Amicus Curiae Brief — Sunoco LP, et al., Petitioners v. City and County of Honolulu, Hawaii, et al.

No. 22-523

IN THE

Supreme Court of the United States

______________________

SUNOCO LP, ET AL.,

Petitioners,

v.

CITY AND COUNTY OF HONOLULU, HAWAII, ET AL.,

Respondent.

______________________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

_______________

BRIEF OF AMICUS CURIAE THE NATIONAL

ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF PETITIONERS

_______________

Linda E. Kelly

Erica Klenicki

Michael A. Tilghman II

THE NAM LEGAL CENTER

733 10th Street, N.W.

Suite 700

Washington, D.C. 20001

(202) 637-3100

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

January 5, 2023

[Additional Counsel Listed on Inside Cover]

Daniel B. Rogers

SHOOK, HARDY & BACON L.L.P.

201 S. Biscayne Blvd., Suite 3200

Miami, FL 33131

(305) 358-5171

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND

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

ARGUMENT .......................................................... 6

I.

THE LOWER COURT’S RULING

PROVIDES A PLAYBOOK FOR

PEOPLE SEEKING TO ABROGATE

FEDERAL AUTHORITY ........................... 6

II. THE COURT SHOULD UPHOLD ITS

RULING IN AMERICAN ELECTRIC

POWER THAT CLIMATE CHANGE

CLAIMS INVOKE FEDERAL COURT

JURISDICTION ......................................... 10

III. THE COURT SHOULD ENSURE THAT

ENTITIES ACTING UNDER FEDERAL

OFFICERS HAVE PROPER ACCESS

TO FEDERAL COURTS ............................ 14

IV. MERELY PASTING STATE LAW

LABELS ON FEDERAL LAW CLAIMS

SHOULD NOT BE A MEANS FOR

EVADING FEDERAL SCRUTINY ........... 18

V. THE COURT SHOULD AFFIRM THAT

CLAIMS ALLEGING HARM FROM

CLIMATE CHANGE RAISE

UNIQUELY FEDERAL INTERESTS....... 20

CONCLUSION ....................................................... 23

ii

TABLE OF AUTHORITIES

Cases

Page

American Electric Power Co. v.

Connecticut, 564 U.S. 410 (2011) .... 2, 4, 10, 11, 12

Arizona v. Manypenny,

451 U.S. 232 (1981)........................................ 15, 16

Baker v. Atl. Richfield Co.,

962 F.3d 937 (7th Cir. 2020) ............................... 15

Board of County Commissioners of

Boulder County v. Suncor Energy

(U.S.A.) Inc., 25 F.4th 1238 (2022) ................. 4, 13

Caver v. Cen. Ala. Elec. Coop.,

845 F.3d 1135 (11th Cir. 2017)........................... 16

City and County of Honolulu v. Sunoco LP,

39 F.4th 1101 (9th Cir. 2022) .............................. 14

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ..................... 3, 4, 19, 20

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

325 F. Supp. 3d 1017 (N.D. Cal. 2018) ........... 3, 19

Comer v. Murphy Oil USA, Inc.,

718 F.3d 460 (5th Cir. 2013) ........................... 3, 12

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)............................................ 18

iii

Illinois v. City of Milwaukee,

406 U.S. 91 (1972)................................................ 11

In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to Defender Ass’n of Philadelphia,

790 F.3d 457 (3d Cir. 2015) ....................... 5, 15, 17

Issacson v. Dow Chemical Co.,

517 F.3d 129 (2d Cir. 2008) ................................. 17

Jefferson Cnty. v. Acker,

527 U.S. 423 (1999).................................. 14, 15, 17

Kurns v. R.R. Friction Prods. Corp.,

565 U.S. 625 (2012)................................................ 8

Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020) .............................. 17

Maryland v. Soper (No. 1),

270 U.S. 9 (1926).................................................. 16

Mayor and City Council of Baltimore v. BP

P.L.C., 31 F.4th 178 (4th Cir. 2022) ............... 4, 13

Mesa v. California,

489 U.S. 121 (1989)......................................... 14-15

Native Village of Kivalina v. ExxonMobil

Corp., 696 F.3d 849 (9th Cir. 2012)........ 2-3, 12, 13

Rivet v. Regions Bank of Louisiana,

522 U.S. 470 (1998).............................................. 18

Shell Oil Prods. Co., LLC v. Rhode Island,

35 F.4th 44 (2022) .................................................. 4

iv

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

332 U.S. 301 (1947)........................................ 11, 12

Watson v. Philip Morris Cos.,

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

West Virginia v. Environmental Prot. Agency,

142 S. Ct. 2587 (2022)............................................ 3

Willingham v. Morgan,

395 U.S. 402 (1969).............................................. 16

Statutes

28 U.S.C. § 1442(a)(1) .................................... 5, 15, 16

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) ............ 22

Beyond the Courtroom, Manufacturers’

Accountability Project, at

https://mfgaccountability project.org/beyond-the-courtroom............................. 10

Brief for the Tennessee Valley Authority,

American Electric Power Co. v. Connecticut

(filed Jan. 31, 2011) ............................................. 19

Julia Caulfield, Local Lawsuits Asks Oil and

Gas to Help Pay for Climate Change,

KOTO, Dec. 14, 2020 ............................................. 9

v

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 ..... 8-9

Zack Colman & Ben Lefebvre, Biden To Tap Oil

Reserves, Press Oil Sector To Hike Production,

Politico, Mar. 31, 2022 ......................................... 21

Brooks Dubose, Annapolis Sues 26 Oil and Gas

Companies for their Role in Contributing to

Climate Change, Cap. Gazette, Feb. 23, 2021 .... 18

Editorial, Climate Lawsuits Take a Hit,

Wall St. J., May 17, 2021 .................................... 10

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 .............................................. 23

Entire January Meeting Agenda at Rockefeller

Family Foundation, Washington Free Beacon,

Apr. 2016, at https://freebeacon.com/wpcontent/uploads/2016/04/Entire-Januarymeeting-agenda-at-RFF-1-1.pdf ............................ 7

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 Inst. (Oct. 2012) ......................... 6-7

vi

Kirk Herbertson, Oil Companies vs. Citizens:

The Battle Begins Over Who Will Pay

Climate Costs, EarthRights, Mar. 21, 2018 .......... 9

Clifford Krauss, As Western Oil Giants Cut

Production, State-Owned Companies

Step Up, N.Y. Times, Oct. 14, 2021................ 20-21

Mullen: Military Has 'Strategic Imperative' to

Save Resources, Office of Sec. of Defense

Public Affairs, Oct. 13, 2010 at https://www.

dvidshub.net/news/58040/mullen-militaryhas-strategic-imperative-save-resources ....... 21-22

Dawn Reeves, As Climate Suits Keeps Issue

Alive, Nuisance Cases Reach Key Venue

Rulings, Inside EPA, Jan. 6, 2020 ........................ 9

Jerry Taylor & David Bookbinder, Oil Companies

Should be Held Accountable for Climate

Change, Niskanen Center, Apr. 17, 2018 ............. 9

Michael Thulen, Why Hoboken’s Climate

Change Lawsuit Is Bad for New Jersey,

NJBiz, Oct. 11, 2021 ............................................ 22

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 12.9 million men and women,

contributes $2.77 trillion to the U.S. economy annually, has the largest economic impact of any major

sector, and accounts for more than half of all privatesector research and development in the nation. The

NAM is the voice of the manufacturing community

and the leading advocate for a policy agenda that

helps manufacturers compete in the global economy

and create jobs across the United States.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 blanket consent to the filing of briefs of amici curiae.

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/.

2

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 local governments 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 an earlier 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

3

(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 state or local abatement

funds against energy manufacturers, among several

other state law claims. Since 2017, more than 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, see 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 stated, 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

3 The Court reaffirmed AEP in West Virginia v. Environmental

Prot. Agency. See 142 S. Ct. 2587, 2613 (2022); see also id. at

2636 (Kagan, J., dissenting).

4

hundred years.” City of New York, 993 F.3d at 92. It

concluded that “[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. After the companies removed the cases to federal court, the plaintiffs proffered novel theories for tying the hands of federal courts and requiring them to remand the cases to state courts. First,

the plaintiffs have asserted their claims, even if inherently federal, are un-removable because Congress

exercised its authority over these federal issues and

displaced the federal common law in this area. The

Second Circuit called the notion that such federal action on federal issues can undo federal jurisdiction

“too strange to seriously contemplate.” City of New

York, 993 F.3d at 98-99. Yet, the Ninth Circuit

agreed with Respondents and held these claims are

now viable under state law because the federal common law over climate change has been displaced.

This part of this appeal is the subject of several

Petitions before the Court. See Board of County

Commissioners of Boulder County v. Suncor Energy

(U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022), petition

for cert. filed, July 8, 2022; Mayor and City Council

of Baltimore v. BP P.L.C., 31 F.4th 178 (4th Cir.

2022), petition for cert. filed, Oct. 14, 2022; County of

San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir.

2022), petition for cert. filed, Nov. 22, 2022; and Shell

Oil Prods. Co., LLC v. Rhode Island, 35 F.4th 44

(2022), petition for cert. filed, Dec. 2, 2022.

5

Second, Plaintiffs have argued that even though

Petitioners have supplied the federal government

with substantial quantities of specialized, noncommercial grade fuels under the direction and control of federal officers, removal is not proper under

the federal officer removal statute. See 28 U.S.C. §

1442(a)(1). The Ninth Circuit denied the Petitioners’

right to remove the case to federal court under this

statute by issuing an unsupported interpretation of

the statute that has been rejected by other Circuits,

creating a circuit split on this issue.

Here, Petitioners plainly assert they are “person[s]” in a “civil action” “for or relating to” acts performed while “acting under” federal officers and

“raise[d] a colorable federal defense”—which are the

only requirements Congress and this Court have established for when the statute provides a right of

removal. The Ninth Circuit added a new requirement: the federal defense must arise from Petitioners’ federal duties. As other Circuits have recognized,

constitutional and preemption defenses critical to

giving proper effect to the federal officer removal

statute—ensuring claims against those acting under

the federal government are heard in federal court—

would not meet this new standard. As the Third Circuit stated, “[w]hat matters is that a defense raises a

federal question, not that a federal duty forms the

defense.” In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to Defender Ass’n of

Philadelphia, 790 F.3d 457, 473 (3d Cir. 2015).

This question has implications for every manufacturer and business that supplies goods and services

for the federal government. This Petition is an im-

6

portant vehicle for resolving this recurring issue; it is

not presented in the other climate-related Petitions.

For these reasons, amicus respectfully requests

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

or, at least, hold the Petition pending a decision on

the petitions in Suncor Energy (U.S.A.) Inc. v. Board

of County Commissioners of Boulder County, No. 211550, and the other cases. With some two dozen climate cases pending, it is a matter of judicial efficiency that the Court resolve these federal law questions.

ARGUMENT

I.

THE LOWER COURT’S RULING

PROVIDES 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 and

the other climate cases to circumvent this Court’s

ruling in AEP. In 2012, after AEP was decided, they

convened in California to brainstorm on how to repackage climate lawsuits in hopes of using the litigation 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,

7

and Legal Strategies, Union of Concerned Scientists

& Climate Accountability Inst. (Oct. 2012).4

They said that despite the Court’s clear pronouncements, 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,” as

here. Id. at 12. They talked through causes of action,

“with suggestions ranging from lawsuits brought under public nuisance laws,” also as 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. Entire January Meeting Agenda at Rockefeller

Family Foundation, Wash. Free Beacon, Apr. 2016.5

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/Entire-

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

8

They have since tried to scandalize the fact that

companies knew about potential risks of climate

change—something widely known by governments

around the world—and still produced fossil fuels to

satisfy the energy needs of billions of people.

To name this effort, supporters have asserted

some widespread “campaign of deception,” but that

narrative is undermined by the fact that the different lawsuits alleged that different combinations of

companies were involved in this so-called conspiracy.

Here, the City and County of Honolulu allege some

20 entities should be subject to liability for their climate change damages. In other cases, some government plaintiffs have named only one or two companies as being responsible, while others have named

more than two dozen defendants, generally including

local entities (here, Aloha Petroleum that operates

gas stations in Hawaii) in an effort to keep the cases

in state court. This ever-changing list of defendants

in various aspects of the energy industry highlights

the specious nature of this litigation.

Finally, they have partnered with state and local

governments to file the claims. In the complaints, the

governments assert that they are seeking only money to deal with local impacts of global climate change

and often disclaim any attempt to regulate emissions—even though this Court has held that such liability is a form of regulation. See, e.g., Kurns v. R.R.

Friction Prods. Corp., 565 U.S. 625, 637 (2012). Indeed, the lawsuits are being funded by organizations

because the litigation raises inherent federal legal

and energy issues. See, e.g., City of Hoboken Press

Release, Hoboken Becomes First NJ City to Sue Big

Oil Companies, American Petroleum Institute for

9

Climate Change Damages, Sept. 2, 2020 (noting the

legal fees would be paid by the Institute for Governance and Sustainable Development).6

Outside of court, the litigation’s architects 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 the litigation to force Americans

into “cutting back” on fossil fuel use and energy

manufacturers into raising 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,

2020.7 They believe that because the “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, 2018.8

6_https://www.hobokennj.gov/news/hoboken-sues-exxon-mobil-

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

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

opinion/.

8 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

10

In addition, these groups are using political-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 includes filing and maintaining state lawsuits that they can use

for their national legal goals. Overall, about two dozen climate lawsuits have been filed since 2017.

At bottom, even though these lawsuits are packaged differently than AEP and invoke state law, they

are similarly designed to drive federal law on climate

change. By filing their claims in carefully chosen jurisdictions, they are seeking to convince local state

courts to help them “side-step federal courts and Supreme Court precedent” and advance their preferred

national and international agenda by awarding money to state and local jurisdictions. Editorial, Climate

Lawsuits Take a Hit, Wall St. J., May 17, 2021.

II. THE COURT SHOULD UPHOLD ITS

RULING IN AMERICAN ELECTRIC

POWER THAT CLIMATE CHANGE

CLAIMS INVOKE FEDERAL COURT

JURISDICTION

The Court should grant the Petition (or one of the

other pending climate-related Petitions) to reinforce

the principle that climate litigation raises issues of

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

AEP, the Court explained that federal common law

EPA, Jan. 6, 2020, https://insideepa.com/outlook/climate-suitskeeps-issue-alive-nuisance-cases-reach-key-venue-rulings.

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

11

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 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 AEP affirmed,

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

12

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 after determining the claims

arose under federal common law, did the Court hold

that 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. Any 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 AEP was decided, 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 were

that defendants, through their conduct and products,

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

See id. These cases parallel the case here as the City

13

and County of Honolulu also allege the Petitioners’

conduct and products caused certain emissions.

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.

Despite this uniform approach about a decade

ago, several Circuits in this round of climate cases

have inverted the Court’s ruling in AEP in affirming

the remand orders. They have held that federal jurisdiction is no longer required because the Court

ruled in AEP that federal common law “ceases to exist” in this area. Mayor and City Council of Baltimore, 31 F.4th at 204; see also Board of County

Commissioners of Boulder County, 25 F.4th at 1260.

The Court should grant the Petition because the

ruling here conflicts with its ruling in AEP that

claims over the effects of climate change implicate

uniquely federal interests and are governed by federal law. It also should not allow local governments

to turn AEP’s displacement ruling on its head by using it here as the primary rationale for trying to circumvent federal jurisdiction on climate cases.

14

III.

THE COURT SHOULD ENSURE THAT

ENTITIES ACTING UNDER FEDERAL

OFFICERS HAVE PROPER ACCESS

TO FEDERAL COURTS

The Court should also grant the Petition to give

proper effect to the federal officer removal statute.

Here, Petitioners showed they were acting under

federal officers in producing and supplying highly

specialized, non-commercial grade fuels for the military, operating the Strategic Petroleum Reserve, and

operating the federal Elk Hills oil reserve under the

Navy’s supervision, among other things. See Pet. at

9. With respect to the provision of specialized fuels to

the military and support for certain wartime efforts,

the Ninth Circuit denied Petitioners’ right to remove

these claims to federal court by heightening one of

the elements for removal. Rather than requiring only

the assertion of a colorable federal defense, it added

that the defense must also arise out of defendants’

official duties. See City and County of Honolulu v.

Sunoco LP, 39 F.4th 1101, 1110 (9th Cir. 2022).

This limitation as to which federal defenses can

trigger the federal officer removal statute, even when

the defendant is acting under a federal officer, is unfounded and undermines the statute’s purpose. As

this Court has stated in previous cases, lawsuits

“against federal officers may be removed despite the

nonfederal cast of the complaint; the federal-question

element is met if the defense depends on federal

law.” Jefferson Cnty. v. Acker, 527 U.S. 423, 431

(1999). “[I]t is the raising of a federal question in the

officer’s removal petition that constitutes the federal

law under which the action against the federal officer

arises for Art. III purposes.” Id.; see also Mesa v. Cal-

15

ifornia, 489 U.S. 121, 128 (1989) (upholding “the constitutionality of the federal officer removal statute

precisely because the statute predicated removal on

the presence of a federal defense”).

Here, the Ninth Circuit misconstrued a statement

this Court made in Arizona v. Manypenny, 451 U.S.

232 (1981) in justifying this departure from previous

law. The Court observed that “[h]istorically,” the federal officer removal statute “was meant to ensure a

federal forum in any case where a federal official is

entitled to raise a defense arising out of his official

duties.” In making this remark, the Court did not

hold, or even suggest, that the federal defense must

arise out of a federal duty.

The statute already requires the claims at issue

to be “for or relating to any act under color of [federal] office.” 28 U.S.C. § 1442(a)(1). As this Court has

explained, these elements are to be treated separately: “To qualify for removal, an officer of the federal

courts must both raise a colorable federal defense

and establish that the suit is ‘for [a]n act under color

of office.’” Acker, 527 U.S. at 431 (cleaned up). Imposing this requirement on the defenses wrongly collapses the defense inquiry into the conduct requirement. See In re Commonwealth, 790 F.3d at 470. Yet,

the Ninth Circuit did not provide any rationale for

restricting the federal defenses element.

Demonstrating a clear Circuit split, the Third and

Seventh Circuits have held just the opposite: “the

fact that duty-based defenses are the most common

defenses does not make them the only permissible

ones.” In re Commonwealth, 790 F.3d at 473; Baker

v. Atl. Richfield Co., 962 F.3d 937, 942 n.1 (7th Cir.

2020) (favorably citing the Third Circuit decision). As

16

the Third Circuit explained, “[w]hat matters is that a

defense raises a federal question, not that a federal

duty forms the defense.” Id. at 473. It concluded that

the statute “is to be ‘broadly construed’ in favor of a

federal forum.” Id. at 466–67; accord Caver v. Cen.

Ala. Elec. Coop., 845 F.3d 1135, 1146 (11th Cir. 2017)

(similarly referring to the “lenient colorable federal

defense requirement for removal”).

This Court’s jurisprudence suggests the broader

application is the correct one because the “statute’s

‘basic’ purpose is to protect the Federal Government

from the interference with its ‘operations’ that would

ensue were a State able, for example, to” prosecute

claims in state court against “‘officers and agents’ of

the Federal Government ‘acting . . . within the scope

of their authority.’” Watson v. Philip Morris Cos., 551

U.S. 142, 150 (2007) (quoting Willingham v. Morgan,

395 U.S. 402, 406 (1969)). Without removal, “[s]tatecourt proceedings may reflect ‘local prejudice’ against

unpopular federal laws or federal officials.” Id. at 150

(quoting Maryland v. Soper (No. 1), 270 U.S. 9, 32

(1926)). “For these reasons, this Court has held that

the right of removal is absolute for conduct performed under color of federal office, and has insisted

that the policy favoring removal ‘should not be frustrated by a narrow, grudging interpretation of §

1442(a)(1).’” Manypenny, 451 U.S. at 242 (quoting

Willingham, 395 U.S. at 407).

As Congress has stated, it is against the federal

interest for the private sector to have a state-based

disincentive from answering federal officers’ calls for

services and products, particularly when it comes to

17

national security.10 America’s manufacturers, energy

producers, and other entities must be willing to provide the federal government with their products and

services—including the specialized jet fuels supplied

here, the naval vessels supplied in Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020) (en

banc), or the chemical weapons supplied in Issacson

v. Dow Chemical Co., 517 F.3d 129 (2d Cir. 2008)—

not refuse to provide them out of fear of local reprisal. Importantly, applying the federal officer removal

statute does not absolve any defendant of any

wrongdoing; it solely ensures local claims against

them will be adjudicated by federal authorities. See

Acker, 527 U.S. at 431 (“[O]ne of the most important

reasons for removal” is “to have the validity of the

[federal defense] tried in a federal court.”).

These dynamics that the federal officer removal

statute was intended to prevent are certainly at risk

here. As indicated, this litigation campaign was

crafted as an attempt to avoid federal courts. Private

foundations and lawyers teamed with local and state

governments to file cases in a multitude of state

courts. Each lawsuit seeks to bring private, out-ofstate money into a local community, with public officials asserting the litigation is an important piece for

addressing a significant global challenge. In Maryland, when asked about the legal shortcomings of

climate lawsuits, Annapolis officials expressed unusual confidence that “the Maryland courts will get us

The statute is “meant ‘to ensure that any individual drawn

into a State legal proceeding based on that individual’s status

as a Federal officer has the right to remove.’” In re Commonwealth, 790 F.3d at 467 (quoting H.R.Rep. No. 112-16, pt. 1

(2011), as reprinted in 2011 U.S.C.C.A.N. 420, 420).

10

18

there.” Brooks Dubose, Annapolis Sues 26 Oil and

Gas Companies for their Role in Contributing to Climate Change, Cap. Gazette, Feb. 23, 2021.11

The Court should grant the Petition to make clear

that state courts are not positioned to be arbiters of

who, if anyone, is to be legally accountable for global

climate change—particularly when the entities being

sued were acting under the direction of federal officers and have colorable federal defenses.

IV. MERELY PASTING STATE LAW

LABELS ON FEDERAL LAW CLAIMS

SHOULD NOT BE A MEANS FOR

EVADING FEDERAL SCRUTINY

The Court should not allow the use of labels to

turn the global production, sale, promotion and use

of fossil fuels into state law claims without federal

scrutiny. As the Court has appreciated, “[w]hat matters is the crux—or, in legal speak, the gravamen—of

the plaintiff’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).

The crux of this litigation is federal.

The state law theories invoked in this litigation

are mere fig leaves. The various permutations of the

cases clearly demonstrate that none of the theories of

harm are moored to any plaintiff, defendant, or jurisdiction. The chain of causation, as the Court observed in AEP, is anything but local. In fact, the pre11_https://www.capitalgazette.com/maryland/annapolis/ac-cn-

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

19

dictions of the Obama administration in AEP have

been born out. The Solicitor General, in opposing

that lawsuit, cautioned there would be “almost unimaginably broad categories of both potential plaintiffs and potential defendants.” Brief for the Tennessee Valley Authority, AEP at 15 (filed Jan. 31, 2011).

It would be “impossible to consider the sort of focused

and more geographically proximate effects that were

characteristic of traditional nuisance suits.” Id. at 17.

In a lawsuit similar to the one here, the Second

Circuit saw through the claim’s 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

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; referencing state claims and asking for compensation—the

purposeful packaging of these suits—does not make

federal matters of global climate change suddenly

suitable for state courts. “Such a sprawling case is

simply beyond the limits of state tort law.” Id. at 92.

To this end, in the climate 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 the ruling was vacat-

20

ed 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.

V. 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 interfere with exclusive federal interests, including over national security. At the heart of

these claims is the notion 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, 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 oil production by a few private companies 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,

21

Oct. 14, 2021.12 “[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 Ukrainian invasion, the administration has taken measures that would be directly

contradicted by these state claims. 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, 2022.13 State court rulings to curtail fossil fuel

production, make fuels more expensive, and hinder

innovation would conflict with this strategic national

security response. As Admiral (Retired) Michel Mullen put it, energy security is “one of the first things

we think about, before we deploy another soldier, before we build another ship or plane, and before we

buy or fill another rucksack.” Mullen: Military Has

12_https://www.nytimes.com/2021/10/14/business/energy-

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

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

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

22

'Strategic Imperative' to Save Resources, Office of

Sec. of Defense Public Affairs, Oct. 13, 2010.14

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

objected to this litigation because the state and local

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 Honolulu, 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 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.

14_https://www.dvidshub.net/news/58040/mullen-military-has-

strategic-imperative-save-resources.

15 https://njbiz.com/opinion-wrong-course/.

23

The Court should grant this or one of the other

climate-related Petitions. Only uniform federal law

supplies the standards that can be applied here. Yet,

there are some 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. As a matter of judicial efficiency, the Court should provide

guidance before these proceedings begin in state

courts and more lawsuits 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 providers for selling the energy that people need to heat

and cool their homes, fuel their cars, build schools,

places of worship and workplaces, and turn on lights.

CONCLUSION

For these reasons, amicus curiae respectfully requests that this Court grant the Petition and vacate

the order to remand these federal issues to state

court or, at the very least, hold the Petition pending

a decision on the petitions in Suncor Energy (U.S.A.)

24

Inc. v. Board of County Commissioners of Boulder

County, No. 21-1550 and the other petitions.

Respectfully submitted,

Philip S. Goldberg

Counsel of Record

SHOOK, HARDY & BACON L.L.P.

1800 K Street, N.W., Suite 1000

Washington, D.C. 20006

(202) 783-8400

pgoldberg@shb.com

Daniel B. Rogers

SHOOK, HARDY & BACON L.L.P.

201 S. Biscayne Blvd., Suite 3200

Miami, FL 33131

(305) 358-5171

Linda E. Kelly

Erica Klenicki

Michael A. Tilghman II

THE NAM LEGAL CENTER

733 10 Street, N.W., Suite 700

Washington, D.C. 20001

(202) 637-3100

Dated: January 5, 2023