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.

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