Petitioner Kerr-McGee Chemical Corporation (Kerr-McGee) owns a facility within the city limits of West Chicago, Illinois, that has been used since World War II to produce compounds derived from radioactive natural ores. Since 1956, the facility has been licensed by the Nuclear Regulatory Commission or its predecessor. Although the facility has not been in active operation since 1973, some nuclear materials continue to be stored at the site.
In 1980, respondent State of Illinois filed a complaint against petitioner in an Illinois state court alleging that the operation and maintenance of the facility violates the Illinois Environmental Protection Act, Ill.Rev.Stat. ch. 1111/2, § 1001, et seq., and other state statutes pertaining to the disposal of hazardous wastes. Kerr-McGee petitioned to have the State's case removed to federal court, arguing that the state regulations have been preempted by the Atomic Energy Act, 42 U.S.C. §§ 2011, et seq., which places the regulation of radioactive materials within the exclusive province of the Nuclear Regulatory Commission. The United States District Court for the Northern District of Illinois denied the State's motion to remand the case to the state court. The District Court found that the complaint necessarily involved the interpretation of federal law and thus was a claim "arising under . . . the laws of the United States" within the meaning of the removal statute, 28 U.S.C. § 1441(b). The complaint was dismissed by the District Court on preemption grounds.
On appeal, the United States Court of Appeals for the Seventh Circuit held that removal was improper. The Court of Appeals found that the State's complaint did not rely on or even allude to federal statutes or case law and that there was no basis for concluding that the State had drafted the complaint in order to defeat removal. Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 577 (CA7 1982). The issue of federal preemption, the court held, is "merely a defense to state law claims;" a defense based on federal law cannot be a ground for removal. Id., at 578. The District Court's decision was reversed and remanded with instructions to remand the case to the state court. Petitioner now seeks review of the Seventh Circuit's decision.
The holding in the present case is in direct conflict with a decision in the Second Circuit, North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229 (CA2 1978). In North American Phillips, the Second Circuit found that the lack of reference to federal law in the complaint does not control the determination whether a federal question is presented. The court held that the substance of the allegations must be reviewed in order to determine "whether a federal law is a pivotal issue in the case, one that is basic in the determination of the conflict between the parties." Id., at 233.
The issue whether, or under what circumstances, a defendant's federal preemption claim presents a federal question sufficient to support removal of a state plaintiff's complaint which on its face raises only state claims, is a substantial one going to the heart of the power of federal courts to determine claims raised in state court proceedings. The Court should grant this case to resolve the conflict. Accordingly, I dissent from the denial of certiorari.