21-1446 Connecticut ex rel. Tong v. Exxon Mobil Corp.

United States Court of Appeals For the Second Circuit

August Term 2022

Argued: September 23, 2022 Decided: September 27, 2023

No. 21-1446-cv

STATE OF CONNECTICUT, by its Attorney General, WILLIAM M. TONG,

Plaintiff-Appellee,

v.

EXXON MOBIL CORPORATION,

Defendant-Appellant.

Appeal from the United States District Court for the District of Connecticut No. 20-cv-1555, Janet C. Hall, Judge.

Before: SULLIVAN, NARDINI, and PÉREZ, Circuit Judges.

In 2020, the State of Connecticut sued Exxon Mobil Corporation (“Exxon Mobil”) in Connecticut state court, alleging that Exxon Mobil had engaged in a decades-long campaign of deception to knowingly mislead and deceive Connecticut consumers about the negative climatological effects of the fossil fuels that Exxon Mobil was marketing to those consumers. Based on these allegations, Connecticut asserted eight claims against Exxon Mobil, all under the Connecticut Unfair Trade Practices Act (“CUTPA”),

-110b(a). Exxon Mobil removed the case to federal district court, invoking subject-matter jurisdiction under the federal-question statute,

, the federal-officer removal statute,

§ 1442(a)(1), and the Outer Continental Shelf Lands Act (the “OCSLA”),

(b)(1)(A), as well as on other bases no longer pressed in this appeal. The district court (Hall, J.) rejected each of Exxon Mobil’s theories of federal subject-matter jurisdiction, and thus remanded the case to state court.

On appeal, we are tasked with deciding (1) whether the well-pleaded complaint rule is subject to any exceptions other than the three we enumerated in Fracasse v. People’s United Bank,

(2d Cir. 2014); (2) whether Connecticut’s CUTPA claims raise the federal common law of transboundary pollution as a necessary element for establishing Exxon Mobil’s liability; (3) whether Exxon Mobil was “acting under” an “officer . . . of the United States” and “under color of such office,”

(a)(1), for purposes of the allegedly deceptive acts forming the basis of Connecticut’s CUTPA claims; and (4) whether such acts “aris[e] out of, or in connection with,” Exxon Mobil’s “operation[s]” on the outer continental shelf (the “OCS”), where Exxon Mobil extracts oil and gas on land leased from the federal government,

(b)(1)(A). We answer each of these questions in the negative. As a result, we AFFIRM the district court’s order remanding this case to the Connecticut Superior Court for the District of Hartford.

AFFIRMED.

BENJAMIN W. CHENEY, Assistant Attorney General (Matthew I. Levine, Deputy Associate Attorney General; Daniel M. Salton, Jonathan E. Harding, Assistant Attorneys General, on the brief), for William M. Tong, Attorney General of Connecticut, Hartford, CT, for Plaintiff-Appellee State of Connecticut.

KANNON K. SHANMUGAM, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC (Justin Anderson, Kyle

2 Smith, William T. Marks, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC; Theodore V. Wells, Jr., Daniel J. Toal, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; Kevin M. Smith, Tadhg Dooley, Wiggin & Dana LLP, New Haven, CT; Robert M. Langer, Wiggin & Dana, LLP, Hartford, CT; Patrick J. Conlon, Exxon Mobil Corporation, Spring, TX, on the brief), for Defendant-Appellant Exxon Mobil Corporation.

RICHARD J. SULLIVAN, Circuit Judge:

In 2020, the State of Connecticut sued Exxon Mobil Corporation (“Exxon

Mobil”) in Connecticut state court, alleging that Exxon Mobil had engaged in a

decades-long “campaign of deception” to knowingly mislead and deceive

Connecticut consumers about the negative climatological effects of the fossil fuels

that Exxon Mobil was marketing to those consumers. J. App’x at 8. Based on these

allegations, Connecticut asserted eight claims against Exxon Mobil, all under the

Connecticut Unfair Trade Practices Act (“CUTPA”),

-110b(a).

Exxon Mobil removed the case to federal district court, invoking subject-matter

jurisdiction under the federal-question statute,

, the federal-officer

removal statute,

§ 1442(a)(1), and the Outer Continental Shelf Lands Act

(the “OCSLA”),

(b)(1)(A), as well as on other bases no longer

3 pressed in this appeal. The district court (Hall, J.) rejected each of Exxon Mobil’s

theories of federal subject-matter jurisdiction, and thus remanded the case to state

court.

On appeal, we are tasked with deciding (1) whether the “well-pleaded

complaint rule,” Caterpillar Inc. v. Williams,

(1987), is subject to

any exceptions other than the three we enumerated in Fracasse v. People’s United

Bank,

(2d Cir. 2014); (2) whether Connecticut’s CUTPA claims

raise the “federal common law of transboundary pollution,” Exxon Mobil Br. at

30–31; cf. City of New York v. Chevron Corp.,

(2d Cir. 2021), as a necessary

element for establishing Exxon Mobil’s liability; (3) whether Exxon Mobil was

“acting under” an “officer . . . of the United States” and “under color of such

office,”

(a)(1), for purposes of the allegedly deceptive acts forming

the basis of Connecticut’s CUTPA claims; and (4) whether such acts “aris[e] out of,

or in connection with,” Exxon Mobil’s “operation[s]” on the outer continental shelf

(the “OCS”), where Exxon Mobil extracts oil and gas on land leased from the

federal government,

(b)(1)(A). For the reasons explained below,

we answer each of these questions in the negative. As a result, we AFFIRM the

4 district court’s order remanding this case to the Connecticut Superior Court for the

District of Hartford.

I. Background

A. Facts

Exxon Mobil is a multinational energy and chemicals company and was

ranked the eleventh-largest public company in the world in 2019. Exxon Mobil’s

“principal business is energy, involving exploration for, and production of, crude

oil and natural gas, manufactur[ing] of petroleum products[,] and transportation

and sale of crude oil, natural gas and petroleum products.” J. App’x at 17 (internal

quotation marks omitted). The State of Connecticut alleges that Exxon Mobil has

engaged “[f]or several decades” in a “campaign of deception” that “has misled

and deceived Connecticut consumers about the negative effects of its business

practices on the climate.”

. More specifically, Connecticut alleges as

follows:

Since the 1950s, Exxon Mobil’s corporate leadership has been aware of

research indicating that the combustion of fossil fuels – such as those produced

and marketed by Exxon Mobil – causes dangerous changes to the Earth’s climate.

Indeed, much of that research has been internal research, commissioned by Exxon

Mobil and conducted by its own in-house scientists. Throughout the 1970s and

5 1980s, as the issues of “climate change and its potentially catastrophic

consequences” grew increasingly prevalent in American public discourse,

Exxon Mobil’s leadership grew increasingly concerned that the company would

face catastrophic economic consequences if consumer markets for oil and gas were

to be softened by widespread public acceptance of what Exxon Mobil’s own

internal research had long suggested: that fossil fuels play a significant role in

causing climate change.

In an effort to protect its profitability and revenues, Exxon Mobil began

publishing and commissioning “advertisements, interviews, . . . research papers,”

and other public “statements casting doubt on th[e] connection” between fossil

fuels and global warming in various media outlets consumed by “tens of

thousands of Connecticut residents, nearly every week.”

at 26–41, 218. Even

after “finally admitting publicly that combustion of fossil fuels contributes to

climate change,” Exxon Mobil continued to publish advertising “falsely

portraying [itself] as a corporation committed to seriously combatting climate

change.”

.

The effect of this “campaign of deception” has been that “many consumers

still do not believe the scientific facts” of climate change and its causal connection

6 to fossil fuels. J. App’x at 10. Closer to home, it has resulted in “Connecticut

consumers” purchasing “more oil and gasoline than [they] would have purchased

had the reality of climate change been disclosed.”

. As a corollary, it has

also “resulted in the stifling of an open marketplace for renewable energy, thereby

leaving consumers unable to reasonably avoid the detrimental consequences of

fossil[-]fuel combustion.”

.

B. Procedural History

On the basis of this alleged “campaign of deception,” the State of

Connecticut, by and through its Attorney General, commenced this suit against

Exxon Mobil on September 14, 2020 in the Connecticut Superior Court for the

District of Hartford. Connecticut’s complaint asserted eight claims – all under

CUTPA, which provides that “[n]o person shall engage in . . . unfair or deceptive

acts or practices in the conduct of any trade or commerce.”

-110b(a). The Connecticut Supreme Court has read two distinct causes of

action into CUTPA – one for “decepti[on],” Caldor, Inc. v. Heslin,

(1990) (explaining that a deception claim requires a “material”

“representation, omission, or practice” that is “misleading” when interpreted

“reasonably under the circumstances”), and the other for “unfairness,” Ulbrich v.

Groth,

, 409 (2013) (noting that the sole element of an unfairness claim

7 is “a [trade] practice [that] is unfair”). Here, Connecticut brought four claims for

deception and four for unfairness. Based on these claims, Connecticut sought

numerous forms of relief, including, among others: (1) an injunction enjoining

Exxon Mobil from continuing to engage in deceptive practices under CUTPA;

(2) civil penalties of $5,000 per willful violation of CUTPA; (3) disgorgement of

revenues attributable to unfair practices under CUTPA; and (4) “[e]quitable relief”

for “deceptive acts and practices that will require future climate[-]change

mitigation,” including in the form of “restitution” for “all expenditures

attributable to Exxon[ ]Mobil that [Connecticut] has made and will have to make

to combat the effects of climate change.” J. App’x at 51 ¶¶ 3, 5 (citing

-110m).

Exxon Mobil timely removed Connecticut’s action to federal district court.

In its notice of removal, Exxon Mobil invoked federal subject-matter jurisdiction

under the federal-question statute, the federal-officer removal statute, and the

OCSLA, as well as other statutory provisions no longer relevant on appeal.

Following removal, Connecticut moved to remand the case to state court. After a

full round of briefing and oral argument, the district court issued a lengthy

opinion rejecting all of Exxon Mobil’s asserted grounds for federal jurisdiction and

8 granting Connecticut’s motion to remand the case to the Connecticut Superior

Court for the District of Hartford.

Exxon Mobil timely appealed.

II. Appellate Jurisdiction

As a general matter, “[a]n order remanding a case to the State court from

which it was removed is not reviewable on appeal or otherwise.”

(d). However, such an order is “reviewable by appeal” where, as here, the

case “was removed pursuant to [28 U.S.C. §] 1442,” i.e., the federal-officer removal

statute. Id.

Until recently, there was “persistent circuit conflict” as to the scope of

appellate review authorized by this statutory exception in cases, like this one,

where “the removing defendant [had] premised removal [only] in part on the

federal-officer removal statute.” Petition for a Writ of Certiorari at 11, BP P.L.C. v.

Mayor & City Council of Baltimore,

(2021) (No. 19-1189),

, at *11 (emphasis added). Eight circuits – including our own – had taken

the view that appellate review under section 1447(d)’s exception for federal-officer

removal cases “is . . . confined to a defendant’s removal arguments under the

federal[-]officer . . . removal statute[].” BP P.L.C.,

; see State Farm

9 Mut. Auto. Ins. Co. v. Baasch,

, 96–97 (2d Cir. 1981) (so holding); Rhode

Island v. Shell Oil Prods. Co.,

, 55–56, 58–59 (1st Cir. 2020) (holding same;

collecting earlier Second, Third, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuit

cases holding likewise), cert. granted, judgment vacated,

(2021). Three

other circuits, meanwhile, had taken the broader view that “[i]nstead, a court of

appeals may review the merits of all theories for removal that a district court has

rejected,” so long as one of those theories was federal-officer jurisdiction.

BP P.L.C.,

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

, 460 & n.4 (4th Cir. 2021) (rejecting this view but collecting Fifth, Sixth,

and Seventh Circuit cases that had adopted it), vacated and remanded,

.

In 2021, however, the Supreme Court resolved that circuit split and held that

“[o]nce” a “defendant’s notice of removal [has] assert[ed] [that] the case is

removable in accordance with” the federal-officer removal statute and “the district

court [has] ordered the case remanded to state court, the whole of its order

be[comes] reviewable on appeal.” BP P.L.C.,

(emphasis added;

internal quotation marks omitted). Accordingly, our holding in Baasch, 644 F.2d

at 96–97, has been abrogated, and we have appellate jurisdiction under

10 section 1447(d) to “consider all of [Exxon Mobil’s asserted] grounds for removal,”

BP P.L.C.,

(emphasis added).

III. Standard of Review

“We review an appeal from an order of remand de novo.” Agyin v. Razmzan,

, 173–74 (2d Cir. 2021). Whether on appeal from a grant or a denial of

a motion to remand, the “defendant always has the burden of establishing that

removal is proper.” United Food & Com. Workers Union, Loc. 919 v. CenterMark

Props. Meriden Square, Inc.,

, 301 (2d Cir. 1994) (citation and alteration

omitted). We “construe the removal statute narrowly, resolving any doubts

against removability,” Platinum-Montaur Life Scis., LLC v. Navidea

Biopharmaceuticals, Inc.,

(2d Cir. 2019) (internal quotation marks

omitted), out of “regard for the rightful independence of state governments,”

Syngenta Crop Prot., Inc. v. Henson,

(2002) (internal quotation marks

omitted).

IV. Discussion

“An[] action that was originally filed in state court may be removed by a

defendant to federal court only if the case originally could have been filed in

federal court.” Marcus v. AT&T Corp.,

, 52 (2d Cir. 1998) (citing 28 U.S.C.

11 § 1441(a)). We must therefore decide whether any of the eight claims in

Connecticut’s complaint – all of which were brought under a single state statute,

namely, CUTPA – triggers either federal-question jurisdiction, federal-officer

jurisdiction, or special jurisdiction under the OCSLA. If so, then removal was

proper, and we must reverse the district court’s remand order. See Broder v.

Cablevision Sys. Corp.,

(2d Cir. 2005) (“A single claim over which

federal[] . . . jurisdiction exists is sufficient to allow removal.” (citing Exxon Mobil

Corp. v. Allapattah Servs., Inc.,

, 562–63 (2005); City of Chicago v. Int’l Coll.

of Surgeons,

, 164–66 (1997))). If not, then the district properly

remanded this case to state court, and we must affirm.

A. Federal-Question Jurisdiction

1. The Well-Pleaded Complaint Rule

The federal-question statute provides that “[t]he district courts shall have

original jurisdiction of all civil actions arising under the . . . laws . . . of the United

States.”

. Our analysis of whether a case “aris[es] under the . . .

laws . . . of the United States,”

is “governed by the ‘well-pleaded complaint

rule,’” Caterpillar,

. Under that rule, federal-question jurisdiction

generally “exists only when a federal question is presented on the face of the

plaintiff’s properly pleaded complaint” and cannot be triggered “on the basis of a

12 federal defense, . . . even if the defense is anticipated in the plaintiff’s complaint,

and even if both parties concede that the federal defense is the only question truly

at issue.”

.

The principal effect of the well-pleaded complaint rule is to “make[] the

plaintiff the master of the claim,” meaning that – subject to certain exceptions –

plaintiffs “may avoid federal jurisdiction by exclusive reliance on state law.”

. In other words, the “general rule” is that federal courts lack

federal-question jurisdiction “if the complaint does not affirmatively allege a

federal claim.” Beneficial Nat’l Bank v. Anderson,

, 6 (2003); see New York

ex rel. Jacobson v. Wells Fargo Nat’l Bank, N.A.,

(2d Cir. 2016)

(“[F]ederal-question jurisdiction is invoked by and large [where] plaintiffs plead[]

a cause of action created by federal law.” (quoting Grable & Sons Metal Prods., Inc.

v. Darue Eng’g & Mfg.,

(2005)) (alteration omitted)).

Here, of course, Connecticut’s complaint did not “affirmatively” allege any

“cause of action created by federal law.” Wells Fargo,

(quoting

Grable,

). Instead, all eight of Connecticut’s CUTPA claims

“exclusive[ly] rel[y] on state law.” Caterpillar,

. As a result, Exxon

13 Mobil can establish federal-question jurisdiction only by demonstrating that

Connecticut’s suit falls within an exception to the well-pleaded complaint rule.

2. Defining Our Exceptions to the Well-Pleaded Complaint Rule

While there are “certain exceptions to [the well-pleaded complaint] rule,”

Beneficial, 539 U.S. at 6, our precedents make clear that they are tightly

circumscribed. We have stated that exactly “[t]hree situations exist in which a

complaint that does not allege a federal cause of action may nonetheless ‘arise

under’ federal law for purposes of subject[-]matter jurisdiction.” Fracasse,

(emphasis added; alteration omitted). They are: (1) “if Congress expressly

provides, by statute, for removal of state[-]law claims”; (2) “if the state[-]law

claims are completely preempted by federal law”; and (3) “in certain cases if the

vindication of a state[-]law right necessarily turns on a question of federal law.”

Here, Exxon Mobil urges that the three exceptions we enumerated in Fracasse

are non-exhaustive. We disagree.

a. The Artful-Pleading Doctrine

First, Exxon Mobil argues that “the artful-pleading doctrine” provides a

broad, flexible exception from the well-pleaded complaint rule that extends

beyond the bounds of the “the three situations identified in . . . Fracasse.” Reply

Br. at 12. That argument is squarely foreclosed by our precedents, which make

14 clear that the artful-pleading doctrine covers a subset of the exceptions

encompassed by Fracasse – and not the other way around. As we explained in

Romano v. Kazacos, “[t]he artful[-]pleading rule applies when Congress has either

(1) so completely preempted, or entirely substituted, a federal law cause of action

for a state one that plaintiff cannot avoid removal by declining to plead ‘necessary

federal questions,’ or (2) expressly provided for the removal of particular actions

asserting state[-]law claims in state court.”

(2d Cir. 2010) (quoting

Rivet v. Regions Bank,

(1998)). Connecticut, then, is plainly right

to observe that under Romano, the “two circumstances” that comprise the

artful-pleading doctrine are simply, “in opposite order, the first and second

exceptions articulated in Fracasse.” Connecticut Br. at 16–17.

Nevertheless, Exxon Mobil persists in attempting to cast the artful-pleading

doctrine in looser, more conceptually capacious terms than those we used in

Romano. Such efforts are unavailing.

Principally, Exxon Mobil cherry-picks language from our decision in

NASDAQ OMX Group, Inc. v. UBS Secs., LLC,

(2d Cir. 2014), to argue

that the artful-pleading doctrine’s scope is not limited to the

“complete-preemption” and “special-removal-statutes” scenarios outlined in

15 Romano. Instead, Exxon Mobil argues, the gravamen of the doctrine is that “a court

must look beyond the plaintiff’s characterization of its claims and determine

whether ‘the real nature’ of the complaint is ‘federal,’ even if the plaintiff is

attempting to ‘avoid federal jurisdiction by framing its claims in terms of state

law.’” Exxon Mobil Br. at 27 (quoting NASDAQ OMX,

)

(alterations omitted). But Exxon Mobil’s view of the artful-pleading doctrine is

foreclosed by binding precedent.

For starters, our decision in NASDAQ OMX repeatedly cited both Fracasse

and Romano with approval, see

, which

counsels strongly against reading it as either a repudiation of, or a departure from,

the strict rules we laid down in those earlier cases. Indeed, NASDAQ OMX

affirmatively supports the proposition that the outer boundaries of the

artful-pleading doctrine lie within – not beyond – those of the three Fracasse

exceptions. See

(“[E]ven in the absence of artful pleading, federal

jurisdiction may properly be exercised over a ‘special and small’ category of actual

state claims that present significant, disputed issues of federal law[, i.e., the third

category identified in Fracasse].” (quoting Gunn v. Minton,

(2013))

(emphasis added). Finally, Exxon Mobil’s preferred reading of NASDAQ OMX

16 cannot be squared with the Supreme Court’s admonition that “[a]lthough” lower

courts “occasionally” invoke the artful-pleading doctrine as authorizing a

free-wheeling inquiry into “whether the real nature of the claim is federal,

regardless of plaintiff’s characterization, most of them correctly confine this

practice to areas of the law” that are “completely pre[]empted” by “federal

substantive law.” Caterpillar,

, 397 n.11 (emphasis added; citation

and alteration omitted).

Unable to find support in our precedents for its broad view of the

artful-pleading doctrine, Exxon Mobil turns to out-of-Circuit caselaw. Once again,

its efforts are unsuccessful. For example, Exxon Mobil invokes the Sixth Circuit’s

decision in Ohio ex rel. Skaggs v. Brunner,

(6th Cir. 2010), for the

proposition that the “exceptions to the well-pleaded complaint rule” we

recognized in Romano are not “the only situations in which the [artful-pleading]

doctrine applies.” Reply Br. at 12. But there, the Sixth Circuit merely stated that

“‘the artful[-]pleading doctrine allows removal where federal law completely

preempts a plaintiff’s state-law claim,’ or perhaps (it is not clear after Rivet) where

federal issues necessarily must be resolved to address the state[-]law causes of

action.” Brunner,

(quoting Rivet,

) (emphasis added;

17 alteration omitted). As a result, Brunner does nothing to advance Exxon Mobil’s

argument that the artful-pleading doctrine extends beyond the boundaries of the

three Fracasse exceptions.

To the extent that Brunner definitively holds that the artful-pleading

doctrine encompasses complete-preemption situations, it is fully consistent with

Romano. See Romano,

(“The artful[-]pleading rule applies when

Congress has . . . completely preempted, or entirely substituted, a federal[-]law

cause of action for a state one.”). Insofar as Brunner’s dicta suggests that “perhaps”

the artful-pleading doctrine also provides an exception from the well-pleaded

complaint rule “where federal issues necessarily must be resolved to address the

state[-]law causes of action,”

, that exception is one of the three that

we recognized in Fracasse, see

(“[A] complaint that does not allege

a federal cause of action may nonetheless arise under federal law for purposes of

[federal-question] jurisdiction . . . if the vindication of a state[-]law right

necessarily turns on a question of federal law.” (internal quotation marks and

alteration omitted)). It is simply one that we have labeled as a supplement to the

artful-pleading doctrine, see NASDAQ OMX,

, rather than a

constituent part of it, see Romano, 609 F.3d at 518–19. Thus, any distinction between

18 what we have said in Fracasse and Romano and what the Sixth Circuit said in

Brunner is a distinction without a difference. 1 And “[i]n any event, our [C]ourt is

not bound by the holdings – much less the dicta – of other federal courts of

appeal.” Rates Tech. Inc. v. Speakeasy, Inc.,

, 173–74 (2d Cir. 2012).

At bottom, we reaffirm what we said in Romano: the “artful-pleading

doctrine” is simply a label for the first two of the three exceptions to the

well-pleaded complaint rule that we would later enumerate in Fracasse. Compare

Fracasse,

(laying out the three exceptions from the well-pleaded

complaint rule), with Romano, 609 F.3d at 518–19 (defining the artful-pleading

doctrine to comprise the first two exceptions laid out in Fracasse). We are

unpersuaded by Exxon Mobil’s assertions to the contrary.

b. Federal Common Law

Next, Exxon Mobil suggests the existence of a fourth exception from the

well-pleaded complaint rule, separate from the three we recognized in Fracasse

(and thus, by extension, from the two we recognized as part of the artful-pleading

1It should come as no surprise that different circuits – in their “effort[s] to bring . . . order to th[e] unruly doctrine” governing the “special and small category of cases” subject to exceptions from the well-pleaded complaint rule, Gunn,

(internal quotation marks omitted) – have defined and classified those exceptions using slightly different labels and subgroupings. But Exxon Mobil has never suggested that any legal significance attaches to whether we classify the “necessarily raised” exception as a constituent part of, or an external supplement to, the artful-pleading doctrine.

19 doctrine in Romano). Exxon Mobil contends that under that putative exception,

“a claim may arise under federal common law for purposes of federal jurisdiction

even [though] the complaint does not explicitly invoke federal common law.”

Reply Br. at 12. We disagree.

Against the backdrop of Exxon Mobil’s repeated “insist[ence] that its

‘invocation of federal common law is not an argument for complete preemption,’”

J. App’x at 225 (quoting Dist. Ct. Doc. No. 37 at 17 n.21) (alteration omitted), Exxon

Mobil’s argument for a “federal-common-law exception” would appear to hinge

on the proposition that the well-pleaded complaint rule must yield not only in

situations of “complete[] preempt[ion],” Fracasse,

; Romano,

, but also in certain situations of ordinary preemption. 2 That proposition,

however, is contrary to “settled law” dating back “since 1887.” Franchise Tax Bd.

v. Constr. Laborers Vacation Tr. for S. Cal.,

(1983). Namely, while “[t]he

artful[-]pleading doctrine allows removal where federal law completely preempts

a plaintiff’s state-law claim,” Sullivan, 424 F.3d at 272 (quoting Rivet, 522 U.S.

2“Complete preemption” – sometimes “labeled ‘jurisdictional’ preemption” – “is distinct from ordinary or ‘defensive’ preemption, which includes express, field, and conflict preemption.” Whitehurst v. 1199SEIU United Healthcare Workers E.,

, 206 n.2 (2d Cir. 2019) (quoting Sullivan v. Am. Airlines, Inc.,

, 272 & n.5 (2d Cir. 2005)); see Sullivan, 424 F.3d at 272– 73 (providing more detailed discussion of the distinction between complete and ordinary preemption).

20 at 475), the “Supreme Court has left no doubt . . . that . . . . ‘a case may not be

removed to federal court,’” id. at 273 (quoting Caterpillar,

), “simply

because the defendant may raise the defense of ordinary preemption,”

(citing

Caterpillar,

; Franchise Tax Bd.,

). Thus, to the extent

that Exxon Mobil’s argument for a “federal-common-law exception” is really an

invitation to find federal-question jurisdiction on the basis of ordinary

preemption, we are bound to decline it.

But even if we take Exxon Mobil’s argument at face value, it still fails.

Principally, Exxon Mobil contends that “[t]his Court’s decision in Republic of

Philippines [v. Marcos,

(2d Cir. 1986)] is illustrative” of a freestanding

federal-common-law exception from the well-pleaded complaint rule. Exxon

Mobil Br. at 24. On the contrary, our holding there was that when “the plaintiff

pleads a state cause of action,” its “‘well-pleaded’ complaint can be read in one of

two ways to implicate federal law.” Republic of Philippines,

(emphasis

added). Those two exceptions from the well-pleaded complaint rule, respectively,

were simply the “second” and “third” of the three exceptions we would later

recognize in Fracasse.

. Thus, when we discussed “federal common

law” in Republic of Philippines, we did so exclusively in the context of assessing

21 whether “the federal common law . . . of foreign affairs” either (1) is “so

powerful . . . as to” completely preempt a “state cause of action for conversion”

that was “brought by a foreign government against its former head of state,” or

(2) was “raise[d] as a necessary element” of that state conversion claim, insofar as

its adjudication would require deciding “whether to honor the request of a foreign

government that the American courts enforce the foreign government’s directives

to freeze property in the United States.”

(internal quotation marks

omitted). We said nothing, however, to suggest the existence of a freestanding

“federal-common-law exception” from the well-pleaded complaint rule.

Unable to rely on Republic of Philippines, Exxon Mobil points to three

out-of-Circuit decisions – all decided long before the Supreme Court began its

“effort[s] to bring some order to th[e] unruly doctrine” of exceptions to the

well-pleaded complaint rule, Gunn,

– as evidence of a putative

fourth category of exception. Once again, Exxon Mobil’s efforts fall short.

One of those decisions, Caudill v. Blue Cross & Blue Shield of N.C.,

(4th Cir. 1993), has been expressly abrogated by the Supreme Court. See Empire

Healthchoice Assur., Inc. v. McVeigh,

(2006). 3 Thus, it is no longer

3Exxon Mobil asserts that Empire Healthchoice “abrogated” Caudill “on other grounds” than those for which Exxon Mobil invokes it. Exxon Mobil Br. at 24 (italics omitted). We disagree. In Caudill,

22 good law in its own circuit – let alone in ours (or in any other circuit) – and we

give it no weight.

The next, In re Otter Tail Power Co.,

(8th Cir. 1997), does not

support Exxon Mobil’s position at all. There, the Eighth Circuit explained that a

“federal question is raised in those cases in which a well-pleaded complaint

establishes either [1] that federal law creates the cause of action or [2] that the

plaintiff’s right to relief necessarily depends on resolution of a substantial question

of federal law.”

(citation omitted). Full stop. That court went on to

hold that because the plaintiff’s state-law claims turned on the “enforce[ability]”

of “a prior order of the [federal] district court” – which itself had turned on “the

effects of a United States treaty, various federal statutes, and the federal common

law of inherent tribal sovereignty” – they “necessarily present[ed] a federal

question” sufficient to make removal proper.

at 1214 & n.6 (emphasis added).

In sum, the presence of federal common law bore on the Eighth Circuit’s

the Fourth Circuit held that “state[-]law claims under federal health insurance contracts” raise “federal[-]question jurisdiction” because they are “governed by ‘federal common law’ that displaces state law.” 999 F.2d at 77. In Empire Healthchoice, the Supreme Court held that such claims do not raise federal-question jurisdiction, see

, specifically identified Caudill among the lower-court decisions that had erroneously “uph[eld] federal jurisdiction” over such claims,

, and expressly rejected “the dissent’s view” that “federal common law” “provides a basis for federal jurisdiction” over such claims – i.e., the very same “view” that the Fourth Circuit had endorsed in Caudill and Exxon Mobil now urges us to adopt,

(internal quotation marks omitted).

23 jurisdictional analysis only to the extent that it was relevant to the question of

whether “the vindication of a state[-]law right necessarily turns on a question of

federal law” – a question already accounted for in the Fracasse framework that

Exxon Mobil tries so desperately to resist.

.

That leaves only Sam L. Majors Jewelers v. ABX, Inc.,

(5th Cir.

1997). There, the Fifth Circuit found federal-question jurisdiction over a state-law

“action seeking to recover damages against an airline for lost or damaged

shipments,” reasoning that “the federal common law . . . controls” such actions.

. Notably, that court held that such an action may be said to “arise[] under

federal common[-]law principles,” allowing “jurisdiction [to] be asserted,” even

though the relevant “area of law” (airline regulation) was not “completely

preempted by” federal common law (and/or federal statute).

at 924–25

(emphasis added). If taken at face value, that holding would seem to provide

support for Exxon Mobil’s view that in addition to Fracasse’s three enumerated

exceptions from the well-pleaded complaint rule, there exists a distinct exception

for actions that are, in some vague sense, “governed by federal common law.”

Exxon Mobil Br. at 11, 16, 20, 23, 26; Reply Br. at 8, 11.

24 But not even the Fifth Circuit panel that decided Sam L. Majors Jewelers took

its own holding at face value. Instead, it took pains to “emphasize” that its

“holding [was] necessarily limited” to the highly specific context of “cause[s] of

action against an interstate air carrier for claim[s] for property lost or damaged in

shipping.” Sam L. Majors Jewelers,

n.16. And with good reason.

The Fifth Circuit recognized that if its holding were not limited to that specific

context – in which it could be explained by the unique “historical availability of

[a federal] common[-]law remedy [for tort claims against airlines and other

interstate carriers], and the statutory preservation of th[at] remedy” – it would

have opened a “circuit split[]” on a rule of “national uniformity” and “vital

importance.”

Even setting aside the sui generis nature of Sam L. Majors, we are

bound by our Circuit law and that of the Supreme Court, which has made clear

that “a federal cause of action” must “completely preempt[] a state cause of action”

in order to trigger the potent legal fiction that “any [state‑law] complaint that

comes within the scope of th[at] federal cause of action necessarily ‘arises under’

federal law.” Franchise Tax Bd.,

(emphasis added); see Metro. Life Ins.

Co. v. Taylor,

(1987) (cautioning that courts should “be reluctant to

find that extraordinary pre[]emptive power,” later referred to as complete

25 preemption, “that converts an ordinary state common[-]law complaint into one

stating a federal claim for purposes of the well-pleaded complaint rule”). We

decline to disturb that rule today.

* * *

Finding ourselves wholly unpersuaded by Exxon Mobil’s efforts to push the

boundaries of the exceptions we recognized in Fracasse and Romano, we reaffirm

what we said in those cases. There are three – and only three – exceptions to the

“general rule” that “absent diversity jurisdiction, a case will not be removable if

the complaint does not affirmatively allege a federal claim.” Beneficial, 539 U.S.

at 6. They apply (1) “if Congress expressly provides, by statute, for removal of

state[-]law claims as it did,” for example, in the federal-officer removal statute and

OCSLA; (2) “if the state[-]law claims are completely preempted by federal law”;

and (3) in “certain” circumstances, as outlined in Gunn v. Minton, see

, “if the vindication of a state[-]law right necessarily turns on a question of

federal law.” Fracasse,

. Under the law of this Circuit, the

“artful-pleading doctrine” refers to nothing more and nothing less than the first

and second of these exceptions. See Romano,

.

26 3. Applying Our Exceptions to the Well-Pleaded Complaint Rule

Having clarified the scope of the “three situations . . . in which a complaint

that does not allege a federal cause of action may nonetheless ‘arise under’ federal

law for purposes of subject[-]matter jurisdiction,” we now turn to the question of

whether any of those situations is present here. Fracasse,

(alteration

omitted).

a. The Artful-Pleading Exceptions: Special Removal Statutes and Complete Preemption

Connecticut asserts that “Exxon[ ]Mobil [has] concede[d]” that “the first and

second exceptions articulated in Fracasse,” i.e., the two exceptions encompassed by

the artful-pleading doctrine, “do not apply in this case.” Connecticut Br. at 16–17.

That is half right.

On the one hand, Exxon has indeed “concede[d]” the inapplicability of the

“second exception[] articulated in Fracasse.”

That exception applies only “if

[the removed complaint’s] state[-]law claims are completely preempted by federal

law,” Fracasse,

(emphasis added), and in the proceedings below,

Exxon Mobil “insist[ed] that its ‘invocation of federal common law is not an

argument for complete preemption,’” J. App’x at 225 (quoting Dist. Ct. Doc. No. 37

at 17 n.21 (Exxon Mobil’s brief in opposition to Connecticut’s motion to remand))

27 (alteration omitted). It is well-settled law that “litigants are bound by

the concessions of freely retained counsel.” Jackson v. Fed. Exp.,

(2d Cir. 2014) (internal quotation marks omitted). 4

On the other hand, we disagree with Connecticut’s assertion that

“Exxon[ ]Mobil [has] concede[d]” that “the first . . . exception[] articulated in

4 In turn, “the cardinal principle of judicial restraint – if it is not necessary to decide more, it is necessary not to decide more – counsels us” to refrain, Miller v. Metro. Life Ins. Co.,

(2d Cir. 2020) (citation omitted), from reaching out to address the now-purely-hypothetical “issue of whether federal common law can” ever “give rise to complete preemption” or otherwise “convert state claims into federal claims in the same manner as complete preemption under federal statutes,” J. App’x at 225. To be sure, that question is an important one that calls out for resolution in this Circuit. For a time, our precedents had suggested that federal common law can have complete preemptive effect. See, e.g., Nordlicht v. N.Y. Tel. Co.,

(2d Cir. 1986). Later, we issued two opinions seemingly suggesting that it cannot. See Marcus v. AT&T Corp.,

, 53–54 (2d Cir. 1998); Fax Telecommunicaciones Inc. v. AT&T,

(2d Cir. 1998). A little over two years ago, in City of New York v. Chevron Corp.,

(2d Cir. 2021), we acknowledged that the question remains open to at least some extent in our Circuit. There, we held that actions bringing state-law tort claims “to recover damages for the harms caused by global greenhouse gas emissions” were “governed by federal common law” – but only for purposes of raising “an affirmative federal preemption defense” on a theory of ordinary preemption.

(citation and alteration omitted). In so holding, we took care to distinguish a “fleet of [recent, out-of-Circuit] cases” holding that federal common law “does not give rise to” complete preemption, for purposes of satisfying “the heightened standard unique to the removability inquiry.”

. We explained that, due to the distinction between complete (jurisdictional) preemption and ordinary (defensive) preemption, see Sullivan, 424 F.3d at 272–73, our holding would “not conflict with” these out-of-Circuit cases, “even if [they were] correct,” City of New York,

. But we reserved the question of whether they were, in fact, “correct” to hold that federal common law cannot give rise to complete, jurisdictional preemption.

If Exxon Mobil had not explicitly conceded that its “invocation of federal common law . . . is not an argument for complete preemption,” Dist. Ct. Doc. No. 37 at 17 n.21, this case would squarely present the question we reserved in City of New York. But since Exxon Mobil did so concede, our resolution of that question – as important as it may be – will have to wait for another day.

28 Fracasse” is inapplicable here. Connecticut Br. at 16–17 (emphasis added). That

exception applies “if Congress expressly provides, by statute, for removal of state

law claims,” Fracasse,

– or, to use the slightly more precise language

of Romano, “when Congress has . . . expressly provided for the removal of particular

[types of] actions asserting state[-]law claims in state court,”

(emphasis added). The Supreme Court, for example, has held that the

Price-Anderson Act,

(hh), presents an exception to the

well-pleaded complaint rule because it “expressly provides for removal of [tort

actions arising out of nuclear accidents] brought in state court even when they

assert only state-law claims.” Beneficial, 539 U.S. at 6. Throughout the course of

this litigation, Exxon Mobil has argued that analogous provisions in the

federal-officer removal statute and OCSLA are applicable to Connecticut’s

complaint here and thus provide independent bases for federal subject-matter

jurisdiction and removal. These arguments were therefore preserved below and

pressed on appeal, and are not waived, abandoned, or otherwise conceded. See

Bookings v. Gen. Star Mgmt. Co.,

, 418–19 & n.4 (2d Cir. 2001). 5

5Exxon Mobil invokes the federal-officer removal statute and OCSLA as “independent grounds for removal,” Exxon Mobil Br. at 2 – that is, independent of ordinary federal-question jurisdiction under

. Accordingly, we address these ostensibly “independent grounds,”

only after considering whether the federal-question jurisdiction lies under Fracasse’s third

29 b. The Grable/Gunn Exception: “Necessarily Raised”

And so, whether Exxon Mobil properly removed this case under the

federal-question statute boils down to whether Connecticut’s pleading implicates

the third exception identified in Fracasse as “a complaint that does not allege a

federal cause of action [but] may nonetheless ‘arise under’ federal law for

purposes of subject[-]matter jurisdiction” because the “vindication of [the]

state[-]law right [asserted] necessarily turns on a question of federal law.”

(alteration omitted). To determine whether Connecticut’s pleading is

among those “certain cases,”

we apply the framework set forth by the Supreme

Court in Grable and later streamlined in Gunn. Under that framework, “federal

jurisdiction over a state[-]law claim will lie if a federal issue is: (1) necessarily

raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal

court without disrupting the federal-state balance approved by Congress.” Gunn,

.

As to whether Connecticut’s “state-law claim[s] necessarily raise a . . .

federal issue,” Grable,

, Exxon Mobil argues that “the first Grable

prong is satisfied” because Connecticut’s CUTPA claims “implicate[] the federal

exception from the well-pleaded complaint rule. See infra Sections IV.B, IV.C.

30 common law of transboundary pollution,” Exxon Mobil Br. at 30–31. 6 But that

misstates the inquiry. For a “federal issue” to be “necessarily raised,” Gunn,

, the “mere presence of a federal issue in a state cause of action” is

insufficient; the pertinent “question of federal law” must be “a necessary element of

one of the well-pleaded state claims.” City of Rome v. Verizon Commc’ns, Inc.,

(2d Cir. 2004) (quoting Merrell Dow, 478 U.S. at 813) (emphasis

added). A “state-law claim ‘necessarily’ raises federal questions where the claim

is affirmatively ‘premised’ on a violation of federal law.” New York ex rel. Jacobson

v. Wells Fargo Nat’l Bank, N.A.,

(2d Cir. 2016) (quoting Grable,

). Conversely, if a “court could . . . resolve[] the case without reaching

the federal issues,” then “the claims do not necessarily raise a federal issue.” New

York v. Shinnecock Indian Nation,

, 140–41 (2d Cir. 2012).

In light of that authority, Exxon Mobil cannot establish Grable jurisdiction

simply by gesturing toward ways in which “this case” loosely “implicates” the

6 Exxon Mobil also contends that “[t]he first Grable prong is satisfied because” Connecticut’s claims “threaten the ‘careful balance’ struck by the federal government ‘between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.’” Exxon Mobil Br. at 30–31 (quoting City of New York,

). That contention is entirely irrelevant to our Grable analysis, since it “may [or may not] give rise to an affirmative federal preemption defense,” but it certainly “is not grounds for federal jurisdiction.” City of New York,

.

31 same subject matter as “the federal common law of transboundary pollution.”

Exxon Mobil Br. at 31. Rather, Exxon Mobil must point to a “necessary element”

of proving liability under Connecticut’s CUTPA claims, City of Rome,

, that is “affirmatively premised on [Exxon Mobil’s] violation of,” Wells Fargo,

(internal quotation marks omitted) – and “could [not be]

resolved . . . without” applying, Shinnecock Indian Nation,

– the

federal common law of transboundary pollution.

Properly framed, then, our analysis of the first Grable prong must start by

determining what exactly the “necessary element[s]” of Connecticut’s

“well-pleaded state claims” are. City of Rome,

(quoting Merrell Dow,

478 U.S. at 813). As noted above, the Connecticut Supreme Court has read two

distinct causes of action into CUTPA – one for “decept[ion],” Caldor,

, the other for “unfairness,” Ulbrich, 310 Conn. at 409.

A CUTPA deception claim has three elements, all of which must be proven

to establish liability: (1) “there must be a representation, omission, or other

practice likely to mislead consumers”; (2) “the consumers must interpret the

message reasonably under the circumstances”; and (3) “the misleading

representation, omission, or practice must be material – that is, likely to affect

32 consumer decisions or conduct.” Caldor,

(internal quotation

marks omitted).

Here, Connecticut’s deception claims center around the allegation that

Exxon Mobil has engaged “[f]or several decades” in a “campaign of deception”

that “has misled and deceived Connecticut consumers about the negative effects

of its business practices on the climate.” J. App’x at 8. Thus, Connecticut pleads

the elements of its CUTPA deception claims by alleging that Exxon Mobil’s

“campaign” entailed (1) “false” “representations” and “deceptive omissions” that

were “likely to mislead consumers,” and that “Connecticut consumers”

(2) “reasonably” and (3) “material[ly]” relied on such representations in

purchasing “more oil and gasoline than [they] would have purchased had the

reality of climate change been disclosed.”

at 8–9, 43–44. Since all three of these

allegations must be proven to establish Exxon Mobil’s liability for deception under

CUTPA, see Caldor,

, each constitutes a “necessary element” for

purposes of our Grable analysis, City of Rome,

.

Meanwhile, the sole “element” of a CUTPA unfairness claim is that “a

[trade] practice is unfair.” Ulbrich, 310 Conn. at 409 (citation omitted). That

element may be pleaded by alleging any combination of “three criteria,” which

33 need not “[a]ll . . . be satisfied to support a finding of unfairness.” Id. (citation

omitted). Those criteria are “(1) [w]hether the practice, without necessarily having

been previously considered unlawful, offends public policy as it has been

established by statutes, the common law, or otherwise – in other words, it is within

at least the penumbra of some common law, statutory, or other established concept

of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous;

[and] (3) whether it causes substantial injury to consumers, competitors[,] or other

businesspersons.” Id. (citation and alterations omitted). “A practice may be

unfair” either “because of the degree to which it meets one of the criteria or

because[,] to a lesser extent[,] it meets all three.” Id. (emphasis added; citation

omitted).

Here, Connecticut’s unfairness claims center around the same alleged

“campaign of deception” as its deception claims. J. App’x at 8. Thus, Connecticut

alleges that Exxon Mobil’s allegedly “false and/or misleading statements about its

business practices and their environmental impact,” id. at 47, were “unfair” insofar

as they either (1) were “in contravention of Connecticut’s public polic[ies]” of

“promoting truth in advertising” and “protect[ing] its natural resources and

environment and . . . control[ling] . . . pollution in order to enhance the health,

34 safety[,] and welfare of the people of the [S]tate,” J. App’x at 46 ¶¶ 189–90 (quoting

Conn. Gen. Stat. § 22a-1); (2) were inherently “immoral, unethical, oppressive[,]

and/or unscrupulous,” id. at 46 ¶ 191; and/or (3) “caused substantial injury to

consumers within the State of Connecticut” by “stifling . . . an open marketplace

for renewable energy,” id. at 46 ¶ 193.

Since these three subsidiary allegations need not “[a]ll . . . be [proven] to

support a finding of unfairness,” Ulbrich, 310 Conn. at 409, Connecticut’s

unfairness claims “could [be] resolved . . . without” adjudicating any given one of

them, Shinnecock Indian Nation,

(emphasis added). Thus, none may

be counted as a “necessary element” for purposes of our Grable analysis. City of

Rome,

. And as a result, if we determine that any one of these

allegations could potentially support a showing of unfairness without raising a

federal issue, the rest will drop out from our Grable analysis.

With that established, the remainder of our federal-question analysis

proceeds straightforwardly. Each of the three necessary elements of Connecticut’s

deception claim is one that a “court could . . . resolve[] . . . without reaching” the

federal common law of transboundary pollution. Shinnecock Indian Nation,

. We entirely agree with the district court’s analysis of this point:

35 “Connecticut alleges that ExxonMobil lied to Connecticut consumers, and that

these lies affected the behavior of those consumers. The fact that the alleged lies

were about the impacts of fossil fuels on the Earth’s climate” is immaterial. J. App’x

at 223–24.

Analyzing the unfairness claim is not much harder. In their briefing, the

parties vigorously dispute whether federal pollution law is necessarily raised by

Connecticut’s allegation that Exxon Mobil’s relevant public statements and

omissions

[w]ere in contravention of Connecticut’s public policy . . . that “human activity must be guided by and in harmony with the system of relationships among the elements of nature[;] [and that] the policy of the [S]tate of Connecticut is to conserve, improve[,] and protect its natural resources and environment and to control air, land, and water pollution in order to enhance the health, safety[,] and welfare of the people of the [S]tate.”

at 46 ¶ 189 (quoting Conn. Gen. Stat. § 22a-1).

But we easily conclude that other allegations that Connecticut made in

support of a showing of unfairness – most obviously, its allegation that Exxon

Mobil’s statements and omissions “were in contravention of Connecticut’s public

policy” of “promoting truth in advertising,” id. at 46 ¶ 190 – have absolutely

nothing to do with “the federal common law of transboundary pollution,” Exxon

36 Mobil Br. at 31. Thus, Connecticut’s unfairness claims, like its deception claims,

“could [be] resolved . . . without reaching [any] federal issue[].” Shinnecock Indian

Nation,

.

Because no “federal issue is . . . necessarily raised” by any of Connecticut’s

CUTPA claims, the Grable/Gunn exception from the well-pleaded complaint rule

is inapplicable here. Gunn,

; see also Grable, 545 U.S. at 313–14. We

therefore affirm the district court’s conclusion that it lacked federal-question

jurisdiction over this action.

B. Federal-Officer Removal Jurisdiction

Unable to establish federal-question jurisdiction, Exxon Mobil turns to the

federal-officer removal statute, which provides for removal jurisdiction over civil

actions commenced against “any officer (or person acting under that officer) of the

United States or of any agency thereof . . . for or relating to any act under color of

such office.”

(a)(1). Because Exxon Mobil is not itself a federal

officer, it “must satisfy a three-pronged test to determine whether [it] may effect

removal” on those grounds. Isaacson v. Dow Chem. Co.,

(2d Cir.

2008). Exxon Mobil must (1) show that it is a “‘person’ within the meaning of the

statute who ‘acted under a federal officer,’” (2) show that it “performed the actions

for which [it is] being sued ‘under color of federal office,’” and (3) “raise a

37 colorable federal defense.”

(quoting

(a)(1); citing Jefferson

County v. Acker,

(1999)) (alterations omitted). The first two of

these prongs “tend to collapse into a single requirement: that the acts that form the

basis for the state civil . . . suit were performed pursuant to an officer’s direct orders

or to comprehensive and detailed regulations.” In re Methyl Tertiary Butyl Ether

(“MTBE”) Prods. Liab. Litig.,

(2d Cir. 2007) (emphasis added;

internal quotation marks omitted).

Here, Exxon Mobil argues that it is entitled to invoke federal-officer removal

jurisdiction based on two categories of its current and historical business dealings

with the federal government. Neither argument is convincing.

First, Exxon Mobil notes that it leases oil drilling sites from the federal

government on the outer continental shelf, and that “pursuant to” these leases, it

“has been subject to myriad federal government requirements” and, pursuant to

its role as an “operator and lessee of the Strategic Petroleum Reserve

Infrastructure,” it has been “required to pay royalties in kind to the federal

government.” Exxon Mobil Br. at 39–40. Exxon Mobil has made this very

argument to five of our sister circuits, all of which have squarely rejected it. See

Rhode Island v. Shell Oil Prod. Co. (“Rhode Island I”),

, 59–60 (1st Cir. 2020),

38 vacated on other grounds,

(2021); Rhode Island v. Shell Oil Prod. Co.

(“Rhode Island II”),

, 53 n.6 (1st Cir. 2022) (reinstating Rhode Island I’s

analysis in relevant part); City of Hoboken v. Chevron Corp.,

, 712–13 (3d

Cir. 2022); Mayor & City Council of Baltimore v. BP P.L.C.,

, 231–34 (4th

Cir. 2022); County of San Mateo v. Chevron Corp.,

, 759–60 (9th Cir. 2022);

Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc.,

,

1250–54 (10th Cir. 2022). We find their reasoning persuasive, and we now join

them.

“At most, the leases appear to represent arms-length commercial

transactions whereby Exxon[ ]Mobil agreed to certain terms . . . in exchange for

the right to use government-owned land for their own commercial purposes.”

Mayor & City Council of Baltimore,

(citation omitted). But as one of

our sister circuits has explained, “a person is not” – and cannot be – “‘acting under’

a federal officer when the person [merely] enters into an arm’s-length business

arrangement with the federal government.” County of San Mateo,

.

We agree. A “private person’s ‘acting under’ [a federal officer] must involve an

effort to assist, or to help carry out, the duties or tasks of the federal superior,” and

such a “relationship typically involves subjection, guidance, or control.” Watson

39 v. Philip Morris Cos.,

, 151–52 (2007) (internal quotation marks omitted).

“[W]e are skeptical that the willingness to lease federal property or mineral rights

to a private entity for the entity’s own commercial purposes, without more, could

ever be characterized as the type of assistance that is required to trigger the

government-contractor analogy.” Mayor & City Council of Baltimore,

.

And in cases where courts have found private contractors to be “acting under”

federal direction, the key distinguishing factor has been that “the private

contractor in such cases is helping the [g]overnment to produce an item that it

needs.” Watson,

. Here, “[t]hough the federal government grants

the [outer continental shelf] leases, oil produced under them is produced to sell on

the open market, not specifically for the government.” City of Hoboken,

(internal quotation marks omitted). Thus, Exxon Mobil’s argument based on

its leases of government land fails at the first Isaacson prong.

Next, Exxon Mobil argues that it “has contributed significantly to the United

States military by providing fossil fuels that support the national defense.” Exxon

Mobil Br. at 38. But the mere fact that Exxon Mobil “help[s] the [g]overnment to

produce an item that it needs” is not enough; it must also show that in providing

fossil fuels to the military it acts under the “close supervision,” “subjection,

40 guidance, or control” of federal officers. Watson,

(internal

quotation marks omitted). In attempting to establish such “close supervision,”

, Exxon Mobil focuses extensively (indeed, almost exclusively) on examples

of the “significant control over the means of [oil and gas] production,” including

over Exxon Mobil’s predecessor companies, that “the United States government

exercised” during World War II, J. App’x at 87 (citation omitted). But World

War II ended in 1945, and here, the conduct alleged in Connecticut’s complaint

dates back no earlier than the 1950s. We are aware of no authority for the

proposition that once a private company has acted under the close supervision of

the federal government for some discrete period in its history, it may claim

“acting-under” status for the rest of time. On the contrary, when Exxon Mobil

recently made similar arguments regarding “the federal government’s

relationship with the oil industry during World War II,” the Fifth Circuit flatly

rejected them. Plaquemines Par. v. Chevron USA, Inc., No. 22-30055,

, at *1 (5th Cir. Oct. 17, 2022).

That leaves only Exxon Mobil’s bald and passing assertion that “to this day,

[it] supplies fossil-fuel products to the military under exacting specifications

established by the federal government.” Exxon Mobil Br. at 39 (citing J. App’x at

41 89). But while Exxon Mobil has put forth record evidence of the significant volume

of fossil fuels that it still provides to the military each year, the record contains no

indication of the degree of “supervision” or “control” that the federal government

exerts over Exxon Mobil’s production of such fuels, Watson,

.

That is fatal for Exxon Mobil, which bears the “burden of providing ‘candid,

specific and positive’ allegations that [it was] acting under federal officers when”

its alleged campaign of deception was underway. In re MTBE,

(quoting Willingham v. Morgan,

(1969)).

But even if we took Exxon Mobil at its word and assumed, arguendo, that it

could satisfy the first Isaacson prong by virtue of its contracts to supply fuel to the

military, it would clearly fail the second prong. Exxon Mobil cites the Seventh

Circuit’s decision in Betzner v. Boeing Co. for the proposition that the “level of

federal control” exerted over military suppliers “suffices to constitute direction.”

Exxon Mobil Br. at 39 (citing

(7th Cir. 2018)). But in Betzner,

the court explained that “the ‘acting under the color of federal authority’

requirement . . . is distinct from the ‘acting under’ requirement in the same way a

bona fide federal officer could not remove a trespass suit that occurred while he

was taking out the garbage – there must be a ‘causal connection between the

42 charged conduct and asserted official authority.’”

(quoting Jefferson County v. Acker,

(1999)) (other internal quotation

marks omitted). The court went on to find that the defendant – a manufacturer

and supplier of military aircraft, seeking to remove a former employee’s

mesothelioma-related tort claims – “ha[d] sufficiently stated a causal connection

between the [plaintiff’s] negligence claims and its official actions controlled by the

military,” because Boeing’s factory “was under the sole direction of the United

States Air Force when it manufactured the B-1 and B-1B Lancer aircraft that

allegedly caused [the plaintiff’s] asbestos-related illnesses.”

Here, by contrast, there is no such causal nexus between Exxon Mobil’s

claimed role as a military supplier and the alleged “campaign of deception” that

forms the basis of Connecticut’s CUTPA claims. For starters, Exxon Mobil can

hardly claim that it “was under the sole direction of” the military at any point

between 1957 and the present. Id.; see City of Hoboken,

(crediting

amicus scientist’s “estimate[] that the Department of Defense is responsible for less

than 1/800th of the world’s energy consumption” and rejecting invitation of

defendants, including Exxon Mobil, “to hang our jurisdiction on so small a slice of

the pie”). Even more fundamentally, this case presents a total mismatch between

43 the business practices that Exxon Mobil asserts were subject to federal control and

supervision (its actual production of fossil fuels) and the business practices of

which Connecticut complains (its marketing and public-relations campaigns to

assuage consumers’ fears about the environmental impacts of those fossil fuels).

Thus, Exxon Mobil cannot establish that it “performed the actions for which [it is]

being sued ‘under color of federal office,’” Isaacson,

(quoting

(a)(1)) (alteration omitted) – i.e., that “the acts that form the basis for

[Connecticut’s] suit were performed pursuant to an officer’s direct orders or to

comprehensive and detailed regulations,” In re MTBE,

(internal

quotation marks omitted). 7 And so at bottom, Exxon Mobil cannot invoke

federal-officer removal jurisdiction over Connecticut’s CUTPA claims in this

action, regardless of whether it attempts to do so by focusing on its status as a

7 We reject Exxon Mobil’s efforts to resist this conclusion by asserting that the causal-nexus requirement recognized in pre-2011 cases like Isaacson and In re MTBE was abrogated by the Removal Clarification Act of 2011. See

(b)(1)(A),

(amending the federal-officer removal statute to refer to defendants sued “for or relating to any act under color of [federal] office,”

(emphasis added), where it had previously referred only to defendants sued “for any act under color of such office,”

(a) (2006) (emphasis added)). In fact, we have continued to apply the casual-nexus requirement in our binding and precedential opinions long after 2011 – and indeed, as recently as just last year. See, e.g., Agyin, 986 F.3d at 179 (finding sufficient nexus where defendant’s “challenged conduct was directed by federal regulation and he was acting under a federal officer” (emphasis added)).

44 lessee and tenant of the Department of Interior or as a supplier to the Department

of Defense.

C. OCSLA Jurisdiction

In a final effort to establish the removability of Connecticut’s action, Exxon

Mobil invokes OCSLA, which provides for federal jurisdiction over actions

“arising out of, or in connection with . . . any operation conducted on the outer

[c]ontinental [s]helf [that] involves exploration, development, or production of the

minerals, of the subsoil and seabed of the outer [c]ontinental [s]helf, or [that]

involves rights to such minerals.”

(b)(1)(A). Exxon Mobil states

that it “indisputably engages in significant ‘operation[s]’ on the outer continental

shelf,” where its drilling sites “were collectively responsible for producing

690 million barrels of oil and 1.034 trillion cubic feet of natural gas in 2019 alone.”

Exxon Mobil Br. at 45 (alteration in original). Exxon Mobil argues that

Connecticut’s “claims arise in part from” these “operations,” insofar as its

complaint included a background factual allegation that Exxon Mobil “has

contributed to climate change by causing the sale of fossil[-]fuel and petroleum

products[] in Connecticut and elsewhere,” and a prayer for discretionary relief in

the form of restitution for “all expenditures attributable to [Exxon Mobil] that the

45 State has made and will have to make to combat the effects of climate change.”

(quoting J. App’x at 11, 51).

This argument brings us back to ground well-trodden by our sister circuits.

Exxon Mobil has made virtually the same argument to five other courts of appeals,

all of which have rejected it. See Rhode Island II, 35 F.4th at 59–60; City of Hoboken,

45 F.4th at 709–12; Mayor & City Council of Baltimore, 31 F.4th at 219–22; County of

San Mateo, 32 F.4th at 751–55; Bd. of Cnty. Comm’rs of Boulder Cnty., 25 F.4th

at 1272–75. In that respect, too, we now join them.

The critical question here is whether Connecticut’s CUTPA claims

“aris[e] . . . in connection with” Exxon Mobil’s “operations” extracting oil and gas

on the OCS.

(b)(1)(A). To be sure, our sister circuits are not in

perfect agreement regarding how to interpret the statutory phrase, “in connection

with.” The Fourth and Tenth Circuits have construed that phrase to require a

but-for causal link between a plaintiff’s claims and a defendant’s operations on the

OCS. See Mayor & City Council of Baltimore,

; Bd. of Cnty. Comm'rs of

Boulder Cnty., 25 F.4th at 1272–75; see also In re Deepwater Horizon,

(5th Cir. 2014) (holding same, albeit in a different context). Those circuits therefore

held that since Exxon Mobil and its co-defendants had “concede[d] that some of

46 their fossil-fuel production occurred outside of the OCS,” and the respective

plaintiffs’ “injuries remain even after we disregard ‘whatever slice’ of Defendants’

fossil-fuel production occurred on the OCS,” there could be no “but-for connection

satisfying . . . OCSLA’s jurisdictional grant.” Mayor & City Council of Baltimore,

(4th Cir. 2022) (citing Cnty. Comm'rs of Boulder Cnty., 25 F.4th

at 1272–75).

The Third and Ninth Circuits, meanwhile, have held “that the language of

[section] 1349(b), ‘aris[e] out of, or in connection with,’ does

not necessarily require but-for causation,” County of San Mateo,

(second alteration in original), and instead asked, “do the lawsuits here target

actions on or closely connected to the Shelf?” City of Hoboken,

. These

circuits nonetheless answered that question in the negative, reasoning that

plaintiffs’ common-law trespass, nuisance, and misrepresentation claims were “all

too far away from Shelf oil production” because “the carbon emissions they

deplore come not from extracting oil and gas, but burning them: driving cars,

heating houses, fueling machinery.”

We, meanwhile, join the First Circuit in concluding that “we need not

wrestle the but-for-causation issue to the ground today,” because “despite the[ir]

47 different approaches to construing [section] 1349(b), our sister circuits’ [unified]

application of [section] 1349(b) leads to a materially similar result” in the case before

us. Rhode Island II, 35 F.4th at 59–60 (emphasis added; citation and alterations

omitted). Even under the Third Circuit’s looser construction of the phrase “in

connection with,” Exxon Mobil still could not establish OCSLA jurisdiction here,

because Connecticut’s claims still would be “too many steps removed from [Exxon

Mobil’s] operations on the Shelf.” City of Hoboken,

.

In fact, Connecticut’s CUTPA claims are an additional step further removed

from those “operations” than was the case in City of Hoboken. There, the court

explained that the plaintiffs’ attempts “to cast their suits as just about

misrepresentations” were “belie[d]” by “their own complaints,” which “charge[d]

the oil companies with not just misrepresentations, but also trespasses and

nuisances” allegedly “caused by burning fossil fuels and emitting carbon dioxide.”

But here, as we have explained, see supra Section IV.A.3.b, Connecticut can

accurately “cast [its] suit[] as just about misrepresentations,” City of Hoboken,

. Connecticut’s claims, then, ultimately concern neither “extracting oil

and gas” nor “burning them,”

but talking about what happens to the environment

when they are burned. Thus, under any standard we might apply, it is plain that

48 Connecticut’s suit does not “aris[e] . . . in connection with,”

(b)(1)(A), Exxon Mobil’s “operations” extracting oil and gas on the outer

continental shelf and cannot trigger federal jurisdiction under OCSLA.

V. Conclusion

For the foregoing reasons, we AFFIRM the district court’s order remanding

this case to the Connecticut Superior Court for the District of Hartford.

49