United States District Court, D. Colorado
BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY; BOARD OF COUNTY COMMISSIONERS OF SAN MIGUEL COUNTY; and CITY OF BOULDER, Plaintiffs,
SUNCOR ENERGY (U.S.A.) INC.; SUNCOR ENERGY SALES INC.; SUNCOR ENERGY INC.; and EXXON MOBIL CORPORATION, Defendants.
William J. Martínez United States District Judge.
matter is before the Court on Defendants' Motion for a
Stay of the Remand Order Pending Appeal filed September 13,
2019 (ECF No. 75). Defendants seek to stay this Court's
Order of September 5, 2019 (ECF No. 69) that granted
Plaintiffs' Motion to Remand and ordered that the case be
remanded to Boulder County District Court, Colorado.
Plaintiffs filed a response to the motion on September 19,
2019 (ECF No. 77), and Defendants filed a Reply on September
23, 2019 (ECF No. 78). For the reasons explained below,
Defendants' Motion for a Stay of the Remand Order Pending
Appeal is denied.
filed suit in Boulder County asserting state law claims of
public nuisance, private nuisance, trespass, unjust
enrichment, violation of the Colorado Consumer Protection
Act, and civil conspiracy. The claims arise from
Plaintiffs' contention that they face substantial and
rising costs to protect people and property within their
jurisdictions from the dangers of climate alteration.
Plaintiffs allege that Defendants substantially contributed
to climate alteration through selling fossil fuels and
promoting their unchecked use while concealing and
misrepresenting their dangers. Plaintiffs seek monetary
damages from Defendants, requiring them to pay their pro
rata share of the costs of abating the impacts on
climate change they have allegedly caused through their
filed a Notice of Removal (ECF No. 1) on June 29, 2018.
Plaintiffs filed a Motion to Remand (ECF No. 34) on July 30,
Court recognized in its Order granting Plaintiffs' Motion
to Remand that Plaintiffs' claims implicate important
issues involving climate change caused in part by the burning
of fossil fuels. (ECF No. 69 at 55.) It found, however, that
Defendants did not meet their burden of showing that federal
jurisdiction exists on the six grounds upon which they based
their removal: (1) federal question jurisdiction-that
Plaintiffs' claims arise under federal common law, and
that this action necessarily and unavoidably raises disputed
and substantial federal issues that give rise to jurisdiction
under Grable & Sons Metal Products, Inc. v. Darue
Eng'g & Mfg., 545 U.S. 308 (2005); (2) complete
preemption; (3) federal enclave jurisdiction; (4)
jurisdiction because the allegations arise from action taken
at the direction of federal officers; (5) jurisdiction under
the Outer Continental Shelf Lands Act, 43 U.S.C. §
1349(b); and (6) jurisdiction under 28 U.S.C. § 1452(a)
because the claims are related to bankruptcy proceedings.
assert that the Court should stay its remand order pending an
appeal to the United States Court of Appeals for the Tenth
Circuit. They note that courts have disagreed about whether
climate change tort claims necessarily arise under federal
common law, permitting removal to federal court. They further
note that after the filing of the notice of appeal in this
case, cases presenting this disputed question are now pending
in four federal courts of appeals.
argue in support of their motion that the conflict of
authority on this complex legal question and the state of
climate change litigation nationwide justify the entry of a
stay of this Court's remand order pending the appeal.
Such a stay will protect Defendants' appellate rights
while providing the Tenth Circuit with an opportunity to
weigh in on issues that other federal courts of appeals are
considering. Defendants argue that the lack of a stay, by
contrast, will irreparably harm them because they will be
subject to duplicative proceedings in federal and state
court, and could effectively lose their right to appeal.
Finally, Defendants argue that given the nature of
Plaintiffs' claims related to climate change and the
public interests involved, the balance of harms tilts
decidedly in Defendants' favor.
The Jurisdictional Grounds Subject to Appellate
speaking, federal courts of appeals may not review district
court remand orders.” BP Am., Inc. v. Oklahoma ex
rel. Edmondson, 613 F.3d 1029, 1032 (10th Cir. 2010).
This is mandated by 28 U.S.C. § 1447(d), which states
that “[a]n order remanding a case to the State court
from which is was removed is not reviewable on appeal or
otherwise.” Section 1447(d) “generally prohibits
appellate review of remand orders based on a district
court's lack of subject matter jurisdiction, ” as
here. City and Council of Baltimore v. BP P.L.C.
[“Baltimore”], 2019 WL 3464667, at *3
(D. Md. July 31, 2019) (citing Powerex Corp. v. Reliant
Energy Servs., Inc., 551 U.S. 224, 230 (2007)).
Congress's purpose in limiting appellate review of remand
orders in § 1447(d) “is to avoid ‘prolonged
litigation on threshold nonmerits questions.'”
Id. (quoting Powerex, 551 U.S. at 237.) As
the Baltimore court noted, “[t]his rule is
strict; it bars review ‘even if the remand order is
manifestly, inarguably erroneous,' . . . and even if the
‘erroneous remand[ ] has undesirable consequences'
for federal interests.” Id. (quoting
Powerex Corp., 551 U.S. at 237; In Re Norfolk S.
Ry. Co., 756 F.3d 282, 287 (4th Cir. 2014)).
on the foregoing, appellate review would be foreclosed as to
almost every basis under which Defendants relied in their
Notice of Removal based on the Court's finding of lack of
subject matter jurisdiction. Section 1447(d) does, however,
contain exceptions to the bar of appellate review for claims
brought under 28 U.S.C. §§ 1442 and 1443. Here,
since Defendants asserted federal officer jurisdiction under
§ 1442, an appeal of the remand order is appropriate on
that ground. Defendants argue that since an appeal is
appropriate as to federal officer jurisdiction, the United
States Court of Appeals of the Tenth Circuit may review the
entire order and all grounds for removal addressed there.
Plaintiffs argue, on the other hand, that the remaining
grounds for removal other than federal officer jurisdiction
are plainly unreviewable pursuant to § 1447(d).
is a split of authority on that issue, and the Tenth Circuit
has not definitively decided the issue. Eight Circuits have
found, consistent with Plaintiffs' argument, that
appellate jurisdiction is limited to the portion of the
remand order tied to an express exception in §
1447(d). Accord Baltimore, 2019 WL
3464667, at *4 (noting majority rule in holding that
“only the issue of federal officer removal would be
subject to review on defendants' appeal of the
remand”). The Tenth Circuit also found to this effect
in an unpublished decision. Sanchez v. Onuska, 1993
WL 307897, at *1 (10th Cir. 1993) (“the portion of the
remand order in this case concerning the § 1441(c)
removal is not reviewable and must be dismissed for lack of
jurisdiction”). Only the Sixth and Seventh Circuits
have found that the entire order is reviewable in that
instance. This Court finds it likely that the Tenth
Circuit will follow the weight of authority and find that the
only ground subject to appeal is federal officer jurisdiction
under § 1442, consistent with its unpublished opinion in
rely, however, on the Tenth Circuit's decision in
Coffey v. Freeport McMoran Copper & Gold, 581
F.3d 1240, 1247 (10th Cir. 2009), arguing it “strongly
suggests” the Tenth Circuit would review the
Court's “entire order” (ECF No. 75 at 6).
They also rely on the Supreme Court's decision in