the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in session today's case will be called as previously announced and the times will be as a lot of the council the case today is state of rhode island vs shell oil products company l l c at all appeal number one  focus on two principal reasons why this court should reverse the district court's order remaining this case st there to binding precedence one from this court and one from the supreme court that require reversal this court's decision in united states versus with american bank is controlling and holds that if the source of a claim is a federal law then the claim arises under federal law no matter how it's labeled the supreme court in the a t p decision made could it federal law is the exclusive source of tort claims based on global warming because their inherent international interstate nature that it one state simply put cannot regulate or punish extra carry all territorial oil and gas production encouraged by another state the federal government or a foreign country and this is not a statutory complete preemption argument as the district court incorrectly held but rather a constitutional federalism issue to paraphrase the supreme court and a p the basic scheme of the constitution demands that the only possible source of such a claim is federal law rhode island global warming tort claims regardless of their artfully pleaded state law label  therefore removable the nd issue is that i'd like to focus on is that rhode island's claims are removable under the federal officer removal statute because they relate to defend its production of oil and gas acting under federal guidance and control to assist the united states in fulfilling its national security and other responsibilities regarding our country's energy needs this includes a vital it will production activity on the outer continental shelf which is federal property governed by federal law and on the  reserve starting in during world war two for so much of detail government contracts in these arrangements reflect that the government has for nearly a century prioritized oil and gas production as an essential component to achieving critical government objectives and repeatedly deputized private companies to achieve those objectives subject close supervision so so we believe that the case is also removable because rhode island claims challenge large swaths of that activity going with the federal officer remove all basis it does that provide  i remove for jurisdiction for all claims against all parties yes your honor it does or are we it does the it's only seven circuits recent baker decision that we brought to the court attention is one of many cases makes when we know we've demonstrated that at least one claim and we believe all of them touch on are connected to are associated with activities done under the auspices of more consumer demand in government federal government demand for oil and gas causing more production by the companies in the complaint your honor if every single claim a key feature is the extraction and production of oil and gas they're designed the fact negligent misrepresentation an accident to design strict liability so so at the heart without the oil and gas production there's no claim because that the claim is the emissions resulting from that cause the citizens of rhode island that that's one piece of it your honor they have it's but they have a public nuisance claim the very st component when it when one looks at their claims is that it's the oil and gas production that cause the emissions around the world that has warmed that are sadness for the cause of global warming they claim as part of that to be sure that statement spot which week we say that you know are wrong but that statements about the effects of oil and gas consumption were misleading but that's just one piece of it that's and that's only if we look at that they claim that they're the products were defective as designed because they the consumption of them caused global warming which caused their injuries so it's one piece of that and i should say asked a federal officer removal the fact that they have a misrepresentation claim embedded in their claim doesn't mean that their claims don't relate to or associated with or connected to lands act section eighteen million eleven thousand eight hundred and two declared that that statute was passed in amended in one thousand and seventy eight to command the secretary of interior to one way or another exploit in mind the resources on on the to further the national security and energy needs of the united states the government could have done in a number of ways it could have formed its own oil company or could have contract it with folks to to produce it directly to the united states the method chosen was the leases and they'd be the leases have to be approved the production plans have to be approved every five years by the secretary of interior the secretary of interior the president can command that the oil the all to united states can direct it to different agencies of the united states and this is government property in government oil and it's a huge resource and a huge as much as a rd of oil and gas production in the united states so this the plaintiffs in their briefs suggest this some sort of cypress weight this is a major piece of their claim their claims directly connect to oil and gas production on the outer continental shelf under the supervision of the united states government contract is a contract on the watson case from the supreme court that helps us the supreme court in watson there was just regular the claim was that detail government regulation of tobacco somehow created federal officers but the supreme court said government contracts are different where a party a private party contract with the government to assist the government in carrying out its obligations in does something for the government by contract that the government other have to otherwise have to do itself that's the classic federal officer situation where the private company is acting under the authority of the federal government and the the other example we've given you complete and absolute authority over what would happen in that field and if the court the baker decision really captures this from the th circuit that's a classic example of federal officer activity and we easily met that that's i want to emphasize that's part of him but if i'll just direct the court to a couple examples that page twenty six of the joint appendix this is a quote defend its production promotion and marketing of fossil fuel campaigns actually in proximately cause rhode island's injuries if you take out the production your honor there's no global warming there even under their allegations they also say that decades of scientific research show that pollution from the production and use of fossil fuel products plays a direct and substantial role in the unprecedented rise in emissions of greenhouse gas pollution i respectfully submit you cannot decouple the misrepresentation claim from oil and gas production i counted up so they absolutely again the object to the production that's the whole basis of their claim that too much oil and gas is being produced and consumed in heating the earth's atmosphere and they say that the misrepresentation impact of market forces that saying that you couldn't operate this and that it impacts that market forces and therefore that this representations are what caused the harm that's one part of their claim your honor but they were and they want an injunction to to abate the things that are causing their injuries which include the production and consumption of oil and gas that causes the alleged heating of the atmosphere and so it's i i don't think there's any way to read this complaint other than it seeks to punish oil and gas production it seeks to punish in and redress alleged statements about and i repeat that with those claims are baseless it's heart and parcel of it a claim that there's too much oil and gas production in too many emissions that are causing global warming and i would just and and i would just say your honour's complaint itself the nuisance claim has misrepresentation claims in it but they claim there's a design defect a strict liability that oil and gas itself is defective office removal it's the defendant's reading of the complaint that governs the th circuit said you know when there are competing theories of what the nature of the claim is we the defendants reasonable interpretation is correct they're asking as assuming we agree with you that there's a federal officer removal because if we don't then we've got the whole other statutory interpretation as to whether there's federal jurisdiction which is why some of you started out with that yeah we are closer to me or on me or in the city council of baltimore is there another argument that you have for why they remained as is reviewable by us well that it doesn't make any sense because you have two specific exceptions and if it is order then it means that all you have to do is maybe have  conceivably facially valid argument for federal officer and then everything else which this is that she says she can't be reviewed then gets reviewed that that's true your honor and you know and in the reason that that that makes sense is because the statute speaks in terms of order not issues in that there simply isn't that what do you make of the two exceptions the two exceptions are are congress determined because it's so important to ensure that cases where federal officer or activities of all should be appealed that any of those circumstances the entire word can be reviewed because once one issues up on appeal there's no reason for this court to say there's a there's a really strong swallows the whole can't be reviewed portion of that statute oh no it does it does not because it only the exceptions only apply when they fire but if but if we found no federal unreasonable reading because that's reading additional words into the statute you know that are not contained in it it says in order it does not say to the extent it's based on these issues it says an order that was removed pursuant to those two could you know determine that it's only going to focus on particular issues our federal common law issue we think the court if the court reviews that it doesn't need to go any further because we think this case arises under federal law state law can apply here and so if the court wants to short circuit that additional review it could ruin our favor on that point and not have to reach any other grounds and so it's not the case that the court needs to review every ground in every removal case if there's a different ground that provides a basis for removal that that's all that needs to be addressed let me interrupt you for a nd an ass the courtroom deputy on stand by my count we've gone a little over time is that is that how you see it as for the time being you have reserved some time which is that there is a fair reading of the complaint that does not focus on the dissent from asian campaign and the misrepresentations which were made in the state of rhode island as well as out elsewhere  led to the injuries in the state of rhode island as as well as our me as well as elsewhere this is the nub of the complaint has she has judge smith down below  state law claims based on a matty decadal campaign of deception and lies attacks on science and scientists which were intended by the industry to vastly increase their production which led to increased emissions which led to the injuries being suffered today you cannot fairly read the complaint as counsel attempts to do to divorce the deception from every single one of the claims ability to understand the dangers of profiting use of of the defendant's products and trespass is based on the foreseeability and the participation in the creation of the problem by this disinformation campaign is the defendant a tat a strong case this is not a case that involves any challenge to any regulation federal or state it doesn't challenge any permit held by anyone it doesn't challenge remedy to which council referred is to recover is to take measures to mitigate and adapt injuries that are occurring a simple example would be the building of sea walls and federal officers so share your honor and by the way that's the only issue that this court has the jurisdiction to to address so there are going to start there  so you have to look at two steps under the federal officers statute st of all where the defendants acting under a federal officer and nd is the conduct complained of related to that relationship with the federal officer and this is the path now that three other sibling circuits have already been down all of whom concluded that there is no federal officer removal jurisdiction the th circuit held that each of the three proper grounds identical to the ones here so you've got that the  my apologies he disappeared from my screen to for the for the sake of the public gallery we just we lost a connection with one of our judges momentarily howard would you mind telling me where i am on my time yes i was just looking at that myself as i see it you still have fourteen minutes left the middle of one of these remote arguments i lost power that's right church we i think we can get back on by telephone if i remember that's exactly right so these glitches arise sometimes gathered your thoughts you may become where you left off thank you your honor so the th circuit looked at exactly the same evidence cherry proper for a federal officer removeable has as your honour's happy for you and concluded that neither the next car provision of gasoline to military bases nor the outer continental shelf lease operations nor the don't kill reserve connection was sufficiently connected to rise to the level of a federal offices they didn't reach the issue of whether our claims are related to that relationship of acting under the th circuit or only examine the outer continental shelf relationship and agreed hostile that there was not a who but there was neither an acting under nor a  relationship between the claim and that conduct and the th circuit held that the next common leases did not satisfy acting under that the outer continental shelf leases didn't satisfy either acting under or for or relating to that relationship and with respect to the elk hill contract the court doubted that there was acting under relationship there but that it certainly didn't satisfy the four relating to issue i'm going to take them in that court order if if if i may that is that's fine but i would just be just before you do that i want to just ask you one quick question if it is the bottom line that that that the misinformation were deceit type allegations actually are not you don't need that hook t prevail in your argument correct ok go ahead but i was going to talk about that st because it's actually the most obvious reason that there's not a federal officer removal jurisdiction here and that is that the federal government has no interest in this information deception and the kind of failure to warn conduct that is at issue in the case so even if you were to find and you should not by the way but even if you were to find that the provision of gasoline to federal basis is acting under a federal agent there's no connection to the plaintiff's claims here support the jurisdictional removal anyway i was trying to figure out just based upon what you just say it if that if that if the federal government in approving these leases has necessarily factored in an act that misrepresentation calculus and regulating this whole and history well you know if you look  at if you look at some of the earlier cases for instance the th circuit's decision in winters which the supreme court in watson said who we don't necessarily decide that a private actor acting under a federal contractor can do it but but acknowledge that in this that case it happened when you had was the production of agent orange rd the war effort and it was a failure to warn claim certain by the plaintiff for personal injuries and the federal government had controlled the warnings that were with this product that was not otherwise commercially available and the th circuit said under those circumstances the failure to warn claim implicates the federal officer relationship because the government controlled the warnings if you look at the server case of the th circuit which was in as best this military use of this best us on naval ships failure to warn case you have the same thing that was proof proffered by the defendant in that case that the government had not only had to conduct been involved in naval vessels which was a government function but that the warnings that were provided were specified in the federal contract and that the government by the way knew more about it than the contractor who provided  courts have found that federal office the removal exists and by the way the th circuit applies though the looser standard of causal connection just thirty or relating to that it's very different from what we have here and that's why the court circuit the one that had like explained how you see the difference sure there's well st of all the relationships in these contractual relationships are arms length for the companies private benefit economic benefit in three with these cases it's a commercial relationship the government is not using these these  that's being produced for her effort for example and the government is not is not part of part of what they're doing is for the national reserves let's talk about the i'll kill reserves because because that is predecessor standard oil owned undifferentiated part and so the contract the unit production contract talks about preserving the corpus in case it's needed for a national emergency and allowing production sufficient so that standard oil can take its share out of the ground and the contract is very this is the one thousand nine hundred and forty four contract is very is very clear on this paragraph eight for example which appears in joint appendix to twenty eight dollars it is expressed we recognised by maybe an standard but this contract does not and cannot in another itself authorize the production of any  there from not less than fifteen thousand dollars barrels of oil per day which is intended to provide standard with its share its ownership share and then sections seven says standard shall have this as a  for the navy from the reserve under this original contract and in fact now we turn to the reference to the naval petroleum reserves production act of one thousand nine hundred and seventy six which by the way was not mentioned in  e palance opening brief only on their in their reply so we haven't yet responded had a chance to respond but even the n p r p a congress determined that the navy no longer needed to maintain a happens as following they say the department of energy operated the field after one thousand nine hundred and seventy six quote but chevron and the government share production revenues and expenses in proportion to their ownership shares reserves were searched by deo eat at market rates in other words what happened was that they opened up what had formerly been a reserve preserving petroleum for use in the event of a national emergency i believed in then to thousands so revenues from that were deposited into the u s treasury but it was it was like the outer continental shelf they were simply making the resource available for the commercial market and there is no case holding that a commercial relationship between the government as a seller or less or and a private party that profits from an activity this is just like logging on federal lands mining on federal d lands grazing on federal lands or the outer continental shelf that's a commercial relationship regulated of course and subject to inspections and quality controls but for private profit if you look at the statute itself the n p r p eight directs the government in section this is ten u s c se and twenty two c one b to preserve to produce the reserves at the maximum efficient rate consistent with sound engineering practices and two in this is in section c subsection c one c sound or otherwise dispose of the united states share of petroleum produced from the reserve each sale of the united states share of petroleum shall be made by the secretary d at the time it was the secretary of the navy now it's the head of the department of energy shall be made by the secretary at public sale to the highest qualified bidder so this is this is not actions that are undertaken or if a fundamental government purpose like fighting or under direction in control doing something that the government would have to do itself it's making a public that a variable or a private purchase subject to regulation and oversight in the end there is no case the says that that kind of relationship is an acting under relationship context of words matters and the exception because as d i believe it was judge thompson pointed out if it's interpreted the way the defendants want it interpreted it swallows the whole and exception clause cannot do that it would be inconsistent with the purpose of the act the general purpose of the act which is to make granting re man unreviewable and it's very different from  honor st let me let me start with this question of the government purpose both with respect to the outer continental shelf leases in el kill these were just typical commercial contracts even though those could give rise to federal office jurisdiction the outer continental shelf statute says for some of these this is government federal government owned oil on government property subject to federal law and the reason that there was a command that the secretary of interior dollars so there was a command to the federal executive branch by congress to extract oil to protect our nation's national security and the the way that the government did that was t leases that give the government the secretary of interior the power to determine how much oil will be extracted where it will be extracted the timing the rate and the ability to take that off for directly for government purposes but that is j letter in baker is really important your honor because it demonstrates that the th circuit in the th circuit and the th circuit applied the wrong standard of review asked a federal officer removal the court there correctly said there th the wealthy did complaint will does not apply to the statutes to be liberally construed and not grudgingly this court has said the same thing and that it's a pleading standard so are allegations plausible just like you would look at a complaint in the court said quoting the acar case from the supreme court the defendant doesn't have to prove an airtight case on the merits mr sharon went on with his interpretation of the hills contract we disagree with  the baker case i think it's very similar because it went back in time but the outer continental shelf shelf activity is happening right now and so if this is a national security purpose being implemented by the government by  could if there was a statute commanding the secretary of interior to to make sure to for national security purposes or otherwise to harvest to engage in logging this is really different this is critical to the government's decision making it's it's that it's still the federal government a federal government will issue yes your honor st i kept to say you know the federal government had all the information that in and you knew the effects of oil and gas production and that because oil and gas is so important to national security all the laws encourage production so it's really inconsistent with their theory but the baker case i keep going back to it because from the th circuit it made this exact point your honor that the eating argument sort of embraces the notion that they encourage production but they also encourage misrepresentation i'm i'm having a hard time trying to reconcile that you know you're on to you know the the complete test is whether the complaint is is alleging actions that relate to the relationship between the defendant and the that's enough for a federal officer removal so that's the test and that's again why i think the th circuit the th circuit went wrong on this point and so it doesn't they don't that the complaint doesn't have to say you in the federal government engaged in some misrepresentation scheme together it will lead just that in connection with the activities of oil production for the federal government on federal land for national security purposes that's swept in by this complaint that's all that that is i think we're still i think we're still sister circuits rather than a sibling circuits corrected thank your honour's thank you all that kind of look at the arguments for today session for the honorable united states court of appeals is now recessed until the next session of the court god save the united states of america and this honorable