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Board of County Commissioners of Boulder County v. Suncor Energy

No. 19-1330. D.Colo. Judge McHugh. Global Warming—Federal Court Removal—Motion to Remand—Appellate Jurisdiction under 28 USC § 1447(d)—Federal Officer Removal under 28 USC § 1442(a)(1).

July 6, 2020

The county commissioners of Boulder County and San Miguel County and the City of Boulder (collectively, the counties) filed suit in state court in 2018 against defendants Suncor Energy and ExxonMobil Corporation. The complaint asserted several state law claims relating to rising costs arising from adverse impacts of global warming related damage allegedly caused by oil and gas companies. The complaint sought to ensure that defendants pay a pro rata share of costs the government entities have incurred and will incur based on defendants’ conduct.

Defendants filed a notice of removal in federal district court, asserting seven grounds for federal jurisdiction. Five of the grounds relied on the general removal statute, one relied on the bankruptcy removal statute, and another relied on federal officer removal under 28 USC § 1442(a)(1)). The counties filed a motion to remand pursuant to 28 USC § 1447(c) based on lack of federal subject matter jurisdiction. The district court granted the motion, rejecting all seven grounds for removal.

Defendants appealed the remand order with respect to all of the bases except the challenge based on bankruptcy removal. The counties filed a motion for partial dismissal based on the reviewability bar in § 1447(d), seeking to narrow the issues on appeal to only the propriety of federal officer removal, and for summary affirmance. The authority for appellate courts to review district court orders remanding removed cases to state court is substantially limited by § 1447(d). Under this provision, when a district court issues a remand order premised on a § 1447(c) ground, the circuit court is empowered to review that order only to the extent it addresses the removal bases explicitly excepted from § 1447. Here, § 1447(d) supplies appellate jurisdiction only to review the district court’s rejection of removal based on federal officer jurisdiction.

The federal officer removal statute permits removal of state court actions filed against an officer (or person acting under that officer) of the United States or of any of its agencies, in an official or individual capacity, for or relating to any act under color of that office. ExxonMobil asserted federal officer removal jurisdiction based on its long-term mining of the Outer Continental Shelf (OCS) for fossil fuels under government leases. It argued that its participation in the OCS leasing program under the federal government’s terms and conditions satisfies the “acting under” element of federal officer removal. Here, ExxonMobil was not “acting under” a federal superior within the meaning of the federal officer statute, because under the OCS leases the government does not control how defendants drill for oil and gas or develop and produce the product. The district court therefore correctly rejected the attempt to remove this action under 28 USC § 1442(a)(1).

The remand order was affirmed to the extent it rejected removal under § 1442(a)(1). The remainder of the appeal was dismissed. The counties’ motions for partial dismissal and for summary affirmance were granted and dismissed as moot, respectively.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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