Ames Moot Court Competition 2022

Welcome everyone to the final round of the Ames Moot Court Competition. My name is Zach Tauscher. I am the vice president of the Board of Student Advisers for Ames Moot Court Competitions. Myself, along with Azucena Marquez, we've been the primary organizers of this event and we're very excited to see both teams here today. Just to reiterate, it's been an honor and a pleasure to work closely with both of these teams throughout the past couple of years as they progressed through the competition and we're definitely very proud of all of their hard work that I'm sure you'll see on the stage today. Presiding over this year's competition are the Honorable Sri Srinivasan chief judge of the US Court of Appeals for the DC Circuit, the Honorable Brit Grant for the US Court of Appeals for the 11th Circuit, and the Honorable Rowan Wilson of the New York Court of Appeals. We would also like to thank our record writers today, Joseph Hasmato and William Bergstrom, both Harvard Law School class of 2017. The case today you will hear poses two key questions. First, whether federal common law exclusively governs claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse gases and second, whether a federal district court has jurisdiction under 28 USC Section 1331 over claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse gas emissions, even if they are pleaded under state law. Representing the petitioner this evening is Energon, USA, will be the Lani Guinier Memorial Team. They include Daniel Ergas, Gillian Hannahs, Emily Hatch, Samantha Neil oralist, Sierra Polston oralist and Natalie Tsang. [APPLAUSE] Then representing the respondent Ames County Board of Commissioners, we have the Justice Ruth Bader Ginsburg Memorial Team, including Pauline Esman, Justin Fishman, Connor Haaland, Sammy Ilagan oralist, Niko Palatino oralist, and Lincoln Plews. [APPLAUSE] We'll get started in a moment but before we begin, I just like to remind you of a few logistical notes. No laptops, cell phones, or other electronic devices may be used during arguments. Please take this opportunity to shut off all your phones, all that good business. Please do not take any photos during the competition and please refrain from leaving the courtroom during the competition. Finally, following the competition, there will be a reception in the pub in Wasserstein Hall around 9:30 so we hope you all can join us there. Without further ado, thank you very much and welcome to the competition. [APPLAUSE] All rise. [NOISE] The Honorable Justices of the Supreme Court of the United States. All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention for the court is now sitting. God save the United States and this honorable court. Be seated please. Well her argument now in number 22-1435, Energon, USA versus Ames County Board of Commissioners. Petitioners council, Ms. Neil, please proceed when you're ready. [NOISE] Thank you, Mr. Chief Justice and may it please the court. My name is Samantha Neil and I, together with my co-counsel, Sierra Polston, represent petitioner Energon, USA. I'll be addressing the choice of law question and Ms. Polston will address the jurisdictional question. We respectfully ask to reserve three minutes for rebuttal. An interstate problem requires an interstate solution. In this lawsuit, Ames County seeks to impose its own state tort law on an energy supplier's interstate emissions. Under the county's theory of liability, interstate emissions are rising out of the production and use of Energon's petroleum products all around the world contribute to climate change and the attendant climate change related harms should be addressable in Ames. Well, climate change is a vast and amorphous problem. This court's precedence are clear, no one state can project its own law beyond its borders. Federal common law therefore governs here for three reasons. First, the interstate and international nature of the controversy implicates a uniquely federal interest. Second, a uniform federal rule of decision is required to protect that interest. Lastly, the Clean Air Act, displacement of a federal common law remedy doesn't authorize states to enter and to regulate and an exclusively federal domain. For decades, this court has applied federal common law to disputes involving transboundary pollution as even the county concedes in Page 10 of its brief. That's for good reason. By definition, federal common law exists or a uniform federal rule is necessary to guarantee a federal interest. Can I ask the following question about your argument just to understand the architecture of the argument. Let's just suppose that I agree with your premise that federal common law applies here, but why does that do any work for you? Because even a federal common law can apply in that federal common law sets a rule of decision for purposes of case like this and I'm just going to put aside the statute for now. Let's just pretend there's no such thing as a Clean Air Act. Your position is that federal common law sets the rule of decision but that's often true whenever federal law preempts a state law. Why does that get you home? Because the action could still be brought in state court. State courts can do preemption just like federal courts can. What work is it doing for you to show that federal common law applies here in terms of the only thing that I understand is an issue here, which is, does this case belong in federal court, or does it belong in state court? Chief Justice Srinivasan, when federal common law applies, it's not preempting state common law. This court held in Milwaukee too, that where federal common law exists, it is because state common law cannot. By definition, federal common law applies where there's a uniform federal rule that's necessary to guarantee and essentially federal interest. [OVERLAPPING] What does that mean though that state common law cannot. Suppose Congress passes a statute that says, we want state common law to exist in this area and they just define the area in such a way that it covers this case. Is that statue? Is it invalid? Is it unconstitutional? What's the status of that kind of determination by Congress? Your Honor, congress could pass such a statute, but our submission would be that it would be unconstitutional because there's this court held in Kansas versus Colorado, states are co-equal sovereigns. It's a cardinal constitutional principle, and so one state cannot project it's law beyond its borders. The fundamental problem with it. [OVERLAPPING] What does it violate then? Congress passes that law, let's just say it's looking at this case and Congress just says, federal common law does not supersede state law in this area. What would that violate? The problem, your Honor, would be that it would enable states to govern out-of-state conduct, which would lead to, as the [inaudible] court put it, chaotic confrontation. [OVERLAPPING] Let me stop you on legislating outside of their borders, so could Ames tax Energon based on its total energy sales? Your Honor, yes, the Clean Air Act sets up a very carefully calibrated scheme. [OVERLAPPING] Let's keep this act aside for a second. Just as part of Ames's power as a sovereign, could it tax Energon? Yes, Your Honor. It could base the tax on the entirety of Energon's sales worldwide? Based on the sales worldwide, we might run into issues there but the bottom line though is that states can regulate within their borders, but what they can't do is regular thing. [OVERLAPPING] But the tax could have an effect outside of the borders, same with zoning. States can tax entities within their borders, even if it results in incidental regulatory effects. That's akin to the Dormant Commerce Clause context. But the difference here is that the county is actually attempting to regulate Energon's out-of-state conduct because in their complaint for instance, looking at Paragraphs 12 and 13 on Page 23 of the records. But let's suppose the purpose of the tax, as stated by the legislature of Ames is to effect the out-of-state operations, is there problem with that? Your Honor, it would be an in-state- A tax intrastate could be permissible. The problem is in regulating the out-of-state conduct simply because it has incidental interstate effects. [OVERLAPPING] You keep saying incidental [OVERLAPPING] How is a penalty any different than a tax? It's a financial cost to the entity for your behavior elsewhere. How do you differentiate between a penalty and a tax? Justice grant, the difference here has to do with the regulation of the conduct. The county is trying to regulate Energon's interstate emission. It's not limited to just the Ames refinery. Fundamentally, their injury arises out of global climate change. That is centuries of greenhouse gas accumulation causing the injury that Ames fields. Then moreover, looking at paragraphs 12 and 13 of the complaint on Page 23 of the record, they describe the nature of their injury as a rising out of two forms of conduct. One Energon's petroleum production and two the use of Energon's, petroleum products all around the world. Now they use point is particularly important because Energon is a petroleum supplier and so it's petroleum products only emit greenhouse gases to the extent that they are burned. Fundamentally here, the county is trying to regulate conduct that occurs out-of-state. This isn't an in-state claim. [OVERLAPPING] Well that suggests that we have a cause of action because they're not actually burning the fuels that cause the emissions, but that's a different question, isn't it? Your Honor, it's not a different question. It's the way that the county pleaded their complaint, they're attempting to hold Energon liable for its interstate emissions, but that is a result that's been barred by this court time and time again. For instance, in Roulette, this Court dealt with a case in which a Vermont homeowner tried to hold liable in out-of-state source in New York. In that decision, the courts said that the homeowner cannot apply Vermont Law to regulate an out-of-state sources. [OVERLAPPING] We said that we could apply the state law of New York? Correct, Your Honor. You can always apply the law of the source state, but here, they're not just trying to apply the law of the source state to the conduct that occurs within Ames. The fundamental difference here is they're trying to regulate Energon's interstate conduct. What if they limited their claims to just the emissions that happened within Ames, what it sounds like under your argument, that would be okay. Your Honor, that would be a closer case, but the reason why we still don't think that claim would be cognizable is because there's no source state for climate change, the county would run into insuperable traceability problems, as this court noted in American Electric Power, the very nature of greenhouse gases is that they mix globally in the atmosphere, such that as this court held, emissions from China could contribute more to an injury felt. [OVERLAPPING] Why is that just the causation? You may be right that there's some complicated traceability issues with global warming, but that just seems like a causation problem. It's not that the Sioux doesn't cognizable. It's just that they're going to have a hard time winning at the end of the day because it's hard to prove. Yes, Your Honor. The reason why that would be an issue is because the forest fires, flooding, and extreme weather patterns that constitute Ames County's injury would exist with or without the conduct in state, fundamentally because they're seeking to mitigate the effects of global climate change, in this case, this has to do with the regulation of interstate conduct. Because there is no source state for climate change, they would run into in Super Bowl traceability problems. [OVERLAPPING] Can you just have an expert witness who would calculate and certainly they would have one to who had calculate the relative impact of the emissions from within Ames on the problem of global climate change? Your Honor, if science advanced to the point where we could trace the emission of one particular molecule from a stationary source in Ames to discrete injury felt, we submit that that would be a closer case, but we're just not there yet. Because the forest fires, flooding, and weather patterns at Ames fuels would exist with or without the refinery in Ames simply, they run into problems here, but furthermore, the very question that this court granted cert on Page 2 of the record is whether the county can redress an injury caused by interstate emissions. So to the extent that they're trying to re-frame the nature of their injury as one that arises out of intrastate conduct, that's simply answers a different question than the one presented here. Can I get back to my question of suppose Congress wants to allow the suit, wants to allow this theory of recovery and you're saying that Congress constitutionally can't do that, what ways is to do? What's the clause? What's the constitutional prohibition that prevents Congress from authorizing this exact suit? The full faith and credit clause, it has to do with the particular rights and obligations of states, but beyond that, this Court has interpreted the structural nature of the Constitution as basically authorizing a horizontal federalism type models such that states are co-equal sovereigns, one state can apply its law beyond its borders and they are good practical reasons for that too. This court and clear field held that a uniform rule is required when the same conduct would be held to duplicative standards of liability in multiple different states, then the need for a uniform federal rule is plane. Here that's precisely the case because Energon's interstate emissions if we were to authorize the county's theory, would then be held to suit by 49 other state standards, and that's a problem. The real question here is what happens in the wake of displacement and American Electric Power. This court displaced a federal common law remedy, but that doesn't alter the inherent constitutional vesting of the subject matter. [OVERLAPPING] Here's what we started and what the Supreme Court well, I guess what we said [LAUGHTER] at the end of the opinion in AEP, "In light of our holding that the Clean Air Act displaces federal common law, the availability veil non of estate lawsuit depends inter Alia, on the preemptive effect of the Federal Act." That sounds like it's directly contrary to your argument because this court presupposed that even though there was a Clean Air Act, state law still could subsist just depending on the preemptive force of the Federal Act, but your argument is different because your argument is, I don't care about the preemptive effect of the Federal Act. There just can't be state law, period. Doesn't your arguments seem intention with exactly what we said? Your Honor. The Court sites to roulette and making that proposition. The claims that this court left open were intrastate claims. States that arise out of a defendant's conduct in state. For example the Bell versus Chess, what case that we site on Page 4 of our reply brief as an example of the state common law suits that are preserved in the wake of the Clean Air Act. There, was an in-state power plant that was directly emitting ash and other cool contaminants onto our plaintiff's property. There because the discrete in state conduct gave rise to the discrete and state injury, the court found that that claim was able to proceed. Let's say the plant was directly over the state border and it had a forceful set of admissions that looped and landed around the state line, what's the answer then? Your Honor, if fact pattern is precisely what happened in the Georgia versus Tennessee Copper case back in 1907. In that case, the court found that federal common law applied because it was a trans-boundary pollution dispute and so to hear. Your position is almost as if you're saying that federal common law is like natural law. It existed before it was announced, it continues to exist after it's displaced. It's just always there. It's a little odd. Your Honor. The contention isn't so much that it's always there. The idea is just that if the character of such a claim is so essentially Federal in nature, then it's necessarily the case that borrowing the law of a particular state, as this Court said in AEP, would be inappropriate. That would lead to, as the Court put it, chaotic confrontation and the Court in American Electric Power noted two other things. First, they noted that the regulation of greenhouse gases was a question of national and international policy. The court also noted that such claims are meat for federal law, governance and so to here. But didn't, Congress also recognized that this was an important issue that needed a national policy and pass the Clean Air Act to deal with it. Why doesn't that push our judicial ideas of whatever might be the best policy out of the way? It's such that we would rely only on the Clean Air Act. Absolutely Justice grant. Congress did pass the Clean Air Act, which sets up a scheme in which states can participate in very demarcated ways. States can set in-state emissions standards such that they regulate within their domain and set standards of performance for stationary sources. States can also comment on EPA's proposed rulemaking. They can enforce EPA orders in Court, but fundamentally, the Clean Air Act designates EPA as primary regulator of greenhouse gases. Sets up a scheme in which the federal government regulates interstate pollution because this is such an issue in which one state's law cannot apply. In setting up the title five permitting program for example and the PSD, prevention of significant deterioration program. Congress reaffirmed the federal government's authority over interstate pollution. In a way that it displaces federal common law? It displaces the federal common law remedy, Your Honor, but not the source of law as this court held in Oneida, for instance, there's a distinction between the merits questions. Can the claim succeed versus the choice of law questions? Which source of law supplies the rule of decision? That's why even in the wake of displacement of a remedy, this doesn't change the inherent constitutional vesting of the subject matter in federal common law. Throughout this argument, the county has provided no explanation as to how state common law can suddenly spring forward and fill in a gap and operate in an area in which it has not operated before. For these reasons, we urge this court to reverse. Thank you, Council. Ms. Polston, we are here for you. Please proceed. Thank you, Mr. Chief Justice, and may it please the Court. Inherently, federal claims can be removed to federal court even when a plaintiff purports to plead those claims under state law. In its decision below the Ames circuit aired in holding that the well-pleaded complaint rule barred removal of Ames counties inherently federal claim. Under the well-pleaded complaint rule of cases ordinarily not removable to federal court unless a federal question appears on the face of the plaintiff's properly pleaded complaint. But when the plaintiff pleads an inherently federal claim, that claim necessarily raises a federal question and provides a basis for removal. Can you tell me really the daylight between the results of your colleagues' argument and this one, if she's successful in convincing us that the common law governs then does that decide your EC2 or are there different things that we need to look at? Well, Justice Grant, we believe that if federal common law exclusively governed then it necessarily provides the basis for removal. If we are successful on issue 1, were also successful on issue 2. But even if this court does not think that federal common law exclusively governs, there are two separate bases for removal here, and the first is complete preemption. When a federal statute completely preempts a state law claim, that claim is converted into a federal cause of action that can be removed to federal court. The Clean Air Act completely preempts state law claims like the counties that seek redress for interstate greenhouse gas emission. If the Clean Air Act completely preemption as claims, and why do you need us to think that common law governs the issue in the first place? Justice Grant, those are two independent arguments. If federal common law does exclusively governed, then by definition, there would be no state law for a court to apply. The Clean Air Act wouldn't completely preempt any remaining state law claims because there would be no state law claims. But if this court [OVERLAPPING]. Can just do the opposite and save, the Clean Air Act governs a completely preempt state laws so you don't have to ask whether federal common law the state law or is there a PRD and order in which we have to consider this or to both arguments work to dislodge the other one. Not necessarily Chief Justice Srinivasan, and there's no preordained order just if federal common law exclusively governed, that's its own independent basis for removal but even if this court does not agree that federal common law exclusively governs the Clean Air Act, completely preempts state law claims on its own and so that would be another basis for removal. But it doesn't completely preempt all state law claims. We've talked about how intrastate conduct can lead to state tort law claims related to air pollution still, correct? Yes, that's correct. Justice Grant. Our contention is that the Clean Air Act completely preempts state law claims that seek redress for interstate greenhouse gas emissions, but it wouldn't preempt state law claims that seek redress for intrastate emissions. We can't get that straight out of AEP? The holding and AEP about displacement is a lot narrower. That's correct. Where do we get the broader preemption or displacement? The displacement justice Wilson. Sure start there. Well, in Milwaukee too, this court held that the Clean Water Act displaces the remedy under federal common law. The Clean Air Act is a nearly identical statute to the Clean Water Act and so that holding wouldn't necessarily apply here. But I don't know that we've ever had a case heavily in which your first theory was given effect, ie that federal common law displaces state common law so thoroughly that there's no such thing as a state cause of action. Well, Chief Justice Srinivasan, our contention is that in Oneida, this court recognized federal jurisdiction over a federal but that governed [OVERLAPPING]. But I don't know why Oneida and Milwaukee in those cases work for you respectfully because in those situations, it was arising under jurisdiction. The question was whether a plaintiff who wanted to be in federal court gets to stay in federal court. This is the opposite because this is a plaintiff wants to be in state court and the question is whether even though they want to be in state court, they have to come to federal court. If they wanted to have arising under jurisdiction, they probably could have fled their federal common law cause of action and n-sided federal common law is that rule of decision or if it's displaced by the Clean Air Act and the Clean Air Act, they could have done that, but they didn't and neither Oneida nor Milwaukee or any of those cases involves this situation in which the plaintiff actually would rather be in state court. Well, Chief Justice Srinivasan when a plaintiff has a choice of state law and federal law, then, of course, the plaintiff can choose to flee the state law claim, but the very nature of federal common law, it governs where state law cannot. The plaintiff just simply has no choice of pleading a state law claim here. By definition. I guess you're making it sound as if that's organically true. I don't know why that has to be the case. You could definitely understand the situation in which there is a state common law cause of action and there's also a federal common law cause of action they can coexist, or do you think that's just the null set? Do you think that's just impossible? That's correct. Chief Justice Srinivasan, our contention is that when federal common law exclusively governs the claim as this court held that it did in Milwaukee 1, that means that state law cannot. Why is that conceptually true because can you not envision a situation in which there's a state law cause of action, but then the question becomes, what's the rule of decision for that? Then the court looks at it, whether it's a state court or federal court looks at it's supposed to be in federal court because the diversity jurisdiction or something like that but either court looks at it and says, actually federal common law controls in this area so federal common law says the rule of decision, but it's still a state law cause of action so that it could have been brought in state court. Well, we think there are certainly claims where there can be state common law and federal common law. In boil for example this court recognized federal common law governed the defendant's affirmative defense. But when federal common law supplies the rule of decision for the plaintiff's prima facie case that would be a claim that federal common law exclusively governs and the plaintiff in setting out its complaint, has no choice but to plead a claim that is necessarily governed by federal common law. Can I just ask one more? I'm sorry to keep pressing on this one follow-up question. Then federal common law sounds to me it's even superior to federal statutory law because it happens all the time. I suppose, where there's a state cause of action. Somebody brings an action state court, and they seek relief under state law and then someone says, wait a minute, that's preempted by federal law. There's actually a federal statute that controls in this area that sets the rule of decision. That doesn't mean that they proceed in state court. It does. It's just that whatever the federal law is that does the preempting now sets the rule of decision. That I think could happen with a federal statute, that the federal statute preempt state common law so than the federal statutes as the rule of decision. But that doesn't mean you automatically get that still can only proceed in federal court. They can still go forward in state court, but it's just at federal laws applies the rule of decision. Why doesn't federal common law apply in exactly the same way, or am I just wrong in that premise? Two responses, Chief Justice Srinivasan. The first response is that when federal common law exclusively governs, it's not simply a defense like preemption would be. The claim itself, the actual elements of the county's public nuisance claim would each have to be decided under federal common law, whereas with an ordinary preemption defense, that would come up when the court begins after the court goes through the state law elements, and then the defendant would raise the preemption defense. But here, federal common law exclusively govern's the county's public nuisance claim and that's because this court recognized in Milwaukee 1 that when we deal with interstate pollution, federal common law unnecessarily supplies the rule of decision. That's consistent with the very nature of federal common law because by definition, federal common law governs. Federal common law would still govern. You still have uniformity. You'd still have the same rule of decision. It's just that it would be a state court that would be applying federal common law just like if a state court can apply a federal Statute. Well, a state court could apply federal common law. We don't contest that. The problem for the county is that Congress has given defendants the option of removing cases when there's a federal question. Because there's inherently a federal question here, no matter how the county decides to plead its complaint, that means that Honor John can exercise its right to remove the case to federal court. That makes sense because by definition, federal common law governs in areas of unique federal interests that are committed by the Constitution or the laws of the United States to federal control. Given those unique federal interests, it makes no sense to allow a plaintiff to avoid federal jurisdiction along with the reach of federal common law simply by choosing to plead a claim under state law, even though federal common law exclusively governs. One thing I'm having trouble with this, figuring out how you're defining the bounds of federal common law. How you figure out what federal common law had to be. For instance, you've said causes of action are not allowed under federal common law for interstate pollution, but they still are for intrastate. Are you getting that rule from Constitutional principles, from somewhere else, from the sense of the courts that one is a multi-state problem and the other is not. How are you defining those bounds? Well, I guess justice grant there are two ways to define the bounds or sources that we're looking to. The first is precedent. In Milwaukee one this court held that interstate pollution claims aren't necessarily governed by federal common law, but that conclusion also makes sense given the structure of our Constitution, which doesn't allow one state to apply its law in a manner that regulates conduct in other states. In so far as a state law claim would seek to regulate inherently interstate conduct, that would be a claim where federal common law necessarily governs. That's what we have here because the counties claim seeks to regulate the use of Honor John's products in other states. But then federal common law both governs and says, there is no cause of action. That's what you're saying, right? Well, federal common law provides the rule of decision. It's just that the remedy has been displaced. Federal common law governs, it's just that the plaintiff is not entitled to a remedy on the merits because the Clean Air Act has displaced that remedy. At that point, what's the difference between that argument and complete preemption? Because the way I understand complete preemption to work is that there's no state cause of action. Therefore, even though somebody brought a state cause of action, they really were saying bringing a federal cause of action because that's the only thing that can be brought. It sounds to me like your argument about federal common law, totally displacing state law to the extent that there is no state cause of action. The only thing that can be sought is a federal common law remedy. That just sounds like complete preemption. Well, Chief Justice Srinivasan, and we don't think that complete preemption and removal based on federal common law are inherently contradictory because as you point out, both theories allow removal of inherently federal claims that are pleated under state law. I don't think they're contradictory. I just don't understand what the one is adding to the other one because it just sounds to me that they're both just saying complete preemption. Aren't they just the same argument or no? They are Chief Justice Srinivasan. It's substantially similar arguments. We think that the Ames circuit and its decision below aired in conflating complete preemption and removal based on federal common law. Holding that federal common law couldn't provide a basis for removal because it's not a doctrine of legislative intent. Our contention is that if complete preemption must be defined as a doctrine of legislative intent, then federal common law would provide an independent basis of removal, even though it's not necessarily a doctrine of legislative intent, but it comes from the idea that federal common law exclusively governs because there are areas of unique federal interests that simply don't allow a state rule of decision to apply. I'm still having trouble reconciling your argument with a let. Which seems to me to say that a private party in State A who's being injured by interstate pollution from a private actor in State B can bring suit in State B or in State A, as long as the rule decisions provided by the state law of State B? Am i misleading that? Justice Wilson, we think the difference between the claims here and a new let is that a new let so that the plaintiff was allowed to move forward and bring a New York law claim against a refinery in New York. The actual conduct that the New York law was regulating, was conduct in New York. Here the county brings a claim where the conduct that the claim would necessarily regulate. [OVERLAPPING] Could that claim had been brought in Vermont applying New York law? I'm sorry, could you repeat that Justice? Could that claim had been brought in Vermont applying New York law? No, I think that was the initial claim the plaintiff sought to bring a new law, it was a Vermont law claim. [OVERLAPPING] Vermont law? Yes. [OVERLAPPING] I'm asking a different question. The polluter is in New York, and the victim is in Vermont I think? Yes, that those were the facts [OVERLAPPING]. I think we said that you could bring the claim in Vermont as long as you are applying New York State law? Yes, that's correct. What matters is that the law that's being applied. [OVERLAPPING] But there's no federal common law there and there's interstate pollution. That case, the actual conduct that the state law was seeking to regulate could be isolated to New York because the refinery itself was in New York. Here the county has pleaded a claim that seeks to regulate the use of Honor John's products around the world and across the country. It's not seeking to use Ames law to regulate only conduct that occurs within Ames. It's seeking to use Ames law to regulate conduct that occurs across the country. The statement of the rule that it's an interstate pollution there, it always must be federal common law, that's not quite right then. Well, I guess we would say Justice Wilson, that the conduct at issue and it wasn't necessarily interstate in the way this conduct is because the plaintiff could show that the conduct that caused the pollution all occurred within the state of New York. Whereas here, the greenhouse gas emissions that contribute to climate change occur across the country. The plaintiff can isolate the use of Honor John's products that lead to the emissions that they claim can be traced to the injuries they feel within the state of Ames. That's what makes the conduct interstate here. We do have one more basis of removal here, and that's under the Gribbles doctrine. Federal common law necessarily raises a substantial and disputed question of federal law here, but even if this court thinks the claim should be resolved under state law. The Gribbles never applied as far as I know, in a situation in which the plaintiff doesn't invoke federal law as a basis for it to prevail. Because in Gribble itself, the plaintiff uses federal law as a basis to prevail under a state law cause of action. You're right. It can happen under state law cause of action, but it's when the plaintiff actually tries to get relief under a federal rule that it can benefit from. Here, the plaintiffs just trying to do the opposite. They don't want federal law in the mix at all. Has Gribble ever applied in a situation in which the plaintiff disclaims federal law altogether? May I respond? Yes. In Gribble itself, the claim was a quiet title action and the federal rule that was necessarily raised there was a notice requirement. The law itself was a state law claim. The plaintiff didn't necessarily invoke the notice requirement, but the court couldn't avoid that federal role in resolving the claim in here in resolving the counties claim under state law, a court necessarily has to determine whether Honor John's conduct is reasonable and a court would have to do so. In doing so, a court would be forced to consider EPA regulations which necessarily set greenhouse gas emissions at a reasonable level. For that reason, there's a basis of jurisdiction under Gribble. We ask this court to reverse the decision below. Thank you. Thank you Ms. Polston. We'll hear from respondents now, Mr. Palatino. [BACKGROUND] Thank you, Mr. Chief Justice and mayor please the court. My name is Nicholas Palatino and I, along with my co-counsel, Ms. Samantha Logan, represent the respondent, the Ames County Board of Commissioners. I will be discussing the issue of federal common law and my co-counsel will be discussing the issue of removal. Energon seeks to revive a displaced federal common law to remove this suit to federal court. That is an impossible task for three reasons: The first is that upon displacement, federal common law can no longer exclude state common law. When Congress enacted the Clean Air Act, it expressly permitted the states to impose their own requirements above those of the act, and in doing so, the need for federal common law making quote, disappeared as the AEP court held. Energon's theory that federal courts could still exclude state common law on the basis of a federal common law that does not exist, would make inferior courts superior to Congress. Accordingly, no federal circuit court considering this question has adopted their theory. Can I ask just on that theory? It sounds to me that you're buying the premise that if federal common law existed, then state common law would be so thoroughly displaced that there would be no state action. But the reason you still prevail is that then a federal statute kicks in and displaces the displacing federal common law that then resuscitates state law. But why are you buying the premise? I would have two points on that, Your Honor. The first is that assuming that we buy the premise that federal common law would have applied in a case like this, and there was no displacing statue, that would still pose issues for the issue of removal and something like complete preemption requires is the touchstone that this court has identified is congressional intent. With a judicial creation like federal common law, there is no congressional intent to divine removal from. But it brings me to my second point, which is that even if federal common law were to apply or where to not be displaced, it wouldn't govern here. Federal common law applies when you're uniquely Federal Interests significantly conflicts with state law and that's not the case here. Here, an Ames Corporation produces Ames products that cause a nuisance to aim citizens. The presence of an interstate link in the causal chain does not mandate a finding of exclusive federal jurisdiction. Suppose it were names corporation, would that make a difference? I'm sorry. Suppose it were not a names Corporation. I think the fact that it isn't Ames corporation helps justice, Wilson. I get that but, how important is it? It's not as positive. The dispositive fact is that enter John has produced 180,000 barrels of oil as depicted on Page 23 of the joint appendix and that that production is proximately caused the nuisance in Ames. In-state conduct plus an in-state injury shows the state's jurisdiction twice over, and it certainly doesn't require a finding of exclusive federal jurisdiction that my friends on the other side suggests. Why do you say in state conduct? I thought it was certainly some end state conduct, but also worldwide contact. How can you limit the claim that way? Your Honor, we premise the liability of the public nuisance of Energon's conduct within the state of Ames and so we hone in on the production. All on our complaint is premised on the production taking place within the state of Ames. But does that production itself cause any injuries within Ames or anywhere else? I have two points to that Justice grant. First, we would say it does because approximately causes the later emission of greenhouse gas emissions that then cause an injury to Ames County. But second, that's merits determination about whether enter john's conduct has proximately caused the nuisance at play is just that a merits determination, and that's different than the jurisdictional determination before this court over whether a displaced federal common law can still come back and operate jurisdiction. Indeed, this core in AEP did not leave any indication that that was true. It said that in addressing the state nuisance claims in that suit, that the preemptive effect of the Federal Act was the next question to consider, and it mentioned nothing about the federal common law that my friends on the other side depend on in order to premise removal. But certainly there there has to be some line that we could draw it this early phase with proximate cause. I see what you're saying, but you could take it further if you wanted to hold someone liable for intentional tort that they use their car and they can only use their car because they had the gas and etc., surely that wouldn't fly. Don't we have some ability as a court to look at these allegations at the very start and determine whether the injury is proximately caused by the conduct that you're complaining of? I have two points justice Grant. First is that by happenstance, the Clean Air Act does explicitly preempt nuisance any state claims premised on motor vehicles. Do you want us to rely only on what the Clean Air Act does that? No, your honor [LAUGHTER]. But secondly, this court in International Paper Company versus we'll let provided guideposts as to which states common law should apply, in the instance in which there are multiple states at play in the case of an interstate pollution scenario. In that case, it wasn't the case that the federal common law, which was held for the Clean Water Act, at least in Milwaukee too, was displaced. It wasn't the case that that federal common law still existed and can still jurisdictional wipe out the claims of the Vermonters in that case, but rather that there was one state common law that should apply. Furthermore, that choice of law determination goes to show that state common law still survives both the presence of federal common law and the Clean Air Act. I would also emphasize that tort theory has always allowed states to redress harms that arise and occur within their borders. To be clear, we agree that Energon produces and thus pollutes in many states. But the fact that a tortfeasor has committed many torts across multiple states, does not mean that any such state is powerless to react. Are all those states power able to react? I would say, are under our theory of production in the instance in which a state is able to identify in state conduct that has led to a public nuisance that those states would be able to assume. What about Energon sale, let's say in some other state? I think it would depend on the individual facts of the hypothetical Justice Wilson and perhaps minute sales would be. We sell a million barrels of oil to California. Certainly, and in that case, that's still hinges on the production of a million barrels to California and if it's produced within the State of Ames, for instance, Ames common law could still apply. My question is, could you bring a suit in California under California law to attack that? I think that's a tougher question. That's why l asked Yes. That is a tougher question. I would say that there is a possibility based off of what outlets instruction on emissions, that a parallel rule can be drawn with regard to suing an emitter for their in-state conduct. What about so you have a misrepresentation theory too. Yes your Honour. Suppose that enter John just does TV ads and every state, then does that mean that every state has the misrepresentation on its television screens cause the advertisements are being sent to every ordered the printed in the newspaper, than every state can bring an action? I think in that case, Chief Justice Srinivasan, that the issue of causation would probably counsel against any state common law actually. But you just said I think and understandably so that causation goes to the merits, ultimately. Yes Sir. It may ultimately go to the merits, but in terms of whether any state could actually sue and its own courts for a violation of its own laws. That's just a question at the threshold of whether the state can sue. If under the misrepresentation idea that well, there's newspaper ads here, there's television commercials here. It sounds to me like he would say that all 50 states can have their own individual suits against Energon for violations of their own individual laws. I would say that, your Honor, the basis of in-state conduct allowing for jurisdiction in each of those cases, in any of those states wouldn't be destroyed by the previous example with federal common law. Yes, they could involve the bringing of a suit in each state in which an ad is run but it certainly doesn't mean that an interstate or International implication is thus requiring that all states are powerless to react. That border case of my new in-state conduct that might lead to a public nuisance and very small part could be grounds for some nuisance suit, but the question before this court is whether federal common law can provide the exclusive basis having already been displaced. But it seems like the reason that federal common law might supply the unique basis, the uniform basis is priced precisely to avoid a situation in which all 50 states could sue the same company and impose upon it wildly different standards of conduct. That's true, Your Honor but I would have two points that. The first is that by nature of being a large company and operating in many different states, Energon inherently expose itself to the tort liability of each states in which it performs in state conduct. But second, there's a distinction between the idea that one state's common law should controls the choice of law determination that will let figured versus the jurisdictional determination that federal common law could operate even after this court is deemed at displaced by Congresses on statutory enactments. That's the case of before this court. I can feel you hesitating before saying that 50 states could bring tort suits related to misrepresentation, but isn't that case a pretty easy one to say because certainly different states have different centers of misrepresentation, I suspect that companies are subjected to those suits all the time. You can look at conduct that happened in the state and sort that out pretty easily. But to me it's much harder ones you're trying to look at the effects of greenhouse gases. You don't know which molecules whenever the state you have to look at which it's much more interstate problem. Isn't that wouldn't that take that those claims to federal common law needing and national solution, even where you can more easily sort out something comparatively simple like misrepresentation? Justice Grant, I would say that the idea that Energon, is the sole contributor to global climate change is not one that we adopt, but we certainly agree. We certainly propound that Energon is making global climate change worse and exacerbating it. It does so in its in-state conduct, which is able to be apportioned and state tort suits across multiple grounds have shown that such apportionment of liability is possible. For instance, in asbestos and gun and all different suits regarding the liability of interstate and international markets. Apportionment of liability is something that state courts are capable of. But I thought misrepresentation was your vehicle for getting interstate relief because the question presented is about interstate isn't it? Isn't that how the case is framed? Your Honor, we are promising liability on the in-state production and marketing of Energon's oil, which then goes on to an interstate process known as through global climate change. But we premise the in-state conduct as the hook for Ames' common law to apply. Importantly, even if there's an interstate link in the causal chain that doesn't require that federal common law operate even when it's not been construed as null and void by this court. Wouldn't the end result of your argument be essentially that the United States would be put out of the oil business because obviously if any community can target oil companies within their borders for the effects of climate change. That's of course a very expensive endeavor. Wouldn't that effectively over time put all United States companies out of the oil business. Isn't that the interstate and international question that really we need a national policy for it, not States making choices like this? No, Your Honor. As my co-counsel will discuss, we specifically believe that the revenue appropriate in this case is not halting Energon production and causing it to go out of business. We propose, however, that the public nuisance that Energon is causing by way of its in-state operations has levied a cost on Ames county and then it should make up for that cost in proportion to the amount that it is contributed to the phenomenon. Certainly you may not have that intention in fact, as a local governing body, you probably don't because probably many of your constituents work for Ames, but certainly other groups would be very happy to create that results, I would think so. You're not going to be able to control the intentions of other parties. Now, perhaps the answer is, if that's a problem than Congress is the one that should solve it, not this court, but I wonder if you've considered the National impacts that people who don't perhaps share your more narrow goodwill towards Ames might have. Justice Grant. I think that goes to the heart of the type of interstate interests that qualify for federal common law to apply in the first place. Although we can't predict with any measure of certainty what other plaintiffs will do in other suits, what's been deemed as sufficiently interstate of an interest to require the application of federal common law is not what's at stake here. For instance, and as I mentioned, this suit is premised on in-state conduct within the state of Ames by an Ames corporation causing damage within Ames, but if we look- But refer to your concern, why did you just text them? I think, Your Honor, that the Clean Air Act in 42 USC, Section 74 16, says that states are free to impose any requirement above those of the act in order to abate air pollution. While taxes we agree, or certainly one way to do so, so too- [OVERLAPPING] The way you articulated your concern isn't about the damage to the inner grounds, don't get anybody else. It's not even about the damage that Energon sales to California or doing to you. It's about the damage done to you by Energon's sale, well Energon production within Ames. If it's purely within a Ames problem, why not just figure out how much money you want and love you that as a tax. It's a lot easier than coming here. While the taxpayer might be more expedient, there's certainly nothing preventing the Ames County from pursuing both executive measures and legislative measures in terms of tax, as well as imposing state common law liability as has been the case. We'll let and AEP and other cases. Isn't the Clean Air Act, that provision that you mentioned, isn't that giving a state's permission to set higher standards in their permits, not to bring different lawsuits against companies within their borders? Your Honor, this section 74 16 uses the phrase any requirement, and that phrase has been interpreted by this court to not only refer to statutory requirements like permitting tax but it also refers to common law requirements as well. That's where this suit false. In terms of the interstate interests that are sufficient to establish federal common law, they involve disputes between states, as well as disputes between states and out-of-state producers. For instance, Missouri versus Illinois, New Jersey versus New York, Georgia versus Tennessee Copper Company. These are all authorities that my friends on the other side site for the proposition that federal common law ought to apply an interstate disputes. But those involve instances in which choosing one state's common law would unfairly benefit one party over the other. That's simply not the case here. In terms of international interests, the same principle applies. For instance, this courts decision in [inaudible]. I'm not sure why you say that though. I mean, was there a difference between George's common law and Tennessee common law? In that case, there was the hypothetical that Justice Grant mentioned earlier, which was one power plant billowing smoke across state borders into Georgia, I believe. There was a dispute over who state common law to apply. But even then, we'll let has determined that the resolution of that choice of law question is to look at the source state and choose the states common law, not to go back before Congress displaced federal common law and pick up on his jurisdictional basis. I would just emphasize that applying a federal common law that no longer exists would not only contradict every federal circuit court to have, to have considered this question, but it would more importantly ignore what Congress has explicitly said, that the states take charge and the fight against air pollution and Ames county is doing just that. I see my time has expired. I would therefore ask this court to affirm the judgment of the Ames circuit or as my co-counsel will discuss, remanded the case to the Ames County Court of Common Pleas. Thank you. Thank you, Mr. Palatino. Miss Login may we hear from you know. Thank you, Mr. Chief Justice and may it please the court. When a county brings a claim for in-state conduct contributing to greenhouse gas emissions, pleaded solely under state law that suit is not removable to federal court for three reasons. Because the county lacked standing to bring its claim in federal court, because the Clean Air Act does not completely preempts the counties claim, and because none of Grable jurisdictions four requirements is met by that claim. First, the county lack standing to bring it suit in federal court. Under Article 3, a political subdivision of a state such as Ames County can't bring a parents patriot suit in federal court. Therefore, this case should be remanded to Ames state court. Second, the Clean Air Act does not completely preempts the county's claim. This court has found complete preemption by a statute in only three circumstances, none of which is at issue here. The text and purpose of the CAA also weigh against a finding of complete preemption. Third, none of Grable jurisdictions requirements is met here. This case doesn't necessarily raise or actually dispute a federal issue, the federal government has no strong interest in a federal form for the county's claim, nor would this case create a rule for feature tort cases and extending Grable jurisdiction here would upset the federal state balance and usher a wave of state tort cases into federal court. What about the argument that their colleagues on the other side make not about complete preemption by statute, but that federal common law so thoroughly displace the state common law that the only thing left is federal common law and that creates a problem for you because the case has to proceed in federal court? Your Honor, our friends on the other side talk about federal common laws or it leads to this question in the Grable analysis, but it's simply irrelevant to the Grable analysis because Grable asks whether a subpart of a state law claim involves a federal elements not with. [OVERLAPPING] Maybe I'm misunderstanding their argument, but I thought they had an aspect of this argument that's not about the Grable analysis, it's actually comes before it. Their argument is that like complete preemption, but not based on a statute. The idea is that federal common law is exclusive in this area. When federal common law is exclusive that occupies the field to such an extent that it provides a basis I can't complete preemption for bringing your case into federal court. Is that the same thing as Grable argument as you understand it? Chief Justice train of Boston, we would agree that a federal common law applied in the suit, that the suit would belong in federal court. But Energon also speaks about federal common law as one of its theories for why Grable jurisdiction is proper here and that question of whether federal common law governs this claim is simply irrelevant to the Grable jurisdiction analysis in particular. Let's see if I understand your answer a little differently. If the CA hadn't been adopted, do you have to be in federal court? If the CAA hadn't been adopted. Had not been adopted is not on the books never happened. Justice Wilson, if the CAA, hadn't been adopted, we would still contend that the federal common law that existed before the CAA was displaced when it governed this claim because if it's intrastate nature, because it concerns intrastate conduct causing intrastate harms that are violating intrastate rights. But Energon uses federal common law instead as part of the Grable analysis which we would submit to this court is improper and none of Grable's four-pronged is met here. First, this case doesn't necessarily raise a federal issue. This case [OVERLAPPING]. Doesn't it raise a federal issue if the decision is under federal common law? If that's the rule of decision, why wouldn't that be a federal issue? It would be a federal issue Justice Grant, because this court instructed in Grable that a case necessarily raises a federal issue if the application of federal law were necessary and federal common law were necessary to govern this claim. It could raise a federal issue, but that's not specifically what Grable was speaking to. While those principles would still be invoked here, because Grable is asking specifically whether a subpart of a state law claim involves a federal elements, that question would be improper to apply to Grable, although the logic would be similar. This court instructed in Grable that a claim necessarily raises a federal issue when it requires the application of a federal law, but because Ames follows the Second Restatement of Torts there's no need to apply federal law here. There's no federal law, or regulation that the county alleges that Energon is violating with its conduct and Energon itself doesn't point to any federal law, or regulation that it could be said to be violating. Instead, Energon advances a collateral attack theory alleging that this claim in some way collaterally attacks the EPA's balancing decisions. But that collateral attack theory has been rejected by numerous circuits, including the first fourth intense circuits. In the cases that Energon cites to support its position, the plaintiffs were challenging specific agency approved actions, and that's not what the county is seeking to do here. This case also doesn't actually dispute a federal issue because in applying the Second Restatement of Torts to this case, the financial burden test applies and that test asks whether the harms at the tortfeasor is causing are serious and whether the tortfeasor could continue that conduct while compensating for those harms. Because the idea is that that conduct is unreasonable, if they're not compensating for those harms and they could be. That doesn't involve any look to a federal law, regulation, or statute, or to the EPA's balancing determinations. It simply requires a look to the harms that had been wrought within Ames and how they interfere with Ames public rights. It seems like as inherently related to the balancing under the CAA. It seems like it's basically doing the same thing, but you don't think so? No, Your Honor. Energon's contending that the EPA's balancing determinations in particular would be violated here, collaterally tacked in some way. Again, there's no specific EPA provision that they point to and the CAA actually provides exactly for these kinds of actions. With the complete preemption analysis looking to the first prong whether there's exclusive federal regulation of the subject matter at issue, this even clauses are dispositive. In Section 74 16, the CAA specifically says that states and their political subdivisions may adopt or enforce any requirement respecting air pollution control or abatement. This court canceled and legal that reference to a state's requirements includes its common law duties absent other indication. In legal that other indication was a provision saying that states couldn't enact requirements that differed from or added to federal requirements. We've had decisions where even though there was a savings clause, we still found there was complete preemption. It's true, Your Honor in Aetna for instance, that there is a savings clause in that case, following Section 502 of our risks have to be completely preemptive but in that case, the savings clause wasn't directed at that provision in issue Section 502, whereas here the savings clause is directed at the entirety of the CAA. It says that nothing in this chapter shall preclude the states and political subdivisions to enact those requirements and chapters referring to 42 USC Chapter 85, which is simply the entirety of the Clean Air Act. There's also another savings clause in this case, Section 7604E which talks about the rights of people, people defined to include political subdivisions. But I think that the petitioners argument is that with the proper reading of the savings clause is territoriality limited, and that the problem here is that this suit, in some form purports to regulate the conduct not of Ames, but of other states. Your Honor, this suit doesn't purport to regulate the conduct of other states. It's a tort suit for public nuisance in which the county is simply saying that if Energon is producing in a way that leads to these reasonably foreseeable missions that are causing damage within Ames and violating Ames state rights that ought to be compensating for that harm. It's asking for a monetary damages and abatement because it would like to restore those public rights by rebuilding the roads and bridges within Ames, is nothing to do with a conduct in other states, in particular. [OVERLAPPING] But some of the oil that is produced in Ames is sent to other states. Is that right? That's correct, Your Honor. It's on the basis of that Ames production that you're claiming an injury. While it's true, Your Honor, that this production leads to reasonably foreseeable missions that are names. The last thing I was going to say is that in the emissions that are from that production, some of those emissions are occurring in other states, and in that sense, you are seeking to impose liability for emissions that are occurring in other states that may not have done what the CIA allows them to do and raise the emission standards. The county is not seeking to impose liability for those emissions, it's seeking to impose liability for the production which has led to those emissions. But even so in Virginia Uranium, Justice Ginsburg in concurrence instructed that a state can enforce requirements against entities upstream even if in those cases there were downstream effects that would land in federally occupied fields suggests because this case may involve interstate elements further down the causal chain. It doesn't mean that the counties can't seek to regulate and adjourn upstream. Does that start to depend even on things like whether Ames tort law establishes joint in several liability? Because for instance, could Ames be held solely responsible for the entirety of the damages from global climate change? Your Honor, the county is not seeking to hold Energon liable for the entirety of the damage, but it's seeking to hold Energon liable for its share that it's contributed to that damage. That may not be what your tort law provides for, but in some states, there would be joint and several liability to the tortfeasor if they were the only one who was available to pay the damages would be responsible for the entirety. Wouldn't that create a pretty big federal problem brought about by interstate international conduct? Your Honor, I think that would be a question of a tort law for state courts to decide that would be competent to apply its own tort law and figure out those questions of what share should the producer in those cases be responsible for, and they could look to elements such as how much the producer is producing. Here, for instance, it might be relevant that Energon is the seventh largest producer in the world and would likely be thought to be contributing in a significant way to that climate change and it's not going to be held liable for the entirety of climate change when it's producing only very little because it's contributing to climate change in a significant way. Turning to the second prong of the complete preemption analysis, whether there's a substitute cause of action, the CAA citizen supervisions don't provide a substitute cause of action for what the county is seeking to do here. They allow for private actions challenging the EPA's rules, as well as for review of petitions to undertake new rule-making, but that's not what the county is seeking to do here, and it doesn't vindicate a similar interest to the county suit, because again, the county is seeking to hold a tortfeasor liable under state tort law, and it's not seeking to change the EPA rules with which it must comply. The county doesn't allege that Energon violates any EPA rule, it's simply saying that it can produce in the way that it is, it doesn't ask for an injunction, it doesn't ask to halt Energon's production, it doesn't even ask to reduce Energon's production. It's simply saying that it's producing in this way, that it needs to be compensating for those harms so that these public rights can be restored. In the first instance, the county doesn't even have standing to bring this claim in federal court because this claim is a parent's patriotic claim. Under Article III, government can sue on behalf of its residents when it articulates interests of particular private parties, and it can assert a quasi sovereign interest in the well-being of its residents. The county is doing that here because it alleges only a violation of Ames public rights and seeks to abate the nuisance that's violating those public rights. It's not asking for any relief because of injuries to the county, Quad County, like county facilities or something like that that's independent from vindicating its citizenry's public rights? Although those images are irrelevant to this claim, she chose a strain of Os. The county is not suing for injury to itself, it's not suing for damage to its own property. In property damage suit like Your Honor is referring to, likely there would be a quantification of the compensation by looking to the diminution in the value of the property, but instead the county is seeking monetary damages here that would be sufficient to restore the public rights of issue. So the county certainly could have brought one of those claims such as a private nuisance claim or a trespass claim in recognition of the damage that's been done to its property, but it chose not to do that. That's why in other similar cases, the standing issue is never litigated because in those cases, there were numerous other causes of action such as private nuisance and trespass, and so those those political subdivisions otherwise had standing to bring the rest of their claims in federal court. Because the county doesn't have standing to bring this claim in federal court, we would ask this court to remand the case to state court, and courts of appeals have remanded to state court for lack of Article III standing in recognition of the fact that the Plaintiff tried to bring the claim in the proper forum, and here Ames County chose to bring a state law claim in a state court and made its best efforts to bring the claim in the proper forum. Because Energon is the party that's removed to federal court, we would submit that remand to state court would be proper here. Isn't there some tension in the argument that let's say that you're correct that there's no standing for the county in this context, but let's say that your opponents are correct that this is essentially a federal case. Can it really be the rule that you can have standing to bring in state court an entirely federal case and there's no possible way to move that case to federal court because of the standing posture? Your Honor, if Energon's right that this case is a federal case, I think it would upset the federal estate balance and violate the fourth prong agreeable because there are wide reaching implications of extending their rule to this case. Their collateral attack theory would suggest that if there's any overlap between a federal agency's balancing determinations and a state court's tort determinations of reasonableness, that that case should be thrust into federal court, and Your Honor can imagine the host of different tort cases that would be affected by that rule which have nothing to do with greenhouse gas emissions. For instance, there could be a case that's a standard premises liability tort suit in which a person's injured walking down a ramp. That could be said to you in some way, collaterally attack the DOJ's civil rights divisions balancing determinations because they promulgate ADA regulations, and then that standard tort case will be thrust into federal court. So there are wide reaching implications of granting federal jurisdiction in this case. Can I ask the following hypothetical? Suppose after Milwaukee I, Milwaukee I decided just as we know it's decided. Then after Milwaukee I, this kind of suit happens, it's brought in state court and it's seeking relief for the same conduct that was at issue in Milwaukee I, could the Defendant remove? I don't think so, your honor. Because again, this case involves claims wholly unrelated to interest rate conduct because it's concerning interest rate production and these interest rate elements at issue, in this case, are solely links in the causal chain. Again this court has counseled that state claims aren't preempted simply because they're interstate downstream effects of those claims. Let me ask you something a little offbeat I'm uncomfortable with and maybe you can make me more comfortable. An interesting and novel question, in this case, is what happens to federal common law when it is displaced by a statute. Does it still exist and have any force or does it not? My discomfort is turning that question which seems purely federal over to a state court. Your honor, we wouldn't be asking that that question be turned over to the state court. We would be asking that this court determined that federal common law doesn't apply in this suit and instead that this suit belongs in state court, not only for that reason, but because the county doesn't have standing to sue in federal court, and that extending jurisdiction here in federal court would violate Congress's clear directive that it's the primary responsibility of the states and their political subdivisions alone to regulate air pollution. I see that my time has expired, but I would urge this court to remand this case to the Ames County Court of Common please for lack of Article III standing or in the alternative to affirm the judgment of the Ames circuit. Thank you. Thank you, Ms. Hogan. Ms. Neil, I believe you have rebuttal time. May it please the court. I'd like to make two primary points on rebuttal. The first is that throughout this case, the county attempts to reframe the nature of their injury as one arising purely out of intrastate production. But that answers a different question than the one presented in this case. On page two of the record, the question this court granted cert on was whether their injuries could be redressed through state tort law, injuries that arise out of interstate emissions. As Justice Grant noted in her colloquy with my friend on the other side, when we're dealing with a problem of this magnitude, global climate change, necessarily, we're dealing with interstate emissions because the county seeks fundamentally here to regulate interstate conduct as this quote, "an American Electric Power held" borrowing the law of a particular state would be inappropriate. Furthermore, the county attempts to analogize for example the lead paint or the gun contexts. But the reason why those contexts are fundamentally an opposite is because in those cases, the injury can, number one, be traced back to the instate marketing or selling of a particular product. But that's simply not the case here because their injury is forest fires, flooding, and extreme weather patterns in Ames that injury cannot be traced back to the particular Ames refinery. But even more than that, your honors, there is a problem with the type of redress that they seek here because their redress isn't limited to consumers who use Enter John's petroleum product, instead, it's for everybody who is affected by climate change. Fundamentally this case is unlike the contexts that they cite. Furthermore, if they want to regulate the Ames refinery, as Justice Wilson noted, they could tax the Ames refinery. Furthermore, the Clean Air Act sets up a scheme in which states can participate in very particular ways. States can set intrastate emission standards that regulate sources within their domain. But what they cannot do, is what the county seeks to do here and fundamentally regulate interstate emissions. Beyond that, the county can see it's in footnote two of its brief that a federal common law governs then arising under jurisdiction is appropriate under Section 13, 31. Federal common law governs here, and so it arises under federal common law, and removal jurisdiction should be found here. This court held in Milwaukee one that when we deal with air in its interstate aspect, federal common law applies. Those principles apply fully here and in the wake of displacement, the county provides no explanation as to why state common law ought to spring into the picture and fill in a gap that it never failed before and fundamentally regulate claims that were deemed to be essentially federal in character but also claims that require a uniform federal rule of decision. Furthermore, we provide two independent basis for removal, complete preemption, and gravel. For these reasons, because state tort law is not the appropriate vehicle to regulate a global injury, we urge this court to reverse. Thank you. Thank you, Council. Thank you to all Council will take this case under submission. [APPLAUSE] All rise. [APPLAUSE] All rise. Please be seated. Who put this up here? Separate this is an Ames moot court gavel. We don't get a real gavel and the courts, so this is actually pretty good [APPLAUSE] a feeling of utter power. That's fantastic. Congratulations to all of you. What a tremendous performance. I know you're exhausted probably, which can happen to this situation. But I noticed again on behalf of all of us are saying it should be extraordinarily proud of yourselves and your families undoubtedly they're here, close friends, and everybody rightfully as proud of you. That's not an easy thing to do by any stretch of the imagination. This is a particularly complicated problem, I think, and in a lot of ways it's not an easily graspable one. It takes extra work, but just where thoroughly impressed. I think we had a robust debate on a lot of things, but there was no debate about that. Congratulations to all of you. I think you all were just afterwards. [APPLAUSE] We'll give some general feedback and then announce the results that we came to after some deliberations. Sure, so it's really a terrific job in the way that when I judge Moot Courts, what I sort of think about is my own court and what the level of briefing, and what the level of advocacy is. Somebody asked me, even before coming how the briefs compared to the briefs that we get an our court, and I said the briefs would be in the top 10 percent of the briefs that I get. They were that good. The advocacy I thought was terrific, we get advocates as good as some of you sometimes. [LAUGHTER] However, it's not so common that we get advocates on both sides where the argument is as strong, and they're evenly matched and people address each other's arguments substantively. I think we threw you both lots of curve balls and you handle them very well, much better than many of the advocates of my court do. Who will sort of stammer and say, well, that's not really the issue in this case or well, that's a hypothetical and I'll say by knows hypothetical? That's why I asked it. I thought you did exceptionally well with things were coming from all over the place. Fluid poised really good job. I'll echo that, I thought all four of you seemed really relaxed and I'm sure it's impossible for you to be so. If you are, I need to learn some of your relaxation techniques because this is a really big deal to be here. You all did a great job of pairing, relaxed, conversational, and again, you'd be surprised how many people do not manage that in courts. I hope to see all four of you arguing in front of the Eleventh Circuit someday. Hopefully, as you said on different sides of the case, so I know I'll get great argument from both. I thought the briefs were all outstanding too, I thought really creative if you guys to come up with a standing argument, that was really fun to think outside the box. You guys had a lot of really nice connections and language, I thought both teams just did a great on the aspects. I think Harvard Law School, it can be really proud that these are the types of students and advocates at the law school is producing. Definitely feel exactly the same way. First of all, I'm thoroughly impressed by how few nerves I and I think all of us detect it. I mean, I was in mid-court at your stage of your career too, and I wasn't even close to as poison as calm as you all were for or what it's worth. I think that's a product of two things. First, you got to have a thick fiber but second, you got to do a tremendous amount of preparation because the only way that you can get up there, and acquaint yourself in the way that you did without feeling the nerves that have packed room, and spotlighting and all that kind of stuff is if you're so prepared, that you can let that take care of itself and you all did that. I mean, that's a credit to all the hours and energy that's been poured into this. Then the other point in terms of the argument is the single most important thing ever in an oral argument, is actually being responsive to the judge's questions, directly responsive not ducking, not elliptical, and sequencing your answers in a way that puts your best foot forward first and then your second best foot forward second, and then if you add a third foot [LAUGHTER] third or you go back to the first one. But anyway you had just rehearsed that so well, and I don't think any of us got this instant anytime during the course of the argument that you weren't trying to respond directly to questions, and that's really A plus oral argument material. Kudos to all of you on that and then your conversational, I mean to the extent you can't be in this kind of stylized setting, you really were conversational even saw a few smiles here and there and some facial expressions, all of it. [LAUGHTER] Which is good. I think we did ask some off-the-ball questions and I think frankly, I think we're probably at least I was probably even betraying some confusion at certain times, and you guys did not give the kind of the side [LAUGHTER] credit to you all on that. I mean, you're just were thoroughly thoroughly thoroughly impressive, and I hope at the end of this what a long road this has been for you all, and I hope at the end of this you can really relax with us and others, and celebrate what an incredible job you all have done and what a terrific accomplishment this has been. So then we will announce the results that we came to, and this was the product of a lot of deliberation and we went back and forth. I think the moral of the story everybody says this of course, but it's definitely true is very very very close and there were sort of data points in both directions on all the criteria. Don't anybody walk away feeling you did anything other than impress us to the nines because you all did? The three categories that we've been asked to resolve, our best moralist, best brief, and best overall team. The best moralist is Samantha Neil, [NOISE] [APPLAUSE] and the best brief is petitioners right [NOISE] [APPLAUSE] best team overall is petitioner the wanting lunar memorial team. [APPLAUSE] [NOISE] I'll close by just saying this to the Justice Ruth Bader Ginsburg memorial team, you would have made Justice Ginsburg very very proud, you [NOISE] [APPLAUSE]. Congratulations to everyone. All rise [NOISE] [LAUGHTER] [APPLAUSE]

Channel: Harvard Law School

Views: 156,745

Keywords: Harvard Law School, HLS, Harvard University

Id: _XBfpv9XADk

Length: 87min 48sec (5268 seconds)

Published: Mon Nov 14 2022