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

Supreme Court briefSep 21, 2023

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No. 23-168

In the Supreme Court of the United States

______________________

AMERICAN PETROLEUM INSTITUTE, ET AL.,

Petitioners,

MINNESOTA,

Respondent.

______________________

BRIEF OF AMICUS CURIAE

AMERICAN TORT REFORM ASSOCIATION

IN SUPPORT OF PETITIONER

_______________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

_______________

H. Sherman Joyce

Lauren Sheets Jarrell

AMERICAN TORT

REFORM ASSOCIATION

1101 Connecticut

Avenue, N.W., Suite 400

Washington, DC 20036

Counsel for the American

Tort Reform Association

Victor E. Schwartz

Cary Silverman

Counsel of Record

SHOOK, HARDY

& BACON L.L.P.

1800 K Street, N.W.

Suite 1000

Washington, D.C. 20006

(202) 783-8400

csilverman@shb.com

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND

SUMMARY OF ARGUMENT .......................... 1

ARGUMENT .......................................................... 3

Global Climate Change is Not

Traditional State Tort or Consumer Law . 3

II. The Development, Funding, and

Litigation of Climate Change Lawsuits

Brought by State and Local

Governments Further Demonstrates

Their Interstate Nature ............................. 8

CONCLUSION ....................................................... 13

TABLE OF AUTHORITIES

Cases

Page

American Elec. Power Co. v. Connecticut,

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

Illinois v. Milwaukee, 406 U.S. 91 (1972) .................. 4

In re Lead Paint Litig., 924 A.2d 484 (N.J. 2007) ...... 6

Johannessohn v. Polaris Indus., Inc.,

450 F.Supp.3d 931 (D. Minn. 2020) ...................... 7

Johnson v. Paynesville Farmers Union Coop.

Oil Co., 817 N.W.2d 693 (Minn. 2012) .................. 5

Palsgraf v Long Is. R.R. Co.,

162 N.E. 99 (N.Y. 1928) ......................................... 4

State ex rel. Hunter v. Johnson & Johnson,

499 P.3d 719 (Okla. 2021) ..................................... 6

Statutes

28 U.S.C. § 1331 .......................................................... 3

Minn. Stat. § 325D.46 ................................................. 7

Minn. Stat. § 609.74 .................................................... 6

Minn. Stat. §§ 617.18 .................................................. 7

iii

Other Authorities

Am. Tort Reform Ass’n, The Plaintiffs’ Lawyer

Quest for the Holy Grail: The Public Nuisance

“Super Tort” (2020), https://www.atra.org/wpcontent/uploads/2020/03/Public-NuisanceSuper-Tort.pdf ....................................................... 6

Am. Tort Reform Ass’n, The Advocacy Group

Within: The Embedding of Outside Lawyers

and Activists Within the Government (2019),

https://agsunshine.com/the-advocacy-groupwithin-the-embedding-of-outside-lawyers-andactivists-within-the-government/ ................... 10-11

Collin Anderson, Keith Ellison Moves to Shield

Records on Controversial Legal Scheme, Free

Beacon, July 12, 2021, https://freebeacon.com/

politics/keith-ellison-moves-to-shield-recordson-controversial-legal-scheme/ ............................ 10

Thomas Catenacci, Leonardo DiCaprio Funneled

Grants Through Dark Money Group to Fund

Climate Nuisance Lawsuits, Emails Show, Fox

News, Aug. 15, 2022, https://www.foxnews.com/

politics/leonardo-dicaprio-funneled-grantsdark-money-group-fund-climate-nuisancelawsuits-emails-show .......................................... 12

Lesley Clark, State AGs Rebuked for ‘Soliciting

Billionaires’ in Climate Cases, E&E News by

Politico, June 3, 2022, https://www.eenews.net/

articles/state-ags-rebuked-for-solicitingbillionaires-in-climate-cases/ ............................... 10

Editorial, State AGs for Rent,

Wall St. J., Nov. 6, 2018, https://www.wsj.com/

articles/state-ags-for-rent-1541549567 ............... 11

Paul Gazelka, Op-ed, Minnesota’s Climate Lawsuit is a Dangerous Gambit, Minn. Post,

May 1, 2023, https://www.minnpost.com/

community-voices/2023/05/minnesotasclimate-lawsuit-is-a-dangerous-gambit/ ............. 11

Bruce Gil, U.S. Cities and States Are Suing Big

Oil Over Climate Change. Here’s What the

Claims Say and Where They Stand, Frontline,

PBS, Aug. 1, 2022, https://www.pbs.org/wgbh/

frontline/article/us-cities-states-sue-big-oilclimate-change-lawsuits/ ....................................... 9

Christopher C. Horner, Law Enforcement for

Rent (Competitive Enterprise Inst. 2018),

https://cei.org/sites/default/files/

AGpdfFinal.pdf .................................................... 11

Andreas Kuersten, Introduction to Tort Law,

Congressional Research Service, No. IF11291

(2023), https://crsreports.congress.gov/product/

pdf/IF/IF11291. ...................................................... 4

MacArthur Found., Grant Search, New Venture

Fund (last visited Sept. 5, 2023),

https://www.macfound.org/grantee/newventure-fund-43535/ ............................................ 12

Annette Meeks, Op-ed, Agenda Dollars are Buying State Government Jobs, Star Tribune, Jan.

27, 2021, https://www.startribune.com/agendadollars-are-buying-state-governmentjobs/600015808/.................................................... 10

Christin Nielsen, AG Ellison Exceeded Authority

By Hiring Privately Funded Lawyers to Sue

Big Oil, Critic Says, Legal Newsline, Apr. 13,

2021, https://legalnewsline.com/stories/

588663251-ag-ellison-exceeded-authority-byhiring-privately-funded-lawyers-to-sue-big-oilcritic-says ............................................................. 10

Tyler Olson, Bloomberg’s ‘Mercenaries’: Billionaire Dem Funding Network of Climate Lawyers Inside State AG Offices, Fox News, Feb.

18, 2020, https://www.foxnews.com/politics/

bloomberg-network-climate-lawyers-ag.............. 10

Restatement (Second) of Torts § 158 (1965) .............. 5

Restatement (Second) of Torts § 821B (1979). ........... 5

Victor E. Schwartz & Cary Silverman, CommonSense Construction of Consumer Protection

Acts, 54 Kan. L. Rev. 1 (2005) ............................... 7

Victor E. Schwartz, Cary Silverman & Christopher E. Appel, “That’s Unfair!” Says Who –

The Government or Litigant?: Consumer Protection Claims Involving Regulated Conduct,

47 Washburn L.J. 93 (2007) .................................. 7

Victor E. Schwartz & Phil Goldberg, The Law of

Public Nuisance: Maintaining Rational

Boundaries on a Rational Tort,

45 Wash. L.J. 541 (2006) ....................................... 6

Sher Edling LLP, Climate Damage and Deception, https://www.sheredling.com/cases/

climate-cases/ (last visited Sept. 5, 2023) ..... 11, 12

Seth Shulman, Establishing Accountability for

Climate Change Damages: Lessons from Tobacco Control, Summary of the Workshop on

Climate Accountability, Public Opinion, and

Legal Strategies (Union of Concerned Scientist and Climate Accountability Inst., Oct.

2012), https://climateaccountability.org/pdf/

Climate Accountability Rpt Oct12.pdf ............... 8-9

State Energy & Environmental Impact Center,

NYU School of Law, Fellows Program,

https://stateimpactcenter.org/about/fellowsprogram (last visited Sept. 5, 2023) ...................... 9

State Energy & Environmental Impact Center,

NYU School of Law, Fellows Program, How

to Hire an NYU Law Fellow - AG Offices,

https://stateimpactcenter.org/about/fellowsprogram/hire (last visited Sept. 5, 2023) ............ 10

State of Minnesota, Office of the Attorney General, Special Attorney Appointment, Exh. A:

Fee Agreement (Aug. 2020),

https://govoversight.org/wp-content/uploads/

2021/01/AGO-LAC.pdf ......................................... 11

vii

Terry Wade, U.S. Prosecutors Met With Climate

Groups as Exxon Probes Expanded, Reuters,

Apr. 15, 2016, https://www.reuters.com/

article/exxonmobil-states/u-s-stateprosecutors-met-with-climate-groups-asexxon-probes-expanded-idUSL2N17I2C5............. 9

INTEREST OF AMICUS CURIAE 1

The American Tort Reform Association (ATRA) is

a broad-based coalition of businesses, corporations,

municipalities, associations, and professional firms

that have pooled their resources to promote reform of

the civil justice system with the goal of ensuring

fairness, balance, and predictability in civil litigation. For more than three decades, ATRA has filed

amicus briefs in cases involving important liability

issues. ATRA is concerned with state and local government attempts to expand tort law to shift costs

associated with responding to climate change. Such

efforts are the latest attempt to subject industries

that provide lawful products to unprincipled liability

for societal problems regardless of fault, the cause of

the harm, whether elements of the claim are met, or

even whether liability will actually address the issue.

INTRODUCTION AND

SUMMARY OF ARGUMENT

A popular Netflix gameshow asks contestants,

who are creative, skillful bakers, to attempt to trick

celebrity judges by disguising a cake to look like an

ordinary object – a sneaker, a cheeseburger, or

handbag – and then presenting the cake among the

real objects. The judges are then asked, “Is it cake?”

After they respond, the host puts a knife into the selected item to find out if it is, in fact, cake. The ques1 Pursuant to Rule 37.6, counsel for amicus curiae affirm 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. Counsel of record for

all parties received timely notice of the intention to file this

brief.

tion presented to this Court in this Petition is similar: “Is it a tort (or state consumer protection

claim)?”

Here, the “bakers” are private plaintiffs’ attorneys, retained by a state government, that have artfully crafted a complaint to resemble state law claims

when the lawsuit transparently seeks to set national

environmental and economic policy that this Court

has ruled is a matter of federal common law. The

State has affixed tort law labels alleging failure to

warn and common law fraud, and alleged violations

of state consumer protection laws in an action that

claims energy producers’ production, sale, and marketing of fossil fuels increased greenhouse-gas emissions and contributed to global climate change,

harming Minnesota residents. In the lower courts,

this tactic succeeded. The district court remanded

the case, and Eighth Circuit affirmed, hesitantly

finding that since the complaint alleges only state

law claims, i.e., it looks like a tort, the federal judiciary lacks jurisdiction. But the lower courts failed to

take the needed final step: probing whether the complaint alleges claims that are truly state law or raises issues of federal common law.

This Petition presents the Court with a threshold

issue that arises in many similar lawsuits brought by

state and local governments. That issue is whether

skillful lawyers can, through artful pleading, have

cases with national implications decided by state

court judges on the basis of state law, dodging a more

neutral federal forum that would apply federal common law.

Amicus curiae submits this brief to provide the

Court with relevant context on state climate change

litigation. First, the brief demonstrates that these

cases do not allege ordinary state law claims, but

represent a continuing attempt to expand tort and

consumer law beyond their traditional purposes and

constraints. Federal law, applied by federal courts

under the jurisdiction granted by 28 U.S.C. § 1331,

should govern matters of national environmental policy. Second, the brief shows that state and local climate change cases are pursued as part of a coordinated effort to impose environmental policy through

the courts. With broad, nationwide regulatory goals

in mind, advocacy groups and foundations financially

support these cases from their inception through litigation. The means by which these cases are developed, litigated, and funded further suggests that

these claims should be governed by federal law applied by federal courts.

This Court should grant the Petition to ensure

that cases attempting to impose liability for harms

caused by global climate change are decided in federal court based on federal law.

ARGUMENT

I. Global Climate Change is Not Traditional

State Tort or Consumer Law

This Court should grant the Petition to indicate

that in this and similar cases alleging that a business’s or industry’s activities contributed to climate

change, federal common law governs, even if the

complaint characterizes its claims as arising under

state law.

Litigation over whether changes in global climate

patterns, to which widespread use of fossil fuels may

have contributed, caused property damage or led to

other economic costs in a particular state bears no

resemblance to a traditional state common law “tort.”

Nor is the important issue of climate change a matter of state consumer law governing representations

in the sale of products and services. Rather, claims

seeking redress for costs allegedly incurred as a result of interstate pollution implicate an “overriding

federal interest in the need for a uniform rule of decision” that can be determined through federal common law. Illinois v. Milwaukee, 406 U.S. 91, 105 n.6

(1972). “[B]orrowing the law of a particular state

would be inappropriate” for resolving this national

issue. See American Elec. Power v. Connecticut,

564 U.S. 410, 422 (2011).

Is a claim alleging economic losses from global

climate change a tort? Tort law, of course, is most

commonly associated with personal injury litigation.

Tort claims most often stem from accidental injuries

arising from automobile accidents, slip-and-falls,

complications during medical treatment, or defective

products. See, e.g., Andreas Kuersten, Introduction to

Tort Law, Congressional Research Service, No.

IF11291 (2023). Unlike climate change litigation,

negligence claims typically involve an injury to a

specific person or person’s property resulting from

someone else’s careless conduct. Traditional principles of tort law, such as duty and causation, confine

the claim. As Justice Cardozo observed while sitting

on the New York Court of Appeals, “Proof of negligence in the air, so to speak, will not do.” Palsgraf v

Long Is. R.R. Co., 162 N.E. 99, 99 (N.Y. 1928) (quoting Frederick Pollock, The Law of Torts, at 455 (11th

ed. 1920)).

Certainly, there are property-related torts,

though they have little in common with today’s climate change suits. Trespass, for example, typically

involves a person intentionally entering the property

of another. Restatement (Second) of Torts § 158

(1965); see also Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 705 (Minn. 2012)

(“[T]respass claims address tangible invasions of the

right to exclusive possession of land.”). A trespass

claim may also arise when a person places an object

in the air, water, or ground “with knowledge that it

will to a substantial certainty” enter the property of

another. See Restatement (Second) of Torts § 158,

Reporter’s Notes, cmt. i. Applying this principle,

there are some circumstances in which trespass

claims may provide a remedy for environmental

harms, such as flooding water directed from one

property to another. See Johnson, 817 N.W.2d at

701. The Minnesota Supreme Court, however, has

rejected an attempt to dilute the tort to permit a

claim based on the mere invasion of “particulate

matter.” Id. at 703 (holding pesticide drift from one

property to a neighboring field did adequately allege

a trespass claim). There, the court observed the

overbroad liability exposure that would result from

abandoning the physical intrusion element of the

tort. See id. at 703-04.

A public nuisance action, which provides a means

for the government to require an owner to stop an

unlawful activity on its property that interferes with

public health, safety, or some other public right, similarly does not fit climate change lawsuits. Public

nuisance claims are often associated with the effects

of criminal activity at a particular location on the

surrounding area. See Restatement (Second) of Torts

§ 821B cmt. b (1979). Several state supreme courts

have rejected attempts to transform public nuisance

law into an all-encompassing tort. See, e.g., State ex

rel. Hunter v. Johnson & Johnson, 499 P.3d 719

(Okla. 2021); In re Lead Paint Litig., 924 A.2d 484,

501 (N.J. 2007). They have generally found that public nuisance law, which is rooted in land use, is not

the means to address alleged external costs associated with the lawful manufacturing and selling of

products. See Victor E. Schwartz & Phil Goldberg,

The Law of Public Nuisance: Maintaining Rational

Boundaries on a Rational Tort, 45 Wash. L.J. 541,

552-61 (2006); see also Am. Tort Reform Ass’n, The

Plaintiffs’ Lawyer Quest for the Holy Grail: The Public Nuisance “Super Tort” (2020) (discussing the history of failed attempts to expand public nuisance law

as a means of addressing broad societal problems

and the more recent use of such claims to target climate change and other areas).

Minnesota’s public nuisance law is consistent

with these traditional common law principles and

codified in a manner that does not permit unbridled

expansion of the tort to extend to climate change litigation. See Minn. Stat. § 617.18 (enumerating activities constituting a nuisance subject to an abatement

action); see also Minn. Stat. § 609.74 (defining the

misdemeanor offense of public nuisance). It is likely

that, for these reasons, Minnesota has not asserted

trespass or public nuisance claims here and instead

relies on more nebulous negligence claims and statutory consumer protection claims.

Consumer protection claims, however, are similarly ill fitted for climate change litigation. States

adopted consumer protection statutes to provide a

means for ordinary consumers, or state attorneys

general on their behalf, to address instances in which

a business practice misleads the public when they

purchase products and services. See Victor E.

Schwartz & Cary Silverman, Common-Sense Construction of Consumer Protection Acts, 54 Kan. L.

Rev. 1, 6 (2005). While these laws provide state attorneys general with broad authority to enjoin “unfair” or “deceptive” business practices, they often require such determinations to be guided by federal

policy, such as guidance from the Federal Trade

Commission, and, about two thirds of state consumer

protection statutes exempt conduct that is regulated,

permitted, approved, or authorized by government

regulations. See Victor E. Schwartz, Cary Silverman

& Christopher E. Appel, “That’s Unfair!” Says Who –

The Government or Litigant?: Consumer Protection

Claims Involving Regulated Conduct, 47 Washburn

L.J. 93, 102-09 (2007) (compiling state statutes).

Minnesota’s Deceptive Trade Practices Act, for example, specifically excludes “conduct in compliance

with the orders or rules of, or a statute administered

by, a federal, state, or local government agency.”

Minn. Stat. § 325D.46(1). While the Minnesota Consumer Fraud Act, relied upon in this instance, does

not codify such an exemption, a presumption that the

Act does not apply to conduct beyond Minnesota

should preclude claims premised on global emissions.

See Johannessohn v. Polaris Indus., Inc., 450

F.Supp.3d 931, 961-62 (D. Minn. 2020).

Even if these asserted tort and consumer claims

are viable under state law, this Court has held that

actions alleging claims involving “air and water in

their ambient or interstate aspects,” including global

climate change, are governed by federal common law.

American Elec. Power, 564 U.S. at 421 (quoting Milwaukee, 406 U.S. at 103).

In sum, claims alleging property damage or financial losses from changes in global weather patterns are not traditional matters of state “tort” or

“consumer” law. These lawsuits attempt to set national public policy and environmental regulation

through state law claims – regulation through litigation. The Court should grant the Petition to assure

that federal courts decide such actions based on federal law, even if the claims are artfully pled in state

law terms.

II. The Development, Funding, and Litigation

of Climate Change Lawsuits Brought by

State and Local Governments Further

Demonstrates Their Interstate Nature

The method by which these state and local government climate change lawsuits are developed,

filed, and litigated also indicates that they are not

ordinary state tort law or consumer claims. These

lawsuits are supported by organizations that have as

their objective advancing a national agenda and they

litigated by lawyers who are subsidized by foundations with similar goals.

After this Court’s decision in American Electric

Power Co. v. Connecticut, lawyers, activists, and funders joined in La Jolla, California in 2012 to brainstorm new litigation strategies. See generally Seth

Shulman, Establishing Accountability for Climate

Change Damages: Lessons from Tobacco Control,

Summary of the Workshop on Climate Accountability, Public Opinion, and Legal Strategies 11 (Union

of Concerned Scientist and Climate Accountability

Inst., Oct. 2012). The “ultimate goal” of at least some

participants was to “shut down” the coal, gas, and oil

industries. Id. at 13. To the extent participants identified a role for Congress, it was aid their state-based

litigation efforts. Participants suggested using Congress’s subpoena power to obtain internal documents

from companies that could be used in litigation and

employing committee hearings to turn public opinion

against the defendants. See id. at 11, 21, 28.

Since that time, activists and attorneys have given private briefings to state attorneys general, urging state officials to initiate climate change-related

investigations of energy producers. See, e.g., Terry

Wade, U.S. Prosecutors Met With Climate Groups as

Exxon Probes Expanded, Reuters, Apr. 15, 2016.

There are now at least twenty pending climate

change lawsuits filed by states and political subdivisions. See Bruce Gil, U.S. Cities and States Are Suing Big Oil Over Climate Change. Here’s What the

Claims Say and Where They Stand, Frontline, PBS,

Aug. 1, 2022. The lawsuits generally seek to make

the energy industry cover costs that governments

have spent on climate-resiliency projects in response

to rising sea levels and more frequent and intense

storms. See id. They single out a select group of

businesses and ignore the collective contributions to

climate change by the rest of the world.

Since 2017, some state attorneys general have

deputized outside-funded “fellows” to develop climate

change litigation. 2 Often named special assistant atSee State Energy & Environmental Impact Center, NYU

School of Law, Fellows Program, https:// stateimpactcenter.org/

about/fellows-program (last visited Sept. 5, 2023).

torneys general (SAAGs), their salaries and benefits

are not covered by the state, as other government attorneys. Rather, a grant from Bloomberg Philanthropies to the New York University School of Law State

Energy and Environmental Impact Center (SEEIC)

compensates these attorneys. See id. A condition of

receiving a fellow—which is offered through an application to any attorney general who is interested in

having his or her staff supplemented at no cost to the

state—is that the attorney general designate the fellow “to advancing clean energy, climate, and environmental matters of regional or national importance.” 3 At least ten state attorneys general have

received Bloomberg-funded SAAGs. See Lesley

Clark, State AGs Rebuked for ‘Soliciting Billionaires’

in Climate Cases, E&E News by Politico, June 3,

2022. Minnesota has reportedly received two of these

fellows. See Christin Nielsen, AG Ellison Exceeded

Authority By Hiring Privately Funded Lawyers to

Sue Big Oil, Critic Says, Legal Newsline, Apr. 13,

2021. When Minnesota filed the instant lawsuit, two

privately-funded fellows were listed as representing

the state on the complaint. See Collin Anderson,

Keith Ellison Moves to Shield Records on Controversial Legal Scheme, Free Beacon, July 12, 2021. 4

3 State Energy & Environmental Impact Center, NYU School of

Law, Fellows Program, How to Hire an NYU Law Fellow - AG

Offices,

https://stateimpactcenter.org/about/fellows-program/

hire (last visited Sept. 18, 2023) (emphasis added).

4 Unsurprisingly, this arrangement in which an outside group

embeds staff in a state attorney general’s office has raised significant controversy in Minnesota and other states. See, e.g.,

Annette Meeks, Op-ed, Agenda Dollars are Buying State Government Jobs, Star Tribune, Jan. 27, 2021; see also Tyler Olson,

Bloomberg’s ‘Mercenaries’: Billionaire Dem Funding Network of

The coordinated, national nature of these lawsuits continues as most are litigated by the same private law firm – the firm representing Minnesota in

this case – rather than through the government’s

publicly-funded attorneys. See Sher Edling LLP,

Climate

Damage

and

Deception,

https://

www.sheredling.com/cases/climate-cases/ (last visited Sept. 5, 2023) (listing representation of four

states, the District of Columbia, and fifteen cities

and counties in climate change litigation); see also

Paul Gazelka, Op-ed, Minnesota’s Climate Lawsuit is

a Dangerous Gambit, Minn. Post, May 1, 2023 (observing that “[t]he Minnesota lawsuit is just one of

more than two dozen carbon copy cases that national

law firms and advocacy groups have orchestrated

across the country.”). State and local governments

often retain the outside attorneys that bring these

suits on a contingency-fee basis, adding a profit motive to the litigation. In this instance, for example,

the San Francisco-based law firm representing Minnesota, retained as “special attorneys,” are slated to

receive 16.67% of the first $150 million of the state’s

recovery and 7.5% of any portion above that level.

See State of Minnesota, Office of the Attorney General, Special Attorney Appointment, Exh. A: Fee

Agreement ¶ 6 (Aug. 2020). With eyes on a massive

settlement, the law firm could receive tens or hundreds of millions of dollars.

Climate Lawyers Inside State AG Offices, Fox News, Feb. 18,

2020; Am. Tort Reform Ass’n, The Advocacy Group Within: The

Embedding of Outside Lawyers and Activists Within the Government (2019); Christopher C. Horner, Law Enforcement for

Rent (Competitive Enterprise Inst. 2018); Editorial, State AGs

for Rent, Wall St. J., Nov. 6, 2018.

While private law firms await a contingency fee,

outside advocacy groups have subsidized the state

and local climate change litigation. For example, the

New Venture Fund’s Collective Action Fund for Accountability, Resilience and Adaptation (CAF), has

long funded climate litigation. See MacArthur

Found., Grant Search, New Venture Fund (last visited Sept. 5, 2023) (reporting a $3 million grant to

CAF in 2020 that “renews support for legal processes

associated with a variety of lawsuits filed in support

of states, counties and cities affected by climate

change”). Other foundations, in turn, contribute to

CAF to support the litigation efforts. For example,

recent email correspondence revealed that a foundation associated with actor Leonardo DiCaprio is a

“serious supporter” of Sher Edling’s ongoing climate

change litigation. See Thomas Catenacci, Leonardo

DiCaprio Funneled Grants Through Dark Money

Group to Fund Climate Nuisance Lawsuits, Emails

Show, Fox News, Aug. 15, 2022. Some have raised

concern with an arrangement in which tax-exempt

groups funded through charitable donations back a

private law firm, removing some risk involved in

pursuing the litigation, when the law firm stands to

later profit from a contingency fee should there be a

settlement or judgment. See id.

In sum, the development, funding, and litigation

of the climate change suits is a further reason to be

skeptical that these claims are matters of state tort

or consumer law, rather than part of a broad, coordinated attempt to set national environmental policy.

This Court should grant certiorari to soundly reject

efforts to trespass on the functions of Congress and

the Executive Branch by bringing climate change

lawsuits under false tort law and consumer labels.

CONCLUSION

Deciding these cases in neutral federal forum

provides a basic safeguard to ensuring that states

and localities, agenda-driven advocacy groups, and

financially-interested private attorneys do not place

their interests above that of the federal government.

The claims alleged in this and similar lawsuits raise

unique issues of environmental, energy, and economic policy that impact all Americans. Ultimately, efforts to address climate change require national and

global solutions, developed through legitimate democratic means, rather than faux state-based litigation.

For these reasons, amicus curiae respectfully request that this Court grant the Petition.

Respectfully submitted,