Amicus Curiae Brief — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. Board of County Commissioners of Boulder County, et al.

No. 21-1550

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------SUNCOR ENERGY (U.S.A.) INC., ET AL.,

Petitioners,

v.

BOARD OF COUNTY COMMISSIONERS

OF BOULDER COUNTY, ET AL.,

Respondents.

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

To The United States Court Of Appeals

For The Tenth Circuit

---------------------------------♦--------------------------------BRIEF OF ATLANTIC LEGAL FOUNDATION & DRI

CENTER FOR LAW AND PUBLIC POLICY

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

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

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

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i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES………………………….…ii

INTEREST OF THE AMICI CURIAE…….…..………1

SUMMARY OF ARGUMENT……………….………….3

ARGUMENT………………………………………………7

Federal Courts Are The Proper Forum For

Adjudication Of Climate Change Liability Suits…….7

A. Liability suits seeking redress for the alleged

global tort of altering the earth’s climate arise

under federal common law……………………….…7

1. Climate change is borderless……………………7

2. Climate change damages claims necessarily

implicate federal law…………………………...12

B. Adjudication of climate change liability suits in

federal courts would foster uniformity of decision

and preserve interstate federalism………………17

CONCLUSION……………………………………..……21

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ....................................... 8, 13

Anza v. Ideal Steel Supply Co.,

547 U.S. 451 (2006) ........................................... 16

Boyle v. United Techs. Corp.,

487 U.S. 500 (1987) ........................................... 13

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021)................. 7, 14, 15, 21

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

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

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

564 U.S. 915 (2011) ........................................... 20

Juliana v. United States,

947 F.3d 1159 (9th Cir. 2020) ............................. 8

Massachusetts v. EPA,

549 U.S. 497 (2007) ....................................... 8, 13

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) ........................................... 13

West Virginia v. EPA,

No. 20-1530 (U.S. June 30, 2022) ..................... 10

iii

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ........................................... 20

Statutes & Rule

28 U.S.C. § 1407 ..................................................... 18

28 U.S.C. § 1441(a) ......................................... 3, 6, 14

Fed. R. Evid. 702 .................................................... 18

Other Authorities

A. Alan Moghissi et al., Does Science Never

Absolutely Prove Anything?, 3 Voice of

Science (2010) .................................................... 18

Albert C. Lin & Michael Burger, State

Public Nuisance Claims and Climate

Change Adaptation, 36 Pace Envtl. L.

Rev. 49 (2018) ...................................................... 4

Boulder Cnty., Climate Action In Boulder

County,

https://www.bouldercounty.org/climateaction-2/ (last visited July 6, 2022)................... 10

City of Boulder, News, Action Beyond

Boundaries: City’s Proposed Climate

Action Evolves to Attack Systemic Drivers

of Climate Change (June 29, 2021),

https://bouldercolorado.gov/media/6429/d

ownload?inline................................................... 11

iv

Climate Watch, Historical GHG Emissions

(sources of emissions),

https://www.climatewatchdata.org/ghgemissions?breakBy=sector&calculation=

ABSOLUTE_VALUE&end_year=2020&r

egions=WORLD&source=GCP&start_ye

ar=1960 (last visited July 6, 2022) ................... 10

Climate Watch, Historical GHG Emissions

(emissions by nation),

https://www.climatewatchdata.org/ghgemissions?chartType=percentage&end_y

ear=2019&start_year=1990 (last visited

July 6, 2022) ..................................................... .11

Colo. Air. Qual. Cntrl. Comm’n, Press

Release, Air Quality Control Commission

Votes to Strengthen Air & Climate

Protections (May 22, 2020),

https://assets.bouldercounty.org/wpcontent/uploads/2020/05/AQCCRulemaking-Results.pdf ................................... 12

Daniel E. Walters, Animal Agriculture

Liability for Climatic Nuisance: A Path

Forward for Climate Change Litigation?,

44 Colum. J. Env. L. 300 (2019) ......................... 9

v

EarthRights International, Climate Justice

and Accountability,

https://earthrights.org/what-wedo/climate-justice/ (last visited July 6,

2022). ................................................................. 19

EPA, Basics of Climate Change (Feb. 23,

2022),

https://www.epa.gov/climatechangescience/basics-climate-change............................ .8

EPA, Basics of Climate Change, Key

Greenhouse Gases (Feb. 23, 2022),

https://www.epa.gov/climatechangescience/basics-climate-change#keygases. ........... 9

EPA, Causes of Climate Change (Feb. 23,

2022),

https://www.epa.gov/climatechangescience/causes-climate-change. ..................... 9, 10

Henry N. Butler & Todd J. Zywicki,

Expansion of Liability under Public

Nuisance, 18 Sup. Ct. Econ. Rev. 1

(2010) ........................................................... 14, 20

Joshua K. Payne & Jess R. Niz, Waking the

Litigation Monster — The Misuse of

Public Nuisance 1 (U.S. Chamber Inst.

for Legal Reform 2019),

https://instituteforlegalreform.com/wpcontent/uploads/2020/10/The-Misuse-ofPublic-Nuisance-Actions-2019Research.pdf ........................................................ 4

vi

Kate Larsen, et al., China’s Greenhouse Gas

Emissions Exceeded the Developed World

for the First Time in 2019 (Rhodium

Group Mar. 6, 2021),

https://rhg.com/research/chinas-emi

ssions-surpass-developed-countries/. ............... 11

No Independence, No Justice (DRI Center

for Law and Public Policy 2019),

https://www.dri.org/docs/defaultsource/dri-white-papers-andreports/2019_no_independence-nojustice.pdf?sfvrsn=4 ......................................... .19

The Plaintiffs’ Lawyer Quest for the Holy

Grail — The Public Nuisance “Super

Tort” 8 (Am. Tort Reform Ass’n 2020), 1

https://www.atra.org/wpcontent/uploads/2020/03/PublicNuisance-Super-Tort.pdf .............................. 4, 19

U.S. Census Bureau, 2017 Census of

Governments – Organization, Table 3

(General-Purpose Local Governments By

State),

https://www.census.gov/data/tables/2017/

econ/gus/2017-governments.html .................... .17

U.S. Dep’t of State, The Climate Crisis:

Working Together for Future

Generations,

https://www.state.gov/policyissues/climate-crisis/ (last visited July 6,

2022) .................................................................... 8

1

INTEREST OF THE AMICI CURIAE 1

Established in 1977, the Atlantic Legal

Foundation (ALF) is a national, nonprofit,

nonpartisan, public interest law firm whose mission is

to advance the rule of law and civil justice by

advocating for individual liberty, free enterprise,

property rights, limited and responsible government,

sound science in judicial and regulatory proceedings,

and effective education, including parental rights and

school choice. With the benefit of guidance from the

distinguished legal scholars, corporate legal officers,

private practitioners, business executives, and

prominent scientists who serve on its Board of

Directors and Advisory Council, ALF pursues its

mission by participating as amicus curiae in carefully

selected appeals before the Supreme Court, federal

courts of appeals, and state supreme courts. See

atlanticlegal.org.

The DRI Center for Law and Public Policy is

the public policy and advocacy voice of DRI, an

international organization of approximately 14,000

attorneys involved in the defense of civil litigation.

The Center addresses issues that not only are

germane to defense attorneys and their clients, but

also important to improvement of the civil justice

Petitioners’ and Respondent’s counsel were provided with

timely notice in accordance with Supreme Court Rule 37.2(a) and

have consented to the filing of this brief. Amici certify that no

counsel for a party authored this brief in whole or part, and that

no party or counsel other than amici and their counsel made a

monetary contribution intended to fund preparation or

submission of this brief.

1

2

system. DRI and the Center, through publications

and the filing of amicus curiae briefs in the Supreme

Court, federal courts of appeals, and state appellate

courts, long have participated in the ongoing effort to

make the civil justice system fairer, more consistent,

and more efficient. The Center’s Climate Change and

Sustainability Task Force addresses issues that are

important to the nation and the world, as well as to

litigants. See centerforlawandpublicpolicy.org.

***

The Atlantic Legal Foundation, the nation’s

leading advocate for sound science in judicial

proceedings, and the DRI Center for Law and Public

Policy, are filing this brief in support of the Petitioners

for two principal reasons:

First, the fundamental issue in this appeal is

whether climate change liability suits brought by local

or state governments against fossil fuel energy

companies should be adjudicated by the federal

judiciary rather than in 50 separate state-court

systems. This question unavoidably implicates the

scientific nature of climate change—an indisputably

borderless,

indeed

nationwide

and

global,

phenomenon that has multiple, far-flung, contributing

causes.

Damages suits that attempt to isolate a single type

of contributor to, or cause of, global climate change

(e.g., the two Petitioner energy companies’ production,

marketing, and sale of fossil fuels in the United

States)—and fragment their alleged liability for the

newly minted global tort of altering the earth’s climate

into myriad politically demarcated pieces (e.g.,

3

Petitioners’ alleged liability to the City of Boulder for

causing or contributing to global climate change)—

conflict with the scientific facts that climate change

has no boundaries, and that there are a multitude of

sources of greenhouse gas (“GHG”) emissions both in

the United States and abroad. This is why a city’s,

county’s, or other political subdivision’s claims for the

alleged local effects of GHG-induced climate change,

no matter how mundanely labeled or artfully drafted,

necessarily implicate uniquely federal interests, and

thus, for purposes of federal-question removal under

28 U.S.C. § 1441(a), arise under federal law.

Second, the important and recurring removal

question involved in this appeal arises in the context

of a large and growing number of widespread and

essentially identical state-court damages suits that

not only target the fossil fuel energy industry, see Pet.

at 8 n.*, but also collectively threaten its existence.

Destroying this innovative, socially beneficial,

environmentally conscious, and highly regulated

industry, which employs millions of Americans,

undoubtedly would please the most ardent climatechange activists. But upending the fossil fuel industry

would be devasting to the U.S. economy, and to

hundreds of millions of Americans, whose everyday

lives depend both directly and indirectly on fossil fuels

in countless ways.

SUMMARY OF ARGUMENT

This litigation, along with at least two dozen

similar damages suits that have or had been removed

to federal court, is part of a concerted effort by “climate

justice” advocates and the plaintiffs’ bar to recruit

4

state and local governments “to blame climate change

on energy producers—regardless of any wrongdoing,

fault, or causation—and demand they pay for the local

infrastructure projects to address the effects of climate

change.” The Plaintiffs’ Lawyer Quest for the Holy

Grail — The Public Nuisance “Super Tort” 8 (Am. Tort

Reform Ass’n 2020). 2

These climate change liability suits also have an

ulterior objective: “to create political pressure on the

oil and gas industry [to] agree to the public policies

[environmental activists] want to see imposed.” Id. at

7-8; see also Albert C. Lin & Michael Burger, State

Public Nuisance Claims and Climate Change

Adaptation, 36 Pace Envtl. L. Rev. 49, 51 (2018)

(“Beyond the immediate outcomes of specific cases,

these suits could spur direct federal action on the

issue, encourage an industry shift away from fossil

fuels, and shape the narrative on the reality of—and

responsibility for—climate change.”); Joshua K. Payne

& Jess R. Niz, Waking the Litigation Monster — The

Misuse of Public Nuisance 1 (U.S. Chamber Inst. for

Legal Reform 2019) (“[S]tates and local governments

have turned to courts using the tort of public nuisance

in particular, to manage . . . public policy problems.”). 3

The Court should grant certiorari in this case to

address the threshold issue of whether the expanding

2 https://www.atra.org/wp-content/uploads/2020/03/PublicNuisance-Super-Tort.pdf.

3 https://instituteforlegalreform.com/wpcontent/uploads/2020/10/The-Misuse-of-Public-NuisanceActions-2019-Research.pdf.

5

number of climate change liability suits being brought

by state and local governments should be adjudicated

by federal courts rather than in 50 separate state

court systems. As the Petition for a Writ of Certiorari

explains, the Court urgently needs to address this

issue and provide federal courts, current and future

litigants, and attorneys, with concrete guidance about

the removability of climate change liability suits.

Respondents, three Colorado local governments

(the “municipalities”), each seek exorbitant, locationspecific damages for the alleged “‘substantial role’”

that the Petitioner energy companies “‘played and

continue to play in causing, contributing to and

exacerbating climate change’” by “producing,

marketing, and selling fossil fuels.” Pet. App. 3a, 60a

(quoting Amen. Cmpl. (ECF No. 7) ¶ 2). Despite their

artfully drafted claims for public and private nuisance

and trespass, these three municipalities, in essence,

hope to hold the Petitioner energy companies liable for

committing what is tantamount to a global tort—

“alteration of the climate.” Id. 6a.

Because climate change is a borderless, world-wide

phenomenon, the municipalities’ damages claims,

premised on allegations that the energy companies

have caused or significantly contributed to global

climate change, unavoidably implicate uniquely

federal interests relating to interstate and

international climate change mitigation and

remediation. Regardless of their state-law labels, the

municipalities’ nuisance and trespass claims

necessarily arise under federal common law, and

therefore are removable to federal court under

6

§ 1441(a). The municipalities’ opportunistic effort to

obtain location-specific damages based on the

Petitioners’ alleged alteration of the earth’s climate

does not transform a borderless, global tort into a

multitude of local, politically drawn snippets of

liability. Nor does it take into account the many

industrial and other sources of GHG emissions around

the world that contribute to climate change.

The whole-earth nature of the municipalities’

climate change liability claims, like the virtually

identical claims in numerous other pending suits

originally filed in various States’ courts, beg for a

federal rule of decision. They should not be subjected

to the substantive or procedural vagaries of 50 state

court systems. Instead, the unitary federal judiciary,

and ultimately this Court, should establish the rule of

decision for climate change liability claims.

Adjudicating the municipalities’ claims in state

court under state law, rather than in federal court

under federal law, also would offend the principles of

interstate federalism, under which each State is a coequal sovereign. No State should be “more equal” than

other States by imposing its own tort standards in a

way that would affect energy companies’ national and

international operations.

7

ARGUMENT

Federal Courts Are The Proper Forum For

Adjudicating Climate Change Liability Suits

A.

Liability suits seeking redress for the

alleged global tort of altering the earth’s

climate arise under federal common law

“[G]lobal warming – as its name suggests – is a

global problem . . . .” It “presents a uniquely

international problem of national concern [and] is

therefore not well-suited to the application of state

law.” City of New York v. Chevron Corp., 993 F.3d 81,

86, 88 (2d Cir. 2021).

1. Climate change is borderless

The U.S. Environmental Protection Agency (EPA)

website highlights climate change’s global nature:

The earth’s climate is changing. Multiple

lines of evidence show changes in our

weather,

oceans,

and

ecosystems

. . . . These changes are due to a buildup

of greenhouse gases in our atmosphere

and the warming of the planet due to the

greenhouse effect.

***

“[G]reenhouse gases”. . . act like a blanket,

making the earth warmer than it

otherwise would be.

This process,

commonly known as the “greenhouse

effect,” is natural and necessary to support

life.

However, the recent buildup of

8

greenhouse gases in the atmosphere from

human activities has changed the earth’s

climate . . . .

EPA, Basics of Climate Change (Feb. 23, 2022); 4 see

also Am. Elec. Power Co. v. Connecticut, 564 U.S. 410,

416 (2011) (describing the greenhouse effect);

Massachusetts v. EPA, 549 U.S. 497, 504-05 (2007)

(same).

According to a Presidential Executive Order,

quoted in the municipalities’ Amended Complaint,

“[t]he impacts of climate change -- including an

increase in prolonged periods of excessively high

temperatures, more heavy downpours, an increase in

wildfires, more severe droughts, permafrost thawing,

ocean acidification, and sea-level rise -- are already

affecting communities, natural resources, ecosystems,

economies, and public health across the Nation.”

Amen. Cmpl. ¶ 139 (quoting Executive Order –

Preparing the United States for the Impacts of

Climate Change (Nov. 1, 2013)); see also Juliana v.

United States, 947 F.3d 1159, 1166 (9th Cir. 2020)

(“[A]tomospheric carbon dioxide has skyrocketed . . .

and will wreak havoc on the Earth’s climate if left

unchecked”); U.S. Dep’t of State, The Climate Crisis:

Working Together for Future Generations (“The recordbreaking heat, floods, storms, drought, and wildfires

4 https://www.epa.gov/climatechange-science/basics-climatechange.

9

devastating communities around the world underscore

the grave risks we already face.”). 5

EPA’s website identifies both human and natural

causes of global climate change.

Since the Industrial Revolution, human

activities have released large amounts of

carbon dioxide and other greenhouse gases

into the atmosphere, which has changed

the earth’s climate. Natural processes,

such as changes in the sun’s energy and

volcanic eruptions, also affect the earth’s

climate.

EPA, Causes of Climate Change (Feb. 23, 2022). 6

GHG emissions, however, are not limited to energy

companies’ production of fossil fuels: “Greenhouse

gases come from a variety of human activities,

including burning fossil fuels for heat and energy,

clearing forests, fertilizing crops, storing waste in

landfills, raising livestock, and producing some kinds

of industrial products.” EPA, Basics of Climate

Change, Key Greenhouse Gases (Feb. 23, 2022); 7 see,

e.g., Daniel E. Walters, Animal Agriculture Liability

for Climatic Nuisance: A Path Forward for Climate

5 https://www.state.gov/policy-issues/climate-crisis/ (last visited

July 6, 2022).

6 https://www.epa.gov/climatechange-science/causes-climatechange.

7 https://www.epa.gov/climatechange-science/basics-climatechange#keygases.

10

Change Litigation?, 44 Colum. J. Env. L. 300, 303

(2019) (“The agriculture industry is responsible for a

surprising amount of greenhouse gas emissions. . . . In

the United States, the numbers are . . . stunning.”).

According to EPA, “[b]urning fossil fuels changes

the climate more than any other human activity.”

EPA, Causes of Climate Change, supra (emphasis

added); 8 see also West Virginia v. EPA, No. 20-1530

(U.S. June 30, 2022), slip op. at 2 (Kagan, J.,

dissenting) (“Curbing” GHG emissions from “fossilfuel-fired (mainly coal - and natural-gas-fired) power

plants . . . is a necessary part of any effective approach

for addressing climate change.”)

And since 2004,

coal—not oil or gas—has been the world’s largest

emitter of carbon dioxide. Climate Watch, Historical

GHG Emissions (chart). 9

“Within the energy sector, the largest emitting

sector is electricity and heat generation, followed by

transportation and manufacturing.” Id. For example,

in Boulder County, Colorado, “commercial and

residential building energy use accounts for 60% of

[GHG] emissions and transportation accounts for 30%

of emissions countywide. Emissions from industrial

processes, oil wells, solid waste, and agriculture

8 https://www.epa.gov/climatechange-science/causes-climatechange.

9 https://www.climatewatchdata.org/ghgemissions?breakBy=sector&calculation=ABSOLUTE_VALUE&

end_year=2020&regions=WORLD&source=GCP&start_year=19

60 (last visited July 6, 2022).

11

account for the remaining 9% of emissions.” Boulder

Cnty., Climate Action In Boulder County; 10 see also

City of Boulder Community Greenhouse Gas Inventory

Report (2020) (Figure 2. Snapshot of Boulder’s 2020

GHG Emissions). 11

Further, GHG emissions are not limited to the

United States. They are a global problem. “In 2019,

China’s emissions not only eclipsed that of the US—

the world’s second-largest emitter at 11% of the global

total—but also, for the first time, surpassed the

emissions of all developed countries combined.” Kate

Larsen, et al., China’s Greenhouse Gas Emissions

Exceeded the Developed World for the First Time in

2019 (Rhodium Group Mar. 6, 2021); 12 see also

Climate Watch, supra (chart indicating that since

2005, China has surpassed the United States in GHG

emissions). 13

Thus, as the City of Boulder has explained, “[t]he

threat of climate change extends beyond Boulder’s

property lines.” City of Boulder, News, Action Beyond

Boundaries: City’s Proposed Climate Action Evolves to

10 https://www.bouldercounty.org/climate-action-2/ (last visited

July 6, 2022).

11 https://bouldercolorado.gov/media/6429/download?inline.

12 https://rhg.com/research/chinas-emissions-surpass-developedcountries/.

13 https://www.climatewatchdata.org/ghgemissions?chartType=percentage&end_year=2019&start_year=

1990 (last visited July 6, 2022).

12

Attack Systemic Drivers of Climate Change (June 29,

2021); 14 see also Colo. Air. Qual. Cntrl. Comm’n, Press

Release, Air Quality Control Commission Votes to

Strengthen Air & Climate Protections (May 22, 2020)

(quoting statement of Denver City Council President

Jolon Clark) (“Carbon emissions have no boundaries

. . . .”). 15

2.

Climate change damages claims

necessarily implicate federal law

The municipalities’ state-court suit seeks to hold

the Petitioner energy companies liable under Colorado

law for an alleged global tort—“the substantial role

that their production, promotion, refining, marketing

and sale of fossil fuels played and continues to play in

causing, contributing to and exacerbating alteration of

the climate.” Amen. Cmpl. ¶ 2 (emphasis added).

According to the municipalities’ 124-page, 544paragraph complaint, “Earth has a natural

‘greenhouse’ effect [that] has been altered and

intensified by human greenhouse gas emissions

caused and contributed to by the levels of Defendants’

fossil fuel activities.” Id. ¶¶ 125, 126.

The municipalities allege, for example, that

● “[a]s a result of the emissions caused and

contributed to by the levels of Defendants’ fossil fuel

14 https://bouldercolorado.gov/news/action-beyond-boundariescitys-proposed-climate-action-evolves-attack-systemic-driversclimate.

15 https://assets.bouldercounty.org/wpcontent/uploads/2020/05/AQCC-Rulemaking-Results.pdf.

13

activities, atmospheric CO2 now stands at . . . a level

which is unprecedented in human history” (id. ¶ 129);

● “Defendants’ fossil fuel activities caused and

contributed” to “[w]arming of the climate system,”

including an increase in “annual average

temperatures over the contiguous United States,” and

warming of the “atmosphere and oceans” (internal

quotation marks omitted) (id. ¶¶ 132, 133, 134); and

● Defendants “accelerated, aggravated and

continue to accelerate and aggravate the impacts of

climate change” (id. ¶ 326).

Masquerading as local, garden variety, state-law

public and private nuisance and trespass claims, the

whole-earth tortious conduct that the municipalities

accuse the energy companies of committing

necessarily implicates “uniquely federal interests”

that “make[] it inappropriate for state law to control.”

Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.

630, 640, 641 (1981) (citation omitted); see also Boyle

v. United Techs. Corp., 487 U.S. 500, 504 (1987)

(discussing “uniquely federal interests” that are

“committed by the Constitution and laws of the United

States to federal control”).

As the certiorari petition discusses, this Court

previously has recognized that there is a uniquely

federal interest in claims seeking redress for

interstate pollution, thus necessitating a uniform

federal rule of decision supplied by federal common

law. See Pet. at 7, 24. “Greenhouse gases . . . qualify

as ‘air pollutant[s].’” Am. Elec. Power v. EPA, 564 U.S.

at 416 (quoting Massachusetts v. EPA, 549 U.S. at 528-

14

29). Therefore, damages claims seeking to impose

liability for GHG emissions that allegedly cause

climate change, no matter how labeled or drafted,

arise under federal common law. See generally Fry ex

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

(2017) (“What matters is the crux—or, in legal speak,

the gravamen—of the plaintiff’s complaint, setting

aside any attempts at artful pleading.”). Because the

municipalities’ claims arise under federal law, they

fall within federal district courts’ original jurisdiction

and are removable under § 1441(a). See Pet. at 24-25.

The Tenth Circuit repeatedly recognized in its

opinion here that the municipalities’ suit—like the

dozens of other state-court suits filed against fossil

fuel energy companies by local or state governments—

involves “transboundary pollution.” Pet. App. 27a,

30a, 32a, 69a; see generally Henry N. Butler & Todd J.

Zywicki, Expansion of Liability under Public

Nuisance, 18 Sup. Ct. Econ. Rev. 1, 5 (2010) (referring

to comments of David A. Dana at Searle Center Public

Nuisance Roundtable) (“[G]lobal warming is a

commons problem, and one that operates on a much

larger scale than localized pollution.”).

Such a

“sprawling case,” based on “the cumulative impact of

conduct occurring simultaneously across just about

every jurisdiction on the planet,” is “simply beyond the

limits of state law.” City of New York, 993 F.3d at 92.

Rejecting the contention that “a nuisance suit

seeking to recover damages for the harms caused by

global greenhouse gas emissions may proceed under

New York law,” the Second Circuit explained in City

of New York that federal law applies “to disputes

15

involving interstate air or water pollution [because]

such quarrels often implicate two federal interests

that are incompatible with the application of state

law: (i) the ‘overriding . . . need for a uniform rule of

decision’ on matters influencing national energy and

environmental policy, and (ii) ‘basic interests of

federalism.’” Id. at 91-92 (quoting Illinois v. City of

Milwaukee, 406 U.S. 91, 105 n.6 (1972)).

The

municipalities’ claims, which are premised on what

they assert is a “climate crisis,” Amen. Cmpl. ¶ 124,

fall into both of these categories.

By its very nature, the energy companies’ alleged

tortious conduct—worldwide in scope—was not, is not,

and could not be, directed to any of the Respondent

municipalities, or to any other particular locale in the

United States or elsewhere.

Even though the

municipalities seek redress for the “substantial and

rising costs to mitigate the impacts of Defendants’

alteration of the climate (‘climate change’) on their

property,” Amen. Compl. ¶ 1, “[a]rtful pleading cannot

transform [their] complaint into anything other than

a suit over global greenhouse gas emissions.” City of

New York, 993 F.3d at 91. As in City of New York, this

case is not “a local spat.” Id.

Stated differently, liability for “alteration of the

climate”—an alleged tort of interstate and worldwide

dimensions—is indivisible. It cannot be divided into

potentially tens of thousands of local bits and pieces of

liability, each subject to the vagaries of one of 50

States’ differing tort law standards. Instead, a

uniform rule of decision regarding the merits of

climate alteration claims is mandated by federal

16

common law. Along the same lines, the planetary

scope of the energy companies’ alleged tortious

conduct for alteration of the climate cannot be

converted into a parochial dispute merely by pointing

to the damages that a local government (or a State)

claims that it is owed for the impact of climate change.

“Proximate cause and certainty of damages, while

both related to the plaintiff’s responsibility to prove

that the amount of damages he seeks is fairly

attributable to the defendant, are distinct

requirements for recovery in tort.” Anza v. Ideal Steel

Supply Co., 547 U.S. 451, 466 (2006) (Thomas, J.,

concurring in part and dissenting in part).

Furthermore, because climate change is a global

phenomenon caused, in part, by GHG emissions

attributable to innumerable industries, corporations,

farms, and consumers around the world, alleged

liability for the impacts of climate change in any

particular locale cannot be limited to any particular

industry, member of an industry, or other source of

GHG emissions. Instead, insofar as anyone can be

held liable for causing global climate change, then

virtually everyone in the world must be held liable.

This is another reason why climate change damages

suits implicate uniquely federal interests, and

therefore, are incompatible with state tort law.

17

B. Adjudication of climate change liability

suits in federal courts would foster

uniformity of decision and preserve

interstate federalism

The Respondent municipalities are three of almost

40,000 general-purpose county or subcounty

governments in the United States. 16 Colorado itself

has 62 counties and 271 subcounty governments. 17 If

any (or every) county, city, or town, or State, can

pursue, in the comfortable surroundings of its own

state courts, multi-million dollar damages litigation

for the same global tort of altering the earth’s climate,

there would be an enormous potential for conflicting

or inconsistent findings of fact, conclusions of law,

judgments, and damages awards and/or other

remedies imposed on the same group of fossil fuel

energy companies for engaging in exactly the same

commercial (and entirely lawful and socially

beneficial) activities.

Instead, this case and similar suits—whose claims,

despite their state-law labels, necessarily fall within

the province of federal law—should be adjudicated in

federal courts.

● Unlike the 50 state-court systems, the unitary

federal judicial system requires federal trial judges

and litigants to proceed in accordance with a single set

16 U.S. Census Bureau, 2017 Census of Governments –

Organization, Table 3 (General-Purpose Local Governments By

State), https://www.census.gov/data/tables/2017/econ/gus/2017governments.html.

17 Id.

18

of (i) trial court procedural rules, (ii) pretrial discovery

requirements, (iii) standards governing motions to

dismiss and for summary judgment, (iv) and rules of

evidence.

● Cases pending in different federal districts but

involving common questions of fact (such as the

nature, causes, and effects of climate change) can be

consolidated or coordinated for pretrial proceedings.

See 28 U.S.C. § 1407 (Multidistrict litigation).

● Federal trial and appellate courts are far more

competent (and objective) than state courts when

addressing complex defenses based on federal law.

● Federal district courts are generally more

experienced than state trial courts in managing cases

that involve conflicting expert testimony on scientific

subjects such as the greenhouse effect and climate

change. Further, admissibility of expert testimony,

including scientific testimony about causation, is

subject to a uniform federal standard. See Fed. R.

Evid. 702.

And when performing their expert

testimony gatekeeper role, federal judges are less apt

to allow juries to be exposed to expert opinions that

confuse sound science with environmental, social, or

economic policy. Cf. A. Alan Moghissi et al., Does

Science Never Absolutely Prove Anything?, 3 Voice of

Science (2010) (“The scientific foundation of GCC

[global climate change] includes proven, evolving and

borderline science.

Unfortunately, as currently

19

practiced . . . it also includes areas outside the purview

of science, notably Societal Goals.”). 18

● Unlike the States’ 50 separate judicial systems,

Article III establishes only one Supreme Court to

interpret and apply federal law.

Further, unlike federal judges, many state court

judges must stand for election. “Campaign spending

on state judicial elections continues to . . . increase the

influence of special interest groups in states that elect

their judges.” No Independence, No Justice 26 (DRI

Center for Law and Public Policy 2019). 19 Needless to

say, “climate justice” is a subject of tremendous

interest to many special interest groups. See The

Public Nuisance “Super Tort,” supra at 7, 8 (“In

climate change litigation, public nuisance lawsuits are

used as a political or regulatory shortcut. . . .

[L]awyers and activists set about the country like

traveling salesmen trying to convince local and state

governments to file public nuisance lawsuits against

the oil and gas industry.”); see, e.g., EarthRights

International, Climate Justice and Accountability. 20

On a more fundamental level, allowing state courts

to adjudicate climate change liability suits under

state-law tort theories imperils “the principles of

18 https://nars.org/wp-content/uploads/2018/02/Does-SciencesEver-Absolutely-Prove-Anything.pdf.

19 https://www.dri.org/docs/default-source/dri-white-papers-andreports/2019_no_independence-no-justice.pdf?sfvrsn=4.

20 https://earthrights.org/what-we-do/climate-justice/ (last visited

July 6, 2022).

20

interstate federalism embodied in the Constitution.”

World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 293 (1980). Under our federal system, the 50

States are “coequal sovereigns,” and “[t]he sovereignty

of each State, in turn, implied a limitation on the

sovereignty of all its sister States—a limitation

express or implicit in the original scheme of the

Constitution and the Fourteenth Amendment.” Id. at

292, 293.

Because climate change is a nationwide, and

indeed global, phenomenon, any particular State, or

political subdivision of a State, that uses its state court

system to hold fossil fuel energy companies liable

under state law for causing or contributing to climate

change, would upset the balance of interstate

federalism. Such a State or political subdivision

would be using the State’s tort law to exert its coercive

power over the defendants—and by so doing, make

itself “more equal” than other States with regard to

those defendants. See Goodyear Dunlop Tires Ops.,

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

court’s assertion of jurisdiction exposes defendants to

the State's coercive power. . . .”); cf. Butler & Zywicki,

supra at 6 (state-court climate change litigation

should not allow “state courts to impose political

externalities on other states and the nation as a

whole”). Insofar as the global tort of climate change

alteration is viable,

[a]ny actions the [energy companies] take

to mitigate their liability, then, must

undoubtedly take effect across every state

(and country). And all without asking

21

what the laws of those other states (or

countries) require. Because it therefore

implicat[es] the conflicting rights of

[s]tates [and] our relations with foreign

nations, this case poses the quintessential

example of when federal common law is

most needed.

City of New York, 993 F.3d at 92 (some alterations in

original; internal quotation marks omitted).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

July 2022