Sunoco LP, et al. v. City and County of Honolulu, Hawaii, et al.

This case is one of numerous lawsuits filed in state courts seeking to hold energy companies liable for global climate change based on their worldwide oil and gas production activities dating back many decades. Petitioners removed this case to federal court on numerous grounds, including the federal officer removal statute, 28 U.S.C. § 1442, arguing that, under respondents’ theory of harm, their alleged injuries resulted from petitioners’ cumulative production and supply of oil and gas, a substantial portion of which occurred at the direction of federal officers. The Ninth Circuit, however, affirmed remand on the ground that the defenses petitioners intended to raise—including preemption and constitutional defenses—did not arise out of petitioners’ official federal duties. In so holding, the Ninth Circuit created a circuit conflict with multiple courts including the Third Circuit, which has rejected that very argument. The first question presented is:

1. Whether the court of appeals erred in holding that 28 U.S.C. § 1442 precludes removal by federal officers and persons acting under them unless the removing defendant’s colorable federal defense arises out of the defendant’s federal duty. Additionally, this case presents a second question on which the Court has asked the Solicitor General to provide the United States’s views in a similar case:

2. Whether a federal district court has jurisdiction under 28 U.S.C. § 1331 over nominally state law claims seeking redress for injuries allegedly caused by the effect of transboundary greenhouse gas emissions on the global climate, on the ground that federal law necessarily and exclusively governs such claims.