Bd. of Cnty. Commissioners of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc.

• Decision Date: 07 July 2020
• Docket Number: No. 19-1330,19-1330
• Citation: 965 F.3d 792
• Parties: BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY; Board of County Commissioners of San Miguel County; City of Boulder, Plaintiffs-Appellees, v. SUNCOR ENERGY (U.S.A.) INC.; Suncor Energy Sales Inc.; Suncor Energy Inc.; Exxon Mobil Corporation, Defendants-Appellants. Chamber of Commerce of the United States of America; Public Citizen, Inc.; The National League of Cities; The U.S. Conference of Mayors; The International Municipal Lawyers Association; Colorado Communities for Climate Action; Natural Resources Defense Council Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

965 F.3d 792

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

v. SUNCOR ENERGY (U.S.A.) INC.; Suncor Energy Sales Inc.; Suncor Energy Inc.; Exxon Mobil Corporation, Defendants-Appellants.Chamber of Commerce of the United States of America; Public Citizen, Inc.; The National League of Cities; The U.S. Conference of Mayors; The International Municipal Lawyers Association; Colorado Communities for Climate Action; Natural Resources Defense Council Amici Curiae.

No. 19-1330

United States Court of Appeals, Tenth Circuit.

FILED July 7, 2020

Kannon K. Shanmugam, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, D.C. (William T. Marks, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, D.C.; Theodore V. Wells, Jr., Daniel J. Toal, Jaren Janghorbani, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York; Colin G. Harris, Faegre Baker Daniels LLP, Boulder, Colorado; and Hugh Quan Gottschalk, Evan B. Stephenson, Wheeler Trigg O'Donnell LLP, Denver, Colorado, with him on the briefs), for Defendants – Appellants.

Richard Herz, EarthRights International, Washington, D.C. (Marco Simons, Sean Powers, Michelle Harrison, EarthRights International, Washington, D.C.; David G. Bookbinder, Niskanen Center, Washington, D.C.; and Kevin S. Hannon, The Hannon Law Firm, Denver, Colorado, with him on the brief), for Plaintiff – Appellee.

Peter D. Keisler, C. Frederick Beckner III, and Ryan C. Morris, Sidley Austin LLP, Washington, D.C., filed an amicus brief on behalf of Chamber of Commerce of the United States of America.

W. Eric Pilsk, Sarah M. Keane, Sara V. Mogharabi, and Samantha R. Caravello, Kaplan Kirsch & Rockwell LLP, Denver, Colorado, filed an amicus brief on behalf of Colorado Communities for Climate Action.

Robert S. Peck, Center for Constitutional Litigation, P.C., Washington, D.C., filed an amicus brief on behalf of the National League of Cities, the United States Conference of Mayors, and the International Municipal Lawyers Association.

Peter Huffman, Natural Resources Defense Council, Washington, D.C., filed an amicus brief on behalf of the Natural Resources Defense Council.

Scott L. Nelson and Allison M. Zieve, Public Citizen Litigation Group, Washington, D.C., filed an amicus brief on behalf of Public Citizen.

Before LUCERO, HOLMES, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

This appeal concerns whether federal court is the proper forum for a suit filed in Colorado state court by local governmental entities for the global warming-related damage allegedly caused by oil and gas companies in Colorado. Suncor Energy and ExxonMobil advanced seven bases for federal subject matter jurisdiction in removing the action to federal court, each of which the district court rejected in its remand order. Suncor Energy and ExxonMobil now appeal, relying on six of those bases for federal jurisdiction. We hold, however, that 28 U.S.C. § 1447(d) limits our appellate jurisdiction to just one of them—federal officer removal under 28 U.S.C. § 1442(a)(1). And because we conclude ExxonMobil failed to establish grounds for federal officer removal, we affirm the district court's order on that basis and dismiss the remainder of this appeal.

I. BACKGROUND

Three local Colorado government entities—the County Commissioners of Boulder and San Miguel Counties and the City of Boulder (Plaintiffs-Appellees; collectively, the "Counties")—filed suit in Colorado state court on June 11, 2018, against Suncor Energy¹ and ExxonMobil Corporation (Defendants-Appellants, collectively, "Defendants"). The complaint asserts that the Counties face substantial and rising costs to protect people and property within their jurisdictions from the threat of global warming, including from increasing and intensified heat waves, wildfires, droughts, and floods across Colorado. The Counties allege that Defendants have substantially contributed to this local environmental harm by engaging in unchecked fossil fuel activity—producing, promoting, refining, marketing, and selling—which has resulted in excess greenhouse gas emissions. For decades after becoming aware of the dangers of global warming, the Counties further allege, Defendants continued to produce, promote, refine, market, and sell fossil fuels at levels that caused and contributed to negative climate alteration without disclosing the harms posed by continued fossil fuel overuse. According to the complaint, Defendants misrepresented the dangers of unchecked fossil fuel use and acted to prevent and forestall changes in energy use that they knew were needed to limit the impact of global warming, thereby exacerbating the climate-related harm suffered by the Counties and their residents.

The complaint asserts state law claims for public and private nuisance, trespass, unjust enrichment, civil conspiracy, and violation of the Colorado Consumer Protection Act. Among other forms of relief, the Counties seek past and future compensatory damages to mitigate the impact of global warming in their respective jurisdictions, along with remediation and/or abatement of the attendant global warming-related environmental hazards they now face. The Counties do not seek "to enjoin any oil and gas operations or sales in the State of Colorado, or elsewhere, or to enforce emissions controls of any kind." App. 195. They ask the state court not "to stop or regulate" fossil fuel production or emissions, but instead to ensure Defendants pay a pro rata share of the costs the Counties have incurred and will incur based on Defendants' averred contribution to climate alteration, and to help remediate the harm the Counties claim has been and will be caused by Defendants' allegedly tortious and illegal conduct. App. 74.

On June 29, 2018, Defendants filed a notice of removal in federal district court for the District of Colorado, asserting seven grounds for federal jurisdiction. Five of these grounds relied upon the general removal statute, 28 U.S.C. § 1441(a), which allows for removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." Of these five grounds, four were based on general federal question jurisdiction² —that the Counties' claims (1) arose under federal common law; (2) were completely preempted by federal law; (3) implicated disputed and substantial federal issues under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing , 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) ; and (4) arose in part from incidents that occurred on federal enclaves. The fifth claim of original federal jurisdiction was based on the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349(b). Additionally, Defendants relied on two other removal provisions: the bankruptcy removal statute, 28 U.S.C. § 1452, and the federal officer removal statute, 28 U.S.C. § 1442(a)(1).

The Counties filed a motion to remand pursuant to 28 U.S.C. § 1447(c) based on lack of federal subject matter jurisdiction. The district court granted this motion on September 5, 2019, rejecting all seven grounds for removal and remanding to the Colorado state court. Bd. of Cty. Comm'rs. of Boulder County v. Suncor Energy (U.S.A.) Inc. ( Boulder County I ), 405 F. Supp. 3d 947, 954–55 (D. Colo. 2019).

Defendants appealed the district court's remand order with respect to six of their seven asserted bases for removal (omitting a challenge to bankruptcy removal). They also moved in the district court for a stay of the remand order pending appeal. Notwithstanding the general bar to remand order appealability imposed by 28 U.S.C. § 1447(d), Defendants argued before the district court that the exception in § 1447(d) permitting review of federal officer removal under 28 U.S.C. § 1442 creates appellate jurisdiction to consider all of their asserted removal bases. While acknowledging that this court has yet to determine the scope of appellate review of remand orders premised on the § 1447(d) exceptions, as well as circuit disagreement on that issue, Defendants asserted that plenary review was compelled by a Seventh Circuit decision interpreting the Supreme Court's holding in Yamaha Motor Corp., U.S.A. v. Calhoun , 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). Defendants further contended that this court's interpretation of the Class Action Fairness Act's removal provision in Coffey v. Freeport McMoran Copper & Gold , 581 F.3d 1240 (10th Cir. 2009), "strongly suggests that it would review the district court's entire order, not simply the ground that permitted appeal." Defendants' Mot. for Stay of Remand Order, Dist. Ct. ECF No. 75 at 6.

The district court denied this motion to stay its remand order on October 7, 2019.

Bd. of Cty. Comm'rs of Boulder County v. Suncor Energy (U.S.A.) Inc. (Boulder County II ), 423 F. Supp. 3d 1066 (D. Colo. 2019). Noting the split of authority on the scope of appellate review of remand orders, as well as the lack of a controlling Tenth Circuit opinion, the district court reasoned that this court would likely "follow the weight of authority and find that the only ground subject to appeal is federal officer jurisdiction under § 1442." Id. at 1070. It disagreed with Defendants' reading of Yamaha and Coffey , finding instead that " Coffey suggests the Tenth Circuit would be unlikely to review aspects of a remand order that would otherwise be unreviewable"—here, all bases for federal question jurisdiction other than § 1442. Id. at 1071.

Defendants then filed motions in this court and the Supreme Court for a temporary stay of the remand order pending appeal, which both courts denied. The Counties filed a motion for partial dismissal based on the reviewability bar in § 1447(d), seeking to narrow the issues on appeal to only the propriety of federal officer removal.³ It is to this issue of the scope of our appellate jurisdiction that we first turn.

II. SCOPE OF APPELLATE...