Amicus Curiae Brief — American Petroleum Institute, et al., Petitioners v. Minnesota

No. 23-168

IN THE

Supreme Court of the United States

______________________

AMERICAN PETROLEUM INSTITUTE, ET AL.,

Petitioners,

v.

MINNESOTA,

Respondent.

______________________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

_______________

BRIEF OF AMICUS CURIAE THE NATIONAL

ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF PETITIONERS

_______________

Michael A. Tilghman II

THE NAM LEGAL CENTER

733 10th Street, N.W.

Suite 700

Washington, D.C. 20001

September 21, 2023

Philip S. Goldberg

Counsel of Record

SHOOK, HARDY &

BACON L.L.P.

1800 K Street, N.W.

Suite 1000

Washington, D.C. 20006

(202) 783-8400

pgoldberg@shb.com

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND

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

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

I.

THE COURT SHOULD UPHOLD ITS

RULING IN AMERICAN ELECTRIC

POWER THAT CLIMATE CHANGE

CLAIMS INVOKE FEDERAL COURT

JURISDICTION ......................................... 6

II. THE LOWER COURT’S RULING

PROVIDES A PLAYBOOK FOR

PEOPLE SEEKING TO ABROGATE

FEDERAL AUTHORITY ........................... 9

III. MERELY PASTING STATE LAW

LABELS ON FEDERAL LAW CLAIMS

SHOULD NOT BE A MEANS FOR

EVADING FEDERAL SCRUTINY ........... 13

IV. THE COURT SHOULD AFFIRM THAT

CLAIMS ALLEGING HARM FROM

CLIMATE CHANGE RAISE

UNIQUELY FEDERAL INTERESTS....... 16

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

ii

TABLE OF AUTHORITIES

Cases

Page

American Electric Power Co. v. Connecticut,

564 U.S. 410 (2011).................................... 2, 4, 6, 7

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ..................... 3, 4, 14, 16

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

325 F. Supp. 3d 1017 (N.D. Cal. 2018) ........... 3, 14

Comer v. Murphy Oil USA, Inc.,

718 F.3d 460 (5th Cir. 2013) ............................. 3, 8

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

Minnesota v. American Petroleum Inst.,

63 F.4th 703 (8th Cir. 2022) ...................... 4, 15, 18

Native Village of Kivalina v. ExxonMobil Corp.,

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

Rivet v. Regions Bank of Louisiana,

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

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

332 U.S. 301 (1947)................................................ 7

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007).............................................. 15

iii

West Virginia v. Environmental Prot. Agency,

142 S. Ct. 2587 (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

Brief for the Tennessee Valley Authority,

American Electric Power Co. v. Connecticut

(filed Jan. 31, 2011) ............................................. 14

Julia Caulfield, Local Lawsuits Asks Oil and

Gas to Help Pay for Climate Change,

KOTO, Dec. 14, 2020 ........................................... 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 ....................................... 12

Zack Colman & Ben Lefebvre, Biden To Tap Oil

Reserves, Press Oil Sector To Hike Production,

Politico, Mar. 31, 2022 ......................................... 17

Brooks Dubose, Annapolis Sues 26 Oil

and Gas Companies for their Role in

Contributing to Climate Change,

Cap. Gazette, Feb. 23, 2021 ........................... 15-16

Editorial, Climate Lawsuits Take a Hit,

Wall St. J., May 17, 2021 .................................... 13

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

Get to Work on a Real Climate Bill, Politico,

Mar. 27, 2019 ....................................................... 20

iv

Editorial, Multnomah County’s Lawsuit

Filing Does Not Count as Governance,

The Oregonian, June 25, 2023 ............................ 19

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 .......................... 10

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) ..................................................... 9

Ryan Fonseca, California Is Suing Big Oil,

Accusing Them of Climate Change ‘Deception,’

L.A. Times, Sept. 18, 2023................................... 19

Minnesota is Suing Climate Polluters: Why,

How and What’s Next?, Fresh Energy,

July 1, 2020 ..................................................... 12-13

Jennifer Hijazi, Oil Giants Fight Climate

Deception Suit at Hawaii Supreme Court,

Bloomberg Law, Aug. 18, 2023............................ 18

Kirk Herbertson, Oil Companies vs. Citizens:

The Battle Begins Over Who Will Pay

Climate Costs, EarthRights, Mar. 21, 2018 ........ 11

Clifford Krauss, As Western Oil Giants Cut

Production, State-Owned Companies Step

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

v

Beyond the Courtroom, Manufacturers’

Accountability Project, at

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

John O’Brien, Minnesota AG Sued for Info

on Employees Who Are Climate Change

Activists Paid by Bloomberg, Legal

Newsline, July 14, 2020....................................... 13

Dawn Reeves, As Climate Suits Keeps Issue

Alive, Nuisance Cases Reach Key Venue

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

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 CURIAE 1

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 nearly 13 million men and women, contributes $2.91 trillion to the U.S. economy annually, has

the largest economic impact of any major sector, and

accounts for more than half 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.

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 law claims 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 Respondent and 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 sought in 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 initially as state public nuisance lawsuits

for state or local abatement funds against energy

manufacturers, and have added several other state

law claims including the consumer protection act

claims invoked here. Since 2017, more than two dozen of these suits 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, they have

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

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

to state liability “for the effects of emissions made

around the globe over the past several hundred

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

that this type of “sprawling case is simply beyond the

limits” of state liability law, id., echoing the Court’s

sentiment 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.

Here, the Eighth Circuit concluded it was obligated to affirm the remand order because plaintiffs pled

these allegations under a state law coating. See Minnesota v. American Petroleum Inst., 63 F.4th 703, 709

(8th Cir. 2022). It stated it was hamstrung by its understanding of the well-pleaded complaint rule, as

well as the question of “whether, and to what extent,

5

th[e] area of federal common law” over transboundary greenhouse gas (GHG) emissions exists due to

Congress’s displacement under the Clean Air Act. Id.

at 710. Although the concurrence agreed with these

interpretation of law, it urged the Court to grant certiorari, stating this litigation clearly raises “interstate disputes” and should not be un-removable

merely because Minnesota chose to wage this dispute

“through the surrogate of a private party as the defendant.” Id. at 719-20 (Stras, J., concurring).

In addition to implicating a split with the Second

Circuit, the ruling below created 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 in recent years. State law rulings making the

production, sale, promotion and use of oil and gas a

liability-inducing event for the American, Canadian,

and European energy companies named in these cases would directly contradict the federal government’s

efforts to encourage an increase in their production

in order to reduce costs and enhance America’s and

Europe’s energy security given the war in Ukraine.

For these reasons, as discussed 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.

6

ARGUMENT

I.

THE COURT SHOULD 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.” AEP, 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 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.

7

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 after determining the claims

arose under federal common law, 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. 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. To

the contrary, as this Court did in AEP, federal courts

should assess whether the claims at issue arose under federal common law before considering the im-

8

pact of displacement. Thus, any assertion that federal common law displacement impacts jurisdiction is

entirely misplaced and should be corrected.

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 at bar as Minnesota also alleges that the defendants’ conduct and

products caused or exacerbated 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, damages or

other financial penalties.

The Court should grant the Petition because the

ruling below conflicts with AEP, namely that claims

9

over the effects of climate change implicate uniquely

federal interests and are governed by federal law.

II. 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 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 Inst. (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,” “to libel claims.” Id. at 11.

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

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

10

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

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 name the litigation, supporters asserted some

widespread “campaign of deception” involving the

many, often-changing companies named in the lawsuits. Here, Minnesota effectively alleges four entities should be subject to liability for its climate damages. In other similar lawsuits around the country,

the governments there have named anywhere from

one or two defendants to several dozen 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

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

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

11

the specious nature of this conspiracy-like narrative

and the lack of any principled basis for liability.

Outside of the courtroom, the advocates 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. 6 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. 7

6 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, at https://insideepa.com/outlook/climatesuits-keeps-issue-alive-nuisance-cases-reach-key-venue-rulings.

12

In filing the claims, the advocates are partnering

with state and local governments seeking money to

deal with local impacts of global 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 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 Climate Change Damages, Sept. 2, 2020 (noting the legal fees would be paid by the Institute for

Governance and Sustainable Development). 8

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 Unlike traditional state lawsuits, success here includes filing and

maintaining state lawsuits they can use for their national goals, which underscores the need for the

Court to grant the Petition.

This case epitomizes the way cases are being developed, funded, and litigated. Shortly after the lawsuit was announced, the Center for Climate Integrity

and Fresh Energy publicly said they “put this idea in

front of [the] Attorney General.” Minnesota is Suing

Climate Polluters: Why, How and What’s Next?,

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

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

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

13

Fresh Energy, July 1, 2020. 10 They also said that two

Assistant Attorneys General reportedly hired and

paid by the State Energy & Environment Impact

Center at the New York University School of Law to

work in the Attorney General’s office and bring these

types of lawsuits 11 “have basically been working on

this full-time over [a] few months.” Id. The Attorney

General’s office is simply a vehicle for the group’s efforts to wage this national litigation campaign.

Overall, more than two dozen of these lawsuits

have been filed since 2017 in carefully chosen jurisdictions 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 state and 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 this litigation are mere fig leaves. The theory of harm is not

moored to any plaintiff, defendant, 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 this regard, the predictions of the

Obama administration in AEP have been born out.

The Solicitor General, in opposition to that lawsuit,

10 https://www.youtube.com/watch?v=2MqX14GTm-o&t=90s.

11 See John O’Brien, Minnesota AG Sued for Info on Employees

Who Are Climate Change Activists Paid by Bloomberg, Legal

Newsline, July 14, 2020.

14

cautioned that 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 and

state law penalties 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 liability 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 vacated when the district judge’s order denying remand

was overturned underscores the reason the Court

15

should grant the Petition and instruct the circuits to

consider the federal substance and impact of the

claims, not just their state law labels.

Here, the concurrence in the decision below captured this point well: “Minnesota purports to bring

state-law consumer-protection claims against a

group of energy companies. But its lawsuit takes aim

at the production and sale of fossil fuels worldwide. . . . There is no hiding the obvious, and Minnesota does not even try: it seeks a global remedy for a

global issue.” American Petroleum Inst., 63 F.4th at

717 (Stras, J., concurring). Merely invoking 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 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).

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

16

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 the nation 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

Respondent and 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

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

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

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

17

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 Ukrainian invasion, the current administration is taking measures that would

be directly 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 rul13_https://www.nytimes.com/2021/10/14/business/energy-

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

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

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

18

ings 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. As the concurrence below observed, this case

seeks to impose Minnesota liability law on conduct

solely “outside of Minnesota.” 63 F.4th at 719 (Stras,

J., concurring) (emphasis added). The same is true

with other climate cases, as demonstrated in the oral

argument in Honolulu’s climate case. There, the city

is seeking “to apply Hawaii law to conduct in every

jurisdiction in the United States.” Jennifer Hijazi,

Oil Giants Fight Climate Deception Suit at Hawaii

Supreme Court, Bloomberg Law, Aug. 18, 2023. All of

these jurisdictions want to independently dictate

consumer protection liability for communications the

companies had with consumers, lawmakers and others entirely in other states—even each other’s jurisdictions—regardless of whether those states would

find the communications fully lawful. Under the

American system on constitutional federalism, these

states and localities are not allowed to impose their

state’s law to conduct wholly in those other states.

Indeed, more than fifteen state attorneys general

have objected to this litigation because the governments in other states are using it to export their laws

and “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 areas by draining resources.

19

To pay for any award in this case, people and

businesses in every state would have to pay higher

energy prices for projects in Minnesota, 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.

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

applied here. Yet, there are more than two dozen

climate suits pending around the country, with organizers actively recruiting more lawsuits. In just

the past few months, California and Multnomah

County, Oregon each filed lawsuits seeking tens of

billions of dollars for climate mitigation from energy

companies based on many of these same theories.

See, e.g., Ryan Fonseca, California Is Suing Big Oil,

Accusing Them of Climate Change ‘Deception,’ L.A.

Times, Sept. 18, 2023; Editorial, Multnomah County’s Lawsuit Filing Does Not Count as Governance,

The Oregonian, June 25, 2023 (“While filing a law-

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

20

suit against Big Oil may scratch a populist itch, this

isn’t the kind of governance residents need.”).

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 political decisions on whether and

whom to sue for climate change and ad hoc rulings in

local courts. Also, as a matter of judicial efficiency, it

is important for the Court to provide guidance now,

as proceedings have already begun in state courts

around the country and more suits are being 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 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 requests that this Court grant the Petition and vacate

the order to remand these federal issues to state

court.

21

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

Michael A. Tilghman II

THE NAM LEGAL CENTER

733 10 Street, N.W., Suite 700

Washington, D.C. 20001

Dated: September 21, 2023