United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2023 Decided December 19, 2023

No. 22-7163

DISTRICT OF COLUMBIA,

APPELLEE

v.

EXXON MOBIL CORPORATION, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-01932)

Kannon K. Shanmugam argued the cause for appellants. 

With him on the briefs were Theodore J. Boutrous, Jr., Thomas 

G. Hungar, Justin Anderson, William T. Marks, Theodore V. 

Wells, Jr., Daniel J. Toal, David C. Frederick, Grace W. 

Knofczynski, Daniel S. Severson, James W. Cooper, Ethan 

Shenkman, Nancy G. Milburn, Diana E. Reiter, John D. 

Lombardo, and Jonathan W. Hughes.

Theodore E. Rokita, Attorney General, Office of the 

Attorney General for the State of Indiana, Thomas M. Fisher, 

Solicitor General, James A. Barta, Deputy Solicitor General, 

Steve Marshall, Attorney General, Office of the Attorney 
2

General for the State of Alabama, Treg Taylor, Attorney 

General, Office of the Attorney General for the State of Alaska, 

Tim Griffin, Attorney General, Office of the Attorney General 

for the State of Arkansas, Christopher M. Carr, Attorney 

General, Office of the Attorney General for the State of 

Georgia, Kris Kobach, Attorney General, Office of the 

Attorney General for the State of Kansas, Daniel Cameron, 

Attorney General, Office of the Attorney General for the 

Commonwealth of Kentucky, Lynn Fitch, Attorney General, 

Office of the Attorney General for the State of Mississippi, 

Austin Knudsen, Attorney General, Office of the Attorney 

General for the State of Montana, Michael T. Hilgers, Attorney 

General, Office of the Attorney General for the State of 

Nebraska, Alan Wilson, Attorney General, Office of the 

Attorney General for the State of South Carolina, Ken Paxton, 

Attorney General, Office of the Attorney General for the State 

of Texas, Sean D. Reyes, Attorney General, Office of the 

Attorney General for the State of Utah, Bridget Hill, Attorney 

General, Office of the Attorney General for the State of 

Wyoming, were on the brief for amici curiae Indiana and 13 

Other States in support of appellants.

Andrew R. Varcoe, Stephanie A. Maloney, William M. Jay, 

and Andrew Kim, were on the brief for amicus curiae the 

Chamber of Commerce of the United States of America in 

support of appellants.

Ashwin P. Phatak, Principal Deputy Solicitor General, 

Office of the Attorney General for the District of Columbia, 

argued the cause for appellee. With him on the brief were 

Hassan A. Zavareei, Anna C. Haac, Victor M. Sher, Brian L. 

Schwalb, Attorney General, Office of the Attorney General for 

the District of Columbia, Caroline S. Van Zile, Solicitor 

General, Thais-Lyn Trayer, Deputy Solicitor General, and Lucy 

E. Pittman, Senior Assistant Attorney General.
3

Deepak Gupta was on the brief for amici curiae Law 

Professors in support of appellee.

Alison S. Gaffney and Daniel P. Mensher were on the brief 

for amici curiae Robert Brulle, et al. in support of appellee.

Sathya S. Gosselin was on the brief for amici curiae the 

National League of Cities, et al. in support of appellee.

Letitia James, Attorney General, Office of the Attorney 

General for the State of New York, Barbara D. Underwood, 

Solicitor General, Matthew W. Grieco, Senior Assistant 

Solicitor General, Rob Bonta, Attorney General, Office of the 

Attorney General for the State of California, William Tong, 

Attorney General, Office of the Attorney General for the State 

of Connecticut, Kathleen Jennings, Attorney General, Office 

of the Attorney General for the State of Delaware, Anne E. 

Lopez, Attorney General, Office of the Attorney General for 

the State of Hawai’i, Kwame Raoul, Attorney General, Office 

of the Attorney General for the State of Illinois, Aaron M. Frey, 

Attorney General, Office of the Attorney General for the State 

of Maine, Anthony G. Brown, Attorney General, Office of the 

Attorney General for the State of Maryland, Andrea Joy 

Campbell, Attorney General, Office of the Attorney General 

for the Commonwealth of Massachusetts, Dana Nessel, 

Attorney General, Office of the Attorney General for the State 

of Michigan, Keith Ellison, Attorney General, Office of the 

Attorney General for the State of Minnesota, Matthew J. 

Platkin, Attorney General, Office of the Attorney General for 

the State of New Jersey, Raul Torrez, Attorney General, Office 

of the Attorney General for the State of New Mexico, Ellen F. 

Rosenblum, Attorney General, Office of the Attorney General 

for the State of Oregon, Michelle A. Henry, Attorney General, 

Office of the Attorney General for the Commonwealth of 
4

Pennsylvania, Peter F. Neronha, Attorney General, Office of 

the Attorney General for the State of Rhode Island, Robert W. 

Ferguson, Attorney General, Office of the Attorney General 

for the State of Washington, and Joshua L. Kaul, Attorney 

General, Office of the Attorney General for the State of 

Wisconsin, were on the brief for amici curiae State of New 

York, et al. in support of appellee.

Before: KATSAS, RAO and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: The District of Columbia sued several 

energy companies in the Superior Court of the District of 

Columbia, alleging the companies violated District law by 

making material misstatements about their products’ effects on 

climate change. The defendants removed the case to the federal 

district court, which determined it lacked jurisdiction and 

remanded. 

We agree that remand was proper. Under the time honored 

well-pleaded complaint rule, it is the cause of action chosen by 

the plaintiff that governs whether a lawsuit may be filed in 

federal court. Here, the District did not invoke a federal cause 

of action but relied instead on the District of Columbia’s 

consumer protection statute. The companies raise what amount 

to federal defenses, but that is not enough to establish federal 

jurisdiction over the District’s claims. 

I.

The District of Columbia sued Exxon Mobil, Shell, BP, 

and Chevron, as well as various subsidiary entities

(“Companies”), in the Superior Court of the District of 

Columbia. According to the District, the Companies deceived 
5

consumers about the causal link between fossil fuel usage and 

climate change. Specifically, the District alleges the 

Companies inaccurately advertised their fossil fuel products as 

“green” and “clean” and failed to warn consumers about the 

products’ effects on the climate. These “greenwashing 

campaigns” led District consumers to purchase more fossil 

fuels, and thus contribute more to climate change, than they 

otherwise would have. Relying exclusively on the District of 

Columbia Consumer Protection Procedures Act (“CPPA”), the 

District maintains that the Companies’ advertisements and 

information campaigns about fossil fuels were “unfair or 

deceptive trade practices.” D.C. CODE § 28-3904. The District 

requested a permanent injunction barring the Companies from 

violating the CPPA, as well as damages and civil penalties. 

The Companies removed the case to the United States 

District Court for the District of Columbia. They argued that 

the consumer protection suit was in fact part of a coordinated 

campaign to alter the nation’s energy policy, circumventing 

federal environmental policy decisions by obtaining favorable 

judgments in state courts. The Companies advanced several 

grounds for federal jurisdiction, which the District Court

rejected, remanding the case to the Superior Court of the 

District of Columbia. 

The Companies appealed. Ordinarily we lack jurisdiction 

over the appeal of a remand order, but Congress has provided 

an exception for cases removed pursuant to the federal officer 

removal statute. 28 U.S.C. § 1447(d). Because the Companies 

invoked the federal officer removal statute as one of their

grounds for removal, the appeal is properly before us. 

Moreover, we may “consider all of the defendants’ grounds for 

removal,” not merely whether removal is appropriate under the 

federal officer removal statute. BP p.l.c. v. Mayor of Baltimore, 

141 S. Ct. 1532, 1543 (2021). The remand order goes to subject 
6

matter jurisdiction, and so our review is de novo. Capitol Hill 

Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 

485, 489 (D.C. Cir. 2009).

II.

An action may be removed to federal court when it “could 

have been brought originally in federal court.” Home Depot 

U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019); see also 

28 U.S.C. § 1441(a) (“Except as otherwise expressly provided 

by Act of Congress, any civil action brought in a State court of 

which the district courts of the United States have original 

jurisdiction, may be removed by the defendant.”); id. § 1451 

(“The term ‘State court’ includes the Superior Court of the 

District of Columbia.”). The Companies maintain federal 

jurisdiction is appropriate because: (i) the District’s suit arises 

under federal common law; (ii) the District’s suit raises 

disputed and substantial federal questions, so it may be 

removed under Grable & Sons Metal Products, Inc. v. Darue 

Engineering & Manufacturing, 545 U.S. 308 (2005); (iii) the 

federal officer removal statute applies; and (iv) removal is 

proper pursuant to the Outer Continental Shelf Lands Act, Pub. 

L. No. 212, 67 Stat. 462 (1953) (codified at 43 U.S.C. §§ 1331 

et seq.).

None of these grounds justifies removal of the District’s 

suit, and we thus affirm the district court’s order remanding the 

case to the Superior Court. In reaching this conclusion, we are 

in accord with the other courts of appeals, which have 

unanimously found there is no federal jurisdiction where state 

or local governments have brought state-law actions against 

energy companies for conduct relating to climate change.1

1 The District’s suit is similar to many that state governments have 

brought in state courts, alleging that energy companies have
7

A.

The Companies first maintain that the District’s claim, 

even if ostensibly brought under the CPPA, actually turns on 

the federal common law of interstate air pollution and therefore 

arises under federal law. 28 U.S.C. § 1331 (providing district 

courts “original jurisdiction of all civil actions arising under the 

Constitution, laws, or treaties of the United States”). We 

disagree.

For over a century, American courts have applied the wellpleaded complaint rule, under which “[a] suit arises under the 

law that creates the cause of action.” Am. Well Works Co. v. 

Layne & Bowler Co., 241 U.S. 257, 260 (1916). The fact that a 

lawsuit will likely turn on a federal question is generally

insufficient to confer federal jurisdiction if the plaintiff 

proceeds under a state-law cause of action. Even if it is “very 

likely, in the course of the litigation,” that a federal question 

will arise, that does “not show that the suit ... arises under” 

federal law. Louisville & Nashville R.R. Co. v. Mottley, 211 

U.S. 149, 152 (1908). Moreover, “it is ... settled law that a case 

may not be removed to federal court on the basis of a federal 

defense, including the defense of pre-emption, even if the 

defense is anticipated in the plaintiff’s complaint, and even if 

promoted fossil fuels while concealing their impacts on climate 

change. In each of these cases, the companies have removed to 

federal court, only to have the suits remanded to state court. See 

Connecticut v. Exxon Mobil Corp., 83 F.4th 122 (2d Cir. 2023);

Minnesota v. Am. Petroleum Inst., 63 F.4th 703 (8th Cir. 2023); City 

of Hoboken v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022); Rhode 

Island v. Shell Oil Prods. Co., 35 F.4th 44 (1st Cir. 2022); Mayor of 

Baltimore v. BP p.l.c., 31 F.4th 178 (4th Cir. 2022); Bd. of Cnty. 

Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 

1238 (10th Cir. 2022); City of Oakland v. BP p.l.c., 969 F.3d 895 

(9th Cir. 2020).
8

both parties concede that the federal defense is the only 

question truly at issue.” Caterpillar Inc. v. Williams, 482 U.S. 

386, 393 (1987).

It is undisputed that the District’s complaint pleads only 

District law violations under the CPPA, which is part of the 

D.C. Code and enacted pursuant to the District of Columbia’s

legislative power over “all rightful subjects of legislation 

within the District.” D.C. CODE § 1-203.02; District of 

Columbia Self-Government and Governmental Reorganization 

Act, Pub. L. No. 93-198, tit. III, § 302, 87 Stat. 774, 784 

(1973). Congress has explicitly defined the “laws of the United 

States” not to include “laws applicable exclusively to the 

District of Columbia.” 28 U.S.C. § 1366. It follows that the 

District’s suit, which arises under the CPPA, does not arise 

under the “laws ... of the United States.” 28 U.S.C. § 1331.

Nonetheless, the Companies argue that removal is 

appropriate under the “artful pleading” doctrine, which permits 

removal in rare instances when “a cause of action in the 

plaintiff’s complaint, if properly pled, would pose a federal 

question and make the case removable” but the plaintiff has 

attempted to frustrate removal “by pleading [the] case without 

reference to any federal law.” CHARLES ALAN WRIGHT ET AL.,

14C FEDERAL PRACTICE & PROCEDURE § 3722.1 (4th ed. 

2018). Under this corollary to the well-pleaded complaint rule, 

the Companies say the District’s CPPA claims—that the 

Companies misled the public about climate change and that 

their production and promotion of fossil fuels contributed to 

climate change—in fact rest on the federal common law of 

interstate air pollution. If we conclude the District “has ‘artfully 

pleaded’ claims in this fashion, [we] may uphold removal even 

though no federal question appears on the face of the 

[District’s] complaint.” Rivet v. Regions Bank of La., 522 U.S. 

470, 475 (1998).
9

The artful pleading doctrine paradigmatically allows 

removal when a state-law cause of action is completely 

preempted by a federal statute. In that circumstance, any “claim 

which comes within the scope of that cause of action, even if 

pleaded in terms of state law, is in reality based on federal law.” 

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003). The 

Supreme Court has found complete preemption in only three 

instances, and in each case a statute “clearly manifested” that 

federal law wholly displaced state law. See Avco Corp. v. Aero 

Lodge No. 735, 390 U.S. 557, 560–61 (1968) (section 301 of 

the Labor Management Relations Act); Metro. Life Ins. Co. v. 

Taylor, 481 U.S. 58, 66 (1987) (section 502(a) of the Employee 

Retirement Income Security Act); Beneficial Nat’l Bank, 539 

U.S. at 10–11) (sections 85 and 86 of the National Bank Act); 

see also Empire HealthChoice Assurance, Inc. v. McVeigh, 547 

U.S. 677, 698 (2006) (“If Congress intends a preemption 

instruction completely to displace ordinarily applicable state 

law, and to confer federal jurisdiction thereby, it may be 

expected to make that atypical intention clear.”). The 

Companies, however, do not argue that Congress has 

completely preempted the District’s CPPA suit. 

Instead, the Companies suggest the federal common law 

of interstate air pollution might be “analogous in some respects 

to complete preemption,” such that the District’s claim, even if 

brought under the CPPA, should be understood as grounded in 

federal common law. They rely on Illinois v. City of Milwaukee

(“Milwaukee I”), which explained that nuisance actions 

“deal[ing] with air and water in their ambient or interstate 

aspects” were traditionally governed by federal common law 

in light of the “overriding federal interest in the need for a 

uniform rule of decision.” 406 U.S. 91, 103, 105 n.6 (1972). 

This federal common law thereby displaced “the varying ... 

law of the individual States.” Id. at 107 n.9 (cleaned up).
10

The Companies admit their reliance on federal common 

law is not an orthodox application of the doctrine of complete 

preemption, which turns on whether Congress has clearly 

provided for complete preemption in a federal statute.

Nonetheless they argue that when a state-law action is 

necessarily governed by federal common law, the artful 

pleading doctrine should allow for removal to federal court for 

such claims. But federal common law does notsupport removal

here.

1.

To begin with, it is unclear whether federal common law 

could serve as the basis for removal under the artful pleading 

doctrine. The Supreme Court has suggested that artful pleading 

may be limited to complete preemption. See Beneficial Nat’l 

Bank, 539 U.S. at 8 (“[A] state claim may be removed to federal 

court in only two circumstances—when Congress expressly so 

provides ... or when a federal statute wholly displaces the statelaw cause of action through complete pre-emption.”); see also 

14C FEDERAL PRACTICE & PROCEDURE § 3722.1 (“The 

absence from [Rivet, 522 U.S. at 475] of any reference to a 

category of artful pleading that is conceptually distinct from the 

complete preemption doctrine hints that completely preempted 

claims may be the only claims to which the artful-pleading 

doctrine should apply.”). And the Court has rejected the idea 

that there might be some generic artful pleading basis for 

federal jurisdiction. See, e.g., Merrill Lynch, Pierce, Fenner & 

Smith Inc. v. Manning, 578 U.S. 374, 392–93 (2016) (“We have 

no idea how a court would” “go behind the face of a complaint 

to determine whether it is the product of ‘artful pleading.’”). 

But even assuming federal common law could provide a basis 

for removal under the artful pleading doctrine, the Companies’ 

argument fails as there is no longer any relevant federal 

common law that might displace the District’s CPPA claim.
11

The Clean Air Act comprehensively regulates air pollution 

at a national level, and the Supreme Court has held that the Act 

displaces the federal common law and provides the relevant 

body of federal law for nuisance actions involving interstate air 

pollution. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 

424 (2011) (explaining “the Clean Air Act and the EPA actions 

it authorizes displace any federal common-law right” to bring 

interstate air pollution actions). Federal common law, whereby 

the federal courts apply uniform, judicially crafted rules of 

decision, “plays a necessarily modest role under a Constitution 

that vests the federal government’s ‘legislative Powers’ in 

Congress and reserves most other regulatory authority to the 

States.” Rodriguez v. FDIC, 140 S. Ct. 713, 717 (2020); see 

U.S. CONST. art. I, § 1 (vesting “[a]ll legislative Powers” in 

Congress). Only in the “absence of an applicable Act of 

Congress” may “the federal courts ... fashion the governing 

rule of law according to their own standards.” Clearfield Tr. 

Co. v. United States, 318 U.S. 363, 367 (1943). Once Congress 

has legislated in an area previously governed by federal 

common law, “the need for such an unusual exercise of 

lawmaking by federal courts disappears.” City of Milwaukee v. 

Illinois (“Milwaukee II”), 451 U.S. 304, 314 (1981). 

Because there is no federal common law of interstate air 

pollution after the Clean Air Act, the District’s CPPA suit 

could not have been pleaded as a federal common law action.

2.

The Companies attempt to overcome this straightforward

conclusion. Although they recognize the Clean Air Act has 

displaced the federal common law of interstate air pollution, 

they maintain that this fact is irrelevant to the jurisdictional 

question of whether removal is proper. They contend that statelaw suits about interstate emissions are barred by federal 
12

common law as a jurisdictional matter, and therefore that the 

District’s complaint must be understood as bringing a federal 

common law action. The jurisdictional question, they insist, is 

distinct from the merits determination of whether there is a 

remedy under federal common law.

The Companies’ argument is foreclosed by the doctrinal 

underpinnings of federal common law and by numerous

Supreme Court decisions. We can find no support for the 

suggestion that federal common law has the Schrödinger

quality advanced by the Companies—where one does not know 

if it is alive or dead until the case is removed to federal court.

The Court has repeatedly emphasized that when Congress 

“speak[s] directly to a question,” that legislation displaces 

federal common law.

2 Mobil Oil Corp. v. Higginbotham, 436 

U.S. 618, 625 (1978); see also id. (“There is a basic difference 

between filling a gap left by Congress’ silence and rewriting 

rules that Congress has affirmatively and specifical[ly]

enacted.”). Legislative displacement of federal common law 

applies for both jurisdictional and merits purposes.3

2 See also Am. Elec. Power Co., 564 U.S. at 423–24 (“[I]t is primarily 

the office of Congress, not the federal courts, to prescribe national 

policy in areas of special federal interest.”); TVA v. Hill, 437 U.S. 

153, 194 (1978) (“Once Congress, exercising its delegated powers, 

has decided the order of priorities in a given area, it is for the 

Executive to administer the laws and for the courts to enforce them 

when enforcement is sought. ... Once the meaning of an enactment 

is discerned and its constitutionality determined, the judicial process 

comes to an end.”).

3 The cases cited by the Companies do not support their argument 

that federal common law may persist for jurisdictional purposes even 

when displaced with respect to the merits. In Oneida Indian Nation 

of New York v. County of Oneida, the cause of action was “claimed 

to arise under federal law in the first instance.” 414 U.S. 661, 676 
13

In the Clean Air Act, Congress displaced federal common 

law through comprehensive regulation, but it did not 

completely preempt state law,4 nor did it provide an 

independent basis for removal, as it has done in many other 

statutes. See, e.g., 28 U.S.C. §§ 1442, 1452, 1453 (allowing 

removal of suits against federal officers, claims related to 

bankruptcy, and class-action suits). It would be inconsistent 

with Congress’s directives and the Supreme Court’s decision 

in American Electric for this court to conclude that federal 

common law persists solely for the purpose of removing the 

District’s CPPA claims to federal court. 

When Congress legislates to displace federal common law, 

the statute governs the extent to which state law is preempted. 

Milwaukee II, 451 U.S. at 312–13 (explaining “[t]he enactment 

of a federal rule in an area of national concern, and the decision 

whether to displace state law in doing so, is generally made not 

by the federal judiciary, purposefully insulated from 

democratic pressures, but by the people through their elected 

(1974). The Court did not make a separate jurisdictional 

determination of the kind advanced by the Companies because there 

was no question of preemption. Possession of tribal lands is 

exclusively the purview of federal law. Id. at 677–78. Similarly, in 

United States v. Standard Oil Co., the Court addressed cases where 

“Congress has not acted affirmatively about the specific question.” 

332 U.S. 301, 307 (1947). Unlike this case, there was no question of 

whether federal common law persisted after Congress had legislated.

4

 Every court of appeals to consider the issue has concluded that the 

Clean Air Act does not completely preempt state-law causes of 

action. See Minnesota, 63 F.4th at 710 (“Because Congress has not 

acted, the presence of federal common law here does not express 

Congressional intent of any kind—much less intent to completely 

displace any particular state-law claim.”); City of Hoboken, 45 F.4th 

at 707; County of San Mateo v. Chevron Corp., 32 F.4th 733, 748 

(9th Cir. 2022); Bd. of Cnty. Comm’rs of Boulder, 25 F.4th at 1265.
14

representatives in Congress”) (emphasis added). For example,

the Supreme Court concluded that the Clean Water Act

displaced the federal common law of interstate water pollution. 

See id. at 317. The Court later considered whether state

common law pollution actions were preempted. In doing so, the 

Court assessed the question of preemption entirely as a matter

of statutory interpretation, stating that the relevant question 

was “whether the [Clean Water] Act pre-empts [state] common 

law to the extent that [common] law may impose liability.” 

Int’l Paper Co. v. Ouellette, 479 U.S. 481, 491 (1987). The 

Court repeatedly emphasized Congress’s directives in the 

statute, rather than the preemptive effect of (any residual)

federal common law. See id. at 491–500. And while the Court 

held the particular state-law claim at issue was preempted 

under the Clean Water Act, it held that other state-law claims 

were not. Id. at 497.

Ouellette is directly analogous to the question before us, 

and the Supreme Court has explicitly signaled that courts 

should apply the Ouellette reasoning to state-law claims 

involving interstate air pollution. In American Electric, after 

holding the Clean Air Act displaces the federal common law of 

interstate air pollution, the Court stated that “the availability vel 

non of a state lawsuit depends, inter alia, on the preemptive 

effect of the federal Act.” 564 U.S. at 429 (citing Ouellette, 479 

U.S. at 489, 491, 497). Whether the District’s suit may go 

forward thus depends on the preemptive effect of the Clean Air 

Act, not on the preemptive effect of federal common law.

The Companies’ argument—that the District’s state-law 

claims implicating interstate air pollution arise under federal 

common law even following the Clean Air Act—simply cannot 

be squared with American Electric or Ouellette.

5 Under the 

5 The cases the Companies cite for this argument are unavailing. For 

instance, the Ninth Circuit in Native Village of Kivalina v. 
15

Companies’ view, all state-law claims dealing with interstate 

pollution would remain barred by federal common law. Yet 

Ouellette explicitly concluded that some state-law claims could 

proceed despite the Clean Water Act, confirming that the 

federal common law of interstate pollution was no longer a 

jurisdictional bar to state-law pollution claims. Ouellette, 479 

U.S. at 497; cf. Jonathan H. Adler, Displacement and 

Preemption of Climate Nuisance Claims, 17. J.L. ECON &

POL’Y 217, 255 (2022) (“Under Ouellette, the displacement of 

federal common law does not mean that claims of an interstate 

or cross-boundary character are to be dismissed as beyond the 

ExxonMobil Corp. held that a cause of action grounded in federal 

common law was displaced by the Clean Air Act—precisely the 

proposition that is fatal to the Companies’ argument. See 696 F.3d 

849, 856–58 (9th Cir. 2012). And in City of New York v. Chevron

Corp., which held that a nuisance action brought by the City of New 

York could not go forward in light of federal common law and the 

Clean Air Act, the Second Circuit expressly did not decide “whether 

the defendants’ anticipated defenses could singlehandedly create 

federal-question jurisdiction under 28 U.S.C. § 1331 in light of the 

well-pleaded complaint rule.” 993 F.3d 81, 94–98 (2d Cir. 2021).

Moreover, the courts of appeals have overwhelmingly rejected 

the Companies’ argument that even after the Clean Air Act the 

federal common law of interstate pollution overrides all state-law 

claims. See Rhode Island, 35 F.4th at 55 (“The ... Clean Air Act ... 

ha[s] statutorily displaced any federal common law that previously 

existed. So we cannot rule that any federal common law controls 

Rhode Island’s claims.”) (cleaned up); Mayor of Baltimore, 31 F.4th 

at 206 (“Defendants believe that removal is proper based on federal 

common law even when the federal common law claim has been 

deemed displaced, extinguished, and rendered null by the Supreme 

Court. We believe that position defies logic.”); Bd. of Cnty. Comm’rs 

of Boulder, 25 F.4th at 1260 (“[T]his case could not have been 

removed to federal court on the basis of federal common law that no 

longer exists.”) (cleaned up). 
16

province of the courts. Rather, displacement means that federal 

common law is unavailable, either to resolve or preempt the ... 

plaintiffs’ claims.”). And in American Electric, the Court 

similarly stated that the availability of a state-law suit turned 

on the preemptive effect of the Clean Air Act, not federal 

common law. 

The Companies do not argue the Clean Air Act completely 

preempts the District’s suit. Whether that statute bars the 

District’s claim as a matter of ordinary preemption is a merits 

defense to be resolved in the first instance by the District’s 

courts. See Metro. Life Ins., 481 U.S. at 63 (“Federal preemption is ordinarily a federal defense to the plaintiff’s suit. As 

a defense, it does not appear on the face of a well-pleaded 

complaint, and, therefore, does not authorize removal to federal 

court.”).

* * *

The District brought claims exclusively under District of 

Columbia law, which presumptively must be heard in the 

District’s courts. The artful pleading doctrine does not support 

removal. The Companies do not identify any statute that 

completely preempts the District’s CPPA claims, and the 

Companies cannot rely on federal common law governing air 

pollution because, at the very least, it has been displaced by the 

Clean Air Act. While the Companies may invoke Clean Air Act 

preemption as a merits defense, this does not support removal 

of the District’s CPPA claims to federal court.

B.

The Companies also argue that the federal question statute 

provides jurisdiction under the Grable doctrine, which is a 

limited exception to the well-pleaded complaint rule. The 

doctrine applies when “a federal issue is: (1) necessarily raised, 
17

(2) actually disputed, (3) substantial, and (4) capable of 

resolution in federal court without disrupting the federal-state 

balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 

258 (2013). All factors must be met for a federal court to have 

jurisdiction.

Grable is inapplicable because no federal issue is 

“necessarily raised” by the District’s suit. A federal question is 

necessarily raised only if it is “an essential part of [the 

plaintiff’s] affirmative claim” rather than a “response to an 

anticipated defense.” D.C. Ass’n of Chartered Pub. Schs. v. 

District of Columbia, 930 F.3d 487, 491 (D.C. Cir. 2019) 

(cleaned up). This requirement is critical given the “black-letter 

law that an anticipated federal defense does not substantiate 

federal-question jurisdiction.” Id. The District has alleged only 

that the Companies “engage[d] in an unfair or deceptive trade 

practice” under District law. D.C. CODE § 28-3904. The 

District’s claim is brought under the CPPA without reference 

to any federal law at all. 

The District’s lawsuit does not fit within the Supreme 

Court’s previous decisions applying the Grable doctrine. In 

these cases, the state-law claim—as asserted by the plaintiff—

required resolving a federal issue. In Smith v. Kansas City Title 

& Trust Co., a shareholder sued under Missouri corporate law 

to enjoin a company from investing funds in certain federally 

issued bonds. 255 U.S. 180, 195 (1921). The only argument 

advanced by the plaintiff was that the act of authorizing the 

bonds violated the federal Constitution. Id. In Grable, the 

plaintiff asserted a state-law quiet title action that turned on 

whether the IRS had violated federal statutes in seizing its 

property. 545 U.S. at 310–11. And in Gunn v. Minton, where 

the Court found the federal issue was necessarily raised but not 

substantial, the plaintiff asserted a legal malpractice claim 

based on the allegation that he would have prevailed in a 
18

federal patent suit absent his attorney’s misconduct. See 568 

U.S. at 255. In each case, the plaintiff’s theory of the state-law 

claim explicitly turned on a predicate federal law question.

By contrast, nothing in the District’s complaint turns on 

federal law. The District does not argue the CPPA violation 

rests on the violation of a federal statute, nor does it otherwise 

link its District law claim to federal law. Rather, the District 

alleges the Companies have inaccurately advertised their fossil 

fuel products and misrepresented the effects of those products 

on climate change and thereby committed an unfair or 

deceptive trade practice in contravention of District law.

The Companies argue the District’s claims are properly 

resolved by federal law because “the substance of the 

allegations in the complaint require the application of federal 

law and thus give rise to federal jurisdiction.” They maintain 

the complaint effectively “seeks to establish liability” for 

alleged misrepresentations about the environmental effects of 

fossil fuels “in contravention of federal law that ‘affirmatively 

promotes fossil fuel use’” through federal tax benefits, 

subsidies, and leases. This appears to be a repackaging of the 

Companies’ artful pleading argument, which we have already 

rejected. 

Of course, resolving the District’s suit may well require 

the application of federal law in the sense that it will require 

resolving questions of federal preemption. But to reiterate, that 

is simply an anticipated federal defense that cannot serve as the 

basis for federal question jurisdiction.

C.

The Companies also argue that removal is appropriate 

under the federal officer removal statute. See 28 U.S.C. 

§ 1442(a)(1). The statute initially allowed defendants to 
19

remove if they were “sued in an official or individual capacity 

for any act under color of such office.” 28 U.S.C. § 1442(a)(1)

(2006) (emphasis added). The Supreme Court interpreted that 

language to require a “causal connection between the charged 

conduct and asserted official authority.” Jefferson County v. 

Acker, 527 U.S. 423, 431 (1999) (cleaned up). But in 2011,

Congress broadened the statute to allow removal of suits “for 

or relating to” any act under color of such office. Removal 

Clarification Act of 2011, Pub. L. No. 112-51, § 2(b)(1)(A), 

125 Stat. 545, 545 (emphasis added). Courts have generally 

interpreted that amendment to permit removal over “actions, 

not just causally connected, but alternatively connected or 

associated, with acts under color of federal office.” Latiolais v. 

Huntington Ingalls, Inc., 951 F.3d 286, 292 (5th Cir. 2020) (en 

banc); see also Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 

258 (4th Cir. 2017) (same). 

After the amendment, the statute does not require a causal 

connection between acts taken under color of federal office and 

the basis for the action. Rather, it is enough that acts taken 

under color of federal office are “connected or associated” with 

the conduct at issue in the case. Latiolais, 951 F.3d at 296. We 

need not resolve the exact bounds of that standard, however, 

because under any reasonable interpretation, the District’s suit 

is not “for or relating to” actions taken by the Companies under 

color of federal office.

The Companies first point to conduct that occurred long 

before the events relevant to this litigation. For instance, the 

Companies’ predecessors purportedly acted under federal 

officers by assisting with the production of aviation fuel and 

other essential military products during World War II and the 

Korean War, and by complying with orders of the Petroleum 

Administration for Defense during these periods and during the 

1973 oil embargo. But the District does not allege the 
20

Companies acted unlawfully until the late 1980s, and none of 

the alleged misrepresentations bears any relationship to the sale 

or production of military fuels in the mid-20th century. There 

is simply no relationship between actions taken by the 

Companies’ predecessors in the 1940s and 1950s and the

allegedly deceptive statements made by the Companies about 

climate change since 1980.

Next, the Companies contend the District’s suit is related 

to commercial relationships between the Companies and the 

federal government that persist to this date. The Companies

explain they have extracted gasoline on the Outer Continental 

Shelf, an area subject to federal regulation, pursuant to leases 

issued by the federal government. Similarly, Exxon and its 

predecessor Standard Oil have contracted with the Navy to 

coordinate extraction and operations at the Elk Hills Naval 

Petroleum Reserve in California. Furthermore, affiliates of 

Shell and Exxon have operated and leased Strategic Petroleum 

Reserve pipelines and terminals subject to federal regulations.

Whether or not these commercial relationships are 

sufficient to establish the Companies were “acting under” 

federal officers, they are not sufficiently “related to” the 

District’s suit. The District alleges the Companies engaged in 

unlawful misrepresentations by making statements to the 

general public through advertising campaigns in national 

newspapers and magazines expressing uncertainty about the 

effect of fossil fuels on anthropogenic climate change. But 

none of these alleged misrepresentations references the Outer 

Continental Shelf, the Elk Hills Reserve, or the Strategic 

Petroleum Reserve. Nor is there any allegation the Companies

engaged in these misrepresentations at the behest of or in 

coordination with federal officers. Rather, the complaint 

exclusively references statements made by the Companies that 

relate broadly to climate change, rather than to any specific 
21

activities conducted by the Companies in concert with the 

federal government. As the Eighth Circuit recently stated, 

“[t]he Energy Companies’ production of military-grade fuel, 

operation of federal oil leases, and participation in strategic 

energy infrastructure, even if done at federal direction, bears 

little to no relationship with how they conducted their 

marketing activities to the general public.” Minnesota v. Am. 

Petroleum Inst., 63 F.4th 703, 715 (8th Cir. 2023).

The Companies also insist that the relevant question is not 

the District’s theory of liability but the harm that gives rise to 

the relevant damages. They argue the alleged injuries are 

premised on harm caused by climate change, which is in turn 

causally linked to the extraction of fossil fuel more generally, 

including from federal leases, the Elk Hill Naval Reserve, and 

the Strategic Petroleum Reserve. We disagree. 

The District emphasized at oral argument that it “w[ould] 

not seek damages” for the causal connection between the 

“overuse” of fossil fuels and “global climate change” or “for 

the physical effects of climate change in the District.” Instead, 

the District committed it would seek only those damages 

associated with misrepresentations made by the Companies. It 

follows that there is no link between the leasing activities 

conducted by the Companies and the damages at issue in this

lawsuit. The Companies have failed to demonstrate that the 

District’s suit fits within the federal officer removal statute.

D.

Finally, the Companies argue removal is appropriate under 

the Outer Continental Shelf Lands Act (“OCSLA”). That 

statute provides the federal district courts with original 

jurisdiction over “cases and controversies arising out of, or in 

connection with ... any operation conducted on the outer 

Continental Shelf which involves exploration, development, or 
22

production of the minerals, of the subsoil and seabed of the 

outer Continental Shelf, or which involves rights to such 

minerals.” 43 U.S.C. § 1349(b)(1). The Companies argue that 

they engage in “operation[s] conducted on the outer 

Continental Shelf” by operating leases in the area and by 

extracting oil and gas from the Shelf. They maintain the 

District’s claims “aris[e] out of” or are “in connection” with 

such operations because they target the advertising of products 

extracted and produced from these operations.

The courts of appeals are not entirely in accord as to the 

standard for removal under OCSLA. Although some courts 

have required operations on the Shelf be a but-for cause of the 

claims at issue, see Tenn. Gas Pipeline v. Hous. Cas. Ins. Co., 

87 F.3d 150, 155 (5th Cir. 1996), other courts simply ask 

whether the suit is “linked closely to production or 

development on the Shelf,” see City of Hoboken v. Chevron 

Corp., 45 F.4th 699, 710 (3d Cir. 2022), or whether the claims 

pertain to “actions or injuries occurring on the outer 

Continental Shelf,” County of San Mateo v. Chevron Corp., 32 

F.4th 733, 753 (9th Cir. 2022). In practice, however, these 

different formulations often lead to similar results, as the cases 

finding OCSLA jurisdiction consistently involve “either claims 

with a direct physical connection” to the Shelf, such as tort 

claims arising from accidents on the Shelf, or “contract or 

property dispute[s] directly related” to operations on the Shelf. 

Id. at 754.

We need not resolve which standard governs removal. 

Under any reasonable understanding, the District’s claims of 

misrepresentations tied to the consumption of fossil fuels do 

not “aris[e] out of,” nor are they “in connection with,” 

operations “conducted on” the Outer Continental Shelf. 43 

U.S.C. § 1349(b)(1). The District alleges the Companies

violated the CPPA through general statements they made to the 
23

public about the risks of climate change and the role their 

products play in causing climate change. At most this suit 

concerns statements made about products extracted from the 

Shelf, which is a far cry from the tort or contract disputes that 

have justified removal jurisdiction under OCSLA. Any 

connection between the alleged misrepresentations and the 

Companies’ operations on the Shelf is incidental and tenuous 

and therefore cannot support removal.6

* * *

Under the well-pleaded complaint rule, the cause of action 

chosen by the plaintiff usually determines the existence of 

federal jurisdiction. This case is no exception. The District 

brought suit exclusively under the D.C. Code, and the 

Companies have provided no basis for federal jurisdiction. We 

affirm the district court’s order remanding this case to the 

Superior Court of the District of Columbia.

So ordered.

6 Every circuit to consider the issue has concluded that removal is not 

appropriate under OCSLA for similar state-law claims. See 

Connecticut, 83 F.4th at 147 (holding the suit did not arise in 

connection with defendants’ operations on the Shelf); Minnesota, 63 

F.4th at 713 (holding the claims were not an “operation” or 

“conducted on” the Shelf); Mayor of Baltimore, 31 F.4th at 232 

(holding the “connection ... is simply too remote”); City of Hoboken, 

45 F.4th at 712 (same); Bd. of Cnty. Comm’rs of Boulder, 25 F.4th at 

1274 (holding the claim has “no direct connection” to the Shelf); 

Rhode Island, 35 F.4th at 60 (same).