Petition for Writ of Certiorari — Sunoco LP, et al., Petitioners v. City and County of Honolulu, Hawaii, et al.
Supreme Court briefFeb 28, 2024
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No.
In the Supreme Court of the United States
SUNOCO LP, ET AL., PETITIONERS
v.
CITY AND COUNTY OF HONOLULU, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF HAWAII
PETITION FOR A WRIT OF CERTIORARI
THEODORE J. BOUTROUS, JR.
GIBSON, DUNN
& CRUTCHER LLP
333 South Grand Street
Los Angeles, CA 90071
THOMAS G. HUNGAR
GIBSON, DUNN
& CRUTCHER LLP
1050 Connecticut
Avenue, N.W.
Washington, DC 20036
KANNON K. SHANMUGAM
Counsel of Record
WILLIAM T. MARKS
JAKE L. KRAMER
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street, N.W.
Washington, DC 20006
(202) 223-7300
kshanmugam@paulweiss.com
THEODORE V. WELLS, JR.
DANIEL J. TOAL
YAHONNES CLEARY
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
(additional counsel on signature page)
QUESTION PRESENTED
Whether federal law precludes state-law claims seeking redress for injuries allegedly caused by the effects of
interstate and international greenhouse-gas emissions on
the global climate.
(I)
PARTIES TO THE PROCEEDING
AND CORPORATE DISCLOSURE STATEMENT
Petitioners are Sunoco LP; Aloha Petroleum, Ltd.;
Aloha Petroleum LLC; Exxon Mobil Corporation; ExxonMobil Oil Corporation; Chevron Corporation; Chevron
U.S.A. Inc.; Woodside Energy Hawaii Inc.; BP p.l.c.; BP
America Inc.; Marathon Petroleum Corp.; ConocoPhillips; ConocoPhillips Company; Phillips 66; and Phillips 66
Company.
Petitioner Sunoco LP is a publicly traded master limited partnership. Sunoco LP and its general partner,
Sunoco GP LLC, are subsidiaries of Energy Transfer Operating, L.P., and Energy Transfer LP, which are publicly
traded limited partnerships. No other publicly held corporation owns 10% or more of Sunoco LP’s stock, and no
publicly held company owns 10% or more of Energy
Transfer Operating L.P.’s or Energy Transfer LP’s stock.
Petitioner Aloha Petroleum, Ltd., and petitioner
Aloha Petroleum LLC are wholly owned subsidiaries of
Sunoco LP.
Petitioner Exxon Mobil Corporation has no parent
corporation, and no publicly held company owns 10% or
more of its stock.
Petitioner ExxonMobil Oil Corporation is a wholly
owned indirect subsidiary of Exxon Mobil Corporation.
Petitioner Chevron Corporation has no parent corporation, and no publicly held company owns 10% or more of
its stock.
Petitioner Chevron U.S.A. Inc. is an indirect subsidiary of Chevron Corporation.
Petitioner Woodside Energy Hawaii Inc. is a wholly
owned indirect subsidiary of Woodside Energy Group
Ltd., a publicly traded company. No publicly held company owns 10% or more of Woodside Energy Group Ltd.’s
stock.
(II)
III
Petitioner BP p.l.c. has no parent corporation, and no
publicly held company owns 10% or more of its stock.
Petitioner BP America Inc. is a wholly owned indirect
subsidiary of BP p.l.c.
Petitioner Marathon Petroleum Corp. has no parent
corporation, and no publicly held company owns 10% or
more of its stock.
Petitioner ConocoPhillips has no parent corporation,
and no publicly held company owns 10% or more of its
stock.
Petitioner ConocoPhillips Company is a wholly owned
subsidiary of ConocoPhillips.
Petitioner Phillips 66 has no parent corporation, and
no publicly held company owns 10% or more of its stock.
Petitioner Phillips 66 Company is wholly owned by
Phillips 66.
Respondents are the City and County of Honolulu; the
Honolulu Board of Water Supply; Shell plc; Shell USA,
Inc.; Shell Oil Products Company LLC; BHP Group Limited; and BHP Group plc. *
Pursuant to Rule 12.6, petitioners have notified the Clerk that
they believe that BHP Group Limited and BHP Group plc have no
interest in the outcome of the petition. Petitioners have served a copy
of that notice on all parties to the proceedings below.
*
RELATED PROCEEDINGS
United States District Court (D. Haw.):
City & County of Honolulu, et al. v. Sunoco LP, et al.,
Civ. No. 20-163 (Feb. 12, 2021)
United States Court of Appeals (9th Cir.):
City & County of Honolulu, et al. v. Sunoco LP, et al.,
No. 21-15313 (July 7, 2022)
United States Supreme Court:
Sunoco LP, et al. v. City & County of Honolulu, et al.,
No. 22-523 (Apr. 24, 2023)
Hawaii Circuit Court (1st Cir.):
City & County of Honolulu, et al. v. Sunoco LP, et al.,
No. 1CCV-20-380 (Mar. 29, 2022) (order denying
motion to dismiss for failure to state a claim)
City & County of Honolulu, et al. v. Sunoco LP, et al.,
No. 1CCV-20-380 (Mar. 31, 2022) (order denying
motion to dismiss for lack of personal jurisdiction)
City & County of Honolulu, et al. v. Sunoco LP, et al.,
No. 1CCV-20-380 (June 3, 2022) (order granting
leave to file an interlocutory appeal)
Hawaii Intermediate Court of Appeals:
City & County of Honolulu, et al. v. Sunoco LP, et al.,
CAAP-22-429 (Mar. 3, 2023) (order granting application to transfer case to the Hawaii Supreme
Court)
Hawaii Supreme Court:
City & County of Honolulu, et al. v. Sunoco LP, et al.,
No. SCAP-22-429 (Oct. 31, 2023)
(IV)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Constitutional provision involved................................................ 2
Statement ...................................................................................... 2
A. Background ...................................................................... 4
B. Facts and procedural history ......................................... 7
Reasons for granting the petition ............................................. 14
A. The decision below creates a conflict on
the question presented .................................................. 14
B. The decision below is incorrect under
this Court’s precedents ................................................. 21
C. The question presented is important
and warrants the Court’s review in this case.............. 30
Conclusion ................................................................................... 34
Appendix A .................................................................................. 1a
Appendix B ................................................................................ 73a
Appendix C ................................................................................ 85a
Appendix D ................................................................................ 86a
TABLE OF AUTHORITIES
Cases:
American Electric Power Co.
5-6, 22-23,
v. Connecticut, 564 U.S. 410 (2011) ............. 26-27, 29, 32
American Insurance Association
v. Garamendi, 539 U.S. 369 (2003) ............................ 7, 27
Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398 (1964)........................................................... 7
Bell v. Cheswick Generating Station,
734 F.3d 188 (3d Cir. 2013),
cert. denied, 572 U.S. 1149 (2014) ............................ 20, 26
Bonaparte v. Appeal Tax Court, 104 U.S. 592 (1882) ...... 22
(V)
VI
Page
Cases—continued:
BP p.l.c. v. Mayor & City Council of Baltimore,
593 U.S. 230 (2021) ........................................................ 2, 8
Brown-Forman Corp. v. Miller,
528 S.W.3d 886 (Ky. 2017) .............................................. 20
Buckman Co. v. Plaintiffs’ Legal Committee,
531 U.S. 341 (2001) .......................................................... 22
City of Milwaukee v. Illinois,
451 U.S. 304 (1981) .....................................6, 16, 19, 23, 28
City of New York v. Chevron Corp.,
3, 5, 7-8, 12,
993 F.3d 81 (2d Cir. 2021) ................... 14-18, 21-22, 25-30
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ............................................................ 2
Coyle v. Smith, 221 U.S. 559 (1911) .................................... 22
Dobbs v. Jackson Women’s Health Organization,
597 U.S. 215 (2022) .......................................................... 13
Franchise Tax Board v. Hyatt,
139 S. Ct. 1485 (2019) .................................................. 5, 22
Freeman v. Grain Processing Corp.,
848 N.W.2d 58 (Iowa),
cert. denied, 574 U.S. 1026 (2014) .................................. 20
Georgia v. Tennessee Copper Co.,
206 U.S. 230 (1907) ............................................................ 6
Goodyear Atomic Corp. v. Miller,
486 U.S. 174 (1988) ............................................................ 2
Illinois v. City of Milwaukee,
406 U.S. 91 (1972) ............................................... 5-6, 15, 23
Illinois v. City of Milwaukee,
731 F.2d 403 (7th Cir. 1984),
cert. denied, 469 U.S. 1196 (1985) ............... 12, 19-21, 28
International Paper Co. v. Ouellette,
6, 13, 20,
479 U.S. 481 (1987) ................................... 22-24, 26, 29, 32
Kansas v. Colorado, 206 U.S. 46 (1907) ............................. 23
Kurns v. Railroad Friction Products Corp.,
565 U.S. 625 (2012) .......................................................... 25
Merrick v. Diageo Americas Supply, Inc.,
805 F.3d 685 (6th Cir. 2015) ..................................... 20, 26
VII
Page
Cases—continued:
Minnesota v. American Petroleum Institute,
63 F.4th 703 (8th Cir. 2023),
cert. denied, No. 23-168,
2024 WL 72389 (Jan. 8, 2024) ........................................... 4
National Pork Producers Council v. Ross,
598 U.S. 356 (2023) .......................................................... 22
New York State Rifle & Pistol Association, Inc.
v. Bruen, 597 U.S. 1 (2022) ............................................. 13
North Carolina ex rel. Cooper
v. Tennessee Valley Authority,
615 F.3d 291 (4th Cir. 2010) ................................ 20-21, 26
Suncor Energy (U.S.A.) Inc. v. Board of County
Commissioners of Boulder County,
143 S. Ct. 78 (2022),
cert. denied, 143 S. Ct. 1795 (2023)............................... 8-9
Texas Industries, Inc. v. Radcliff Materials,
Inc., 451 U.S. 630 (1981) .................................... 4-5, 21, 28
United States v. Bevans,
16 U.S. (3 Wheat.) 336 (1818) ......................................... 22
West Virginia v. EPA, 597 U.S. 697 (2022) ....................... 13
Zschernig v. Miller, 389 U.S. 429 (1968)........................ 7, 27
Constitution, statutes, and regulations:
U.S. Const.:
Art. I, § 8 .......................................................................... 27
Art. I, § 10 ........................................................................ 27
Art. II, § 2 ........................................................................ 27
Art. II, § 3 ........................................................................ 27
Art. IV, § 3 ....................................................................... 22
Art. VI, cl. 2 ....................................................................... 2
Clean Air Act,
3, 6, 8, 11-13,
42 U.S.C. 7401 et seq. .......................... 16-18, 20, 23-26, 29
42 U.S.C. 7411(b) ............................................................. 26
42 U.S.C. 7411(d) ............................................................. 26
42 U.S.C. 7416.................................................................. 26
42 U.S.C. 7521(a)(1) ........................................................ 26
VIII
Page
Statutes and regulations—continued:
42 U.S.C. 7521(a)(2) ........................................................ 26
42 U.S.C. 7521(a)(3)(E) ................................................... 26
42 U.S.C. 7547(a)(1) ........................................................ 26
42 U.S.C. 7547(a)(5) ........................................................ 26
42 U.S.C. 7571(a)(2)(A) ................................................... 26
42 U.S.C. 7604(e) ............................................................. 26
Clean Water Act,
33 U.S.C. 1251 et seq. ................ 6, 12, 19-20, 23-24, 26, 29
33 U.S.C. 1365(e) ............................................................. 26
33 U.S.C. 1370.................................................................. 26
28 U.S.C. 1257(a) .................................................................... 2
40 C.F.R. 86.1818-12 ............................................................ 26
40 C.F.R. 86.1819-14 ............................................................ 26
Haw. Rev. Stat. § 602-58(a) ................................................. 11
Miscellaneous:
87 Fed. Reg. 74,702 (Dec. 6, 2022) ...................................... 26
Press Statement, Antony J. Blinken,
U.S. Secretary of State,
The United States Officially Rejoins
the Paris Agreement (Feb. 19, 2021) ............................ 31
In the Supreme Court of the United States
No.
SUNOCO LP, ET AL., PETITIONERS
v.
CITY AND COUNTY OF HONOLULU, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF HAWAII
PETITION FOR A WRIT OF CERTIORARI
Sunoco LP; Aloha Petroleum, Ltd.; Aloha Petroleum
LLC; Exxon Mobil Corporation; ExxonMobil Oil Corporation; Chevron Corporation; Chevron U.S.A. Inc.; Woodside Energy Hawaii Inc.; BP p.l.c.; BP America Inc.; Marathon Petroleum Corp.; ConocoPhillips; ConocoPhillips
Company; Phillips 66; and Phillips 66 Company respectfully petition for a writ of certiorari to review the judgment of the Hawaii Supreme Court in this case.
OPINIONS BELOW
The opinion of the Hawaii Supreme Court (App., infra,
1a-72a) is reported at 537 P.3d 1173. The opinion of the
trial court (App., infra, 73a-84a) is unreported.
(1)
2
JURISDICTION
The judgment of the Hawaii Supreme Court was entered on October 31, 2023. On January 16, 2024, Justice
Kagan extended the time within which to file a petition for
a writ of certiorari until February 28, 2024. The jurisdiction of this Court is invoked under 28 U.S.C. 1257(a). See
Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 178-180
(1988); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482483 (1975).
CONSTITUTIONAL PROVISION INVOLVED
Article VI, clause 2, of the United States Constitution
provides:
This Constitution, and the laws of the United States
which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority
of the United States, shall be the supreme law of the
land; and the judges in every state shall be bound
thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding.
STATEMENT
Rarely does a case of such extraordinary importance
to one of the Nation’s most vital industries come before
this Court. Energy companies that produce, sell, and
market fossil fuels are facing numerous lawsuits in state
courts across the Nation seeking billions of dollars in damages for injuries allegedly caused by global climate
change. Having litigated the question whether those
cases were removable to federal court—including before
this Court in BP p.l.c. v. Mayor & City Council of Baltimore, 593 U.S. 230 (2021)—the question now is whether
the plaintiffs’ claims can legitimately proceed on the merits.
3
This case presents the Court with its only foreseeable
opportunity in the near future to decide a dispositive
question that is arising in every climate-change case:
whether federal law precludes state-law claims seeking
redress for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on
the global climate. After the decision below, there is now
a clear conflict on that question.
Petitioners are energy companies that produce or sell
fossil fuels; the plaintiff respondents are the municipal
government of Honolulu, Hawaii, and the local water utility board. Like many other state and local governments
in similar cases across the country, respondents filed this
action against petitioners in local state court, asserting
claims purportedly arising under state law to recover for
harms that respondents allege they have sustained (and
will sustain) because of the physical effects of global climate change.
After unsuccessfully seeking to remove the case to
federal court, petitioners moved to dismiss the complaint
on the ground, inter alia, that federal law precludes the
invocation of state law in this context. The trial court denied petitioners’ motion.
The Hawaii Supreme Court affirmed. The court
acknowledged this Court’s precedents holding that interstate emissions constitute an inherently federal area exclusively governed by federal law, including federal common law in the absence of applicable statutory law. But
the court then concluded that, because Congress had displaced any remedy previously available under federal
common law by enacting the Clean Air Act, state law was
presumptively competent to regulate in this inherently
federal area. In so holding, the Hawaii Supreme Court
expressly declined to follow the Second Circuit’s decision
in City of New York v. Chevron Corp., 993 F.3d 81 (2021),
4
which held that federal law precluded materially identical
state-law claims that sought damages from many of the
same fossil-fuel producers sued here for the alleged effects of climate change. The Hawaii Supreme Court further held that, despite the complaint’s focus on the physical effects of climate change, interstate and international
emissions were not the source of respondents’ injuries;
petitioners’ marketing and public statements were.
The Hawaii Supreme Court’s decision was incorrect,
and it provides this Court with the ideal opportunity to
address whether the state-law claims asserted in this nationwide litigation are even allowable before the energy
industry is threatened with potentially enormous judgments. Contrary to the Hawaii Supreme Court’s decision,
state law can only provide redress for harms caused by instate sources of emissions. And as one prominent judge
has put it, “there is no hiding the obvious” that climatechange claims like respondents’ present “a clash over
worldwide greenhouse gas emissions and slowing global
climate change.” Minnesota v. American Petroleum Institute, 63 F.4th 703, 717 (8th Cir. 2023) (Stras, J., concurring) (citation omitted), cert. denied, No. 23-168, 2024 WL
72389 (Jan. 8, 2024).
Without this Court’s intervention, years might pass
before another opportunity to address this pressing question comes along. The Court should grant review and clarify whether state law is competent to impose the costs of
global climate change on a subset of the world’s energy
producers chosen by respondents.
A. Background
1. As this Court has long explained, there are certain
narrowly defined areas in which “our federal system does
not permit the controversy to be resolved under state
law.” Texas Industries, Inc. v. Radcliff Materials, Inc.,
5
451 U.S. 630, 640-641 (1981). Among those areas are ones
where “the interstate or international nature of the controversy makes it inappropriate for state law to control.”
Ibid. (citation omitted). In those areas, “the Constitution
implicitly forbids” States from “apply[ing] their own law,”
and disputes in those inherently federal areas must “turn
on federal rules of law.” Franchise Tax Board v. Hyatt,
139 S. Ct. 1485, 1498 (2019). Put another way, “the basic
scheme of the Constitution” “demands” a federal rule of
decision in such inherently federal areas. American Electric Power Co. v. Connecticut, 564 U.S. 410, 421 (2011).
When Congress has not created a rule of decision for
a particular question arising in an inherently federal area,
federal courts have the power to prescribe a rule as a matter of federal common law. See, e.g., Texas Industries,
451 U.S. at 640-641. Those court-created rules are subject
to displacement by statute, however, because “it is primarily the office of Congress, not the federal courts, to
prescribe national policy in areas of special federal interest.” American Electric Power, 564 U.S. at 423-424.
2. One established category of inherently federal
claims is redress for injuries allegedly caused by interstate pollution. For over a century, “a mostly unbroken
string of cases has applied federal law to disputes involving” such claims. City of New York, 993 F.3d at 91 (collecting cases). As this Court has stated, federal law must
govern such claims because they “touch[] basic interests
of federalism” and implicate the “overriding federal interest in the need for a uniform rule of decision.” Illinois v.
City of Milwaukee (Milwaukee I), 406 U.S. 91, 105 n.6
(1972).
In the absence of any applicable federal statute, courts
previously applied federal common law to claims seeking
redress for interstate air and water pollution. See, e.g.,
6
Milwaukee I, 406 U.S. at 103; Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907). But Congress later enacted comprehensive legislation governing interstate air
and water pollution—namely, the Clean Air Act and Clean
Water Act.
This Court addressed the effect of the Clean Water
Act on the preexisting federal common law in City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304 (1981).
There, the Court held that the Clean Water Act precluded
federal-common-law claims seeking to abate a nuisance
created by water pollution commencing in another State.
Id. at 317. Then, in International Paper Co. v. Ouellette,
479 U.S. 481 (1987), the Court addressed the role of state
law in the wake of that statutory displacement. The Court
held that, in light of the Clean Water Act’s “pervasive regulation” and “the fact that the control of interstate pollution is primarily a matter of federal law,” the only permissible state-law actions seeking redress for interstate water pollution are “those specifically preserved by the Act.”
Id. at 492 (citation omitted). The Court then held that the
Clean Water Act preserved only suits under the law of the
State in which the source of pollution at issue was located.
See id. at 487-498.
In American Electric Power, supra, the Court addressed the effect of the Clean Air Act on the federal common law governing air pollution. The Court held that the
Act displaced nuisance claims under federal common law
seeking the abatement of greenhouse-gas emissions from
another State. See 564 U.S. at 424. Because the Clean
Air Act “ ‘speaks directly’ to emissions of carbon dioxide
from the defendants’ plants,” the Court saw “no room for
a parallel track” under federal common law. Id. at 424425. The Court left open the question whether “the law of
each State where the defendants operate powerplants”
could be applied. Id. at 429.
7
3. Another established category of inherently federal
claims are those that threaten to “impair the effective exercise of the Nation’s foreign policy.” Zschernig v. Miller,
389 U.S. 429, 440 (1968). As the Court has explained, numerous constitutional and statutory provisions “reflect[]
a concern for uniformity” and “a desire to give matters of
international significance to the jurisdiction of federal institutions.” Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398, 427 n.25 (1964). Accordingly, “at some point an
exercise of state power that touches on foreign relations
must yield to the National Government’s policy.” American Insurance Association v. Garamendi, 539 U.S. 396,
413 (2003) (citation omitted).
B. Facts And Procedural History
1. Since 2017, state and local governments have filed
lawsuits in state courts across the country against private
energy companies, alleging that the companies’ worldwide extraction, production, promotion, marketing, and
sale of fossil fuels has contributed to global climate change
and thereby caused injury. Dozens of actions have been
brought under this theory, including in San Francisco,
New York City, Baltimore, and Boulder. 1 Additional suits
continue to be filed.
The litigation in these cases initially focused on the
question of jurisdiction. The defendants removed the lawsuits to federal court, and the actions were largely remanded to state court. The defendants appealed. The
See, e.g., City & County of San Francisco v. BP p.l.c., No. CGC17-561370 (Cal. Super. Ct.); Mayor & City Council of Baltimore v.
BP p.l.c., No. 18-4219 (Balt. Cir. Ct.); Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 2018-CV30349 (Colo. Dist. Ct.); City of New York v. Exxon Mobil Corp., No.
451071/2021 (N.Y. Sup. Ct.).
1
8
cases eventually reached this Court on the question of appellate jurisdiction; the Court agreed with the defendants’
position and remanded the cases to allow the courts of appeals to address the defendants’ other grounds for removal. See BP, 593 U.S. at 238-239, 246-247.
At roughly the same time, the Second Circuit issued
its decision in City of New York, supra. While the claims
in that case were substantively similar to those in other
climate-change-related cases, there was no question of jurisdiction in the case, because the plaintiff filed directly in
federal court based on diversity jurisdiction. See 993 F.3d
at 81, 94. The Second Circuit thus addressed the merits
of the plaintiff ’s climate-change claims, unanimously holding that federal law precludes state-law claims seeking redress for injuries allegedly caused by global climate
change. The court concluded that the claims had to be
brought under federal common law, but that the Clean Air
Act had displaced any such claims with respect to emissions in the United States, and that “foreign policy concerns foreclose[d]” a “cause of action targeting emissions
emanating from beyond our national borders.” Id. at 101.
The court rejected the notion that the displacement of federal common law allowed state-law claims to proceed, except to the extent that a plaintiff is seeking relief for injuries caused by in-state emissions. See id. at 99-100. But
the plaintiff in City of New York was “not seek[ing] to take
advantage of this slim reservoir of state common law.” Id.
at 100. The plaintiff did not seek this Court’s review.
In the wake of this Court’s decision in BP, the courts
of appeals in the removal cases rejected the defendants’
jurisdictional arguments. The defendants sought review
from this Court; the Court called for the views of the Solicitor General in one case but then denied certiorari, with
Justice Kavanaugh noting his dissent. See, e.g., Suncor
Energy (U.S.A.) Inc. v. Board of County Commissioners
9
of Boulder County, 143 S. Ct. 78 (2022), cert. denied, 143
S. Ct. 1795 (2023). The cases are now largely proceeding
in state courts across the country.
2. Petitioners in this case are 15 energy companies
that extract, produce, distribute, or sell fossil fuels around
the world. The plaintiff respondents are the City and
County of Honolulu and the Honolulu Board of Water
Supply.
On March 9, 2020, the City and County of Honolulu
filed a complaint against petitioners in Hawaii state court,
alleging that petitioners have contributed to global climate change, which in turn has caused a variety of harms
in Honolulu. The Honolulu Board of Water Supply later
joined the case as a plaintiff.
Respondents allege that increased greenhouse-gas
emissions around the globe have contributed to a wide
range of climate-change-related effects. In particular, respondents cite “sea level rise and attendant flooding, erosion, and beach loss”; “increased frequency and intensity
of extreme weather events”; “ocean warming and acidification that will injure or kill coral reefs”; “habitat loss of
endemic species”; “diminished availability of freshwater
resources”; and “cascading social, economic, and other
consequences.” Am. Compl. 89, Cir. Ct. Dkt. 45 (Mar. 22,
2021). Respondents allege that those effects have resulted in property damage; “increased planning and preparation costs for community adaptation and resiliency”;
and “decreased tax revenue” because of declines in tourism. Id. at 90.
Respondents contend that “pollution from [petitioners’] fossil fuel products plays a direct and substantial role
in the unprecedented rise in emissions of greenhouse gas
pollution,” which is the “main driver” of global climate
change. Am. Compl. 2. At the same time, respondents
concede that “it is not possible to determine the source of
10
any particular individual molecule of CO2 in the atmosphere attributable to anthropogenic sources because such
greenhouse gas molecules do not bear markers that permit tracing them to their source, and because greenhouse
gasses quickly diffuse and comingle in the atmosphere.”
Id. at 107.
Respondents assert state-law claims for public nuisance, private nuisance, strict liability, failure to warn,
negligent failure to warn, and trespass. Each claim is
premised on the same basic theory of liability: namely,
that petitioners knew that their fossil-fuel products would
cause an increase in greenhouse-gas emissions, yet failed
to warn of that risk and instead engaged in advertising
and other speech to persuade governments and consumers not to take steps designed to reduce or regulate fossilfuel consumption, thereby causing increased emissions
and climate change.
3. Petitioners removed this action to federal court.
The district court granted Honolulu’s motion to remand;
the Ninth Circuit affirmed; and this Court denied certiorari. 39 F.4th 1101 (2022), cert. denied, 143 S. Ct. 1795
(2023).
4. On remand in state court, petitioners moved to dismiss the complaint on two grounds. First, a group of petitioners not resident in Hawaii argued that the court
lacked personal jurisdiction. Second, all of the petitioners
argued that federal law precludes state-law claims seeking redress for injuries allegedly caused by the effects of
interstate greenhouse-gas emissions on the global climate. The trial court denied both motions but granted petitioners’ motion for leave to file an interlocutory appeal.
In authorizing the appeal, the trial court noted that this
case is “unprecedented” and that “[t]he complexity, scope,
time, and cost of discovery and motion practice, let alone
trial, will be enormous.” App., infra, 73a-84a, 86a-90a.
11
5. After briefing was complete in the Hawaii Intermediate Court of Appeals, respondents moved to have the
case transferred to the Hawaii Supreme Court. See Haw.
Rev. Stat. § 602-58(a). The Hawaii Supreme Court accepted the transfer and then affirmed. App., infra, 1a72a, 85a.
a. The Hawaii Supreme Court first addressed the issue of personal jurisdiction. App., infra, 19a-36a. Taking
the allegations in the complaint as true, the court held that
the state long-arm statute authorized the exercise of jurisdiction over the nonresident defendants and that the
exercise of jurisdiction satisfied due process. Ibid. In so
holding, the court rejected petitioners’ argument that a
sufficient connection between the claims and the forum
did not exist because the use of petitioners’ products in
Hawaii could not have injured respondents, as Hawaii accounts for only 0.06% of the world’s carbon-dioxide emissions per year. Id. at 23a-24a.
b. The Hawaii Supreme Court then addressed petitioners’ argument that federal law precludes state-law
claims seeking redress for injuries allegedly caused by
greenhouse-gas emissions. See App., infra, 37a-53a. Although petitioners had framed their arguments in terms
of whether interstate pollution is an inherently federal issue constitutionally committed to the federal government,
the court reframed the argument as whether federal common law preempted respondents’ state-law claims. See
id. at 37a-38a.
The court then concluded that federal common law did
not preempt respondents’ claims because any remedy
available under federal common law had been displaced
by the Clean Air Act. According to the court, because the
federal common law governing interstate-pollution suits
“no longer exists,” the fact that it once governed could
“play[] no part in th[e] court’s preemption analysis.”
12
App., infra, 46a, 47a (citation omitted). “The correct
preemption analysis,” in the court’s view, “requires an examination only of the [Clean Air Act’s] preemptive effect.” Id. at 48a. The court reasoned that petitioners’ contrary argument was incorrect in part because it would
leave respondents with “no viable cause of action under
state or federal law.” Id. at 45a.
The Hawaii Supreme Court expressly declined to follow the Second Circuit’s decision in City of New York.
App., infra, 48a. The court asserted that the Second Circuit had improperly treated “displaced federal common
law” as preempting state law, and it faulted the Second
Circuit for failing to explain why federal law necessarily
governed suits seeking redress for interstate pollution.
Id. at 49a. The court also declined to follow the Seventh
Circuit’s decision in Illinois v. City of Milwaukee (Milwaukee III), 731 F.2d 403, 411 (1984), cert. denied, 469
U.S. 1196 (1985), which reached a similar conclusion as
City of New York in the context of the Clean Water Act.
App., infra, 42a-43a n.9. The court faulted the Seventh
Circuit for failing to apply the presumption against
preemption and instead holding that state law could govern only as expressly permitted by Congress. Ibid.
Separately, the court concluded that, even if federal
common law had not been displaced, it would not govern
respondents’ claims. App., infra, 49a-52a. The court recognized that federal common law governs claims where
“the source of the injury * * * is pollution traveling
from one state to another,” but it asserted that the source
of respondents’ alleged injury was petitioners’ “tortious
marketing conduct,” not “pollution traveling from one
state to another.” App., infra, 50a, 51a. The court did not
attempt to reconcile that characterization with its earlier
recognition that respondents’ theory of liability depends
13
upon petitioners’ conduct allegedly “dr[iving] consumption [of fossil fuels], and thus greenhouse gas pollution,
and thus climate change,” resulting in alleged physical
and economic effects in Honolulu. Id. at 18a (citation
omitted).
c. Finally, the court concluded that the Clean Air Act
did not alone preempt respondents’ claims. App., infra,
53a-66a. The court began its analysis with the presumption against preemption and proceeded to analyze
whether respondents’ state-law claims were subject to
traditional preemption. Id. at 55a-56a. The court concluded that no form of traditional preemption applied, because respondents were only seeking to regulate petitioners’ marketing, and “the source of [respondents’] alleged
injury is not emissions.” Id. at 63a. In so holding, the
court concluded that this Court’s decision in Ouellette was
inapplicable because respondents’ theories of tort liability
involved additional elements beyond the release of emissions. Id. at 61a-63a.
d. Justice Eddins wrote a separate concurring opinion concerning personal jurisdiction. App., infra, 66a-72a.
He stated that “the principles that govern personal jurisdiction arose after 1868” but that today “[a] justice’s personal values and ideas about the very old days suddenly
control the lives of present and future generations.” Id.
at 66a; see id. at 66a-67a (citing Dobbs v. Jackson
Women’s Health Organization, 597 U.S. 215 (2022); New
York State Rifle & Pistol Association, Inc. v. Bruen, 597
U.S. 1 (2022); and West Virginia v. EPA, 597 U.S. 697
(2022)). He questioned whether this Court’s modern personal-jurisdiction precedents would remain intact, stating
that “[s]ome justices feel precedent is advisory.” Id. at
67a, 68a.
14
REASONS FOR GRANTING THE PETITION
This case presents a case-dispositive and recurring
question of extraordinary importance to the energy industry, which is facing dozens of lawsuits seeking billions of
dollars in damages for the alleged effects of global climate
change. That question is whether federal law precludes
the application of state law to claims seeking redress for
injuries allegedly caused by interstate and international
greenhouse-gas emissions. By allowing respondents’
state-law claims to proceed, the Hawaii Supreme Court’s
decision squarely conflicts with the Second Circuit’s decision in City of New York v. Chevron Corp., 993 F.3d 81
(2021), and is in serious tension with the decisions of two
other federal courts of appeals. The Hawaii Supreme
Court’s decision is also inconsistent with this Court’s precedents: regulation of interstate pollution is an inherently
federal area necessarily governed by federal law, and
Congress has not permitted—and indeed has preempted—resort to state law except for claims seeking redress
for harms caused by in-state emissions.
In these cases, state and local governments are attempting to assert control over the Nation’s energy policies by holding energy companies liable for worldwide
conduct in ways that starkly conflict with the policies and
priorities of the federal government. That flouts this
Court’s precedents and basic principles of federalism, and
the Court should put a stop to it. The petition should be
granted.
A. The Decision Below Creates A Conflict On The Question Presented
As the Hawaii Supreme Court recognized, its decision
squarely conflicts with the Second Circuit’s decision in
City of New York, which held that federal law precluded
materially identical state-law claims. The decision below
15
is also inconsistent with decisions of the Fourth and Seventh Circuits.
1. In City of New York, a municipal government sued
a group of energy companies in federal court, alleging that
the defendants (including several of the petitioners here)
were liable for injuries allegedly caused by the contribution of interstate and international greenhouse-gas emissions to global climate change. As here, the plaintiff asserted claims for public nuisance, private nuisance, and
trespass, and sought relief in the form of abatement and
damages. See 993 F.3d at 88. And as here, the complaint
in City of New York alleged that the defendants had
“known for decades that their fossil fuel products pose a
severe risk to the planet’s climate” but had “downplayed
the risks and continued to sell massive quantities of fossil
fuels, which has caused and will continue to cause significant changes” to the climate. Id. at 86-87.
The question before the Second Circuit was “whether
municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by
global greenhouse gas emissions.” 993 F.3d at 85. The
Second Circuit unanimously held that “the answer is ‘no.’ ”
Id. at 85, 92.
The Second Circuit began its analysis by noting that,
“[f]or over a century, a mostly unbroken string of cases
has applied federal law to disputes involving interstate air
or water pollution.” 993 F.3d at 91. As the court explained, that is because “such quarrels often implicate two
federal interests that are incompatible with the application of state law”: the “overriding need for a uniform rule
of decision” on matters influencing national energy and
environmental policy, and “basic interests of federalism.”
Ibid. (alterations omitted) (quoting Illinois v. City of Milwaukee (Milwaukee I), 406 U.S. 91, 105 n.6 (1972)).
16
In the Second Circuit’s view, claims seeking to hold defendants liable for injuries arising from “the cumulative
impact of conduct occurring simultaneously across just
about every jurisdiction on the planet” are far too
“sprawling” for state law to govern. 993 F.3d at 92. The
court reasoned that application of state law to the plaintiff ’s claims would “risk upsetting the careful balance that
has been struck between the prevention of global warming, a project that necessarily requires national standards
and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” Id. at 93.
The Second Circuit rejected the plaintiff ’s argument
that displacement by the Clean Air Act of any remedy under federal common law allows state law to govern. See
993 F.3d at 98. “[That] position is difficult to square with
the fact that federal common law governed this issue in
the first place,” the court reasoned, because “where ‘federal common law exists, it is because state law cannot be
used.’ ” Ibid. (quoting City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304, 313 n.7 (1981)). “[S]tate law does
not suddenly become presumptively competent,” the
court continued, “to address issues that demand a unified
federal standard simply because Congress saw fit to displace a federal court-made standard with a legislative
one.” Ibid. Such an outcome, the Second Circuit concluded, is “too strange to seriously contemplate.” Id. at
98-99.
The Second Circuit understood Congress to have the
power to “grant [S]tates the authority to operate in an
area of national concern,” but “resorting to state law on a
question previously governed by federal common law is
permissible only to the extent authorized by federal statute.” 993 F.3d at 99 (internal quotation marks, alterations, and citations omitted). The court concluded that the
17
Clean Air Act “does not authorize the type of state-law
claims” the plaintiff was pursuing. Ibid. In the Second
Circuit’s view, the Act permitted only actions brought under “the law of the [pollution’s] source state,” and the
plaintiff was not proceeding under that “slim reservoir of
state common law.” Id. at 100.
The Second Circuit further explained that the Clean
Air Act did not displace federal common law with respect
to claims for harms caused by international emissions, because the Act “does not regulate foreign emissions.” 993
F.3d at 95 n.7, 101. But the court concluded that “condoning an extraterritorial nuisance action” for global climate
change “would not only risk jeopardizing our [N]ation’s
foreign policy goals but would also seem to circumvent
Congress’s own expectations and carefully balanced
scheme of international cooperation on a topic of global
concern.” Id. at 103.
2. The decision below conflicts with City of New York.
Both cases involved nuisance and trespass claims asserted
under state law and premised on the contribution of defendants’ conduct to interstate and international greenhouse-gas emissions.
Like the Second Circuit, the Hawaii Supreme Court
recognized that the Clean Air Act displaced any “federal
common law action for interstate pollution suits.” App.,
infra, 44a. But the Hawaii Supreme Court proceeded to
hold that, after statutory displacement, state law was presumptively competent to govern such actions concerning
interstate and international pollution unless the Clean Air
Act demonstrated Congress’s “clear and manifest purposes” to “supersede[]” state law. Id. at 55a; see id. at
45a-49a. By contrast, the Second Circuit reached the opposite conclusion, holding that state law was presumptively incompetent to govern materially identical claims
unless Congress specifically preserved the applicable
18
state-law claims in question. Notably, the Hawaii Supreme Court acknowledged that the Second Circuit had
reached a contrary result on similar claims, but it expressly declined to follow the Second Circuit’s decision.
Id. at 48a-49a.
The Hawaii Supreme Court also failed to distinguish
between the interstate and international aspects of respondents’ claims, holding that the Clean Air Act displaced federal common law with respect to both aspects.
See App., infra, 39a-44a. By contrast, the Second Circuit
squarely held that “the Clean Air Act cannot displace
* * * federal common law claims to the extent that they
seek recovery for harms caused by foreign emissions,”
and it concluded instead that “foreign policy concerns
foreclose” such claims. 993 F.3d at 101.
In further conflict with the Second Circuit’s decision,
the Hawaii Supreme Court held that respondents’ materially identical claims did not arise in an inherently federal
area. See App., infra, 49a-52a. In the Hawaii Supreme
Court’s view, the inherently federal area of interstate pollution covers only claims where “the source of the injury
* * * is pollution traveling from one state to another,”
not “failure to warn and deceptive promotion.” Id. at 50a,
52a. But the complaint in City of New York likewise alleged that the defendants’ promotion and marketing of
their products caused injury by increasing greenhousegas emissions. See 993 F.3d at 86-87. The Second Circuit
nevertheless concluded that the plaintiff was seeking relief “precisely because fossil fuels emit greenhouse gases”
and thereby exacerbate climate change, and it thus declined to allow the plaintiff to “disavow[] any intent to address emissions” while “identifying such emissions” as the
source of its harm. Id. at 91.
3. The decision below is also inconsistent with the decisions of two other federal courts of appeals that have
19
held that the law of one State cannot govern claims seeking redress for injuries allegedly caused by interstate pollution emanating from another State.
a. In Illinois v. City of Milwaukee (Milwaukee III),
731 F.2d 403 (7th Cir. 1984), cert. denied, 469 U.S. 1196
(1985), the State of Illinois filed nuisance claims under
federal and state common law against a municipality for
allegedly polluting Lake Michigan. While the action was
pending, Congress enacted comprehensive amendments
to the Clean Water Act, and this Court held that those
amendments had displaced the remedy previously available under federal common law. See Milwaukee II, 451
U.S. at 317-319.
On remand from this Court, the Seventh Circuit faced
the question whether Illinois’s state-law claims could proceed in light of the displacement of federal common law.
See 731 F.2d at 406. The Seventh Circuit held that they
could not. As the Seventh Circuit explained, under this
Court’s precedents, “the basic interests of federalism and
the federal interest in a uniform rule of decision in interstate pollution disputes required the application of federal
law.” Id. at 407. Although Congress had displaced the
cause of action previously available under federal common
law, the court reasoned that the displacement “did nothing to undermine” the “reasons why the [S]tate claiming
injury cannot apply its own state law to out-of-state discharges.” Id. at 410. The court thus held that “federal law
must govern * * * except to the extent that the [Clean
Water Act] authorizes resort to state law.” Id. at 411. Because Congress had not preserved state-law claims related to out-of-state sources, the Seventh Circuit determined that federal law precluded Illinois’s claims. See id.
at 413.
20
b. The Fourth Circuit reached a similar result in
North Carolina ex rel. Cooper v. Tennessee Valley Authority, 615 F.3d 291 (2010). There, the State of North
Carolina sued the Tennessee Valley Authority (TVA) over
emissions from TVA plants in Alabama and Tennessee.
See id. at 296. The district court found that the emissions
created a public nuisance under North Carolina law and
entered an injunction in the State’s favor. See ibid.
The Fourth Circuit reversed. It reasoned that the
“comprehensive” system of federal statutes and regulations governing air pollution left little room for nuisance
actions under state law, and it concluded that North Carolina was improperly seeking to “appl[y] home state law
extraterritorially.” 615 F.3d at 296, 298. Applying this
Court’s decision in International Paper Co. v. Ouellette,
479 U.S. 481 (1987), the Fourth Circuit concluded that the
claims could proceed only under the law of the States in
which the TVA plants were located. See 615 F.3d at 308309; see also Merrick v. Diageo Americas Supply, Inc.,
805 F.3d 685, 692 (6th Cir. 2015) (agreeing that Ouellette’s
interpretation of the Clean Water Act’s saving clauses applies to the Clean Air Act’s saving clauses); Bell v. Cheswick Generating Station, 734 F.3d 188, 196-197 (3d Cir.
2013) (same), cert. denied, 572 U.S. 1149 (2014); Freeman
v. Grain Processing Corp., 848 N.W.2d 58, 80 (Iowa)
(same), cert. denied, 574 U.S. 1026 (2014); Brown-Forman Corp. v. Miller, 528 S.W.3d 886, 892-893 (Ky. 2017)
(same).
c. Although Milwaukee III and Cooper did not involve claims seeking redress for injuries allegedly caused
by interstate greenhouse-gas emissions, both cases reflect the broader principle that state law can govern
claims seeking redress for interstate pollution only to the
extent permitted by federal statute.
21
The Hawaii Supreme Court’s decision is inconsistent
with that principle. The Hawaii Supreme Court concluded that, after the statutory displacement of any remedy under federal common law, state law presumptively
governs any lawsuit seeking redress for interstate emissions. Indeed, the court specifically rejected the Seventh
Circuit’s decision in Milwaukee III on the ground that it
“ignores the presumption that state laws and claims are
not preempted absent ‘a clear and manifest purpose of
Congress’ to do so.” App., infra, 42a n.9 (citation omitted).
As a result, not only does the Hawaii Supreme Court’s
decision squarely conflict, on materially identical claims,
with the decision in City of New York; it also cannot be
reconciled with the decisions in Milwaukee III and
Cooper. In light of that disagreement, further review is
plainly warranted.
B. The Decision Below Is Incorrect Under This Court’s
Precedents
Respondents seek to impose damages on petitioners
for injuries allegedly caused by the effect of interstate and
international greenhouse-gas emissions on global climate
change. Those claims fall squarely within the inherently
federal areas of interstate pollution and foreign affairs
and cannot proceed under state law. The Hawaii Supreme
Court’s contrary holding was incorrect and conflicts with
this Court’s precedents.
1. Although state law is presumptively competent to
govern a wide variety of issues in our federal system,
there are certain narrowly defined areas in which “our
federal system does not permit the controversy to be resolved under state law.” Texas Industries, Inc. v. Radcliff
Materials, Inc., 451 U.S. 630, 641 (1981). In such “inher-
22
ently federal areas,” “no presumption against pre-emption obtains.” Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 348 (2001).
For over a century, this Court has held that interstate
pollution is one of the few inherently federal areas necessarily governed by federal law. For example, in Ouellette,
the Court stated that “the regulation of interstate water
pollution is a matter of federal, not state, law.” 479 U.S.
at 488 (citation omitted); see id. at 492. And in American
Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), the
Court reiterated that “air and water in their ambient or
interstate aspects” are “meet for federal law governance.”
Id. at 421, 422; see City of New York, 993 F.3d at 91 (compiling additional cases).
That rule emanates from “the Constitution’s structure
and the principles of sovereignty and comity it embraces.”
National Pork Producers Council v. Ross, 598 U.S. 356,
376 (2023) (internal quotation marks and citation omitted). Under Article IV, Section 3, each State is “equal to
each other in power, dignity, and authority.” Coyle v.
Smith, 221 U.S. 559, 567 (1911). And each State’s “equal
dignity and sovereignty” implies “certain constitutional
limitations on the sovereignty of all of its sister States.”
Franchise Tax Board v. Hyatt, 139 S. Ct. 1485, 1497
(2019) (internal quotation marks, alterations, and citation
omitted).
One such limitation is that “[n]o State can legislate except with reference to its own jurisdiction,” Bonaparte v.
Appeal Tax Court, 104 U.S. 592, 594 (1882), which is “coextensive with its territory,” United States v. Bevans, 16
U.S. (3 Wheat.) 336, 387 (1818). The equality of the States
also “implicitly forbids” States from applying their own
laws to resolve “disputes implicating their conflicting
rights.” Hyatt, 139 S. Ct. at 1498 (alteration and citations
omitted).
23
Allowing the law of one State to govern disputes regarding pollution emanating from another State would violate the “cardinal” principle that “[e]ach [S]tate stands
on the same level with all the rest,” by permitting one
State to impose its law on other States and their citizens.
Kansas v. Colorado, 206 U.S. 46, 97 (1907). Federal law
must govern such controversies because they “touch[]
basic interests of federalism” and implicate the “overriding federal interest in the need for a uniform rule of decision.” Milwaukee I, 406 U.S. at 105 n.6. And because
“borrowing the law of a particular State would be inappropriate” to resolve such interstate disputes, federal law
must govern. American Electric Power, 564 U.S. at 422.
2. In the absence of federal legislation governing issues of interstate pollution, this Court held that rules developed by the federal courts—federal common law—
would govern lawsuits seeking redress for injuries allegedly caused by interstate pollution. See, e.g., American
Electric Power, 564 U.S. at 420-423; Milwaukee I, 406
U.S. at 103. But in the wake of the enactment of the Clean
Air Act and Clean Water Act, this Court held that Congress has displaced any previously available causes of action under federal common law. See American Electric
Power, 564 U.S. at 424; Milwaukee II, 451 U.S. at 313-314.
This Court’s decision in Ouellette explains the limited
role of state law after the displacement of federal common
law by a comprehensive statutory scheme in an inherently
federal area of regulation. There, the Court held that, in
light of the “pervasive regulation” of the Clean Water Act
and “the fact that the control of interstate pollution is primarily a matter of federal law,” the only permissible statelaw actions seeking redress for interstate water pollution
are “those specifically preserved by the Act.” 479 U.S. at
492 (citation omitted). The Court proceeded to conclude
that the Clean Water Act preempts claims under any
24
State’s law other than the law of the State in which the
source of the pollution was located. See id. at 487-498.
As the Court explained, the imposition of liability by a
downstream State would cause an upstream source of pollution to “change its methods of doing business and controlling pollution to avoid the threat of ongoing liability,”
regardless of whether that source complied with federal
law or the law of the source State. Ouellette, 479 U.S. at
495. Such claims would thus “circumvent” and “disrupt”
the careful “balance of interests” struck by the Clean Water Act—bypassing the “delineation of authority” adopted
by Congress, through which the roles of “both the source
and affected States” are “carefully define[d].” Id. at 494495, 497. The Court reasoned that “[i]t would be extraordinary for Congress, after devising an elaborate * * *
system that sets clear standards, to tolerate common-law
suits that have the potential to undermine this regulatory
structure.” Id. at 497. The Court thus interpreted the
Clean Water Act’s saving clauses to permit state-law actions only under the law of the State in which the source
of pollution is located. See id. at 495-497.
3. The foregoing precedents lead to a straightforward result here: federal law, including our constitutional
structure and the Clean Air Act, precludes respondents’
state-law claims seeking redress for interstate emissions.
Respondents’ theory of liability is that petitioners’ fossil-fuel products are “hazardous” because they “cause or
exacerbate global warming and related consequences,”
and that petitioners acted wrongfully by promoting those
products and allegedly taking actions to “conceal[] the[ir]
hazards” and prevent “the[ir] regulation.” Am. Compl.
101-102. Respondents are seeking relief in the form of
damages and equitable remedies for physical harms allegedly caused by global climate change, including “sea level
rise, drought, extreme precipitation events, extreme heat
25
events, and ocean acidification.” Id. at 102; see id. at 105,
106, 108-109, 111, 113, 114-115. The “gravamen” of respondents’ complaint, see Kurns v. Railroad Friction
Products Corp., 565 U.S. 625, 635 (2012) (citation omitted), is thus that petitioners’ conduct increased the worldwide use of fossil fuels, resulting in increased global
greenhouse-gas emissions, which contributed to global climate change and resulted in localized physical effects in
Hawaii.
Those claims fall squarely under the principle that federal law governs claims seeking redress for interstate air
and water pollution. Respondents allege that their injuries are caused by the interstate and international emissions of greenhouse gases over many decades. Respondents’ requested relief—including damages, see, e.g.,
Kurns, 565 U.S. at 637—is designed not only to remedy
injuries allegedly caused by those emissions but to regulate worldwide activities producing those emissions. Respondents are simply attempting to recover by moving up
one step in the causal chain and suing the fuel producers
rather than the emitters themselves (which include the
vast majority of the world’s population).
As the Second Circuit recognized, an attempt to repackage these claims in terms of alleged misrepresentations is merely “[a]rtful pleading.” City of New York, 993
F.3d at 91. Respondents are still alleging injury caused
by interstate and international emissions, and the only
way petitioners could have avoided liability would have
been to take actions designed to reduce those emissions.
Respondents thus cannot escape the conclusion that their
claims fall within the inherently federal area of interstate
air pollution.
To be sure, if respondents attempted to proceed under
federal common law, the Clean Air Act would foreclose relief with respect to interstate emissions. See App., infra,
26
39a-44a. But the congressional displacement of federal
common law does not open the door to state-law claims
unless the Clean Air Act permits them.
The Clean Air Act does not permit state-law claims
based on emissions emanating from another State. Instead, it provides the Environmental Protection Agency
with authority to regulate greenhouse-gas emissions from
stationary sources, see American Electric Power, 564
U.S. at 424-425; see also 42 U.S.C. 7411(b), (d), and to set
greenhouse-gas emissions standards for cars, trains, airplanes, motorcycles, and other engines and equipment.
See 42 U.S.C. 7521(a)(1)-(2), 7521(a)(3)(E), 7547(a)(1), (5),
7571(a)(2)(A). EPA has relied on its statutory authority
to regulate a range of sources of greenhouse-gas emissions, including by setting standards for trucks and passenger vehicles, see 40 C.F.R. 86.1818-12, 86.1819-14, and
by limiting emissions of methane from crude-oil and natural-gas operations—including from facilities operated by
some petitioners. See 87 Fed. Reg. 74,702 (Dec. 6, 2022).
Although the Clean Air Act has two saving clauses, see
42 U.S.C. 7416, 7604(e), they are materially identical to
the Clean Water Act’s saving clauses and thus permit actions under state law only to the extent that the plaintiff
is proceeding under the law of the State in which the
source of the pollution is located. See 33 U.S.C. 1365(e),
1370; City of New York, 993 F.3d at 99-100; Merrick, 805
F.3d at 692; Bell, 734 F.3d at 196-197; Cooper, 615 F.3d at
308-309; cf. Ouellette, 479 U.S. at 487-498. Of course, that
is impossible here, where the alleged mechanism of respondents’ injuries is the combined effect of all greenhouse-gas emissions worldwide. Federal law thus precludes respondents’ state-law claims. Indeed, in light of
the breadth of the Clean Air Act’s governance of greenhouse-gas emissions, respondents’ state-law claims would
27
be foreclosed even if a presumption against preemption
applied. Contra App., infra, 53a-66a.
4. Respondents’ claims based on international emissions cannot proceed under Hawaii law either. As the
Court has explained, there is “no question” that “at some
point an exercise of state power that touches on foreign
relations must yield to the National Government’s policy.”
American Insurance Association v. Garamendi, 539 U.S.
396, 413 (2003) (citation omitted). After all, it was a “concern for uniformity in this country’s dealings with foreign
nations” that “animated the Constitution’s allocation of
the foreign relations power to the National Government
in the first place.” Ibid. (citation omitted). The Constitution thus bestows broad power on the federal political
branches to regulate foreign affairs, and it prohibits
States from engaging in certain foreign-affairs-related
conduct. See U.S. Const. Art. I, §§ 8, 10; U.S. Const. Art.
II, §§ 2-3. In turn, state laws “must give way if they impair the effective exercise of the Nation’s foreign policy.”
Zschernig v. Miller, 389 U.S. 429, 440 (1968).
Because respondents seek relief for climate-changerelated harms, international emissions—which represent
the overwhelming majority of total anthropogenic emissions—are the primary causal mechanism underlying
their alleged injuries. “Greenhouse gases once emitted
become well mixed in the atmosphere; emissions in New
Jersey may contribute no more to flooding in New York
than emissions in China.” American Electric Power, 564
U.S. at 422 (internal quotation marks and citation omitted).
Foreign-policy principles preclude the application of
Hawaii law to regulate international emissions. As the
Second Circuit explained in City of New York, holding petitioners liable for such emissions would “affect the price
and production of fossil fuels abroad”; “bypass the various
28
diplomatic channels that the United States uses to address this issue”; and “sow confusion and needlessly complicate the nation’s foreign policy, while clearly infringing
on the prerogatives of the political branches.” 993 F.3d at
103. Accordingly, respondents can no more seek relief under Hawaii law for injuries allegedly caused by international emissions than for those allegedly caused by interstate emissions.
5. The Hawaii Supreme Court’s contrary decision
fundamentally misunderstands the ability of state law to
operate in inherently federal areas and the nature of respondents’ theory of liability.
The central premise of the decision below is that, when
Congress enacts a statute that displaces federal common
law, state law presumptively governs the issues previously governed by federal common law. But that logic ignores the reason why federal common law governed in the
first place. In cases that involve “interstate and international disputes implicating the conflicting rights of States
or our relations with foreign nations,” only federal law can
apply, because “our federal system does not permit the
controversy to be resolved under state law” at all. Texas
Industries, 451 U.S. at 641. In other words, where federal
common law applies, it is precisely because “state law cannot be used.” Milwaukee II, 451 U.S. at 313 n.7.
As the Seventh Circuit recognized in Milwaukee III,
the displacement of federal common law by federal statutory law does “nothing to undermine” the “reasons why
the [S]tate claiming injury cannot apply its own state law
to out-of-state discharges.” 731 F.2d at 410. State law
could not govern interstate and international emissions
before Congress acted, and the application of state law to
such claims remains inconsistent with our constitutional
structure after statutory displacement, even if federal law
provides no remedy for the particular claim alleged. Were
29
it otherwise, Congress’s decision to address an inherently
federal issue directly by statute, so as to displace federal
common-law remedies, would result in state common-law
remedies suddenly becoming available. As the Second
Circuit put it, that result is “too strange to seriously contemplate.” City of New York, 993 F.3d at 98-99.
The Hawaii Supreme Court concluded that this
Court’s instructions for the remand in American Electric
Power supported its analysis. See App, infra, 46a-47a.
Quite the contrary. After holding that the Clean Air Act
displaced any federal-common-law claim seeking abatement of defendants’ greenhouse-gas emissions, the Court
remanded for the lower courts to consider the plaintiffs’
parallel state-law claims. American Electric Power, 564
U.S. at 429. In so doing, the Court directed that, “[i]n light
of [its] holding that the Clean Air Act displaces federal
common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal
Act.” Ibid. The Court cited Ouellette for the proposition
that “the Clean Water Act does not preclude aggrieved
individuals from bringing a nuisance claim pursuant to the
law of the source State.” Ibid. (citation omitted).
Those instructions support petitioners’ position, not
respondents’. As already explained, see pp. 23-24, the
Court held in Ouellette that, because of the comprehensive nature of the Clean Water Act and the fact that “control of interstate pollution is primarily a matter of federal
law,” “the only state suits that remain available are those
specifically preserved by the Act”: namely, suits under
the law of the source State. 479 U.S. at 492. In American
Electric Power, the Court was thus directing the lower
courts to apply the same analysis as in Ouellette—the
same analysis petitioners are advancing here.
30
The Hawaii Supreme Court separately concluded that
respondents’ claims did not fall within the inherently federal area of interstate pollution, because “the source of the
injury” alleged by respondents is not “pollution traveling
from one state to another” but instead “failure to warn
and deceptive promotion.” App., infra, 50a, 52a. That is
a false dichotomy. While respondents’ theory of tort liability may invoke failure to warn and deceptive promotion,
the source of injury is most certainly interstate and international emissions.
The complaint is candid on this point: respondents repeatedly allege that defendants’ conduct led to increased
greenhouse-gas emissions worldwide, which caused or exacerbated global climate change and thereby caused localized harms in Hawaii. See Am. Compl. 105, 106, 108-109,
111, 113, 114-115. Respondents nowhere alleged harm
from petitioners’ alleged deceptive conduct other than
through the mechanisms of increased emissions and
global climate change. When faced with the same argument, the Second Circuit rightly held that a plaintiff cannot “have it both ways” by “disavowing any intent to address emissions” when convenient while simultaneously
“identifying such emissions as the singular source of the
[alleged] harm.” City of New York, 993 F.3d at 91. The
Hawaii Supreme Court also improperly failed to address
the international aspects of respondents’ claims at all.
The Hawaii Supreme Court erred by holding that respondents’ claims, seeking redress for interstate and international greenhouse-gas emissions, could proceed under Hawaii law.
C. The Question Presented Is Important And Warrants
The Court’s Review In This Case
The question presented in this case is recurring and
has enormous legal and practical importance. And this
31
case, which cleanly presents the question, may be the
Court’s only opportunity to decide it for years to come.
1. The stakes in this case could not be higher. Over
two dozen cases have been filed by various States and municipalities across the country seeking to impose untold
damages on energy companies for the physical and economic effects of climate change. New cases continue to be
filed. See, e.g., Makah Indian Tribe v. Exxon Mobil
Corp., No. 23-2-25216-1 SEA (Wash. Super. Ct. filed Dec.
20, 2023); Shoalwater Bay Indian Tribe v. Exxon Mobil
Corp., No. 23-2-25215-2 SEA (Wash. Super. Ct. filed Dec.
20, 2023); California v. Exxon Mobil Corp., No. CGC23609134 (Cal. Super. Ct. filed Sept. 15, 2023); County of
Multnomah v. Exxon Mobil Corp., No. 23CV25164 (Or.
Cir. Ct. filed June 22, 2023).
Those cases present a serious threat to one of the Nation’s most vital industries. As the federal government
previously stated in a similar climate-change case, “federal law and policy has long declared that fossil fuels are
strategically important domestic resources that should be
developed to reduce the growing dependence of the
United States on politically and economically unstable
sources of foreign oil imports.” U.S. En Banc Br. at 10,
City of Oakland v. BP p.l.c., 969 F.3d 895 (9th Cir. 2020)
(No. 18-16663) (internal quotation marks and citation
omitted). The current administration has similarly made
clear that the Nation’s approach to fossil-fuel emissions is
“vital in our discussions of national security, migration, international health efforts, and in our economic diplomacy
and trade talks.” Press Statement, Antony J. Blinken,
U.S. Secretary of State, The United States Officially Rejoins the Paris Agreement (Feb. 19, 2021). Indeed, in an
amicus brief to this Court, two former chairmen of the
Joint Chiefs of Staff recently explained how the federal
32
government had “actively encouraged domestic exploration and production of oil and gas” as products “critical to
national security, economic stability[,] and the military
preparedness of the United States.” Myers & Mullen Br.
at 3, BP p.l.c. v. Mayor & City Council of Baltimore, 593
U.S. 230 (2021) (No. 19-1189).
The approach adopted by the Hawaii Supreme Court
not only contravenes this Court’s precedents but would
also permit suits alleging injuries pertaining to global climate change to proceed under the laws of all 50 States—
a blueprint for chaos. As the federal government explained in its brief in American Electric Power, “virtually
every person, organization, company, or government
across the globe * * * emits greenhouse gases, and virtually everyone will also sustain climate-change-related
injuries,” giving rise to claims from “almost unimaginably
broad categories of both potential plaintiffs and potential
defendants.” TVA Br. at 11, 15 (No. 10-174). Out-of-state
actors (including the nonresident energy companies here)
would quickly find themselves subject to a “variety” of
“vague” and “indeterminate” state-law standards, and
States would be empowered to “do indirectly what they
could not do directly—regulate the conduct of out-of-state
sources.” Ouellette, 479 U.S. at 495-496. That could lead
to “widely divergent results”—and potentially massive liability—if a patchwork of 50 different legal regimes applied. TVA Br. at 37, American Electric Power, supra.
And that is especially true to the extent that a state court
attempts to exercise jurisdiction expansively over any energy company that does business in the State.
2. This case is a suitable vehicle for reviewing the
question presented. The question was fully briefed in, and
passed on by, the Hawaii Supreme Court. And respondents’ claims are representative of the claims being
brought in parallel suits across the country, meaning that
33
resolution of the question presented here will have immediate impact elsewhere.
The time for review is now. Litigation on the merits in
these cases is beginning in earnest, with discovery and
pretrial proceedings underway in state courts. A decision
from this Court now would provide clarity on whether
claims seeking relief for global climate change can proceed before state courts and parties spend significant effort and countless sums in litigation costs and before the
energy industry is threatened with damages awards that
could run into the billions of dollars. Absent the Court’s
review here, it could be years before the Court can decide
this issue, after which point—if petitioners’ arguments
are ultimately upheld—state courts will have wasted
years on complex litigation that should have been dismissed at the outset. The Court should grant certiorari
here and resolve whether the state-law claims pressed in
the climate-change cases are viable and may proceed on
the merits in state courts across the country.
34
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
THEODORE J. BOUTROUS, JR.
WILLIAM E. THOMSON
GIBSON, DUNN
& CRUTCHER LLP
333 South Grand Street
Los Angeles, CA 90071
THOMAS G. HUNGAR
LOCHLAN F. SHELFER
GIBSON, DUNN
& CRUTCHER LLP
1050 Connecticut
Avenue, N.W.
Washington, DC 20036
ANDREA E. NEUMANN
GIBSON, DUNN
& CRUTCHER LLP
200 Park Avenue
New York, NY 10166
JOSHUA D. DICK
GIBSON, DUNN
& CRUTCHER LLP
One Embarcadero Center,
Suite 2600
San Francisco, CA 94111
Counsel for Petitioners
Chevron Corporation and
Chevron U.S.A., Inc.
FEBRUARY 2024
KANNON K. SHANMUGAM
WILLIAM T. MARKS
JAKE L. KRAMER
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street, N.W.
Washington, DC 20006
(202) 223-7300
kshanmugam@paulweiss.com
THEODORE V. WELLS, JR.
DANIEL J. TOAL
YAHONNES CLEARY
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019
Counsel for Petitioners
Exxon Mobil Corporation
and ExxonMobil Oil
Corporation
JOHN D. LOMBARDO
LAURA E. WATSON
ARNOLD & PORTER
KAYE SCHOLER LLP
777 South Figueroa Street,
44th Floor
Los Angeles, CA 90017
JONATHAN W. HUGHES
ARNOLD & PORTER
KAYE SCHOLER LLP
Three Embarcadero Center,
10th Floor
San Francisco, CA 94111
ETHAN G. SHENKMAN
ELISABETH S. THEODORE
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Avenue,
N.W.
Washington, DC 20001
Counsel for Petitioners
BP p.l.c. and BP America Inc.
J. SCOTT JANOE
BAKER BOTTS LLP
910 Louisiana Street
Houston, TX 77002
MEGAN BERGE
STERLING MARCHAND
BAKER BOTTS LLP
700 K Street, N.W.
Washington, DC 20001
Counsel for Petitioners
Sunoco LP; Aloha Petroleum,
Ltd.; and Aloha Petroleum
LLC
HALLIE B. LEVIN
WILMER CUTLER PICKERING
HALE & DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
ERICKA AIKEN
ALLISON SCHULTZ
WILMER CUTLER PICKERING
HALE & DORR LLP
2100 Pennsylvania
Avenue, N.W.
Washington, DC 20037
JAMESON R. JONES
DANIEL R. BRODY
BARTLIT BECK LLP
1801 Wewatta Street,
Suite 1200
Denver, CO 80202
STEVEN M. BAUER
NICOLE C. VALCO
KATHERINE A. ROUSE
LATHAM & WATKINS LLP
505 Montgomery Street,
Suite 2000
San Francisco, CA 94111
Counsel for Petitioners
ConocoPhillips and
ConocoPhillips Company
STEVEN M. BAUER
NICOLE C. VALCO
KATHERINE A. ROUSE
LATHAM & WATKINS LLP
505 Montgomery Street,
Suite 2000
San Francisco, CA 94111
Counsel for Petitioners
Phillips66 and
Phillips66 Company
VICTOR L. HOU
BOAZ S. MORAG
CLEARY GOTTLIEB STEEN
& HAMILTON LLP
One Liberty Plaza
New York, NY 10006
Counsel for Petitioner
Woodside Energy Hawaii Inc.
SHANNON S. BROOME
HUNTON ANDREWS
KURTH LLP
50 California Street
San Francisco, CA 94111
SHAWN PATRICK REGAN
HUNTON ANDREWS
KURTH LLP
200 Park Avenue
New York, NY 10166
ANN MARIE MORTIMER
HUNTON ANDREWS
KURTH LLP
550 South Hope Street,
Suite 2000
Los Angeles, CA 90071
Counsel for Petitioners
Marathon Petroleum Corp.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.