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

• Decision Date: 05 September 2019
• Docket Number: Civil Action No. 18-cv-01672-WJM-SKC
• Citation: 405 F.Supp.3d 947
• Parties: BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY; Board of County Commissioners of San Miguel County; and City of Boulder, Plaintiffs, v. SUNCOR ENERGY (U.S.A.) INC.; Suncor Energy Sales Inc.; Suncor Energy Inc.; and Exxon Mobil Corporation, Defendants.
• Court: U.S. District Court — District of Colorado

405 F.Supp.3d 947

BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY; Board of County Commissioners of San Miguel County; and City of Boulder, Plaintiffs,

v.SUNCOR ENERGY (U.S.A.) INC.; Suncor Energy Sales Inc.; Suncor Energy Inc.; and Exxon Mobil Corporation, Defendants.

Civil Action No. 18-cv-01672-WJM-SKC

United States District Court, D. Colorado.

Signed September 05, 2019

Kevin Scott Hannon, Hannon Law Firm, LLC, Denver, CO, Marco B. Simons, Richard Lawrence Herz, Michelle C. Harrison, EarthRights International, David G. Bookbinder, Niskanen Center, Washington, DC, for Plaintiffs.

Hugh Q. Gottschalk, Evan Bennett Stephenson, Wheeler Trigg O'Donnell LLP, Denver, CO, Colin G. Harris, Faegre Baker Daniels LLP, Boulder, CO, Theodore V. Wells, Jr., Daniel J. Toal, Jaren Janghorbani, Nora Ahmed, Paul Weiss Rifkind Wharton & Garrison, LLP, New York, NY, Kannon K. Shanmugam, Paul Weiss Rifkind Wharton & Garrison LLP, Washington, DC, for Defendants.

ORDER

William J. Martínez, United States District Judge

Plaintiffs brought Colorado common law and statutory claims in Boulder County, Colorado District Court for injuries occurring to their property and citizens of their jurisdictions, allegedly resulting from the effects of climate change. Plaintiffs sue Defendants in the Amended Complaint ("Complaint") "for the substantial role they played and continue to play in causing, contributing to and exacerbating climate change." (ECF No. 7 ¶ 2.) Defendants filed a Notice of Removal (ECF No. 1) on June 29, 2018. Plaintiffs filed a Motion to Remand (ECF No. 34) on July 30, 2018.

For the reasons explained below, the Court grants Plaintiffs' Motion to Remand. Defendants' Motion to Reschedule Oral Argument on Plaintiffs' Motion to Remand (ECF No. 67), is denied as the Court finds that a hearing is not necessary.

I. BACKGROUND

Plaintiffs assert six state law claims: public nuisance, private nuisance, trespass, unjust enrichment, violation of the Colorado Consumer Protection Act, and civil conspiracy. The Complaint alleges that Plaintiffs face substantial and rising costs to protect people and property within their jurisdictions from the dangers of climate alteration. (ECF No. 7 ¶¶ 1–4, 11, 221–320.) Plaintiffs allege that Defendants substantially contributed to the harm through selling fossil fuels and promoting their unchecked use while concealing and misrepresenting their dangers. (Id. ¶¶ 2, 5, 13–18, 321–435.) The fossil fuel activities have raised the emission and concentration of greenhouse gases ("GHGs") in the atmosphere. (Id. ¶¶ 7, 15, 123–138, 321–38.)

As a result of the climate alterations caused and contributed to by Defendants' fossil fuel activities, Plaintiffs allege that they are experiencing and will continue to experience rising average temperatures and harmful changes in precipitation patterns and water availability, with extreme weather events and increased floods, drought, and wild fires. (ECF No. 7 ¶¶ 145–179.) These changes pose a threat to health, property, infrastructure, and agriculture. (Id. ¶¶ 1–4, 180–196.) Plaintiffs allege that they are sustaining damage because of services they must provide and costs they must incur to mitigate or abate those impacts. (Id. ¶¶ 1, 4–5, 221–320.) Plaintiffs seek monetary damages from Defendants, requiring them to pay their pro rata share of the costs of abating the impacts on climate change they have allegedly caused through their tortious conduct. (Id. at ¶ 6.) Plaintiffs do not ask the Court to stop or regulate Defendants' emissions of fossil fuels (id. at ¶¶ 6, 542), and do not seek injunctive relief.

Defendants' Notice of Removal asserts the following: (1) federal question jurisdiction— that Plaintiffs' claims arise under federal common law, and that this action necessarily and unavoidably raises disputed and substantial federal issues that give rise to jurisdiction under Grable & Sons Metal Products, Inc. v. Darue Eng'g & Mfg. , 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) ("Grable "); (2) complete preemption; (3) federal enclave jurisdiction; (4) jurisdiction because the allegations arise from action taken at the direction of federal officers; (5) jurisdiction under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349(b) ; and (6) jurisdiction under 28 U.S.C. § 1452(a) because the claims are related to bankruptcy proceedings.

While there are no dispositive cases from the Supreme Court, the United States Court of Appeals for the Tenth Circuit, or other United States Courts of Appeal, United States District Court cases throughout the country are divided on whether federal courts have jurisdiction over state law claims related to climate change, such as raised in this case. Compare California v. BP p.l.c. ("CA I "), 2018 WL 1064293 (N.D. Cal. Feb. 27, 2018) ; City of Oakland v. BP p.l.c. ("CA II ), 325 F. Supp. 3d 1017 (N.D. Cal. 2018) ; City of New York v. BP p.l.c. , 325 F. Supp. 3d 466 (S.D.N.Y. 2018) with State of Rhode Island v. Chevron Corp. , 393 F.Supp.3d 142, 2019 WL 3282007 (D. R.I. July 22, 2019) ; Mayor and City Council of Baltimore v. BP P.L.C. ("Baltimore "), 388 F.Supp.3d 538 (D. Md. 2019), appeal docketed , No. 19-1644 (4th Cir. June 18, 2019); and Cnty. of San Mateo v. Chevron Corp. , 294 F. Supp. 3d 934 (N.D. Cal. 2018), appeal docketed , No. 18-15499 (9th Cir. May 27, 2018).

II. LEGAL STANDARD

Plaintiffs' Motion to Remand is brought pursuant to 28 U.S.C. § 1447(c). The Motion to Remand asserts that the Court lacks subject matter jurisdiction over the claims in this case, which Plaintiffs contend are state law claims governed by state law.

Federal courts are courts of limited jurisdiction, "possessing ‘only that power authorized by Congress and statute.’ " Gunn v. Minton , 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (citation omitted). Thus, "[f]ederal subject matter jurisdiction is elemental." Firstenberg v. City of Santa Fe , 696 F.3d 1018, 1022 (10th Cir. 2012). "It cannot be consented to or waived, and its presence must be established" in every case in federal court. Id.

Here, Defendants predicate removal on the ground that the federal court has original jurisdiction over the claims. 28 U.S.C. § 1441(a). Diversity jurisdiction has not been invoked. Removal is appropriate "if, but only if, ‘federal subject-matter jurisdiction would exist over the claim.’ " Firstenberg , 696 F.3d at 1023 (citation omitted). If a court finds that it lacks subject matter jurisdiction at any time before final judgment is entered, it must remand the case to state court. 28 U.S.C. § 1447(c).

The burden of establishing subject matter jurisdiction is on the party seeking removal to federal court, and there is a presumption against its existence. Salzer v. SSM Health Care of Okla. Inc. , 762 F.3d 1130, 1134 (10th Cir. 2014). "Removal statutes are to be strictly construed,...and all doubts are to be resolved against removal." Fajen v. Found. Reserve Ins. Co. , 683 F.2d 331, 333 (10th Cir. 1982). The party seeking removal must show that jurisdiction exists by a preponderance of the evidence. Dutcher v. Matheson , 840 F.3d 1183, 1189 (10th Cir. 2016).

III. ANALYSIS

A. Federal Question Jurisdiction

Defendants first argue that federal question jurisdiction exists. Federal question jurisdiction exists for "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. In determining whether such jurisdiction exists, a court must "look to the ‘face of the complaint’ " and ask whether it is " ‘drawn so as to claim a right to recover under the Constitution and laws of the United States’[.]" Firstenberg , 696 F.3d at 1023 (quoting Bell v. Hood , 327 U.S. 678, 681, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ).

"[T]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule’, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citation omitted). Under this rule, a case arises under federal law ‘only when the plaintiff's statement of his own cause of action shows that it is based’ on federal law." Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc. , 693 F.3d 1195, 1202 (10th Cir. 2012) (citation omitted). The court need only examine "the well-pleaded allegations of the complaint and ignore potential defenses....’ " Id. (citation omitted).

The well-pleaded complaint rule makes "the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar , 482 U.S. at 392, 107 S.Ct. 2425 ; see also Devon Energy , 693 F.3d at 1202 ("By omitting federal claims from a complaint, a plaintiff can generally guarantee an action will be heard in state court.") (internal quotation marks omitted). While the plaintiff may not circumvent federal jurisdiction by artfully drafting the complaint to omit federal claims that are essential to the claim, Caterpillar , 482 U.S. at 392, 107 S.Ct. 2425, the plaintiff "can elect the judicial forum–state of federal" depending on how the plaintiff drafts the complaint. Firstenberg , 696 F.3d at 1023. "Neither the plaintiff's anticipation of a federal defense nor the defendant's assertion of a federal defense is sufficient to make the case arise under federal law." Id. (internal quotation marks omitted).

For a plaintiff's well-pleaded complaint to establish that the claims arise under federal law within the meaning of § 1331, it "must establish one of two things: ‘either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on a resolution of a substantial question of federal law.’ " Firstenberg , 696 F.3d at 1023 (citation omitted). The "creation' test" in the first prong accounts for the majority of suits that raise under federal law." See Gunn , 568 U.S. at 257, 133 S.Ct....