United States Court of Appeals 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

(d). 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, Stephen 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, Derek Schmidt, Attorney General of Kansas, Daniel Cameron, Attorney General of 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 of 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

(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.,

(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 caption knew for decades that burning fossil fuels is damaging

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

. Seeking relief for the

catastrophic harm they supposedly have done (and will do) to its

non-federal property and natural resources, Rhode Island — also

like other governments elsewhere — sued the Energy Companies in

state court. See

. And its longish complaint alleges

state-law causes of action for public nuisance, strict-liability

design defect, negligent design defect, negligent failure to warn,

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,

1 For efficiency's sake, we assume the reader's general familiarity with our Shell Oil opinion.

- 5 - the Outer Continental Shelf Lands Act (just "OCSLA" from now on),

the admiralty-jurisdiction statute, and the bankruptcy-removal

statute. But to their disappointment, the district judge thought

that none of those grounds could provide a hook on which removal

could hang. See

And so he remanded the case to state court.

See

On the Energy Companies' appeal — in our first go-around

— we concluded that we could only review the federal-officer

removal ground. See

. 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

. 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,

(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

2For a good discussion of the GVR mechanism, see Gonzalez v. Justices of the Municipal Court of Boston,

(1st Cir. 2005). As a heads-up, today's opinion requires some tolerance for acronyms.

- 6 - Shell Oil Prods. Co. v. Rhode Island,

(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.,

(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,

(9th Cir. Apr. 19, 2022) ("San Mateo");

Mayor & City Council of Baltimore v. BP P.L.C.,

(4th

Cir. 2022) ("BP P.L.C."); Board of County Commissioners of Boulder

County v. Suncor Energy (U.S.A.) Inc.,

(10th Cir.

2022) ("Suncor"); City of Oakland v. BP PLC,

(9th Cir. 2020) ("Oakland"), cert. denied,

(2021)

— we once more affirm the judge's remand order.

3 We wish to thank the amici and their attorneys for their helpful insights as well.

- 7 - Overarching Considerations

Federal courts have limited jurisdiction, charted

(within constitutional limits) by federal statute. See, e.g.,

López-Muñoz v. Triple-S Salud, Inc.,

(1st Cir. 2014);

Fayard v. Ne. Vehicle Servs., LLC,

, 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

(a). Pertinently here, a federal court has original

jurisdiction over cases that "aris[e] under" federal law — i.e.,

"the Constitution, laws, or treaties of the United States," see

(emphases added), plus "claims founded upon federal

common law," see Illinois v. City of Milwaukee,

(1972). Section 1441 is known as the general-removal statute.

See, e.g., Home Depot U.S.A., Inc. v. Jackson,

(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.,

(2002).

Specialized removal statutes exist too. Take, for

instance, the bankruptcy-removal statute, which (in broad strokes)

- 8 - 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

(a), 1334(a)-(b).

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,

(1914); see also Franchise Tax Bd. v. Constr. Laborers

Vacation Tr.,

(1983). This is known as the well-

pleaded-complaint rule, because it concentrates our attention on

the complaint's terms. See Franchise Tax Bd.,

.

And in most instances, 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.,

(1913) (Holmes, J., for the Court).

As with many rules, however, exceptions exist. See Rose

v. RTN Fed. Credit Union,

(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

- 9 - disturbing any congressionally approved balance" between state and

federal power. See Grable & Sons Metal Prods., Inc. v. Darue Eng'g

& Mfg.,

(2005) ("Grable"); accord R.I.

Fishermen's All., Inc. v. R.I. Dep't of Envtl. Mgmt.,

(1st Cir. 2009). Only a "slim category" of state-law claims

satisfies Grable, however. See Empire Healthchoice Assurance,

Inc. v. McVeigh,

(2006) ("Empire Healthchoice")

(emphasis added); San Mateo,

, 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,

, 11 (2003)

("Beneficial"); accord Caterpillar Inc. v. Williams,

(1987); Lawless v. Steward Health Care Sys., LLC,

(1st Cir. 2018); López-Muñoz,

.4 Complete

4Anything involving "preemption" can be confusing. And in this setting, the word itself can cause even the most sophisticated readers to scratch their collective heads over the difference between "complete preemption" and "ordinary preemption." See Rueli v. Baystate Health, Inc.,

(1st Cir. 2016). As a sort of cheat sheet: Only complete preemption affects the court's jurisdiction. See

Where it exists, "there is . . . no such thing as a state-law claim" in the regulated area because Congress intended federal law to provide the exclusive cause of action for that claim. See Beneficial, 539 U.S. at 9, 11. And a court thus treats the complaint as if a federal claim appears on the face of it. See Rivet v. Regions Bank of La.,

(1998). Ordinary preemption, contrastingly, "refer[s] to certain defenses" to the claim's merits, "of which a classic example is a state claim foreclosed because its assertion conflicts with a federal statute or falls within a field preempted by federal

- 10 - preemption 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,

.

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

(a); see

also Danca v. Private Health Care Sys., Inc.,

(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,

(2002); Rosselló-González v. Calderón-Serra,

, 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.

law." See Cavallaro v. UMass Mem'l Healthcare, Inc.,

, 4 n.3 (1st Cir. 2012) (emphasis added). And as a mere defense, ordinary preemption — according to the well-pleaded-complaint rule — "will not provide a basis for removal." See Beneficial, 539 U.S. at 6 (emphasis added). 5 Because complete preemption affects plaintiffs' usual ability to plead the law they want, the Supreme Court is "reluctant" to find the exception applies. See Metro. Life Ins. v. Taylor,

(1987) ("Metro. Life"). The Court, in fact, has found complete preemption in only three statutes, see San Mateo,

, at *6: (1) Beneficial, 539 U.S. at 10-11 (National Bank Act §§ 85 and 86); (2) Metro. Life,

(Employee Retirement Income Security Act § 502(a)); and (3) Avco Corp. v. Aero Lodge No. 735,

(1968) (Labor Management Relations Act § 301).

- 11 - 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

6 A word about the federal-officer removal statute — which, like the bankruptcy-removal statute, is a specialized removal statute. This provision allows private actors "acting under" color of federal authority to remove a state-court action "for or relating to any act under color of such office." See

(a)(1). And per our precedent, the Energy Companies must show that they acted under a federal officer, that the claims against them are "for or relating to" the alleged official authority, and that they will raise a colorable federal defense. See Moore v. Elec. Boat Corp.,

, 34 & n.2 (1st Cir. 2022) (noting that Shell Oil "described the 'relating to' requirement as a 'nexus' between 'the allegations in the complaint and conduct undertaken at the behest of a federal officer,'" but stating that "[t]his nexus requirement is not a causation requirement" (quoting Shell Oil,

)). As reported in Shell Oil, the Energy Companies direct "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

(alteration in original and quoting Watson v. Philip Morris Cos.,

(2007)). But Rhode Island's complaint, we said, alleges that the Energy Companies "produced and sold oil and gas products in Rhode Island that were damaging the environment and engaged in a misinformation

- 12 - 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," see

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).

- 13 - (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

that 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.,

(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.,

(providing examples). But the circumstances where the

"judicial creation of a special federal rule" ought to displace

state law are "few and restricted," see O'Melveny & Meyers v.

- 14 - F.D.I.C.,

(1994) ("O'Melveny") (quotation marks

omitted) — limited to those "extraordinary cases," see

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.,

(1988) (quotation marks omitted). That

makes sense because where federal common law exists, it "pre-

empt[s] and replace[s]" state law, see

at 504 — which raises

sensitive issues of separation of powers and federalism, see

Rodriguez v. F.D.I.C.,

(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,

(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

7Courts use "federal rule of decision" to mean "federal common law," and vice versa. See BP P.L.C.,

n.3.

- 15 - pollution, promoting energy independence, and negotiating

multilateral treaties addressing global warning" — interests, they

continue, that call for the application of a "uniform federal rule

of decision," which makes the case "removable under

and 1441." But even "[a]ssuming" (without granting) that

these concerns constitute "uniquely federal interests," see BP

P.L.C.,

, 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

. Not only

does this "misstep" raise a waiver problem. See, e.g., Rodríguez

v. Mun. of San Juan,

(1st Cir. 2011)

(discussing how to set an issue up for decision); United States v.

Zannino,

(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.,

(quoting O'Melveny,

); see Atherton v. F.D.I.C.,

(1997)

- 16 - (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.,

(1966))).

To the extent the Energy Companies rely on City of New

York v. Chevron Corp.,

(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.,

(rebuffing a similar suggestion in

a similar case); Suncor,

(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

(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

in light of the well-pleaded

complaint rule." See

- 17 - 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

. And from there, they intimate

that applying state law 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,

, 423 (2011) ("AEP") (quoting City of

Milwaukee v. Illinois,

(1981)). The Clean Water

Act and the Clean Air Act — neither of which Rhode Island invokes

Rhode Island (to repeat) seeks to hold "[d]efendants" liable 8

for their "tortious conduct" that "deliberately and unnecessarily deceived" consumers about the scientific consensus on climate change and its devastating effects, and about the starring role their products play in causing it (quotes taken from the complaint), not to regulate greenhouse-gas emissions (Rhode Island challenges no federal contract, permit, regulation, or treaty, for example).

- 18 - — "have statutorily displaced any federal common law that

previously existed." See BP P.L.C.,

. So we cannot

rule that any federal common law controls Rhode Island's claims.

See

(saying that although the energy companies

"characterize [the government's] claims as 'interstate-pollution

claims' that arise under federal common law," Congress displaced

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

9 Interestingly — and we think tellingly — some of the Energy Companies successfully argued in another case that "the Clean Air Act displaces any federal common law claims potentially arising from greenhouse[-]gas emissions" (excess capitalization omitted but emphasis added). See Answering Brief of ExxonMobil et al. at 61, Native Village of Kivalina v. ExxonMobil Corp.,

(9th Cir. 2012) ("Kivalina") (No. 09-17490),

, at *61. "Displacement of the federal common law does not leave those injured by air pollution without a remedy," wrote a concurring Kivalina panelist, because "[o]nce federal common law is displaced, state nuisance law becomes an available option to the extent it is not preempted by federal law." See Kivalina,

(Pro, D.J., concurring) (citing AEP, 564 U.S. at 429).

- 19 - 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,

(2013) (discussing Grable). Just like other circuits

in comparable cases, see San Mateo,

, at *4-6; BP

P.L.C.,

, 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 necessary element of one of the well-pleaded state

claims" in Rhode Island's complaint. See Franchise Tax Bd.,

(emphasis added); see also Gunn,

(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

. 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.

. The buyer

removed the case to federal court.

The only disputed issue

concerned whether Grable got "notice within the meaning of the

federal statute." See

(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

- 20 - ownership — but ownership could not be decided without deciding if

the federal government respected federal legal demands. See

In other words, "[d]eciding an issue of federal law was

inescapable." Hartland Lakeside Joint No. 3 Sch. Dist. v. WEA

Ins. Corp.,

(7th Cir. 2014) (emphasis added).

Importantly too, "the national government itself was vitally

concerned about the outcome; an adverse decision could undercut

its ability to collect taxes." See

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,

, at *5; BP P.L.C.,

. 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

- 21 - or federal concerns in the most generalized way is not enough for

Grable purposes. See San Mateo,

, at *5; BP P.L.C.,

-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,

.

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,

(6th Cir. 2012)

(quoting Bartholet v. Reishauer A.G. (Zurich),

(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."

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

- 22 - federal common law — the [Clean Air Act] — completely preempts

them." See Suncor,

. No circuit to consider the

kind of argument the Energy Companies press here has accepted it.

See San Mateo,

, at *6; BP P.L.C.,

-

17; Suncor,

-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,

, at *6 (quoting Oakland,

); BP P.L.C.,

; Suncor,

. Also — and as noted previously — complete preemption

requires that defendants show Congress clearly intended to

supersede state authority. See, e.g., Metro. Life,

. 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

(a)(3) (emphasis added); see also BP P.L.C.,

; Oakland,

. And the Act has two "savings

clauses" that expressly preserve non-Clean Air Act claims. See BP

P.L.C.,

(discussing "savings clauses that preserve

state and local governments' legal right to impose standards and

limitations on air pollution that are stricter than national

10Recall our earlier footnoted comments about the National Bank Act, the Employee Retirement Income Security Act, and the Labor Management Relations Act.

- 23 - requirements"); see also Oakland,

(noting that

the Act "preserves state-law causes of action pursuant to a saving

clause" that "'makes 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

, and quoting Merrick v. Diageo Ams.

Supply, Inc.,

(6th Cir. 2015), which cites

in turn W. Va. Univ. Hosp., Inc. v. Casey,

(1991))).

All of which takes complete preemption off the table. See Suncor,

; accord BP P.L.C.,

; Oakland,

. 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,

(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,

; accord BP P.L.C.,

-17; Oakland,

.11

11The Energy Companies make much of a Clean Air Act provision that lets states initiate federal-court challenges to actions by

- 24 - Federal Enclave

Federal courts have federal-question jurisdiction over

tort claims arising on federal enclaves. See, e.g., BP P.L.C.,

; Suncor,

. 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.,

(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,

(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

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.,

(rejecting a similar complete- preemption argument); Suncor,

(ditto); Oakland,

(ditto again). 12 "Ocean State" is a nickname of Rhode Island. "Little Rhody" is another. See "List of U.S. state and territory nicknames," Wikipedia, https://en.wikipedia.org/wiki/List_of_U.S._state_and_territory_nicknames.

- 25 - P.L.C.,

(explaining that "federal-question

jurisdiction is not conferred merely because some of Defendants'

activities occurred on military installations"); see also San

Mateo,

, 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") — they 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."

(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

13The OCS includes the seabed and natural resources lying "3 miles to 200 miles off the United States coast." See Ctr. For Biological Diversity v. U.S. Dep't of Interior,

, (D.C. Cir. 2009); see also

(a), 1331(a).

- 26 - 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,

(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,

(quoting Barker v. Hercules Offshore, Inc.,

(5th Cir. 2013), in turn quoting Texaco Expl. &

Prod., Inc. v. AmClyde Engineered Prods. Co.,

(5th Cir. 2006), amended on reh'g,

(5th Cir. 2006));

accord BP P.L.C.,

. Though the Energy Companies

argue otherwise, the test's "second prong" — the only prong in

dispute — might require "'a but-for connection.'" See Suncor,

(quoting Deepwater,

); accord BP

P.L.C.,

("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").

14 The Fifth Circuit is quite familiar with OCSLA, apparently.

- 27 - Cf. generally Maracich v. Spears,

(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,

, 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 (collision, death,

personal injury, loss of wildlife, toxic exposure) or a contract

or property dispute directly related to [that] operation." See

id. (quoting Suncor,

(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

15Arguing against the but-for standard, the Energy Companies hype Ford Motor Co. v. Montana Eighth Judicial District Court,

(2021). Ford Motor Co. held that the "requirement of a 'connection' between a plaintiff's suit and a defendant's activities" for a court to exercise personal jurisdiction is not the same as but-for causation. See

. Like the Ninth Circuit, however, "we are skeptical that Ford Motor Co.'s interpretation of judicial rules delineating the scope of a court's specific personal jurisdiction is pertinent in this different statutory context." See San Mateo,

, at *10.

- 28 - to sell them anyway, all while misleading consumers about the true

impact of the products." See Shell Oil,

. 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.,

, 979 (D.

Colo. 2019).16 And just because 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,

, 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,

, 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]

16 That is the decision the Tenth Circuit affirmed in Suncor.

- 29 - operations on the [OCS] for purposes of" OCSLA jurisdiction. See

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,

. And "contingent and

speculative" do not suffice for OCSLA jurisdiction purposes. See

id.; accord BP P.L.C.,

.

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,

- 30 - 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

(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.,

(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.,

(quoting Thomas J. Schoenbaum, Admiralty

17 "Suitors" in this context is just another word for "plaintiffs." See 14A Federal Practice & Procedure Jurisdiction § 3672. 18 Courts often use "admiralty" and "maritime" synonymously. See Adamson v. Port of Bellingham,

, 1125 n.4 (9th Cir. 2018). See generally Sisson v. Ruby,

(1990) (using "admiralty jurisdiction" and "maritime jurisdiction" interchangeably).

- 31 - 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.,

(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

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

19 Rhode Island apparently disagrees with the Energy Companies' claim that "a floating oil rig," for example, is a vessel used for navigation. Given our "even if" approach, we have no need to wade into that debate.

- 32 - brief. And that means no admiralty jurisdiction exists in this

case. See BP P.L.C.,

.

Bankruptcy Jurisdiction

As we noted a little while ago, a party in a civil suit

may remove claims "related to" bankruptcy cases. See

(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,

(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

20 The internal quotations are from the Fourth Circuit case.

- 33 - Companies offer no convincing explanation for "how a judgment more

than thirty years later could impact Texaco's estate." See

. 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.,

(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,

.

The bottom line is that "we find no federal jurisdiction under the

bankruptcy[-]removal statute." See BP P.L.C.,

.

Final Words

We affirm the district judge's order remanding the case

to Rhode Island state court. Costs to Rhode Island.

- 34 -