Amicus Curiae Brief — BP P.L.C., et al., Applicants v. Mayor and City Council of Baltimore

No. 19A368

In the Supreme Court of the United States

______________________

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

Applicants,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

______________________

MOTION FOR LEAVE TO FILE AND BRIEF OF

AMICUS CURIAE NATIONAL ASSOCIATION OF

MANUFACTURERS IN SUPPORT OF APPLICATION

TO STAY REMAND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF

MARYLAND PENDING APPEAL AND REQUEST

FOR IMMEDIATE ADMINISTRATIVE STAY

_______________

Directed to the Honorable John G. Roberts

Chief Justice of the United States

And Circuit Justice for the Fourth Circuit

_______________

Philip S. Goldberg

Counsel of Record

Christopher E. Appel

SHOOK, HARDY & BACON L.L.P.

1800 K Street, N.W., Suite 1000

Washington, D.C. 20006

(202) 783-8400

pgoldberg@shb.com

October 4, 2019

Of Counsel

Linda E. Kelly

Peter C. Tolsdorf

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10 Street, N.W., Suite 700

Washington, D.C. 20001

Counsel for National Association of

Manufacturers

MOTION FOR LEAVE TO FILE

The National Association of Manufacturers

(NAM) requests leave to file the accompanying brief

as amicus curiae in support of the application by 26

multinational energy companies (the “Applicants”) to

stay the remand order of the U.S. District Court for

the District of Maryland in a lawsuit proposing to

subject the Applicants to liability for impacts caused

by global climate change.

As the largest manufacturing association in the

United States, the NAM has a substantial interest in

attempts by local governments––here, the Mayor and

City Council of Baltimore––to subject energy manufacturers to liability for alleged harm from climate

change. Climate change is one of the most important

public policy issues of our time, and one that plainly

implicates federal questions and policymaking. This

Court made that clear in unanimously dismissing

the climate change case Am. Elec. Power v. Connecticut, 564 U.S. 410 (2011). The Court recognized that

setting energy policy to account for climate change

concerns was “within national legislative power,” and

that Congress and EPA are “better equipped to do

the job than individual district judges issuing ad hoc,

case-by-case” decisions. Id. at 421, 428.

As explained more fully in the attached brief, the

lawsuit by the City of Baltimore is part of a broad,

coordinated effort by state and local governments to

subject energy manufacturers to liability for global

climate change. The NAM is well-suited to provide a

national perspective to this Court about these efforts,

and the context in which this matter should be considered. The NAM can also put in context the decisions of other courts to stay climate change lawsuits

pending appeal in light of the significant federal

questions implicated.

The NAM, therefore, respectfully requests that

the Court grant leave to file the attached brief as

amicus curiae.

Respectfully submitted,

Philip S. Goldberg

Counsel of Record

Christopher E. Appel

SHOOK, HARDY & BACON L.L.P.

1800 K Street, N.W., Suite 1000

Washington, D.C. 20006

(202) 783-8400

pgoldberg@shb.com

Of Counsel

Linda E. Kelly

Peter C. Tolsdorf

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10 Street, N.W., Suite 700

Washington, D.C. 20001

Counsel for National Association of

Manufacturers

i

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICUS CURIAE .......................

1

INTRODUCTION AND

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

2

ARGUMENT ..........................................................

4

I.

PROCEDINGS IN THIS CASE

SHOULD BE STAYED UNTIL THE

FEDERAL COURTS DETERMINE THE

PROPER PATH, IF ANY, FOR THIS

CLIMATE TORT SUIT ..............................

4

II. COURTS ARE LIKELY TO

DETERMINE THAT THIS AND THE

OTHER CLIMATE TORT SUITS

INVOKE NATIONAL, LEGISLATIVE—

NOT STATE JUDICIAL—ISSUES ...........

8

CONCLUSION .......................................................

11

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).............................................. 10

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

Energy (U.S.A.) Inc., __ F. Supp. 3d __,

2019 WL 4200398 (D. Colo. Sept. 5, 2019) ........... 7

California v. General Motors Corp.,

C06-05755 MJJ, 2007 WL 2726871

(N.D. Cal. Sept. 17, 2007) ...................................... 5

Comer v. Murphy Oil USA, Inc.,

839 F. Supp. 2d 249 (S.D. Miss. 2012) .................. 4

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

325 F. Supp. 3d 466 (S.D.N.Y. 2018) .................... 6

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

325 F. Supp. 3d 1017 (N.D. Cal. 2018) ................. 6

Kivalina v. ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) ................................. 4

Rhode Island v. Chevron Corp.,

__ F. Supp. 3d __, 2019 WL 3282007

(D. R.I. July 22, 2019) ............................................ 7

Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) ........... 9

iii

Other Authorities

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 .............................................. 10

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) .............................................. 5

Findings of Fact and Conclusions of Law,

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

(Tex. Dist. Ct.–Tarrant Cty. Apr. 24, 2018).......... 5

Order Granting Motions to Stay, Cty. of San

Mateo v. Chevron Corp., No. 17-cv-04929

(N.D. Cal. Apr. 9, 2018) ......................................... 6

Order Granting Partially Unopposed Motion to

Stay Proceedings, King Cty. v. BP P.L.C.,

No. C18-758-RSL (W.D. Wash. Oct. 17, 2018)...... 7

Transcript of Oral Argument, Am. Elec. Power v.

Connecticut, 564 U.S. 410 (2011) .......................... 9

INTEREST OF AMICUS CURIAE1

The National Association of Manufacturers

(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 their reductions are continuing. The

NAM is committed to protecting the environment

and to environmental sustainability, and fully supports the ongoing national effort to protect our environment and improve public health through appropriate laws and regulations. The NAM has grave

concerns, though, about the attempt here to circumvent products liability law and create category liabil1 Pursuant to Rule 37.6, counsel for amicus curiae certifies that

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

any party and that no person or entity, other than amicus curiae, their members, or their counsel made a monetary contribution to the preparation or submission of the brief. The parties

received notice of the intent of amicus curiae to file this brief.

Applicants consented to the filing of this brief, and Respondent

conveyed that it is withholding its consent at this time.

2

ity for lawful, beneficial energy products that are essential to modern life.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This lawsuit is part of a new wave of politicallyoriented litigation born out of frustration that not

enough is being done on climate change. Defendants

are engaged in the production and sale of lawful energy products that are essential to modern life and

largely responsible for the monumental progress in

global health and living standards over the past century. Amicus fully appreciates that due to climate

change, developing new technologies that can reduce

greenhouse gas (GHG) emissions and make energy

more efficient and environmentally friendly has become an international imperative. But, as this Court

explained in Am. Elec. Power v. Connecticut, making

the public policy decisions needed to advance such

innovation “cannot be prescribed in a vacuum” of tort

litigation. 564 U.S. 410, 427 (2011). Nevertheless,

there are impassioned individuals still seeking to

leverage the judiciary to regulate emissions and turn

the promotion and sale of oil, gas and other traditional energy products into liability-inducing events.

In 2017, advocacy groups and lawyers started

teaming with a dozen local governments and the

State of Rhode Island to file nearly identical lawsuits

in carefully chosen jurisdictions around the country.

This case is one of these lawsuits. Each complaint

asserts that the defendants’ promotion and sale of

oil, gas or other traditional energy sources is a public

nuisance or violates another tort under the common

law in those states. These cases, though, are built on

the same faulty legal foundations rejected by this

3

Court in AEP. To obfuscate the issues, the advocates

have attempted to differentiate these cases from

AEP. Two federal district courts have already held

that these are differences without distinction. By filing their claims in multiple jurisdictions, the litigation advocates have sought to increase the odds that

a single court or jurisdiction—as here—will nevertheless allow a case to proceed.

Nearly all of these cases, including the one at bar,

are pending in federal circuit courts, with one lawsuit stayed pending the outcome of these cases. The

Second and Ninth Circuits are assessing the merits

in response to the two dismissals. The First and

Tenth Circuits, in addition to the Fourth Circuit

here, are reviewing the jurisdictional question of

whether federal or state law governs the national

energy policies at issue and, accordingly, which

courts should hear the claims. The Court should allow the appellate courts to resolve these jurisdictional questions before allowing any of the cases to proceed in state court. The legal issues in this litigation

are of major significance, could have precedential

value far beyond these cases, and will likely warrant

this Court’s review. The federal judiciary should

speak with one voice on a single legal issue, regardless of how many cases are filed. Lawyers and advocacy groups should not be rewarded for filing multiple claims in multiple jurisdictions.

For these reasons, and as detailed below, amicus

curia requests that the Court grant this Application.

4

ARGUMENT

I. PROCEDINGS IN THIS CASE SHOULD BE

STAYED UNTIL THE FEDERAL COURTS

DETERMINE THE PROPER PATH, IF ANY,

FOR THIS CLIMATE TORT SUIT

This Court effectively ended the first wave of climate change tort litigation in 2011 when it unanimously ruled in AEP that the Clean Air Act displaced any federal common law claims over GHG

emissions. See 564 U.S. at 425 (explaining there is

“no room for a parallel track” of tort litigation because Congress delegated the authority to regulate

GHG emissions to the Environmental Protection

Agency). Importantly, this Court explained the institutional deficiencies with judges being enmeshed in

climate change public policy, stressing that Congress

and EPA are “better equipped to do the job” of making national energy policy decisions to account for

climate change than “district judges issuing ad hoc,

case-by-case” decisions. Id. at 421, 428.

After AEP, the two remaining climate change tort

suits were quickly dismissed. The Ninth Circuit disposed of Kivalina v. ExxonMobil Corp., where an

Alaskan village sued many of the same companies as

here for alleged damages related to rising sea levels.

See 696 F.3d 849 (9th Cir. 2012). The court appreciated that even though the legal theories pursued in

Kivalina differed slightly from AEP, given this

Court’s broader message, “it would be incongruous to

allow [such litigation] to be revived in another form.”

696 F.3d at 857. A federal judge then dismissed

Mississippi homeowners’ claims in Comer v. Murphy

Oil USA, Inc., 839 F. Supp. 2d 249 (S.D. Miss. 2012)

over property damage caused by Hurricane Katrina,

5

finding AEP preempted those claims. A fourth case

seeking to subject auto manufacturers to liability for

making cars that emit GHGs through exhaust had

already been dismissed and was not revived. See

California v. General Motors Corp., C06-05755 MJJ,

2007 WL 2726871, at *14 (N.D. Cal. Sept. 17, 2007).

Undeterred, the advocacy groups and lawyers intent on using tort litigation to drive climate change

public policy convened in La Jolla, California in 2012

to brainstorm how to re-package the litigation in

hopes of achieving success. See Findings of Fact and

Conclusions of Law, In re ExxonMobil Corp., No. 096297222-18 (Tex. Dist. Ct.–Tarrant Cty. Apr. 24,

2018), at 3 (discussing the “Workshop on Climate Accountability, Public Opinion, and Legal Strategies”).

They discussed the importance of filing multiple lawsuits in multiple jurisdictions, hoping the threat of

liability or at least discovery, would put “pressure on

the industry that could eventually lead to its support

for legislative and regulatory responses to global

warming.” Id. They specifically discussed, inter alia,

“Strategies to Win Access to Internal Documents,”

“The Importance of Creating a Public Narrative,”

and the need to “coordinate on future efforts.” 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). In

early 2017, these advocates found several localities

receptive to filing government public nuisance lawsuits. This case is one of fourteen such lawsuits filed

by two law firms on a contingency-fee basis.

6

These cases are actively working through the appellate process. The two district courts reaching a

resolution on the merits have found that these cases

raise the same public policy, not liability, concerns as

in AEP. See City of Oakland v. BP P.L.C., 325 F.

Supp. 3d 1017, 1022 (N.D. Cal. 2018) (“The scope of

plaintiffs’ theory is breathtaking. . . . [I]t rests on the

sweeping proposition that otherwise lawful and everyday sales of fossil fuels, combined with an awareness that greenhouse gas emissions lead to increased

global temperatures, constitute a public nuisance.”);

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

474-75 (S.D.N.Y. 2018) (“[T]he serious problem

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

addressed by the two other branches of government.”). These cases have been appealed and are before the Ninth and Second Circuits, respectively,

with oral arguments being scheduled over the next

few months. See City of Oakland v. BP P.L.C., No.

18-16663 (9th Cir.); City of New York v. BP P.L.C.,

No. 18-2188 (2nd Cir.). The appellate process is

working.

The other cases, like here, are at early procedural

stages of determining whether the cases are to be

heard in federal or state court. In three California

cases, which were consolidated for purposes of procedural motions, the district court granted the motions

for remand. As should occur here, it then stayed the

cases pending review by the Ninth Circuit. See Order Granting Motions to Stay, Cty. of San Mateo v.

Chevron Corp., No. 17-cv-04929 (N.D. Cal. Apr. 9,

2018) (granting the motions to stay the remand orders in all three cases pending appeal).

7

Two other remand cases were recently decided by

the district courts. See Rhode Island v. Chevron

Corp., __ F. Supp. 3d __, 2019 WL 3282007 (D. R.I.

July 22, 2019); Bd. of Cty. Comm’rs of Boulder Cty. v.

Suncor Energy (U.S.A.) Inc., __ F. Supp. 3d __, 2019

WL 4200398 (D. Colo. Sept. 5, 2019). Appeals in

both cases are pending in the federal circuits. See

Rhode Island v. Shell Oil Prods. Co., LLC, No. 191818 (1st Cir.); Bd. of Cty. Comm’rs of Boulder Ct. v.

Suncor Energy (U.S.A.) Inc., No. 19-1330 (10th Cir.).

The issue of whether the cases will be stayed pending appeal are still being heard, making this Court’s

ruling on this Application particularly timely.

A final case, King Cty. v. BP P.L.C., has already

been stayed pending a decision by the Ninth Circuit

in City of Oakland v. BP P.L.C. See Order Granting

Partially Unopposed Motion to Stay Proceedings, No.

C18-758-RSL (W.D. Wash. Oct. 17, 2018). The court

found that “[i]t is unlikely that a stay would result in

any significant damage or cause any hardship to any

party.” Id. at 2. It also found the cases to be “materially identical” to the City of Oakland’s case. Id.

Thus, all of the cases pending in the Second and

Ninth Circuits or their jurisdictions have been stayed

pending a decision on whether the cases state a viable cause of action.

The other cases, including the case at bar, should

be treated similarly. These suits were conceived as a

single, highly orchestrated attempt to use the litigation system for political purposes. They all raise the

same issue: whether energy manufacturers can be

subject to liability for harms caused by climate

change because they produced and promoted use of

fossil fuels. The Court should stay the cases until

8

the federal judiciary, including this Court, can determine whether this and the other climate tort

claims have any legal merit. Permitting Plaintiff to

start discovery now—while its case is pending appeal

and before any such determination is made—would

reward Plaintiff’s tactics and invite similarly abusive

strategies in the future on other public policy issues.

II. COURTS ARE LIKELY TO DETERMINE

THAT THIS AND THE OTHER CLIMATE

TORT SUITS INVOKE NATIONAL, LEGISLATIVE—NOT STATE JUDICIAL—ISSUES

The Application should also be granted because it

would be a waste of judicial resources for Plaintiffs to

start discovery or have a trial in a case when the

case—and others like it—are properly before the federal circuits and likely to be dismissed as not viable.

In AEP, the Court made clear the legal policy decisions governing this litigation, which, if properly followed, should require climate tort cases to be heard

in and dismissed by federal courts.

Specifically, the Fourth Circuit should find that

remanding this case to state court runs afoul of AEP.

As the Court explained, setting climate change public policy is solely “within national legislative power”

because, “as with other questions of national or international policy, informed assessment of competing

interests is required.” 564 U.S. at 427. The Court

described this issue as one of institutional competency—not merely displacement of federal common

law—stating judges “lack the scientific, economic,

and technological resources an agency can utilize in

coping with issues of this order.” Id. at 428. They

“are confined by a record comprising the evidence the

parties present,” and “may not commission scientific

9

studies or convene groups of experts for advice, or

issue rules under notice-and-comment procedures

inviting input by any interested person, or seek the

counsel of regulators in the States where the defendants are located.” Id. Also, they cannot weigh any

“environmental benefit potentially achievable

[against] our Nation’s energy needs and the possibility of economic disruption.” Id. at 427.

Judges applying state common law suffer from

these same deficiencies and are no better situated to

make these national energy policies than judges applying federal law. To this end, the Court already

stated these public policies are “of special federal interest” and that “borrowing the law of a particular

State would be inappropriate.” Id. at 422-24. Further, in oral argument, Justice Kennedy identified

the legal awkwardness of having only a federal cause

of action before the Court, saying “[i]t would be very

odd” or illogical for state courts to set national caps

on GHG emissions when federal courts are barred

from doing so. Transcript of Oral Argument, Am.

Elec. Power v. Connecticut, 564 U.S. 410 (2011), at

32. Accordingly, the Fourth Circuit should find that

federal positive law, not state judge-made law, governs the complex national energy issues here.

The different ways that plaintiffs have packaged

these lawsuits, namely seeking abatement or money

damages instead of injunctive relief, do not cure

these institutional deficiencies. To the contrary, the

Court has consistently held that 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

10

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).

Finally, Plaintiff’s proposed remedy underscores

the parochial nature of this litigation: it seeks to impose a penalty on energy production, but only on

these Defendants and only on their products regardless of fault or causation. Further, this penalty

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 Congress and federal agencies must consider when presented with such public policy choices. Thus, this

type of sweeping public policy raises the very competing interests the Court warned against in AEP.

To be sure, granting this Application and ultimately dismissing this litigation is not surrendering

to climate change. Rather it places the debate where

it must be considered: Congress and the federal

agencies. The best way to reduce climate change

emissions and impacts is for Congress, federal agencies, and local governments to work with America’s

manufacturers on policies and new technologies that

reduce emissions. See Ross Eisenberg, Forget the

Green New Deal. Let’s Get to Work on a Real Climate

Bill, Politico, Mar. 27, 2019.2 Innovation and collaboration, not litigation, remain the proven way America has brought about the type of society-wide tech2‘https://www.politico.com/magazine/story/2019/03/27

/green-new-deal-climate-bill-226239.

11

nological advancement needed to address this shared

global challenge. Allowing this case to proceed while

on appeal would distract from and undermine the

debate this country must have to meaningfully address climate change.

CONCLUSION

For these reasons, amicus curiae respectfully request that this Court stay the District Court’s remand order pending the disposition of the appeal in

the Fourth Circuit and, if that court affirms the remand order, pending the filing and disposition of a

petition for writ of certiorari in this Court.

Respectfully submitted,

Philip S. Goldberg

Counsel of Record

Christopher E. Appel

SHOOK, HARDY & BACON L.L.P.

1800 K Street, N.W., Suite 1000

Washington, D.C. 20006

(202) 783-8400

pgoldberg@shb.com

Of Counsel

Linda E. Kelly

Peter C. Tolsdorf

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10 Street, N.W., Suite 700

Washington, D.C. 20001

12

Counsel for National Association of

Manufacturers

Dated: October 4, 2019