number of legal issues the core of our submission today is simple state law is not an appropriate physical and state courts are not an appropriate forum for regulating worldwide fossil fuel production and reshaping national and indeed global plaintiff's theory of the case is that defendants can be held liable for harms from their production and sale of fossil fuels not only in the united states but worldwide plan of seek to impose damages and other remedies for injuries resulting from greenhouse gas emissions associated with the use of those fossil fuels by billions of consumers including by plaintiff themselves but the supreme court has made clear that such claims are governed by federal common law and those claims therefore arise under federal law for purposes of removal jurisdiction the claims also implicate actions undertaken at the direction of federal officers and they necessitate the resolution of questions of federal law in an area of pervasive federal regulation in short this case bogs in federal court because it threatens to interfere with longstanding federal policies over matters of uniquely national importance the district court heard by granting plaintiff's motion to re t and its order should therefore be fake a good i'm happy to pause now and take the court's questions what's the scope of our review this is judge good morning judge me q plaintiff's contention here is that this court lacks the power to consider any of the grounds for removal except the federal officer ground but our submission is that once this court can refuse the order and there's no dispute that this court has jurisdiction at this point title does that in your mind when the scope of what's meant by in a word or a no judgment q and that is because i think the statute really contemplates a two step process the st question is was this case removed order is reviewable by heel and in that respect the language is identical to the language that was at issue in yamaha and in this court's published opinion and coffee because in both cases the statute provides that the order is review appeal and this congress had intended plaintiffs meaning congress easily could have specifically said and so many words that the only ground for removal that is reviewable is the federal officer ground and to the extent that other circuits have reached a different conclusion most of those decisions either predate the supreme court's decision in yamaha or do not address it at all and if the court will be aware we point the court in particular to the seven circuits decision in the loo jones hauling case which i think contains the most extensive reasoning on this question of any of the decisions from sr circuits and which has been followed by the th circuit and the th circuit and subsequent decisions so  submission i think is a quite simple one and that is that the text of the statute really dictates the outcome here and the text of the statute in some sense goes further than even the other statutes we've been discussing and that the court's review here is mandatory and not discretionary in any way and so this is obviously a critically important question for purposes of this appeal because we believe that there are a number of other compelling grounds for a move all above and beyond the federal officer removal kind and that is different than you and that's different than our coffee case which well glee about an order judge holmes there's only one order here in other words there's the one order remains the case the state court and of course the opinion backing that order which addresses all of the potential grounds for removal and so again our submission is you know st of all is this a case that is being remanded to a state court from which it was removed pursuant to section one thousand four hundred and forty two the answer to that is yes and at that point you know the language of the statute says and or that order shall be reviewable and the other side makes a variety of policy arguments i think in an effort to rebut this argument flying from the plaintext but i don't think that there's anything strange about the notion that congress could well have believed that it was important to have plen order whenever either a federal officer removal or civil rights removal was one of the asserted grounds for removal after all the case is over or at least in federal court once a three man did to the state court there are no further ongoing proceedings in federal one issue in question so i think the actually doesn't need to help you at all a judge holmes i think that this is a somewhat unusual case in that there are multiple other compelling grounds for removal i don't think that we should be faulted for that fact it flows from the fact that this is a very unusual effort to use state law to address an issue of federal concern i think if you look at it the cases from other circuits typically there are only one or two other grounds for a move all and of course there is going to be appeal there is going to be briefing an oral argument and so while the court may have incrementally more work to do in an appeal like this because it would have to proceed to address additional grounds we think that that is again an incremental burden and i don't mean to minimize it it obviously means more work for the court but it's one that we would respectfully submit is contemplated by the language of the statute as i took it indicated i thank you and i and i hear you i'm not trying to get out of work that's not what we're talking about here is whether whether this is not an end and to that point though what do you how do you respond to the argument of opposing counsel regarding in particular talking about yama that there's a different interest as well i mean in the army at the time the reaching issue here we're talking about we're viewing issues that otherwise would not be reviewable and therefore the notion that you could file them frivolous context didn't from our perspective congress simply didn't impose any limitation on the grounds for review and if anything in this context there was less concern then there would be in the context of yama where you have ongoing proceedings that could be interfered with in other words it would make more sense in the context of yamaha or in the context of kaffir removal to limit the grounds for review precisely concerned about regulating more globally in the steeled over which would appear to preempt state law in the field so obviously ordinary preemption is not at stake here we do have our argument concerning complete preemption but i would point this court both to the body of law governing emissions and in particular the clean air act which i think reflects federal policy and let me interrupt you this is judge and key lose respect to the clean air act i have a hard time accepting a a complete preemption argument under the clean air act when statutes pacifically indicates that it doesn't display state law well the statute judgment you does have a narrow savings cause but that savings cause in and of itself does not preclude a statute from having complete preemptive effect and here plaintiffs by their concession have bypass any available procedures under the clean air act for regulating emissions precisely by filing this action in state court but if you don't agree with me on that i would simply make the point circling back to judge from sarah's question that all of this is also relevant to the because it goes to the federal issues that would be implicated by resolution of the state ought claims and there is another set of federal law of course all of the federal law in the foreign policy context where the united states has stated its policy of resisting reductions in greenhouse gas emissions and all of this also goes to the question of federal common law and i want to say just a little bit about that in my limited time because the supreme court has made quite clear in a series of decisions that federal common law applies to trans boundary pollution suits and plaintiffs claims squarely fall within that category for the simple reason that they are based on the interstate and international emissions of greenhouse gases over the course of decades and whatever plaintiffs therion plaintiffs obviously have multiple causes of action here it is quite clear from their complaint that all of their claims are based on those worldwide admissions if you look at pages seventy three to seventy seven of the appendix the complaint goes on about how the injury flows from those missions and where federal common law applies it supplies the source of law it is no different from a choice of law analysis where a plaintiff pleads colorado on their complaint but a court concludes that new mexico law applies instead and so to the extent that plaintiff suggest that this is a preemption argument in the skies that is incorrect this goes to the threshold question of the source of law that governs their clients as the supreme court made clear in the standard oil case and then finally a little i refer you counsel you tried to reserve to make your actual argument rule in most of the circuits that that the that the appellant can only appeal but specific issues that congress indicates is st of all based on text starting from even when the district court when when you were a number of issues were raised for the district court now the parties agree on what to do what to the interpretive approach to this both parties agree that when you have a prior relevant judicial interpretation congress is presumed to legislate against the backdrop the difference is that they say that you should look to the interpretation of a different statute one thousand two hundred and ninety two big and look to yama and in our interview that doesn't make a lot of sense we have an established body of law in this statute that congress was legislating against the backdrop  f and we think under that canon that both parties agree on this court should look to and presume that congress adopted that body of law and then the other the only other point i would make on and this is that if you what it means by that is that the order is broader than the control in question and you can apply a peel the entire order including the question there's nothing like that in four hundred and forty seven so this is a very different statute  about what this case is about the district court said and this is a quote defendant's mischaracterized point disclaims point is do not challenge or seek to impose federal missions regulations and do not seek to impose liability on emitters this is a case about defendant's sales and campaign of misrepresentation of the dangers of fossil fuels over the course of decades it's not about emissions this case was only suffered in abating the impacts of climate change is that by the way the damage is calculated in the nature of the sale in other words what is your nexus to  well if i understand your argument correctly you're saying that you are not seeking a broad federal kind of remedy that you're seeking instead local localized cause of action based upon a maybe ad out of no no that's a that's absolutely correct we're only seeking localized damages that these plaintiffs have suffered and they would and as the district court described i think accurately it's a program to share the cost of abating so it wouldn't necessarily cover all of the damages that the plaintiffs suffered this is judge holmes but it does have a nexus to sales doesn't it because i made in your complaint the references to level of sales and that also has a connection to supposedly they're there ms misrepresentation campaign that was designed to because that's how they get to argue or try to argue that this that there's all these federal interests here and the problem with that is a number of problems with that st of all the federal government has interest in all sorts of cases is traditional common law series that are heard in state court all the time like cigarette cases and opioid cases all these things are about sales busy and misrepresentations and local governments have sued for local courses pointed out in the virginia uranium case the mere fact that there's federal interest does not create federal preemptive law only congress can do that and so this sort of generic separating club separated by probably quite a couple one hundred miles i think that's right correct the relief that you see and i'm interested in knowing how you  how any state court could segment that kind of relief that you seek you are a less it's based on the percentage of localized to something of that type because otherwise i mean with the population set to go county federalized interest so just to be clear what makes defendants liable is their their sales across their enterprise the damages that play to suffered  we've had to take the steps to address climate change because of what they're the two wrongs that you've been a five b n check failed and they have misrepresentations and we also need to have money in the bank because we know that they're going to be future expenditures did i in the caterpillar case is specifically said that prevention defenses don't create jurisdiction but even if you could get past that problem the other problem is that they overstate the scope of federal common law established federal common law only applies when there is a state suing for an injunction against an emitter and we have none of those things here and those limits that that i'm describing are exactly the same limits that exxon described for the th circuit  its brief in the kivalina case so you don't have to take my word for it so what they're really asking you to do is based on an unplanned federal common law claim to expand federal common law into into reaches that you know are really sort of boundless and and our core argument is that that is congress's responsibility if congress wants to present a case for sales and misrepresentation which are ordinary common law claims congress can do it but it has to be congress that's not the sort of thing that this court should should undertake all the you i'm not sure specifically in il our intel you're right they they have made a series of arguments like this under the guise of personal jurisdiction in state court and i think that you know while i don't agree that they're right on the merits i think that is the avenue to make those sorts of arguments they're all fully briefed in the in the state court on exxon's motion to dismiss and so on court separate motion to dismiss and i you know our our position is just that there are core argument would radically expand both appellate jurisdiction and not and not just district court jurisdiction but also the scope of federal common law concerning ratification of course you only get to congressional intent if there's any ambiguity in the text of the statute and we think that there is no such ambiguity but if you get to ratification we would submit that the relevant body of law is the supreme court's dollars b that argument cuts in our favor and he focuses on the fact that section one thousand two hundred and ninety two dollars be provided to review of an order involving a controlling question of law but the whole point of the supreme court's decision in yamaha was that a court of appeals could review not just the controlling question of law on which the district court granted certification but any other issue fairly encompassed in the order so to he held so just what is your best is a whole body of law that federal common law applies to climate change related claims like those at issue here the supreme court's decision in a you can see the night circuits decision in kivalina and the decisions of the district courts in the california case and in the city of new york case all of those cases focus on one basic principle and that is who would cardless of the types of relief that plaintiffs seek and the types of claims the pla purport to pursue under state law where the claims ultimately are based on this theory that the plaintiffs suffered injury from the emissions of greenhouse gases and of course we're talking about climate change to which there are contributors from the use of fossil fuels and of course also innumerable producers of fossil fuels that those claims necessarily fall into this category of  matic area in which federal common law applies and to the extent that mr hertz makes a threshold argument in addition to his argument that federal condom law does not apply he argues that federal common law is really a question of preemption i would point this court to the supreme court's decision and standard oil to footnote seven of the city of milwaukee two decision and to the swiss american case from the st circuit all of which supports the proposition that this is not preemption in disguise this is a question concerning the applicable source of law that governs the claims claims one dollar to four dollars in the complaint do not even specify the applicable law and so like a question of choice of law between two states laws we believe that this is a question that the court has to consider in evaluating its jurisdiction i would just say one sentence on federal officer removal we rest on our briefs on that ground for review but that is ultimately something that the court could review regardless of its view on the appropriate scope of appellate review and here we respectfully submit that exxon mobil satisfies all of the requirements for a moveable under that statute we would ask