County of San Mateo v. Chevron Corp.

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On June 30, 2022, the court granted the companies motion to stay issuance of the mandate pending the filing and disposition of a petition for writ of certiorari in the Supreme Court.

In a motion to stay the mandate, fossil fuel companies argued that the Ninth Circuit’s decision affirming the remand order had “deepened an entrenched circuit split and is in significant tension with longstanding Supreme Court precedent” related to “whether nominally state-law claims that, because of our constitutional structure, are necessarily and exclusively governed by federal law alone, are removable to federal court.” The companies further argued that the potential harm posed by remand of the six cases to four different state courts justified stay of the mandate.

On June 27, 2022, the Ninth Circuit Court of Appeals denied fossil fuel companies’ petition for rehearing en banc of the court’s decision affirming the remand to state court of climate change cases brought by six local governments in California. The panel voted unanimously to deny the petition, and no Ninth Circuit judge requested a vote on whether to rehear the matter en banc.

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Energy companies filed a petition for rehearing en banc of the Ninth Circuit’s decision remanding cases brought by County of San Mateo and other California local governments. The companies argued that the panel’s decision conflicted with the Second Circuit’s decision in New York City’s case against energy companies and was “irreconcilable” with Supreme Court precedent recognizing that only federal law may govern controversies concerning interstate pollution. They also contended that the panel’s application of the well-pleaded complaint rule was at odds with decisions of other courts of appeals.

The Ninth Circuit also affirmed, for a second time, a district order remanding to state court climate lawsuits brought by California local governments against fossil fuel companies. The Ninth Circuit previously affirmed the remand order in 2020 but only reviewed the propriety of removal under the federal-officer removal statute. After the Supreme Court ruled in the Baltimore case that the scope of appellate review included all grounds for removal when one of the grounds is federal-officer removal, the Ninth Circuit in this second decision reviewed the fossil fuel companies’ other bases for removal and rejected their “broad interpretations of removal jurisdiction,” even in a case where the plaintiffs “raise novel and sweeping causes of action.” First, the Ninth Circuit applied the same analysis that it used in <a href="https://climatecasechart.com/wp-content/uploads/case-documents/2020/20200526_docket-18-16663_opinion.pdf">City of Oakland v. BP p.l.c.</a> and found that the companies did not establish prerequisites for the Grable exception to the well-pleaded complaint rule for cases that raise a substantial federal issue. Second, the Ninth Circuit held, as it had in City of Oakland, that the Clean Air Act did not completely preempt the plaintiffs’ state-law claims. Third, the Ninth Circuit concluded the connection between the defendants’ conduct on federal enclaves (such as a naval petroleum reserve and naval installations) and the plaintiffs’ alleged injuries was “too attenuated and remote” to be governed by federal law applicable to federal enclaves. Fourth, the Ninth Circuit rejected the Outer Continental Shelf Lands Act (OCSLA) as a basis for jurisdiction. The Ninth Circuit noted that other circuit courts, including the Fourth Circuit (see the Baltimore opinion above), required “only a ‘but-for’ connection between operations on the outer Continental Shelf and a plaintiff’s alleged injuries,” but the Ninth Circuit concluded that jurisdiction under OCSLA was governed by a limiting principle consistent with federal enclave jurisdiction and required that claims “arise from actions or injuries occurring on the outer Continental Shelf.” The Ninth Circuit found that the connections between the defendant companies’ operations on the outer Continental Shelf and the plaintiffs’ claims was “too attenuated” to provide a basis for jurisdiction. Fifth, the Ninth Circuit found that the companies did not establish that they were “acting under” a federal officer in connection with three agreements with the federal government and therefore did not satisfy requirements for removal under the federal-officer removal statute. Sixth, the Ninth Circuit found that bankruptcy jurisdiction did not apply because there was not a “close nexus” between the plaintiffs’ complaints and the coal company Peabody Energy’s bankruptcy or Texaco, Inc.’s bankruptcy. Seventh, the Ninth Circuit held that admiralty jurisdiction did not provide a basis for removal because pursuant to the “saving to suitors” clause of the admiralty jurisdiction statute, maritime claims brought in state court require an independent basis for federal jurisdiction.

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The Ninth Circuit extended its stay of the mandate in County of San Mateo v. Chevron Corp. for 90 days. The Ninth Circuit granted the extension of the stay of mandate after the Supreme Court allowed the fossil fuel company defendants an additional 60 days to file a petition for writ of certiorari. The petition must be filed by January 4, 2021.

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In cases brought by San Mateo County and other California localities seeking climate change-related damages from fossil fuel companies, the Ninth Circuit granted the companies’ motion to stay the mandate after the Ninth Circuit affirmed a district court order remanding the cases to state court. The Ninth Circuit stayed the mandate pending the Supreme Court’s action on the certiorari petition and, if the Supreme Court grants the petition, pending disposition of the case.

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After the Ninth Circuit denied rehearing, the energy companies argued that a stay was warranted because their petition for writ of certiorari would raise the substantial question of whether a court of appeals may review any issue in a district court order granting remand where removal was based in part on the federal-officer removal statute or whether, as the Ninth Circuit ruled, the appellate court’s jurisdiction is limited to reviewing the district court’s decision on the federal-officer removal issue. The companies also argued there was good cause for a stay because remand would result in six cases being returned to four different state courts for proceedings, potentially forcing the defendants “to incur substantial burden and expense.”

The Ninth Circuit denied the defendants-appellants’ petition for rehearing en banc of the decision affirming the district court’s remand order.

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On June 8, 2020, the Ninth Circuit granted the companies’ motion for an extension of time to file a petition for panel rehearing or rehearing en banc in both this case, as well as in City of Oakland v. BP p.l.c., in which the Ninth Circuit reversed the district court's determination that there was federal-question jurisdiction. Any petition for rehearing must be filed by July 9.

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In the energy companies’ appeal of a district court’s remand order in cases brought by the County of San Mateo and other counties and cities, the Ninth Circuit concluded first that its jurisdiction to review was limited to whether the cases were properly removed under the federal-officer removal statute and then that the companies had not proved that federal-officer removal could be invoked. The Ninth Circuit rejected the energy companies’ arguments in favor of plenary review of the remand order. First, the Ninth Circuit was not persuaded by the companies’ contention that the district court had remanded based on a merits determination, not based on subject matter jurisdiction. Second, the Ninth Circuit found that under its existing precedent, it had jurisdiction to review the issue of federal-officer removal but not the portions of the remand order that considered seven other bases for removal. The Ninth Circuit concluded that Congress’s enactment of the Removal Clarification Act of 2011 did not abrogate this precedent. The Ninth Circuit also rejected the companies’ argument that it was not bound by its own precedent because the decision was not well reasoned; the court said it remained bound by the precedent “until abrogated by an intervening higher authority.” The Ninth Circuit then conducted a de novo review of the issue of subject matter jurisdiction under the federal-officer removal statute. The appellate court found that the energy companies had not proven by a preponderance of the evidence that they were “acting under” a federal officer in any of the three agreements with the government on which the companies relied for federal-officer removal jurisdiction. The Ninth Circuit therefore affirmed the district court’s determination that there was no federal-officer removal jurisdiction and dismissed the remainder of the appeal for lack of jurisdiction.

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The plaintiffs-appellees notified the Ninth Circuit of the Fourth Circuit’s decision affirming the remand order in Baltimore's case. They told the Ninth Circuit that the Fourth Circuit had rejected the defendants-appellants’ arguments regarding both the scope of appellate jurisdiction and the application of federal-officer removal.

In response to the plaintiffs-appellees' letter regarding the Fourth Circuit's decision in the Baltimore case, defendant Chevron Corporation distinguished the Fourth Circuit’s opinion, arguing that the Fourth Circuit viewed itself as bound by precedent regarding the scope of its appellate jurisdiction, which Chevron contended was not the situation in the Ninth Circuit. Chevron also asserted that the Fourth Circuit based its determination that federal-officer removal was inapplicable on an incorrect conclusion regarding the focus of Baltimore’s claims.

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Chevron Corporation submitted a letter asserting that the Ninth Circuit’s decision in Juliana v. United States supported the companies’ argument that the climate change claims asserted by local and state governments against the companies “have their source in federal law and therefore belong in federal court.”

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The Ninth Circuit Court of Appeals scheduled oral argument for the morning of Wednesday, February 5, 2020 for the fossil fuel companies’ appeals of remand orders sending six cases brought by California counties and cities back to state court.

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The Ninth Circuit Court of Appeals granted a motion by oil and gas companies to assign Oakland and San Francisco’s appeal of the district court decisions denying remand and dismissing their climate change nuisance actions to the same panel that will hear the companies’ appeals of the order remanding the County of San Mateo’s and three other climate lawsuits to California state court. The court subsequently notified the parties that it was considering the cases for an upcoming oral argument and asked for information on counsel’s availability in November, December, and January.

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The fossil fuel companies responded to the plaintiffs-appellants' notices of supplemental authority, asserting that the neither of the unpublished per curiam decisions “bears meaningfully on the scope of this Court’s jurisdiction to review the district court’s remand order under 28 U.S.C. § 1447(d).” The companies said the pro se appellants in the two cases had not presented, and the courts had not analyzed, the jurisdictional issues briefed in this case.

In fossil fuel companies’ appeal of a remand order in the climate change cases brought by the County of San Mateo and other California local governments, the local governments filed two letters notifying the Ninth Circuit of recent decisions concerning the scope of appellate jurisdiction to review remand orders. The letters cited decisions by the Fifth Circuit and Eleventh Circuit that limited appellate review to the grounds for removal for which the applicable statute provides for appellate review.

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The Ninth Circuit approved the appellants' request to extend their time to file a reply brief. The reply brief must be filed by March 14, 2019.

The Center for Climate Integrity and a group of scholars and scientists “with particular interest in public information and communication about climate change and how the public and public leaders learn about and understand climate change” submitted a brief asserting that the fossil fuel companies had actual knowledge of the risks of their products and had taken “proactive steps to conceal their knowledge and discredit climate science” while at the same time taking steps to protect their own assets from the impacts of climate change.

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A group of scientists and scholars—who described themselves as having devoted much of their professional lives “to study, writing, and teaching one or more aspects of climate science, including sea level rise and its impacts on coastal communities”—submitted a brief that they intended to assist the court in understanding “the relevant science and the unavoidable adaptation expenses” faced by the plaintiffs.

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Natural Resources Defense Council filed a brief arguing that neither federal common law nor the Clean Air Act preempted all state law claims, and that there was no “unique federal interest in climate change” that would preempt all state law claims.

The consumer advocacy organization Public Citizen submitted an amicus brief arguing that the federal officer removal statute did not provide a basis for removal.

The California State Association of Counties, three local government associations, and eight states submitted amicus briefs focused on arguments favoring preservation of state law claims to address climate change impacts and limitations on removal jurisdiction.

Senator Sheldon Whitehouse of Rhode Island submitted a brief “to provide context for arguments made by amicus curiae United States Chamber of Commerce” in support of reversal of the remand order. Whitehouse said the Chamber’s actions reflected “a decades-long campaign of disinformation, obstruction, and political intimidation designed to prevent democratically accountable branches of government from adopting any policies that would reduce carbon pollution”—and that the Ninth Circuit “should assess the Chamber’s arguments accordingly.”

On January 22, 2019, six California municipalities and counties (the plaintiffs) filed a brief urging the Ninth Circuit Court of Appeals to reject fossil fuel companies’ appeal of a district court order remanding the plaintiffs’ climate change cases to state court. The plaintiffs argued that the Ninth Circuit only had jurisdiction to consider the fossil fuel companies’ appeal of the district court’s determination that there was no basis for removal under the federal officer removal statute. The plaintiffs contended that the district court’s determinations on the companies’ other grounds for removal were not reviewable. The plaintiffs further argued that even if the Ninth Circuit concluded it had jurisdiction to consider the companies’ other grounds for removal, it should reject those grounds. First, the plaintiffs asserted that their claims were pleaded under state law and did not “arise under” federal common law. They argued that the companies’ argument that the claims actually were governed by federal common law was a preemption defense that was insufficient as a basis for removal. The plaintiffs also noted that the district court had recognized that any federal common law that might have governed their claims was displaced by the Clean Air Act, and that federal common law therefore could not supersede their state law claims. The plaintiffs also urged the Ninth Circuit to reject the companies’ other grounds for removal as meritless. They argued that the Clean Air Act did not completely preempt their claims, and that their claims did not necessarily raise disputed and substantial federal issues. In addition, the plaintiffs said neither the Outer Continental Shelf Lands Act, the federal enclave doctrine, nor the bankruptcy removal statute provided a basis for removal. Finally, the plaintiffs argued that the defendants had waived the right to assert admiralty jurisdiction as a basis for removal but that, in any event, admiralty jurisdiction alone would not be grounds for removal and there was no admiralty jurisdiction.

The U.S. Chamber of Commerce filed an amicus brief in support of the companies, arguing that climate change was “a national and international problem requiring a uniform, coordinated federal response” and that a “patchwork of state law tort rules would be ineffective and unadministrable.”

Fossil fuel companies filed their opening brief in their appeal of the denial of their motions to remand lawsuits brought by California local governments seeking damages and other relief for climate change impacts. As a threshold matter, the companies argued that the remand order was reviewable because one of their grounds of removal had been the federal officer removal statute, which they contended provided the Ninth Circuit with jurisdiction to review the entire remand order. Alternatively, the companies argued that the district court had made a reviewable merits determination because the court’s remand decision rested in part on the district court’s conclusion that displacement of federal common law by the Clean Air Act would leave the plaintiffs without a federal remedy. On the merits, the companies argued that the case belonged in federal court because federal common law necessarily governed climate change nuisance claims. The companies also asserted numerous alternative grounds for removal, including that the case depended on resolving “substantial, disputed federal questions relating to the extraction, processing, promotion, and consumption of global energy resources” and that the local governments’ claims were completely preempted by Clean Air Act. Other grounds for removal cited by the companies were the Outer Continental Shelf Lands Act, the federal enclave doctrine, the federal officer removal statute, the federal bankruptcy statutes, and admiralty jurisdiction. The local governments’ answering brief is due on January 22, 2019.

The Ninth Circuit Court of Appeals granted a joint motion to consolidate appeals of district court orders remanding cases brought by California cities and counties to hold fossil fuel companies liable for allegedly causing climate change impacts. The order consolidates the fossil fuel companies appeals in the cases brought by the County of San Mateo, County of Marin, City of Imperial Beach, County of Santa Cruz, City of Santa Cruz, and City of Richmond. The order also set a briefing schedule for the consolidated appeals: the fossil fuel companies’ opening brief is due by October 22, the answering brief is due by November 21, and an optional reply brief is due 21 days after service of the answering brief. The order also referred San Mateo County, Marin County, and Imperial Beach’s motion by for partial dismissal of the appeals to the merits panel. These appellees argue that the Ninth Circuit only has jurisdiction to review the issue of removal under the federal officer removal statute.

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Chevron Corporation and Chevron U.S.A. (Chevron) filed a letter with the Ninth Circuit notifying it of Judge Alsup's dismissal of San Francisco's and Oakland's nuisance lawsuits. Chevron argued that the dismissal demonstrated why the pending motion for partial dismissal should be referred to the merits panel so that the panel could consider the pending appeals of the remand order in this group of cases with the expected appeals in the San Francisco and Oakland cases.

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The fossil fuel companies argued that precedent on the scope of appellate review of remand orders was unclear and that the entire remand order was reviewable. The companies said removal under the federal officer removal statute was a “necessary predicate” for appellate review, but that once that predicate was satisfied, the court of appeals could review the entire order. They characterized the plaintiffs’ motion for partial dismissal as an attempt to prevent the merits panel from reaching the question of whether public nuisance claims based on alleged global warming effects necessarily arise under federal common law—a question on which two judges in the Northern District of California reached opposite answers.

On June 6, 2018, San Mateo and Marin Counties and the City of Imperial Beach moved for partial dismissal of fossil fuel companies’ appeal of a district court order remanding to state court the municipalities’ lawsuits seeking to hold the companies’ liable for climate change damages. The municipalities argued to the Ninth Circuit that the general bar on appellate review of orders remanding cases to state court applied to six of the seven grounds for removal that the companies’ asserted. The municipalities contended that the Ninth Circuit therefore should only review the district court’s rejection of the seventh ground for removal, which was based on the federal officer removal statute.