United States District Court, D. Rhode Island
OPINION AND ORDER
William E. Smith Chief Judge.
State of Rhode Island brings this suit against energy
companies it says are partly responsible for our once and
future climate crisis. It does so under state law and, at
least initially, in state court. Defendants removed the case
here; the State asks that it go back. Because there is no
federal jurisdiction under the various statutes and doctrines
adverted to by Defendants, the Court GRANTS the State's
Motion to Remand, ECF No. 40.
change is expensive, and the State wants help paying for it.
Compl. ¶¶ 8, 12. Specifically from Defendants in
this case, who together have extracted, advertised, and sold
a substantial percentage of the fossil fuels burned globally
since the 1960s. Id. ¶¶ 7, 12, 19, 97.
This activity has released an immense amount of greenhouse
gas into the Earth's atmosphere, id., changing
its climate and leading to all kinds of displacement, death
(extinctions, even), and destruction, id.
¶¶ 53, 89-90, 199- 213, 216. What is more,
Defendants understood the consequences of their activity
decades ago, when transitioning from fossil fuels to
renewable sources of energy would have saved a world of
trouble. Id. ¶¶ 106-46; 184-96. But
instead of sounding the alarm, Defendants went out of their
way to becloud the emerging scientific consensus and further
delay changes - however existentially necessary - that would
in any way interfere with their multi-billion-dollar profits.
Id. ¶¶ 147-77. All while quietly readying
their capital for the coming fallout. Id.
eight state-law causes of action, the State prays in law and
equity to relieve the damage Defendants have and will inflict
upon all the non-federal property and natural resources in
Rhode Island. Id. ¶¶ 225-315. Casualties
are expected to include the State's manmade
infrastructure, its roads, bridges, railroads, dams, homes,
businesses, and electric grid; the location and integrity of
the State's expansive coastline, along with the wildlife
who call it home; the mild summers and the winters that are
already barely tolerable; the State fisc, as vast sums are
expended to fortify before and rebuild after the increasing
and increasingly severe weather events; and Rhode Islanders
themselves, who will be injured or worse by these events.
Id. ¶¶ 8, 12, 15-18, 88-93, 197-218. The
State says it will have more to bear than most: Sea levels in
New England are increasing three to four times faster than
the global average, and many of the State's
municipalities lie below the floodplain. Id.
¶¶ 59-61, 76.
is, needless to say, an important suit for both sides. The
question presently before the Court is where in our federal
system it will be decided.
to protect nonresidents from state-court tribalism, 14C
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3721 (rev. 4th ed. 2018),
the right to remove is found in various statutes, which
courts have taken to construing narrowly and against removal.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108-09 (1941); Esposito v. Home Depot U.S.A.,
Inc., 590 F.3d 72, 76 (1st Cir. 2009);
Calderón-Serra, 398 F.3d 1, 11 (1st. Cir. 2004).
Defendants cite several of these in their notice as bases for
federal-court jurisdiction. Notice of Removal, ECF No. 1.
None, however, allows Defendants to carry their burden of
showing the case belongs here. See Wilson v. Republic
Iron & Steel Co., 257 U.S. 92, 97 (1921)
(“[D]efendant must take and carry the burden of proof,
he being the actor in the removal proceeding.”).
first Defendants invoke is the general removal statute. 28
U.S.C. § 1441. Section 1441 allows a defendant to remove
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction.” The species of original jurisdiction
Defendants claim exists in this case is federal-question
jurisdiction. 28 U.S.C. § 1331. They argue, in other
words, that Plaintiff's case arises under federal law.
Whether a case arises under federal law is governed by the
well-pleaded complaint rule. Vaden v. Discover Bank,
556 U.S. 49, 60 (2009). The rule states that removal based on
federal-question jurisdiction is only proper where a federal
question appears on the face of a well-pleaded complaint.
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987). This rule operationalizes the maxim that a plaintiff
is the master of her complaint: She may assert certain causes
of action and omit others (even ones obviously available),
and thereby appeal to the jurisdiction of her choice.
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,
809 n.6 (1986); Caterpillar Inc., 482 U.S. at 392
(“[Plaintiff] may avoid federal jurisdiction by
exclusive reliance on state law.”).
State's complaint, on its face, contains no federal
question, relying as it does on only state-law causes of
action. See Compl. ¶¶ 225-315. Defendants
nevertheless insist that the complaint is not well-pleaded,
and that if it were, it would, in fact, evince a federal
question on which to hang federal jurisdiction. Here they
invoke the artful-pleading doctrine. “[A]n independent
corollary of the well-pleaded complaint rule that a plaintiff
may not defeat removal by omitting to plead necessary federal
questions in a complaint, ” Franchise Tax Bd. v.
Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1,
22 (1983), the artful-pleading doctrine is “designed to
prevent a plaintiff from unfairly placing a thumb on the
jurisdictional scales, ” López- Muñoz
v. Triple-S Salud, Inc., 754 F.3d 1, 5 (1st Cir. 2014).
See Wright & Miller, supra, §
3722.1. According to Defendants, the State uses two strains
of artifice in an attempt to keep its case in state court:
one based on complete preemption, the other on a substantial
federal question. See Wright & Miller,
supra, § 3722.1 (discussing the three types of
case in which the artful pleading doctrine has applied).
these in turn, Defendants first argue - and two district
courts have recently held - that a state's
public-nuisance claim premised on the effects of climate
change is “necessarily governed by federal common
law.” California v. BP P.L.C., Nos. C 17-06011
WHA, C 17-06012 WHA, 2018 WL 1064293, at *2 (N.D. Cal. Feb.
27, 2018); accord City of New York v. BP P.L.C., 325
F.Supp.3d 466, 471-72 (S.D.N.Y. 2018). Defendants, in
essence, want the Court to peek beneath the purported
state-law façade of the State's public-nuisance
claim, see the claim for what it would need to be to have a
chance at viability, and convert it to that (i.e., into a
claim based on federal common law) for purposes of the
present jurisdictional analysis. The problem for Defendants
is that there is nothing in the artful-pleading doctrine that
sanctions this particular transformation.
closest the doctrine gets to doing so is called complete
preemption. Compare Defs.' Opp'n to
Pl.'s Mot. to Remand 9, ECF No. 87 (“[T]he
Complaint pleads claims that arise, if at all, under federal
common law . . . .”) and id. at 19
(“[Plaintiff's claims] are necessarily
governed by federal common law.”), with Franchise
Tax Bd., 463 U.S. at 24 (“[I]f a federal cause of
action completely preempts a state cause of action any
complaint that comes within the scope of the federal cause of
action necessarily ‘arises under' federal
law.”); see also Mayor of Balt. v. BP P.L.C.,
Civil Action No. ELH-18-2357, 2019 WL 2436848, at *6-7 (D.
Md. June 20, 2019). Complete preemption is different from
ordinary preemption, which is a defense and therefore does
not provide a basis for removal, “even if the defense
is anticipated in the plaintiff's complaint, and even if
both parties admit that the defense is the only question
truly at issue in the case.” Franchise Tax
Bd., 463 U.S. at 14, 24. It is a difference of kind,
moreover, not degree: complete preemption is jurisdictional.
López-Muñoz, 754 F.3d at 5;
Lehmann v. Brown, 230 F.3d 916, 919-920 (7th Cir.
2000); Wright & Miller, supra, § 3722.2.
When a state-law cause of action is completely preempted, it
“transmogrifies” into, Law ...