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

Supreme Court briefJul 8, 2022

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No. 21-1550

______________________

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

Petitioners,

BOARD OF COUNTY COMMISSIONERS

OF BOULDER COUNTY, ET AL.,

Respondents.

______________________

BRIEF OF AMICUS CURIAE THE NATIONAL

ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF PETITIONERS

_______________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

_______________

Linda E. Kelly

Erica Klenicki

THE NAM LEGAL CENTER

733 10th Street, N.W.

Suite 700

Washington, D.C. 20001

(202) 637-3100

July 8, 2022

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

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND

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

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

THE COURT SHOULD GRANT THE

PETITION TO UPHOLD ITS RULING

IN AMERICAN ELECTRIC POWER

THAT CLIMATE CHANGE CLAIMS

INVOKE FEDERAL COURT

JURISDICTION ......................................... 5

II. FAILURE TO GRANT THE PETITION

WILL CREATE A PLAYBOOK FOR

PEOPLE SEEKING TO ABROGATE

FEDERAL AUTHORITY ........................... 8

III. MERELY PASTING STATE LAW

LABELS ON FEDERAL LAW CLAIMS

SHOULD NOT BE A MEANS FOR

EVADING FEDERAL SCRUTINY ........... 12

IV. THE COURT SHOULD AFFIRM THAT

CLAIMS ALLEGING HARM FROM

CLIMATE CHANGE RAISE

UNIQUELY FEDERAL INTERESTS....... 16

CONCLUSION ....................................................... 20

TABLE OF AUTHORITIES

Cases

Page

American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011) ....................... passim

Board of County Commissioners of Boulder

County v. Suncor Energy (U.S.A.) Inc.,

25 F.4th 1238 (2022) .............................................. 4

City of Milwaukee v. Illinois,

451 U.S. 304 (1981).............................................. 14

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ..................... 3, 4, 13, 17

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

325 F. Supp. 3d 1017 (N.D. Cal. 2018) ........... 3, 13

Comer v. Murphy Oil USA, Inc.,

839 F. Supp. 2d 249 (S.D. Miss. 2012) .............. 3, 7

County of San Mateo v. Chevron,

32 F.4th 733 (9th Cir. 2022) .................................. 4

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

137 S. Ct. 743 (2017)............................................ 15

Illinois v. City of Milwaukee,

406 U.S. 91 (1972).................................................. 6

In re Lead Paint Litig.,

924 A.2d 484 (N.J. 2007) ..................................... 14

Native Village of Kivalina v. ExxonMobil

Corp., 696 F.3d 849 (9th Cir. 2012)............ 2-3, 7, 8

iii

North Carolina v. Tennessee Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ............................... 14

Rivet v. Regions Bank of Louisiana,

522 U.S. 470 (1998).............................................. 15

State ex rel. Hunter v. Johnson & Johnson,

499 P.3d 719 (Okla. 2021) ................................... 14

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

332 U.S. 301 (1947)................................................ 6

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007).............................................. 16

West Virginia v. Environmental Protection

Agency, 597 U.S. __ (2022) .................................... 3

Other Authorities

Amicus Brief of Indiana and Fourteen Other

States in Support of Dismissal, City of Oakland v. BP (9th Cir. filed April 19, 2018) ............ 18

Denise E. Antolini, Modernizing Public Nuisance:

Solving the Paradox of the Special Injury Rule,

28 Ecol. L.Q. 755 (2001)....................................... 14

Julia Caulfield, Local Lawsuits Asks Oil and

Gas to Help Pay for Climate Change,

KOTO, Dec. 14, 2020 ...................................... 10-11

City of Hoboken Press Release, Hoboken Becomes

First NJ City to Sue Big Oil Companies, American Petroleum Institute for Climate Change

Damages, Sept. 2, 2020 ....................................... 11

Zack Colman & Ben Lefebvre, Biden To Tap Oil

Reserves, Press Oil Sector To Hike Production,

Politico, Mar. 31, 2022 ......................................... 18

Complaint, City of Charleston v. Brabham Oil

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

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

Brooks Dubose, Annapolis Sues 26 Oil and Gas

Companies for their Role in Contributing to

Climate Change, Cap. Gazette, Feb. 23, 2021 .... 16

Editorial, Climate Lawsuits Take a Hit,

Wall St. J., May 17, 2021 .................................... 12

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

Get to Work on a Real Climate Bill, Politico,

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

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

Entire January Meeting Agenda at RFF, Washington Free Beacon, Apr. 2016, at https:// freebeacon.com/wp-content/uploads/2016/04/ Entire-January-meeting-agenda-at-RFF-1-1.pdf ...... 9

Establishing Accountability for Climate Damages:

Lessons from Tobacco Control, Summary of the

Workshop on Climate Accountability, Public

Opinion, and Legal Strategies, Union of

Concerned Scientists & Climate Accountability

Institute (Oct. 2012) ........................................... 8-9

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

Kirk Herbertson, Oil Companies vs. Citizens:

The Battle Begins Over Who Will Pay

Climate Costs, EarthRights, Mar. 21, 2018 ........ 10

W. Page Keeton, et al., Prosser & Keeton on the

Law of Torts 616 (5th ed. 1984) .......................... 14

Clifford Krauss, As Western Oil Giants Cut

Production, State-Owned Companies Step

Up, N.Y. Times, Oct. 14, 2021 ............................. 17

Beyond the Courtroom, Manufacturers’

Accountability Project, at

https://mfgaccountability project.org/beyond-the-courtroom............................. 12

Dawn Reeves, As Climate Suits Keeps Issue

Alive, Nuisance Cases Reach Key Venue

Rulings, Inside EPA, Jan. 6, 2020 ...................... 11

Restatement (Second) of Torts (1979) ...................... 14

Jerry Taylor & David Bookbinder, Oil Companies

Should be Held Accountable for Climate

Change, Niskanen Center, Apr. 17, 2018 ........... 11

Michael Thulen, Why Hoboken’s Climate

Change Lawsuit Is Bad for New Jersey,

NJBiz, Oct. 11, 2021 ............................................ 19

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 12.7 million men and women,

contributes $2.71 trillion to the U.S. economy annually, has the largest economic impact of any major

sector, and accounts for nearly two-thirds of all private-sector research and development in the nation.

The NAM is the voice of the manufacturing community and the leading advocate for a policy agenda

that helps manufacturers compete in the global

economy and create jobs across the United States.2

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

one of the most important public policy issues of our

time, and the NAM fully supports national efforts to

address climate change and improve public health

through appropriate laws and regulations. Developing new technologies to reduce greenhouse gas emissions, make energy more efficient, and modify infra1 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 To learn more about the NAM, including its Board members,

please see https://www.nam.org/about/ and

https://www.nam.org/about/board-of-directors/.

structures to deal with the impacts of climate change

has become an international imperative.

The NAM has grave concerns about this attempt

to create liability over sales of lawful, beneficial energy products essential to modern life through state

law. As the Court found in American Electric Power

Co. v. Connecticut, 564 U.S. 410 (2011), climate litigation plainly implicates federal questions and complex policymaking. State tort suits against the energy sector cannot achieve these public policy objectives, and state courts are not the appropriate forums to decide these critical national issues. For

these reasons, the NAM has a substantial interest in

attempts by Respondents and other localities to subject its members to unprincipled state liability for

harms associated with climate change.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case is part of a coordinated, national litigation campaign over global climate change and an unapologetic effort to circumvent this Court’s ruling in

American Electric Power Co. v. Connecticut, 564 U.S.

410 (2011) (hereafter “AEP”). In AEP, the Court addressed the first wave of this climate litigation campaign. 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. The Ninth and

Fifth Circuits then dismissed versions of the climate

suits pending in their courts. See Native Village of

Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir.

2012) and Comer v. Murphy Oil USA, Inc., 718 F.3d

460 (5th Cir. 2013). The law was settled.3

As this brief will show, strategists behind this litigation campaign then began developing ideas for

circumventing the Court’s ruling. Lawyers involved

in this effort said they were looking for ways to repackage the litigation so their new lawsuits would

achieve comparable national goals as AEP, but would

appear different and appeal to parochial interests of

local courts to provide money to local constituencies.

So, they re-cast the federal public nuisance claims for

injunctive relief against the utilities in AEP as state

public nuisance lawsuits for local abatement funds

against energy manufacturers, among several other

state law claims. Since 2017, nearly two dozen of

these lawsuits have been filed in carefully chosen

state jurisdictions around the country.

On the few occasions where federal courts have

reached the substance of these claims, the federal

courts properly applied AEP and concluded that the

claims arise under federal common law and are displaced. See City of New York v. Chevron Corp., 993

F.3d 81, 91 (2d Cir. 2021); City of Oakland v. BP

P.L.C., 325 F. Supp. 3d 1017 (N.D. Cal. 2018) (vacated pursuant to an order to remand the case to state

court 960 F.3d 570 (9th Cir. 2020)). What has become

clear is that the state law packaging for these claims

is solely a veneer. As the Second Circuit explained,

the lawsuits seek to subject a handful of energy companies to state liability “for the effects of emissions

made around the globe over the past several hundred

3 The Court reaffirmed AEP in West Virginia v. Environmental

Protection Agency. See 597 U.S. __, *26 (2022) and 597 U.S. __,

*20 (Kagan, J., dissenting).

years.” City of New York, 993 F.3d at 92. The Second

Circuit concluded “[s]uch a sprawling case is simply

beyond the limits of state tort law,” id., echoing this

Court’s statement in AEP that this litigation raises

issues of “special federal interest.” 564 U.S. at 424.

Accordingly, the linchpin for this litigation campaign is the ability of the plaintiffs to avoid the federal judiciary. When the companies removed the cases to federal courts, the plaintiffs developed two particularly novel theories that they argue ties the

hands of federal courts and requires them to remand

the cases to state courts—even when, as here, a substantive review of the claims would find the claims to

be necessarily and exclusively governed by federal

law. First, the plaintiffs assert the claims become viable under state law and un-removable when Congress exercises its authority and displaces the federal

common law by speaking directly to the federal law

question at issue—a notion the Second Circuit called

“too strange to seriously contemplate.” City of New

York, 993 F.3d at 98-99. Second, the plaintiffs argue

that, under the well-pleaded complaint rule, federal

courts are not permitted to look behind the veneer of

the claims’ state law labels even when the labels are

clearly masking federal law claims.

Several circuits, including the Tenth Circuit here,

have agreed with the plaintiffs, asserting they are

hamstrung by the fact that federal common law no

longer exists due to Congress’s displacement and

their understanding of the well-pleaded complaint

rule. See Board of County Commissioners of Boulder

County v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238,

1260 (2022); County of San Mateo v. Chevron, 32

F.4th 733, 764 (9th Cir. 2022) (adhering to its under-

standing of these rules even though “plaintiffs raise

novel and sweeping causes of action”). In addition to

implicating a split with the Second Circuit, these rulings create a playbook for using state courts to usurp

federal law on climate change and other federal issues. The exclusive federal nature of climate policy,

in particular, has been on display the past few

months. State law rulings making the production,

sale, promotion and use of oil and gas a liabilityinducing event for the American, Canadian, and European energy companies named in these cases

would directly contradict the federal government’s

efforts to assure America’s and Europe’s energy security in response to Russia’s invasion of Ukraine.

For these reasons, which are explained in more

detail below, amicus respectfully requests that the

Court grant the Petition and vacate the order to remand these federal law issues to state court. Given

that two dozen climate cases are pending around the

country, it is a matter of judicial efficiency that the

Court resolve this question here.

ARGUMENT

THE COURT SHOULD GRANT THE

PETITION TO UPHOLD ITS RULING IN

AMERICAN ELECTRIC POWER THAT

CLIMATE CHANGE CLAIMS INVOKE

FEDERAL COURT JURISDICTION

The Court should grant the Petition to reinforce

the principle that climate litigation raises issues of

“special federal interest.” 564 U.S. at 424. In AEP,

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 in equal force as it did in AEP.

The factual foundation in AEP is the same here:

global climate change is caused by GHG emissions

“naturally present in the atmosphere and . . . emitted

by human activities,” including the use of fossil fuels

all over the world. Id. at 416. GHG emissions from

fossil fuels have combined with other global sources

of GHGs and have accumulated in the earth’s atmosphere for more than a century since the industrial

revolution and are creating impacts on the earth. “By

contributing to global warming, the plaintiffs asserted, the defendants’ carbon-dioxide emissions created

a ‘substantial and unreasonable interference with

public rights,’ in violation of the federal common law

of interstate nuisance, or in the alternative, of state

tort law.” Id. at 418. Here, the allegations are also

that Petitioners contributed to global warming by

causing or contributing to GHG emissions through

the production, marketing and sale of their fuels.

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, the

Court 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 and affirmed in AEP,

certain claims invoke the “interests, powers, and relations of the Federal Government as to require uniform national disposition rather than diversified

state rulings.” Standard Oil, 332 U.S. at 78. Determining rights and responsibilities for global climate

change is one of them. As the Court stated, the production, sale, promotion, and use of fossil fuels as

well as global GHG emissions raise inherently federal questions, including over national security.

Second, and only then, did the Court hold Congress displaced through the Clean Air Act remedies

that might be granted under federal common law.

See AEP, 564 U.S. at 425. Only the initial inquiry—

whether the subject requires a uniform federal rule—

goes to jurisdiction and is before this Court at this

time. The lower court’s conclusion that because Congress spoke on this issue through the CAA and made

the EPA the governing authority over GHG emissions that it somehow undermines the federal nature

of this case is nonsensical and should be reviewed.

Congress’s decision to displace federal common law

in favor of federal regulatory authority does not

make GHG emissions any less of a federal issue.

At the time, two other climate 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 Kivalina, 696 F.3d at 849. In Mississippi,

a purported class of homeowners sued a multitude of

energy producers under state tort law for property

damage from Hurricane Katrina. See Comer, 718

F.3d at 460. The allegations, as here, were that the

defendants, through their conduct and products,

caused certain emissions which contributed to climate change and made the hurricane more intense.

See id. These cases directly parallel the case at bar.

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. Climate suits alleging harm

from GHG emissions across the country and globe

are exactly the sort of “transboundary pollution”

claims the Constitution exclusively commits to federal law. Id. at 855. This is true regardless of how

the suits are packaged—over energy use or products,

by public or private plaintiffs, under federal or state

law, or for injunctive relief, abatement, or damages.

The Court should grant the Petition because the

ruling here conflicts with AEP, namely that claims

over the effects of climate change implicate uniquely

federal interests and are governed by federal law.

II. FAILURE TO GRANT THE PETITION

WILL CREATE A PLAYBOOK FOR

PEOPLE SEEKING TO ABROGATE

FEDERAL AUTHORITY

The advocacy groups and lawyers behind this litigation campaign have explicitly stated that they developed the litigation strategy employed in this case

to circumvent this Court’s ruling in AEP. In 2012,

the year after AEP was decided, they convened in

California to brainstorm on how to re-package the

litigation in hopes of using the cases to achieve their

national policy priorities. Organizers of the conference published their discussions. 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).4

They said, despite the Court’s clear pronouncements in AEP, they still believed “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.” Id.

at 12. They talked through 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 in particular, 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 person at the conference 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 discussed “the importance of framing a

compelling public narrative,” including “naming [the]

issue or campaign” in an effort to generate “outrage.”

Id. at 21, 28. At a follow-up session in 2016, they explained that “creating scandal” through lawsuits

would also help “delegitimize” the companies politically. See Entire January Meeting Agenda at Rockefeller Family Foundation, Wash. Free Beacon, Apr.

2016.5 They have since tried to scandalize the fact

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

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

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

scan0003.pdf.

that companies knew about potential risks of climate

change—something widely known by governments

around the world—and still produced fossil fuels.

To name the litigation, supporters asserted some

widespread “campaign of deception” involving the

many, often-changing companies named in the various 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). Here, Respondents allege only two companies

should be subject to liability for their climate damages, whereas other localities named five or six and

others upwards of thirty companies, including local

entities in an effort to keep the cases in state court.

This ever-changing list of defendants in different aspects of the energy industry highlights the specious

nature of this conspiracy-like narrative and the lack

of any principled basis for liability.

Outside of the courtroom, the advocates—

including those involved in this case—have acknowledged that the desired effect 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 counsel in this case).6 Another attorney associated with this case wrote: “Given that

companies are agents of consumers . . . holding oil

companies responsible is to hold oil consumers responsible.” Jerry Taylor & David Bookbinder, Oil

Companies Should be Held Accountable for Climate

Change, Niskanen Center, Apr. 17, 2018.7

In filing the claims, the advocates are partnering

with local governments seeking money to deal with

local impacts of climate change. These governments

often disclaim any attempt to regulate emissions, but

artful pleading and disclaimers cannot mask the true

federal nature of this litigation. The lawsuits are being funded by non-profit organizations because the

litigation raises inherent federal issues. See, e.g.,

City of Hoboken Press Release, Hoboken Becomes

First NJ City to Sue Big Oil Companies, American

Petroleum Institute for Climate Change Damages,

Sept. 2, 2020 (noting the legal fees would be paid by

the Institute for Governance and Sustainable Development).8 In addition to asking state courts to decide

federal energy matters, these groups are using politi6 https://coloradosun.com/2021/02/01/boulder-climate-lawsuit-

opinion/.

7 A reporter who follows the litigation has observed the incon-

gruity between the ways the cases are presented in and out of

court: “State and local 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, https://insideepa.com/outlook/climate-suitskeeps-issue-alive-nuisance-cases-reach-key-venue-rulings.

8_https://www.hobokennj.gov/news/hoboken-sues-exxon-mobil-

american-petroleum-institute-big-oil-companies.

cal-style tactics to leverage the litigation to hinder

the energy companies politically. See generally Beyond the Courtroom, Manufacturers’ Accountability

Project (detailing this litigation campaign).9 Thus,

unlike traditional state lawsuits, success here also

includes filing and maintaining state lawsuits they

can use for their national goals, which underscores

the need for the Court to address this litigation now.

Currently, about two dozen lawsuits, including

the case at bar, have been filed since 2017 in carefully chosen jurisdictions around the country in an effort to “side-step federal courts and Supreme Court

precedent” and convince local state courts to help

them advance their preferred national and international policy agenda by awarding money to local jurisdictions. Editorial, Climate Lawsuits Take a Hit,

Wall St. J., May 17, 2021.

III. MERELY PASTING STATE LAW

LABELS ON FEDERAL LAW CLAIMS

SHOULD NOT BE A MEANS FOR

EVADING FEDERAL SCRUTINY

To be clear, the state law theories in the litigation

are fig leaves. The theory of harm is not moored to

any plaintiff, defendant, locality or jurisdiction, as

the permutations of the cases show. And, the chain of

causation, as the Court observed in AEP, is anything

but local. In a lawsuit similar to the one at bar, the

Second Circuit saw through the state law veneer: “we

are told that this is merely a local spat about the

City’s eroding shoreline, which will have no appreciable effect on national energy or environmental policy. We disagree. Artful pleading cannot transform

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

the City’s complaint into anything other than a suit

over global greenhouse gas emissions.” City of New

York, 993 F.3d at 91. The same is true here.

Merely referencing state claims and asking for

compensation—which was the purposeful packaging

of these lawsuits—does not make federal matters related to global climate change suddenly suitable for

state courts. As the Second Circuit properly observed, this litigation seeks to subject energy manufacturers to state tort liability “for the effects of

emissions made around the globe over the past several hundred years,” which includes “conduct occurring simultaneously across just about every jurisdiction on the planet.” Id. at 92. “Such a sprawling case

is simply beyond the limits of state tort law.” Id.

In the case brought by San Francisco and Oakland, the district judge initially denied the remand

motion and dismissed the claims on the merits for

the same reasons: “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.” City of

Oakland, 325 F. Supp. 3d at 1022. It attempts to

“reach the sale of fossil fuels anywhere in the world.”

Id. The fact that this ruling was vacated when the

district judge’s order denying remand was overturned underscores the reason the Court should

grant the Petition and instruct the circuits to consider the federal substance and impact of the claims,

not just their state law labels.

As these courts plainly saw, the state law labels

do not fit these allegations. Consider state public

nuisance theory, which has been the primary tort of

choice for climate litigation because, in large part, its

“vague” sounding terms are often misunderstood.10

City of Milwaukee v. Illinois, 451 U.S. 304, 317

(1981). Supporters of this effort have bemoaned their

decades-long failure to transform public nuisance into an amorphous tool for industry-wide liability over

a variety of social, political, and environmental issues. See Denise E. Antolini, Modernizing Public

Nuisance: Solving the Paradox of the Special Injury

Rule, 28 Ecol. L.Q. 755, 838 (2001) (recounting with

frustration the campaign to change elements of the

tort that would have “[broken] the bounds of traditional public nuisance”).

For these reasons, many state and federal courts

have widely rejected applying public nuisance to situations comparable to the one at bar, explaining that

such claims “would stretch the concept of public nuisance far beyond recognition and would create a new

and entirely unbounded tort antithetical to the

meaning and inherent theoretical limitations of the

tort of public nuisance.” In re Lead Paint Litig., 924

A.2d 484, 501 (N.J. 2007); see also State ex rel.

Hunter v. Johnson & Johnson, 499 P.3d 719 (Okla.

2021) (“Public nuisance is fundamentally ill-suited to

resolve claims against product manufacturers.”);

North Carolina v. Tennessee Valley Auth., 615 F.3d

291, 296 (4th Cir. 2010) (stating such lawsuits would

10 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).

“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”).11

Some of the more recent lawsuits, including the

case at bar, also lean on state consumer protection

statutes in an effort to keep the cases in state court.

Consumer protection statutes also have intentionally

broad language to apply to a wide variety of conduct,

but within narrow boundaries, namely to make sure

products perform as represented. The allegations

here are not within those boundaries. They relate to

interstate and international carbon emissions, the

accumulation of GHGs in the atmosphere, sea level

rise and other impacts around the world allegedly

caused by climate change, and the international

promotion and sale of fossil fuels—all of which exist

far outside the reach of any state consumer protection act or local or state government’s authority.

Merely invoking these state law labels does not

turn the production, sale, promotion and use of fossil

fuels into state law liability events. As the Court has

appreciated, “[w]hat matters is the crux—or, in legal

speak, the gravamen—of the plaintiffs[s]’ complaint,

setting aside any attempts at artful pleading.” Fry ex

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

(2017); see also Rivet v. Regions Bank of Louisiana,

522 U.S. 470, 475 (1998).

See also 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) (discussing additional cases).

One concern is that state courts “may reflect ‘local

prejudice’ against unpopular federal laws” or defendants. Watson v. Philip Morris Cos., 551 U.S. 142, 150

(2007). These dynamics are certainly at risk here, as

the desired effect of these lawsuits is to bring private, out-of-state money to local communities. In

Maryland, when asked about the legal shortcomings

of climate lawsuits, Annapolis officials 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, 2021.12

There is no doubt that if any state court allows a

hometown recovery, there will be a race to state

courthouses across this country to file more of these

lawsuits. State courts are simply not positioned to be

arbiters of who, if anyone, is to be legally accountable

for global climate change. The Court should not allow

Respondents and these other governments to avoid

federal scrutiny merely by painting their federal law

claims with state law brushes.

IV. THE COURT SHOULD AFFIRM THAT

CLAIMS ALLEGING HARM FROM

CLIMATE CHANGE RAISE

UNIQUELY FEDERAL INTERESTS

Finally, as recent events have demonstrated, subjecting selected American, Canadian and European

energy manufacturers to liability for global climate

change would directly interfere with exclusive federal interests. At the heart of these claims is the notion

12_https://www.capitalgazette.com/maryland/annapolis/ac-cn-

annapolis-fossil-fuels-lawsuit-20210222-20210223vs2ff7eiibfgje6fvjwticys2i-story.html.

that America should reduce the production of fossil

fuels because of the impact these fuels are having on

the climate. See City of New York, 993 F.3d at 93 (“If

the Producers want to avoid all liability, then their

only solution would be to cease global production altogether.”). Some may consider this to be a sensible

solution to the climate crisis, but it is not the role of

state courts to force such a transition.

For starters, state governments do not control the

global fuel market, so forcing a reduction in western

oil production would not reduce GHG emissions. As

the New York Times reported many of these companies are already “slowing down production as they

switch to renewable energy. . . . But that doesn’t

mean the world will have less oil.” Clifford Krauss,

As Western Oil Giants Cut Production, State-Owned

Companies Step Up, N.Y. Times, Oct. 14, 2021.13

“[S]tate-owned oil companies in the Middle East,

North Africa and Latin America are taking advantage of the cutbacks . . . by cranking up their production.” Id. “This massive shift could . . . make

America more dependent on [OPEC], authoritarian

leaders and politically unstable countries . . . that

are not under as much pressure to reduce emissions.”

Id. “[T]he United States and Europe could become

more vulnerable to the political turmoil in those

countries and to the whims of their rulers”—and

Russian President Vladimir Putin “uses his country’s

vast natural gas reserves as a cudgel.” Id.

In response to the Ukranian invasion, the current

administration is taking measures that would be di13_https://www.nytimes.com/2021/10/14/business/energy-

environment/oil-production-state-owned-companies.html

rectly contradicted by these state lawsuits. Specifically, President Biden has released oil from the nation’s strategic reserves, urged American energy

manufacturers to increase their production of oil,

tried to decrease energy prices, and invested in new

energy technology. See Zack Colman & Ben Lefebvre,

Biden To Tap Oil Reserves, Press Oil Sector To Hike

Production, Politico, Mar. 31, 2022.14 State court rulings to curtail fossil fuel production, make fuels more

expensive, and hinder innovation would conflict with

this strategic national security response.

In addition, this litigation raises federalism concerns. More than fifteen state attorneys general have

objected to this litigation because the localities and

other governments are using it 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). It also would hurt efforts by

other communities to address climate impacts in

their own jurisdictions by draining their resources.

To pay for any award in this case, people and

businesses in every state would have to pay higher

energy prices for projects in Boulder and San Miguel

Counties, even though their communities may have

comparable needs. As one New Jersey coastal leader

said in response to a lawsuit from Hoboken, New

Jersey: “Hoboken is sticking the rest of us with the

bill” as the litigation “will make it much more expensive for us to put gas in our cars and turn on our

14 https://www.politico.com/news/2022/03/31/biden-to-tap-oil-

reserves-use-wartime-powers-to-limit-fuel-shocks-00022020

lights.” Michael Thulen, Why Hoboken’s Climate

Change Lawsuit Is Bad for New Jersey, NJBiz, Oct.

11, 2021 (Thulen served as President of the Point

Pleasant Borough Council).15 There are less harmful

ways to address impacts of climate change that do

not have the downsides associated with this litigation. Federal and state programs have already made

funds available that can provide local relief now.

The Court should grant the Petition. Only uniform federal law supplies the standards that can be

applied here. Yet, there are two dozen climate suits

pending around the country, with organizers actively

recruiting more lawsuits. Lawsuits alleging energy

manufacturers can be subject to untold liability for

harms stemming from global climate change should

not be the result of state-by-state ad hoc rulings. Also, as a matter of judicial efficiency, it is important

for the Court to provide guidance now before these

proceedings begin in state courts around the country

and more suits are filed.

***

Ultimately, amicus believes the best way to address the impact that energy use is having on the

climate is for Congress, federal agencies, and local

governments to work with manufacturers and other

businesses on developing public policies and technologies that can 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, 2019. The challenge facing society is to affordably and reliably provide this energy while mitigating its climate impacts. It is not to blame provid15 https://njbiz.com/opinion-wrong-course/.

ers 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