405 F.Supp.3d 947
D. Colo.2019Background
- Boulder County, San Miguel County, and City of Boulder sued major fossil-fuel companies in Colorado state court alleging state-law claims (public/private nuisance, trespass, unjust enrichment, Colorado Consumer Protection Act, civil conspiracy) for harms and costs caused by climate change; plaintiffs seek monetary abatement, not injunctive relief or regulation of emissions.
- Defendants removed to federal court asserting multiple bases for federal jurisdiction: federal-question (federal common law), Grable substantial-question, complete preemption (Clean Air Act and foreign-affairs), federal-enclave, federal-officer removal (28 U.S.C. § 1442), OCSLA, and bankruptcy-related removal (28 U.S.C. § 1452).
- Plaintiffs moved to remand, arguing the complaint pleads only state-law claims and none of defendants’ asserted federal bases supports removal.
- The court applied the well-pleaded complaint rule and the strict construction presumption against removal; burden of proof rested on defendants.
- The court analyzed each asserted basis (creation of federal cause via federal common law; Grable substantial-question; complete preemption; federal enclave; federal officer; OCSLA; bankruptcy-related removal) and found none established subject-matter jurisdiction.
- The court granted remand to Boulder County District Court and terminated the federal action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal common law creates the cause of action (removal) | Plaintiffs pleaded only state-law tort and statutory claims; federal law not an element | Defendants: climate-change claims implicate uniquely federal interests (energy, environment, foreign affairs) so federal common law governs and supports removal | Rejected — well-pleaded complaint rule controls; defendants’ federal-common-law claim amounts to ordinary preemption/defense, not a creation-of-federal-cause that permits removal |
| Whether Grable substantial-question jurisdiction exists | Plaintiffs: state-law claims do not necessarily raise substantial federal issues | Defendants: resolution necessarily implicates substantial federal issues (foreign policy, regulatory cost-benefit, national energy policy) | Rejected — federal issues not necessarily raised or central; case is fact-bound and does not fit narrow Grable category |
| Whether Clean Air Act or foreign-affairs doctrine completely preempts state claims | Plaintiffs: CAA and federal foreign-affairs do not supply exclusive federal remedy; state claims preserved | Defendants: CAA/foreign-affairs completely preempt and convert claims into federal ones, permitting removal | Rejected — complete preemption is extraordinary, requires Congressional intent or a statutory replacement remedy; CAA contains savings clauses and does not displace state tort claims; foreign-affairs does not supply Congress-intended exclusive remedy |
| Whether any other bases (federal enclave, federal officer, OCSLA, bankruptcy removal) confer jurisdiction | Plaintiffs: injuries asserted are to local jurisdictions, exclude federal lands; leases/regulation not enough for §1442; OCSLA/ bankruptcy links are too attenuated/speculative | Defendants: some alleged effects occur on federal lands; federal leases/directives, OCS operations, and bankruptcy connections justify removal | Rejected — plaintiffs excluded federal-land relief; defendants failed to show „acting under" federal officers or causal nexus; OCSLA requires direct nexus to offshore operations; bankruptcy nexus speculative and police-power exception applies to governmental plaintiffs |
Key Cases Cited
- American Elec. Power Co. v. Connecticut, 564 U.S. 410 (Supreme Court) (federal common law and displacement by Clean Air Act addressed in interstate/sovereign-emission suits)
- Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545 U.S. 308 (Supreme Court) (narrow doctrine for federal jurisdiction when state claim necessarily raises substantial federal issue)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (Supreme Court) (well-pleaded complaint rule limits federal-question jurisdiction)
- Boyle v. United Techs. Corp., 487 U.S. 500 (Supreme Court) (federal common law exists in limited areas of uniquely federal interest)
- Watson v. Philip Morris Co., 551 U.S. 142 (Supreme Court) (limits of federal-officer removal and what constitutes acting under federal direction)
- Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (Supreme Court) (complete preemption transforms state claims into federal ones only in rare, statutory contexts)
- Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (Supreme Court) (complete preemption as exception to well-pleaded complaint rule)
- Kivalina v. ExxonMobil Corp., 696 F.3d 849 (Ninth Circuit) (Clean Air Act displaces federal common-law nuisance regarding greenhouse emissions from stationary sources)
- Illinois v. City of Milwaukee, 406 U.S. 91 (Supreme Court) (federal common law may govern interstate ambient air and water pollution)
- Gunn v. Minton, 568 U.S. 251 (Supreme Court) (two-prong test for when state-law claims arise under federal law)