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

No. 19-1189

In the Supreme Court of the United States

______________________

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

Petitioners,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

______________________

BRIEF OF AMICI CURIAE THE NATIONAL

ASSOCIATION OF MANUFACTURERS,

SOCIETY OF INDEPENDENT GASOLINE

MARKETERS OF AMERICA, NATIONAL

ASSOCIATION OF CONVENIENCE STORES,

AND ENERGY MARKETERS OF AMERICA

IN SUPPORT OF PETITIONER

_______________

On Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit

_______________

Linda E. Kelly

Patrick Hedren

Erica Klenicki

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10 Street, N.W., 700

Washington, D.C. 20001

(202) 637-3100

November 23, 2020

Philip S. Goldberg

Counsel of Record

SHOOK, HARDY & BACON

L.L.P.

1800 K Street, N.W., 1000

Washington, D.C. 20006

(202) 783-8400

pgoldberg@shb.com

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................. ii

INTEREST OF AMICI CURIAE ........................... 1

INTRODUCTION AND

SUMMARY OF ARGUMENT .......................... 3

ARGUMENT .......................................................... 5

I. THIS COURT HAS ALREADY STATED

THAT LITIGATION INEXTRICABLY TIED

TO U.S. ENERGY POLICY ON CLIMATE

ARISES UNDER FEDERAL LAW ................. 5

II. THIS CASE IMPLICATES THE SAME

FEDERAL INTERESTS RECOGNIZED IN

AM. ELEC. POWER V. CONNECTICUT ...... 7

A. This Case Is a Thinly-Veiled Attempt to

Plead Around AEP ..................................... 7

B. Facial Differences Between This Case

and AEP Do Not Alter the Federal

Nature of this Litigation ............................ 10

III.THE COURT SHOULD ENSURE ALL

GROUNDS FOR REMOVAL ARE

EVALUATED, WHICH WILL SHOW THIS

LITIGATION ARISES UNDER FEDERAL

LAW ................................................................. 15

IV. THIS ATTEMPT AT FEDERAL

REGULATION THROUGH STATE

LITIGATION IS NOT AMENABLE TO

JUDICIAL RESOLUTION ............................. 19

CONCLUSION ....................................................... 21

ii

TABLE OF AUTHORITIES

Cases

Page

Am. Elec. Power Co. v. Connecticut,

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

Bates v. Dow Agrosciences LLC,

544 U.S. 431 (2005).............................................. 12

Bd. of Comm’rs of Boulder County v. Suncor

Energy, 965 F.3d 792 (10th Cir. 2020) ................ 18

Comer v. Murphy Oil USA, Inc.,

839 F. Supp. 2d 849 (S.D. Miss. 2012) .................. 6

Comer v. Murphy Oil USA, Inc.,

718 F.3d 460 (5th Cir. 2013) ................................. 5

City of New York v. BP P.L.C.,

325 F. Supp. 3d 466 (S.D.N.Y. 2018) ............ 15, 16

City of Oakland v. BP P.L.C.,

325 F. Supp. 3d 1017 (N.D. Cal. 2018) .......... 15-16

City of Oakland v. BP P.L.C.,

960 F.3d 57 (9th Cir. 2020) ................................. 17

Cty. of San Mateo v. Chevron,

294 F. Supp. 3d 934 (N.D. Cal. 2018) ................. 17

Cty. of San Mateo v. Chevron Corp.,

960 F.3d 586 (9th Cir. 2020) ............................... 17

Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000).............................................. 12

iii

Kivalina v. ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) ....................... passim

Lu Juhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015) ............................... 15

Rhode Island v. Chevron Corp.,

393 F. Supp. 3d 142 (D. R.I. 2019) ...................... 18

Rhode Island v. Shell Oil Prods. Co., LLC,

– F.3d –, 2020 WL 6336000

(1st Cir. Oct. 29, 2020) ........................................ 18

Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) ......... 12

Savoie v. Huntington Ingalls, Inc.,

817 F.3d 457 (5th Cir. 2016) .......................... 11-12

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007).............................................. 11

Statute

28 U.S.C. § 1442 ........................................................ 15

Other Authorities

Amicus Brief of Indiana and Fourteen Other

States in Support of Dismissal, City of Oakland v. BP (9th Cir. filed Apr.19, 2018) .............. 13

Atmospheric Recovery Litigation: Making the Fossil Fuel Companies Pay for Cleaning up the

Atmosphere, Creek Project YouTube Channel,

May 23, 2018 .......................................................... 9

iv

Complaint, City of Charleston v. Brabham Oil

Co., Inc., No. 2020-CP-10 (S.C. Ct. Comm.

Pleas Sept. 9, 2020) ............................................. 10

George Constable & Bob Somerville, A Century of

Innovation: Twenty Engineering Achievements

That Transformed Our Lives (Joseph Henry

Press 2003) ........................................................... 19

Geoff Dembicki, Meet the Lawyer Trying to Make

Big Oil Pay for Climate Change, Vice,

Dec. 22, 2017 ........................................................ 15

Ross Eisenberg, Forget the Green New Deal. Let’s

Get to Work on a Real Climate Bill, Politico,

Mar. 27, 2019, at https://www.politico.com/

magazine/story/2019/03/27/green-new-dealclimate-bill-226239 .............................................. 19

Entire January Meeting Agenda at Rockefeller

Family Foundation, Wash. Free Beacon,

April 2016............................................................... 9

Establishing Accountability for Climate Damages:

Lessons from Tobacco Control, Summary of the

Workshop on Climate Accountability, Public

Opinion, and Legal Strategies, Union of Concerned Scientists & Climate Accountability

Institute (Oct. 2012) .............................................. 8

Findings of Fact and Conclusions of Law,

In re ExxonMobil Corp., No. 096-297222-18

(Tex. Dist. Ct.–Tarrant Cty. Apr. 24, 2018).......... 7

v

Kirk Herbertson, Oil Companies vs. Citizens:

The Battle Begins Over Who Will Pay Climate Costs, EarthRights, Mar. 21, 2018 ............. 12

Mark Kaufman, Judge Tosses Out Climate Suit

Against Big Oil, But It’s Not the End for

These Kinds of Cases, mashable.com, June

26, 2018 ................................................................ 11

Manufacturers’ Accountability Project, Beyond

the Courtroom at https://mfgaccountability

project.org/beyond-the-courtroom ....................... 10

Larry Neumeister, Judge Shows Skepticism

to New York Climate Change Lawsuit,

Associated Press, June 13, 2018 ......................... 16

Dawn Reeves, As Climate Suits Keeps Issue

Alive, Nuisance Cases Reach Key Venue Rulings, Inside EPA, Jan. 6, 2020 ............................ 13

Robert B. Reich, Don’t Democrats Believe in

Democracy?, Wall St. J., Jan. 12, 2000 ............... 20

Susanne Rust, California Communities Suing

Big Oil Over Climate Change Face a Key

Hearing Wednesday, L.A. Times, Feb. 5,

2020 ...................................................................... 11

Mark Schleifstein, Global Warming Suit Gets

Go-Ahead, Times-Picayune, Oct. 17, 2009 ............ 7

Symposium, The Role of State Attorneys General

in National Environmental Policy,

30 Colum. J. Envtl. L. 335 (2005) ...................... 6-7

vi

Symposium, The Use of Civil Litigation as a

Tool for Regulating Climate Change, Valparaiso University School of Law,

Feb. 18, 2011 .......................................................... 6

Jerry Taylor & David Bookbinder, Oil Companies Should Be Held Accountable for Climate

Change, Niskanen Ctr., Apr. 17, 2018 ................ 14

INTEREST OF AMICI CURIAE1

Amici curiae are the National Association of

Manufacturers (“NAM”), Society of Independent

Gasoline Marketers of America (“SIGMA”), National

Association of Convenience Stores (“NACS”), and

Energy Marketers of America (“EMA”).

The NAM is the largest manufacturing association in the United States, representing small and

large manufacturers in every industrial sector and in

all 50 states. Manufacturing employs more than 12

million men and women, contributes $2.25 trillion to

the U.S. economy annually, has the largest economic

impact of any major sector, and accounts for more

than three-quarters of all private-sector research and

development in the nation. The NAM is the voice of

the manufacturing community and the leading advocate for a policy agenda that helps manufacturers

compete in the global economy and create jobs across

the United States.

Over the past decade, manufacturers have reduced the carbon footprint of our products by 21 percent while increasing our value to the economy by 18

percent, and the reductions are continuing. The

NAM is committed to protecting the environment

and to environmental sustainability, and fully supports national efforts to address climate change and

improve public health through appropriate laws and

1 Pursuant to Rule 37.6, counsel for amici curiae certifies this

brief was not authored in whole or in part by counsel for any

party and no person or entity, other than amici curiae, their

members, or their counsel made a monetary contribution to the

preparation or submission of the brief. Petitioners and Respondents filed blanket consents to the filing of amicus briefs.

2

regulations. The NAM has grave concerns, however,

about the attempt here to create categorical liability

for lawful, beneficial energy products essential to

modern life through state tort law.

SIGMA, founded in 1958, represents a diverse

membership of approximately 260 independent chain

retailers and marketers of motor fuel.

NACS, founded in 1961, is a non-profit trade association representing more than 1900 retail and

1800 supplier company members in the United

States and abroad. NACS is the pre-eminent representative of the interests of convenience store operators. In 2019, the convenience and fuel retailing industry employed approximately 2.46 million workers

and generated $647.8 billion in total sales, representing approximately 3 percent of the United States

Gross Domestic Product. Of those sales, approximately $395.9 billion came from fuel sales alone.

Together SIGMA and NACS represent approximately 80 percent of retail fuel sales in the United

States. Their members sell gasoline and diesel fuel to

the American public at the retail level, distribute

fuel to retailers and are not oil producers or refiners.

EMA is a federation of 47 state and regional trade

associations representing energy marketers throughout the United States. Energy marketers represent a

vital link in the motor and heating fuels distribution

chain. EMA members supply 80 percent of all finished motor and heating fuel products sold nationwide including renewable hydrocarbon biofuels, gasoline, diesel fuel, biofuels, heating fuel, jet fuel, kerosene, racing fuel and lubricating oils. Moreover, energy marketers represented by EMA own and oper-

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ate approximately 60,000 retail motor fuel stations

nationwide and supply heating fuel to more than 5

million homes and businesses.

The NAM, SIGMA, NACS, and EMA have substantial interests in attempts by local governments–

–here, the Mayor and City Council of Baltimore––to

subject their members to unprincipled state liability

for harms a community alleges are associated with

climate change. Climate change is one of the most

important public policy issues of our time, and one,

as this court found in Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011), that plainly implicates

federal questions and complex policymaking.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case is part of a second wave of highly coordinated lawsuits born out of political frustration that

the federal government has not adopted specific policies to address climate change. This particular lawsuit seeks to use state tort law to regulate the national production and sale of energy products that

have been essential to modern life since the industrial revolution. Amici appreciate that due to climate

change, developing new technologies to reduce greenhouse gas (“GHG”) emissions and make energy more

efficient and environmentally friendly has become an

international imperative. But, as the Court stated in

Am. Elec. Power Co. v. Connecticut, which ended the

first wave of this litigation, the decisions needed to

achieve these goals are “national” and, ultimately,

not well-suited for the “vacuum” of tort litigation.

564 U.S. 410, 421, 427 (2011) (hereafter “AEP”).

4

After the Court’s ruling in AEP, the strategists

behind this nationwide litigation campaign began

developing ideas for circumventing the Court’s ruling. They spent several years developing new legal

theories aimed at achieving comparable national

regulatory goals as AEP, but that would appear different from AEP to some courts. In 2017, they started teaming with local governments to file these lawsuits in carefully chosen jurisdictions around the

country. This case is one of more than twenty lawsuits, which are largely identical to each other.

Each complaint asserts that Defendants’ promotion and sale of oil, gas or other carbon energy is a

public nuisance under state common law or violates

another state tort or statute. Thus, to get around

AEP, which involved a federal public nuisance claim,

this suit and others like it seek to draw state courts

into establishing national public policy affecting carbon emissions. The end result would be for state litigation around the country to effectively create national, parallel and potentially conflicting regulatory

structures on the sale and use of fossil fuels.

Regardless of where the cases are filed or how the

claims are fashioned, the subject matter and remedies sought are still inherently national, as well as

legislative and regulatory in nature. The policy this

litigation seeks to drive through state courts impact

a multitude of national interests including energy

independence, stability of America’s electric grid, and

affordability for families and businesses across the

country, in addition to climate impacts. Such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws.

5

Defendants properly removed each case to the

federal judiciary based on these and other federal

law grounds, but the Circuits declined to address

most of the compelling reasons these cases do not belong in state court. Amici respectfully request the

Court to reverse the judgment below and hold Respondent’s claims belong in federal court.

ARGUMENT

I. THIS COURT HAS ALREADY STATED

THAT LITIGATION INEXTRICABLY TIED

TO U.S. ENERGY POLICY ON CLIMATE

ARISES UNDER FEDERAL LAW

The first wave of climate change tort litigation effectively ended in 2011 when this Court unanimously

ruled in AEP that the Clean Air Act displaced federal

common law claims over GHG emissions. See 564

U.S. at 425 (there is “no room for a parallel track” of

tort litigation because Congress delegated authority

to regulate GHG emissions to the Environmental

Protection Agency). In addition to AEP, other climate

cases were filed against producers and others in the

energy sector, much like the case at bar.

Specifically, an Alaskan village sued many of the

same energy producers as here for damages related

to rising sea levels under federal law. See Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849

(9th Cir. 2012). In Mississippi, a purported class action of homeowners sued a multitude of energy producers under state tort law for property damage

caused by Hurricane Katrina. See Comer v. Murphy

Oil USA, Inc., 718 F.3d 460 (5th Cir. 2013). The allegations there were that the defendants’ products

caused climate change, which in turn caused the

6

hurricane to be more intense and inflict their property damage. Thus, these cases have arisen in various

forms—over energy products and use, by public officials and private plaintiffs, under federal and state

law, and for injunctive relief and damages.

Soon after AEP, the Ninth Circuit dismissed Kivalina, finding that even though the legal theories

pursued in Kivalina differed slightly from AEP, given the Court’s broader message, “it would be incongruous to allow [such litigation] to be revived in another form.” 696 F.3d at 857. It was of no legal import that plaintiffs, as here, argued they were only

seeking damages for harm caused by climate change,

not to regulate emissions. A federal judge then dismissed Mississippi homeowners’ state law claims in

Comer. See Comer v. Murphy Oil USA, Inc., 839 F.

Supp. 2d 849, 865 (S.D. Miss. 2012) (asking a Court

to make “determinations regarding the reasonableness of the defendants’ emissions” through tort damages invoked the same federal interests in AEP).

At the time, the plaintiffs in these cases fully embraced the national policy focus of the litigation, hoping courts would set national emissions standards

through injunctive relief or drive global energy policy

by threatening huge monetary damages over the

production and sale of fossil fuels. See Symposium,

The Use of Civil Litigation as a Tool for Regulating

Climate Change, Valparaiso University School of

Law, Feb. 18, 2011 (presentation from Brent Newel,

attorney for the Village of Kivalina). As then Maine

Attorney General Rowe said, “It’s a shame that we’re

here, here we are trying to sue [companies] . . . because the federal government is being inactive.”

Symposium, The Role of State Attorneys General in

7

National Environmental Policy, 30 Colum. J. Envtl.

L. 335, 339 (2005). Gerald Maples, a plaintiffs’ attorney in Comer, echoed this point, saying their “primary goal was to say [to defendants] you are at risk

within the legal system and you should be cooperating with Congress, the White House and the Kyoto

Protocol.” Mark Schleifstein, Global Warming Suit

Gets Go-Ahead, Times-Picayune, Oct. 17, 2009, at 3.

As of 2012, it appeared clear lines were drawn.

Climate litigation targeting private actors were inherently federal in nature, regardless of the cause of

action, court, parties involved, or whether the claims

were stated under federal or state law.

II. THIS CASE IMPLICATES THE SAME

FEDERAL INTERESTS RECOGNIZED IN

AM. ELEC. POWER V. CONNECTICUT

A. This Case Is A Thinly-Veiled Attempt To

Plead Around AEP

The advocacy groups and lawyers intent on using

tort litigation to drive climate public policy were undeterred by AEP. They convened in La Jolla, California in 2012 to brainstorm on how to re-package the

litigation in hopes of achieving success. See Findings

of Fact and Conclusions of Law, In re ExxonMobil

Corp., No. 096-297222-18 (Tex. Dist. Ct.–Tarrant

Cty. Apr. 24, 2018), at 3 (discussing the “Workshop

on Climate Accountability, Public Opinion, and Legal

Strategies”). The strategies discussed included the

one they ultimately employed: filing lawsuits in multiple jurisdictions, hoping one or more case would

reach discovery and put “pressure on the industry

that could eventually lead to its support for legislative and regulatory responses to global warming.” Id.

8

Organizers of the conference captured their discussion and strategies for this litigation in a report

they posted online. See Establishing Accountability

for Climate Damages: Lessons from Tobacco Control,

Summary of the Workshop on Climate Accountability,

Public Opinion, and Legal Strategies, Union of Concerned Scientists & Climate Accountability Institute

(Oct. 2012).2 As the report details, they still believed

“the courts offer the best current hope” for imposing

their national policy agenda against fossil fuels. Id.

at 28. They discussed “the merits of legal strategies

that target major carbon emitters, such as utilities

[as in AEP], versus those that target carbon producers,” as here. Id. at 12. And, they talked through various causes of action, “with suggestions ranging from

lawsuits brought under public nuisance laws,” such

as the one here, “to libel claims.” Id. at 11.

They emphasized making these new lawsuits look

like traditional tort claims rather than directly asking a court to regulate emissions or put a price on

carbon use. See id. at 13. As one participant said,

“Even if your ultimate goal might be to shut down a

company, you still might be wise to start out by asking for compensation for injured parties.” Id. They

also decided to pursue claims under state law in

hopes of avoiding AEP’s shadow. Finally, they discussed “the importance of framing a compelling public narrative, including “naming [the] issue or campaign” to generate “outrage.” Id. at 21, 28.

https://www.ucsusa.org/sites/default/files/attach/2016/04/

establishing-accountability-climate-change-damages-lessonstobacco-control.pdf

2

9

Additional information about the goals and tactics of the litigation campaign continue to emerge. In

January 2016, a second strategy session was held in

New York City to discuss the goals of the litigation

campaign, as they had developed since the La Jolla

conference. See Entire January Meeting Agenda at

Rockefeller Family Foundation, Wash. Free Beacon,

April 2016.3 Specifically, they discussed how they

were going to leverage the filing of these lawsuits,

the media surrounding the litigation, and certain

government investigations they sought to facilitate

in order “to establish in the public’s mind” that these

companies were “corrupt,” to “delegitimize them” and

to “force officials to disassociate themselves” from the

industry. Id. They also emphasized the importance of

“creating scandal” to drive this narrative. Id.4

Lawsuits following these tenets were filed starting in 2017. This case, along with the two dozen local

government climate tort suits the energy industry

removed to the federal judiciary, are parts of the

same litigation campaign. As indicated, the cases are

meant to look facially different from AEP, which targeted energy users (utilities) and sought injunctive

relief under federal public nuisance law. These cases

target energy producers and others in the sales chain

of commerce, invoke state tort laws, and seek abatehttps://freebeacon.com/wp-content/uploads/2016/04/EntireJanuary-meeting-agenda-at-RFF-1-1.pdf.

3

4 As Prof. Mary Wood, a La Jolla participant, later said, “Build-

ing sea walls and repairing roads won’t do anything to fix our

global climate system, but it will drain the profits of the fossil

fuel companies.” Atmospheric Recovery Litigation: Making the

Fossil Fuel Companies Pay for Cleaning up the Atmosphere,

Creek Project YouTube Channel, May 23, 2018.

10

ment and damages. To name the campaign, they

have falsely asserted there has been a widespread

“campaign of deception” involving all of the various

companies named in the numerous lawsuits. See,

e.g., Complaint, City of Charleston v. Brabham Oil

Co., Inc., No. 2020-CP-10 (S.C. Ct. Comm. Pleas

Sept. 9, 2020) (using the phrase 23 times).

Since 2017, they have generated significant attention to their allegations, taking out paid advertisements and billboards urging public officials to file

lawsuits, hosting symposiums and press conferences

to generate media attention to this narrative, and

trying to impact state and federal legislation. See

generally Manufacturers’ Accountability Project, Beyond the Courtroom5 (detailing the coordinated funding, legal and media components of this litigation

campaign). Thus, unlike traditional state tort suits,

success for this national litigation campaign is not

about proving legal or factual allegations, but trying

to leverage their ability to file and sustain lawsuits

in state courts for national, extrajudicial purposes.

B. Facial Differences Between This Case

and AEP Do Not Alter the Federal Nature

of this Litigation

To be clear, the facial differences between this litigation and AEP do not change the fundamental nature of the litigation’s goals, purposes, and impacts.

This litigation campaign is still about driving federal

public policy on the production and sale of oil, gas

and other traditional energy sources. The only difference is that they are seeking to have these decisions

made in state, rather than federal court.

5 https://mfgaccountabilityproject.org/beyond-the-courtroom

11

First, the strategy of invoking state law and naming local companies is intended to keep the cases in

state court, as the organizers believe federal courts

“are less favorable” to their claims given AEP. Mark

Kaufman, Judge Tosses Out Climate Suit Against

Big Oil, But It’s Not the End for These Kinds of Cases, mashable.com, June 26, 2018 (quoting Prof. Carlson, an advisor to Plaintiff’s counsel); see also Susanne Rust, California Communities Suing Big Oil

Over Climate Change Face a Key Hearing Wednesday, L.A. Times, Feb. 5, 2020 (quoting Prof. Hecht,

co-Executive Director of the Emmett Institute on

Climate Change and the Environment at UCLA

School of Law, as saying California governments “are

arguing to have their suits heard in California state

courts, which compared to their federal counterparts,

tend to be more favorable to ‘nuisance’ lawsuits”).

In AEP the Court already explained that the climate public policies at the center of this litigation

are “of special federal interest” and that “borrowing

the law of a particular State would be inappropriate.” Id. at 422-24. It also found that the federal policy matters at issue here are not well-suited for

“judges issuing ad hoc, case-by-case” decisions. AEP,

564 U.S. at 428. Misapplying the well-pleaded complaint rule to keep cases in state court exacerbates,

not solves, these predicaments. State judges could

create national, conflicting regulatory structures on

the sale and use of fossil fuels. Of particular concern

is that state courts, given the parochial nature of the

remedies sought, “may reflect ‘local prejudice’

against unpopular federal laws” or defendants. Watson v. Philip Morris Cos., 551 U.S. 142, 150 (2007);

accord Savoie v. Huntington Ingalls, Inc., 817 F.3d

12

457, 461 (5th Cir. 2016) (observing “historic concern

about state court bias” in federal officer cases).

Second, the lawsuits also falsely disclaim any attempt to regulate or impact national emission standards, asserting the claims are solely about funding

infrastructure projects needed to deal with climate

change. But, as the Ninth Circuit recognized in Kivalina, seeking abatement or damages instead of injunctive relief does not change the federal regulatory

nature of this litigation. See 696 F.3d at 857. Indeed,

this Court has consistently held that state tort damages “directly regulate” conduct the same as legislation and regulation. See, e.g., Riegel v. Medtronic,

Inc., 552 U.S. 312, 325 (2008) (“tort duties of care”

under state law “directly regulate” a defendant’s

conduct). A person subjected to liability must change

the offending conduct to avoid liability, just as it

must to comply with statutes and regulations. See

Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005)

(finding state tort liability imposes state law requirements); Geier v. Am. Honda Motor Co., 529 U.S.

861, 871 (2000) (“[R]ules of law that judges and juries create or apply in such suits may themselves

similarly create uncertainty and even conflict, say,

when different juries in different [s]tates reach different decisions on similar facts.”).

As alluded to above, the ultimate public policy

goal of this litigation is to penalize energy production

and use—what litigation proponents call imposing

the “true cost” of fuels on consumers. Kirk Herbertson, Oil Companies vs. Citizens: The Battle Begins

Over Who Will Pay Climate Costs, EarthRights, Mar.

21, 2018. As fifteen state attorneys general wrote in

an amicus brief in one of these cases, these remedies

13

would know no state bounds: “Plaintiffs are attempting to export their preferred environmental policies

and their corresponding economic effects to other

states.” Amicus Brief of Indiana and Fourteen Other

States in Support of Dismissal, City of Oakland v. BP

(9th Cir. filed Apr. 19, 2018).

A reporter who follows this litigation has observed the incongruity between the ways the cases

are presented and their true goals:

State and local governments pursuing

the litigation argue that the cases are

not about controlling GHG emissions

but instead about collecting damages

from oil companies for the harms their

products have already caused. But they

also privately acknowledge that the

suits are a tactic to pressure the industry to support future mitigation policies.

Dawn Reeves, As Climate Suits Keeps Issue Alive,

Nuisance Cases Reach Key Venue Rulings, Inside

EPA, Jan. 6, 2020.6

Third, shifting the targets of the litigation from

utilities to others in the energy sector is of no legal

consequence. To the contrary, the ever-changing list

of companies named in this litigation—including

among the recently filed cases—underscores the political nature of each lawsuit. Some localities are

seeking to blame only one or two fossil fuel producers

for their alleged climate-related injuries; others are

targeting dozens of disparate companies, including

6 https://insideepa.com/outlook/climate-suits-keeps-issue-alive-

nuisance-cases-reach-key-venue-rulings

14

various energy manufacturers and gas stations, under a large Cuisinart of liability. The truth, as the

Court observed in AEP, is that GHGs are not particular to any industry, but a by-product of modern society. AEP, 564 U.S. at 428-29 (“Similar suits could

be mounted . . . against ‘thousands or hundreds or

tens’ of other defendants fitting the description ‘large

contributors’ to carbon-dioxide emissions.”). Here,

Respondent made a political decision as to whom to

sue in its state courts.

Finally, the penalty these lawsuits seek to impose

would be assessed irrespective of the ability of families and businesses to pay more for their energy

needs, the impact on the U.S. economy and energy

independence, or the other imperative factors that go

into America’s national energy policies. David Bookbinder of the Niskanen Center, which represents

plaintiffs in an action by the County of Boulder, Colorado, candidly acknowledged the litigation’s true

goal: “Given that companies are agents of consumers,

however, holding companies responsible is to hold oil

consumers responsible.” Jerry Taylor & David Bookbinder, Oil Companies Should Be Held Accountable

for Climate Change, Niskanen Ctr., Apr. 17, 2018.

To be clear, the case at bar along with the other

lawsuits that comprise this litigation campaign are

not traditional local property damage cases appropriate for state courts. They are not moored to any

location, jurisdiction or circuit. The people developing these cases have been actively recruiting localities around the country to allow them to file claims

on their behalf in multiple state court jurisdictions

as a political tactic. Their ultimate goal is to drive

national energy policy through these state tort

15

claims, presumably through a national settlement or

the threat of massive liability.7

III. THE COURT SHOULD ENSURE ALL

GROUNDS FOR REMOVAL ARE EVALUATED, WHICH WILL SHOW THIS LITIGATION ARISES UNDER FEDERAL LAW

In an effort to avoid a proper assessment of the

inherently federal nature of this litigation, the organizers of this legal campaign carefully chose the

jurisdictions where these cases have been filed, both

in terms of the states and federal circuits. With respect to the federal common law grounds for removal

raised by Petitioners, none of the state court cases

have been filed in the Circuits—the Fifth, Sixth and

Seventh Circuits—that would “allow appellate review of the whole order” when the removing defendant premised removal in part on the federal-officer

removal statute, 28 U.S.C. § 1442. See Lu Juhong v.

Boeing Co., 792 F.3d 805, 811 (7th Cir. 2015). They

were filed in circuits that have no on-point rulings or

will review only the federal officer removal grounds.

Even still, the cases have resulted in highly divergent outcomes. Specifically, the only two district

courts to have fully assessed the climate cases before

them issued orders to dismiss the cases. See City of

New York v. BP P.L.C., 325 F. Supp. 3d 466

(S.D.N.Y. 2018); City of Oakland v. BP P.L.C., 325 F.

7 Steve Berman with Hagens Berman, which represents several

localities in this litigation said, “Imagine if I could get ten or 15

cities to all sue and put the same pressure on the oil companies

that we did with tobacco companies and create some kind of

massive settlement.” Geoff Dembicki, Meet the Lawyer Trying to

Make Big Oil Pay for Climate Change, Vice, Dec. 22, 2017.

16

Supp. 3d 1017 (N.D. Cal. 2018). Both of them expressed their understanding that the core claims in

these cases largely parallel those in AEP, Kivalina,

and Comer. They all seek to impose nationwide restrictions or penalties on specific companies and energy sources based solely on a narrow set of issues.

New York City filed its state claims against five

energy producers in federal court, allowing the district court to avoid the remand issues at bar and focus on the substantive claims. Judge Keenan observed during a hearing that the City’s lawsuit was

clearly “hiding an emissions case in language meant

to seem it was instead targeting the companies’ production and sales operations.” Larry Neumeister,

Judge Shows Skepticism to New York Climate

Change Lawsuit, Assoc. Press, June 13, 2018.8 The

court also appreciated that “the serious problems

caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be

addressed by the two other branches of government.”

City of New York, 325 F. Supp. 3d at 474-75. This

case is on appeal in the Second Circuit. See City of

New York v. BP P.L.C., No. 18-2188 (2nd Cir.).

The City of Oakland’s case, which also blames

five companies for its alleged climate injuries, was

heard by Judge Alsup. He denied the City’s motion to

remand the case to state court, explaining that the

remedy plaintiffs seek “would effectively allow plaintiffs to govern conduct and control energy policy” nationally and internationally. City of Oakland, 325 F.

Supp. 3d at 1026. “The scope of plaintiffs’ theory is

breathtaking. It would reach the sale of fossil fuels

8 https://apnews.com/dda1f33e613f450bae3b8802032bc449.

17

anywhere in the world.” Id. at 1022. “Nuisance suits

in various United States judicial districts regarding

conduct worldwide are far less likely to solve the

problem and, indeed, could interfere with reaching a

worldwide consensus.” Id. at 1026.

On appeal, the Ninth Circuit reversed this order,

finding the case did not meet its test for when a purportedly state-law claim nonetheless arises under

federal law. City of Oakland v. BP P.L.C., 960 F.3d

57 (9th Cir. 2020). However, in this ruling, the Ninth

Circuit fully acknowledged that “[t]he question

whether the Energy Companies can be held liable for

public nuisance based on production and promotion

of the use of fossil fuels and be required to spend billions of dollars on abatement is no doubt an important policy question.” Id. at 581.

Concurrently, the Ninth Circuit affirmed the remand order in several other California locality cases,

finding its review of that order, as here, was limited

to the federal officer removal grounds. See Cty. of

San Mateo v. Chevron Corp., 960 F.3d 586, 593 (9th

Cir. 2020) (“Because we lack jurisdiction to review

other aspects of the remand order, we dismiss the

remainder of the appeal.”). These localities blamed

their alleged climate injuries on some two dozen

companies, some the same and some different from

the other cases. There, in granting the remand motion, the District Court nevertheless recognized that

“these state law claims raise national and perhaps

global questions.” Cty. of San Mateo v. Chevron

Corp., 294 F. Supp. 3d 934, 939 (N.D. Cal. 2018).

Both the Tenth and First Circuits similarly held

that they are hamstrung to review the full grounds

for removal, finding they cannot look beyond the fed-

18

eral officer removal grounds. See Bd. of Comm’rs of

Boulder County v. Suncor Energy, 965 F.3d 792 (10th

Cir. 2020) (blaming only two companies for their alleged climate injuries); Rhode Island v. Shell Oil

Prods. Co., LLC, – F.3d –, 2020 WL 6336000, at *2

(1st Cir. Oct. 29, 2020) (concluding that its review “is

cabined to the question of whether the district court

has jurisdiction over this case pursuant to federal officer removal”). The District Court there stated that

it refused to “peek beneath the purported state-law

façade of the State’s public nuisance claim [to] see

the claim for what it would need to be to have a

chance at viability.” Rhode Island v. Chevron Corp.,

393 F. Supp. 3d 142, 148 (D. R.I. 2019). The other

cases have been stayed or are newer, so courts have

not yet decided where the cases should be heard.

Despite the inherently federal nature of these

cases, some courts have allowed the cases to proceed

in state court with others unable to fully review the

rationale for remanding the cases to state court.

When the Second Circuit issued a ruling to allow the

claims in AEP to proceed, the Court reversed it.

Here, the Court should again take the opportunity to

avoid years of potentially protracted, expensive state

litigation designed to achieve federal extrajudicial

purposes. It would be a waste of judicial resources for

Plaintiffs to start discovery or have a state trial

when a full evaluation of their legal claims would

dictate that their lawsuits belong in federal courts.

19

IV. THIS ATTEMPT AT FEDERAL REGULATION THROUGH STATE LITIGATION IS

NOT AMENABLE TO JUDICIAL RESOLUTION

Ultimately, amici believe the best way to address

climate concerns related to energy is for Congress,

federal agencies, and local governments to work with

America’s manufacturers and other businesses that

use produce, distribute, and sell energy on public policies and technologies that can meaningfully reduce

emissions. See Ross Eisenberg, Forget the Green New

Deal. Let’s Get to Work on a Real Climate Bill, Politico, Mar. 27, 2019.9 The production, sale, and use of

oil and gas are hardly state public nuisances. They

are essential to modern life, and their risks and externalities must continue to be managed and reduced. The challenge is figuring out how to mitigate

modern society’s impact on the climate, not deciding

who to blame for selling people energy they need to

heat their homes, fuel their cars, build their schools,

places of worship and workplaces, and turn on lights.

Congress and federal agencies can find appropriate ways to reach these goals without infringing on

the primary benefits of affordable energy, which has

been a driving force in America’s economic success

and has led to a major increase in people’s standard

of living and life spans for more than a century and a

half. See George Constable & Bob Somerville, A Century of Innovation: Twenty Engineering Achievements

That Transformed Our Lives (Joseph Henry Press

2003) (calling the societal electrification the “greatest

9‘https://www.politico.com/magazine/story/2019/03/27/green-

new-deal-climate-bill-226239

20

engineering achievement” of the past century). Innovation and collaboration, not litigation, remain the

only ways America can bring about the type of society-wide technological advancements needed to address this shared global challenge.

To this end, amici appreciated the Court’s statements in AEP that Congress and EPA are “better

equipped to do the job” of making national energy

policy decisions to account for climate change than

judges issuing a variety of rulings implicating national climate policies. 564 U.S. at 428. “[A]s with

other questions of national or international policy,

informed assessment of competing interests is required.” Id. at 427. Judges do not have the institutional tools to properly weigh the “environmental

benefit[s] potentially achievable [by the impact of

this litigation against] our Nation’s energy needs and

the possibility of economic disruption.” Id. They cannot “commission scientific studies or convene groups

of experts for advice, or issue rules under notice-andcomment procedures inviting input by any interested

person, or seek the counsel of regulators.” Id.

For these reasons, Robert Reich, who served as

Secretary of Labor under President Clinton, previously termed lawsuits with a regulatory impact “regulation through litigation.” Robert B. Reich, Don’t

Democrats Believe in Democracy?, Wall St. J., Jan.

12, 2000, at A22. He concluded that circumventing

Congress by using the courts to enact “faux legislation . . . sacrifices democracy.” Id. As discussed

above, all of these deficiencies would be greater if a

patchwork of state judges applying state liability law

were allowed to make these national energy policy

21

decisions. Ultimately, this litigation could undermine

national efforts to address climate change.

For these reasons, amici respectfully urge the

Court to ensure the inherent federal nature of this

litigation is properly addressed before this case and

the others like it can proceed. It should either determine the cases belong in federal court or, at the very

least, require the circuits to properly vet this attempt

at federal regulation through state litigation.

CONCLUSION

Amici curiae respectfully request that this Court

reverse the ruling below.

Respectfully submitted,

Philip S. Goldberg

Counsel of Record

SHOOK, HARDY & BACON L.L.P.

1800 K Street, N.W., Suite 1000

Washington, D.C. 20006

(202) 783-8400

pgoldberg@shb.com

Linda E. Kelly

Patrick Hedren

Erica Klenicki

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10 Street, N.W., Suite 700

Washington, D.C. 20001

Counsel for National Association of

Manufacturers

Dated: November 23, 2020