STATE OF RHODE ISLAND, Plaintiff, Appellee, v. SHELL OIL PRODUCTS CO., L.L.C.; CHEVRON CORP.; CHEVRON USA, INC.; EXXONMOBIL CORP.; BP, PLC; BP AMERICA, INC.,; BP PRODUCTS NORTH AMERICA, INC.; ROYAL DUTCH SHELL P.L.C.; MOTIVA ENTERPRISES, L.L.C.; CITGO PETROLEUM CORP.; CONOCOPHILLIPS; CONOCOPHILLIPS CO.; PHILLIPS 66; MARATHON OIL CO.; MARATHON PETROLEUM CORP.; MARATHON PETROLEUM CO., L.P.; SPEEDWAY, L.L.C.; HESS CORP.; LUKOIL PAN AMERICAS L.L.C.; AND DOES 1-100, Defendants, Appellants, GETTY PETROLEUM MARKETING, INC. Defendant.
No. 19-1818
United States Court of Appeals For the First Circuit
October 29, 2020
Hon. William E. Smith, Chief U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
Theodore J. Boutrous, Jr., with whom Joshua S. Lipshutz, Anne Champion, Gibson, Dunn & Crutcher LLP, Gerald J. Petros, Robin L. Main, Ryan M. Gainor, Hinckley, Allen & Snyder LLP, Neal S. Manne, Susman Godfrey LLP, John A. Tarantino, Patricia K. Rocha, Nicole J. Benjamin, Adler Pollock & Sheehan P.C., Philip H. Curtis, Nancy G. Milburn, Matthew T. Heartney, Arnold & Porter Kaye Scholer LLP, Matthew T. Oliverio, Oliverio & Marcaccio LLP, Theodore V. Wells, Jr., Daniel J. Toal, Jaren Janghorbani, Kannon Shanmugam, Paul, Weiss, Rifkind, Wharton, Garrison LLP, Jeffrey S. Brenner, Nixon Peabody LLP,
Victor M. Sher, with whom Matthew K. Edling, Sher Edling LLP, and Neil F.X. Kelly, Assistant Attorney General, were on brief for appellee.
Steven P. Lehotsky, U.S. Chamber Litigation Center, Peter D. Keisler, Tobias S. Loss-Eaton, and Sidley Austin LLP, on brief for Chamber of Commerce of The United States of America, amicus curiae.
Patrick Parenteau, Vermont Law School, Harold Hongju Koh, Conor Dwyer Reynolds, Peter Gruber Rule of Law Clinic, and Yale Law School, on brief for Former U.S. Government Officials, amicus curiae.
Gerson H. Smoger, Smoger & Associates, P.C., Anthony Tarricone, and Kreindler & Kreindler, LLP, on brief for Senator Sheldon Whitehouse, Senator Jack Reed, and Senator Edward Markey, amicus curiae.
Scott L. Nelson, Allison M. Zieve, and Public Citizen Litigation Group, were on brief for Public Citizen, amicus curiae.
Robert S Peck and Center For Constitutional Litigation, P.C., on brief for The National League of Cities; The U.S. Conference of Mayors; and The International Municipal Lawyers Association, amicus curiae.
Amy Williams-Derry, Daniel P. Mensher, Alison S. Gaffney, and Keller Rohrback L.L.P., on brief for Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, Geoffrey Supran, and The Union of Concerned Scientists, amicus curiae.
William A. Rossbach and Rossbach Law, PC on brief for Mario J. Molina, Michael Oppenheimer, Robert E. Kopp, Friederike Otto, Susanne C. Moser, Donald J. Wuebbles, Gary B. Griggs, Peter C. Frumhoff and Kristina Dahl, amicus curiae.
Peter Huffman on brief for Natural Resources Defense Council, amicus curiae.
Xavier Becerra, Attorney General for the State of California, David A. Zonana, Supervising Deputy Attorney General,
Matthew D. Hardin on brief for Energy Policy Advocates, amicus curiae.
THOMPSON, Circuit Judge.
Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change. Facing property damage from extreme weather events and otherwise losing money to the effects of climate change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products’ true risks.
Because those claims were state law claims, Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island opposed removal and asked that the district court kindly return the lawsuit to state court. The district court obliged and allowed Rhode Island‘s motion for remand.
The oil companies appealed the district court‘s order to us and a heated debate ensued over the scope of our review. After careful consideration, we conclude that
BACKGROUND
Rhode Island‘s State Court Case
We summarize Rhode Island‘s claims, taking all well-pleaded allegations in its state court complaint as true for the purposes of our analysis. Ten Taxpayer Citizens Grp. v. Cape Wind Assocs., LLC, 373 F.3d 183, 186 (1st Cir. 2004).
In 2018, faced with rising sea levels, higher average temperatures and extreme heat days, more frequent and severe floods, tropical storms, hurricanes, and droughts, Rhode Island sued, in state court, nearly every oil and gas company
All of this left the state up the creek without a paddle once the effects of fossil fuels became more clear, working to combat the effects of a warming planet and an extreme climate.
And those effects are no joke. Most Rhode Island cities and towns are below the floodplain and New England as a whole is losing ground to the ocean at a rate three to four times faster than the global average (and Rhode Island is hardly big enough to sacrifice so much of its land). Those rising sea levels have already increased erosion and the damage of storm surges along Rhode Island‘s coast. On top of the work it has already done to respond to these environmental crises, Rhode Island anticipates that the costs will only grow as it responds to more frequent and extreme flooding and other storm damage.
Rhode Island therefore brought this lawsuit “to ensure that the parties who have profited from externalizing the responsibility for [climate change] bear the costs of those impacts on Rhode Island.” Or, as the district court aptly summarized: “Climate change is expensive, and the State wants help paying for it.” Rhode Island v. Chevron Corp., 393 F. Supp. 3d 142, 146 (D.R.I. 2019).
The state court complaint lists state causes of action: public nuisance, various products liability claims, trespass, impairment of public trust resources, and violation of the state‘s Environmental Rights Act. The theories of liability vary to fit each cause of action, but at its core, Rhode Island‘s claim is simple: the oil companies knew what fossil fuels were doing to the environment and continued to sell them anyway, all while misleading consumers about the true impact of the products.
District Court Litigation
The oil companies removed the case to the district court, arguing that it falls within federal jurisdiction under a variety of theories. The oil companies contended that removal was proper pursuant to
Rhode Island disagreed with all of these arguments and moved for the case to be remanded to state court.
The district court evaluated each of the oil companies’ claims and saw no federal jurisdiction lurking within Rhode Island‘s state causes of action. Accordingly, the district court ordered the case remanded to state court.
The oil companies appealed the remand order to us. As we detail below, Rhode Island argues that our appellate jurisdiction is limited by
OUR TAKE
The first question we must resolve is the scope of our review of this appeal under
Scope of Appellate Review
Section 1447(d) of Title 28 United States Code, provides:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.
Section 1442, in turn, authorizes defendants to remove from state court cases involving “[f]ederal officers or agencies” and
Rhode Island argues that
The oil companies tell us that a plain text reading of
decision in Lu Junhong v. Boeing Co., which adopted this interpretation. 792 F.3d 805, 811 (7th Cir. 2015).
In Lu Junhong, the Seventh Circuit evaluated the provision at issue here and concluded that “to say that a district court‘s ‘order’ is reviewable is to allow appellate review of the whole order, not just of particular issues or reasons.” 792 F.3d at 811. In its analysis, the Seventh Circuit primarily relied on the Supreme Court‘s decision in Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996). In Yamaha, the Court examined the scope of appellate jurisdiction over a district court order during an interlocutory appeal under
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order[.]
Seeing all of this, the oil companies rely on Lu Junhong and Yamaha for their conclusion that the entirety of the district court‘s remand order is fair game. The Seventh Circuit pronounced its interpretation of the word “order” in Lu Junhong to be “entirely textual,” 792 F.3d at 812, and so the oil companies would have us resolve this question with the same allegedly textual approach.
We agree, of course, that we begin with the language of the statute. In re Fin. Oversight & Mgmt. Bd. for Puerto Rico, 919 F.3d 121, 128 (1st Cir. 2019), cert. denied sub nom. Assured Guar. Corp. v. Fin. Oversight & Mgmt. Bd. for Puerto Rico, 140 S. Ct. 855 (2020). But a plain text interpretation (of the sort the oil companies promote) is only appropriate where the statutory language that applies to the word “order” is unambiguous. See Babb v. Wilkie, 140 S. Ct. 1168, 1177 (2020) (“Where . . . the words of a statute are unambiguous, the judicial inquiry is complete.“) (internal quotation marks and citation omitted) (alteration
The first phrase of
Seeing this ambiguity, we are unmoved by the Seventh Circuit‘s reasoning in Lu Junhong because the “entirely textual” analysis there was premised on clarity that
The Lu Junhong court impliedly conceded [that there is ambiguity § 1447(d)] in asserting that “Section 1447(d) itself authorizes review of the remand order, because the case was removed (in part) pursuant to § 1442.” 792 F.3d at 811 (emphasis added). In other words, to convey its point that the plain language of § 1447(d) creates plenary review of a remand order upon invocation of a federal officer removal basis, the Seventh Circuit was forced to modify that language with a clarifying parenthetical entirely absent from the statutory text.
Suncor Energy (U.S.A.) Inc., 965 F.3d at 805. We are similarly unwilling, when faced with an ambiguous provision, to force an interpretation in the name of simplicity. Instead, we will conduct a more holistic analysis.
Beginning with the overall purpose of the statute, we note that the Supreme Court has weighed in on
Turning to the structure of the provision, the point of
Considering all of this, we are persuaded that to allow review of every alleged ground for removal rejected in the district court‘s order would be to allow
One more thing: we assume Congress is “‘aware of the universality of th[e] practice’ of denying appellate review of remand orders when Congress creates a new ground for removal.” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 128 (1995) (alteration in original) (citation omitted) (addressing
This is where the oil companies’ Yamaha argument resurfaces. Prior to the 2011 amendment to
court. 516 U.S. at 205. So, the reasoning goes, the relative Congressional inaction on
To sum this up: we read
Federal-Officer Removal
With the question of our jurisdiction resolved, we turn to the merits that are within our purview: did the district court err when it concluded that it did not have subject-matter jurisdiction over this case pursuant to
Private actors sued in state court can remove the case to federal court where the private actor is “acting under [any federal officer], for any act under color of such office.”
To succeed in their argument that federal-officer removal is proper in this case, the oil companies must show that they were acting under a federal officer‘s authority, that they will assert a colorable federal defense to the suit, and that there exists “a nexus” between the allegations in the complaint and conduct undertaken at the behest of a federal officer. Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999) (internal quotation marks and citations omitted). If the oil companies cannot demonstrate all three of these elements, they cannot remove the case to federal court under
To support their argument, the oil companies point us to three contracts with the federal government related to the production of oil and argue that they were “acting under” a federal officer because they “help[ed] the Government to produce an item that it needs.” See Watson, 551 U.S. at 153. Specifically, these contracts involved (1) oil extraction from the Elk Hills Naval Petroleum Reserve, (2) oil extraction under the Outer Continental Shelf Land Act (“OCSLA“), and (3) CITGO fuel supply agreements. In the Elk Hills Reserve Contract, Standard Oil, a predecessor of Chevron, and the U.S. Navy entered into a contract whereby Standard would limit its extraction to ensure adequate reserves for the Navy, but Standard “could dispose of the oil they extracted as they saw fit.” County of San Mateo v. Chevron Corp., 960 F.3d 586, 602 (9th Cir. 2020). In the OCSLA leases, some of the oil companies agreed to mineral leases with the U.S. Government to extract oil and natural gas from the Outer Continental Shelf, but there appears to be no “close supervision” of this extraction or production of oil “specially conformed to government use.” See Suncor (U.S.A.), Inc., 965 F.3d at 822, 825. And finally, CITGO entered into a contract to provide oil to the Naval Exchange Service Command (“NEXCOM“) service stations on naval bases. County of San Mateo, 960 F.3d at 600-01.
At first glance, these agreements may have the flavor of federal officer involvement in the oil companies’ business, but that mirage only lasts until one remembers
CONCLUSION
Solely having appellate jurisdiction to review the district court‘s remand order to the extent that it denies federal-officer removal, we affirm. Costs awarded to Rhode Island.
Notes
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.