ELR Citation: 53 ELR 20185
No(s). 22-16810 and 22-16812 (9th Cir. Nov 27, 2023)

In an unpublished opinion, the Ninth Circuit affirmed a district court ruling that granted two cities' motion to remand to state court climate liability suits brought against five oil and gas companies. The cities of San Francisco and Oakland initially sued the companies in state court, arguing the companies' production and promotion of fossil fuels was a public nuisance under California law. The companies removed the suit to federal court, and the district judge granted the cities' motion to remand. On appeal, the companies asserted two grounds for removal: the federal officer removal statute and the Grable exception to the well-pleaded complaint rule. The appellate court found the evidence regarding the companies' claim that they were acting under federal direction during World War II and pursuant to ongoing fuel contracts merely confirmed the companies' compliance with the law while executing arms-length agreements to supply fuel and build fuel infrastructure, and that they were not "acting under" federal officers. It further found the Grable theory would require it to find state law complaints removable if a defendant asserts a First Amendment defense, which runs contrary to law that has been settled since 1887. It affirmed remand to state court.