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

25 F.4th 1238

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 ; Colorado Communities for Climate Action; the National League of Cities; the U.S. Conference of Mayors; the International Municipal Lawyers Association; Natural Resources Defense Council ; Public Citizen, Inc., Amici Curiae.

No. 19-1330

United States Court of Appeals, Tenth Circuit.

FILED February 8, 2022

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 HOLMES, LUCERO, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

This matter is before us on remand from the United States Supreme Court. Suncor Energy (U.S.A.) Inc. v. Bd. of Cnty. Comm'rs of Boulder Cnty. , ––– U.S. ––––, 141 S. Ct. 2667, 210 L.Ed.2d 830 (2021) (Mem.). The case originally came to us as an appeal of the district court's order remanding the action to state court. Pursuant to 28 U.S.C. § 1447(d), orders remanding removed cases to state court are not appealable "except that an order remanding a case to the State court from which it was removed pursuant to section 1442 [federal officer removal] or 1443 [civil rights cases] of this title shall be reviewable by appeal or otherwise." In our prior decision, we held § 1447(d) limited our appellate jurisdiction to review of only the federal officer basis for removal, which was one of six grounds of federal subject-matter jurisdiction advanced in support of removal on appeal. Bd. of Cnty. Comm'rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc. , 965 F.3d 792, 819 (10th Cir. 2020), vacated and remanded by ––– U.S. ––––, 141 S. Ct. 2667, 210 L.Ed.2d 830 (2021) (Mem.).

In BP P.L.C. v. Mayor & City Council of Baltimore , the Supreme Court rejected that position, holding that when a removal action is appealed under the limited grounds listed in 28 U.S.C. § 1447(d), the appellate court has subject-matter jurisdiction over all grounds for removal addressed in the district court's order. ––– U.S. ––––, 141 S. Ct. 1532, 1543, 209 L.Ed.2d 631 (2021). The Court then granted certiorari in this case, vacated our prior decision, and remanded for further consideration in light of its decision in BP v. Mayor & City Council of Baltimore . Suncor Energy (U.S.A.) Inc. v. Bd. of Cnty. Comm'rs of Boulder Cnty. , ––– U.S. ––––, 141 S. Ct. 2667, 210 L.Ed.2d 830 (2021) (Mem.).

We undertake that further consideration now. For the following reasons, we hold that none of the six grounds asserted support federal removal jurisdiction. Accordingly, we affirm the district court's order remanding the action to state court.

I. BACKGROUND

A. Factual History

1. The Energy Companies and Climate Change¹

Stated broadly, this is a lawsuit about damages related to climate change. The Board of County Commissioners of Boulder County, the Board of County Commissioners of San Miguel County, and the City of Boulder (collectively, the "Municipalities") say they have experienced and will continue to experience harm because of climate change caused by fossil-fuel consumption and rising levels of carbon dioxide in the atmosphere. They also allege they have spent and will continue spending millions of dollars to mitigate this harm.

The Municipalities contend that Suncor Energy (U.S.A.) Inc., Suncor Energy Sales, Inc., Suncor Energy, Inc., and ExxonMobil Corporation ("Exxon") (collectively, the "Energy Companies") have contributed significantly to the changing climate in Colorado by producing, marketing, and selling fossil fuels. And the Municipalities allege the Energy Companies have continued their fossil-fuel activities even though they knew these activities would change the climate dramatically. The Municipalities further allege the Energy Companies concealed and/or misrepresented the dangers associated with the burning of fossil fuels despite having been aware of those dangers for decades.

2. Exxon's Outer Continental Shelf Leases

On appeal, the Energy Companies contend there is federal jurisdiction over the Municipalities’ claims, in part, because Exxon and/or its affiliated companies have leased and continue to lease portions of the outer continental shelf of the United States ("OCS") pursuant to the Outer Continental Shelf Lands Act ("OCSLA") to extract fossil fuels. Accordingly, we include relevant background information about the OCS leases.

The OCS "is a vast underwater expanse" that begins several miles off the coastline and extends seaward for roughly two hundred miles. Ctr. for Sustainable Econ. v. Jewell , 779 F.3d 588, 592 (D.C. Cir. 2015). The "subsoil and seabed" of the OCS "appertain to the United States and are subject to its jurisdiction and control." 43 U.S.C. § 1331(a). "Billions of barrels of oil and trillions of cubic feet of natural gas lie beneath the OCS." Jewell , 779 F.3d at 592.

Pursuant to the OCSLA, the Department of Interior ("DOI") administers a federal leasing program to develop and make use of the OCS's oil and gas resources. See 43 U.S.C. §§ 1334 – 1356b. The Interior Secretary "is authorized to grant to the highest responsible qualified bidder or bidders by competitive bidding ... any oil and gas lease" on these submerged lands. 43 U.S.C. § 1337(a)(1). For decades, Exxon has participated in this competitive leasing program, and it continues to conduct operations under OCS leases.

By the terms of its OCS leases, Exxon is required to conduct drilling "in accordance with" federally approved exploration, development, and production plans and conditions. App. at 64 § 9. These plans must "conform to sound conservation practices to preserve, protect, and develop minerals resources and maximize the ultimate recovery of hydrocarbons from the leased area." Id. § 10. Exxon is obligated to "exercise diligence in the development of the leased area and in the production of wells located thereon;" "prevent unnecessary damage to, loss of, or waste of leased resources;" and "comply with all applicable laws, regulations and orders related to diligence, sound conservation practices and prevention of waste." Id. Earlier OCS leases further provided, "[a]fter due notice in writing, the Lessee shall drill such wells and produce at such rates as the Lessor may require in order that the leased area or any part thereof may be properly and timely developed and produced in accordance with sound operating principles." Id. at 50 § 10. That provision is not included in the current leases.

The leases provide DOI officials reserve the right to obtain "prompt access" to facilities and records of private OCS lessees for the purpose of federal safety, health, or environmental inspections. Id. at 64 § 12. The government reserves a right of first refusal to purchase all materials "[i]n time of war or when the President of the United States shall so prescribe." Id. at 68 § 15(d). The government also requires that 20% of all crude or natural gas produced pursuant to drilling leases be offered "to small or independent refiners." Id. § 15(c).

B. Procedural History

1. The Claims

In this action, the Municipalities sue for damages allegedly caused by climate change. They assert a variety of claims under Colorado law, both common law and statutory, against the Energy Companies. Specifically, the Municipalities allege claims of public nuisance; private nuisance; trespass; unjust enrichment; violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. § 6-1-105(1), et seq. ; and civil conspiracy. They do not allege any federal claims.

The Municipalities seek compensatory damages, remediation and/or abatement, treble damages, and costs and attorney fees. The Municipalities also ask that the Energy Companies be held jointly liable under Colorado Revised Statutes § 13-21-111.5(4) for "consciously conspir[ing] and deliberately pursu[ing] a common plan to commit tortious acts." Id. at 194–95 The Municipalities expressly do not seek to interfere with or impose liability based on the Energy Companies’ speech; to "enjoin any oil and gas operations or sales in the State of Colorado, or elsewhere, or to enforce emissions controls of any kind;" to recover "damages or abatement relief for injuries to or...