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City of Oakland v. BP PLC

United States Court of Appeals for the Ninth Circuit

February 5, 2020, Argued and Submitted, Pasadena, California; May 26, 2020, Filed

No. 18-16663


IKUTA, Circuit Judge:

Two California cities brought actions in state court alleging that the defendants' production and promotion of fossil fuels is a public nuisance under California law, and the defendants removed the complaints to federal court. We hold that the state-law claim for public nuisance does not arise under federal law for purposes of 28 U.S.C. § 1331, and we remand to the district court to consider whether there was an alternative basis for subject-matter jurisdiction.

In September 2017, the city attorneys [*10]  for the City of Oakland and the City and County of San Francisco filed complaints in California state court asserting a California public-nuisance claim against five of the world's largest energy companies: BP p.l.c., Chevron Corporation, ConocoPhillips, Exxon Mobil Corporation, and Royal Dutch Shell plc.2 The complaints claim that the defendants are liable for causing or contributing to a public nuisance under California law. See Cal. Civ. Code §§ 3479, 3480, 3491, 3494; Cal. Civ. Proc. Code § 731. We refer to the plaintiffs collectively as the "Cities" and to the defendants collectively as the "Energy Companies."

According to the complaints, the Energy Companies' "production and promotion of massive quantities of fossil fuels" caused or contributed to "global warming-induced sea level rise," leading to coastal flooding of low-lying shorelines, increased shoreline erosion, salt-water impacts on the Cities' wastewater treatment systems, and interference with stormwater infrastructure, among other injuries. The complaints further allege that the Cities are incurring costs to abate these harms and expect the injuries will become more severe over the next 80 years. Accordingly, the Cities seek an order of abatement requiring the Energy Companies [*11]  to fund a "climate change adaptation program" for Oakland and San Francisco "consisting of the building of sea walls, raising the elevation of low-lying property and buildings and building such other infrastructure as is necessary for [the Cities] to adapt to climate change."

In October 2017, the Energy Companies removed the Cities' complaints to federal court. The Energy Companies identified seven different grounds for subject-matter jurisdiction in their notices of removal, including that the Cities' public-nuisance claim was governed by federal common law because the claim implicates "uniquely federal interests."3 After removal, the cases were assigned to the same district judge, Judge William H. Alsup.4

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2020 U.S. App. LEXIS 16644 *; 50 ELR 20124

CITY OF OAKLAND, a Municipal Corporation, and The People of the State of California, acting by and through the Oakland City Attorney; CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation, and The People of the State of California, acting by and through the San Francisco City Attorney Dennis J. Herrera, Plaintiffs-Appellants, v. BP PLC, a public limited company of England and Wales; CHEVRON CORPORATION, a Delaware corporation; CONOCOPHILLIPS, a Delaware corporation; EXXON MOBIL CORPORATION, a New Jersey corporation; ROYAL DUTCH SHELL PLC, a public limited company of England and Wales; DOES, 1 through 10, Defendants-Appellees.

Prior History:  [*1] Appeal from the United States District Court for the Northern District of California. D.C. Nos. 3:17-cv-06011-WHA, 3:17-cv-06012-WHA. William Alsup, District Judge, Presiding.

City of Oakland v. BP p.l.c., 2018 U.S. Dist. LEXIS 126258 (N.D. Cal., July 27, 2018)



Energy, state-law, nuisance, Air, subject-matter, preemption, discovery, well-pleaded-complaint, preempts, federal-question, public-nuisance, overwhelming, displace, global

Governments, Local Governments, Claims By & Against, Real Property Law, Nuisance, Types of Nuisances, Public Nuisances, Civil Procedure, Appeals, Standards of Review, De Novo Review, Legislation, Interpretation, Preliminary Considerations, Jurisdiction, Subject Matter Jurisdiction, Subject Matter Jurisdiction, Federal Questions, Removal, Specific Cases Removed, Courts, Creation & Organization, Nonremovable Actions, Jurisdictional Sources, Statutory Sources, Federal Questions, Well Pleaded Complaint Rule, Constitutional Sources, Constitutional Law, Jurisdiction Over Actions, Business & Corporate Compliance, Climate Change, Environmental Law, Climate Change, Common Law, Environmental Law, Air Quality, Enforcement, Civil Actions, Federal Versus State Law, Federal Preemption, Torts, Nuisance, Citizen Suits, Postremoval Remands, Elements for Removal, Removability, Judgments, Summary Judgment, Entitlement as Matter of Law, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Amendment of Pleadings, Leave of Court, Reviewability of Lower Court Decisions, Preservation for Review