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No. 18-16663
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF OAKLAND, a Municipal Corporation, and The People of the State of
California, acting by and through the Oakland City Attorney Barbara J. Parker;
CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation, and
The People of the State of California, acting by and through
the San Francisco City Attorney Dennis J. Herrera,
Plaintiffs-Appellants,
v.
B.P. P.L.C., a public limited company of England and Wales;
CHEVRON CORPORATION, a Delaware corporation;
CONOCOPHILLIPS, a Delaware corporation;
EXXON MOBIL CORPORATION, a New Jersey corporation;
ROYAL DUTCH SHELL PLC, a public limited company of England and Wales;
and DOES, 1 through 10,
Defendants-Appellees.
On Appeal From The United States District Court, Northern District of California
Case Nos. 3:17-cv-06011-WHA, 3:17-cv-06012-WHA (Hon. William H. Alsup)
PLAINTIFFS-APPELLANTS’ CONSOLIDATED OPENING BRIEF
Barbara J. Parker, City Attorney
Maria Bee, Special Counsel
Erin Bernstein, Supervising Deputy
Malia McPherson, Deputy
Oakland Office of the City Attorney
One Frank Ogawa Plaza, 6th Floor
Oakland, CA 94612
Telephone: (510) 238-3601
Counsel for City of Oakland and
The People of the State of California

Dennis J. Herrera, City Attorney
Ronald P. Flynn, Chief Deputy
Yvonne R. Meré, Chief, Complex Litig.
Matthew D. Goldberg, Deputy
Robb W. Kapla, Deputy
San Francisco City Attorney’s Office
Fox Plaza, 7th Fl, 1390 Market Street
San Francisco, CA 94102
Telephone: (415) 554-4748
Counsel for City and County of S.F. and
The People of the State of California

(Additional counsel on following page)

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Michael Rubin
Barbara J. Chisholm
Rebecca Moryl Lee
Altshuler Berzon LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151

Victor M. Sher
Matthew K. Edling
Sher Edling LLP
100 Montgomery Street, Suite 1410
San Francisco, CA 94104
Telephone: (628) 231-2500

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TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
JURISDICTIONAL STATEMENT ..........................................................................2
ISSUES PRESENTED...............................................................................................2
STATEMENT OF THE CASE..................................................................................3
I.

State Court Proceedings ........................................................................3

II.

Federal Court Proceedings ....................................................................4

STANDARD OF REVIEW .......................................................................................7
SUMMARY OF THE ARGUMENT ........................................................................7
ARGUMENT .............................................................................................................9
I.

The District Court Erred in Denying the Motions To Remand,
Because the People’s Claims Do Not Present a Federal Question .......9
A.

B.

The People’s California public nuisance claims are not
“governed by federal common law.” ........................................10
1.

The district court erred in concluding that the
People’s claims are completely preempted by a
federal common law that provides no rights or
remedies..........................................................................10

2.

To the extent the People’s public nuisance claims
can be characterized as being based on
greenhouse-gas emissions, federal common law
has been entirely displaced by the Clean Air Act. ........14

Defendants’ other asserted grounds for removal
jurisdiction are meritless. ..........................................................18

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II.

III

1.

The CAA does not completely preempt
the People’s California public nuisance claims..............19

2.

The People’s state law claims do not present any
embedded federal questions within the meaning of
Grable. ............................................................................20

3.

There is no basis for federal officer removal. ................23

4.

There is no basis for OCSLA removal. ..........................23

5.

There is no basis for federal enclave jurisdiction...........25

6

There is no basis for bankruptcy jurisdiction .................26

7.

There is no basis for Defendants’ untimely
assertion of federal admiralty jurisdiction......................28

The District Court Erred in Granting Defendants’
Rule 12(b)(6) Motions to Dismiss.......................................................29
A.

The district court erred in finding no CAA displacement,
given its characterization of the People’s claims as
seeking to regulate greenhouse-gas emissions ........................30

B.

The district court erred in its repeated assertion that the
People’s public nuisance claims seek to regulate
greenhouse-gas emissions.........................................................32

C.

The People’s state law claims are not preempted by federal
common law or the CAA. .........................................................34

D.

The People’s state law claims cannot be dismissed as
extraterritorial or as unduly intruding upon foreign policy. .....42

The District Court Erred in Declining to Exercise Specific
Personal Jurisdiction Over Defendants ExxonMobil, BP,
Royal Dutch Shell, and ConocoPhillips..............................................47
A.

The People satisfied the first and second prongs......................50
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B.

Defendants cannot satisfy the third prong ...............................57

C.

Personal jurisdiction may, in the alternative, be based on
Defendants’ nationwide contacts ..............................................58

CONCLUSION........................................................................................................59
STATUTORY ADDENDUM .................................................................................61
Cal. Const. art. XI, §7. Counties and cities; ordinances and regulations;
authority...............................................................................................62
Cal. Civ. Code §3479. Nuisance; what constitutes. .....................................62
Cal. Civ. Code §3480. Public nuisance. .......................................................62
Cal. Civ. Code §3491. Remedies; public. ....................................................62
Cal. Civ. Code §3494. Abatement; parties authorized .................................62
Cal. Civ. Proc. Code §410.10. Basis. ...........................................................62
Cal. Civ. Proc. Code §731. Nuisance; action to abate, damages; parties
authorized to sue; public nuisance. .....................................................63
28 U.S.C. §1291. Final decisions of district courts......................................63
28 U.S.C. §1331. Federal question...............................................................63
28 U.S.C. §1333. Admiralty, maritime and prize cases. ..............................63
28 U.S.C. §1334. Bankruptcy cases and proceedings. .................................64
28 U.S.C. §1441. Removal of civil actions. .................................................65
28 U.S.C. §1442. Federal officers or agencies sued or prosecuted..............67
28 U.S.C. §1452. Removal of claims related to bankruptcy cases. .............68
42 U.S.C. §7401. Congressional findings and declaration of purpose.........68
42 U.S.C. §7604. Citizen suits......................................................................69
43 U.S.C. § 1349. Citizens suits, jurisdiction and judicial review................73
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46 U.S.C. §30101. Extension of jurisdiction to cases of damage or
injury on land.......................................................................................75
STATEMENT OF RELATED CASES ...................................................................77
CERTIFICATE OF COMPLIANCE.......................................................................78
CERTIFICATE OF SERVICE ................................................................................79

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TABLE OF AUTHORITIES
Federal Court Cases
Ajuba Int’l, L.L.C. v. Saharia,
871 F.Supp.2d 671 (E.D. Mich. 2012) ................................................................43
Alvares v. Erickson,
514 F.2d 156 (9th Cir. 1975) disapp’d on other grounds by
Local 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581 (1993) .......26
Am. Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011) ..................................................................................... passim
Am. Fuel & Petrochemical Mfrs. v. O’Keeffe,
903 F.3d 903 (9th Cir. 2018) ...............................................................................39
Am. Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003) ............................................................................................47
ARCO Envtl. Remediation, LLC v. Dept. of Health & Envtl. Quality,
213 F.3d 1108 (9th Cir. 2000) .............................................................................28
Asahi Metal Industry Co. v. Superior Ct.,
480 U.S. 102 (1987) ............................................................................................50
Ballard v. Savage,
65 F.3d 1495 (9th Cir. 1995) ...............................................................................54
Beneficial Nat’l Bank v. Anderson,
539 U.S. 1 (2003) ......................................................................................... 11, 13
Boyle v. United Techs. Corp.,
487 U.S. 500 (1988) ............................................................................................37
Brainerd v. Governors of the Univ. of Alta.,
873 F.2d 1257 (9th Cir. 1989) .............................................................................51
Brayton Purcell LLP v. Recordon & Recordon,
606 F.3d 1124 (9th Cir. 2010) ...................................................................... 48, 52
Bristol-Myers Squibb Co. v. Superior Ct.,
137 S.Ct. 1773 (2017)............................................................................. 49, 56, 57

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Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985) ............................................................................... 50, 54, 55
Calder v. Jones,
465 U.S. 783 (1984) ............................................................................................55
Cal. Shock Trauma Air Rescue v. State Comp. Ins. Fund,
636 F.3d 538 (2011) .............................................................................................21
Caterpillar, Inc. v. Williams,
482 U.S. 386 (1987) ............................................................................... 10, 11, 22
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) .............................................................................................16
City & Cty. of S.F. v. PG&E Corp.,
433 F.3d 1115 (9th Cir. 2006) .............................................................................27
City of Philadelphia v. Lead Indus. Ass’n, Inc.,
994 F.2d 112 (3d Cir. 1993) ................................................................................40
Coal. for Competitive Elec. v. Zibelman,
272 F.Supp.3d 554 (S.D.N.Y. 2017), aff’d, 906 F.3d 41 (2d Cir. 2018) ............40
CollegeSource, Inc. v. AcademyOne, Inc.,
653 F.3d 1066 (9th Cir. 2011) ...............................................................................7
Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc.,
106 F.3d 284 (1997), rev’d on other grounds, 523 U.S. 340 (1998). .................52
Connecticut v. Am. Elec. Power Co.,
582 F.3d 309 (2d Cir. 2009) ................................................................................38
Coronel v. AK Victory,
1 F.Supp.3d 1175 (W.D. Wash. 2014) ................................................................29
County of San Mateo, et al. v. Chevron Corp., et al.,
9th Cir. Nos. 18-15499, 18-15502, 18-15503 .............................................. passim
Doe v. Am. Nat. Red Cross,
112 F.3d 1048 (9th Cir. 1977) .............................................................................53
Doe v. Nestle, S.A.,
906 F.3d 1120 (9th Cir. 2018) .............................................................................45
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Dubose v. Bristol-Myers Squibb Co.,
No. 17-cv-00244, 2017 WL 2775034 (N.D. Cal. Sept. 27, 2017) ......................56
Durham v. Lockheed Martin Corp.,
445 F.3d 1247 (9th Cir. 2006) .............................................................................26
Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr.,
463 U.S. 1 (1983) ......................................................................................... 11, 21
Freestream Aircraft Ltd. v. Aero Law Group,
905 F.3d 597 (9th. Cir. 2018) ....................................................................... 48, 58
Gingery v. City of Glendale,
831 F.3d 1222 (9th Cir. 2016) .............................................................................22
Goodyear Dunlop Tires Ops. v. Brown,
564 U.S 915 (2011) .............................................................................................51
Grable & Sons Metal Products, Inc. v. Darue Engineering &
Manufacturing,
545 U.S. 308 (2005) ..................................................................................... 20, 21
Gunn v. Minton,
568 U.S. 251 (2013) ..................................................................................... 20, 21
Haisten v. Grass Valley Med. Reimbursement Fund, Ltd.,
784 F.2d 1392 (9th Cir. 1986) ...................................................................... 55, 58
Hamilton Materials, Inc. v. Dow Chem. Corp.,
494 F.3d 1203 (9th Cir. 2007) ...............................................................................7
Hansen v. Group Health Coop.,
902 F.3d 1051 (9th Cir. 2018) ................................................................ 11, 12, 13
Harris v. Polskie Linie Lotnicze,
820 F.2d 1000 (9th Cir. 1987) .............................................................................44
Hart v. Bayer Corp.,
199 F.3d 239 (5th Cir. 2000) ...............................................................................12
Hunter v. United Van Lines,
746 F.2d 635 (9th Cir. 1984) ........................................................................ 11, 12
Illinois v. City of Milwaukee,
406 U.S. 91 (1972) ....................................................................................... 13, 39
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In re Agent Orange Prod. Liab. Litig.,
635 F.2d 987 (2d Cir. 1980) ......................................................................... 39, 43
In re Deepwater Horizon,
745 F.3d 157 (5th Cir. 2014) ...............................................................................25
In re High-Tech Empl. Antitrust Litig.,
856 F.Supp.2d 1103 (N.D. Cal. 2012).................................................................26
In re NOS Comm’ns, MDL,
No. 1357, 495 F.3d 1052 (9th Cir. 2007) ............................................................20
In re Universal Life Church,
128 F.3d 1294 (9th Cir. 1997) .............................................................................27
In re W. States Wholesale Nat. Gas Antitrust Litig.,
715 F.3d 716 (9th Cir. 2013) .................................................................. 49, 53, 57
Int’l Paper Co. v. Ouellette,
479 U.S. 481 (1987) ............................................................................... 15, 31, 39
Jackson v. Johns-Manville Sales Corp.,
750 F.2d 1314 (5th Cir. 1985) .............................................................................39
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U.S. 527 (1995) ............................................................................................29
Keeton v. Hustler Magazine, Inc.,
465 U.S. 770 (1984) ............................................................................................56
Kiobel v. Royal Dutch Petroleum Co.,
569 U.S. 108 (2013) ..................................................................................... 42, 43
Lockyer v. Mirant Corp.,
398 F.3d 1098 (9th Cir. 2005) .............................................................................27
Marsh v. Rosenbloom,
499 F.3d 165, 182 (2d Cir. 2007) ........................................................................38
Massachusetts v. EPA,
549 U.S. 497 (2007) ............................................................................................39
Mavrix Photo, Inc. v. Brand Techs., Inc.,
647 F.3d 1218 (9th Cir. 2011) .............................................................................57
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Medellin v. Texas,
552 U.S. 491 (2008) ............................................................................................47
Medtronic, Inc. v. Lohr,
518 U.S. 470 (1996) ............................................................................................34
Metro. Life Ins. v. Taylor,
481 U.S. 58 (1987) ...............................................................................................22
Michigan v. U.S. Army Corps of Engineers,
667 F.3d 765 (7th Cir. 2011) ...............................................................................14
Morris v. Princess Cruises, Inc.,
236 F.3d 1061 (9th Cir. 2001) .............................................................................29
Morrison v. Nat’l Australia Bank Ltd.,
561 U.S. 247 (2010) ............................................................................................44
Mujica v. AirScan, Inc.,
771 F.3d 580 (9th Cir. 2014) ...............................................................................45
Myhran v. Johns-Manville Corp.,
741 F.2d 1119 (9th Cir. 1984) .............................................................................29
Nat’l Audubon Soc. v. Dep’t of Water,
869 F.2d 1196 (9th Cir. 1988) .............................................................................39
Native Village of Kivalina v. ExxonMobil Corp.,
696 F.3d 849 (9th Cir. 2012),
cert. denied, 133 S.Ct. 2390 (2013) .................................................. 16, 17, 18, 33
Nevada v. Bank of Am. Corp.,
672 F.3d 661 (9th Cir. 2012) ...............................................................................10
Nevada v. Culverwell,
890 F.Supp. 933 (D. Nev. 1995) .........................................................................22
New Jersey v. City of New York,
283 U.S. 473 (1931) ............................................................................................44
O’Halloran v. Univ. of Wash.,
856 F.2d 1375 (9th Cir. 1988) .............................................................................28
O’Melveny & Myers v. FDIC,
512 U.S. 79 (1994) ................................................................................. 36, 37, 38
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OBB Personenverkehr AG v. Sachs,
136 S.Ct. 390 (2015)............................................................................................44
Ochoa v. J.B. Martin and Sons Farms, Inc.,
287 F.3d 1182 (9th Cir. 2002) .............................................................................58
Omeluk v. Langsten Slip & Batbyggeri A/S,
52 F.3d 267 (9th Cir. 1995) .................................................................................53
Oxygenated Fuels Ass’n v. Davis,
331 F.3d 665 (9th Cir. 2003) ...............................................................................19
Pakootas v. Teck Cominco Metals, Ltd.,
905 F.3d 565 (9th Cir. 2018) ........................................................................ 54, 55
Par. of Plaquemines v. Total Petrochem. & Ref. USA, Inc.,
64 F.Supp.3d 872 (E.D. La. 2014) ......................................................................24
Pebble Beach Co. v. Caddy,
453 F.3d 1151 (9th Cir. 2006) .............................................................................59
Plains Gas Sols., LLC v. Tennessee Gas Pipeline Co., LLC,
46 F.Supp.3d 701 (S.D. Tex. 2014).....................................................................25
Provincial Gov’t of Marinduque v. Placer Dome, Inc.,
582 F.3d 1083 (9th Cir. 2009) .............................................................................10
Puri v. Khalsa,
844 F.3d 1152 (9th Cir. 2017) ...............................................................................7
RJR Nabisco, Inc. v. European Community,
136 S.Ct. 2090 (2016)..........................................................................................44
Rocky Mtn. Farmers Union v. Corey,
730 F.3d 1070 (9th Cir. 2013) .............................................................................40
San Mateo Cty. v. Chevron Corp.,
294 F.Supp.3d 934 (N.D. Cal. 2018)....................................................................23
Schmeling v. NORDAM,
97 F.3d 1336 (10th Cir. 1996) .............................................................................12
Schwarzenegger v. Fred Martin Motor Co.,
374 F.3d 797 (9th Cir. 2004) ................................................................. 48, 50, 54
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Shulthis v. McDougal,
225 U.S. 561 (1912) ............................................................................................21
Shute v. Carnival Cruise Lines,
897 F.2d 377 (9th Cir. 1990), rev’d on other grounds,
499 U.S. 585 (1991) .............................................................................................49
Silkwood v. Kerr-McGee Corp.,
464 U.S. 238 (1984) ............................................................................................34
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) ............................................................................................42
Birke v. Oakwood Worldwide,
169 Cal.App.4th 1540 (2009)..............................................................................36
City of Lodi v. Randtron,
118 Cal.App.4th 337 (2004)................................................................................19
City of Modesto Redev. Agency v. Superior Ct.,
119 Cal.App.4th 28 (2004)..................................................................................36
City of Modesto v. Dow Chem. Co.,
19 Cal.App.5th 130 (2018)..................................................................................35
Cty. of Santa Clara v. Atlantic Richfield Co.,
137 Cal.App.4th 292 (2006)......................................................................... 24, 32
Eaton v. Klimm,
217 Cal. 362 (1933).............................................................................................35
Fibreboard Paper Prods. Corp. v. East Bay Union of Machinists,
227 Cal.App.2d 675 (1964) .................................................................................36
Harbor Fumigation, Inc. v. Cty. of San Diego Air Pollution Control Dist.,
43 Cal.App.4th 854 (1996)..................................................................................46
Newhall Land & Farming Co. v. Superior Ct.,
19 Cal.App.4th 334 (1993)..................................................................................36
Li v. Yellow Cab Co.,
13 Cal.3d 804 (1975)...........................................................................................43
People ex rel. Gallo v. Acuna,
14 Cal.4th 1090 (1997)....................................................................... 3, 27, 35, 43
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People v. City of Los Angeles,
83 Cal.App.2d 627 (1948) ...................................................................................36
People v. ConAgra Grocery Prods. Co.,
17 Cal.App.5th 51 (2017), review denied (2018),
cert. denied, 139 S.Ct. 377 (2018) ............................................................... passim
People v. Gold Run Ditch & Mining Co.,
66 Cal. 138 (1884)...............................................................................................36
People v. Mason,
124 Cal.App.3d 348 (1981) .................................................................................36
Rutherford v. Owens-Illinois, Inc.,
16 Cal.4th 953 (1997)..........................................................................................53
South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd.,
61 Cal.4th 291 (2015)..........................................................................................53
Venuto v. Owens-Corning Fiberglass Corp.,
22 Cal.App.3d 116 (1971) ...................................................................................36
State ex rel Wilson v. Superior Ct.,
227 Cal.App.4th 579 (2014)................................................................................57
Stillaguamish Tribe v. Washington,
913 F.3d 1116 (9th Cir. 2019) .............................................................................11
Stutes v. Gulfport Energy Corp.,
No. 6:16-cv-01253, 2017 WL 4286846 (W.D. La. June 30, 2017),
rep. & rec. adopted, 2017 WL 4274353 (W.D. La. Sept. 26, 2017) ...................25
Sullivan v. American Airlines, Inc.,
424 F.3d 267 (2d Cir. 2005) ......................................................................... 12, 14
Syngenta Crop Prot., Inc. v. Henson,
537 U.S. 28 (2002) ..............................................................................................10
Tex. Indus. v. Radcliff Materials,
451 U.S. 630 (1981) ............................................................................................37
United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth.,
550 U.S. 330 (2007) ............................................................................................34

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United States v. Texas,
507 U.S. 529 (1993) ............................................................................................41
United States v. Yazell,
382 U.S. 341 (1966) ............................................................................................34
Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405 (11th Cir. 1999) .............................................................................10
Walden v. Fiore,
571 U.S. 277 (2014) ..................................................................................... 50, 54
Wallis v. Pan Am. Petroleum Corp.,
384 U.S. 63 (1966) ..............................................................................................37
Washington Shoe Co. v. A-Z Sporting Goods Inc.,
704 F.3d 668 (9th Cir. 2012) ................................................................... 48, 51, 52
Watson v. Philip Morris Cos., Inc.,
551 U.S. 142 (2007) ............................................................................................23
Wayne v. DHL Worldwide Express,
294 F.3d 1179 (9th Cir. 2002) ...................................................................... 12, 13
WesternGeco LLC v. ION Geophysical Corp.,
138 S.Ct. 2129 (2018)..........................................................................................44
Wheeldin v. Wheeler,
373 U.S. 647 (1963) ............................................................................................36
Williams v. Yamaha Motor Co.,
851 F.3d 1015 (9th Cir. 2017) .............................................................................50
Wood v. Crane Co.,
764 F.3d 316 (4th Cir. 2014) ...............................................................................28
Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme,
433 F.3d 1199 (9th Cir. 2006) .......................................................... 48, 49, 50, 57
State Court Cases
Federal Statutory Authorities
15 U.S.C. §7901-7903..............................................................................................41
28 U.S.C. §1291.........................................................................................................2
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28 U.S.C. §1331...................................................................................................2, 25
28 U.S.C. §1333.......................................................................................................28
28 U.S.C. §1334.......................................................................................................26
28 U.S.C. §1350.......................................................................................................42
28 U.S.C. §1441............................................................................................... passim
28 U.S.C. §1442...................................................................................................5, 23
28 U.S.C. §1452............................................................................................ 5, 26, 27
42 U.S.C. §7401.......................................................................................................14
42 U.S.C. §7604.......................................................................................................20
43 U.S.C. §1349............................................................................................ 5, 23, 24
46 U.S.C. §30101.....................................................................................................29
State Statutory Authorities
Cal. Civ. Code §410.10............................................................................................48
Cal. Civ. Code §3479.................................................................................................3
Cal. Civ. Code §3480.................................................................................................3
Cal. Civ. Code §3490.................................................................................................3
Cal. Civ. Code §3491.................................................................................................3
Cal. Civ. Code §3494.................................................................................................3
Cal. Civ. Proc. Code §731 ............................................................................ 3, 19, 26
Federal Rules and Regulations
Fed. R. Civ. P. 4 ................................................................................................ 48, 59
Fed. R. Civ. P. 12............................................................................................. passim
Fed. R. App. P. 28....................................................................................................19
Circuit Rule 28-1.....................................................................................................19

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Constitutional Provisions
Cal. Const.art. XI, §7 ...............................................................................................19
Additional Authorities
Restatement (Second) Conflict of Laws §175 .........................................................44
Restatement (Second) Torts §435............................................................................52
Restatement (Second) Torts §821B .................................................................. 36, 38
Restatement (Second) Torts §826 ...........................................................................38
Restatement (Second) Torts §829A.........................................................................38
Restatement (Second) Torts §840E .........................................................................36

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INTRODUCTION
The People of the State of California, by and through the Oakland and San
Francisco City Attorneys (and later joined by the City of Oakland and the City and
County of San Francisco) (collectively, “the People”), filed these two lawsuits in
California state court, under California public nuisance law, against five of the
world’s largest investor-owned oil and gas companies. See Excerpts of Record
(“ER”) 89, 90-92 ¶¶92, 94; ER159, 160-61 ¶¶92, 94. The People seek equitable
abatement—the only remedy available in a “representative” public nuisance action
brought by California public entities—to mitigate the enormous harms to San
Francisco’s and Oakland’s public infrastructure caused by rising sea levels,
increasingly frequent and severe storms, and other direct consequences of
Defendants’ challenged conduct.
Defendants have known for decades that the continued burning of fossil
fuels would increase global temperatures and cause devastating impacts on coastal
communities like Oakland and San Francisco. Yet they continued to wrongfully
promote the increased, unrestricted use of their products, deliberately concealing
from the People their knowledge of the direct link between fossil-fuel combustion
and the destructive effects of climate change on coastal communities. Defendants’
wrongful conduct makes them liable for contributing to a public nuisance under
long-settled California law. See generally, e.g., People v. ConAgra Grocery
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Prods. Co., 17 Cal.App.5th 51 (2017), review denied (2018), cert. denied, 139
S.Ct. 377 (2018).
After these cases were removed, the federal district court issued the three
orders at issue: (1) denying the People’s motions to remand; (2) granting all five
Defendants’ Rule 12(b)(6) motions to dismiss; and (3) additionally granting four
Defendants’ Rule 12(b)(2) motions to dismiss.
Each of those orders was reversible error. Because the district court lacked
subject matter jurisdiction, though, this Court should reverse on that threshold
ground, leaving further adjudication to the state courts.
JURISDICTIONAL STATEMENT
The district court asserted jurisdiction under 28 U.S.C. §§1331 and 1441(a)
and entered final judgment fully resolving all claims on July 27, 2018. The People
timely filed Notices of Appeal on August 24, 2018. ER50-55; Fed. R. App. P.
4(a)(1)(A). This Court has appellate jurisdiction under 28 U.S.C. §1291.
ISSUES PRESENTED
1. Whether the district court erred in denying the People’s motion to remand
on the ground that their state law claims were “necessarily governed by” (and thus
arose under) “federal [common] law.”
2. Whether the district court erred in dismissing the People’s public
nuisance claims under Rule 12(b)(6) on the ground that adjudication of those
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claims would violate the “presumption against extraterritoriality” and raise
“foreign policy” concerns.
3. Whether the district court erred in declining to exercise specific personal
jurisdiction over four Defendants on the ground that the People did not adequately
allege that those Defendants’ production, sale, and misleading promotion of fossilfuel products was a cause of the challenged public nuisance.
STATEMENT OF THE CASE
State Court Proceedings
The San Francisco and Oakland City Attorneys originally filed these
lawsuits in California state court, each pleading a single claim under California’s
longstanding public nuisance law, which since 1872 has authorized California
public prosecutors to bring “representative actions” for equitable abatement on
behalf of the People of the State of California against those whose conduct is a
substantial cause of a California public nuisance. See Cal. Civ. Code §§3479,
3480, 3491, 3494; Cal. Civ. P. Code §731.1

1

California law defines “public nuisance” as an “obstruction” of public rights
that “affects at the same time an entire community or neighborhood, or any
considerable number of persons ….” Cal. Civ. Code §§3490, 3480; see also id.
§3479. To be actionable, the obstruction must be “substantial and unreasonable,”
meaning it must “cause significant harm.” People ex rel. Gallo v. Acuna, 14
Cal.4th 1090, 1104-05 (1997) (public nuisance injunction against gang activity).
All applicable statutory provisions are set forth in the Addendum.
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The complaints alleged that Defendants have known for decades about the
direct link between fossil-fuel use and climate change, yet intentionally engaged in
a deliberate, coordinated effort to conceal their knowledge from the general public
and local governments; to discredit the growing body of scientific evidence
documenting the catastrophic impacts of fossil-fuel-triggered climate change
(particularly on coastal communities whose infrastructures are most susceptible to
the destructive impacts of rising sea levels); and to wrongfully promote the
expanded use of their products without providing timely or effective warnings
about the direct link between fossil-fuel combustion and climate change (warnings
that could have mitigated the severe harms to local infrastructure that San
Francisco and Oakland now face). ER89-114 ¶¶92-136; ER159-180 ¶¶92-136.
The People’s complaints expressly disclaimed any intent to regulate or to impose
liability on Defendants based on their greenhouse-gas emissions or to obtain any
remedy other than an order requiring Defendants to bear the costs of abating the
localized impacts of their wrongful conduct. ER62 ¶11; ER115-117 ¶¶137-147;
see also ER118 ¶2; ER134 ¶11; ER180-183 ¶¶137-147; ER184 ¶2.
Federal Court Proceedings
Defendants removed these cases on October 20, 2017. ER203, 239. Four of
the seven asserted grounds for removal rested on 28 U.S.C. §1441(a) and
Defendants’ contention that the People’s state law public nuisance law claims
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“arose under” federal law. ER206-208 ¶¶5-7, 10; ER242-244 ¶¶5-7, 10.
Defendants alternatively asserted removal jurisdiction under the Outer Continental
Shelf Lands Act, 43 U.S.C. §1349(b) (“OCSLA”); the federal officer removal
statute, 28 U.S.C. §1442(a)(1); and the federal bankruptcy statute, 28 U.S.C.
§1452(a). ER207-208 ¶¶8, 9, 11; ER243-244 ¶¶8, 9, 11.
On February 27, 2018, the district court denied the People’s motions to
remand, concluding that “Plaintiffs’ nuisance claims—which address the national
and international geophysical phenomenon of global warming—are necessarily
governed by federal common law.” ER29.2 The court did not state whether its
ruling rested on a finding of “preemption,” “complete preemption,” or some other
theory, and gave no indication of what the scope or content of that governing
federal common law might be. Nor did it address any of Defendants’ other
asserted grounds for removal. See generally ER27-35.
In response, the People amended their complaints “to conform to the Court’s
ruling” by adding a claim for public nuisance under federal common law, while
“reserv[ing] all rights with respect to whether jurisdiction is proper in federal
court.” ER62-63 ¶12; ER134 ¶12.

2

Because the district court entered identical orders in both cases, the People
have included only one copy of each order in the Excerpts of Record.
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On June 25, 2018, the court granted Defendants’ motions to dismiss for
failure to state a claim, concluding that although it had denied the People’s remand
motions on the ground that federal common law governed, no rights or remedies
were actually made available by that federal common law. ER11-26.
Characterizing the People’s claims as an unbounded attempt to regulate worldwide
greenhouse-gas emissions (despite the express disclaimers and narrowly targeted
focus of the People’s public nuisance claims), the court ruled that to allow the
People to seek equitable abatement of the localized harms caused by Defendants’
wrongful conduct would impermissibly violate a presumption against giving U.S.
laws “extraterritorial” effect and would “effectively allow plaintiffs to govern
conduct and control energy policy on foreign soil.” ER20-21.
On July 27, 2018, the court granted four Defendants’ motions to dismiss for
lack of personal jurisdiction as well. ER3-10.3 Despite acknowledging those
Defendants’ concession that they had sufficient contacts with California to satisfy
the “purposeful direction” prong of specific-personal-jurisdiction analysis, the
court ruled that the People’s jurisdictional allegations failed to establish a sufficient
causal link between the People’s public nuisance claim and Defendants’
challenged conduct. To satisfy that requirement, the court concluded, the People

3

Defendant Chevron, headquartered in the Northern District of California, did
not move to dismiss on this ground. ER4.
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had to show that each Defendant’s activities “in California” was the but-for cause
of the People’s entire claimed injury, an erroneous legal standard that would be
impossible to meet in any representative public nuisance action against multiple
defendants. ER7-8.
STANDARD OF REVIEW
This Court reviews de novo: (1) a denial of a motion to remand, Hamilton
Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007); (2) a
“dismissal for failure to state a claim upon which relief can be granted, …
accept[ing] as true all well-pleaded allegations of material fact and constru[ing]
them in the light most favorable to the plaintiffs,” Puri v. Khalsa, 844 F.3d 1152,
1157 (9th Cir. 2017); and (3) a dismissal for lack of personal jurisdiction,
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011).
SUMMARY OF THE ARGUMENT
The district court’s orders lead to anomalous and unprecedented results, and
each constitutes reversible error.
For purposes of federal subject matter jurisdiction, the court concluded that
the People’s public nuisance claims, although pleaded exclusively under California
state law, were “necessarily governed by federal common law” and thus belonged
in federal court as federal common law claims. In later ruling on Defendants’
motions to dismiss, though, the court concluded that this “govern[ing]” federal
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common law actually provided no actionable rights or remedies, and it therefore
dismissed the People’s cases with prejudice.
The court got it doubly wrong. First, it erred by failing to remand the
People’s well-pleaded state law claims to state court in the absence of complete
preemption (or any alternative basis for removal). Under the “complete
preemption” doctrine, a federal preemption defense cannot support federal removal
jurisdiction, unless: (1) Congress’s intent to preempt state law in its entirety is
clear and manifest, and (2) federal law provides an independent source of rights
and remedies—neither of which is true here.
Second, the court compounded its error by dismissing the People’s claims.
Both of its principal grounds for dismissal—the supposedly “extraterritorial” reach
of the People’s legal challenge and the interference with “foreign policy” that such
extraterritorial reach would require—rested on a mischaracterization of the
People’s public nuisance claims. The People’s Complaints do not challenge
Defendant’s greenhouse-gas emissions, “worldwide” or domestic, and do not seek
to enjoin or regulate any company’s (or country’s) emissions.
Finally, the court erred in declining to exercise specific personal jurisdiction
over the four out-of-state Defendants. The court concluded that even though
Defendants conceded for purpose of personal jurisdiction that they had
purposefully directed their climate-change-related conduct at California knowing
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the harm to public infrastructure that would inevitably result, the People’s
complaints did not allege a sufficient but-for causal relationship between each
Defendant’s conduct in California and the full extent of the resulting harms—a test
that no court has previously required as a condition for exercising personal
jurisdiction. The district court instead should have asked whether the People’s
complaints adequately allege that Defendants purposefully directed acts at
California that caused the type of harms that Defendants knew would likely be
suffered in California, and if so, whether a direct nexus existed between those acts
and the People’s public nuisances claims. Under that standard, the court surely had
personal jurisdiction.
Accordingly, this Court should either (1) reverse the judgment in its entirety
based on the district court’s erroneous refusal to remand, without reaching the
other issues; or (2) if federal subject matter jurisdiction exists, reverse the Rule
12(b)(6) and 12(b)(2) dismissal orders and remand for further proceedings against
all Defendants.
ARGUMENT
The District Court Erred in Denying the Motions To Remand,
Because the People’s Claims Do Not Present a Federal Question.
The district court concluded that it had original “arising under” jurisdiction
because the People’s representative public nuisance claims were “necessarily

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governed by federal common law.” ER29. That conclusion is contrary to the wellpleaded complaint rule and decades of consistent case precedent.
A. The People’s California public nuisance claims are not
“governed by federal common law.”
It is axiomatic that the removal statute, 28 U.S.C. §1441, must be “strictly
construed against removal jurisdiction.” Provincial Gov’t of Marinduque v. Placer
Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). Because “removal jurisdiction
raises significant federalism concerns,” “all doubts about jurisdiction should be
resolved in favor of remand to state court” to avoid “depriv[ing] a state court of its
right under the Constitution” to resolve state law disputes “in its own courts.”
Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999); see
Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002). Particularly when a
public entity sues to enforce state law in state court, as here, the “claim of
sovereign protection from removal arises in its most powerful form,” and only “an
overriding federal interest” can justify removal. Nevada v. Bank of Am. Corp., 672
F.3d 661, 676 (9th Cir. 2012) (citation omitted).
1. The district court erred in concluding that the People’s
claims are completely preempted by a federal common law
that provides no rights or remedies.
The well-pleaded complaint rule makes plaintiffs the “master[s] of the[ir]
claim,” who “may avoid federal jurisdiction by exclusive reliance on state law.”
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); see Franchise Tax Bd. v.
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Constr. Laborers Vacation Tr., 463 U.S. 1, 9-10 (1983). Under this rule, “federal
jurisdiction exists only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at 392. “[A] case
may not be removed to federal court on the basis of a federal defense, including the
defense of pre-emption, even if the defense is anticipated in the plaintiff’s
complaint, and even if both parties concede that the federal defense is the only
question truly at issue.” Id. at 393; accord, Stillaguamish Tribe v. Washington,
913 F.3d 1116, 1118-19 (9th Cir. 2019) (rejecting “federal common law” defense
of tribal sovereign immunity as a basis for federal question jurisdiction).
The sole exception to the well-pleaded complaint rule arises in the “rare”
case of “complete preemption,” where “federal law not only preempts a state law
cause of action, but also substitutes an exclusive federal cause of action in its
place.” Hansen v. Group Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018) (and
cases cited); see Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003); see also
id. at 12-17 (Scalia, J., dissenting). When a federal law arguably eliminates a state
law claim without substituting rights and remedies of its own, that federal law
provides at most a preemption defense, but cannot provide a complete-preemption
ground for removal. See, e.g., Hunter v. United Van Lines, 746 F.2d 635, 642-43
(9th Cir. 1984) (“removal is improper when federal law simply displaces state law
without replacing the state cause of action with a federal one”). As the Second
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Circuit held in Sullivan v. American Airlines, Inc., 424 F.3d 267, 276 (2d Cir.
2005), a federal court may not “allow[] removal … on complete-preemption
grounds,” only to later dismiss based on the absence of any federal law claim.
“[T]he district court must have jurisdiction for removal to be proper, but [if] the
court must then dismiss the removed case” for want of a federal cause of action,
removal under the complete preemption doctrine was improper in the first place.
Id.
The district court’s order denying remand never mentions “complete
preemption” (or even “preemption”). See ER27-35. While its statement that
federal common law “necessarily governs” may suggest that federal common law
“completely preempts” the People’s state law public nuisance claims, there can be
no complete preemption by a federal law that provides no alternative cause of
action. Hansen, 902 F.3d at 1057; Hunter, 746 F.2d at 642-43; Wayne v. DHL
Worldwide Express, 294 F.3d 1179, 1184 (9th Cir. 2002). That is why the correct
order of analysis on a motion to remand must be to determine, first, whether a
particular federal cause of action is available, and only then to determine whether
Congress intended that federal law to completely preempt the state law claim.
Hart v. Bayer Corp., 199 F.3d 239, 244 (5th Cir. 2000); Schmeling v. NORDAM,
97 F.3d 1336, 1343-45 (10th Cir. 1996); see also Hansen, 902 F.3d at 1058;

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Wayne, 294 F.3d at 1184. Had the district court followed that required approach, it
could not have found complete preemption.
In fact, the district court did not conduct any complete-preemption analysis.
Without discussion, it concluded that the People’s claims were necessarily
“governed by federal common law” because “claims for public nuisance, though
pleaded as state-law claims, depend on a global complex of geophysical cause and
effect” that require application of federal law to fairly “apportion[] responsibility.”
ER34. The court was wrong to conclude that a new body of federal common law
is required to govern public nuisance cases like this. See infra at 34-42. But that
makes no difference at the threshold jurisdictional stage, because if the district
court were correct that the “governing” federal common law did not confer any
rights or remedies on California public entities seeking to mitigate the harm to
local infrastructure caused by Defendants’ challenged conduct, that federal
common law could not have provided a basis for complete-preemption removal
jurisdiction.
Without an actionable federal right and remedy, there can be no complete
preemption; and where there is no complete preemption (or an independent ground
for federal subject matter jurisdiction, see infra at 18-30), remand is required.
Beneficial Nat’l Bank, 539 U.S. at 8; Hansen, 902 F.3d at 1058; cf. Illinois v. City
of Milwaukee, 406 U.S. 91, 103 (1972) (“Milwaukee I”) (federal common law,
13

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rather than state common law, is only available for claims seeking abatement of
interstate pollution controls if “federal remedies” have not been displaced).4
2. To the extent the People’s public nuisance claims can be
characterized as being based on greenhouse-gas emissions,
federal common law has been entirely displaced by the
Clean Air Act.
Central to the district court’s analysis in its first two orders was its incorrect
assertion that the People’s public nuisance claims ultimately seek to regulate
greenhouse-gas emissions. See, e.g., ER19, 25, 30-31. The People vigorously
dispute that assertion for the reasons explained infra at 32-34. But to the extent the
district court’s identification of the “governing” federal common law rested on that
mischaracterization, the court also erred by failing to apply the Supreme Court’s
and this Court’s rulings that the federal common law governing greenhouse-gas
emissions has been entirely displaced by the Clean Air Act, 42 U.S.C. §§7401 et
seq. (“CAA”)—which prevents that federal common law from providing a basis
for “complete preemption” removal. See Am. Elec. Power Co. v. Connecticut

4

The same logical flaw undermines the district court’s statement that “federal
common law jurisdiction” existed because the “instrumentality of plaintiffs’
alleged injury” was “the navigable waters of the United States.” See ER34. The
court did not explain how a federal navigable-waters claim could completely
preempt the People’s state law public nuisance claim; and the sole case it cited,
Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765 (7th Cir. 2011), did not
address whether federal common law completely preempted any state law public
nuisance claim involving navigable waters because the plaintiffs had filed their
lawsuit in federal court alleging federal causes of action only. See id. at 768-69.
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(“AEP”), 564 U.S. 410, 423 (2011) (“federal common law claim[s] for curtailment
of greenhouse gas emissions because of their contribution to global warming” have
been “displaced by the federal legislation authorizing EPA to regulate carbondioxide emissions” under the CAA).
In AEP, eight states sued several major electric power companies in federal
court, alleging that the companies’ greenhouse-gas emissions violated the federal
common law or, in the alternative, state tort law. Id. at 418. The Supreme Court
concluded that the federal common law underlying the states’ claims had been
displaced by the CAA. Id. at 423. Because Congress, through the CAA, had
spoken directly “to emissions of carbon dioxide,” the Court concluded that the
CAA “displace[d] any federal common law right to seek abatement of carbondioxide emissions.” Id. at 424.
The Supreme Court in AEP expressly chose not to invalidate the plaintiffs’
state-law nuisance claims, even after concluding that the plaintiffs’ federal
common law nuisance claims were displaced by the CAA, explaining that “[i]n
light of our holding that the Clean Air Act displaces federal common law, the
availability vel non of a state lawsuit depends, inter alia, on the preemptive effect
of the federal Act.” Id. at 429 (citing Int’l Paper Co. v. Ouellette, 479 U.S. 481,
489, 491, 497 (1987)). As the Court made clear, a far more specific expression of
congressional intent is required to “preempt” state law than to “displace” any
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federal common law (which is a judicial construct created to regulate federal
interests in the absence of federal statutory authority). See AEP, 564 U.S. at 423
(citing City of Milwaukee v. Illinois (“Milwaukee II”), 451 U.S. 304, 314 (1981)).
In Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir.
2012), cert. denied, 133 S.Ct. 2390 (2013), this Court followed AEP in holding that
the CAA entirely displaced the plaintiffs’ federal common law claim for abatement
of the localized effects of climate change. In Kivalina, two public entities asserted
state and federal common law public nuisance claims against various oil and gas
companies. The district court dismissed the state law claims without prejudice,
eliminating those state law claims as an issue on appeal. Id. at 853. Consistent
with AEP, this Court concluded that the public entities’ remaining federal public
nuisance claims (alleging that the oil and gas company defendants had emitted
“massive amounts of greenhouse gases that contribute to global warming which, in
turn, has severely eroded the land where the [public entities] sit[],” thereby
“threaten[ing them] with imminent destruction”) had been displaced by the CAA
and thus could not support plaintiffs’ federal common law claim for relief.
Id. at 853, 856-58; id. at 858 (Pro, J., concurring).
While that holding fully disposed of the Kivalina plaintiffs’ federal common
law claims (because the scope of CAA displacement was co-extensive with the
scope of the otherwise applicable federal common law), it left plaintiffs’ state-law
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claims untouched, for as the concurring judge noted, AEP provides that “[o]nce
federal common law is displaced, state nuisance law becomes an available option
to the extent it is not preempted by federal law.” Id. at 866 (Pro, J., concurring);
see AEP, 564 U.S. at 424.
Thus, even under the district court’s mistaken belief that these cases seek to
regulate emissions, AEP and Kivalina preclude any finding of complete
preemption: the federal common law concerning regulation of emissions cannot be
completely preemptive, because it has been displaced by statute.
The district court sought to distinguish Kivalina on the ground that the
People’s “claims here attack behavior worldwide,” while the claims in Kivalina
allegedly “sought only to reach domestic conduct.” ER33. That mischaracterizes
the facts of Kivalina and this Court’s analysis, which did not distinguish between
the defendants’ foreign and domestic practices. Plaintiffs in Kivalina “attribute[d]
the impending destruction of [their] land to the effects of global warming, which
[they] allege[d] results in part from emissions of large quantities of greenhouse
gases by the Energy Producers” and that in turn caused global-warming induced
“sea level[] rise,” without regard to where the fossil fuels were extracted or burned.
696 F.3d at 853-54. Those plaintiffs further alleged that defendants, “as substantial
contributors to global warming, [were] responsible for [the entities’] injuries,”

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because their “emissions of carbon dioxide and other greenhouse gases, by
contributing to global warming,” had created a public nuisance. Id. at 854.
In Kivalina, then, the public entity plaintiffs sought to abate the localized
consequences of the defendants’ worldwide contributions to climate change.
Accordingly, this Court’s conclusion in Kivalina—that the CAA (in which
Congress decided which emissions to regulate, and how) displaced any federal
common law that might otherwise be applicable to those emissions—should have
precluded the district court’s conclusion here that, to the extent these are
“emissions” cases, they “arise” under federal common law.5
B. Defendants’ other asserted grounds for removal jurisdiction are
meritless.
The district court’s denial of the People’s motions to remand rested upon its
erroneous conclusion that the People’s state public nuisance claims were
“governed by federal common law.” ER34. The court did not reach any of the
Defendants’ other asserted grounds for removal. However, for the reasons stated
by the Plaintiffs-Appellants in County of San Mateo, et al. v. Chevron Corp., et al.,
9th Cir. Nos. 18-15499, 18-15502, and 18-15503 (AOB, Jan. 22, 2019) (“Dkt.

5

See also infra at 32-42 (explaining why, because these are not “emissions”
cases, no federal common law has ever applied to the types of public nuisance
claims alleged by the People and why, even if any such federal common law
existed, it would not preempt those claims).
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88”)—which arguments the People hereby incorporate by reference6—none of
those additional grounds permits the exercise of federal subject matter jurisdiction
either.
1. The CAA does not completely preempt the People’s
California public nuisance claims.
Defendants contended in their Notices of Removal that the CAA “provide[s]
an exclusive federal remedy for plaintiffs seeking stricter regulation of the
nationwide and worldwide greenhouse gas emissions put at issue in the
Complaint.” ER207, 243. The People do not seek any such regulatory remedy in
these actions and, indeed, lack statutory authority to seek any remedy that extends
beyond their jurisdictions. See Cal. Civ. P. Code §731; Cal. Const. art. XI, §7; City
of Lodi v. Randtron, 118 Cal.App.4th 337, 352 (2004). For removal jurisdiction,
though, it makes no difference. Even if Defendants’ characterization were
accurate, the CAA expressly preserves the states’ traditional police power to
regulate air pollution, see Oxygenated Fuels Ass’n v. Davis, 331 F.3d 665, 670-71
(9th Cir. 2003), and its saving clause plainly states that “nothing in” the chapter

6

Fed. R. App. P. 28(i) expressly permits incorporation of arguments in
“consolidated” cases, while Circuit Rule 28-1(b) prohibits incorporation of
arguments from “prior appeals.” Neither rule addresses the present situation, in
which one set of California public entities seek to incorporate by reference legal
arguments made by other California public entities in a pending appeal that raises
identical subject matter jurisdiction challenges involving substantially similar
complaints. To avoid unnecessary duplication of briefing or a request to exceed
the applicable word limits, the People therefore request this incorporation.
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governing citizen suits “shall restrict any right which any person (or class of
persons) may have under any statute or common law to seek enforcement of any
emission standard or limitation or to seek any other relief.” 42 U.S.C. §7604(e).
There can be no “complete preemption” by a federal statute that preserves existing
state law claims and does not replace them with an available federal cause of
action. See supra at 10-14; see also Dkt. 88 at 33-38; In re NOS Comm’ns, MDL
No. 1357, 495 F.3d 1052, 1058 (9th Cir. 2007).
2. The People’s state law claims do not present any embedded
federal questions within the meaning of Grable.
Defendants next asserted that the People’s public nuisance claims implicate
federal questions concerning “national energy, economic development, and federal
environmental protection and regulatory policies” and that any remedy should be
limited to those provided by “other federal statutes and the United States
Constitution” under Grable & Sons Metal Products, Inc. v. Darue Engineering &
Manufacturing, 545 U.S. 308 (2005). ER207, ER213-214 ¶¶7, 22, 24; ER243,
ER250-251 ¶¶7, 22, 24. None of these assertions of embedded federal law justifies
removal. See Dkt. 88 at 38-47.
Only in a “‘special and small’ category of cases” may federal question
jurisdiction be exercised over a state law claim on the theory that the claim “really
and substantially involv[es] a dispute or controversy respecting the validity,
construction or effect of [federal] law” under Grable. Gunn v. Minton, 568 U.S.
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251, 258 (2013) (quoting Empire Healthchoice Assurance v. McVeigh, 547 U.S.
677, 699 (2006)); Grable, 545 U.S. at 313 (quoting Shulthis v. McDougal, 225
U.S. 561, 569 (1912)). To establish Grable jurisdiction, a defendant must show
that a federal issue is: “(1) necessarily raised, (2) actually disputed, (3) substantial,
and (4) capable of resolution in federal court without disrupting the federal-state
balance approved by Congress.” Gunn, 568 U.S. at 258 (2013); Grable, 545 U.S.
at 313-14.
A federal question is only “necessarily” raised under Grable if that “question
of federal law is a necessary element of one of the well-pleaded state claims.”
Franchise Tax Bd., 463 U.S. at 13. That is why a “state-law claim will present a
justiciable federal question only if it satisfies both the well-pleaded complaint rule
and” the four elements of Grable. Cal. Shock Trauma Air Rescue v. State Comp.
Ins. Fund, 636 F.3d 538, 542 (2011) (emphasis in original).
Nothing in the People’s public nuisance claims “require[s] resolution of a
substantial question of federal law,” or even interpreting federal law. Franchise
Tax Bd., 463 U.S. at 13. Defendants’ embedded “federal questions” are, at best,
federal defenses to state law claims. Although those defenses might overlap at
some high level of generality with “national energy, economic development, and
federal environmental protection and regulatory polic[y]” concerns, ER215 ¶24;
ER251 ¶24, those concerns could, at most, support a preemption defense (although
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they do not, for the reasons explained in the next section). But again, ordinary
“preemption, without more, does not convert a state claim into an action arising
under federal law.” Metro. Life Ins. v. Taylor, 481 U.S. 58, 65 (1987); see
Caterpillar, Inc., 482 U.S. at 391-92.
Likewise, Defendants’ argument that their First Amendment, Due Process
Clause, and Commerce Clause rights are threatened by the People’s public
nuisance claims, ER218 ¶33; ER254 ¶33, simply identifies additional defenses,
none of which are necessary elements of the People’s state law claims. See, e.g.,
Nevada v. Culverwell, 890 F.Supp. 933, 937 (D. Nev. 1995) (no removal based on
First Amendment defense); Caterpillar, Inc., 482 U.S. at 391-92.
Nor is there any merit to Defendants’ assertion that the People’s claims
present an embedded federal question concerning the “foreign affairs doctrine.”
ER219-220 ¶¶33-34; ER255-56 ¶¶33-34. Even if Defendants had a factual basis
for this assertion, the foreign affairs doctrine at most provides another preemption
defense. Gingery v. City of Glendale, 831 F.3d 1222, 1228 (9th Cir. 2016).
Because none of Defendants’ asserted “federal questions” are essential elements of
the People’s public nuisance claims as required by Grable, Defendants have failed
to establish this ground for federal subject matter jurisdiction.7

7

Defendants also failed to satisfy any of the other elements of the Grable test,
for the reasons set forth in Dkt. 88 at 45-47.
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3. There is no basis for federal officer removal.
Defendants next asserted that removal was proper under 28 U.S.C.
§1442(a)(1) because “a causal nexus exists between their actions, taken pursuant to
a federal officer’s directions.” This is the ground that Judge Chhabria in the San
Mateo cases characterized as “dubious,” and which is the principal focus of the
San Mateo Plaintiff-Appellants’ brief. See San Mateo Cty. v. Chevron Corp., 294
F.Supp.3d 934, 939 (N.D. Cal. 2018); see also Dkt. 88 at 12-23. Because the only
relationships between Defendants and the federal government (1) involve ordinary
contractual obligations that do not establish “unusually close” federal oversight
“involving detailed regulation, monitoring, or supervision,” Watson v. Philip
Morris Cos., Inc., 551 U.S. 142, 153 (2007), or (2) mere compliance with federal
law in extracting fossil fuels, there is no federal officer jurisdiction.
4. There is no basis for OCSLA removal.
Defendants also asserted that original jurisdiction existed “pursuant to the
Outer Continental Shelf Lands Act.” ER207 ¶8, ER242 ¶8. This contention is
meritless, because the People’s claims do not “aris[e] out of, or in connection with
... any operation conducted on the outer Continental Shelf” within the meaning of
the statute. See also Dkt. 88 at 48-50.
The OCSLA provides, in relevant part:
[T]he district courts of the United States shall have jurisdiction of
cases and controversies arising out of, or in connection with (A)
any operation conducted on the outer Continental Shelf which
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involves exploration, development, or production of the minerals,
of the subsoil and seabed of the outer Continental Shelf, or which
involves rights to such minerals….
43 U.S.C. §1349(b)(1). To establish OCSLA jurisdiction, Defendants had to show
not only that they conducted operations on the Outer Continental Shelf (“OCS”),
but that those operations were sufficiently connected to the elements of the
People’s public nuisance claims to support federal jurisdiction—which they are
not.
The People’s public nuisance claims do not require any showing of where
Defendants’ fossil-fuel products originated or which companies extracted or
produced those products. Under California law, a company that lawfully sells a
product whose use or disposition causes substantial and unreasonable harms can
only be held liable for contributing to a public nuisance if it wrongfully promoted
that product—for example, by failing to disclose known hazards or misleading the
public about those hazards. See ConAgra, 17 Cal.App.5th at 83-84 (citing Cty. of
Santa Clara v. Atlantic Richfield Co., 137 Cal.App.4th 292, 309-10 (2006)).
Where the product was extracted or by whom makes no difference at all.
The fact that some of Defendants’ products may have originated on the OCS
is thus far too tenuous a connection to support OSCLA “arising out of, or in
connection with” jurisdiction. See Par. of Plaquemines v. Total Petrochem. & Ref.
USA, Inc., 64 F.Supp.3d 872, 894-98 (E.D. La. 2014) (no OCSLA jurisdiction over
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pollution claims from oil and gas exploration and production in Louisiana waters,
even though some claims “involved pipelines that ultimately stretch to the OCS,”
because “‘mere connection’ between the claims asserted and an OCS operation is
‘too remote’ to establish federal jurisdiction”) (quoting In re Deepwater Horizon,
745 F.3d 157, 163 (5th Cir. 2014)).8 Under Defendants’ theory of OCSLA
jurisdiction, federal courts would have jurisdiction over every product-defect and
related claim in which there may be some connection, however attenuated,
between the substance of the claim and the raw components of the injury causing
product. That pushes OCSLA jurisdiction too far. Because the People’s claims
(and Defendants’ liability) would be the same whether or not Defendants were in
the fossil-fuel extraction business, and whether or not their extractions were based
on any OCS operations, there is no basis for federal OCSLA jurisdiction.
5. There is no basis for federal enclave jurisdiction.
Defendants also sought removal under 28 U.S.C. §1441(a) and 28 U.S.C.
§1331 because the People’s claims “arise[] on federal enclaves.” ER207, 243.
That theory does not work, either. See Dkt. 88 at 50-52.

8

See also Stutes v. Gulfport Energy Corp., No. 6:16-cv-01253, 2017 WL
4286846, at *12 (W.D. La. June 30, 2017), rep. & rec. adopted, 2017 WL 4274353
(W.D. La. Sept. 26, 2017); Plains Gas Sols., LLC v. Tennessee Gas Pipeline Co.,
LLC, 46 F.Supp.3d 701, 704-05 (S.D. Tex. 2014) (cautioning that “a blind
application of this test would result in federal court jurisdiction over all state law
claims even tangentially related to offshore oil production on the OCS” and lead to
“absurd results”).
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Federal enclave jurisdiction exists only “over tort claims that arise on
‘federal enclaves.’” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th
Cir. 2006) (emphasis added); see Alvares v. Erickson, 514 F.2d 156, 160 (9th Cir.
1975) (federal enclave jurisdiction “depends upon ... the locus in which the claim
arose”), disapp’d on other grounds by Local 144 Nursing Home Pension Fund v.
Demisay, 508 U.S. 581 (1993). But public nuisance claims “arise” where the
injury occurred, here, in San Francisco and Oakland. See Cal. Civ. P. Code §731
(abatement for public nuisance may be sought by district attorney, county counsel,
or city attorney only in county, town, or city “in which the nuisance exists”);
ConAgra, 17 Cal.App.5th at 124, 167 (abatement remedy appropriate only where
“defendants’ public nuisance exists”); In re High-Tech Empl. Antitrust Litig., 856
F.Supp.2d 1103, 1125 (N.D. Cal. 2012) (rejecting argument that “federal enclave
doctrine applies as long as some of the alleged events occurred on the federal
enclave,” and applying the “locus” standard). The People’s claims “arise” within
their jurisdictions, not on federal enclaves—and the complaints expressly disavow
any intent to “seek abatement with respect to any federal land.” ER116 n.154, 118
n.155, 181 n.82, 183 n.83.
6. There is no basis for bankruptcy jurisdiction.
Defendants next sought removal under 28 U.S.C. §1452(a) and 28 U.S.C.
§1334(b) “because Plaintiff’s state-law claim is related to cases under Title 11 of

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the United States Code” (although Defendants do not identify any particular
bankruptcy proceeding or which of them, if any, were involved in it). ER208 ¶11,
ER244 ¶11.
Defendants’ invocation of bankruptcy jurisdiction is frivolous. See Dkt. 88
at 52-55. Although Section 1452(a) authorizes removal of claims arising “under
section 1334 of this title,” it exempts from removal any “action by ... governmental
unit[s] to enforce ... police or regulatory power.” The People’s public nuisance
lawsuits are clearly within that police or regulatory power exemption because these
lawsuits primarily “seek[] to effectuate public policy” rather than primarily to
“adjudicate private rights.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th
Cir. 2005); ConAgra, 17 Cal.App.5th at 136; Acuna, 14 Cal.4th at 1103.
The fact that “[m]ost government actions ... have some pecuniary component
… “does not abrogate their police power function.” In re Universal Life Church,
128 F.3d 1294, 1299 (9th Cir. 1997); see City & Cty. of S.F. v. PG&E Corp., 433
F.3d 1115, 1123-26 (9th Cir. 2006). The People’s lawsuits are therefore exempted
from bankruptcy jurisdiction by Section 1452(a)’s police power exception.
7. There is no basis for Defendants’ untimely assertions of
federal admiralty jurisdiction.
Despite the exhaustive list of grounds for removal in Defendants’ Notices of
Removal, Defendants did not raise federal admiralty jurisdiction under 28 U.S.C.
§1333(1) until after remand briefing was completed, when they filed a
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supplemental brief in response to the court’s inquiry. ER202, 193-198. Courts
may only consider the grounds asserted in the notice of removal, however;
“alternative bases for removal jurisdiction” are waived and cannot be considered.
ARCO Envtl. Remediation, LLC v. Dept. of Health & Envtl. Quality, 213 F.3d
1108, 1117 (9th Cir. 2000). Defendants’ untimely assertions, nearly four months
after their Notices of Removal, were too late. See, e.g., O’Halloran v. Univ. of
Wash., 856 F.2d 1375, 1381 (9th Cir. 1988); Wood v. Crane Co., 764 F.3d 316,
323 (4th Cir. 2014).9
Even without waiver, there is no admiralty jurisdiction. See Dkt. 88 at 5558. Section 1333(a) provides that “[t]he district courts shall have original
jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of
admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies
to which they are otherwise entitled.” (Emphasis added). This “saving to suitors”
clause has consistently been construed to mean that admiralty and maritime claims
brought in state court “are not removable under 28 U.S.C. §1441 absent some

9

The district court’s conclusion that Defendants did not waive federal
admiralty jurisdiction because the Notices of Removal “invoked federal common
law as a grounds [sic] for removal,” ER34, is foreclosed by this Court’s precedent.
Besides, Defendants’ failure to invoke admiralty jurisdiction in their Notices of
Removal is not a mere “technical” mistake that the district court would have
discretion to allow Defendants to correct; it is a wholly independent theory of
removal not timely asserted, which the district court had no power to recognize.
Wood, 764 F.3d at 323.
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other jurisdictional basis.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1069
(9th Cir. 2001) (emphasis added); Coronel v. AK Victory, 1 F.Supp.3d 1175, 117889 (W.D. Wash. 2014) (same). Because there is no other jurisdictional basis for
removing the People’s claims, there is no admiralty jurisdiction.
Besides, a tort claim only comes within the district court’s original admiralty
jurisdiction where, inter alia, “the general character of the activity giving rise to the
incident shows a substantial relationship to traditional maritime activity.” Jerome
B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 533-34 (1995).
Defendants cannot plausibly claim that the “general character” of the activities
giving rise to their public nuisance liability (their wrongful promotion of known
dangerous products while actively concealing those dangers) has any “substantial
relationship to traditional maritime activity.” Nor can Defendants show that the
People’s injuries were “caused by a vessel on navigable waters,” as required by 46
U.S.C. §30101(a) (emphasis added). See Myhran v. Johns-Manville Corp., 741
F.2d 1119, 1122 (9th Cir. 1984).
The District Court Erred in Granting Defendants’ Rule 12(b)(6)
Motions to Dismiss.
Because the district court lacked subject matter jurisdiction, it should have
remanded these cases and not reached Defendants’ Rule 12(b)(6) motions to
dismiss. Even if the court had such jurisdiction, though, it erred in dismissing the
People’s public nuisance claims.
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A. The district court erred in finding no CAA displacement, given
its characterization of the People’s claims as seeking to regulate
greenhouse-gas emissions.
The court began its analysis of displacement by acknowledging that under
AEP and Kivalina, the CAA displaced federal common law claims pertaining to
domestic emissions of greenhouse gases. ER19. While the court recognized that
complete displacement by the CAA would require dismissal of any federal
common law claims, it sought to distinguish AEP and Kivalina as applying only to
domestic greenhouse-gas emissions. The court concluded that because the
People’s allegations “centered on defendants’ placement of fossil fuels into the
flow of international commerce,” there was no CAA displacement because
“foreign emissions are out of the EPA and Clean Air Act’s reach.” Id.
The People demonstrated supra at 10-14 why the displaced federal common
law governing greenhouse-gas emissions could not “completely preempt” the
People’s state public nuisance claims for purposes of removal jurisdiction, even
assuming (as the district court did) that the People’s complaints sought to regulate
greenhouse-gas emissions. That same displacement analysis compels the
conclusion that, if the court had some basis for exercising removal jurisdiction
other than complete preemption (which it does not, see supra at 14-30), its Rule
12(b)(6) analysis should have been directed at the People’s non-preempted state
public nuisance claims, not the displaced federal common law claims that the court

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declared should “govern[]” instead. See ER32 (“presum[ing]” “that once federal
common law is displaced, state law once again governs”) (citing AEP, 564 U.S. at
429; Oullette, 479 U.S. 481).
For the reasons demonstrated supra at 14-18, no federal common law of
emissions survives CAA displacement. Consequently, if the district court had
some basis for exercising subject matter jurisdiction other than complete
preemption, but see supra at 18-29, and if the People’s public nuisance claims
actually sought to regulate greenhouse-gas emissions, but see infra at 32-34, the
district court should have ruled that the federal common law relating to emissions
has been displaced and that any Rule 12(b)(6) motion therefore had to be directed
at the People’s state law public nuisance claims only (to determine whether those
state law claims were either preempted by the CAA or failed to state a claim for
any other reason).
The district court never conducted that analysis. Accordingly, if this Court
reaches the Rule 12(b)(6) issues in this appeal (i.e., if it finds some legitimate
jurisdictional ground for removal), it should remand for the district court to decide
in the first instance whether to dismiss the People’s state law public nuisance
claims—an analysis the court skipped over entirely after erroneously concluding
that federal common law “governed.”

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B. The district court erred in its repeated assertion that the
People’s public nuisance claims seek to regulate greenhouse-gas
emissions.
Central to the district court’s analysis in its first two orders was its erroneous
assumption that a federal common law applicable to greenhouse-gas emissions
governs the People’s claims. But the People are not seeking to regulate or to hold
Defendants liable for their, or anyone else’s, emissions. To be sure, the rising sea
levels and unprecedented storms ravaging coastal communities like Oakland and
San Francisco are triggered by a cumulative sequence of events, beginning with the
extraction of fossil fuels and continuing with their production, sale, and
combustion. But whatever role Defendants played at the various stages of the
production process, none of that conduct would be sufficient by itself to subject
Defendants to liability under California law for contributing to a public nuisance.
The People are only able to seek an equitable abatement remedy under
California public nuisance law because each Defendant wrongfully promoted the
use of its fossil-fuel products while intentionally failing to disclose material
information and/or affirmatively making misleading statements about the
inevitable, devastating impacts on coastal communities it knew would result from
the expanded use of its otherwise lawful products. See, e.g., Santa Clara, 137
Cal.App.4th at 309-10. The People are not seeking to enjoin greenhouse-gas
emissions by Defendants or anyone else. They are seeking to require Defendants

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to bear the costs of remediating the localized public nuisance that Defendants
contributed to creating, and thereby exacerbated, through their wrongful conduct.
The People’s public nuisance claims thus differ materially from the
emissions-related claims in AEP and Kivalina. In AEP, the plaintiffs filed “federal
common law public nuisance claims against carbon-dioxide emitters” and sought
“a decree setting carbon-dioxide emissions for each defendant at an initial cap, to
be further reduced annually.” 564 U.S. at 415. The Supreme Court was asked to
decide whether federal courts could issue an injunction to regulate the defendants’
greenhouse-gas emissions under federal common law. Id. at 424. In Kivalina, the
plaintiffs sought damages under federal common law for harms arising from the
defendants’ emissions of greenhouse gas. Kivalina, 696 F.3d at 853. In both
cases, defendant’s emissions were the central focus of the plaintiffs’ claims and
requested relief. The Courts had to analyze the extent of CAA displacement,
because the CAA regulates emissions and permits enforcement of the EPA’s
emissions regulations. AEP, 564 U.S. at 424-25; Kivalina, 696 F.3d at 856.
In sharp contrast, the People’s state law public nuisance claims do not seek
to interfere with any rights, remedies, or obligations created by the CAA, and
Congress has never regulated the wrongful promotion or marketing of fossil fuels
through the CAA or any other statute. Because the People do not seek to regulate
or enjoin any greenhouse-gas emissions, there is no basis for applying any federal
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common law to those claims, displaced or otherwise; and because the People’s
state law claims do not intrude on the domain Congress created through the CAA,
there is also no need to determine the extent, if any, to which the CAA displaced
federal common law.
C. The People’s state law claims are not preempted by federal
common law or the CAA.
Before demonstrating why the district court’s concerns about
extraterritoriality and foreign policy were misplaced, the People reiterate why their
state law nuisance claims easily survive any federal preemption defense.
“States are independent sovereigns in our federal system,” Medtronic, Inc. v.
Lohr, 518 U.S. 470, 485 (1996), and have always been empowered to exercise
their “traditional authority to provide tort remedies” for wrongful conduct causing
harm to themselves and their residents, pursuant to their police powers. Silkwood
v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); see United Haulers Ass’n, Inc. v.
Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 342-43 (2007). That is
why the Supreme Court has held that “solicitude for state interests, particularly in
the field[s where states have historically strong regulatory interests], should be
overridden … only where clear and substantial interests of the National
Government, which cannot be served consistently with respect for such state
interests, will suffer major damage if the state law is applied.” United States v.
Yazell, 382 U.S. 341, 352 (1966).
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For well over a century, California public entities have been authorized to
pursue representative public nuisance actions to obtain abatement of “substantial
and unreasonable” obstructions of public rights that are causing “significant harm”
to “an entire community or neighborhood, or any considerable number of persons.”
See supra at 3 n.1. California courts have frequently applied these principles to
remediate the in-state effects of environmental contamination, even when not all
sources of that contamination were identifiable and even when federal regulatory
schemes may have allowed the contamination to occur.
For example, California courts have held manufacturers of lead-based paint
responsible for abating lead contamination in residential housing that resulted in
part from those manufacturers’ wrongful promotional activity, even though lead
paint was not banned in this country until 1978. See ConAgra, 17 Cal.App.5th at
169. California courts have also required producers of dry-cleaning chemicals
leaching into California groundwater to abate the resulting hazard because those
producers wrongfully encouraged local dry cleaning establishments to dispose of
those solvents unsafely. See City of Modesto v. Dow Chem. Co., 19 Cal.App.5th
130, 135 (2018).10

10

While the defendants in those cases manufactured the nuisance-causing
products, the underlying legal principles apply to any entity that participated at any
point in the chain of causation whose conduct substantially contributed to the
creation or expansion of the public nuisance. See Acuna, 14 Cal.4th at 1100
(neighborhood disturbances caused by gang members); Eaton v. Klimm, 217 Cal.
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Any inquiry into the appropriateness of creating new federal common law to
replace a longstanding state law doctrine must start with the recognition that the
creation of new federal common law is highly disfavored and is reserved for
“extraordinary cases.” O’Melveny & Myers v. FDIC, 512 U.S. 79, 89 (1994).
Federal common law exists only in “few and restricted” areas, Wheeldin v.
Wheeler, 373 U.S. 647, 651 (1963), and can only replace state law in those rare
instances where (1) a “uniquely federal interest” or policy is concretely identified,
and (2) there is “‘significant conflict’ ... between [that] identifiable ‘federal policy

362, 368-70 (1933) (public nuisance caused by smoke that prevented neighbors
from ventilating homes or using yards); People v. Gold Run Ditch & Mining Co.,
66 Cal. 138, 146-52 (1884) (contamination of river by mining debris); Birke v.
Oakwood Worldwide, 169 Cal.App.4th 1540, 1548 (2009) (secondhand smoke in
private common areas of condominium complex); People v. Mason, 124
Cal.App.3d 348, 352-53 (1981) (public nuisance that affected multiple homes in
subdivision); City of Modesto Redev. Agency v. Superior Ct., 119 Cal.App.4th 28,
37-43 (2004) (discharge of toxic solvent with the encouragement of defendant
solvent manufacturers); Newhall Land & Farming Co. v. Superior Ct., 19
Cal.App.4th 334, 342 (1993) (contamination of water supply); Venuto v. OwensCorning Fiberglass Corp., 22 Cal.App.3d 116, 123-29 (1971) (emissions
interfering with enjoyment of private homes); People v. City of Los Angeles, 83
Cal.App.2d 627, 632-34 (1948) (ocean contamination); see also Restatement
(Second) Torts §821B, com. g. Where multiple entities contributed to a nuisance,
as here, it is their burden to prove the appropriateness of any apportionment of
liability. See Restatement (Second) Torts §840E, com. b; Fibreboard Paper
Prods. Corp. v. East Bay Union of Machinists, 227 Cal.App.2d 675, 704-705
(1964) (“[W]here it is clear that a defendant has been at fault and that he has
caused some part of the plaintiff’s damages, the burden of proof should rest on him
to show the extent of his contribution, and that if he cannot sustain it he should be
liable for the entire loss.”).
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or interest and the [operation] of state law.’” Boyle v. United Techs. Corp., 487
U.S. 500, 507 (1988) (quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68
(1966) (alteration in original)); accord, O’Melveny, 512 U.S. at 87-88.11 Other
than the displaced federal common law regulating greenhouse-gas emissions, no
other body of federal common law arguably applies to the People’s public nuisance
claims. Nor has any court ever purported to create a body of federal common law
to govern claims against manufacturers or sellers that tortiously promote otherwise
lawful products whose hazardous impacts are known but deliberately
misrepresented or concealed.
The district court concluded (in the context of what it erroneously believed
to be an emissions claim) that the People’s claims raised uniquely federal interests
and that application of California public nuisance law in these cases would
significantly conflict with those interests. Neither part of that conclusion survives
scrutiny outside of the emissions context.
First, the court’s assertion that a “uniform” approach is required for all
litigation addressing “the geophysical problem” of climate change, ER29, 30,

11

The Supreme Court has made clear that federal common law may only be
created to address “such narrow areas as those concerned with the rights and
obligations of the United States, interstate and international disputes implicating
the conflicting rights of States or our relations with foreign nations, and admiralty
cases.” Tex. Indus. v. Radcliff Materials, 451 U.S. 630, 641 (1981).
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ignores that the People expressly disclaim any intent to regulate emissions and do
not seek any injunctive or other relief that would prevent any Defendant from
continuing their existing business operations. ER62 ¶11; ER134 ¶11. Nor could
the limited equitable abatement remedy authorized by California law conflict with
any Defendant’s ability to comply with whatever other legal obligations it may
face.
The district court’s asserted need for a “uniform standard of decision,”
ER30, is particularly weak on the facts of these cases. See, e.g., O’Melveny, 512
U.S. at 88 (describing uniformity as “that most generic (and lightly invoked) of
alleged federal interests”); Marsh v. Rosenbloom, 499 F.3d 165, 177, 182 (2d Cir.
2007) (rejecting uniformity as a cause to invoke federal common law). Public
nuisance law is already mostly uniform, because “[a] majority of the states have
adopted the Restatement’s definition of public nuisance.” Connecticut v. Am. Elec.
Power Co., 582 F.3d 309, 351 n.28 (2d Cir. 2009), rev’d on other grounds by AEP,
564 U.S. 410. As a result, the legal principles governing the People’s state law
claims are similar to those that most other states would apply to a case alleging
comparable public nuisances in their jurisdictions. See ER17 (citing Restatement
(Second) of Torts §821B)); see also Restatement Second, §826 & comm. A; id.
§829A & comm. A; id. §821B.

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Companies that sell goods across state or national boundaries frequently face
different legal obligations in different jurisdictions. Creating new federal common
law to regulate such interstate market transactions has never been necessary. Nor
is it necessary now. See, e.g., In re Agent Orange Prod. Liab. Litig., 635 F.2d 987,
994-95 (2d Cir. 1980) (no need for uniform federal standard of decision for tort
claims against herbicide manufacturers by Vietnam War veterans injured by
overseas wartime use of herbicides); Jackson v. Johns-Manville Sales Corp., 750
F.2d 1314, 1324 (5th Cir. 1985) (en banc) (federal common law does not govern
claim against asbestos manufacturers). Because the People are not seeking to
regulate Defendants’ (or anyone else’s) emissions, there is no significant risk that
different states would be asked to regulate the same hazardous discharges or seek
conflicting and irreconcilable injunctions pursuant to different state laws. Cf.
Ouellette, 479 U.S. at 496-97; AEP, 564 U.S. at 415; Milwaukee I, 406 U.S. at 93.
Second, although the district court purported to find a “significant conflict”
between the state and federal interests at issue in these cases, no such conflict
actually exists.
“It is well settled that the states have a legitimate interest in combatting the
adverse effects of climate change on their residents.” Am. Fuel & Petrochemical
Mfrs. v. O’Keeffe, 903 F.3d 903, 913 (9th Cir. 2018) (citing Massachusetts v. EPA,
549 U.S. 497, 522-23 (2007)); cf. Nat’l Audubon Soc. v. Dep’t of Water, 869 F.2d
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1196, 1203 (9th Cir. 1988) (“[T]he primary responsibility for maintaining the air
quality [under the CAA] rests on the states.”). Indeed, many states and cities have
passed laws, regulations, and policies, upheld by the courts, that directly bear on
elements of the climate change crisis. See, e.g., Rocky Mtn. Farmers Union v.
Corey, 730 F.3d 1070, 1106-07 (9th Cir. 2013) (state law regulating carbon
intensity of ethanol sold in interstate commerce); Coal. for Competitive Elec. v.
Zibelman, 272 F.Supp.3d 554, 559 (S.D.N.Y. 2017) (state program promoting
clean energy sources), aff’d, 906 F.3d 41 (2d Cir. 2018).
By erroneously characterizing the People’s public nuisance claims as an
attempt to regulate worldwide emissions rather than simply to abate the localized
effects of Defendants’ tortious conduct, the district court improperly stripped the
People of their traditional sovereign authority to redress local harms to public
infrastructure. Yet longstanding “[f]ederalism concerns require [federal courts to]
... permit state courts to decide whether and to what extent they will expand state
common law” to apply to such problems within their borders. City of Philadelphia
v. Lead Indus. Ass’n, Inc., 994 F.2d 112, 123 (3d Cir. 1993).
In short, no federal policy or statute regulates the wrongful promotion of
fossil fuels or provides an abatement remedy for public entities under the
circumstances of these cases. Congress has never addressed the issues raised by
Defendants’ challenged conduct (in contrast, for example, to legislation
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immunizing firearms manufacturers and dealers from the unlawful use of their
products, see 15 U.S.C. §§7901-7903).12 Whatever the ultimate outcome of this
litigation, Defendants will continue to have the right to produce, promote, and sell
fossil fuels. The People simply seek to have Defendants pay to remediate the
harms caused by their knowingly wrongful conduct, under traditional tort
principles. No such order would significantly conflict with any uniquely federal
interest.
Nor does the CAA preempt the People’s state law claims. Although a
federal statute like the CAA can displace federal common law, it cannot eliminate
related state law claims—particularly claims based on a state’s historic police
powers—absent Congress’s “clear and manifest” intent to preempt that state law.
See AEP, 564 U.S. at 423. Congress did not intend the CAA to preempt nonconflicting state law claims for the reasons explained supra at 19-20. As a result,
although the 1970 CAA amendments fully displaced whatever federal common
law might apply to claims regarding greenhouse-gas emissions, nothing in the

12

“Congress’s mere refusal to legislate ... falls far short of an expression of
legislative intent to supplant the existing [federal] common law in that area.”
United States v. Texas, 507 U.S. 529, 535 (1993) (internal quotation marks and
citation omitted). Where Congress expressly regulates in one domain (e.g.,
emissions) but not others (e.g., the creation of a public nuisance through the
misleading promotion of fossil fuels for a known hazardous use), courts must
presume that Congress made that choice deliberately. See id.

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CAA preempts the People’s public nuisance claims, regardless of how they may be
characterized.
D. The People’s state law claims cannot be dismissed as
extraterritorial or as unduly intruding upon foreign policy.
The district court dismissed the People’s public nuisance claims (as a matter
of federal common law rather than state nuisance law), stating that those claims
were “extraterritorial” and unduly interfered with “foreign policy.” Both
conclusions were wrong, regardless of the governing source of law.
Extraterritoriality. The district court concluded that although the People
only seek an abatement remedy to remediate localized harms, their complaints
more broadly “focus [on] ... sales of fossil fuels worldwide, beyond the reach of
the EPA and the Clean Air Act,” and thus “run[] counter to another cautionary
restriction, the presumption against extraterritoriality.” ER20-21 (citing Kiobel v.
Royal Dutch Petroleum Co., 569 U.S. 108 (2013); Sosa v. Alvarez-Machain, 542
U.S. 692, 727 (2004)).
Neither Kiobel nor Sosa has any application to the People’s public nuisance
claims. Both cases involved non-U.S. plaintiffs who sued for monetary damages
under the Alien Tort Statute, 28 U.S.C. §1350, for injuries occurring outside the
United States. In these cases, by contrast, plaintiffs are California public entities
seeking equitable relief on behalf of their residents for in-state harms resulting
from conduct that occurred in California as well as elsewhere. Compare ConAgra,
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17 Cal.App.5th at 124, 167 (abatement remedy for public nuisance allowed only
where harm is incurred); with Kiobel, 569 U.S. at 115, 124 (“[A]ll the relevant
conduct took place outside the United States” and plaintiffs were seeking relief for
ill-defined “violations of the law of nations occurring outside the United States.”)
(emphases added).
The presumption against extraterritoriality, a canon of federal statutory
construction, has never been applied to state common law torts.13 Instead, state
and federal courts routinely look to conflict-of-laws rules and traditional common
law principles to determine the source and content of the legal rights and
obligations implicated by overseas conduct that causes domestic harm to U.S.
residents. See, e.g., Ajuba Int’l, L.L.C. v. Saharia, 871 F.Supp.2d 671, 681 (E.D.
Mich. 2012) (tortious conduct committed in foreign country caused harm in
Michigan and was actionable under Michigan tort law); In re Agent Orange, 635
F.2d at 994-95 (state tort law applies to claims brought by Vietnam War veterans
injured by wartime use of chemical herbicides).

13

Although California codified much of its common law in 1872, including the
common law of public nuisance, the underlying common law categories are “still
applicable,” Acuna, 14 Cal.4th at 1104, and common law principles still apply in
determining the scope and application of that law. See Li v. Yellow Cab Co., 13
Cal.3d 804, 814-17 (1975) (emphasis in original) (“[t]he provisions of this Code,
so far as they are substantially the same as existing statutes or the common law,
must be construed as continuations thereof, and not as new enactments”) (citing
Cal. Civ. Code 1872 §5).
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Even if this were a federal statutory case in which the presumption against
extraterritoriality applied, that presumption would be overcome by the fact that at
least some of Defendants’ challenged conduct and all of the People’s claimed
injury occurred within the United States. The relevant inquiry is “‘whether the
case involves a domestic application of the statute,’” which in turn requires
consideration of the statute’s “‘focus,’” or the “‘object of its solicitude’ … which
can include the conduct it ‘seeks to regulate,’ as well as the parties and interests it
‘seeks to protect’ or vindicate.” WesternGeco LLC v. ION Geophysical Corp., 138
S.Ct. 2129, 2136-37 (2018) (emphasis added) (alterations omitted) (quoting RJR
Nabisco, Inc. v. European Cmty, 136 S.Ct. 2090, 2101 (2016), and Morrison v.
Nat’l Australia Bank Ltd., 561 U.S. 247, 267 (2010)). In a public nuisance case,
like any other case involving injury to property, the focus of concern is where that
injury occurred. See, e.g., New Jersey v. City of New York, 283 U.S. 473, 482
(1931) (“The situs of the acts creating the nuisance, whether within or without the
United Sates, is of no importance.”); Harris v. Polskie Linie Lotnicze, 820 F.2d
1000, 1003-04 (9th Cir. 1987) (applying Restatement (Second) Conflict of Laws
§175, which “creates a presumption that the law of the place where the injury
occurred applies”)); cf. RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090,
2111 (2016) (focus of RICO claim is where the injury to business or property
occurred); OBB Personenverkehr AG v. Sachs, 136 S.Ct. 390, 396 (2015) (no
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claim under commercial conduct exception to Foreign Sovereign Immunities Act
where plaintiffs’ “injuries [were] suffered in Austria”).
The district court’s overly broad focus on the historical causes of climate
change caused it to give insufficient weight to the narrow, localized focus of the
People’s pleadings. It may be true that some of “the conduct and emissions
contributing to the nuisance arise outside the United States.” ER19. But it is
equally true that much of the conduct alleged in these cases occurred within the
United States, and that all of the harm for which abatement is sought has occurred
and is continuing to occur in San Francisco and Oakland. See, e.g., ER67-83, 9295, 101-102, 103-104 ¶¶32-73, 96-100, 113-15, 118; ER139-154, 161-164, 170173 ¶¶32-73, 96-100, 113-15, 118. Thus, because “at least some of the conduct
relevant to [the People’s] claims occurred in the United States,” Mujica v. AirScan,
Inc., 771 F.3d 580, 595 (9th Cir. 2014), any presumption against extraterritoriality
would be overcome if that presumption applied. See also Doe v. Nestle, S.A., 906
F.3d 1120, 1125-26 (9th Cir. 2018).
Foreign Policy. The district court’s vague invocation of foreign policy fares
no better, for largely the same reasons. The court stated that to hold Defendants
liable based in part on conduct they engaged in outside the United States could
“affect foreign relations.” ER21. The court also expressed concern that “[t]he
problem [of climate change] deserves a solution on a more vast scale than can be
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supplied by a district judge or jury in a public nuisance case,” and that such a
solution could only be supplied by the political branches. ER25.
If the district court were right, no public entity could ever bring any civil
claim in the United States, in any court or under any body of law, that related in
any way to harms caused by climate change (or any other global problem, such as
human trafficking), given its worldwide scope and effects. But global issues, like
state and national issues, can be addressed incrementally, using well-established,
narrowly focused legal doctrines that address specific types of wrongful conduct;
and state and federal judges are fully competent to apply established legal
principles in such circumstances. See, e.g., Harbor Fumigation, Inc. v. Cty. of San
Diego Air Pollution Control Dist., 43 Cal.App.4th 854, 858 (1996) (affirming state
legislature’s authority to regulate “‘toxic air contaminant[s]’”—such as pesticide
“[m]ethyl bromide”—which contribute to “depletion of the earth’s ozone layer”).
The People’s complaints do not seek to regulate conduct on foreign soil, or
to interfere with this or any other country’s treaty-making power, or to “solve” the
problem of global warming. These lawsuits do not conflict with any existing
international agreements or any delegation of authority to the Executive branch.
No foreign government or state-owned company is a defendant, and no such entity
is being asked to do, or refrain from doing, anything. Nor did the district court
identify any specific foreign policy or other federal interest sufficient to overcome
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the states’ longstanding authority to regulate wrongful promotional activities
causing harms within their borders. Compare Am. Ins. Ass’n v. Garamendi, 539
U.S. 396, 421 (2003); Medellin v. Texas, 552 U.S. 491, 498-99 (2008).
The elements of the People’s representative public nuisance claims (which
under California law can only be brought by a public entity and can only seek
equitable abatement and not damages) are straightforward, well-settled, and as
experience has shown, judicially manageable. See supra at 3 n.1. Because the
facts alleged in the People’s complaint fit squarely within California’s public
nuisance paradigm, see, e.g., cases cited supra at 36 n.10), these claims are
justiciable and can be adjudicated without any interference with any foreign policy
concerns.
For all these reasons, the district court erred in dismissing the People’s
public nuisance claims.
The District Court Erred in Declining to Exercise Specific Personal
Jurisdiction Over Defendants ExxonMobil, BP, Royal Dutch Shell,
and ConocoPhillips.
After dismissing all claims under Rule 12(b)(6), the district court dismissed
ExxonMobil, BP, Royal Dutch Shell, and ConocoPhillips under Rule 12(b)(2) as
well, concluding that those Defendants lacked sufficient minimum contacts with
California to support personal jurisdiction. ER6-10. This, too, was error (although

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if this Court concludes that the district court had no subject matter jurisdiction over
the case as a whole, it should not reach this issue either).
The legal principles governing specific personal jurisdiction are wellestablished. Where, as here, Defendants chose not to contest the People’s
jurisdictional allegations, those allegations must be accepted as true and “only … a
prima facie showing” is needed to establish jurisdiction. See ER6, 7;
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004);
Washington Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 671 (9th Cir.
2012); Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th
Cir. 2010). Jurisdiction in these cases extends to the full extent due process
permits, because there is no controlling federal statute and because California’s
long-arm statute is co-extensive with the Due Process Clause. See Fed. R. Civ. P.
4(k)(1)(A); Cal. Civ. P. Code §410.10; Yahoo! Inc. v. La Ligue Contre Le Racisme
et L’Antisemitisme, 433 F.3d 1199, 1205 (9th Cir. 2006) (en banc).
The Ninth Circuit applies a three-pronged “minimum contacts” test to
disputes over specific personal jurisdiction. In tort cases like these, the first prong
asks whether the non-resident defendant purposefully directed its activities toward
the forum. Yahoo!, 433 F.3d at 1206.14 Defendants conceded in the district court,

14

In contract cases, this Court applies the “purposeful availment” test, which
asks whether the defendant purposefully availed itself of the privilege of
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for purposes of their Rule 12(b)(2) motion, that the People’s allegations satisfied
this first-prong test, see ER6-7; and the allegations in the amended complaints fully
support that concession. See generally ER67-83 ¶¶32-73; ER138-154 ¶¶32-73.
The second prong of the test asks whether a plaintiff’s claim “arises out of or
relates to the defendant’s forum-related activities.” Yahoo!, 433 F.3d at 1205-06;
see Bristol-Myers Squibb Co. v. Superior Ct., 137 S.Ct. 1773, 1780 (2017). That
prong requires plaintiffs to demonstrate a nexus between their claims and the
defendants’ forum-related activities sufficient to satisfy minimum-contacts
concerns. See Shute v. Carnival Cruise Lines, 897 F.2d 377, 385 (9th Cir. 1990),
rev’d on other grounds, 499 U.S. 585 (1991); In re W. States Wholesale Nat. Gas
Antitrust Litig., 715 F.3d 716, 742 (9th Cir. 2013) (“In re W. States”). The district
court erred in applying this second prong, failing to recognize that the first and
second prongs are effectively the same when a defendant is alleged to have
intentionally directed its tortious conduct against the in-state plaintiff who claims
resulting injury (because the purposeful-direction and resulting-causation
requirements combine in those circumstances). Instead, the court erroneously
created an entirely new second-prong standard, requiring plaintiffs in a multipledefendant public nuisance case to establish that each Defendant’s conduct, in

conducting activities in the forum, thereby invoking the benefits and protections of
its laws. Yahoo!, 433 F.3d at 1206.
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California, was an independent cause of the full extent of the People’s claimed
injuries. See ER7-10.15
A. The People satisfied the first and second prongs.
In this circuit, the first prong’s “purposeful direction” or “effects” test is
satisfied where “(1) the defendant committed an intentional act; (2) the act was
expressly aimed at the forum state; and (3) the act caused harm that the defendant
knew was likely to be suffered in the forum state.” Yahoo!, 433 F.3d at 1206.
Defendants conceded for purposes of their Rule 12(b)(2) motions that the People’s
allegations satisfied this purposeful-direction prong. See ER6-7; see also ER64-67
¶¶17-18, 22-30; ER135-138 ¶¶17-18, 22-30 (allegations of Defendants’ pervasive
control over subsidiaries with extensive California operations and promotions);
Williams v. Yamaha Motor Co., 851 F.3d 1015, 1024-25 (9th Cir. 2017) (where a
principal controls a subsidiary, the subsidiary’s actions may be attributed to the
principal for personal jurisdiction purposes).

15

Once a plaintiff satisfies the first two prongs of specific personal jurisdiction
analysis, the burden shifts to defendants to present a “compelling case” that the
exercise of personal jurisdiction would nonetheless not “comport with fair play and
substantial justice.” Schwarzenegger, 374 F.3d at 802 (9th Cir. 2004) (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78 (1985)); see also Walden v.
Fiore, 571 U.S. 277, 285 (2014). The district court never reached this third prong,
which is rarely satisfied if the first two prongs have been established. Asahi Metal
Industry Co. v. Superior Ct., 480 U.S. 102, 116 (1987) (quoting Burger King, 471
U.S. at 477-78) (Brennan, J., concurring in part and in the judgment).
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Because Defendants conceded the sufficiency of the connection between
their conduct and the forum, the district court focused exclusively on the
connection between Defendants’ conduct and the People’s public nuisance claims.
Compare, e.g., Goodyear Dunlop Tires Ops. v. Brown, 564 U.S 915, 919-20
(2011) (tire manufacturer’s sale of tires in North Carolina does not support
personal jurisdiction over claim that manufacturer was responsible for North
Carolina residents injured by bus accident in France). But by focusing on that
second prong in a vacuum, the court failed to recognize that in an intentional tort
case, there is no meaningful difference between the first two prongs. Once a court
finds that a defendant intentionally “aimed at” at a targeted plaintiff under the first
“purposeful direction” prong, it logically follows that plaintiff’s resulting lawsuit
“arises out of or relates to” that intentional conduct (although the ultimate
causation determination should be left for trial). See Washington Shoe, 704 F.3d at
675 (“[W]hen we have determined that the tort is an intentional one, …. the ‘acts
are performed for the very purpose of having their consequences felt in the forum
state.’”) (quoting Brainerd v. Governors of the Univ. of Alta., 873 F.2d 1257, 1260
(9th Cir. 1989)); Columbia Pictures Television v. Krypton Broad., 106 F.3d 284,
289 (1997) (conduct was expressly aimed at California because defendant knew
that conduct directed at the southeastern United States would have effects in
California), rev’d on other grounds, 523 U.S. 340 (1998).
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The only time aiming an intentional tort at an in-state resident would not
satisfy the first and second prongs together would be if plaintiffs’ complaint for
some reason failed to allege that defendants’ tortious, intentional acts were a causein-fact of plaintiffs’ in-state harms. But here the People expressly alleged (and for
purposes of specific personal jurisdiction Defendants did not dispute) that
Defendants aimed their conduct at the California public entities—including by
wrongfully promoting the expanded use of their fossil-fuel products by California
residents and others. See ER67-106 ¶¶32-123; ER138-174 ¶¶32-123.16
The district court’s approach to the second prong imposed a novel and
unprecedented burden that no public entity could ever satisfy in a public nuisance
case against multiple out-of-state defendants. Applying a unique form of “but-for”
causation (even though the merits of the People’s public nuisance claims only
require the far-more-lenient “substantial factor” proof set forth in the Restatement
(Second) Torts §435, see ConAgra, 17 Cal.App.5th at 101-02; South Coast
Framing, Inc. v. Workers’ Comp. Appeals Bd., 61 Cal.4th 291, 298 (2015);
Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 968-69 (1997)), the court
required the People to prove that each Defendant’s out-of-state conduct was the

16

In evaluating a defendant’s “intent” for purposes of the first prong, courts
merely require an “act … denot[ing] an external manifestation of an actor’s will”
rather than “an intent to accomplish a result or consequence of that act,”
Washington Shoe, 704 F.3d at 673-74 (quoting Schwarzenegger, 374 F.3d at 806).
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independent, but-for cause of the entirety of the harms to public infrastructure
alleged in the First Amended Complaint:
The question is therefore whether or not plaintiffs’ alleged
harm—namely, the effects of global warming-induced sea level
rise—would have occurred even absent each defendant’s
respective California-related activities. It is manifest that global
warming would have continued in the absence of all Californiarelated activities of defendants. Plaintiffs have therefore failed
to adequately link each defendants’ [sic] alleged California
activities to plaintiffs’ harm.
ER7 (citing Doe v. Am. Nat. Red Cross, 112 F.3d 1048, 1051-52 (9th Cir. 1977)
(emphasis modified); see also id. at ER8 (“[N]owhere do plaintiffs contend that sea
level rise would not occur absent defendants’ California contacts.”).
That is not and cannot be the proper inquiry. See, e.g., In re W. States, 715
F.3d at 742 (defendants’ collective conduct underlying alleged price-fixing
conspiracy was sufficiently connected to the higher gas prices plaintiffs paid to
satisfy personal jurisdiction). Only when none of the injuries alleged by plaintiffs
could possibly have resulted from the defendants’ purposeful contacts should
personal jurisdiction be denied under the second prong. See, e.g., Doe, 112 F.3d at
1051-52; Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 272 (9th Cir.
1995).
The district court’s second-prong analysis thus rested on three independently
reversible errors.

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First, the court erred in limiting its inquiry to the activities performed by
Defendants and their agents and subsidiaries “in California.” ER7. The cases
uniformly hold that a defendant can direct its purposeful activity at a state from
afar, and that a defendant’s out-of-state activities count as much as its in-state
activities if they are purposefully directed at the state or state residents.17
A claim arises from or relates to a defendant’s forum-directed activities if
that conduct “connects [defendants] to the forum in a meaningful way.” Walden,
571 U.S. at 290. There is no requirement that the conduct physically occur in the
forum (rather than being directed at the forum from elsewhere, as often occurs with
respect to intentional torts). See Burger King, 471 U.S. at 476; Schwarzenegger,
374 F.3d at 803; Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (personal
jurisdiction over Austrian bank that allegedly hid money for co-defendant in
Vienna in furtherance of fraudulent Ponzi scheme directed against investors in
California and elsewhere).
In Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565 (9th Cir. 2018), for
example, this Court affirmed the exercise of personal jurisdiction in the Eastern
District of Washington over a Canadian lead and zinc smelter that discharged slag

17

Nonetheless, the People’s complaints are replete with allegations about
Defendants’ in-state conduct as well (including extracting oil and natural gas in
California, refining oil in California, and transporting, marketing, and selling fuel
and other refined products in California). ER67-83 ¶¶32-73; ER138-154 ¶¶32-73.
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into the Columbia River, which eventually traveled to the State of Washington. Id.
at 572. Rejecting the smelter’s argument that its waste-disposal activities were
“expressly aimed” only at Canada and not at Washington, the Court concluded that
the smelter should have anticipated being sued in Washington because it “knew the
Columbia River carried waste away from the smelter, and that much of this waste
travelled downstream into Washington, yet [it] continued to discharge hundreds of
tons of waste into the river every day.” Id. at 577-78. The smelter’s immediate
aim may have been the Columbia River, but the inevitable down-river impacts on
Washington were neither “random,” “fortuitous,” nor “attenuated.” Id. at 578
(quoting Burger King, 471 U.S. at 475).
So too here. Defendants’ conduct may have occurred in many places (as
well as California), but Defendants knew their intentional acts, domestic and
foreign, would inevitably harm California coastal communities including Oakland
and San Francisco. That is what the People’s Complaints allege, see, e.g., ER98102 ¶¶103-16; ER167-171 ¶¶103-16, and that is all the People need to satisfy the
second prong.18

18

See also Calder v. Jones, 465 U.S. 783, 789-90 (1984) (allegedly defamatory
story written, edited, and published in Florida was “expressly aimed” at California
where the subject lived and suffered reputational harm, and where many copies of
the story circulated); Haisten v. Grass Valley Med. Reimbursement Fund, Ltd., 784
F.2d 1392, 1397 (9th Cir. 1986) (“[The Supreme] Court has allowed the exercise
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Second, the district court erred in requiring the People to prove that the instate harms they suffered were materially greater than the harms suffered by any
other jurisdiction. The district court concluded that “whatever sales or events
occurred in California were causally insignificant in the context of the worldwide
conduct leading to the international problem of global warming.” ER8. But for
purposes of specific personal jurisdiction, what matters is whether a sufficient
connection exists between Plaintiffs’ claims and Defendants’ conduct (which
Defendants conceded, for purpose of this motion, they expressly aimed at
California). See Dubose v. Bristol-Myers Squibb Co., No. 17-cv-00244-JST, 2017
WL 2775034 at *4 (N.D. Cal. June 27, 2017) (“[T]he relevant inquiry is whether
the plaintiff’s choice of forum is a proper place for personal jurisdiction, not
whether it is the best one.”).
Defendants relied below on Bristol-Myers Squibb Co. v. Superior Court, in
which the Supreme Court held there was no specific personal jurisdiction in
California over a drug manufacturer where none of the injured plaintiffs resided in
California or claimed to have suffered injury in California. 137 S.Ct. at 1782. But
here, all of the People’s alleged harms are being suffered in California.19

of jurisdiction over a defendant whose only ‘contact’ with the forum state is the
‘purposeful direction’ of a foreign act having effect in the forum state.”).
19

The Court in Bristol-Myers contrasted the facts in that case with those in
cases like Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984), which
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Third, the district court erred in requiring the People to show that each
Defendant’s activities caused the entirety of the in-state harms. See ER8 (People
needed to demonstrate that “sea level rise would not occur absent defendants’
California contacts”). That unprecedented standard could never be satisfied where
there are multiple tortfeasors. See, e.g., State ex rel Wilson v. Superior Ct., 227
Cal.App.4th 579, 606 (2014). The proper inquiry should have been whether
Defendants’ purposefully directed conduct led to increased sea-level rise and
increased harms to the local environment and public infrastructure, which is
precisely what the People alleged. ER116 ¶141; ER181 ¶141.
B. Defendants cannot satisfy the third prong.
In district court, Defendants made only a half-hearted attempt to identify
unique, case-specific factors sufficient to meet their “compelling” burden of

authorized personal jurisdiction in a New Hampshire libel action against a
magazine publisher whose magazine “was distributed throughout the country” (and
presumably beyond). The fact that most of the harm from that libel occurred
outside New Hampshire made no difference, because the number of copies sold in
New Hampshire (10,000-15,000), while comparatively low, established a sufficient
connection between the circulation of the magazine in New Hampshire and
“damage allegedly caused within the State,” even though the overwhelming
proportion of those damages were “suffered outside the State.” 137 S.Ct. at 1782
(citing Keeton, 465 U.S. at 774, 776); see also Yahoo!, 433 F.3d at 1207 (“We take
this opportunity to clarify our law and to state that the “brunt” of the harm need not
be suffered in the forum state. If a jurisdictionally sufficient amount of harm is
suffered in the forum state, it does not matter that even more harm might have been
suffered in another state.”); Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d
1218 (9th Cir. 2011); In re W. States, 715 F.3d at 744.
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proving that due process would be violated under the third due-process prong if the
first two prongs were satisfied. See Ochoa v. J.B. Martin and Sons Farms, Inc.,
287 F.3d 1182, 1192 (9th Cir. 2002); Haisten, 784 F.2d at 1400.
The seven factors relevant to this prong are: (1) the extent of the defendant’s
purposeful interjection into the forum state’s affairs; (2) the burden on the
defendant of defending in the forum; (3) the extent of conflict with the sovereignty
of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute;
(5) the most efficient judicial resolution of the controversy; (6) the importance of
the forum to the plaintiff’s interest in convenient and effective relief; and (7) the
existence of any alternative forum.” Freestream Aircraft Ltd. v. Aero Law Group,
905 F.3d 597, 607 (9th. Cir. 2018). Based on Defendants’ concession about the
first prong, the allegations in the amended complaints showing Defendants’ and
their agents’ and subsidiaries’ frequent and continuous presence in this state and
the well-developed California law governing representative public nuisance claims,
Defendants cannot meet their third-prong burden—although, as with the entire
personal jurisdiction inquiry, that determination should be made in the first
instance by the state courts on remand.
C. Personal jurisdiction may, in the alternative, be based on
Defendants’ nationwide contacts.
Finally, the People asserted that the court could exercise personal
jurisdiction over the two foreign-headquartered defendants, BP and Royal Dutch
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Shell, pursuant to Fed. R. Civ. P. 4(k)(2), which allows personal jurisdiction over a
defendant that “is not subject to jurisdiction in any state’s courts of general
jurisdiction” (because they are headquartered outside the country) if “exercising
jurisdiction is consistent with the United States Constitution and laws.” The
district court rejected this alternative jurisdictional ground (which would apply if
this Court concluded that the People have viable federal common law claims, see
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1158-59 (9th Cir. 2006), based on the
same erroneous causation analysis it relied upon earlier. See ER10.
This ruling simply highlights the underlying flaws with the court’s analysis.
Under that analysis, no court, state or federal, could exercise specific personal
jurisdiction over Defendants even if their conduct in and out of the United States
directly caused climate change harms to public entities in jurisdictions throughout
the country. That could not be right.
CONCLUSION
For the foregoing reasons, the People respectfully request that the Court
reverse the district court’s judgment and remand with instructions to further
remand these cases to state court.

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Dated: March 13, 2019

Respectfully submitted,
Oakland Office of the City Attorney
San Francisco City Attorney’s Office
Altshuler Berzon LLP
Sher Edling LLP
/s/ Michael Rubin
Michael Rubin
Attorneys for Plaintiffs-Appellants

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STATUTORY ADDENDUM
Table of Contents
Cal. Const. art. XI, §7. Counties and cities; ordinances and regulations; authority. ........62
Cal. Civ. Code §3479. Nuisance; what constitutes. ..........................................................62
Cal. Civ. Code §3480. Public nuisance.............................................................................62
Cal. Civ. Code §3491. Remedies; public. .........................................................................62
Cal. Civ. Code §3494. Abatement; parties authorized......................................................62
Cal. Civ. Proc. Code §410.10. Basis. ................................................................................62
Cal. Civ. Proc. Code §731. Nuisance; action to abate, damages; parties authorized to sue;
public nuisance.........................................................................................................63
28 U.S.C. §1291. Final decisions of district courts...........................................................63
28 U.S.C. §1331. Federal question....................................................................................63
28 U.S.C. §1333. Admiralty, maritime and prize cases....................................................63
28 U.S.C. §1334. Bankruptcy cases and proceedings.......................................................64
28 U.S.C. §1441. Removal of civil actions.......................................................................65
28 U.S.C. §1442. Federal officers or agencies sued or prosecuted...................................67
28 U.S.C. §1452. Removal of claims related to bankruptcy cases. ..................................68
42 U.S.C. §7401. Congressional findings and declaration of purpose. ............................68
42 U.S.C. §7604. Citizen suits. .........................................................................................69
43 U.S.C. § 1349. Citizens suits, jurisdiction and judicial review ....................................73
46 U.S.C. §30101. Extension of jurisdiction to cases of damage or
injury on land. ..........................................................................................................75

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STATUTORY ADDENDUM

Cal. Const. art. XI, §7. Counties and cities; ordinances and regulations;
authority.
A county or city may make and enforce within its limits all local, police,
sanitary, and other ordinances and regulations not in conflict with general laws.

Cal. Civ. Code §3479. Nuisance; what constitutes.
Anything which is injurious to health, including, but not limited to, the
illegal sale of controlled substances, or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with the comfortable
enjoyment of life or property, or unlawfully obstructs the free passage or use, in
the customary manner, of any navigable lake, or river, bay, stream, canal, or basin,
or any public park, square, street, or highway, is a nuisance.

Cal. Civ. Code §3480. Public nuisance.
A public nuisance is one which affects at the same time an entire community
or neighborhood, or any considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be unequal.

Cal. Civ. Code §3491. Remedies; public.
The remedies against a public nuisance are:
1. Indictment or information;
2. A civil action; or,
3. Abatement.

Cal. Civ. Code §3494. Abatement; parties authorized
A public nuisance may be abated by any public body or officer authorized thereto
by law.

Cal. Civ. Proc. Code §410.10. Basis.
A court of this state may exercise jurisdiction on any basis not inconsistent
with the Constitution of this state or of the United States.
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Cal. Civ. Proc. Code §731. Nuisance; action to abate, damages; parties
authorized to sue; public nuisance.
An action may be brought by any person whose property is injuriously
affected, or whose personal enjoyment is lessened by a nuisance, as defined in
Section 3479 of the Civil Code, and by the judgment in that action the nuisance
may be enjoined or abated as well as damages recovered therefor. A civil action
may be brought in the name of the people of the State of California to abate a
public nuisance, as defined in Section 3480 of the Civil Code, by the district
attorney or county counsel of any county in which the nuisance exists, or by the
city attorney of any town or city in which the nuisance exists. Each of those
officers shall have concurrent right to bring an action for a public nuisance existing
within a town or city. The district attorney, county counsel, or city attorney of any
county or city in which the nuisance exists shall bring an action whenever directed
by the board of supervisors of the county, or whenever directed by the legislative
authority of the town or city.

28 U.S.C. §1291. Final decisions of district courts.
The courts of appeals (other than the United States Court of Appeals for the
Federal Circuit) shall have jurisdiction of appeals from all final decisions of the
district courts of the United States, the United States District Court for the District
of the Canal Zone, the District Court of Guam, and the District Court of the Virgin
Islands, except where a direct review may be had in the Supreme Court. The
jurisdiction of the United States Court of Appeals for the Federal Circuit shall be
limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this
title.

28 U.S.C. §1331. Federal question.
The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.

28 U.S.C. §1333. Admiralty, maritime and prize cases.
The district courts shall have original jurisdiction, exclusive of the courts of
the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in
all cases all other remedies to which they are otherwise entitled.
(2) Any prize brought into the United States and all proceedings for the
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condemnation of property taken as prize.

28 U.S.C. §1334. Bankruptcy cases and proceedings.
(a) Except as provided in subsection (b) of this section, the district courts
shall have original and exclusive jurisdiction of all cases under title 11.
(b) Except as provided in subsection (e)(2), and notwithstanding any Act of
Congress that confers exclusive jurisdiction on a court or courts other than the
district courts, the district courts shall have original but not exclusive jurisdiction
of all civil proceedings arising under title 11, or arising in or related to cases under
title 11.
(c)(1) Except with respect to a case under chapter 15 of title 11, nothing in
this section prevents a district court in the interest of justice, or in the interest of
comity with State courts or respect for State law, from abstaining from hearing a
particular proceeding arising under title 11 or arising in or related to a case under
title 11.
(2) Upon timely motion of a party in a proceeding based upon a State law
claim or State law cause of action, related to a case under title 11 but not arising
under title 11 or arising in a case under title 11, with respect to which an action
could not have been commenced in a court of the United States absent jurisdiction
under this section, the district court shall abstain from hearing such proceeding if
an action is commenced, and can be timely adjudicated, in a State forum of
appropriate jurisdiction.
(d) Any decision to abstain or not to abstain made under subsection (c)
(other than a decision not to abstain in a proceeding described in subsection (c)(2))
is not reviewable by appeal or otherwise by the court of appeals under section
158(d), 1291, or 1292 of this title or by the Supreme Court of the United States
under section 1254 of this title. Subsection (c) and this subsection shall not be
construed to limit the applicability of the stay provided for by section 362 of title
11, United States Code, as such section applies to an action affecting the property
of the estate in bankruptcy.
(e) The district court in which a case under title 11 is commenced or is
pending shall have exclusive jurisdiction—
(1) of all the property, wherever located, of the debtor as of the
commencement of such case, and of property of the estate; and
(2) over all claims or causes of action that involve construction of section
327 of title 11, United States Code, or rules relating to disclosure requirements
under section 327.

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28 U.S.C. §1441. Removal of civil actions.
(a) Generally.—Except as otherwise expressly provided by Act of Congress,
any civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.
(b) Removal based on diversity of citizenship.—(1) In determining whether
a civil action is removable on the basis of the jurisdiction under section 1332(a) of
this title, the citizenship of defendants sued under fictitious names shall be
disregarded.
(2) A civil action otherwise removable solely on the basis of the jurisdiction
under section 1332(a) of this title may not be removed if any of the parties in
interest properly joined and served as defendants is a citizen of the State in which
such action is brought.
(c) Joinder of Federal law claims and State law claims.—(1) If a civil action
includes—
(A) a claim arising under the Constitution, laws, or treaties of the United
States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district
court or a claim that has been made nonremovable by statute,
the entire action may be removed if the action would be removable without the
inclusion of the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the district court
shall sever from the action all claims described in paragraph (1)(B) and shall
remand the severed claims to the State court from which the action was removed.
Only defendants against whom a claim described in paragraph (1)(A) has been
asserted are required to join in or consent to the removal under paragraph (1).
(d) Actions against foreign States.—Any civil action brought in a State court
against a foreign state as defined in section 1603(a) of this title may be removed by
the foreign state to the district court of the United States for the district and
division embracing the place where such action is pending. Upon removal the
action shall be tried by the court without jury. Where removal is based upon this
subsection, the time limitations of section 1446(b) of this chapter may be enlarged
at any time for cause shown.
(e) Multiparty, multiforum jurisdiction.—(1) Notwithstanding the provisions
of subsection (b) of this section, a defendant in a civil action in a State court may
remove the action to the district court of the United States for the district and
division embracing the place where the action is pending if—
(A) the action could have been brought in a United States district court under
section 1369 of this title; or
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(B) the defendant is a party to an action which is or could have been
brought, in whole or in part, under section 1369 in a United States district court
and arises from the same accident as the action in State court, even if the action to
be removed could not have been brought in a district court as an original matter.
The removal of an action under this subsection shall be made in accordance
with section 1446 of this title, except that a notice of removal may also be filed
before trial of the action in State court within 30 days after the date on which the
defendant first becomes a party to an action under section 1369 in a United States
district court that arises from the same accident as the action in State court, or at a
later time with leave of the district court.
(2) Whenever an action is removed under this subsection and the district
court to which it is removed or transferred under section 1407(j)1 has made a
liability determination requiring further proceedings as to damages, the district
court shall remand the action to the State court from which it had been removed for
the determination of damages, unless the court finds that, for the convenience of
parties and witnesses and in the interest of justice, the action should be retained for
the determination of damages.
(3) Any remand under paragraph (2) shall not be effective until 60 days after
the district court has issued an order determining liability and has certified its
intention to remand the removed action for the determination of damages. An
appeal with respect to the liability determination of the district court may be taken
during that 60-day period to the court of appeals with appellate jurisdiction over
the district court. In the event a party files such an appeal, the remand shall not be
effective until the appeal has been finally disposed of. Once the remand has
become effective, the liability determination shall not be subject to further review
by appeal or otherwise.
(4) Any decision under this subsection concerning remand for the
determination of damages shall not be reviewable by appeal or otherwise.
(5) An action removed under this subsection shall be deemed to be an action
under section 1369 and an action in which jurisdiction is based on section 1369 of
this title for purposes of this section and sections 1407, 1697, and 1785 of this title.
(6) Nothing in this subsection shall restrict the authority of the district court
to transfer or dismiss an action on the ground of inconvenient forum.
(f) Derivative removal jurisdiction.—The court to which a civil action is
removed under this section is not precluded from hearing and determining any
claim in such civil action because the State court from which such civil action is
removed did not have jurisdiction over that claim.

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28 U.S.C. §1442. Federal officers or agencies sued or prosecuted.
(a) A civil action or criminal prosecution that is commenced in a State court
and that is against or directed to any of the following may be removed by them to
the district court of the United States for the district and division embracing the
place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person
acting under that officer) of the United States or of any agency thereof, in an
official or individual capacity, for or relating to any act under color of such office
or on account of any right, title or authority claimed under any Act of Congress for
the apprehension or punishment of criminals or the collection of the revenue.
(2) A property holder whose title is derived from any such officer, where
such action or prosecution affects the validity of any law of the United States.
(3) Any officer of the courts of the United States, for or relating to any act
under color of office or in the performance of his duties;
(4) Any officer of either House of Congress, for or relating to any act in the
discharge of his official duty under an order of such House.
(b) A personal action commenced in any State court by an alien against any
citizen of a State who is, or at the time the alleged action accrued was, a civil
officer of the United States and is a nonresident of such State, wherein jurisdiction
is obtained by the State court by personal service of process, may be removed by
the defendant to the district court of the United States for the district and division
in which the defendant was served with process.
(c) Solely for purposes of determining the propriety of removal under
subsection (a), a law enforcement officer, who is the defendant in a criminal
prosecution, shall be deemed to have been acting under the color of his office if the
officer—
(1) protected an individual in the presence of the officer from a crime of
violence;
(2) provided immediate assistance to an individual who suffered, or who was
threatened with, bodily harm; or
(3) prevented the escape of any individual who the officer reasonably
believed to have committed, or was about to commit, in the presence of the officer,
a crime of violence that resulted in, or was likely to result in, death or serious
bodily injury.
(d) In this section, the following definitions apply:
(1) The terms “civil action” and “criminal prosecution” include any
proceeding (whether or not ancillary to another proceeding) to the extent that in
such proceeding a judicial order, including a subpoena for testimony or documents,
is sought or issued. If removal is sought for a proceeding described in the previous
sentence, and there is no other basis for removal, only that proceeding may be
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removed to the district court.
(2) The term “crime of violence” has the meaning given that term in section
16 of title 18.
(3) The term “law enforcement officer” means any employee described in
subparagraph (A), (B), or (C) of section 8401(17) of title 5 and any special agent in
the Diplomatic Security Service of the Department of State.
(4) The term “serious bodily injury” has the meaning given that term in
section 1365 of title 18.
(5) The term “State” includes the District of Columbia, United States
territories and insular possessions, and Indian country (as defined in section 1151
of title 18).
(6) The term “State court” includes the Superior Court of the District of
Columbia, a court of a United States territory or insular possession, and a tribal
court.

28 U.S.C. §1452. Removal of claims related to bankruptcy cases.
(a) A party may remove any claim or cause of action in a civil action other
than a proceeding before the United States Tax Court or a civil action by a
governmental unit to enforce such governmental unit's police or regulatory power,
to the district court for the district where such civil action is pending, if such
district court has jurisdiction of such claim or cause of action under section 1334 of
this title.
(b) The court to which such claim or cause of action is removed may remand
such claim or cause of action on any equitable ground. An order entered under this
subsection remanding a claim or cause of action, or a decision to not remand, is not
reviewable by appeal or otherwise by the court of appeals under section 158(d),
1291, or 1292 of this title or by the Supreme Court of the United States under
section 1254 of this title.

42 U.S.C. §7401. Congressional findings and declaration of purpose.
(a) Findings
The Congress finds—
(1) that the predominant part of the Nation's population is located in its
rapidly expanding metropolitan and other urban areas, which generally cross the
boundary lines of local jurisdictions and often extend into two or more States;
(2) that the growth in the amount and complexity of air pollution brought
about by urbanization, industrial development, and the increasing use of motor
vehicles, has resulted in mounting dangers to the public health and welfare,
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including injury to agricultural crops and livestock, damage to and the
deterioration of property, and hazards to air and ground transportation;
(3) that air pollution prevention (that is, the reduction or elimination, through
any measures, of the amount of pollutants produced or created at the source) and
air pollution control at its source is the primary responsibility of States and local
governments; and
(4) that Federal financial assistance and leadership is essential for the
development of cooperative Federal, State, regional, and local programs to prevent
and control air pollution.
(b) Declaration
The purposes of this subchapter are—
(1) to protect and enhance the quality of the Nation's air resources so as to
promote the public health and welfare and the productive capacity of its
population;
(2) to initiate and accelerate a national research and development program to
achieve the prevention and control of air pollution;
(3) to provide technical and financial assistance to State and local
governments in connection with the development and execution of their air
pollution prevention and control programs; and
(4) to encourage and assist the development and operation of regional air
pollution prevention and control programs.
(c) Pollution prevention
A primary goal of this chapter is to encourage or otherwise promote
reasonable Federal, State, and local governmental actions, consistent with the
provisions of this chapter, for pollution prevention.

42 U.S.C. §7604. Citizen suits.
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section, any person may
commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other
governmental instrumentality or agency to the extent permitted by the Eleventh
Amendment to the Constitution) who is alleged to have violated (if there is
evidence that the alleged violation has been repeated) or to be in violation of (A)
an emission standard or limitation under this chapter or (B) an order issued by the
Administrator or a State with respect to such a standard or limitation,
(2) against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under this chapter which is not
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discretionary with the Administrator, or
(3) against any person who proposes to construct or constructs any new or
modified major emitting facility without a permit required under part C of
subchapter I of this chapter (relating to significant deterioration of air quality) or
part D of subchapter I of this chapter (relating to nonattainment) or who is alleged
to have violated (if there is evidence that the alleged violation has been repeated)
or to be in violation of any condition of such permit.
The district courts shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to enforce such an emission standard
or limitation, or such an order, or to order the Administrator to perform such act or
duty, as the case may be, and to apply any appropriate civil penalties (except for
actions under paragraph (2)). The district courts of the United States shall have
jurisdiction to compel (consistent with paragraph (2) of this subsection) agency
action unreasonably delayed, except that an action to compel agency action
referred to in section 7607(b) of this title which is unreasonably delayed may only
be filed in a United States District Court within the circuit in which such action
would be reviewable under section 7607(b) of this title. In any such action for
unreasonable delay, notice to the entities referred to in subsection (b)(1)(A) of this
section shall be provided 180 days before commencing such action.
(b) Notice
No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to 60 days after the plaintiff has given notice of the violation (i) to
the Administrator, (ii) to the State in which the violation occurs, and (iii) to any
alleged violator of the standard, limitation, or order, or
(B) if the Administrator or State has commenced and is diligently
prosecuting a civil action in a court of the United States or a State to require
compliance with the standard, limitation, or order, but in any such action in a court
of the United States any person may intervene as a matter of right.
(2) under subsection (a)(2) of this section prior to 60 days after the plaintiff
has given notice of such action to the Administrator, except that such action may
be brought immediately after such notification in the case of an action under this
section respecting a violation of section 7412(i)(3)(A) or (f)(4) of this title or an
order issued by the Administrator pursuant to section 7413(a) of this title. Notice
under this subsection shall be given in such manner as the Administrator shall
prescribe by regulation.
(c) Venue; intervention by Administrator; service of complaint; consent
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judgment
(1) Any action respecting a violation by a stationary source of an emission
standard or limitation or an order respecting such standard or limitation may be
brought only in the judicial district in which such source is located.
(2) In any action under this section, the Administrator, if not a party, may
intervene as a matter of right at any time in the proceeding. A judgment in an
action under this section to which the United States is not a party shall not,
however, have any binding effect upon the United States.
(3) Whenever any action is brought under this section the plaintiff shall
serve a copy of the complaint on the Attorney General of the United States and on
the Administrator. No consent judgment shall be entered in an action brought
under this section in which the United States is not a party prior to 45 days
following the receipt of a copy of the proposed consent judgment by the Attorney
General and the Administrator during which time the Government may submit its
comments on the proposed consent judgment to the court and parties or may
intervene as a matter of right.
(d) Award of costs; security
The court, in issuing any final order in any action brought pursuant to
subsection (a) of this section, may award costs of litigation (including reasonable
attorney and expert witness fees) to any party, whenever the court determines such
award is appropriate. The court may, if a temporary restraining order or
preliminary injunction is sought, require the filing of a bond or equivalent security
in accordance with the Federal Rules of Civil Procedure.
(e) Nonrestriction of other rights
Nothing in this section shall restrict any right which any person (or class of
persons) may have under any statute or common law to seek enforcement of any
emission standard or limitation or to seek any other relief (including relief against
the Administrator or a State agency). Nothing in this section or in any other law of
the United States shall be construed to prohibit, exclude, or restrict any State, local,
or interstate authority from—
(1) bringing any enforcement action or obtaining any judicial remedy or
sanction in any State or local court, or
(2) bringing any administrative enforcement action or obtaining any
administrative remedy or sanction in any State or local administrative agency,
department or instrumentality, against the United States, any department, agency,
or instrumentality thereof, or any officer, agent, or employee thereof under State or
local law respecting control and abatement of air pollution. For provisions
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requiring compliance by the United States, departments, agencies,
instrumentalities, officers, agents, and employees in the same manner as
nongovernmental entities, see section 7418 of this title.
(f) “Emission standard or limitation under this chapter” defined
For purposes of this section, the term “emission standard or limitation under
this chapter” means—
(1) a schedule or timetable of compliance, emission limitation, standard of
performance or emission standard,
(2) a control or prohibition respecting a motor vehicle fuel or fuel additive,
or
(3) any condition or requirement of a permit under part C of subchapter I of
this chapter (relating to significant deterioration of air quality) or part D of
subchapter I of this chapter (relating to nonattainment),, [sic] section 7419 of this
title (relating to primary nonferrous smelter orders), any condition or requirement
under an applicable implementation plan relating to transportation control
measures, air quality maintenance plans, vehicle inspection and maintenance
programs or vapor recovery requirements, section 7545(e) and (f) of this title
(relating to fuels and fuel additives), section 7491 of this title (relating to visibility
protection), any condition or requirement under subchapter VI of this chapter
(relating to ozone protection), or any requirement under section 7411 or 7412 of
this title (without regard to whether such requirement is expressed as an emission
standard or otherwise); or
(4) any other standard, limitation, or schedule established under any permit
issued pursuant to subchapter V of this chapter or under any applicable State
implementation plan approved by the Administrator, any permit term or condition,
and any requirement to obtain a permit as a condition of operations. [sic] which is
in effect under this chapter (including a requirement applicable by reason of
section 7418 of this title) or under an applicable implementation plan.
(g) Penalty fund
(1) Penalties received under subsection (a) of this section shall be deposited
in a special fund in the United States Treasury for licensing and other services.
Amounts in such fund are authorized to be appropriated and shall remain available
until expended, for use by the Administrator to finance air compliance and
enforcement activities. The Administrator shall annually report to the Congress
about the sums deposited into the fund, the sources thereof, and the actual and
proposed uses thereof.
(2) Notwithstanding paragraph (1) the court in any action under this
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subsection to apply civil penalties shall have discretion to order that such civil
penalties, in lieu of being deposited in the fund referred to in paragraph (1), be
used in beneficial mitigation projects which are consistent with this chapter and
enhance the public health or the environment. The court shall obtain the view of
the Administrator in exercising such discretion and selecting any such projects.
The amount of any such payment in any such action shall not exceed $100,000.

43 U.S.C. § 1349. Citizens suits, jurisdiction and judicial review
(a) Persons who may bring actions; persons against whom action may be
brought; time of action; intervention by Attorney General; costs and fees; security
(1) Except as provided in this section, any person having a valid legal
interest which is or may be adversely affected may commence a civil action on his
own behalf to compel compliance with this subchapter against any person,
including the United States, and any other government instrumentality or agency
(to the extent permitted by the eleventh amendment to the Constitution) for any
alleged violation of any provision of this subchapter or any regulation promulgated
under this subchapter, or of the terms of any permit or lease issued by the Secretary
under this subchapter.
(2) Except as provided in paragraph (3) of this subsection, no action may be
commenced under subsection (a)(1) of this section—
(A) prior to sixty days after the plaintiff has given notice of the alleged
violation, in writing under oath, to the Secretary and any other appropriate Federal
official, to the State in which the violation allegedly occurred or is occurring, and
to any alleged violator; or
(B) if the Attorney General has commenced and is diligently prosecuting a
civil action in a court of the United States or a State with respect to such matter,
but in any such action in a court of the United States any person having a legal
interest which is or may be adversely affected may intervene as a matter of right.
(3) An action may be brought under this subsection immediately after
notification of the alleged violation in any case in which the alleged violation
constitutes an imminent threat to the public health or safety or would immediately
affect a legal interest of the plaintiff.
(4) In any action commenced pursuant to this section, the Attorney General,
upon the request of the Secretary or any other appropriate Federal official, may
intervene as a matter of right.
(5) A court, in issuing any final order in any action brought pursuant to
subsection (a)(1) or subsection (c) of this section, may award costs of litigation,
including reasonable attorney and expert witness fees, to any party, whenever such
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court determines such award is appropriate. The court may, if a temporary
restraining order or preliminary injunction is sought, require the filing of a bond or
equivalent security in a sufficient amount to compensate for any loss or damage
suffered, in accordance with the Federal Rules of Civil Procedure.
(6) Except as provided in subsection (c) of this section, all suits challenging
actions or decisions allegedly in violation of, or seeking enforcement of, the
provisions of this subchapter, or any regulation promulgated under this subchapter,
or the terms of any permit or lease issued by the Secretary under this subchapter,
shall be undertaken in accordance with the procedures described in this subsection.
Nothing in this section shall restrict any right which any person or class of persons
may have under any other Act or common law to seek appropriate relief.
(b) Jurisdiction and venue of actions
(1) Except as provided in subsection (c) of this section, the district courts of
the United States shall have jurisdiction of cases and controversies arising out of,
or in connection with (A) any operation conducted on the outer Continental Shelf
which involves exploration, development, or production of the minerals, of the
subsoil and seabed of the outer Continental Shelf, or which involves rights to such
minerals, or (B) the cancellation, suspension, or termination of a lease or permit
under this subchapter. Proceedings with respect to any such case or controversy
may be instituted in the judicial district in which any defendant resides or may be
found, or in the judicial district of the State nearest the place the cause of action
arose.
(2) Any resident of the United States who is injured in any manner through
the failure of any operator to comply with any rule, regulation, order, or permit
issued pursuant to this subchapter may bring an action for damages (including
reasonable attorney and expert witness fees) only in the judicial district having
jurisdiction under paragraph (1) of this subsection.
(c) Review of Secretary's approval of leasing program; review of approval,
modification or disapproval of exploration or production plan; persons who may
seek review; scope of review; certiorari to Supreme Court
(1) Any action of the Secretary to approve a leasing program pursuant to
section 1344 of this title shall be subject to judicial review only in the United
States Court of Appeal1 for the District of Columbia.
(2) Any action of the Secretary to approve, require modification of, or
disapprove any exploration plan or any development and production plan under
this subchapter shall be subject to judicial review only in a United States court of
appeals for a circuit in which an affected State is located.
(3) The judicial review specified in paragraphs (1) and (2) of this subsection
shall be available only to a person who (A) participated in the administrative
proceedings related to the actions specified in such paragraphs, (B) is adversely
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affected or aggrieved by such action, (C) files a petition for review of the
Secretary’s action within sixty days after the date of such action, and (D) promptly
transmits copies of the petition to the Secretary and to the Attorney General.
(4) Any action of the Secretary specified in paragraph (1) or (2) shall only be
subject to review pursuant to the provisions of this subsection, and shall be
specifically excluded from citizen suits which are permitted pursuant to subsection
(a) of this section.
(5) The Secretary shall file in the appropriate court the record of any public
hearings required by this subchapter and any additional information upon which
the Secretary based his decision, as required by section 2112 of Title 28. Specific
objections to the action of the Secretary shall be considered by the court only if the
issues upon which such objections are based have been submitted to the Secretary
during the administrative proceedings related to the actions involved.
(6) The court of appeals conducting a proceeding pursuant to this subsection
shall consider the matter under review solely on the record made before the
Secretary. The findings of the Secretary, if supported by substantial evidence on
the record considered as a whole, shall be conclusive. The court may affirm,
vacate, or modify any order or decision or may remand the proceedings to the
Secretary for such further action as it may direct.
(7) Upon the filing of the record with the court, pursuant to paragraph (5),
the jurisdiction of the court shall be exclusive and its judgment shall be final,
except that such judgment shall be subject to review by the Supreme Court of the
United States upon writ of certiorari.

46 U.S.C. §30101. Extension of jurisdiction to cases of damage or injury on
land.
(a) In general.—The admiralty and maritime jurisdiction of the United
States extends to and includes cases of injury or damage, to person or property,
caused by a vessel on navigable waters, even though the injury or damage is done
or consummated on land.
(b) Procedure.—A civil action in a case under subsection (a) may be brought
in rem or in personam according to the principles of law and the rules of practice
applicable in cases where the injury or damage has been done and consummated on
navigable waters.
(c) Actions against United States.—
(1) Exclusive remedy.—In a civil action against the United States for injury
or damage done or consummated on land by a vessel on navigable waters, chapter
309 or 311 of this title, as appropriate, provides the exclusive remedy.
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(2) Administrative claim.—A civil action described in paragraph (1) may not
be brought until the expiration of the 6-month period after the claim has been
presented in writing to the agency owning or operating the vessel causing the
injury or damage.

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STATEMENT OF RELATED CASES
Pursuant to Local Rule 28-2.6(c), the People identify the following related
appeal, which raises the same or closely related issues of subject matter
jurisdiction: County of San Mateo, et al. v. Chevron Corp., et al., 9th Cir. Nos. 1815499, 18-15502, and 18-15503, which are appeals by defendant oil and gas
companies from orders of the district court (Chhabria, J.) remanding the plaintiff
California cities and counties’ state law public nuisance and other claims.

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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Form 8. Certificate of Compliance for Briefs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf

9th Cir. Case Number(s) 18-16663
I am the attorney or self-represented party.
This brief contains 13,997 words, excluding the items exempted by Fed. R.
App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P.
32(a)(5) and (6).
I certify that this brief (select only one):
[ X ] complies with the word limit of Cir. R. 32-1.
[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
[ ] is an amicus brief and complies with the word limit of Fed. R. App. P. 29(a)(5),
Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).
[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.
[ ] complies with the longer length limit permitted by Cir. R. 32-2(b) because (select
only one):
[ ] it is a joint brief submitted by separately represented parties;
[ ] a party or parties are filing a single brief in response to multiple briefs; or
[ ] a party or parties are filing a single brief in response to a longer joint brief.
[ ] complies with the length limit designated by court order dated _____________.
[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).

Signature /s/Michael Rubin

Date March 13, 2019

(use “s/[typed name]” to sign electronically-filed documents)

Feedback or questions about this form? Email us at forms@ca9.uscourts.gov

Form 8

Rev. 12/01/18

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