Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc.

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On February 8, 2022, the Tenth Circuit Court of Appeals affirmed the remand order sending a case brought by three Colorado municipal governments alleging climate change-based claims against energy companies back to state court. In a 2020 decision, the Tenth Circuit affirmed the remand order but only reached the question of whether the defendants had properly removed the case based on the federal officer removal statute. In 2021, however, the Supreme Court vacated that decision after holding in <a href="https://climatecasechart.com/case/mayor-city-council-of-baltimore-v-bp-plc/">Mayor & City Council of Baltimore v. BP p.l.c.</a> that appellate jurisdiction over remand orders such as this one, where federal officer removal was one of the asserted grounds for removal, extends to the entire remand order, and not just to federal officer removal. In its February 8 decision, the Tenth Circuit again considered and rejected federal officer removal as a basis for federal jurisdiction, concluding that the companies did not establish that one of the defendants, ExxonMobil Corporation (Exxon), “acted under” a federal officer by complying with the terms of its outer continental shelf leases. Second, the Tenth Circuit found that federal district courts would not have original jurisdiction over the municipal governments’ case. The Tenth Circuit held that neither federal common law nor the Clean Air Act completely preempted the municipalities’ state-law claims. The Tenth Circuit distinguished the Second Circuit’s 2021 decision affirming the dismissal of New York City’s climate change-based claims against energy companies, noting that the Second Circuit’s decision was not in the removal context, which allowed the Second Circuit to consider the companies’ ordinary (as opposed to complete) preemption defense. The Tenth Circuit also held that there was no “substantial federal question” (i.e., Grable) jurisdiction because the federal issues asserted by the companies—related to foreign affairs and weighing of the costs and benefits of fossil fuel production—were neither necessary to the municipalities’ claims nor substantial to the federal system. In addition, the Tenth Circuit rejected the companies’ argument that there was federal enclave jurisdiction based on the complaint’s allegations of injuries within Rocky Mountain National Park and the Uncompahgre National Forest. The Tenth Circuit also found that there was not a sufficient connection between the municipalities’ claims and Exxon’s operations on the outer continental shelf to provide a basis for jurisdiction under the Outer Continental Shelf Lands Act.

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The fossil fuel companies’ supplemental brief focused on their argument that federal common law necessarily governed the local governments’ claims because the claims concerned injuries allegedly caused by interstate emissions. The companies argued that the Second Circuit’s recent decision affirming the dismissal of New York City’s climate case supported their position because New York’s claims were “indistinguishable” from the claims in this case. The local governments took the position that the Second Circuit’s decision regarding the application of federal common law was distinct from the jurisdictional question at issue in this case; the local governments also argued, however, that the Second Circuit’s decision was incorrect.

The local governments argued that the court should reject the companies’ remaining arguments for removal (federal common law, Grable (substantial federal question), complete preemption, federal enclave jurisdiction, and the Outer Continental Shelf Lands Act).

The Tenth Circuit directed the parties to file supplemental briefs simultaneously on July 16 to address the import of the Supreme Court’s decision in the Baltimore case.

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The Tenth Circuit Court of Appeals affirmed a district court order remanding to Colorado state court a lawsuit brought by Boulder County and two other local governments seeking to hold oil and gas companies liable for climate change-related damages allegedly caused by the companies. The Tenth Circuit determined that its appellate jurisdiction was limited to the issue of federal officer removal. It therefore did not address the five other grounds for removal on which the companies relied in their appeal. The Tenth Circuit also found that ExxonMobil Corporation, one of the companies, failed to establish grounds for federal officer removal. The Tenth Circuit is the third federal appeals court to affirm the remand of a climate change lawsuit brought by local governments (the others are the Fourth and Ninth Circuits).

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The plaintiffs-appellees moved for summary affirmance of the remand order, arguing that the doctrine of collateral estoppel barred Exxon Mobil Corporation (Exxon) from relitigating the issues of the scope of appellate jurisdiction and the merits of federal-officer removal because the Fourth Circuit decided these issues against Exxon in Baltimore’s lawsuit. The plaintiffs-appellees also argued that although collateral estoppel did not apply against the other defendants—who are not defendants in Baltimore’s lawsuit—the other defendants lack an independent basis for appeal since they did not raise their own federal-officer argument.

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The plaintiffs-appellees notified the Tenth Circuit of the Fourth Circuit’s decision affirming the remand order in Baltimore's case. The plaintiffs-appellees told the Tenth Circuit that the Fourth Circuit’s decision supported affirmation of the remand order in this case.

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Briefing was completed in fossil fuel companies’ Tenth Circuit appeal of the remand of Boulder and San Miguel Counties and the City of Boulder’s lawsuit. The defendants filed their reply brief on January 22, 2020, reiterating their arguments that the Tenth Circuit should review the entire remand order, not just the district court’s determination that removal was not proper under the federal-officer removal statute, and that there were multiple valid grounds for removal.

The Suncor appellants said they had no objection to the court's consideration of the amicus briefs.

The Tenth Circuit directed the defendants to file a response to the amicus motions by January 14.

Public Citizen, three national local government associations, Natural Resources Defense Council, and a 31-member coalition of local governments in Colorado filed amicus motions in support of the plaintiffs-appellees.

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On December 20, 2019, Boulder County, the City of Boulder, and San Miguel County filed their brief in the Tenth Circuit, arguing that the appellate court could only review removal under the federal-officer removal statute, which they argued did not provide a basis for removal of their case. The plaintiffs-appellees also argued that the well-pleaded complaint rule governed removal under the general removal statute and that jurisdiction could not rest on unpled federal common law. In addition, the plaintiffs-appellees said their claims for relief did not necessarily depend on resolution of a substantial and disputed federal issue and that there was no complete preemption, federal enclave jurisdiction, or jurisdiction under the Outer Continental Shelf Lands Act

The U.S. Chamber of Commerce filed an amicus brief in the Tenth Circuit amplifying the fossil fuel companies’ arguments that federal common law provided a basis for federal jurisdiction and that the appellate court could review the entire remand order.

Fossil fuel companies argued in a brief to the Tenth Circuit Court of Appeal that they had properly removed a case brought by Colorado municipal governments in which the plaintiffs seek to hold the companies liable for the impacts of climate change. The companies’ opening brief contended that the appellate court had jurisdiction to review the entirety of the remand order, not just the district court's conclusion that the federal officer removal statute did not provide a basis for removal. The companies further argued that there were multiple grounds for removal, including that the plaintiffs’ claims asserted injuries were caused by nationwide (and worldwide) greenhouse gas emissions and therefore necessarily arose under federal, not state, common law. In addition, the companies argued that the presence of substantial, disputed federal questions invoked federal jurisdiction and that the case was also subject to federal jurisdiction under the federal officer removal statute, the Outer Continental Shelf Lands Act, and federal enclave doctrine, and due to complete preemption by the Clean Air Act.

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The Tenth Circuit clarified that the defendants' motion for a stay remained pending and that the response to the motion was due October 18.

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