supra (No. 18-16663).

Oral argument was held on January 19, 2021 (the day before the inauguration). The Assistant SG reaffirmed the government's position that these climate change cases are "inherently federal":

Clarence Thomas: And I know you said that you're not going to take a position or the government is not taking a position on whether or not we should get to the—the federal common law issue, but do you have an opinion on where—whether or not such a—there is a federal common law principle on climate change injuries?

Brinton Lucas: Yes, Your Honor, we do think that Respondent's claims are inherently federal in nature.

Two years later, the Biden Justice Department has reversed course. The Solicitor General filed an amicus brief in Suncor Energy v. Board of County Commissioners of Boulder County. The SG explains the shift:

In an amicus brief filed in BP p.l.c. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021), the United States took the position that claims involving crossboundary pollution "that seek to apply the law of an affected State to conduct in another State" "may well be" thought to "arise under" federal law for "jurisdictional purposes," "even if such claims may be displaced by the Clean Air Act." U.S. Amicus Br. at 26, 27, BP, supra (No. 19-1189) (emphasis omitted). The Court's decision in BP did not address the proper resolution of that jurisdictional issue, but simply made clear that the court of appeals on remand could consider all potential arguments for removal. 141 S. Ct. at 1543. Since then, all five courts of appeals that have considered the issue have rejected the position that the government took in BP. See pp. 16-17, infra. After the change in Administration and in light of those intervening developments, the United States has reexamined its position and has concluded that state-law claims like those pleaded here should not be recharacterized as claims arising under federal common law.

I've written about the phenomenon of "presidential reversals," as we have shifted from Bush to Obama, from Obama to Trump, and now from Trump to Biden.

Suncor filed a "supplemental brief" calling out this shift in position. (The petitioner is represented by Kannon Shanmugam of Paul Weiss who represented BP in the Baltimore case). The brief accuses the government of virtue signaling to environmentalist groups!

Now, the government has casually junked that position. With an all-too-familiar citation to the "change in Administration," it argues that the well-pleaded complaint rule precludes removal and that, in the wake of the Clean Air Act, federal law no longer exclusively governs claims alleging injury from interstate emissions. See Br. 7-16. Perhaps the current administration genuinely does have a different view on questions of federal jurisdiction than the last one. But given the federal government's institutional interest in taking a broad view of federal jurisdiction, it is hard to escape the conclusion that the change in position is being driven by the fact that the questions are arising in the context of climate-change lawsuits—and by a desire to signal virtue to political bedfellows who are behind these lawsuits.

And this virtue signaling, the brief contends, undermines the government's credibility:

Given that apparent motivation, it is difficult to take anything the government says here at face value. But even so, the government's arguments against review wilt under scrutiny. The government argues that no genuine circuit conflict exists, but it does so only by ignoring the Second Circuit's reasoning in City of New York v. Chevron Corp., 993 F.3d 81 (2021), and the decisions of other circuits expressly rejecting that reasoning. On the merits, the government parrots respondents' arguments, yet it makes no effort to grapple with petitioners' responses. At a minimum, the very fact that the last two administrations have taken contrary positions confirms that there are substantial legal arguments on both sides.

Recently, Judge Stras of the Eighth Circuit explained why certiorari is necessary:

After the government filed its brief, a prominent judge wrote that cases such as this one should give rise to federal jurisdiction and urged the Court definitively to re-solve whether they do. See Minnesota v. American Pe-troleum Institute, No. 21-1752, ___ F.4th ___, 2023 WL 2607545, at *8-*11 (8th Cir. Mar. 23, 2023) (Stras, J., concurring). It is preposterous to suggest that the fate of these cases—with their potentially enormous conse-quences for an entire sector of the global economy—should be left to handpicked state courts without a deci-sion by this Court sanctioning that outcome. Given the importance of the questions presented, the circuit conflicts on each question, the substantial arguments on both sides, and the prudential reasons for review in this particular case, the petition for a writ of certiorari should be granted. 

A grant here seems likely.