39 F.4th 1101
9th Cir.2022Background
- Plaintiffs (City & County of Honolulu and County of Maui) sued numerous oil and gas companies in Hawai‘i state court alleging knowledge of and deception about climate change, bringing state-law claims: public and private nuisance, failure to warn, and trespass tied to sea‑level rise and extreme weather.
- Defendants removed to federal court asserting multiple federal jurisdictional grounds: federal‑officer removal, federal enclave jurisdiction, and jurisdiction under the Outer Continental Shelf Lands Act (OCSLA).
- Defendants pointed to (among other things) wartime production under the Defense Production Act, repayment of offshore leases and operation of the Strategic Petroleum Reserve (SPR), offshore OCS leases and operations, and the historical Elk Hills arrangement with the Navy as bases for federal jurisdiction.
- The district court remanded to state court; defendants appealed and the Ninth Circuit consolidated the appeals and reviewed the remand de novo.
- The Ninth Circuit affirmed remand, holding defendants failed to establish federal‑officer removal (both the "acting under" and colorable federal‑defense prongs), could not show the plaintiffs’ injuries arose from conduct on federal enclaves, and OCSLA jurisdiction was precluded because the OCS activities were too attenuated from plaintiffs’ injuries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Federal‑officer removal — "acting under" prong | Claims target defendants’ deceptive promotion and failure to warn, not work done as government agents | Defendants acted under federal officers via DPA directives, SPR contracts, OCS leases, Elk Hills coordination | Rejected — relationships were commercial or regulatory, not the unusually close, detailed supervision required to be "acting under" federal officers |
| Federal‑officer removal — colorable federal‑defense prong (e.g., government‑contractor, immunity) | State‑law claims govern and plaintiffs’ injuries do not turn on federal duties | Defendants invoke government‑contractor defense, federal immunity, preemption, constitutional defenses | Rejected — most defenses do not arise from official duties; government‑contractor and immunity defenses not shown colorable on the record |
| Federal enclave jurisdiction | Plaintiffs’ harms are local and derive from deceptive conduct, not enclave activities | Some defendant conduct occurred on federal enclaves, so claims "relate to" enclave activity | Rejected — link between enclave activities and plaintiffs’ injuries is too remote/attenuated; plaintiffs are master of their claim |
| OCSLA jurisdiction | Injuries derive from deception and product use, not OCS operations | Some extraction occurred on the OCS so OCSLA covers the claims (but‑for causation suffices) | Rejected — OCS activities are too attenuated; OCSLA does not reach claims lacking a direct connection to OCS operations |
Key Cases Cited
- County of San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022) (framework and recent controlling precedent on federal‑officer, enclave, and OCSLA removal for similar climate suits)
- Watson v. Philip Morris Cos., 551 U.S. 142 (2007) (interpretation of "acting under" federal officers and limits on expansive removal)
- Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (government‑contractor defense principles)
- Riggs v. Airbus Helicopters, Inc., 939 F.3d 981 (9th Cir. 2019) (elements of federal‑officer removal test)
- Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) (examples of detailed government direction required for removal)
- Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022) (rejection of expansive enclave/OCSLA jurisdiction in climate cases)
- Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981) (statutory construction limits on OCSLA jurisdiction)
- Mayor of Baltimore v. BP P.L.C., 31 F.4th 178 (4th Cir. 2022) (similar holding limiting OCSLA and federal removal in climate litigation)