Amicus Curiae Brief — BP p.l.c., et al., Petitioners v. Mayor and City Council of Baltimore

No. 19-1189

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------BP P.L.C., ET AL.,

Petitioners,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

---------------------------------♦--------------------------------BRIEF OF ATLANTIC LEGAL FOUNDATION AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------LAWRENCE S. EBNER

Counsel of Record

NISHANI NAIDOO

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

Counsel for Amicus Curiae

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i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES……………………………ii

INTEREST OF THE AMICUS CURIAE..……………1

SUMMARY OF ARGUMENT………………………….3

ARGUMENT…………………………………………...…5

Federal Courts Are The Appropriate Forum For

Climate Change Tort Suits……………………..………5

A. State-law tort claims seeking damages or other

remedies for global climate change unavoidably

implicate federal law…………………………………5

B. Federal courts are the appropriate forum for

determining whether climate change tort claims

are justiciable, and if they are, whether federal

law displaces such claims, or alternatively,

preempts them………………………………………10

C. Climate change tort claims should be adjudicated,

if at all, by federal courts in order to foster

uniformity of decision and preserve interstate

federalism……………………………………………15

CONCLUSION……………………………………...…..18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

American Electric Power Co. v. Connecticut,

564 U.S. 410 (2011) ................................... passim

Baker v. Carr,

369 U.S. 186 (1962) ..................................... 11, 14

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ............................................. 8

Fry ex rel. E.F. v. Napoleon Cmty. Schools,

137 S. Ct. 743 (2017) ........................................... 6

Goodyear Dunlop Tires Ops., S.A. v. Brown,

564 U.S. 915 (2011) ........................................... 17

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ......................................... 8, 10

Juliana v. United States,

947 F.3d 1159 (9th Cir. 2020) ..................... 12, 13

Massachusetts v. EPA,

549 U.S. 497 (2007) ..................................... 10, 11

Native Village of Kivalina v. ExxonMobil

Corp.,

696 F.3d 849 (9th Cir. 2012) ..................... 8, 9, 12

iii

People v. B.P. p.l.c.,

Civ. Nos. C-17-06011 & C-17-06012

(WHA) (N.D. Cal. Feb 27, 2018), vacated

& remanded sub nom. City of Oakland v.

B.P. p.l.c., 960 F.3d 570 (9th Cir. 2020) ........... 16

Rivet v. Regions Bank,

522 U.S. 470 (1988) ............................................. 6

Taylor v. Kellogg Brown & Root Servs., Inc.,

658 F.3d 402 (4th Cir. 2011) ............................. 14

Vieth v. Jubelirer,

541 U.S. 267 (2004) ..................................... 10, 11

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ........................................... 17

Constitution, Statutes, & Rules

U.S. Const. art. III. ....................................... 4, 10, 13

28 U.S.C. § 1331 ................................................. 4, 10

28 U.S.C. § 1407 ..................................................... 15

28 U.S.C. § 1442(a)(1) ............................................... 2

28 U.S.C. § 1447(d) ............................................... 2, 3

42 U.S.C. § 7401 et seq. .................................. 8, 9, 12

Fed. R. Civ. P. 12(b) ................................................ 14

Fed. R. Civ. P. 56 .................................................... 14

iv

Other Authorities

Columbia Law School, Sabin Center for Climate

Change Law and Arnold & Porter, U.S. Climate

Change Litigation data base,

http://climatecasechart.com/us-climate-changelitigation (last visited Nov. 9, 2020) ............... 2, 3

DRI Center for Law and Public Policy, No

Independence, No Justice (Feb. 2019), avail. at

https://tinyurl.com/yxj5fsf6 ............................... 16

1

INTEREST OF THE AMICUS CURIAE 1

Founded in 1977, the Atlantic Legal Foundation is

a national, nonprofit, public interest law firm whose

mission is to advance the rule of law and civil justice

by advocating for individual liberty, free enterprise,

property rights, limited and efficient government,

sound science in judicial and regulatory proceedings,

and school choice. With the benefit of guidance from

the legal scholars, corporate legal officers, private

practitioners, business executives, and prominent

scientists who serve on its Board of Directors and

Advisory Council, the Foundation pursues its mission

by participating as amicus curiae in carefully selected

appeals before the Supreme Court of the United

States, federal courts of appeals, and state supreme

courts.

Nationally recognized for its advocacy of sound

science in the courtroom, and consistent with its

strong commitment to serve the public interest, the

Atlantic Legal Foundation has submitted amicus

briefs on behalf of renowned scientists such as

Nicholaas Bloembergen (a Nobel laureate in physics)

and Bruce Ames (one of the world’s most frequently

citied scientists) in each of the “Daubert trilogy” of

Petitioners’ and Respondent’s counsel of record have lodged

blanket consents for the filing of merits-stage amicus briefs. In

accordance with Supreme Court Rule 37.6, amicus curiae

Atlantic Legal Foundation certifies that no counsel for a party

authored this brief in whole or part, and that no party or counsel

other than the amicus curiae and its counsel made a monetary

contribution intended to fund preparation or submission of this

brief.

1

2

cases—Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993); General Electric Co. v. Joiner, 522

U.S. 136 (1997); and Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999). In Daubert, the Court quoted the

Foundation’s brief on the meaning of “scientific . . .

knowledge” as used in Federal Rule of Evidence 702.

See Daubert, 509 U.S. at 590 (“Indeed, scientists do not

assert that they know what is immutably `true' — they

are committed to searching for new, temporary

theories to explain, as best they can, phenomena.”)

(quoting Brief for Nicholaas Bloembergen, et al. at 9).

***

As this litigation reflects, the ongoing, decadeslong, highly contentious scientific debate concerning

the extent to which industrial activities, particularly

carbon dioxide and other greenhouse gas emissions

attributable to “fossil fuel” energy companies, may

have contributed to global climate change also has

engendered significant, unresolved, legal issues. See

generally Columbia Law School, Sabin Center for

Climate Change Law and Arnold & Porter, U.S.

Climate Change Litigation data base (indexing 1,292

climate change-related litigation matters in the

United States). 2

The question presented in this appeal involves the

scope of appellate review under 28 U.S.C. § 1447(d)

where a state-court action has been removed to a

federal district court in part on federal-officer removal

grounds, 28 U.S.C. § 1442(a)(1). This seemingly

esoteric question of appellate law arises here in

2 http://climatecasechart.com/us-climate-change-litigation (last

visited Nov. 9, 2020).

3

connection with global climate change tort litigation

brought against more than two dozen multinational

energy companies by a financially distressed city in

the comfortable surroundings of its own state circuit

court (the Circuit Court for Baltimore City), where

locally elected judges preside. See App. 31a. Many

similar state-court suits seeking to hold virtually the

entire fossil fuel industry liable under state common

law for the alleged harmful effects of global climate

change have been filed around the nation by state and

local governments. See Br. for the Petitioners at 6-7

& 7 n.1; Sabin Ctr., supra (listing suits raising

“common law claims” against “fossil fuel companies”

for “climate change impacts”).

Amicus curiae Atlantic Legal Foundation believes

that it is important for this Court to consider the

§ 1447(d) scope-of-review issue in the context of the

state-court global climate change litigation in which it

arises. Although Baltimore’s artfully drafted statecourt attack against the fossil fuel industry is couched

in state common law terms, the city’s public nuisance

claims and other state-law causes of action

unavoidably

implicate

federal

constitutional,

statutory, regulatory, and common law.

The

Foundation submits that the geographically

unbounded, global climate change liability claims

lodged against major fossil fuel energy companies in

this and similar suits should be adjudicated—if at

all—by the federal judiciary, not in 50 separate statecourt systems.

SUMMARY OF ARGUMENT

The Fourth Circuit’s opinion begins by explaining

that “[t]his appeal is about whether a climate-change

4

lawsuit against oil and gas companies belongs in

federal court.” App. 2a. It does. The court of appeals

erred by confining its analysis to the basis for federalofficer removal, thereby refusing to consider

petitioners’ additional grounds for removal (e.g., that

there is § 1331 federal question jurisdiction because

Baltimore’s claims necessarily arise under federal

common law).

The global, or at least nationwide, scope of

Baltimore’s claims regarding petitioners’ alleged

significant contributions to climate change not only

place this and similar litigation within the province of

federal law, but also compel the conclusion that such

cases should be resolved by federal, not state, courts.

Unlike the 50 state court systems, the unitary federal

judicial system requires federal judges and litigants to

proceed in accordance with a single set of nationally

uniform (i) procedural rules, (ii) pretrial discovery

requirements, (iii) standards governing motions to

dismiss and for summary judgment, and (iv) criteria

for admissible evidence, including the testimony of

scientific experts. Federal district courts are generally

more experienced than state trial courts in managing

complex cases that involve conflicting expert

testimony on scientific subjects. And unlike the states’

50 separate judicial systems, Article III establishes

only one Supreme Court to interpret and apply the

law.

The legal issues raised by climate change tort suits

are federal issues that should be addressed by federal

courts. They include, for example, the threshold

question of whether such suits require adjudication of

nonjusticiable political questions in violation of the

5

Constitution’s separation of powers. And insofar as

climate change tort suits are justiciable, they raise

important federal questions such as whether climate

change-related public nuisance claims, although

styled as state common law claims, actually arise

under federal common law and thus are displaced by

federal statutory law. Or alternatively, whether

federal statutory, regulatory, or common law

preempts state-law climate change claims.

Unless climate change tort suits can remain in

federal court following removal, there is a significant

risk that the states’ differing court systems will

impose upon the same group of multinational

defendants conflicting or inconsistent state-law

judgments and remedies. Allowing states or their

political subdivisions to continue pursuing climate

change litigation in their own state courts—where

they enjoy a decidedly home-court advantage—

undermines interstate federalism by enabling the

states that file these suits to assert their coercive

power over the states that do not.

ARGUMENT

Federal Courts Are The Appropriate Forum For

Climate Change Tort Suits

A. State-law tort claims seeking damages or

other remedies for global climate change

unavoidably implicate federal law

In this litigation “Baltimore avers that it has

suffered various ‘climate change-related injuries.’”

App. 3a. But these alleged climatological harms—“an

increase in sea levels, storms, floods heat-waves,

droughts, and extreme precipitation,” id.—do not stop

6

at the Baltimore city limits. Instead, as the spate of

similar suits from coast to coast suggests, the alleged

adverse effects of climate change (sometimes called

“global warming”) are global, or at least nationwide, in

scope. So is Baltimore’s complaint, which broadly

claims that the production, promotion, and use of

fossil fuel products has “substantially contributed” to

global climate change. App. 3a.

Despite Baltimore’s efforts to avoid removal by

restricting its complaint to ostensibly garden-variety

state common law nuisance and other claims, see App.

3a, 32a, “[w]hat matters is the crux—or, in legal

speak, the gravamen—of the plaintiff[s]’ complaint,

setting aside any attempts at artful pleading.” Fry ex

rel. E.F. v. Napoleon Cmty. Schools, 137 S. Ct. 743, 755

(2017); cf. Rivet v. Regions Bank, 522 U.S. 470, 475

(1988) (discussing the “artful pleading” corollary to the

“complete preemption” removal doctrine) (“[A]

plaintiff may not defeat removal by omitting to plead

necessary federal questions. If a court concludes that

a plaintiff has ‘artfully pleaded’ claims in this fashion,

it may uphold removal even though no federal

question appears on the face of the plaintiff’s

complaint.” (internal quotation marks and citation

omitted)).

Baltimore’s artfully drafted complaint, like

climate change itself, is necessarily interstate in

nature. Indeed, the 132-page complaint contains

“many references to fossil fuel production” that “serve

to tell a broader story . . . about how the unrestrained

production and use of Defendants’ fossil fuel products

contribute to greenhouse gas pollution.” App. 21-22a.

Regardless of the local environmental impacts that

7

Baltimore claims the petitioners’ fossil fuel-related

activities may have triggered, the alleged tortious

conduct at issue in this litigation is nationwide or

global in scope, and neither limited to, nor directed

toward, the City of Baltimore.

This Court already has recognized that climaterelated public nuisance claims arise under, or at least

are controlled by, federal law. In American Electric

Power Co. v. Connecticut, 564 U.S. 410 (2011), the

Court addressed the question of whether several

states, New York City, and private land trusts “can

maintain federal common law public nuisance claims

against carbon-dioxide emitters (four private power

companies and the federal Tennessee Valley

Authority).” Id. at 415. The plaintiffs, which sought

“a decree setting carbon-dioxide emissions for each

defendant,” id., claimed that “[b]y contributing to

global warming . . . the defendants’ carbon-dioxide

emissions created a substantial and unreasonable

interference with public rights, in violation of the

federal common law of interstate nuisance, or, in the

alternative, of state tort law.” Id. at 418 (internal

quotation marks omitted).

In its unanimous opinion, the Court emphasized

in American Electric Power that “[e]nvironmental

protection is undoubtedly an area within national

legislative power, one in which federal courts may fill

in statutory interstices, and if necessary, even fashion

federal law.” Id. at 421 (internal quotation marks

omitted). Although the Court explained that “‘[w]hen

we deal with air and water in their ambient or

interstate aspects, there is a federal common law,’” id.

(quoting Illinois v. City of Milwaukee, 406 U.S. 91, 103

8

(1972) (“Milwaukee I”), it indicated that any “federal

common law claim for curtailment of greenhouse gas

emissions because of their contribution to global

warming . . . would be displaced by the federal

legislation authorizing EPA [the U.S. Environmental

Protection Agency] to regulate carbon-dioxide

emissions.” Id. at 423.

The Court therefore held in American Electric

Power that “the Clean Air Act and the EPA actions it

authorizes displace any federal common law right to

seek abatement of carbon-dioxide emissions from

fossil-fuel fired power plants.” Id. at 424. “The critical

point is that Congress delegated to EPA the decision

whether and how to regulate carbon-dioxide emissions

from power plants; the delegation is what displaces

federal common law.” Id. at 426; see also id. at 419

(noting that in City of Milwaukee v. Illinois, 451 U.S.

304, 316–319 (1981) (“Milwaukee II”) “this Court held

that Congress had displaced the federal common law

right of action recognized in Milwaukee I by adopting

amendments to the Clean Water Act . . . an allencompassing regulatory program, supervised by an

expert

administrative

agency,

to

deal

comprehensively with interstate water pollution”).

Along the same lines, the plaintiffs in Native

Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849

(9th Cir. 2012), filed a federal district court action

“contending that greenhouse gases released by the

[defendant] Energy Producers cross state lines and

thereby contribute to the global warming that

threatens the continued existence of [the] village.” Id.

at 855. Unlike the emissions abatement decree

requested in American Electric Power, the Kivalina

9

plaintiffs sought “damages under a federal common

law claim of public nuisance” for past emissions. Id.

at 853. Recognizing that “federal common law can

apply to transboundary pollution suits,” id. at 855

(citing Int’l Paper Co. v. Ouellette, 479 U.S. 481, 492

(1987) (“the control of interstate pollution is primarily

a matter of federal law”)), the court held that

American Electric Power required dismissal of the

Kivalina suit. See id. at 856-57. The Ninth Circuit

explained in Kivalina that “the Supreme Court has

held that federal common law addressing domestic

greenhouse gas emissions has been displaced by

Congressional action. That determination displaces

federal common law public nuisance actions seeking

damages, as well as those actions seeking injunctive

relief.” Id. at 858.

Since the Court in American Electric Power held

that the Clean Air Act displaced the plaintiffs’ federal

common law nuisance claim, there was no reason to

address, and the Court did not address, whether the

plaintiffs’ placeholder state-law nuisance claim was

preempted. See 546 U.S. at 429. Nonetheless, in

dicta, the Court implicitly recognized that federal law

controlled the viability of the plaintiffs’ state-law

claim: “In light of our holding that the Clean Air Act

displaces federal common law, the availability vel non

of a state lawsuit depends, inter alia, on the

preemptive effect of the federal Act.” Id.

The Supreme Court precedents discussed above,

and also the Kivalina decision, demonstrate that

petitioners’ alleged contributions to global climate

change involve a subject that arises under, or is

entirely subject to, federal law. Therefore, the crucial

10

questions that govern the viability of Baltimore’s

suit—

(i) whether Baltimore’s purported state-law

claims necessarily arise under federal common law,

and thus are displaced by federal statutes and/or

regulations, and

(ii) whether Baltimore’s claims, even if not

displaced, are expressly and/or impliedly preempted

by federal statutes and regulations,

are questions that belong in federal court. They are

federal questions that federal district courts have

§ 1331 subject-matter jurisdiction to decide, and

should decide. Cf. Milwaukee I, 406 U.S. at 99

(holding that interstate water pollution “creates

actions arising under the ‘laws’ of the United States

within the meaning of § 1331(a)”).

And more

fundamentally, whether Baltimore’s claims require

adjudication of political questions, and thus violate

the separation of powers and are nonjusticiable, is a

threshold constitutional issue that should be decided

exclusively by federal courts.

B. Federal courts are the appropriate forum for

determining whether climate change tort

claims are justiciable, and if they are,

whether federal law displaces such claims, or

alternatively, preempts them

Under Article III of the Constitution, “no

justiciable ‘controversy’ exists when parties seek

adjudication of a political question.” Massachusetts v.

EPA, 549 U.S. 497, 516 (2007). Because a “political

question” is an issue that is “entrusted to one of the

political branches,” Vieth v. Jubelirer, 541 U.S. 267,

11

277 (2004), “[t]he nonjusticiability of a political

question is primarily a function of the separation of

powers.” Baker v. Carr, 369 U.S. 186, 210 (1962). In

Baker, this Court “set forth six independent tests for

the existence of a political question.” Vieth, 541 U.S.

at 277. They include “a lack of judicially discoverable

and manageable standards for resolving” an issue, and

“the impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial

discretion.” Id. at 277-78 (quoting Baker, 369 U.S. at

217).

There is substantial reason to conclude that

Baltimore’s global climate change claims would

require adjudication of nonjusticiable political

questions. At the very least, applicability of the

political question doctrine to this case, and to similar

cases, is a separation of powers issue that should be

considered by federal courts.

The Court in American Electric Power, 564 U.S. at

419, noted that the Second Circuit had reversed the

district court’s ruling that the litigation should be

dismissed “as presenting non-justiciable political

questions.” Although this Court acknowledged that

the political question doctrine was one of the

“threshold questions” in the case, id., its opinion does

not address it. The opinion does point out, however,

that “it is primarily the office of Congress, not the

federal courts, to prescribe national policy in areas of

special federal interest.” Id. at 423-24 (emphasis

added). Regulation of greenhouse gas emissions that

may contribute to global climate change is clearly such

an area of special federal interest. See id. at 416 (“In

Massachusetts v. EPA . . . this Court held that the

12

Clean Air Act, 42 U.S.C. § 7401 et seq., authorizes

federal regulation of emissions of carbon dioxide and

other greenhouse gases. . . . they are therefore within

EPA’s regulatory ken.”).

Similarly, in Kivalina, 696 F.3d at 854, the Ninth

Circuit explained that “[t]he district court held that

the political question doctrine precluded judicial

consideration of Kivalina's federal public nuisance

claim.” Although the court of appeals adhered to the

analytical framework that this Court utilized in

American Electric Power, the court cautioned that “the

solution to Kivalina's dire circumstance must rest in

the hands of the legislative and executive branches of

our government, not the federal common law.” Id. at

858 (emphasis added).

Consider also the Ninth Circuit’s more recent

holding in Juliana v. United States, 947 F.3d 1159 (9th

Cir. 2020). The plaintiffs in this so-called “Kids

Climate Suit”—“twenty-one young citizens, an

environmental organization, and a ‘representative of

future generations,’” id. at 1165—claimed “that the

government has deprived them of a substantive

constitutional right to a ‘climate system capable of

sustaining human life.”’ Id. at 1169. They sought

“declaratory relief and an injunction ordering the

government to implement a plan to ‘phase out fossil

fuel emissions and draw down excess atmospheric

[carbon dioxide].’” Id. at 1165. The Ninth Circuit

concluded that “such relief is beyond our

constitutional power.

Rather, the plaintiffs’

impressive case for redress must be presented to the

political branches of government.” Id. (emphasis

added).

13

Because the principal issue before the court of

appeals in Juliana was whether the plaintiffs had

Article III standing to pursue their constitutional

claims, the court focused on the well-established

redressability prong of the test for standing, id. at

1168, i.e., “whether the plaintiffs’ claimed injuries are

redressable by an Article III court.” Id. at 1169. More

specifically, the court explained that “it is beyond the

power of an Article III court to order, design,

supervise, or implement the plaintiffs’ requested

remedial plan. . . . any effective plan would necessarily

require a host of complex policy decisions entrusted,

for better or worse, to the wisdom and discretion of the

executive and legislative branches.” Id. at 1171

(emphasis added).

The Juliana panel majority’s analysis of Article III

standing asserts that “we do not find this to be a

political question.” Id. at 1175 n.9. Nonetheless, their

opinion explains that “although inaction by the

Executive and Congress may affect the form of judicial

relief ordered when there is Article III standing, it

cannot bring otherwise nonjusticiable claims within

the province of federal courts.” Id. at 1175 (emphasis

added). The dissenting opinion in Juliana only

underscores the point that the issue of whether the

political question doctrine bars climate change tort

claims is a live controversy that federal courts should

resolve. See id. at 1187 (Stanton, J., dissenting)

(“Obviously, the Constitution does not explicitly

address climate change. But neither does climate

change implicitly fall within a recognized politicalquestion area.”).

14

Whether Baltimore’s tort suit, and similar climate

change-related tort litigation, raise nonjusticiable

political questions because they implicate one or more

of the Baker factors—for example, a lack of judicially

manageable standards for resolving global climate

change tort litigation, or the impossibility of resolving

such

litigation

without

making

policy

determinations—is a significant separation of powers

issue that is worthy of federal courts’ scrutiny.

Indeed, the Fourth Circuit, from which this appeal

arises, has held, albeit in a different context, that

adjudication of tort claims can be barred by the

political question doctrine. See, e.g., Taylor v. Kellogg

Brown & Root Servs., Inc., 658 F.3d 402 (4th Cir. 2011)

(establishing a test for determining whether the

political question doctrine bars adjudication of statelaw tort claims against war-zone military support

contractors). But the applicability of the political

question doctrine to climate change tort suits is an

issue that cannot percolate among federal district

courts or federal courts of appeals if suits like the

present case are mired in state courts.

Insofar as these types of suits are justiciable,

federal courts also are the appropriate forum for

deciding whether a plaintiff’s climate change tort

claims are displaced, or alternatively, preempted, by

federal law. These issues, as well as the political

question defense and other justiciability issues, can be

raised in federal district courts by means of a Rule

12(b) motion to dismiss or a Rule 56 motion for

summary judgment—motions that are governed by

this Court’s precedents and the nationally uniform

procedural and substantive standards that they

establish. Further, in the interest of judicial economy,

15

pretrial coordination or consolidation of similar

climate change suits under multidistrict litigation

procedures, 28 U.S.C. § 1407, may be available.

If following removal, however, individual suits like

this are remanded to state trial courts, the defendants’

ability (i) to raise and obtain timely pretrial rulings on

the applicability of the political question doctrine, or

on defenses such as federal displacement or

preemption, (ii) to support such defenses with any

necessary jurisdictional or other discovery, and (iii)

even to pursue a pretrial interlocutory appeal of an

adverse ruling, will vary from state to state, and

perhaps even from court to court within a state.

C. Climate change tort claims should be

adjudicated, if at all, by federal courts in

order to foster uniformity of decision and

preserve interstate federalism

The nature and scope of the growing number of

damages suits brought by state and local governments

around the nation—each alleging that many of the

same multinational fossil fuel energy companies have

significantly contributed to global climate change—

require consideration by our nation’s unitary federal

judicial system. If instead each of 50 separate state

court systems is free to reject federal defenses and

adjudicate essentially the state common law public

nuisance claim, or other similar claims, on the merits,

there will be tremendous potential for conflicting or

inconsistent findings of fact, conclusions of law,

judgments, and damages awards or other remedies

imposed on the same group of companies—state-law

decisions which, on their face, presumably would fall

outside this Court’s discretionary jurisdiction.

16

Although a California federal district court’s order

denying motions to remand filed by Oakland and San

Francisco in litigation similar to the present case was

vacated by the Ninth Circuit, the district judge made

the following apt observation:

Taking the complaints at face value, the

scope of the worldwide predicament

demands the most comprehensive view

available, which in our American court

system means our federal courts and our

federal common law. A patchwork of fifty

different answers to the same fundamental

global issue would be unworkable. This is

not to say that the ultimate answer under

our federal common law will favor judicial

relief. But it is to say that the extent of any

judicial relief should be uniform across our

nation.

People v. B.P. p.l.c., Civ. Nos. C-17-06011 & C-1706012 (WHA) (N.D. Cal. Feb 27, 2018) (Order Denying

Motions To Remand) (emphasis added), vacated &

remanded sub nom. City of Oakland v. B.P. p.l.c., 960

F.3d 570 (9th Cir. 2020). A crazy quilt of state court

rulings can be avoided only if climate change tort suits

are removed to, and remain in, federal court.

When deciding whether climate change tort suits

should be left to the vagaries of state courts, this

Court also should consider that unlike federal judges,

many state court judges must stand for election.

“Campaign spending on state judicial elections

continues to . . . increase the influence of special

interest groups in states that elect their judges.” DRI

Center for Law and Public Policy, No Independence,

17

No Justice (Feb. 2019), at 26. 3 Needless to say, global

climate change is a subject of enormous interest to

many special interest groups.

On a more fundamental level, allowing state courts

to adjudicate climate change tort suits imperils “the

principles of interstate federalism embodied in the

Constitution.”

World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 293 (1980). Under our federal

system, the 50 states are “coequal sovereigns,” and

“[t]he sovereignty of each State, in turn, implied a

limitation on the sovereignty of all its sister States—

a limitation express or implicit in the original scheme

of the Constitution and the Fourteenth Amendment.”

Id. at 292, 293.

Because climate change is a nationwide, and

indeed global, phenomenon, and the allegations

against

fossil

fuel

energy

companies

are

correspondingly expansive in scope, any particular

state court system holding fossil fuel energy

companies liable under that state’s tort law for global

climate change and its alleged harms would upset the

balance of interstate federalism. Such a state, or

political subdivision of a state, would be using the

state’s tort law to exert its coercive power over

multinational defendants—and by so doing, make

itself “more equal” than other states with regard to

those defendants. See Goodyear Dunlop Tires Ops.,

S.A. v. Brown, 564 U.S. 915, 918 (2011) (“A state

court's assertion of jurisdiction exposes defendants to

the State's coercive power. . . .”). Allowing climate

change tort litigation, following removal, to remain in

3 Available at https://tinyurl.com/yxj5fsf6.

18

the federal court system, however, would preserve the

balance of sovereignty among the states inherent in

our federal system.

CONCLUSION

Consistent with the position advocated in the Brief

for the Petitioners, the judgment of the court of

appeals should be reversed. In the alternative, the

judgment should be vacated and the case remanded

for further proceedings.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

Nishani Naidoo

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

November 2020