Rhode Island v. Shell Oil Prods. Co.
| Decision Date | 29 October 2020 |
| Docket Number | No. 19-1818,19-1818 |
| Parties | 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. |
| Court | U.S. Court of Appeals — First Circuit |
Theodore J. Boutrous, Jr., Los Angeles, CA, with whom Joshua S. Lipshutz, Washington, DC, Anne Champion, New York, NY, Gibson, Dunn & Crutcher LLP, Gerald J. Petros, Robin L. Main, Ryan M. Gainor, Hinckley, Allen & Snyder LLP, Providence, RI, Neal S. Manne, Houston, TX, Susman Godfrey LLP, John A. Tarantino, Patricia K. Rocha, Nicole J. Benjamin, Adler Pollock & Sheehan P.C., Providence, RI, Philip H. Curtis, Nancy G. Milburn, New York, NY, Matthew T. Heartney, Los Angeles, CA, Arnold & Porter Kaye Scholer LLP, Matthew T. Oliverio, Providence, RI, Oliverio & Marcaccio LLP, Theodore V. Wells, Jr., Daniel J. Toal, New York, NY, Jaren Janghorbani, Kannon Shanmugam, Washington, DC, Paul, Weiss, Rifkind, Wharton, Garrison LLP, Jeffrey S. Brenner, Providence, RI, Nixon Peabody LLP, David C. Frederick, Brendan J. Crimmins, Grace W. Knofczynski, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, Daniel B. Levin, Los Angeles, CA, Jerome C. Roth, Elizabeth A. Kim, San Francisco, CA, Munger, Tolles & Olson LLP, John E. Bulman, Stephen J. MacGillivray, Pierce Atwood LLP, Providence, RI, Nathan P. Eimer, Pamela R. Hanebutt, Lisa S. Meyer, Chicago, IL, Raphael Janove, Ryan J. Walsh, Madison, WI, Eimer Stahl LLP, Michael J. Colucci, Warwick, RI, Olenn & Penza, LLP, Sean C. Grimsley, Jameson R. Jones, Bartlit Beck LLP, Denver, CO, Robert G. Flanders, Jr., Timothy K. Baldwin, Whelan, Corrente, Flanders, Kinder & Siket LLP, Steven M. Bauer, Margaret A. Tough, Latham & Watkins LLP, San Francisco, CA, Jeffrey B. Pine, Patrick C. Lynch, Lynch & Pine, Providence, RI, Shannon S. Broome, San Francisco, CA, Shawn Patrick Regan, New York, NY, Ann Marie Mortimer, Los Angeles, CA, Hunton Andrews Kurth LLP, Jason C. Preciphs, Providence, RI, Roberts, Carroll, Feldstein & Peirce, Inc., J. Scott Janoe, Houston, TX, Matthew Allen, Megan Berge, Washington, DC, Baker Botts L.L.P., Lauren Motola-Davis, Samuel A. Kennedy-Smith, Lewis Brisbois Bisgaard & Smith LLP, Providence, RI, Jeffrey S. Brenner, Providence, RI, Nixon Peabody LLP, Stephen M. Prignano, Providence, RI, Mcintyre Tate LLP, James Stengel, New York, NY, Robert Reznick, Washington, DC, and Orrick, Herrington & Sutcliffe, LLP, were on brief for appellants.
Victor M. Sher, with whom Matthew K. Edling, Sher Edling LLP, and Neil F.X. Kelly, Assistant Attorney General, were on brief for appellee.
Steven P. Lehotsky, Washington, DC, U.S. Chamber Litigation Center, Peter D. Keisler, Tobias S. Loss-Eaton, and Sidley Austin LLP, Washington, DC, on brief for Chamber of Commerce of The United States of America, amicus curiae.
Patrick Parenteau, Vermont Law School, Harold Hongju Koh, Conor Dwyer Reynolds, Peter Gruber Rule of Law Clinic, and Yale Law School, on brief for Former U.S. Government Officials, amicus curiae.
Gerson H. Smoger, Oakland, CA, Smoger & Associates, P.C., Anthony Tarricone, Boston, MA, and Kreindler & Kreindler, LLP, on brief for Senator Sheldon Whitehouse, Senator Jack Reed, and Senator Edward Markey, amicus curiae.
Scott L. Nelson, Allison M. Zieve, and Public Citizen Litigation Group, Washington, DC, were on brief for Public Citizen, amicus curiae.
Robert S. Peck and Center For Constitutional Litigation, P.C., Washington, DC, on brief for The National League of Cities; The U.S. Conference of Mayors; and The International Municipal Lawyers Association, amicus curiae.
Amy Williams-Derry, Daniel P. Mensher, Alison S. Gaffney, and Keller Rohrback L.L.P., Seattle, WA, on brief for Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, Geoffrey Supran, and The Union of Concerned Scientists, amicus curiae.
William A. Rossbach and Rossbach Law, PC on brief for Mario J. Molina, Michael Oppenheimer, Robert E. Kopp, Friederike Otto, Susanne C. Moser, Donald J. Wuebbles, Gary B. Griggs, Peter C. Frumhoff and Kristina Dahl, amicus curiae.
Peter Huffman on brief for Natural Resources Defense Council, amicus curiae.
Xavier Becerra, Attorney General for the State of California, David A. Zonana, Supervising Deputy Attorney General, Erin Ganahl, Deputy Attorney General, Heather Leslie, Deputy Attorney General, Maura Healey, Attorney General for the Commonwealth of Massachusetts, Seth Schofield, Senior Appellate Counsel, 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, Keith Ellison, Attorney General of Minnesota, Gurbir S. Grewal, Attorney General of New Jersey, Letitia James, Attorney General of New York, Ellen F. Rosenblum, Attorney General of Oregon, Thomas J. Donovan, Attorney General of Vermont, and Robert W. Ferguson, Attorney General of Washington on brief for Commonwealth of Massachusetts, State of California, State of Connecticut, State of Delaware, State of Hawaii, State of Maine, State of Maryland, State of Minnesota, State of New Jersey, State of New York, State of Oregon, State of Vermont, and State of Washington, amicus curiae.
Matthew D. Hardin on brief for Energy Policy Advocates, amicus curiae.
Before Howard, Chief Judge and Thompson, Circuit Judge.*
Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change. Facing property damage from extreme weather events and otherwise losing money to the effects of climate change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products' true risks.
Because those claims were state law claims, Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island opposed removal and asked that the district court kindly return the lawsuit to state court. The district court obliged and allowed Rhode Island's motion for remand.
The oil companies appealed the district court's order to us and a heated debate ensued over the scope of our review. After careful consideration, we conclude that 28 U.S.C. § 1447(d) permits our review of remand orders only to the extent that the defendant's grounds for removal are federal-officer jurisdiction, pursuant to 28 U.S.C. § 1442 or civil rights jurisdiction, pursuant to 28 U.S.C. § 1443. The oil companies make no argument that this is a civil rights case and we conclude the allegations in Rhode Island's state court complaint do not give rise to federal-officer jurisdiction. Having jurisdiction to review no more than that question, we affirm the district court's remand order.
We summarize Rhode Island's claims, taking all well-pleaded allegations in its state court complaint as true for the purposes of our analysis. Ten Taxpayer Citizens Grp. v. Cape Wind Assocs., LLC, 373 F.3d 183, 186 (1st Cir. 2004).
In 2018, faced with rising sea levels, higher average temperatures and extreme heat days, more frequent and severe floods, tropical storms, hurricanes, and droughts, Rhode Island sued, in state court, nearly every oil and gas company under the sun.1 According to Rhode Island, the companies knew that their fossil fuel products were hazardous to the planet and concealed those risks, instead opting to market their products in Rhode Island and promote "antiscience campaigns." The oil companies actively worked to muddy the waters of scientific consensus, collecting decades of detailed research into the global impact of fossil fuels but hiding the results.
All of this left the state up the creek without a paddle once the effects of fossil fuels became more clear, working to combat the effects of a warming planet and an extreme climate. And those effects are no joke. Most Rhode Island cities and towns are below the floodplain and New England as a whole is losing ground to the ocean at a rate three to four times faster than the global average (and Rhode Island is hardly big enough to sacrifice so much of its land). Those rising sea levels have already increased erosion and the damage of storm surges along Rhode Island's coast. On top of the work it has already done to respond to these environmental crises, Rhode Island anticipates that the costs will only grow as it responds to more frequent and extreme flooding and other storm damage.
Rhode Island therefore brought this lawsuit "to ensure that the parties who have profited from externalizing the responsibility for [climate change] bear the costs of those impacts on Rhode Island." Or, as the district court aptly summarized: "Climate change is expensive, and the State wants help paying for it." Rhode Island v. Chevron Corp., 393 F. Supp. 3d 142, 146 (D.R.I. 2019).
The state court complaint lists state causes of action: public nuisance, various products liability claims, trespass, impairment of public trust resources, and violation of the state's Environmental Rights Act. The theories of liability vary to fit each cause of action, but at its core, Rhode Island's claim is simple: the oil companies knew what fossil fuels were doing to the environment and continued to sell them anyway, all while misleading consumers about the true impact of the products.
The oil companies removed the case to the...
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