Board of County Commissioners of Boulder v. Suncor Energy (U.S.A.) Inc.

          ORDER

          William J. Martínez United States District Judge.

         This 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.

         I. BACKGROUND

         Plaintiffs 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 tortious conduct.

         Defendants filed a Notice of Removal (ECF No. 1) on June 29, 2018. Plaintiffs filed a Motion to Remand (ECF No. 34) on July 30, 2018.

         The 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.

         Defendants 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.

         Defendants 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.

         II. ANALYSIS

         A. The Jurisdictional Grounds Subject to Appellate Review

         “Generally 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)).

         Based 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).

         There 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).^[1] 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.^[2] 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 Sanchez.

         Defendants 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 ...