Amicus Curiae Brief — Chevron Corporation, et al., Petitioners v. City of Oakland, California, et al.

No. 20-1089

______________________

CHEVRON CORPORATION, ET AL.,

Petitioners,

v.

CITY OF OAKLAND, CALIFORNIA, ET AL.,

Respondents.

______________________

BRIEF OF AMICUS CURIAE THE NATIONAL

ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF PETITIONER

_______________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

_______________

Linda E. Kelly

Patrick Hedren

Erica Klenicki

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10th Street, N.W.

Suite 700

Washington, D.C. 20001

(202) 637-3100

March 11, 2021

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

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE ....................... 1

INTRODUCTION AND

SUMMARY OF ARGUMENT .......................... 2

ARGUMENT .......................................................... 4

I.

THE COURT SHOULD GRANT THE

PETITION BECAUSE CLIMATE

CHANGE CASES REQUIRE FEDERAL

COURT JURISDICTION........................... 4

II. THIS CASE IS PART OF A NATIONAL

LITIGATION CAMPAIGN TO HAVE

STATE COURTS UNDERMINE THIS

COURT’S JURISPRUDENCE................... 6

III. CLAIMS ALLEGING HARMS FROM

CLIMATE CHANGE PRESENT

UNIQUELY FEDERAL INTERESTS....... 10

IV. THE COURT SHOULD GRANT THE

PETITION TO MAINTAIN THE

INTEGRITY OF THE FEDERALSTATE DUAL COURT SYSTEM .............. 13

CONCLUSION ....................................................... 17

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).............................................. 15

Caterpillar, Inc., v. Williams,

482 U.S. 386 (1987) ............................................. 14

Comer v. Murphy Oil USA, Inc.,

839 F. Supp. 2d 249 (S.D. Miss. 2012) .................. 6

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

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

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

137 S. Ct. 743 (2017)............................................ 14

Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000).............................................. 15

Illinois v. City of Milwaukee,

406 U.S. 91 (1972)............................................ 4, 10

Native Village of Kivalina v. ExxonMobil

Corp., 696 F.3d 849 (9th Cir. 2012)................... 5, 6

North Carolina v. Tennessee Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ............................... 11

iii

Riegel v. Medtronic, Inc.,

552 U.S. 312 (2008).............................................. 15

Rivet v. Regions Bank of Louisiana,

522 U.S. 470 (1998).............................................. 14

United States v. Standard Oil Co. of Cal.,

332 U.S. 301 (1947)................................................ 5

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007).............................................. 13

Other Authorities

2017 Oakland General Obligation Bond, A-48–49

(Aug. 1, 2017), at https://cao-94612.s3. amazonaws.com/documents/OAK067652.pdf ................ 12

Amicus Brief of Indiana and Fourteen Other

States in Support of Dismissal, City of Oakland v. BP (9th Cir. filed April 19, 2018) ............ 16

Denise E. Antolini, Modernizing Public Nuisance:

Solving the Paradox of the Special Injury Rule,

28 Ecol. L.Q. 755, 838 (2001)............................... 10

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

Atmosphere, Creek Project YouTube Channel,

May 23, 2018 .......................................................... 8

Julia Caulfield, Local Lawsuits Asks Oil and

Gas to Help Pay for Climate Change,

KOTO, Dec. 14, 2020 ........................................... 14

iv

Complaint, City of Charleston v. Brabham Oil

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

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

Brooks Dubose, Annapolis Sues 26 Oil and Gas

Companies for their Role in Contributing to

Climate Change, Cap. Gazette, Feb. 23, 2021 .... 13

Tristan L. Duncan & Jonathan Massey, AEP’s

Tipping Point: Implied Preemption of ClimateChange Common Law Claims, Wash. Legal

Found. No. 179 (2012) ........................................... 4

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 .............................................. 16

Entire January Meeting Agenda at RFF, Washington Free Beacon, Apr. 2016, at https:// freebeacon.com/wp-content/uploads/2016/04/ Entire-January-meeting-agenda-at-RFF-1-1.pdf ...... 8

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) .............................................. 7

Findings of Fact and Conclusions of Law,

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

(Tex. Dist. Ct.–Tarrant Cty. Apr. 24, 2018).......... 6

v

Phil Goldberg, Christopher E. Appel & Victor

E. Schwartz, Can Governments Impose a

new Tort Duty to Prevent External Risks?

The ‘No-Fault’ Theories Behind Today’s

High Stakes Government Recoupment Suits,

44 Wake Forest L. Rev. 923 (2009) ..................... 11

Kirk Herbertson, Oil Companies vs. Citizens:

The Battle Begins Over Who Will Pay Climate Costs, EarthRights, Mar. 21, 2018 ............. 14

Letter from Lindsey de la Torre, Nat’l Ass’n of

Mfrs., to the Securities and Exchange

Comm’n, Mar. 27, 2018 at

https://mfgaccountabilityproject.org/wpcontent/uploads/2018/04/SECLetter_3.27.18-3.pdf. ........................................... 12

Beyond the Courtroom, Manufacturers’

Accountability Project, at

https://mfgaccountability project.org/beyond-the-courtroom............................... 9

Larry Neumeister, Judge Shows Skepticism

to New York Climate Change Lawsuit,

Assoc. Press, June 13, 2018 ................................. 12

Dawn Reeves, As Climate Suits Keeps Issue

Alive, Nuisance Cases Reach Key Venue

Rulings, Inside EPA, Jan. 6, 2020 ...................... 15

Restatement (Second) of Torts (1979) ...................... 10

Restatement of the Law, Third:

Prods. Liab. (1998) ............................................... 15

vi

Susanne Rust, California Communities Suing

Big Oil Over Climate Change Face a Key

Hearing Wednesday, L.A. Times,

Feb. 5, 2020 .......................................................... 13

INTEREST OF AMICUS CURIAE1

Amicus curiae is the National Association of

Manufacturers (“NAM”). 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 $2.33 trillion to the U.S. economy annually,

has the largest economic impact of any major sector,

and accounts for more than two-thirds of all privatesector 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.

The NAM is dedicated to manufacturing safe, innovative and sustainable products that provide essential benefits to consumers while protecting human health and the environment, and fully supports

national efforts to address climate change and improve public health through appropriate laws and

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.

The NAM has a substantial interest in attempts

by local governments––here, the Cities of Oakland

1 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, its members, or its counsel made a monetary contribution to

the preparation or submission of the brief. The parties received

timely notice of the intent of amicus curiae to file this brief, and

provided written consent to the filing of this brief.

2

and San Francisco––to subject its 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 coordinated, national litigation campaign over global climate change and the

debate as to how to mitigate impacts of modern energy use. Amicus appreciates that developing new

technologies to reduce greenhouse gas (“GHG”) emissions, make energy more efficient, and modify infrastructures to deal with the impacts of climate change

has become an international imperative. State tort

suits against the energy sector cannot achieve these

objectives, and state courts are not the appropriate

forums to decide these critical national issues.

In Am. Elec. Power Co. v. Connecticut, the Court

addressed the first wave of this litigation campaign.

564 U.S. 410 (2011) (hereafter “AEP”). It held unanimously that the climate claims there sounded in the

federal common law and that Congress displaced any

such claims when it enacted the Clean Air Act. See

id. at 424. Soon after, the strategists behind this litigation campaign began developing ideas for trying to

circumvent the Court’s ruling. They were looking for

legal theories that would achieve comparable national goals as AEP, but that might appear different

from AEP to some courts. The focal point of this effort, as embodied here, has been to re-cast the feder-

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al public nuisance claims for injunctive relief against

the utilities in AEP as state public nuisance lawsuits

for abatement against energy manufacturers.

This case—along with Baltimore’s climate case

already before this Court—is one of two dozen nearly

identical lawsuits that have been filed since 2017 in

carefully chosen states around the country. Each

complaint asserts that the various defendants’ production, 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. In order

to adjudicate the claims, though, the state courts

would have to create new rules over the international production, sale, promotion, and use of fossil fuels.

Thus, the allegations are federal in scope and not

specific to any one company or community.

Accordingly, the defendants in these cases removed the cases to the federal judiciary. Here, the

District Court carefully studied the legal and factual

issues presented in the case and determined that the

re-packaging of this litigation from AEP did not lead

to a different result; it actually expanded the national and international scope of the challenged activities: “In light of AEP, plaintiffs shift their focus to

sales of fossil fuels worldwide.” City of Oakland v. BP

P.L.C., 325 F. Supp. 3d 1017, 1025 (N.D. Cal. 2018).

Amicus respectfully requests that the Court grant

the Petition to determine whether putative state-law

tort claims alleging harm from global climate change

are removable because they arise under federal law.

As the Court appreciated in AEP, the climate change

issues in this case and others like it are of major national significance. Climate tort litigation undermines national energy objectives, including energy

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independence, the stability of the electric grid, and

affordability for families and businesses across the

country, among others. Also, given the two dozen

cases filed as part of this national litigation campaign, it is a matter of judicial efficiency that the

Court resolve this jurisdictional question here.

ARGUMENT

I.

THE COURT SHOULD GRANT THE

PETITION BECAUSE CLIMATE

CHANGE CASES REQUIRE FEDERAL

COURT JURISDICTION

The Court should grant the Petition to reinforce

the understanding from AEP that climate tort litigation raises issues of “special federal interest.” 564

U.S. at 424.2 In AEP, before ruling that the Clean

Air Act displaced any federal common law claims

with respect to carbon emissions from fossil fuels, the

Court explained that federal common law addresses

subjects “where the basic scheme of the Constitution

so demands,” including “air and water in their ambient or interstate aspects.” Id. at 422 (quoting Illinois

v. City of Milwaukee, 406 U.S. 91, 103 (1972)). This

rule of law applies to the climate change claims here.

The factual predicate in AEP is the same as here:

global climate change is caused by GHGs that are

“naturally present in the atmosphere and . . . also

emitted by human activities,” including the use of

fossil fuels. Id. at 416. These GHGs combined with

2 See, e.g., Tristan L. Duncan & Jonathan Massey, AEP’s Tip-

ping Point: Implied Preemption of Climate-Change Common

Law Claims, Wash. Legal Found. No. 179 (2012) (“The Supreme

Court held that the case presented a matter of such inherently

federal interest that it was governed by federal law.”).

5

many other sources of GHGs around the world and

have accumulated in the earth’s atmosphere for more

than a century. “By contributing to global warming,

the plaintiffs asserted, the defendants’ carbondioxide emissions created a ‘substantial and unreasonable interference with public rights,’ in violation

of the federal common law or interstate nuisance, or

in the alternative, of state tort law.” Id. at 418.

In AEP, the Court followed the two-step analysis

from United States v. Standard Oil Co. of Cal., 332

U.S. 301 (1947) in dismissing the claims. First, it determined the claims arose under federal common law

and that “borrowing the law of a particular State

would be inappropriate.” AEP, 564 U.S. at 422. As

Standard Oil instructs, there are certain claims that

invoke the “interests, powers, and relations of the

Federal Government as to require uniform national

disposition rather than diversified state rulings.” 332

U.S. at 78. Determining rights and responsibilities

for global climate change is one of those uniquely

federal issues. Second, and only then, did the Court

hold Congress displaced remedies that might be

granted under federal common law through the

Clean Air Act. See AEP, 564 U.S. at 425. The claims

failed on the merits, not lack of federal jurisdiction.

Only the initial inquiry—whether the subject requires a uniform rule—goes to jurisdiction.

At the time, two other climate tort cases were

pending against the energy sector. An Alaskan village was suing many of the same energy producers

as here under federal law for damages related to rising sea levels. See Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012). In Mississippi, a purported class of homeowners sued a

6

multitude of energy producers under state tort law

for property damage from 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 hurricane to be more intense. See id.

After AEP, both cases were dismissed. As the

Ninth Circuit explained, even though the legal theories in Kivalina differed slightly from AEP, given the

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

[such litigation] to be revived in another form.” Kivalina, 696 F.3d at 857. Tort suits alleging harm

from emissions across the country and globe are exactly the sort of “transboundary pollution” claims the

Constitution exclusively commits to federal law. Id.

at 855. As of 2012, the law appeared clear. Climate

litigation targeting private actors were inherently

federal in nature, regardless of how the claims were

packaged—over energy use or products, by public or

private plaintiffs, under federal or state law, or for

injunctive relief or damages.

II. THIS CASE IS PART OF A NATIONAL

LITIGATION CAMPAIGN TO HAVE

STATE COURTS UNDERMINE THIS

COURT’S JURISPRUDENCE

The advocacy groups and lawyers behind this national litigation campaign were undeterred by AEP.

In 2012, they convened in La Jolla, California to

brainstorm on how to re-package the litigation in

hopes of achieving their national goals. 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

7

Strategies”). The strategies discussed included the

one they ultimately employed: filing lawsuits in multiple jurisdictions, hoping at least one case would

reach discovery and help them advance their preferred national and international policy agenda. Id.

Organizers of the conference captured their discussion and strategies for this litigation in a published report. 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).3 Despite AEP, they said “the courts offer

the best current hope” for imposing their national

public policy agenda over fossil fuel emissions. 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.

Given AEP, they emphasized making the lawsuits

look like traditional damages 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

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

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

8

in hopes state courts would not follow AEP. Finally,

they discussed “the importance of framing a compelling public narrative,” including “naming [the] issue

or campaign” to generate “outrage.” Id. at 21, 28.

In 2016, another strategy session was held in

New York City to discuss the litigation campaign’s

goals as they had developed since the La Jolla conference. See Entire January Meeting Agenda at Rockefeller Family Foundation, Wash. Free Beacon, Apr.

2016.4 Specifically, the organizers discussed leveraging the filing of these lawsuits and government investigations to generate media coverage. They wanted “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 hoped “creating scandal” through

these lawsuits would drive these outcomes. Id.5

Lawsuits following these tenets were filed starting in 2017. As indicated, this case, along with the

others, is meant to look facially different from AEP,

which targeted fossil fuel users (utilities) and sought

injunctive relief under federal public nuisance law.

These cases target energy producers, invoke state

tort laws, and seek abatement and damages. To

name the campaign, they falsely asserted a widespread “campaign of deception” involving the various

4 https://freebeacon.com/wp-content/uploads/2016/04/Entire-

January-meeting-agenda-at-RFF-1-1.pdf.

5 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.

9

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). This lawsuit names five defendants, others name one or two,

whereas some name dozens of energy manufacturers,

including local companies in an effort to keep cases

in state court. This ever-changing list of companies

alleged to be in on some “campaign of deception” underscores the specious nature of the cases.

Supporters of this national litigation campaign

have used political-style tactics, both to drive this litigation effort as well as to achieve the true, extrajudicial goals of the campaign. They have taken out

paid advertisements and billboards blaming energy

companies for climate change and urging public officials to file lawsuits, hosted symposiums and press

conferences to generate media attention to their narrative, and launched websites to recruit governments

to file lawsuits. See generally Beyond the Courtroom,

Manufacturers’ Accountability Project,6 (detailing

the coordinated funding, legal and media components of this litigation campaign). Thus, unlike traditional state tort suits, success for this litigation campaign is not about proving legal or factual allegations, but filing and maintaining lawsuits in state

courts to achieve national public policy goals.

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

The week before this briefing, the advocates started a second

website specifically to rally political support for this litigation.

See https://l4ca.org/ and https://payupclimatepolluters.org/.

6

10

III. CLAIMS ALLEGING HARMS FROM

CLIMATE CHANGE PRESENT

UNIQUELY FEDERAL INTERESTS

The legal theories presented in this litigation are

nothing more than mere fig leafs; unlike traditional

local property damage cases, their claims are not

moored to any specific plaintiff, defendant, location

or jurisdiction. As Judge Alsup observed in dismissing this case, any municipality, county or state could

file these lawsuits. City of Oakland, 325 F. Supp. 3d

at 1022. “Their theory 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.” Id. It attempts

to “reach the sale of fossil fuels anywhere in the

world.” Id. Merely referencing state claims and asking for compensation does not make these federal

matters suddenly suitable for state courts.

Since AEP, public nuisance has been the tort of

choice for climate litigation because, in large part, its

“vague” sounding terms are often misunderstood.7

City of Milwaukee, 451 U.S. at 317. In fact, the architects of this effort have tried and failed for nearly fifty years to transform state public nuisance law into a

tool for industry-wide liability. See Denise E. Antolini, Modernizing Public Nuisance: Solving the Para7 See W. Page Keeton, et al., Prosser & Keeton on the Law of

Torts 616 (5th ed. 1984). “In popular speech it often has a very

loose connotation of anything harmful, annoying, offensive or

inconvenient. . . . Occasionally this careless usage has crept into

a court opinion. If the term is to have any definite legal significance, these cases must be completely disregarded.” Restatement (Second) of Torts § 821A cmt. b (1979).

11

dox of the Special Injury Rule, 28 Ecol. L.Q. 755, 838

(2001) (recounting campaign to change elements of

the tort that would have “[broken] the bounds of traditional public nuisance”). The allure of such a legal

theory is understandable. As here, the lawsuits are

generally funded by contingency-fee counsel, promise

funding for local projects, and target unpopular

products. See Phil Goldberg, Christopher E. Appel &

Victor E. Schwartz, Can Governments Impose a new

Tort Duty to Prevent External Risks? The ‘No-Fault’

Theories Behind Today’s High Stakes Government

Recoupment Suits, 44 Wake Forest L. Rev. 923

(2009). But, they are legally unfounded, and courts

have greeted them with appropriate skepticism.8

In the climate change cases, the attempt to mask

federal issues under state public nuisance law does

not stand up to even minimal scrutiny. For example,

it is unclear what would qualify as the alleged public

nuisance in these cases: the accumulation of GHGs

in the atmosphere, global warming-induced sea level

rise around the world, or the international promotion

and sale of fossil fuels—all of which exist far outside

any local government’s authority. Also, political

leaders say they are bringing these suits because the

defendants promoted “phony science to deny climate

change. But at oral argument, plaintiffs’ counsel

clarified that any such promotion remained merely a

‘plus factor’” and not required for their liability theory. City of Oakland, 325 F. Supp. 3d at 1022.

8 See, e.g., North Carolina v. Tennessee Valley Auth., 615 F.3d

291, 296 (4th Cir. 2010) (stating such lawsuits would “encourage [state] courts to use vague public nuisance standards to

scuttle the nation’s carefully created system of accommodating

the need for energy product and the need for clean air”).

12

Further, the damages sought are entirely speculative. As Judge Alsup said to the Cities’ lawyers at a

hearing, “You’re asking for billions of dollars for

something that hasn’t happened yet and may never

happen to the extent you’re predicting it will happen.” Nicholas Iovino, Judge Skeptical of Cities’ Climate Change Suits, Courthouse News Service, May

24, 2018. To this end, in Oakland’s 2017 bond offering (the year it filed this lawsuit), the City stated it

was “unable to predict” the impact of climate change

on the City and “if any such events occur, whether

they will have a material adverse effect on the business operations or financial condition of the City or

the local economy.” 2017 Oakland General Obligation Bond, A-48–49 (Aug. 1, 2017);9 see also Letter

from Lindsey de la Torre, Nat’l Ass’n of Mfrs., to the

Securities and Exchange Comm’n, Mar. 27, 2018.10

Federal judges have seen through these thinlyveiled attempts to mischaracterize the federal nature

of the litigation. Here, Judge Alsup stated in his ruling, “[t]he scope of plaintiffs’ theory is breathtaking.”

City of Oakland, 325 F. Supp. 3d at 1022. Similarly,

Judge Keenan, who dismissed New York City’s climate lawsuit, observed the City’s claims were “trying

to dress a wolf up in sheep’s clothing.” Larry

Neumeister, Judge Shows Skepticism to New York

Climate Change Lawsuit, Assoc. Press, June 13,

2018.11 They were “hiding an emissions case.” Id.

9 https://cao-94612.s3.amazonaws.com/documents/

OAK067652.pdf

10 https://mfgaccountabilityproject.org/wp-

content/uploads/2018/04/SEC-Letter_3.27.18-3.pdf.

11 https://apnews.com/dda1f33e613f450bae3b8802032bc449.

13

Plaintiffs should not be able to avoid such scrutiny merely by painting federal claims with a state tort

brush. See 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 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”). As

the Court has appreciated, state court proceedings

“may reflect ‘local prejudice’ against unpopular federal laws” or defendants. Watson v. Philip Morris

Cos., 551 U.S. 142, 150 (2007). Indeed, Annapolis officials in announcing their recent suit expressed unusual confidence that “the Maryland courts will get

us there.” Brooks Dubose, Annapolis Sues 26 Oil and

Gas Companies for their Role in Contributing to Climate Change, Cap. Gazette, Feb. 23, 2021.

There is no doubt if any state court allows a

hometown recovery, there will be a race to the courthouse in communities across this country. State

courts are simply not positioned to be arbiters of

who, if anyone, is to be legally accountable for climate change, how energy policies should change to

address it, and how local mitigation projects in communities across the country should be funded.

IV. THE COURT SHOULD GRANT THE

PETITION TO MAINTAIN THE INTEGRITY OF THE FEDERAL-STATE DUAL

COURT SYSTEM

This Court should not permit the Cities to mask

their attempt to affect national GHG emissions and

14

the worldwide production of fossil fuels by “artfully”

and disingenuously pleading its claims under state

tort law. Rivet v. Regions Bank of Louisiana, 522

U.S. 470, 475 (1998). Petitioners are not “ignoring

the set of facts” Oakland and San Francisco presented. Caterpillar, Inc., v. Williams, 482 U.S. 386, 392

(1987). It is the facts themselves that raise uniquely

federal interests. See Fry ex rel. E.F. v. Napoleon

Cmty. Schs., 137 S. Ct. 743, 755 (2017) (“What matters is the crux—or, in legal speak, the gravamen—of

the plaintiffs[s]’ complaint, setting aside any attempts at artful pleading.”).

Outside of the courtroom, the advocates behind

this litigation campaign fully acknowledge that the

true goals—or crux—of this litigation is to penalize

the worldwide production, promotion, sale and use of

fossil fuels—what they 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. They

want to use the litigation to force Americans into

“cutting back” on fossil fuel use and energy manufacturers to raise their prices “so that if they are continuing to sell fossil fuels, that the cost of [climate

change] would ultimately get priced into them.” Julia

Caulfield, Local Lawsuits Asks Oil and Gas to Help

Pay for Climate Change, KOTO, Dec. 14, 2020 (quoting an attorney in the Boulder climate case).12

Indeed, a reporter who follows the litigation has

observed the incongruity between the ways the cases

are presented in and out of court: “State and local

12 https://coloradosun.com/2021/02/01/boulder-climate-lawsuit-

opinion/.

15

governments pursuing the litigation argue that the

cases are not about controlling GHG emissions . . .

But they also privately acknowledge that the suits

are a tactic to pressure the industry.” Dawn Reeves,

As Climate Suits Keeps Issue Alive, Nuisance Cases

Reach Key Venue Rulings, Inside EPA, Jan. 6, 2020.13

As the attorneys for the plaintiffs clearly appreciate, when state courts impose liability and damages,

the intention is to “directly regulate” the underlying

conduct. See, e.g., Riegel v. Medtronic, Inc., 552 U.S.

312, 325 (2008). A person subjected to liability is

supposed to change the offending conduct to avoid

liability, similar to compliance with statutes and

regulations. See Bates v. Dow Agrosciences LLC, 544

U.S. 431 (2005) (finding state tort liability imposes

state law requirements); see also 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.”).

However, it is not in the national interest to stop the

sale of fossil fuels, and American tort law does not

recognize absolute, category liability for selling

products with known risks. See Restatement of the

Law, Third: Prods. Liab. § 2 cmt d (1998).

Again, Judge Alsup saw through this veneer; the

City “would have a single judge or jury in California

impose” billions of dollars of liability on five companies “to abate the localized effects of an inherently

global phenomenon.” City of Oakland, 325 F. Supp.

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

nuisance-cases-reach-key-venue-rulings.

16

3d at 1026. The dangers, causes and benefits “of fossil fuels are worldwide.” Id. at 1029. Fifteen state attorneys general also cautioned in an amicus brief below that Oakland and San Francisco should not be

able 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, No. 18-1663 (9th Cir. filed Apr. 19, 2018).

The Court should grant the Petition to resolve

this jurisdictional issue, which lays at the heart of

some two dozen climate tort suits that are currently

pending around the country, with the organizers actively recruiting more lawsuits. Lawsuits alleging

that different combinations of energy manufacturers

can be subject to untold liability for local harms

caused by global climate change should not be the

province of state courts. These courts do not provide

the proper jurisdictions for assigning legal rights and

obligations for global climate change. The Court

should grant review as a matter of judicial efficiency

given the proliferation of cases and find that this national climate litigation campaign, regardless of how

artfully pleaded, invokes uniquely federal issues.

***

Ultimately, amicus believes the best way to address climate change over energy is for Congress,

federal agencies, and local governments to work with

manufacturers and other businesses that use, produce, distribute, and sell energy on developing the

public policies and technologies that can meaningfully reduce emissions and mitigate damages. See Ross

Eisenberg, Forget the Green New Deal. Let’s Get to

Work on a Real Climate Bill, Politico, Mar. 27,

17

2019.14 The production, sale, and use of energy are

essential to modern life. The challenge facing society

is to affordably and reliably provide this energy

while reducing environmental impacts. It is not to

blame those providers for selling energy people need

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

places of worship and workplaces, and turn on lights.

CONCLUSION

For these reasons, amicus curiae respectfully request that this Court grant the Petition.

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

Dated: March 11, 2021

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

new-deal-climate-bill-226239.