STATE OF RHODE ISLAND v. SHELL OIL PRODUCTS CO., L.L.C., еt al.
No. 19-1818
United States Court of Appeals, First Circuit
May 23, 2022
For the First Circuit
No. 19-1818
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, District Judge]
Before
Thompson and Howard,
Circuit Judges.*
* Judge Torruella heard argument in this appeal. But he did
not participate in the decision, which is being rendered by a
“quorum” of the panel. See
Theodore J. Boutrous, Jr., Thomas G. Hungar, 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., Nancy G. Milburn, Matthew
T. Heartney, Jonathan W. Hughes, 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, David C. Frederick, Grace W. Knofczynski, Kellogg,
Hansen, Todd, Figel & Frederick, P.L.L.C., Daniel B. Levin, John
E. Bulman, Stephen J. MacGillivray, Pierce Atwood LLP, Nathan P.
Eimer, Pamela R. Hanebutt, Lisa S. Meyer, Raphael Janove, Ryan J.
Walsh, Eimer Stahl LLP, Michael J. Colucci, Olenn & Penza, LLP,
Sean C. Grimsley, Jameson R. Jones, Daniel R. Brody, Bartlit Beck
LLP, Robert G. Flanders, Jr., Timothy K. Baldwin, Whelan, Corrente
& Flanders, LLP, Steven M. Bauer, Margaret A. Tough, Latham &
Watkins LLP, Shannon S. Broome, Shawn Patrick Regan, Ann Marie
Mortimer, Hunton Andrews Kurth LLP, Jeffrey B. Pine, Patrick C.
Lynch, Lynch & Pine, Jason C. Preciphs, Roberts, Carroll, Feldstein
& Peirce, Inc., J. Scott Janoe, Megan Berge, Baker Botts L.L.P.,
Lauren Motola-Davis, Samuel A. Kennedy-Smith, Lewis Brisbois
Bisgaard & Smith LLP, Tracie J. Renfroe, Oliver Peter Thoma, King
& Spaulding LLP, Steрhen M. Prignano, McIntyre Tate LLP, James
Stengel, Robert Reznick, and Orrick, Herrington & Sutcliffe, LLP,
on supplemental brief for appellants.
Victor M. Sher, Matthew K. Edling, Sher Edling LLP, and Neil
F.X. Kelly, Assistant Attorney General, Office of the Attorney
General, on supplemental brief for appellee.
Andrew R. Varcoe, Stephanie A. Maloney, U.S. Chamber
Litigation Center, William M. Jay, Andrew Kim, and Goodwin Procter
LLP, on supplemental brief for The Chamber of Commerce of The
United States of America, amicus curiae.
Linda E. Kelly, Patrick Hedren, Erica Klenicki,
Manufacturers’ Center for Legal Action, Philip S. Goldberg,
Christopher E. Appel, and Shook Hardy & Bacon L.L.P., on
supplemental brief for The National Association of Manufacturers,
Energy Marketers of America, and The National Association of
Convenience Stores, amici curiae.
Steve Marshall, Attorney General of Alabama, Treg Taylor,
Attorney General of Alaska, Leslie Rutledge, Attorney General of
Arkansas, Christopher Charr, Attorney General of Georgia, Theodore
E. Rokita, Attorney General of Indiana, Thomas M. Fisher, Solicitor
General, Kian J. Hudson, Deputy Solicitor General, Julia C. Payne,
Deputy Attorney General,
Kansas, Daniel Cameron, Attorney General оf Kentucky, Jeff Landry,
Attorney General of Louisiana, Lynn Fitch, Attorney General of
Mississippi, Austin Knudsen, Attorney General of Montana, Doug
Peterson, Attorney General of Nebraska, Alan Wilson, Attorney
General of South Carolina, Ken Paxton, Attorney General of Texas,
Sean Reyes, Attorney General of Utah, and Bridget Hill, Attorney
General of Wyoming, on supplemental brief for State of Alabama,
State of Alaska, State of Arkansas, State of Georgia, State of
Indiana, State of Kansas, Commonwealth of Kentucky, State of
Louisiana, State of Mississippi, State of Montana, State of
Nebraska, State of South Carolina, State of Texas, State of Utah,
and State of Wyoming, amici curiae.
Robert S. Peck and Center For Constitutional Litigation,
P.C., on supplemental brief for The National League of Cities, The
U.S. Conference оf Mayors, and The International Municipal Lawyers
Association, amici curiae.
Rob Bonta, Attorney General of California, William Tong,
Attorney General of Connecticut, Kathleen Jennings, Attorney
General of Delaware, Clare E. Connors, Attorney General of Hawaii,
Aaron M. Frey, Attorney General of Maine, Brian E. Frosh, Attorney
General of Maryland, Maura Healey, Attorney General of
Massachusetts, Seth Schofield, Senior Appellate Counsel, Keith
Ellison, Attorney General of Minnesota, Leigh Currie, Special
Assistant Attorney General, Andrew J. Bruck, Acting Attorney
General of New Jersey, Hector Balderas, Attorney General of New
Mexico, Letitia James, Attorney General of New York, Ellen F.
Rosenblum, Attorney General of Oregon, Josh Shapiro, Attorney
General of Pennsylvania, Thomas J. Donovan, Jr., Attorney General
of Vermont, Robert W. Ferguson, Attorney General of Washington,
Joshua L. Kaul, Attorney General of Wisconsin, and Karl A. Racine,
Attorney General of the District of Columbia, on supplemental brief
for State of California, State of Connecticut, State of Delaware,
State of Hawaii, State of Maine, State of Maryland, Commonwealth
of Massachusetts, State of Minnesota, State of New Jersey, State
of New Mexico, State of New York, State of Oregon, Commonwealth of
Pennsylvania, State of Vermont, State of Washington, State of
Wisconsin, and District of Columbia, amici curiae.
Peter Huffman on supplemental brief for Natural Resources
Defense Council, amicus curiae.
Kaighn Smith, Jr., and Drummond Woodsum on supplemental brief
for Scholars of Foreign Relations and Federal Courts, amici
curiae.**
** For the names of the attorneys involved in the original
appeal, see 979 F.3d 50, 51-53 (1st Cir. 2020).
May 23, 2022
THOMPSON, Circuit Judge. This is our second pass at a
climate-change case that requires us to explore the mind-numbing
complexities of federal removal jurisdiction. See Rhode Island v.
Shell Oil Prods. Co., 979 F.3d 50, 54 (1st Cir. 2020) (“Shell
Oil“). We start by bringing the reader up to speed.1
Like other state and local governments across the
country, Rhode Island claims that the Energy Companies named in
our
the earth‘s atmosphere but duped the public into buying more and
more of their products (consequences be damned) — all to line their
very deep pockets. See id. at 53. Seeking relief for the
catastrophic harm they supposedly have done (and will do) to
non-federal property and natural resources, Rhode Island — also
like other governments elsewhere — sued the Energy Companies in
state court. See id. at 53-54. And its longish complaint alleges
state-law causes of action for public nuisance, strict-liability
design defect, negligent design defect,
impairment of public-trust resources, and violations of the
state‘s Environmental Rights Act.
Not eager to try this case in a Rhode Island court, the
Energy Companies removed the matter to federal court under the
federal-officer removal statute, the federal-question doctrine,
familiarity with our Shell Oil opinion.
the Outer Continental Shelf Lands Act (just “OCSLA” from nоw on),
the admiralty-jurisdiction
statute. But to their disappointment, the district judge thought
that none of those grounds could provide a hook on which removal
could hang. See id. And so he remanded the case to state court.
See id.
On the Energy Companies’ appeal — in our first go-around
— we concluded that we could only review the federal-officer
removal ground. See id. at 58-60. And ruling that the Energy
Companies had not satisfied the requirements of the federal-
officer removal statute, we affirmed the judge‘s remand order.
See id. at 60. But on the Energy Companies’ petition for
certiorari, the Supreme Court (without reversing our decision on
the merits) GVR‘d us (short for granted certiorari, vacated, and
remanded) and instructed that we give “further consideration in
light of BP p.l.c. v. Mayor & City Council of Baltimore, 141 S.
Ct. 1532 (2021)” — a then-hot-off-the-presses opinion requiring
courts of appeals to review the judge‘s entire remand order and
consider all of the defendants’ removal grounds, not just the part
of the order resolving the federal-officer removal ground.2
See Shell Oil Prods. Co. v. Rhode Island, 141 S. Ct. 2666 (2021)
(Mem.).
Pleased to oblige, we requested and received
supplemental briefs from counsel.3
In them, the parties continue
battling over whether the Energy Companies can remove the case on
various bases. And it is to this dispute that we turn to below,
using a de novo standard (which gives zero deference to the judge‘s
views) and adding more details when needed to put the arguments
into workable perspective. See Amoche v. Guarantee Tr. Life Ins.
Co., 556 F.3d 41, 48 (1st Cir. 2009). But to give away the
opinion‘s ending up front: leaning hard on our sibling circuits’
analyses in comparable climate-change cases — particularly County
of San Mateo v. Chevron Corp., Nos. 18-15499, 18-15502, 18-15503,
18-16376, 2022 WL 1151275 (9th Cir. Apr. 19, 2022) (“San Mateo“);
Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178 (4th
Cir. 2022) (“BP P.L.C.“); Board of County Commissioners of Boulder
County v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir.
2022) (“Suncor“); City of Oakland v. BP PLC, 969 F.3d 895, 907
(9th Cir. 2020) (“Oakland“), cert. denied, 141 S. Ct. 2776 (2021)
— we once more affirm the judge‘s remand order.
helpful insights as well.
Overarching Considerations
Federal courts have limited jurisdiction, charted
(within constitutional limits) by federal statute. See, e.g.,
López-Muñoz v. Triple-S Salud, Inc., 754 F.3d 1, 5 (1st Cir. 2014);
Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 48 (1st Cir. 2008)
(noting that “[b]oth jurisdiction and removal are primarily
creatures of Congress“). And as we are about to see, lots of
statutes control removal of state-filed cases to federal court.
A generalized removal statute says that a defendant can
remove a state-filed case to federal court only if the plaintiff
could have brought the case there originally. See
jurisdiction over сases that “aris[e] under” federal law — i.e.,
“the Constitution, laws, or treaties of the United States,” see
common law,” see Illinois v. City of Milwaukee, 406 U.S. 91, 100
(1972). Section 1441 is known as the general-removal statute.
See, e.g., Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743,
1746 (2019) (“Home Depot“). And section 1331 is known as the
general federal-question jurisdiction statute. See, e.g., Holmes
Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826,
Specialized removal statutes exist too. Take, for
instance, the bankruptcy-removal statute, which (in broad strokes)
allows removal to a district court of any claim of which that court
would have jurisdiction under another provision that (generally
speaking) creates federal jurisdiction for disputes “arising
under” the bankruptcy code, disputes “arising in” a bankruptcy
case, and disputes “related to” the resolution of a bankruptcy
case. See
Whether a case arises under federal law typically is
“determined from what necessarily appears” on the face of a
plaintiff‘s complaint, “unaided by anything alleged in
anticipation or avoidance of defenses which it is thought the
defendant may interpose.” See Taylor v. Anderson, 234 U.S. 74,
75-76 (1914); see also Franchise Tax Bd. v. Constr. Laborers
Vacation Tr., 463 U.S. 1, 9-12 (1983). This is known as the well-
pleaded-complaint rule, because it concentrates our attention on
the complaint‘s terms. See Franchise Tax Bd., 463 U.S. at 9-10.
And in most instаnces, that rule makes plaintiff the “master” of
the complaint — including the master of “what law” plaintiff “will
rely upon.” See The Fair v. Kohler Die & Specialty Co., 228 U.S.
22, 25 (1913) (Holmes, J., for the Court).
As with many rules, however, exceptions exist. See Rose
v. RTN Fed. Credit Union, 1 F.4th 56, 59-60 (1st Cir. 2021). One
exception applies when “a state-law claim necessarily raise[s] a
stated federal issue,” which is “actually disputed and
substantial,” and which a federal court can consider “without
disturbing any congressionally approved balance” between state and
federal power. See Grable & Sons Metal Prods., Inc. v. Darue Eng‘g
& Mfg., 545 U.S. 308, 313-16 (2005) (“Grable“); accord R.I.
Fishermen‘s All., Inc. v. R.I. Dep‘t of Envtl. Mgmt., 585 F.3d 42,
49 (1st Cir. 2009). Only a “slim category” of state-law claims
satisfies Grable, however. See Empire Healthchoice Assurance,
Inc. v. McVeigh, 547 U.S. 677, 701 (2006) (“Empire Healthchoice“)
(emphasis added); San Mateo, 2022 WL 1151275, at *4. Another
exception applies when federal law has completely displaced state
law and so “provide[s] the exclusive cause of action for such
claims” — thus making the asserted claim necessarily federal. See
Beneficial Nat‘l Bank v. Anderson, 539 U.S. 1, 11 (2003)
(“Beneficial“); accord Caterpillar Inc. v. Williams, 482 U.S. 386,
393 (1987); Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9,
17 (1st Cir. 2018); López-Muñoz, 754 F.3d at 5.4
Where it exists, “there is . . . . Ordinary preemption, contrastingly, “refer[s] topreemption is a “narrow exception.” Beneficial, 539 U.S. at 5.5
But in the rare situations when it applies, courts sometime
derisively describe the complaint as “artfully pleaded” to
sidestep the federal claim. See, e.g., Rivet, 522 U.S. at 475.
As the parties trying to remove the case from state to
federal court, the Energy Companies must prove that the federal
court has original jurisdiction. See
also Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st
Cir. 1999). And because removal jurisdiction raises serious
federalism concerns, we construe removal statutes strictly and
against removal. See, e.g., Syngenta Crop Prot., Inc. v. Henson,
537 U.S. 28, 32 (2002); Rosselló-González v. Calderón-Serra, 398
F.3d 1, 11 (1st Cir. 2004). So if federal jurisdiction is
doubtful, a federal court must remand to state court. See, e.g.,
Rosselló-González, 398 F.3d at 11.
(emphasis added). And as a mere defense, (emphasis added). (“Metro. Life“). The Court, in (National Bank Act §§ 85 and 86); (2) Metro. Life, 481 U.S. (Employee Retirement Income Security Act § 502(a)); and Issues in Play The Energy Companies argue for removal based on federal- question jurisdiction, which they think exists because (as they tell it) Rhode Island artfully pleaded state claims that are at bottom governed by federal common law; completely preempted by federal law; necessarily dependent on substantial and disputed federal issues; and based on injuries or conduct on federal enclaves. They also argue for removal based on other jurisdictional and removal statutes, namely the OCSLA-jurisdiction statute, the admiralty-jurisdiction statute, and the bankruptcy- removal statute.6 And per our precedent, the Energy Companies must (noting that Shell Oil “described the ‘relating to’ (alteration in original and In the pages that follow, we discuss and reject each of the Energy Companies’ arguments (again, all in keeping with the recent decisions of other circuit courts). Federal-Question Jurisdiction Federal Common Law Citing the artful-pleading doctrine, the Energy Companies argue that even though Rhode Island‘s complaint says nothing about federal common law, the claims alleged “are inherently federal” and necessarily arise under federal law because they are “based on interstate and international emissions” (excess capitalization removed) — i.e., uniquely federal interests, the theory goes, that must be governed by federal common law. To their way of thinking then, Rhode Island‘s claims amount to federal claims in disguise. Noting our “skepti[cism]” about “the applicability of the artful pleading doctrine outside of complete federal preemption of a state cause of action,” seе Rosselló-González, 398 F.3d at 12 (citing Franchise Tax Bd. and Rivet), Rhode Island protests that the well-pleaded-complaint rule campaign about the harmful effects of their products on the earth‘s climate.” Id. at 60. And, we ruled, the trio of contracts “mandate[s] none of those activities” — thus making the case unremovable under the federal-officer removal statute. See id. Because nothing in the Supreme Court‘s BP p.l.c. opinion undermines that holding (BP p.l.c., remember, only requires us to consider the Energy Companies’ other removal grounds), we “adhere to” Shell Oil‘s rejection of federal-officer removal jurisdiction (and for what it is worth, the Energy Companies identify no shortcomings with that rejection). (which — as already explained — generally bars removal unless a federal question appears on the complaint‘s face) stops us from looking behind the complaint and construing the state-law theories as federal common-law ones. But as a fallback, Rhode Island argues thаt even if the Energy Companies could get around that rule, they would still lose because Congress has replaced the federal common law that they rely on. Avoiding the kerfuffle over the parties’ artful pleading-based arguments — our credo is that “if it is not necessary to decide more, it is necessary not to decide more,” see PDK Labs. Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) — we take the “even if” approach and ultimately conclude the Energy Companies cannot premise removal on a federal common law that no longer exists, see generally 14C Charles A. Wright, Federal Practice and Procedure § 3722.1 (Rev. 4th ed. Apr. 2022) (“Federal Practice and Procedure“) (lamenting that “the artful-pleading doctrine lacks precise definition and has bred considerable confusion“). Why we so rule requires some unpacking, however. While there is no general common law, pockets of federal judge-made law exist that bind the states. See BP P.L.C., 31 F.4th at 200 (providing examples). But the circumstances where the “judicial creation of a speciаl federal rule” ought to displace state law are “few and restricted,” see O‘Melveny & Meyers v. F.D.I.C., 512 U.S. 79, 89 (1994) (“O‘Melveny“) (quotation marks omitted) — limited to those “extraordinary cases,” see id., involving both “uniquely federal interests” and a “significant conflict . . . between some federal policy or interest and the use of state law,” see Boyle v. United Tech. Corp., 487 U.S. 500, 506 (1988) (quotation marks omitted). That makes sense because where federal common law exists, it “pre- empt[s] and replace[s]” state law, see id. at 504 — which raises sensitive issues of separation of powers and federalism, see Rodriguez v. F.D.I.C., 140 S. Ct. 713, 717 (2020) (underscoring that “[j]udicial lawmaking in the form of federal common law plays a necessarily modest role under a Constitution that vests the federal government‘s ‘legislative Powers’ in Congress and reserves most other regulatory authority to the States” (quoting U.S. Const. art. 1, § 1)). Critically as well, the side pushing a theory of federal common law must show a “specific, concrete federal policy or interest” with which state law directly conflicts “as a precondition for recognition of a federal rule of decision.” See O‘Melveny, 512 U.S. at 87-88 (emphases added).7 The Energy Companies spend a lot of time on the “uniquely federal interests” point, highlighting (for instance) the federal government‘s special concern with “controlling interstate . pollution, promoting energy independence, and negotiating multilateral treaties addressing global warning” — interests, they continue, that call fоr the application of a “uniform federal rule of decision,” which makes the case “removable under 28 U.S.C. §§ 1331 and 1441.” But even “[a]ssuming” (without granting) that these concerns constitute “uniquely federal interests,” see BP P.L.C., 31 F.4th at 202, we — like the Fourth Circuit in BP P.L.C. — find that the Energy Companies (despite being the burden-bearer on the removal issue) never adequately describe how “any significant conflict exist[s] between” these “federal interests” and the state-law claims, which (again) seek to hold them liable for the climate change-related harms they caused by deliberately misrepresenting the dangers they knew would arise from their deceptive hyping of fossil fuels, see id. at 203-04. Not only does this “misstep” raise a waiver problem. See, e.g., Rodríguez v. Mun. of San Juan, 659 F.3d 168, 175-76 (1st Cir. 2011) (discussing how to set an issue up for decision); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (doing the same and stressing that “[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel‘s work“). It also deals a “fatal” blow to the Energy Companies’ bid to base federal-question jurisdiction on federal common law. See BP P.L.C., 31 F.4th at 202 (quoting O‘Melveny, 512 U.S. at 88); see Atherton v. F.D.I.C., 519 U.S. 213, 218 (1997) (confirming that “the guiding principle is that a significant conflict between some federal policy or interest and the use of state law . . . must first be specifically shown” (omission in original, emphasis added, and quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966))). To the extent the Energy Companies rely on City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021), to hint at a conflict between the federal government‘s relations with foreign countries and the rights of states, they are unable to do so. See BP P.L.C., 31 F.4th at 202-03 (rebuffing a similar suggestion in a similar case); Suncor, 25 F.4th at 1262 (same). City of New York, after all, is distinguishable in at least one key respect. There, unlike here, the government “filed suit in federal court in the first instance” (relying on diversity jurisdiction) — so the court considered the fossil-fuel producers’ “preemption defense on its own terms, not under the heightened standard unique to the removability inquiry.” See 993 F.3d at 94 (emphases added). And the court found that its ordinary preemption analysis did not clash with the “fleet of cases” (among them Oakland) recognizing that “anticipated defenses” — including those based on federal common law — could not “singlehandedly create federal-question jurisdiction under 28 U.S.C. § 1331 in light of the well-pleaded complaint rule.” See id. Ignoring these problems just for discussion purposes, we still say the Energy Companies fall short. Instead of handling “the threshold inquiry above,” they here — like the energy companies in BP P.L.C. — shine a spotlight on some old Supreme Court cases “that once (or possibly) recognized federal common law in the context of interstate pollution and greenhouse-gas emissions.” See 31 F.4th at 204. And from there, they intimate that applying state lаw in this area would upset our constitutional scheme. Put aside how the federal common law they bring up does not address the type of acts Rhode Island seeks judicial redress for.8 Even accepting the Energy Companies’ description of Rhode Island‘s claims as being “transboundary pollution” claims (again, just for argument‘s sake), we know that “[w]hen Congress addresses a question previously governed by a decision rested on federal common law . . . the need for such an unusual exercise of law- making by federal courts disappears.” See Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 423 (2011) (“AEP“) (quoting City of Milwaukee v. Illinois, 451 U.S. 304, 314 (1981)). The Clean Water Act and the Clean Air Act — neither of which Rhode Island invokes — “have statutorily displaced any federal common law that previously existed.” See BP P.L.C., 31 F.4th at 207. So we cannot rule that any federal common law controls Rhode Island‘s claims. See id. at 199, 205-06 (saying that although the energy companies “characterize [the government‘s] claims as ‘interstate-pollution claims’ that arise under federal common law,” Congress displаced the federal common law of interstate pollution, and it would “def[y] logic” to base removal on a “federal common law claim [that] has been deemed displaced, extinguished, and rendered null by the Supreme Court“).9 Grable The Energy Companies next argue that “[e]ven if” Rhode Island‘s claims found their origins in state rather than federal law, “removal still would be proper under Grable.” Grable, as we signaled a few pages back, requires us to ask if Rhode Island‘s claims fall into the very rare class that (1) necessarily raise a (“Kivalina“) (No. 09-17490), 2010 WL 3299982, at (Pro, D.J., concurring) (citing AEP, 564 U.S. at 429). federal issue that is (2) truly disputed and (3) substantial and that (4) a federal court can decide without upsetting the balance between state and federal judiciaries. See Gunn v. Minton, 568 U.S. 251, 258 (2013) (discussing Grable). Just like other circuits in comparable cases, see San Mateo, 2022 WL 1151275, at *4-6; BP P.L.C., 31 F.4th at 208-15, we answer no. We begin and end at prong (1), the necessarily-raised prong — which the Energy Companies can satisfy only if a federal issue “is a nеcessary element of one of the well-pleaded state claims” in Rhode Island‘s complaint. See Franchise Tax Bd., 463 U.S. at 13 (emphasis added); see also Gunn, 568 U.S. at 258 (stressing that jurisdiction lies under Grable only if “all four” prongs “are met“). The best way to wrap one‘s mind around this prong is to consider what happened in Grable. The IRS seized and sold Grable‘s real property to satisfy a tax lien. See 545 U.S. at 310. Grable challenged the sale via a quiet-title suit in state court, calling the buyer‘s title invalid because the IRS had not complied with federal notice requirements. Id. at 311. The buyer removed the case to federal court. Id. The only disputed issue concerned whether Grable got “notice within the meaning of the federal statute.” See id. at 315 (emphasis added). And the Supreme Court held that such a claim “arises under” federal law because (among other things) there was nothing in the suit but federal law: state law provided the remedy, a declaration of ownership — but ownership could not be decided without deciding if the federal government respected federal legal demands. See id. In other words, “[d]eciding an issue of federal law was inescapable.” Hartland Lakeside Joint No. 3 Sch. Dist. v. WEA Ins. Corp., 756 F.3d 1032, 1035 (7th Cir. 2014) (emphasis added). Importantly too, “the national government itself was vitally concerned abоut the outcome; an adverse decision could undercut its ability to collect taxes.” See id. Nothing at all similar is involved here. True, the Energy Companies say that Rhode Island‘s claims are “bound up with,” “implicate,” or “seek[] to replace” various “federal interests” — including energy policy, economic policy, environmental regulation, national security, and foreign affairs. But faced with comparable arguments, cases akin to this one flatly reject the idea that federal law is an essential element to the kind of classic state-law claims Rhode Island raises — claims, as we keep saying, that accuse the Energy Companies of contributing to climate change that (per the complaint) is wreaking havoc on the state‘s infrastructure and coastal communities. See San Mateo, 2022 WL 1151275, at *5; BP P.L.C., 31 F.4th at 208-15. To paraphrase these courts: none of Rhode Island‘s claims has as an element a violation of federal law; the Energy Companies pinpoint no specific federal issue that must necessarily be decided for Rhode Island to win its case; and their speaking about federal law or federal concerns in the most generalized way is not enough for Grable purposes. See San Mateo, 2022 WL 1151275, at *5; BP P.L.C., 31 F.4th 208-15. Hence Rhode Island‘s state-law claims — like those in San Mateo and BP P.L.C. — are not among the rare few that “can[] be squeezed into the slim category Grable exemplifies.” See Empire Healthchoice, 547 U.S. at 701. Complete Preemption As intimated above, Congress can pass a statute so broad that any complaint raising claims in that area is necessarily federal in nature and so is removable to federal court. See, e.g., Beneficial, 539 U.S. at 8. “Complete preemption,” we must say (echoing a circuit relative of ours) “is ‘a doctrine only a judge could love‘” — “and one only judges could confusingly name.” See Loffredo v. Daimler AG, 500 F. App‘x 491, 495 (6th Cir. 2012) (quoting Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1075 (7th Cir. 1992)). “More productively thought of as a jurisdictional rather than a preemptive rule, complete preemption amounts to an exception to the well-pleaded complaint rule that converts a state-law claim . . . into a federal claim.” Id. Invoking this doctrine, the Energy Companies contend that the Clean Air Act completely preempts Rhode Island‘s claims and thus authorizes removal. So having ruled above “that the federal common law does not completely preempt the state-law claims, we now consider whether the federal act that displaced the federal common law — the [Clean Air Act] — completely preempts them.” See Suncor, 25 F.4th at 1263. No circuit to consider the kind of argument the Energy Companies press here has accepted it. See San Mateo, 2022 WL 1151275, at *6; BP P.L.C., 31 F.4th at 215-17; Suncor, 25 F.4th 1263-65. And we will not be the first. “[T]he Clean Air Act is not one of the three statutes that the Supreme Court has determined has extraordinary preemptive force.”10 See San Mateo, 2022 WL 1151275, at *6 (quoting Oakland, 969 F.3d at 907); BP P.L.C., 31 F.4th at 215; Suncor, 25 F.4th at 1257. Also — and as noted previously — complete preemption requires that defendants show Congress clearly intended to supersede state authority. See, e.g., Metro. Life, 481 U.S. at 65-66. But the Clean Air Act says that “pollution prevention . . . and air pollution control at its source is the primary responsibility of States and local governments.” See 42 U.S.C. § 7401(a)(3) (emphasis added); see also BP P.L.C., 31 F.4th at 215; Oakland, 969 F.3d at 908. And the Act has two “savings clauses” that expressly preserve non-Clean Air Act claims. See BP P.L.C., 31 F.4th at 216 (discussing “savings clauses that preserve state and local governments’ legal right to impose standards and limitations on air pollution that are stricter than national requirements“); see also Oakland, 969 F.3d at 907-08 (noting that the Act “preserves state-law causes of action pursuant to a saving clause” that “‘mаkes clear that states retain the right to “adopt or enforce” common law standards that apply to emissions’ and preserves ‘[s]tate common law standards . . . against preemption‘” (discussing 42 U.S.C. § 7416, and quoting Merrick v. Diageo Ams. Supply, Inc., 805 F.3d 685, 690, 691 (6th Cir. 2015), which cites in turn W. Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 98 (1991))). All of which takes complete preemption off the table. See Suncor, 25 F.4th at 1263; accord BP P.L.C., 31 F.4th at 215-17; Oakland, 969 F.3d at 907-08. If more were needed, another prerequisite of complete preemption — do not forget — is that a statute supplies a federal cause of action to replace the state claim. See, e.g., Beneficial, 539 U.S. at 9; López-Muñoz, 754 F.3d at 5 (commenting that Supreme Court opinions “finding complete preemption share a common denominator: exclusive federal regulation of the subject matter of the asserted state claim, coupled with a federal cause of action for wrongs of the same type“). Accordingly then, the Clean Air Act‘s not providing an “exclusive federal cause of action for suits against private polluters” makes complete preemption a nonstarter too. See Suncor, 25 F.4th at 1263; accord BP P.L.C., 31 F.4th 215-17; Oakland, 969 F.3d at 907-08.11 Federal Enclave Federal courts have federal-question jurisdiction over tort claims arising on federal enclaves. See, e.g., BP P.L.C., 31 F.4th at 217-18; Suncor, 25 F.4th at 1271. Rhode Island‘s complaint, however, specifically avoids seeking relief for damages to any federal lands in the Ocean State.12 Faced with this reality, the Energy Companies claim that a big chunk of their “operative activities occurred on federal land” — like at the “Elk Hills Naval Petroleum Reserve” in California. See generally BP P.L.C., 31 F.4th at 217 (stating that “naval installations are generally considered federal enclaves“). The problem for them, though, is that “[t]he doctrine of federal enclave jurisdiction generally requires that all pertinent events t[ake] place on a federal enclave.” See Suncor, 25 F.4th at 1271 (alterations by the Suncor Court and quotations omitted). And some of the pertinent events — e.g., the Energy Companies’ deceptive marketing and Rhode Island‘s injuries — occurred outside federal enclaves. See BP P.L.C., 31 F.4th at 217-18 (explaining that “federal-question jurisdiction is not conferred merely because somе of Defendants’ activities occurred on military installations“); the Environmental Protection Agency regarding nationwide emissions. But that section has nothing to do with Rhode Island‘s claims here, which (once again) concern the Energy Companies’ deceptive promotion of damaging fossil-fuel products. See BP P.L.C., 31 F.4th at 215-17 (rejecting a similar complete-preemption argument); Suncor, 25 F.4th at 1264-65 (ditto); Oakland, 969 F.3d at 908 (ditto again). see also San Mateo, 2022 WL 1151275, at *8 (finding that “[t]he connection between conduct on federal enclaves and the Counties’ alleged injuries is too attenuated and remote to establish that the Counties’ cause of action is governed by federal law applicable to any federal enclave“). Enough said about that issue. OCSLA Jurisdiction Pointing to their “substantial” activities on the outer continent shelf (“OCS“) — thеy say “the five” biggest “operators” there since the mid-1990s “have included at least three entities among the [Energy Companies] here (or a predecessor) or one of their subsidiaries” — the Energy Companies also maintain that federal jurisdiction exists under OCSLA.13 That statute extends such jurisdiction to “cases and controversies arising out of, or in connection with[,] . . . any operation conducted on the [OCS] which involves exploration, development, or production of . . . minerals.” 43 U.S.C. § 1349(b)(1) (emphasis added). The italicized phrase — “in connection with” — bears directly on this case. Our circuit (as the parties seem to agree) has not yet addressed that phrase‘s meaning. Which explains why the Energy Companies rely big time on cases from the Fifth Circuit that have.14 OCSLA jurisdiction exists, says the Fifth Circuit, if “(1) the activities that caused the injury constituted an ‘operation’ ‘conducted on the [OCS]’ that involved the exploration and production of minerals, and (2) the case ‘arises out of, or in connection with’ the operation,” In re Deepwater Horizon, 745 F.3d 157, 163 (5th Cir. 2014) (“Deepwater“) (quoting OCSLA) — a “jurisdictional test” intended “to cover a ‘“wide range of activity occurring beyond the territorial waters of the states,“‘” Suncor, 25 F.4th at 1272 (quoting Barker v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir. 2013), in turn quoting Texaco Expl. & Prod., Inc. v. AmClyde Engineered Prods. Co., 448 F.3d 760, 768 (5th Cir. 2006), amended on reh‘g, 453 F.3d 652 (5th Cir. 2006)); accord BP P.L.C., 31 F.4th at 219-20. Though the Energy Companies argue otherwise, the test‘s “second prong” — the only prong in dispute — might require “‘a but-for connection.‘” See Suncor, 25 F.4th at 1272 (quoting Deepwater, 745 F.3d at 163); accord BP P.L.C., 31 F.4th at 220 (“declin[ing] to disrupt th[e] settled and sensible trend” of cases holding that “‘arise out of, or in connection with’ under the OCSLA . . . imposes a but-for relationship between a party‘s case and operations on the OCS“). Cf. generally Maracich v. Spears, 570 U.S. 48, 60 (2013) (noting that “[t]he phrase ‘in connection with’ provides little guidance without a limiting principle“).15 We say “might” because the Ninth Circuit holds “that the language of § 1349(b), ‘aris[e] out of, or in connection with,’ does not necessarily require but-for causation.” See San Mateo, 2022 WL 1151275, at *10 (emphasis added). But we need not wrestle the but-for-causation issue to the ground today. And that is because “[d]espite [the] different approach[es] to construing § 1349(b), our sister circuits’ application of § 1349(b) leads to a materially similar result,” see id. — as we now explain. Cases finding OCSLA jurisdiction involve “either . . . a direct physical connection to an OCS operation (collisiоn, death, personal injury, loss of wildlife, toxic exposure) or a contract or property dispute directly related to [that] operation.” See id. (quoting Suncor, 25 F.4th at 1273 (stockpiling cases)). The “core” of Rhode Island‘s suit concerns how the Energy 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.” See Shell Oil, 979 F.3d at 54. The Energy Companies talk up how “extensive [their] OCS operations” are. That may be. But Rhode Island‘s claims concern their “overall conduct, not whatever unknown fraction of their fossil fuels was produced on the OCS.” See Bd. of Cty. Comm‘rs of Boulder Cty. v. Suncor Energy (U.S.A.) Inc., 405 F. Supp. 3d 947, 979 (D. Colo. 2019).16 And just beсause the Energy Companies’ have “extensive OCS operations” does not mean that Rhode Island‘s claims satisfy OCSLA‘s in-connection-with benchmark. If it did then any suit against fossil-fuel companies regarding any adverse impact linked to their products would trigger OCSLA federal jurisdiction because (to quote Rhode Island‘s latest brief) “a significant portion” of the oil and gas we use comes from the OCS — a consequence too absurd to be attributed to Congress. See generally Sheridan v. United States, 487 U.S. 392, 402 n.7 (1988) (explaining that “courts should strive to avoid attributing absurd designs to Congress“). Anyhow, Rhode Island‘s allegations “do not refer to actions taken on the [OCS].” See San Mateo, 2022 WL 1151275, at *11. Ergo, the Energy Companies have not shown that Rhode Island‘s “tort claims ‘aris[e] out of‘” or are “‘in connection with’ [their] operations on the [OCS] for purposes of” OCSLA jurisdiction. See id. Pulling out all the stops, the Energy Companies write that “OCSLA jurisdiction is also proper for the additional and independent reason that the relief [Rhode Island] seeks would” present an obstacle to “the efficient exploitation of the minerals from the OCS” — thus jeopardizing “the continued scope and viability of [their] OCS operations and the federal OCS leasing program as a whole.” Their theory is that a large monetary judgment against them “would inevitably deter” OCS operations. But like the Tenth Circuit, we fail “to see how such a prospective theory of negative economic incentives — flowing from a lawsuit that does not directly attack OCS exploration, resource development, or leases — is anything other than contingent and speculative.” See Suncor, 25 F.4th at 1275. And “contingent and speculative” do not suffice for OCSLA jurisdiction purposes. See id.; accord BP P.L.C., 31 F.4th at 222. Admiralty Jurisdiction The Energy Companies also think they can get the case into federal court under admiralty jurisdiction because (to quote their brief) “fossil-fuel extraction occurs on vessels engaged in maritime commerce.” We think not, however. The Constitution extends federal jurisdiction to “admiralty and maritime” cases. See U.S. Const., art. III, § 2, cl. 1. And Congress grants federal courts jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” See 28 U.S.C. § 1333(1).17 While “not entirely clear,” it seems the drafters of the saving-to-suitors clause intended to “preserve[] remedies and the concurrent jurisdiction of state courts over some admiralty and maritime claims.” See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 444, 445 (2001).18 The district judge in our case relied on a line of decisions indicating that admiralty issues — without more — cannot make a case removable from state to federal court. The Energy Companies call this reversible error, writing that a recent amendment to section 1441 (the general-removal statute) jettisoned jargon that these courts had used “to block the removal of admiralty claims absent another basis for federal jurisdiction.” “[C]ourts,” however, “split on whether the working of the amended statute changes the rule for removal of maritime claims.” BP P.L.C., 31 F.4th at 226 (quoting Thomas J. Schoenbaum, Admiralty and Maritime Law § 4.3, Westlaw (database updated Dec. 2021)). We need not choose sides, because even if saving-to-suitors actions are freely removable under section 1441 (and we are not saying either way), the Energy Companies still face an insurmountable obstacle. A tort claim comes within our admiralty jurisdiction if the party invoking that jurisdiction “satisf[ies] conditions both of location and of connection with maritime activity.” See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). The test is intricate. But we can make short work of the Energy Companies’ effort by focusing on one facet. When, as here, the “injury suffered” is on “land,” the jurisdiction-invoking party must show that “a vessel on navigable water” caused the tort. See id. So even if the Energy Companies could show that fossil-fuel extraction occurs on “vessels,” that gets them nowhere.19 We say that because Rhode Island does not allege any vessel caused the land-based injuries (the complaint alleges their dangerous products and misleading promotion caused Rhode Island‘s injuries, not a vessel) — a point made in Rhode Island‘s brief, without contradiction from the Energy Companies in their reply brief. And that means no admiralty jurisdiction exists in this case. See BP P.L.C., 31 F.4th at 227. Bankruptcy Jurisdiction As we noted a little while ago, a party in a civil suit may remove claims “related to” bankruptcy cases. See 28 U.S.C. §§ 1452(a), 1334(b). Seizing on this, the Energy Companies tell us that Rhode Island‘s complaint is “related to” bankruptcy cases because it “seeks to hold [them] liable for the pre-bankruptcy operations of Texaco Inc. (a subsidiary of Chevron) and Getty Petroleum.” “Texaco‘s confirmed bankruptcy plan,” the Energy Companies say, “bars various claims arising against it” before “March 15, 1988.” And, they add, Rhode Island‘s “allegations against Texaco include conduct” before that date. Quoting a Fourth Circuit opinion — Valley Historic Ltd. Partnership v. Bank of New York, 486 F.3d 831, 836-37 (4th Cir. 2007) — they then write that deciding Rhode Island‘s “claims would ‘affect the interpretation, implementation, consummation, execution, or administration of [Texaco‘s] confirmed plan.‘”20 But taking another page from the Fourth Circuit‘s BP P.L.C. opinion — which considered and rejected a strikingly similar argument — we rule not only that “there is no indication that the bankruptcy plan involved climate change” but also that the Energy Companies offer no convincing explanation for “how a judgment more than thirty years later could impact Texaco‘s estate.” See 31 F.4th at 223. And even if they think their appellate papers give the needed indication and explanation, we would consider the argument “too skeletal or confusingly constructed and thus waived.” See Págan-Lisboa v. Soc. Sec. Admin., 996 F.3d 1, 7 (1st Cir. 2021) (quotation marks omitted). The Energy Companies also vaguely suggest (emphasis ours) that Rhode Island‘s “theories of liability” are based on the actions of their “predecessors, subsidiaries, and affiliates” and so “affect additional bankruptcy matters.” But that perfunctory comment is insufficient to preserve the issue for appeal. See, e.g., Rodríguez, 659 F.3d at 175-76. The bottom line is that “we find no federal jurisdiction under the bankruptcy[-]removal statute.” See BP P.L.C., 31 F.4th at 225. Final Words We affirm the district judge‘s order remanding the case to Rhode Island state court. Costs to Rhode Island.