Amicus Curiae Brief — Shell Oil Products Co., L.L.C., et al., Petitioners v. Rhode Island

No. 20-900

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------SHELL OIL PRODUCTS CO., L.L.C., et al.,

Petitioners,

v.

RHODE ISLAND,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

---------------------------------♦--------------------------------MOTION FOR LEAVE TO FILE AND AMICUS

BRIEF OF ENERGY POLICY ADVOCATES

IN SUPPORT OF THE PETITIONERS

---------------------------------♦--------------------------------MATTHEW D. HARDIN

Counsel of Record

1725 I Street NW, Suite 300

Washington, DC 20006

(202) 802-1948

HardinLawPLLC@icloud.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

1

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE IN SUPPORT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, Energy Policy Advocates (“EPA”) respectfully moves for leave to

file the accompanying amicus curiae brief in support of

the Petition for a Writ of Certiorari. Congruent with

the Rule, counsel for EPA provided notice of the amicus’s desire to file the brief to all counsel of record on

January 6, 2021. Respondent the State of Rhode Island

replied on January 10, 2021, indicating that Rhode Island did not consent to the filing of this amicus brief.

Counsel of Record for the Petitioners did not reply to

either the initial inquiry from the amicus seeking consent to file its brief or to a follow up email sent on January 15, 2021. As such, the amicus cannot state what

the position of the petitioners is with respect to this

motion.

EPA is interested in this case because it previously

filed an amicus brief in this matter when it was pending before the First Circuit, which that Court considered in evaluating the issues raised below, and for the

same reasons EPA recently filed an amicus brief at

both the petition stage and the merits stage before this

Court in a case that raised similar issues (BP, PLC et

al. v. Mayor and City Council of Baltimore, Case No.

19-1189). In its First Circuit brief in this same matter,

EPA brought to the attention of the Circuit Court records that EPA obtained through state open records

laws, which records illustrate the plaintiff ’s emphasis

on remaining in state court as the venue most likely to

support its drive to obtain, through this litigation, a

2

“sustainable funding stream” for the state that it was

denied by its legislature, which refused to enact

plaintiff ’s desired policies. Other records contain assertions that these lawsuits are to substitute for the

failure to enact federal legislation. In its previous

briefs in this Court in a case raising similar issues,

EPA raised the alarm that federal courts remanding

claims to state court without substantial consideration

of implications for federal policy undermine this

Court’s own precedents and recent Congressional enactments.

EPA wishes to support the petition for certiorari

in this case because the decision below has implications for a growing number of similar lawsuits nationwide. These suits are part of a documented and

coordinated national campaign of state-court litigation, and EPA hopes that this Court will ensure the

lower courts give serious consideration to issues of

state court bias and to the actual, confessed motivations of plaintiffs who seek remand. EPA believes that

the arguments set forth in its brief will assist the Court

in resolving the issues presented by the petition and

amplify its previous briefing on these issues.

As a nonprofit incorporated in Washington State,

EPA has no direct interest, financial or otherwise, in

the outcome of the case, aside from its interest in good

governance and advocating for the proper role of the

federal judiciary. Because of its lack of a direct interest,

combined with its intimate and firsthand knowledge of

the records illustrating the above concerns about the

motivations of Rhode Island in seeking remand, EPA

3

can provide the Court with a perspective that is distinct and independent from that of the parties. For the

foregoing reasons, EPA respectfully requests that this

Court grant leave to file the accompanying amicus curiae brief.

Respectfully submitted,

MATTHEW D. HARDIN

Counsel of Record

1725 I Street NW, Suite 300

Washington, DC 20006

(202) 802-1948

HardinLawPLLC@icloud.com

i

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE IN SUPPORT OF CERTIORARI ..............................................................

1

INTEREST OF THE AMICUS ............................

1

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

2

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

6

I.

II.

PUBLIC RECORDS OBTAINED BY EPA

DEMONSTRATE THIS CASE IS AN ATTEMPT TO USE THE COURTS TO OBTAIN OR INFLUENCE POLICY THROUGH

IMPROPER MEANS .................................

6

CONCERNS ABOUT STATE COURT BIAS

ARE AMPLIFIED IN THIS CASE .............. 15

CONCLUSION..................................................... 18

ii

TABLE OF AUTHORITIES

Page

CASES

American Electric Power v. Connecticut, 131

S. Ct. 2527, 564 U.S. 410 (2011) .................. 10, 12, 16

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

466 (S.D.N.Y. 2018) ...................................................2

City of Oakland, et al. v. BP P.L.C., et al., 325

F. Supp. 3d 1017 (N.D. Cal. 2018) .............................2

Murray v. Murray, 621 F.2d 103 (5th Cir. 1980) ........15

Savoie v. Huntington Ingalls, Inc., 817 F.3d 457

(5th Cir. 2016)..........................................................15

Watson v. Philip Morris Cos., 551 U.S. 142

(2007).................................................................... 15

Willingham v. Morgan, 395 U.S. 402 (1969) ..............15

1

INTEREST OF THE AMICUS1

Energy Policy Advocates (“EPA”) is a nonprofit organization incorporated under the laws of Washington

State, dedicated to bringing transparency to the actions of government at all levels. As part of its mission,

EPA files open records requests under both state and

federal laws and conducts research into how governmental policies on energy and environmental issues

are made.

EPA has obtained emails, handwritten and typewritten notes, and purported confidentiality and “common interest” agreements that illustrate the genesis of

and machinations behind the new wave of climate nuisance litigation in state courts. These records reveal an

attempt to raise governmental revenues and obtain

national policies, both outside the ordinary democratic

process. EPA feels it is in the interests of justice to

bring the records it has obtained to the attention of

this Court so that it may consider whether a Circuit

Court’s decision to remand a case from federal court

to state court runs counter to federal policies relating

to energy or the environment, or to the federal interest

in ensuring the integrity of the judicial system as a

whole.

---------------------------------♦--------------------------------1

No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae EPA, its members, or its counsel

made a monetary contribution to its preparation or submission.

2

SUMMARY OF THE ARGUMENT

The District Court’s discussion of the factual background in this matter begins with the sentence “Climate change is expensive, and the State wants help

paying for it.” App. 27a. By the time the Circuit Court

handed down its opinion in this case, however, plaintiff

had transformed its argument from a focus on obtaining for Rhode Island some “help” paying for climate

change, into a new argument more focused on alleged

failure to warn or false advertising. The First Circuit

summarized the state’s evolving position as follows:

“Rhode Island sued a slew of oil and gas companies for

the damage caused by fossil fuels while those companies misled the public about their products’ true risks.”

App. 6a (emphasis added).

This shift, through rhetorical sleight of hand on

appeal, coincided with a change in approach by “climate” plaintiffs from seeking relief based on the law of

nuisance to seeking relief grounded in consumer protection after plaintiff filed suit in 2018, after the nuisance claims suffered setbacks in federal court on both

coasts.2 Yet this case has always been a public nuisance suit, and was even listed in an “Amendment to

Confidentiality Agreement Regarding Participation

in Climate Change Public Nuisance Litigation” among

ideologically aligned state attorneys general, signed

by Rhode Island on November 26, 2019.3 That pact,

2

City of Oakland, et al. v. BP P.L.C., et al., 325 F. Supp. 3d

1017 (N.D. Cal. 2018), and City of New York v. BP P.L.C., 325

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

3

EPA obtained the original April 25, 2018 Agreement and

2019 Amendment from, inter alia, Rhode Island’s Office of the

3

claiming a common interest among attorneys general

from coast to coast “in one or more cases brought, or

that will be brought, in state court or U.S. District

Court, or appealed to state or federal courts of appeal,

including the highest state appellate court or the U.S.

Supreme Court” cited seven cases “referred to herein

as the ‘Litigation.’ ” That list of cases included “Rhode

Island v. Chevron Corp. (R.I. Super. Ct. PC-2018-4716,

and D. R.I. 18-00395).”

The pact that Rhode Island’s Attorney General

and fellow travelers in the climate litigation movement

amended (by adding the Rhode Island case to its scope)

sets forth its objective: “The Parties to this Agreement

have a common interest in ensuring the proper application of the federal and/or state common law of public

nuisance arising from the effects of climate change, including sea level rise.”4

The District Court’s blunt assessment of Rhode

Island’s monetary goals aligns with the factual allegations in the complaint originally filed in Rhode Island’s

Superior Court and thereafter removed to federal

court, and comports with facts that have come to light

Attorney General under that state’s Access to Public Records Act.

The document, which bears the title “Amendment to Confidentiality Agreement Regarding Participation in Climate Change Public Nuisance Litigation,” is available at https://climatelitigation

watch.org/wp-content/uploads/2021/01/Climate-Change-PublicNuisance-Litigation-CIA-Amendment.pdf.

4

The document, styled as a “Confidentiality Agreement Regarding Participation in Climate Change Public Nuisance Litigation,” is available at https://climatelitigationwatch.org/wp-content/

uploads/2021/01/Climate-Change-Public-Nuisance-Litigation-CIA.pdf.

4

as a result of EPA’s efforts obtaining public records under various state transparency laws.

EPA has obtained emails and handwritten and

typewritten notes under public records laws that shed

light on the motives behind this proceeding. These documents expressly acknowledge the state’s motives not

only for pursuing this litigation (its General “Assembly

[led by] very conservative leadership – doesn’t care

about env’t,” which has left the state’s executive branch

“looking for sustainable funding stream” for its spending ambitions) but also for pursuing it in state court.

These two sets of notes each purport, independently, to

record the emphasis by a cabinet-level state of Rhode

Island official that this lawsuit was filed in “State court

against oil and gas” because of the executive’s “Priority

– sustainable funding stream” needed to fulfill certain

spending ambitions which the executive failed to convince the voters’ elected representatives to satisfy

through the ordinary process of taxation.5

These public records obtained by EPA document

the political impetus for filing suit, while offering a remarkable “tell” about the plaintiff ’s true feelings about

5

These notes are available, respectively, at https://climate

litigationwatch.org/wp-content/uploads/2020/03/Carla-Frischhandwritten-notes-EPA_CORA1505.pdf and https://climatelitigation

watch.org/wp-content/uploads/2020/03/EF-Katie-McCormack-typednotes-EPA_CORA1542.pdf. These documents are identified in an

August 20, 2019 email from CNEE’s Patrick Cummins to RBF's

Michael Northrop, Subject: meeting highlights, available at https://

climatelitigationwatch.org/wp-content/uploads/2020/03/Edited-notestransmittal-email-CSU-suggests-Snail-mail-probably-covered-EPA_

CORA1481_Redacted.pdf.

5

its claims of loss and looming disaster, especially in

light of the state’s professed intention to rely on purportedly planet-killing activities as a “sustainable”

funding source. Even more concerning, both sets of

notes identify plaintiff ’s emphasis on the “state court”

aspect of its plan, reflecting that the state shares the

fear expressed by other members of its team that its

claims may be doomed by the faithful application of

federal law by federal courts.

Other public records obtained by Energy Policy

Advocates and its counsel document members of the

plaintiff ’s legal counsel’s team, in its efforts to recruit other governmental entities as plaintiffs in its

campaign, acknowledging the team’s view that state

courts are the “more advantageous venue for these

cases.”6 These records, expressing candid views in public records which the parties may not have expected to

be released, leave little doubt that the instant litigation has at least two impermissible objectives.

First, as also explained, infra, the state plaintiff in

this matter seeks to use state courts to effectively create or modify federal energy and environmental policy,

as stand-ins for the political process that has denied

plaintiff its desired policies. Second, the state seeks to

raise revenues through the courts and with a judicial

6

See, e.g., email from a recruiter for Rhode Island counsel

Sher Edling, LLP named Seth Platt to the Mayor of Fort Lauderdale, Florida, at https://climatelitigationwatch.org/wp-content/uploads/

2019/09/GsPlatt-responds-to-Ft-Lauderdale-signaling-Judge-Alsupopinion-is-too-much-for-them.pdf.

6

imprimatur, rather than through the proper legislative

means through which it confesses to have failed.

The public records EPA has obtained provide

strong impetus to acknowledge, despite the state’s assertions otherwise and the appellate court’s indulgence of the shifting characterization of the claims at

issue here, that this suit is a part of a much broader

wave of “climate nuisance” litigation that seeks to use

the courts to attain political goals denied the plaintiffs

through the political process.

---------------------------------♦---------------------------------

ARGUMENT

I.

PUBLIC RECORDS OBTAINED BY EPA

DEMONSTRATE THIS CASE IS AN ATTEMPT TO USE THE COURTS TO OBTAIN

OR INFLUENCE POLICY THROUGH IMPROPER MEANS.

EPA has obtained public records from Colorado

State University’s Center for a New Energy Economy

(“CNEE”) under the Colorado Open Records Act

(“CORA”). The records pertain to a two-day meeting

in July 2019 hosted by the Rockefeller Brothers

Fund (“RBF”) at the Rockefeller family mansion at

Pocantico, New York, and include numerous emails,

agendas and other materials. Most pertinent to this

brief, they also include a set of handwritten notes and

a second, corroborating set of typewritten notes both

taken by attendees. The former was prepared by attendee Carla Frisch of the Rocky Mountain Institute

7

(“RMI”), and the latter by attendee Katie McCormack

of the Energy Foundation.7 Both Ms. Frisch and Ms.

McCormack are affiliated with well-known energy and

environmental policy advocates, with no apparent or

particular scholarly expertise in nuisance or state

truth-in-advertising claims.

The 2019 RBF meeting, styled “Accelerating State

Action on Climate Change,” was a private affair which

served as a forum for policy activists and a major funder to coordinate with senior public employees.8 The

latter included, for example, a governor’s chief of staff,

and department secretaries and their cabinet equivalents from fifteen states.9 These states included plaintiff Rhode Island, represented by its Director of the

Department of Environmental Management, Janet

Coit.

These meeting notes obtained by EPA purport to

contemporaneously record the comments of Director

Coit discussing the instant matter among peers. One

passage in each set of notes, attributed to Director

Coit and replicated almost verbatim in both, illustrates both that the state seeks to use litigation to

force a change in climate policy, and that the state is

7

See fn. 5, supra.

The agenda for the meeting is available at https://govoversight.

org/wp-content/uploads/2020/01/Draft-Agenda-EPA_CORA0008copy.pdf.

9

The participant list is available at https://climatelitigation

watch.org/wp-content/uploads/2020/03/List-of-Attendees-EPA_CORA

1037.pdf.

8

8

motivated by fiscal policy to file its litigation in state –

rather than federal – court.

Rocky Mountain Institute’s Frisch recorded Director Coit speaking to this litigation as shown in the below excerpted image:

Ms. Frisch recorded Director Coit as saying, about

this suit:

RI – Gen Assembly D but doesn’t care on

env/climate

looking for sustainable funding stream

suing big oil for RI damages in state court10

The first line attributes to Director Coit the position that the Rhode Island legislature is not persuaded

of the claims set forth by the state in this matter. It

10

Ms. Frisch’s notes are available in full at https://climate

litigationwatch.org/wp-content/uploads/2020/03/Carla-Frisch-hand

written-notes-EPA_CORA1505.pdf.

9

appears to also reflect her informed view of why the

legislature has declined to directly obtain from the taxpayer the revenue streams that plaintiff desires. The

next two lines attributed to Director Coit are only further evidence of the true objectives behind the plaintiff ’s suit. Specifically, to the state executive branch’s

displeasure, the legislature is not the party “looking for

[a] sustainable funding stream.”

These notes reflect a senior official confessing that

Rhode Island’s climate litigation is in fact a product of

Rhode Island’s elected representatives lacking enthusiasm for politically enacting certain policies, including concomitant revenue measures. Thus, rather than

work with the “very conservative” Rhode Island legislature to obtain such policies through the give and take

of the legislative process, the state’s executive branch

elected to “look for [a] sustainable funding stream” by

“suing big oil.”

We can be confident that Ms. Frisch did not mishear Director Coit. The Energy Foundation’s Katie

McCormack provided RBF with a typewritten set of

her own notes transcribing the proceedings.11 Ms.

McCormack’s typewritten transcription of Director

Coit’s commentary reads almost verbatim to the recollection of Ms. Frisch.

11

Ms. McCormack’s notes are available in their entirety at

https://climatelitigationwatch.org/wp-content/uploads/2020/03/

EF-Katie-McCormack-typed-notes-EPA_CORA1542.pdf.

10

Ms. McCormack recorded Director Coit as saying:

•

Assembly very conservative leadership –

don’t care about env’t

•

If care, put it in the budget

•

Priority – sustainable funding stream

•

State court against oil/gas

These notes EPA obtained through public records

requests illustrate two troubling aspects of the recent

epidemic of “climate nuisance” litigation, which has

been channeled into state courts (after the first generation of suits floundered in federal court, and ultimately were terminated by this Court in American

Electric Power v. Connecticut, 131 S. Ct. 2527, 2539,

564 U.S. 410, 426 (2011)). Specifically, these suits seek

to use the (state) courts to stand in for (state and federal) policymakers in at least two ways. First, these

suits ask the state courts to substitute their authority

for that of the political branches of government at both

the state and federal level on matters of climate policy.

Second, these suits seek billions of dollars in revenues,

which would properly be obtained through taxation enacted by legislators, for distribution toward political

uses and constituencies.

With respect to the first issue – policymaking

through the courts – the RBF meeting notes echo a

comment made to The Nation magazine by the plaintiffs’ tort lawyer credited with inventing this wave of

litigation. The Nation’s Zoe Carpenter wrote, “[I]t’s

clear that too many lawmakers have abdicated, thus

11

the pressure to tackle the climate issue through existing regulations like the Clean Air Act, and through the

courts. ‘I’ve been hearing for twelve years or more that

legislation is right around the corner that’s going to

solve the global-warming problem, and that litigation is too long, difficult, and arduous a path,’ said Matthew Pawa, a climate attorney. ‘Legislation is going

nowhere, so litigation could potentially play an important role.’ ”12

Rhode Island’s attempted use of the courts to attain revenue and other policy ends that have eluded it

through legislation or regulation is improper, but the

attempt also informs a conclusion that these cases,

when brought, belong in federal court. Such suits

should also be dismissed for reasons including the inherently obvious, and now repeatedly confessed, purpose.

If the plaintiff ’s motivation to obtain and influence policy were not itself an improper use of the

courts, the proponents of this new wave of climate

litigation are also increasingly candid about the litigants’ motive to use the pressure of litigation to force

opponents to capitulate to legislative change that

they otherwise oppose, or support with insufficient enthusiasm. Another example of the records EPA has

obtained in which the improper motive for filing the

new wave of “climate nuisance” suits is an email in

12

Zoe Carpenter, “The Government May Already Have the

Law It Needs to Beat Big Oil,” The Nation, July 15, 2015,

https://www.thenation.com/article/the-government-may-alreadyhave-the-law-it-needs-to-beat-big-oil/.

12

which an official with one municipal nuisance plaintiff

(the City of Boulder, Colorado) admits the City’s position in filing its suit, that “the pressure of litigation

could also lead companies . . . to work with lawmakers

on a deal” about climate policies.13 Former Connecticut

Attorney General Richard Blumenthal is quoted describing American Electric Power v. Connecticut, 564

U.S. 410, 426 (2011), which suit he brought before being elected to the United States Senate, “My hope is

that the court case will provide a powerful incentive

for polluters to be reasonable and come to the table . . .

We’re trying to compel measures that will stem global

warming regardless of what happens in the legislature.”14 This Court cannot sanction the use of the judiciary to force energy and environmental legislative

policy change that plaintiffs seek, including to arrange for the equivalent of energy taxes the legislature will not provide, and it should be especially

zealous in protecting federal policies and legislation

from being forced by actions taken in various state

court systems.

The second conclusion affirmed in the twicesourced assertions by Rhode Island’s official that EPA

has obtained is that this the new wave of state court

13

January 5, 2018 email from Boulder Chief Sustainability

& Resilience officer Jonathan Koehn to Alex Burness of the Boulder Daily Camera, Subject: RE: Follow-up to council discussion.

Available at https://climatelitigationwatch.org/boulder-official-climatelitigation-is-tool-to-make-industry-bend-a-knee/.

14

Editorial, “The New Climate Litigation,” Wall Street Journal, December 28, 2009, https://www.wsj.com/articles/SB100014

24052748703478704574612150621257422.

13

“climate nuisance” litigation is a grab for state fiscal

revenue streams which are only properly enacted

through the political process. In the ordinary political

process, revenues are raised by legislators and spent

by the executive branch according to legislative authorization and appropriation. This new wave of litigation promises to erode the separation of powers by

using courts, rather than legislators, to raise revenues

for the executive branch to spend.

As the U.S. Chamber of Commerce noted in a 2019

report entitled “Mitigating Municipality Litigation:

Scope and Solutions,” the desire of the municipal and

state plaintiffs for more governmental revenue, without adopting the necessary direct taxes for which there

can be a political price to pay, appears to be a key driver

of such litigation. That report highlighted:

• “For instance, local government leaders may

eye the prospect of significant recoveries as a means of

making up for budget shortfalls.”

• “Large settlements like those produced in the

tobacco litigation are alluring to municipalities facing

budget constraints.”

• “Severe, persistent municipal budget constraints have coincided with the rise of municipal

litigation against opioid manufacturers as local governments are promised large recoveries with no risk to

municipal budgets by contingency fee trial lawyers.”

• “Conclusion A convergence of factors is propelling municipalities to file affirmative lawsuits against

corporate entities. There is the ‘push’ factor: municipalities face historic budgetary constraints and a public

14

inundated with news reports on the opioid crisis, rising

sea levels, and data breaches. And there is the ‘pull’ of

potential multimillion dollar settlements and low-cost,

contingency fee trial lawyers. As a consequence, municipalities are pivoting to the courts by the thousands.”15

The National Association of Manufacturers’ Center for Legal Action has similarly argued that, “The

towns and lawyers have said that this litigation is

solely about money. The towns want funding for local

projects, and their lawyers are working on a contingency fee basis, which means they aren’t paid if they

don’t win.”16

The records EPA has obtained provide documentary evidence to support its concern that the “climate

nuisance” plaintiffs, and most openly Rhode Island,

seek to exploit state courts to balance municipal/state

budgets, to erode the separation of power between

branches of state governments, and to compel policy

decisions that both state and federal legislators have

declined to make. This Court should grant certiorari to

guard against this improper use of the judiciary.

15

United States Chamber of Commerce, “Mitigating Municipality Litigation: Scope and Solutions,” U.S. Chamber Institute

for Legal Reform, March 2019, https://instituteforlegalreform.com/

wp-content/uploads/2020/10/Mitigating-Municipality-Litigation-2019Research.pdf, at pp. 1, 6, 7 and 18, respectively.

16

Manufacturers’ Accountability Project, “Beyond the Courtroom: Climate Liability Litigation in the United States,” p. 2,

https://mfgaccountabilityproject.org/wp-content/uploads/2019/06/

MAP-Beyond-the-Courtroom-Chapter-One.pdf.

15

II.

CONCERNS ABOUT STATE COURT BIAS

ARE AMPLIFIED IN THIS CASE.

As EPA has noted in its amicus briefing in a similar case pending before this Court, the “historic concern about state court bias” is the underlying basis

allowing for federal officer removal. Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 461 (5th Cir. 2016).

This Court has explicitly recognized bias as a concern

justifying removal to federal court. Although judicial

officers in both state and federal courts nationwide no

doubt do their level best to adjudicate the disputes

that come before them, this Court has held that

“State-court proceedings may reflect ‘local prejudice’ against unpopular federal laws or federal officials.” Watson v. Philip Morris Cos., 551 U.S. 142, 150

(2007).

Simply put, and despite best efforts to avoid its

influence, bias exists. There is no reasoned basis to

adopt a crabbed interpretation of “against unpopular

federal laws or officials.” Indeed, this Court has cautioned against “narrow, grudging interpretation” of

federal officer removal. Willingham v. Morgan, 395 U.S.

402, 407 (1969). Because “[t]he removal statute is an

incident of federal supremacy,” Murray v. Murray, 621

F.2d 103, 106 (5th Cir. 1980), federal supremacy demands that this Court step in once again to ensure

cases that strike at the heart of important federal policies are heard in federal court.

Just as this Court warned in Watson, the state of

Rhode Island is engaged in a campaign through the

courts to overturn “unpopular federal laws.” Rather

16

than recognizing the Constitution and federal law as

supreme, governmental “climate nuisance” plaintiffs

are applying a “narrow, grudging” interpretation of the

removal statute to seek to overturn federal law through

imposing ostensible tort liability in state courts. That

this grudging interpretation of the federal law of removal coincides with a grudging interpretation of

American Electric Power and an expansive view of the

ability of the executive branch of government to raise

its own revenues, only highlights the need for this

Court to step in to avoid the appearance of state court

bias and ensure the faithful application of federal

law.

It is hard to imagine a more striking case where a

perception of state court bias gives rise to concern than

is presented in this case, in which the clear hope for

state court bias is demonstrated in the express litigation strategy revealed in the aforementioned records

obtained by Energy Policy Advocates through public

records laws.

As documented, supra, by its own admission the

State of Rhode Island is pursuing this litigation to obtain a “sustainable funding stream” for its executive

branch officials’ spending ambitions, and is doing so

expressly because the legislature has failed to live up

to the executive branch’s hopes. Both sets of notes

specify Director Coit’s emphasis before an audience of

largely, or even entirely non-lawyer, senior executive

policy officials, on seeking this “sustainable funding

stream” in “state court.” The state’s objective of suing

to create, influence, or even overturn federal policy and

raise state revenues in state courts is a thematic

17

cousin of the drive to use the courts when legislatures

fail to enact plaintiff ’s desired policies, and is wellunderstood among plaintiff ’s team.

For example, and again turning to documents

made public through open records laws, consider the

description by a member of the state’s outside legal

counsel’s own team. After U.S. District Judge William

Alsup dismissed the City of Oakland’s “climate nuisance” suit against many of the same defendants in

June 2018, and immediately prior to the state of

Rhode Island filing its suit in Rhode Island Superior

Court, UCLA Law professor and also consultant to

plaintiff ’s counsel Sher Edling, Ann Carlson,17 reiterated her belief, for whatever reason, that the plaintiff ’s chances for recovery are much better in state

fora.18 And a recent Los Angeles Times news article

quoted Carlson’s colleague and also apparently consultant for plaintiff ’s counsel, Sean Hecht, on this topic

of state courts being “more favorable to ‘nuisance’ lawsuits.”19

17

Ms. Carlson’s disclosures to the University of California at

Los Angeles regarding her outside employment with plaintiff ’s

counsel Sher Edling can be found at https://climatelitigationwatch.org/wp-content/uploads/2021/01/Responsive-Documents-208525.pdf.

18

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, https://mashable.com/article/climate-change-lawsuitbig-oil-tossed-out/.

19

Susanne Rust, “California communities suing Big Oil over

climate change face a key hearing Wednesday,” Los Angeles

Times, February 5, 2020, https://www.latimes.com/california/story/

18

This case presents a unique situation where the

plaintiff confessed its strategy to obtain fiscal revenues to underwrite desired policies through litigation in state court, the plaintiff ’s counsel’s consultants

expressed their view that the plaintiff is more likely

to obtain success in state court, and major news outlets echo the common perception that state courts are

more hospitable for the plaintiff ’s claims. This case

presents a near-ideal exemplar of when the federal

courts should step in to ensure perceptions of fair play

against even the perception of bias.

---------------------------------♦---------------------------------

CONCLUSION

These notes EPA has obtained from the July 2019

Rockefeller-hosted meeting demonstrate the need for

this Court to confront the expanding and nationally

coordinated tsunami of state-court “climate nuisance” litigation. Such suits are not only a grab for

revenue and other desired policies that have eluded

parties through the political process, but demean the

federal judiciary by attempting to seek to coerce or

effectively compel federal policies in state court. This

Court should grant certiorari to make clear that federal courts are the proper forum to obtain a ruling

relating to federal energy and environmental policy

matters and to ensure that courts at both the state and

federal level are perceived to rule on such issues in

2020-02-05/california-counties-suing-oil-companies-over-climatechange-face-key-hearing-wednesday. See also, e.g., fn. 6, supra.

19

accordance with the law rather than based on apparent or anticipated biases.

Respectfully submitted,

MATTHEW D. HARDIN

Counsel of Record

1725 I Street NW, Suite 300

Washington, DC 20006

(202) 802-1948

HardinLawPLLC@icloud.com