25 F.4th 1238
10th Cir.2022Background
- Three Colorado municipal plaintiffs (Boulder County, San Miguel County, and City of Boulder) sued major energy companies (including Suncor and Exxon) under Colorado common law and statutes for harms allegedly caused by fossil‑fuel production, marketing, and concealment of climate risks (claims: public/private nuisance, trespass, unjust enrichment, Colorado Consumer Protection Act, civil conspiracy).
- Plaintiffs seek damages and remediation within their jurisdictions and expressly disclaimed relief directed at federal lands, emissions controls, or regulation of speech/petitioning.
- Energy companies removed to federal court asserting multiple bases: federal‑officer removal (§ 1442), federal‑question removal under § 1331 (federal common law, CAA complete preemption, Grable substantial federal issue, federal enclave), OCSLA jurisdiction, and bankruptcy removal.
- District court remanded, rejecting all asserted federal‑jurisdiction grounds. The defendants appealed; the Supreme Court’s BP v. Baltimore decision required the Tenth Circuit to review all removal grounds on appeal.
- On remand the Tenth Circuit reviewed each asserted ground and affirmed the remand: none of the six principal federal‑jurisdiction theories justified removal.
Issues
| Issue | Plaintiff (Municipalities) Argument | Defendant (Energy Cos.) Argument | Held |
|---|---|---|---|
| Federal‑officer removal (§1442) | Removal improper; Exxon did not act under federal officers | Exxon acted “under” federal officers via OCS leases and DOI supervision, so §1442 permits removal | Denied: Exxon failed to show the special "acting under" relationship (no delegation of authority, no government‑directed production or essential governmental task) |
| Federal common law (arising‑under) | Claims are state law; plaintiffs did not plead federal common‑law causes | State claims implicate federal common law of transboundary pollution | Denied: federal common law in this field is displaced by the CAA (and even if extant, does not completely preempt state claims) |
| CAA complete preemption | CAA preserves state remedies; it does not supply an exclusive federal cause of action | CAA citizen‑suit and judicial‑review provisions foreclose state‑law suits or make federal remedies exclusive | Denied: CAA contains savings clauses and does not provide the exclusive federal remedy needed for complete preemption |
| Grable (substantial federal‑question) | Plaintiffs’ state‑law claims do not necessarily raise substantial federal issues; any federal concerns are defensive | Litigation necessarily raises substantial federal issues (foreign policy, federal cost‑benefit regulatory decisions) | Denied: federal issues are not "necessarily raised" nor sufficiently "substantial" to overcome the well‑pleaded complaint rule |
| Federal enclave jurisdiction | Plaintiffs seek relief for harms within their jurisdictions (non‑federal land); they disclaimed relief for federal lands | Some alleged harms affected federal lands (e.g., Rocky Mountain NP, national forest) so enclave jurisdiction applies | Denied: alleged injuries and the relief sought are to non‑federal property; the enclave connection is too attenuated or incidental |
| OCSLA jurisdiction (43 U.S.C. §1349) | OCSLA requires a direct nexus to OCS operations or immediate physical impacts | Exxon’s OCS production is part of defendants’ fossil‑fuel operations; plaintiffs’ injuries arise in part from OCS‑sourced fuel | Denied: nexus is too remote/attenuated; plaintiffs’ Colorado harms are not directly caused by or arising from OCS operations |
Key Cases Cited
- BP P.L.C. v. Mayor & City Council of Balt., 141 S. Ct. 1532 (U.S. 2021) (appellate review under §1447(d) reaches all removal grounds raised below)
- Suncor Energy (U.S.A.) Inc. v. Bd. of Cnty. Comm’rs of Boulder Cnty., 965 F.3d 792 (10th Cir. 2020) (prior Tenth Circuit decision, vacated and remanded by the Supreme Court)
- Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (U.S. 2011) (Clean Air Act displaces federal common‑law nuisance claims for greenhouse gases)
- Watson v. Philip Morris Cos., 551 U.S. 142 (U.S. 2007) (limits of "acting under" a federal officer for private parties)
- Grable & Sons Metal Prods. v. Darue Eng’g, 545 U.S. 308 (U.S. 2005) (narrow doctrine permitting federal jurisdiction when a state claim necessarily raises a substantial federal question)
- Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (U.S. 1986) (absence of a federal private right of action evidences lack of substantial federal interest for removal)
- City of Milwaukee v. Illinois, 451 U.S. 304 (U.S. 1981) (federal statutes can displace federal common law of interstate pollution)
- Illinois v. City of Milwaukee, 406 U.S. 91 (U.S. 1972) (recognition of limited federal common law for ambient/interstate air and water)
- Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012) (AEP extinguished federal common‑law nuisance claims for climate harms)
- Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195 (10th Cir. 2012) (complete‑preemption and related removal principles)
- In re Deepwater Horizon, 745 F.3d 157 (5th Cir. 2014) (OCSLA jurisdiction requires a sufficiently direct nexus to OCS operations)