Petition for Writ of Certiorari — Sunoco LP, et al., Petitioners v. City and County of Honolulu, Hawaii, et al.

APPENDIX

TABLE OF CONTENTS

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Hawaii Supreme Court opinion,

October 31, 2023 .............................................. 1a

Trial court order denying

motion to dismiss for failure

to state a claim, March 29, 2022 .................. 73a

Hawaii Supreme Court order

granting application for transfer,

March 3, 2023................................................. 85a

Trial court order granting leave

to file an interlocutory appeal,

June 3, 2022 ................................................... 86a

APPENDIX A

SUPREME COURT OF HAWAI‘I

No. SCAP-22-429

CITY AND COUNTY OF HONOLULU;

HONOLULU BOARD OF WATER SUPPLY,

PLAINTIFFS-APPELLEES

v.

SUNOCO LP, ET AL.,

DEFENDANTS-APPELLANT

BHP GROUP LIMITED; BHP GROUP PLC,

DEFENDANTS-APPELLEES

Filed: October 31, 2023

BEFORE: RECKTENWALD, C.J., MCKENNA and

EDDINS, J.J., Circuit Judge JOHNSON and Circuit

Judge TONAKI, assigned by reason of vacancies.

OPINION

RECKTENWALD, Chief Judge.

I. INTRODUCTION

The City and County of Honolulu and the Honolulu

Board of Water Supply (collectively, Plaintiffs) brought

(1a)

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suit against a number of oil and gas producers1 (collectively, Defendants) alleging five counts: public nuisance,

private nuisance, strict liability failure to warn, negligent

failure to warn, and trespass. Defendants appeal the circuit court’s denial of their motions to dismiss for both lack

of jurisdiction and failure to state a claim. We conclude

that the circuit court properly denied both motions, and

accordingly, this lawsuit can proceed.

Plaintiffs argue this is a traditional tort case alleging

that Defendants engaged in a deceptive promotion campaign and misled the public about the dangers of using

their oil and gas products. Plaintiffs claim their theory of

liability is simple: Defendants knew of the dangers of using their fossil fuel products, “knowingly concealed and

misrepresented the climate impacts of their fossil fuel

products,” and engaged in “sophisticated disinformation

campaigns to cast doubt on the science, causes, and effects

of global warming,” causing increased fossil fuel consumption and greenhouse gas emissions, which then caused

property and infrastructure damage in Honolulu. Simply

put, Plaintiffs say the issue is whether Defendants misled

the public about fossil fuels’ dangers and environmental

impact.

Defendants are: Sunoco LP, Aloha Petroleum, Ltd., Aloha Petroleum LLC, Exxon Mobil Corporation, ExxonMobil Oil Corporation,

Shell plc (f/k/a Royal Dutch Shell plc), Shell U.S.A. Inc. (f/k/a Shell

Oil Company), Shell Oil Products Company LLC, Chevron Corporation, Chevron U.S.A. Inc., Woodside Energy Hawaii Inc. (f/k/a BHP

Hawaii Inc.), BP plc, BP America Inc., Marathon Petroleum Corporation, ConocoPhillips, ConocoPhillips Company, Phillips 66, and

Phillips 66 Company. The circuit court dismissed BHP Group Limited and BHP Group plc—that dismissal was not appealed and is not

before this court.

1

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Defendants disagree. They say this is another in a long

line of lawsuits seeking to regulate interstate and international greenhouse gas emissions, all of which have been

rejected. Greenhouse gas emissions and global warming

are caused by “billions of daily choices, over more than a

century, by governments, companies, and individuals,”

and Plaintiffs “seek to recover from a handful of Defendants for the cumulative effect of worldwide emissions

leading to global climate change and Plaintiffs’ alleged injuries.” They argue: (1) the circuit court lacked specific

jurisdiction over the Defendants; (2) Plaintiffs’ claims are

preempted by federal common law, which in turn, was displaced by the Clean Air Act (CAA); and (3) alternatively,

Plaintiffs’ claims are preempted by the CAA.

We agree with Plaintiffs. This suit does not seek to

regulate emissions and does not seek damages for interstate emissions. Rather, Plaintiffs’ complaint “clearly

seeks to challenge the promotion and sale of fossil-fuel

products without warning and abetted by a sophisticated

disinformation campaign.” Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178, 233 (4th Cir. 2022), cert.

denied, 143 S. Ct. 1795 (2023) (characterizing a complaint

brought against many of the same Defendants in this case

alleging broadly the same counts, theory of liability, and

injuries). This case concerns torts committed in Hawaiʻi

that caused alleged injuries in Hawaiʻi.

Thus, Defendants’ arguments on appeal fail. First, Defendants are subject to specific jurisdiction in Hawaiʻi because: (1) Plaintiffs’ allegations that Defendants misled

consumers about fossil fuels products’ dangers “arise out

of” and “relate to” Defendants’ contacts with Hawaiʻi, i.e.,

Defendants’ sale and marketing of those fossil fuel products in Hawaiʻi, Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017, 1025 (2021); (2) it is

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reasonable for Hawaiʻi courts to exercise specific jurisdiction over Defendants, and doing so does not conflict with

interstate federalism principles because Hawaiʻi has a

“significant interest[] . . . [in] ‘providing [its] residents

with a convenient forum for redressing injuries inflicted

by out-of-state actors,’” see id. at 1030 (quoting Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985)); and

(3) the Supreme Court has never imposed a “clear notice”

requirement, see id. at 1025.

Second, the CAA displaced federal common law governing interstate pollution damages suits; after displacement, federal common law does not preempt state law. See

Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 423-24

(2011) (“AEP”); Bd. Of Cnty. Comm’rs of Boulder Cnty.

v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1260 (10th

Cir. 2022), cert. denied, 143 S. Ct. 1795 (2023) (“[T]he federal common law of nuisance that formerly governed

transboundary pollution suits no longer exists due to Congress’s displacement of that law through the CAA.”). We

must only consider whether the CAA preempts state law.

AEP, 564 U.S. at 429 (“[T]he availability vel non of a state

lawsuit depends inter alia on the preemptive effect of the

[CAA].”).

Third, the CAA does not preempt Plaintiffs’ claims.

The CAA does not occupy the entire field of emissions

regulation. See Merrick v. Diageo Ams. Supply, Inc., 805

F.3d 685, 695 (6th Cir. 2015) (determining that there is “no

evidence that Congress intended that all emissions regulation occur through the [CAA’s] framework”). There is

no “actual conflict” between Plaintiffs’ state tort law

claims and the CAA’s overriding federal purpose or objective. See In re Methyl Tertiary Butyl Ether (MTBE)

Prod. Liab. Litig. (MTBE), 725 F.3d 65, 101 (2d Cir. 2013)

(concluding that CAA did not preempt state tort law

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claims relating to a gasoline additive where it was possible

to comply with both state and federal law).

Therefore, we affirm the circuit court’s orders denying

Defendants’ motion to dismiss for lack of jurisdiction and

motion to dismiss for failure to state a claim.

II. BACKGROUND

A. Circuit Court Proceedings

1. Original complaint, removal, and remand

In March 2020, Plaintiffs filed their original complaint

in the Circuit Court for the First Circuit alleging that for

decades, Defendants knew their fossil fuel products

caused greenhouse gas emissions and global warming, but

they failed to warn consumers of the threat, and actively

worked to discredit scientific evidence that supported the

existence of global warming. In April 2020, Defendants

removed the case to federal court. Defendants argued

that removal jurisdiction was appropriate because federal

common law governed, and the CAA and other federal

statutes preempted Plaintiffs’ claims.2

2

Defendants asserted eight grounds for federal jurisdiction: (1) the

Outer Continental Shelf Lands Act (OCSLA) because “[a] significant

portion of oil and gas exploration and production” occurs on the shelf;

(2) the federal officer removal statute, see 28 U.S.C. § 1442(a)(1), because oil and gas production “took place under the direction of a federal officer to support critical national security, military, and other

core federal government operations;” (3) federal enclave jurisdiction

because some oil production occurred on federal enclaves like the

Outer Continental Shelf; (4) federal common law, which defendants

argue governs Plaintiffs’ claims; (5) federal question jurisdiction because Plaintiffs’ claims “necessarily raise[] federal questions under

the [CAA], EPA and other federal regulations and international treaties on climate change to which the United States is a party;” (6) federal preemption by the CAA and other related statutes; (7) bankruptcy jurisdiction; and (8) admiralty jurisdiction.

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On Plaintiffs’ motion, the federal district court remanded the case to state circuit court. The federal court

explained that the Ninth Circuit, in City of Oakland v. BP

PLC, 969 F.3d 895, 906-08 (9th Cir. 2020), recently rejected Defendants’ federal-common-law, federal-preemption, and federal-question-jurisdiction arguments. City &

Cnty. of Honolulu v. Sunoco LP, No. 20-CV-00163-DKWRT, 2021 WL 531237, at *2 n.8 (D. Haw. Feb. 12, 2021).

The court explained that the “principal problem with Defendants’ arguments is that they misconstrue Plaintiffs’

claims.” Id. at *1. “More specifically, contrary to Defendants’ contentions, Plaintiffs have chosen to pursue claims

that target Defendants’ alleged concealment of the dangers of fossil fuels, rather than the acts of extracting, processing, and delivering those fuels.” Id. Further, Plaintiffs’ nuisance claims arise “not through [Defendants’]

‘fossil fuel production activities,’ . . . but through their alleged failure to warn about the hazards of using their fossil fuel products and disseminating misleading information about the same.” Id. at *3.

On appeal, the Ninth Circuit affirmed the district

court’s order remanding the case to state circuit court.

City & Cnty. of Honolulu v. Sunoco LP, 39 F.4th 1101,

1113 (9th Cir. 2022). Defendants filed an application for

writ of certiorari to the U.S. Supreme Court, which was

denied. Sunoco LP v. City & Cnty. of Honolulu, 143 S. Ct.

1795 (2023) (denying application for certiorari).

2. First Amended Complaint

In its First Amended Complaint (Complaint), Plaintiffs added the Board of Water Supply (BWS) as a plaintiff

and amended certain allegations to incorporate damages

specific to BWS. Plaintiffs also added an allegation that

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the wrongful conduct giving rise to the second cause of action (private nuisance) was committed with actual malice,

permitting punitive damages.

First, Plaintiffs allege that human activity is causing

the atmosphere and oceans to warm, sea levels to rise,

snow cover to diminish, oceans to acidify, and hydrologic

systems to change. Greenhouse gas emissions, which are

largely a byproduct of combustion of fossil fuels, are the

chief cause of this warming. The accumulation of greenhouse gases in the atmosphere has adverse impacts on the

earth, including: warming of the average surface temperature, resulting in increasingly frequent heatwaves; sea

level rise; flooding of land and infrastructure; changes to

the global climate, including longer periods of drought;

ocean acidification; increased frequency of extreme

weather; changes to ecosystems; and impacts on human

health associated with extreme weather, decreased air

quality, and vector-borne illnesses.

Next, Plaintiffs allege that Defendants knew about the

dangers associated with their products because they, or

their predecessors in interest, were members of the

American Petroleum Institute (API). Beginning in the

1950s, scientists warned the API that fossil fuels were

causing atmospheric carbon dioxide levels to increase. In

1965, President Lyndon B. Johnson’s Scientific Advisory

Committee warned of global warming and the catastrophic impacts that could result. The API President related these findings to industry leaders at the association’s annual meeting that year. Plaintiffs allege that by

1965, industry leaders were aware of the global warming

phenomenon caused by their products. Defendants continued to gather information on the climate change impacts of their products throughout the 1960s, 1970s, and

1980s.

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During the 1980s, many of the defendants in the present case formed their own research units focused on climate modeling. API provided a forum where Defendants

shared research efforts and corroborated each other’s

findings. Plaintiffs allege that by 1988, Defendants “had

amassed a compelling body of knowledge about the role of

anthropogenic greenhouse gases, and specifically those

emitted from the normal use of Defendants’ fossil fuel

products, in causing global warming and its cascading impacts[.]”

Plaintiffs allege that around 1990, public discussion

shifted from gathering information on climate change to

international efforts to curb emissions. At this point, Defendants—rather than collaborating with the international community to help curb emissions—“embarked on

a decades-long campaign designed to maximize continued

dependence on their products and undermine national

and international efforts to rein in greenhouse gas emissions.” Defendants began a public relations campaign to

cast doubt on the science connecting global climate

change to their products. Defendants promoted their

products through misleading advertisements and funding

“climate change denialist organizations.”

According to Plaintiffs, Defendants’ efforts to cast

doubt on climate science continued throughout the 1990s

and 2000s. Defendants “bankroll[ed]” scientists with

“fringe opinions” in order to create a false sense of disagreement in the scientific community. Defendants’ own

scientists, experts, and managers had previously acknowledged climate change’s effects. At the same time, Defendants worked to change public opinion over climate

change’s existence and avoid regulation. Defendants

funded dozens of think tanks, front groups, and dark

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money foundations pushing climate change denial, with

ExxonMobil alone spending almost $31 million.

Plaintiffs allege that, while Defendants publicly cast

doubt on climate change, they simultaneously invested in

operational changes to prepare for its adverse consequences. For example, Defendants allegedly raised offshore oil platforms to protect against rising sea levels, reinforced them against storms, and developed new technologies for extracting oil in places previously blocked by polar sea ice.

Defendants now claim they are investing in renewable

energy, but Plaintiffs claim these statements are a pretense. Defendants’ advertisements and promotional materials do not disclose the risks of their products, and they

continue to ramp up fossil fuel production, including new

fossil fuel development.

Plaintiffs allege that they have sustained damages

caused by Defendants’ failure to warn and deceptive promotion of dangerous products. Defendants’ conduct “is a

substantial factor in causing global warming,” which has

had adverse effects on Plaintiffs. These effects include sea

level rise (causing flooding, erosion, and beach loss); more

extreme weather events; ocean warming (causing destruction of coral reefs); loss of endemic species; and diminished availability of fresh water. Because of Defendants’ conduct, Plaintiffs suffered damage to their facilities

and property, incurred increased planning and preparation costs to adapt communities to global warming’s effects, collected less tax revenue due to impacts on tourism,

and suffered the cost of public health impacts such as an

increase in heat-related illnesses. Plaintiffs have already

suffered damage to beach parks, roads, and drain way infrastructure from flooding and sea level rise.

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Plaintiffs bring five counts under state law: public nuisance, private nuisance, strict-liability failure to warn,

negligent failure to warn, and trespass. All counts rely on

the same theory of liability: Defendants knew about the

dangers of using their fossil fuel products, failed to warn

consumers about those known dangers, and engaged in a

sophisticated disinformation campaign to increase fossil

fuel consumption, all of which exacerbated the impacts of

climate change in Honolulu.

3. Defendants’ joint motions to dismiss

Defendants filed two motions to dismiss, the first for

lack of jurisdiction and the second for failure to state a

claim. In their first motion to dismiss, Defendants argued

the circuit court did not have specific jurisdiction because

“(1) the Complaint avers, as it must, that Plaintiffs’ alleged injuries arise out of and relate to worldwide conduct by countless actors, not Defendants’ alleged contacts with Hawai‘i; (2) Defendants did not have ‘clear

notice’ that as a result of their activities in Hawai‘i they

could be sued here for activity occurring around the

world; and (3) exercising jurisdiction would be constitutionally unreasonable.”

In their second motion to dismiss, Defendants argued:

(1) Plaintiffs’ claims are interstate pollution claims, which

must be brought under federal common law, not state

common law, and that the CAA preempts interstate pollution federal common law claims; or alternatively, (2)

Plaintiffs’ state common law claims are preempted by the

CAA. Plaintiffs opposed.

At the motion hearing, Plaintiffs summarized their

theory of liability, which is central to the jurisdictional and

preemption issues on appeal. Plaintiffs explained that de-

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fendants “concealed and misrepresented the climate impacts of their products, using sophisticated disinformation

campaigns to discredit the science of global warming.”

Defendants also allegedly misled “consumers and the rest

of the world about the dangers of using their products as

intended in a profligate manner.” Thus, “these deceptive

commercial activities . . . inflated the overall consumption

of fossil fuels, which increased greenhouse gas emissions,

which exacerbated climate change, which created the hazardous environmental conditions” that have allegedly injured Plaintiffs.

4. The circuit denied Defendants’ motions to dismiss

The circuit court subsequently denied both motions.3

The circuit court denied Defendants’ motion to dismiss

for lack of jurisdiction, concluding that it had specific jurisdiction because Plaintiffs’ claims arose out of and related to Defendants’ sales and marketing contacts in Hawaiʻi. See, e.g., Ford Motor, 141 S. Ct. at 1025. The circuit

court also determined it would be reasonable to exercise

specific jurisdiction over Defendants. See Hawaii Forest

& Trial Ltd. v. Davey, 556 F. Supp. 2d 1162, 1168-72 (D.

Haw. 2008).

The circuit court also denied Defendants’ joint motion

to dismiss for failure to state a claim. The court explained

that the standard for the review of a motion to dismiss “is

generally limited to the allegations in the complaint,

which must be deemed true for purposes of the motion,”

Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel,

113 Hawai‘i 251, 266, 151 P.3d 732, 747 (2007), but courts

are “not required to accept conclusory allegations,” Civ.

3

The Honorable Jeffrey P. Crabtree presided.

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Beat L. Ctr. for the Pub. Int., Inc. v. City & Cnty. of Honolulu, 144 Hawai‘i 466, 474, 445 P.3d 47, 55 (2019). And

“the issue is not solely whether the allegations as currently pled are adequate.” Rather, “[a] complaint should

not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of

facts in support of his or her claim that would entitle him

or her to relief under any set of facts or any alternative

theory.” (Citations omitted).

The circuit court first concluded that City of New York

v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021), cited by Defendants, “has limited application to this case, because the

claims in the instant case are both different from and were

not squarely addressed in [that] opinion.” The circuit

court then determined that federal common law did not

govern Plaintiffs’ state law claims. The circuit court also

determined that Plaintiffs’ claims were not preempted by

the CAA.

The circuit court also rejected Defendants’ argument

that a large damages award in this case could act as a de

facto emissions regulation because an unfavorable judgment would “not prevent Defendants from producing and

selling as much fossil fuels as they are able, as long as Defendants make the disclosures allegedly required, and do

not engage in misinformation.” The circuit court concluded:

A broad doctrine that damages awards in tort cases

impermissibly regulate conduct and are thereby

preempted would intrude on the historic powers of

state courts. Such a broad “damages = regulation =

preemption” doctrine could preempt many cases common in state court, including much class action litiga-

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tion, products liability litigation, claims against pharmaceutical companies, and consumer protection litigation.

Last, the circuit court concluded that it was appropriate for state common law to govern Plaintiffs’ claims:

Defendants argue (and the City of New York opinion

expresses) that climate change cases are based on

“artful pleading.” Respectfully, we often see “artful

pleading” in the trial courts, where new conduct and

new harms often arise:

The argument that recognizing the tort will result

in a vast amount of litigation has accompanied virtually every innovation in the law. Assuming that it

is true, that fact is unpersuasive unless the litigation largely will be spurious and harassing. Undoubtedly, when a court recognizes a new cause of

action, there will be many cases based on it. Many

will be soundly based and the plaintiffs in those

cases will have their rights vindicated. In other

cases, plaintiffs will abuse the law for some unworthy end, but the possibility of abuse cannot obscure

the need to provide an appropriate remedy.

Fergerstrom v. Hawaiian Ocean View Estates, 50

Haw. 374, 377 (1968) (opinion by Levinson, J.)[.] Here,

the causes of action may seem new, but in fact are common. They just seem new due to the unprecedented

allegations involving causes and effects of fossil fuels

and climate change. Common law historically tries to

adapt to such new circumstances.

The circuit court then granted Defendants leave to file

an interlocutory appeal.

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B. Appellate Proceedings

Defendants timely filed their joint notice of interlocutory appeal from the circuit court’s Order Denying Defendants’ Joint Motion to Dismiss for Failure to State a

Claim and its Order Denying Defendants’ Joint Motion to

Dismiss for Lack of Personal Jurisdiction. This court subsequently granted Plaintiffs’ application for transfer from

the Intermediate Court of Appeals.

On appeal, Defendants frame this case as one where

Plaintiffs “seek[] to hold Defendants liable under Hawai‘i

tort law for harms allegedly attributable to global climate

change.” This case should be dismissed because “these

emissions flow from billions of daily choices, over more

than a century, by governments, companies, and individuals about what types of fuels to use, and how to use

them.” Plaintiffs “seek to recover from a handful of Defendants for the cumulative effect of worldwide emissions

leading to global climate change and Plaintiffs’ alleged injuries.”

Plaintiffs dispute Defendants’ characterization of the

Complaint. Plaintiffs argue that the Complaint does “not

ask for damages for all effects of climate change; rather,

[it] seek[s] damages only for the effects of climate change

allegedly caused by Defendants’ breach of Hawai‘i law regarding failure to disclose, failures to warn, and deceptive

promotion.” Plaintiffs contend their Complaint is

“straightforward”: “Defendants knowingly concealed and

misrepresented the climate impacts of their fossil fuel

products” and that “deception inflated global consumption of fossil fuels, which increased greenhouse gas emissions, exacerbated climate change, and created hazardous

conditions in Hawai‘i.” Despite Defendants’ contention

that this suit seeks to regulate fossil fuel production, “so

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long as Defendants start warning of their products’ climate impacts and stop spreading climate disinformation,

they can sell as much fossil fuel as they wish without fear

of incurring further liability.”

Defendants raise three points of error: (1) the circuit

court lacked specific jurisdiction over the Defendants; (2)

Plaintiffs’ claims are preempted by federal common law,

which in turn, was displaced by the CAA; and (3) alternatively, Plaintiffs’ claims are preempted by the CAA.

First, Defendants argue that specific jurisdiction does

not attach because: (1) Plaintiffs cannot show that their

claims “arise out of or relate to,” Ford Motor, 141 S. Ct.

at 1025, Defendants’ contacts with Hawai‘i because Plaintiffs’ alleged injuries did not “occur in-state as a result of

the use of the product in-state;” (2) Defendants’ in-state

conduct “did not reasonably place them on clear notice”

they would be subject to specific jurisdiction in Hawai‘i as

required by the federal Due Process Clause; and (3) the

exercise of “personal jurisdiction here would conflict with

federalism principles” limiting state jurisdiction in areas

of national interest.

Plaintiffs dispute Defendants’ arguments, contending:

(1) the U.S. Supreme Court explained in Ford Motor that

it had “never framed the specific jurisdiction inquiry as

always requiring proof of causation—i.e., proof that the

plaintiff’s claim came about because of the defendant’s instate conduct,” id. at 1026; (2) Defendants had fair warning they could be haled into Hawaiʻi courts, and Ford Motor did not create a “clear notice” requirement, id. at 1027;

and (3) Plaintiffs’ suit does not interfere with national energy policy because Defendants can continue to produce

as much oil as they want as long as they stop their tortious

marketing conduct.

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Second, Defendants argue that Plaintiffs’ state law

claims are governed by federal common law “because they

seek redress for harms allegedly caused by interstate and

international emissions.” Relying on City of New York,

Defendants say that federal common law preempts Plaintiffs’ state common law tort claims, and in turn, the CAA

preempts the federal common law. See City of New York,

993 F.3d at 93-96. Defendants contend that “[o]nce this

court correctly concludes that Plaintiffs’ claims are necessarily governed by federal law, it follows that Plaintiffs

also have no remedy under federal law.”

Plaintiffs counter that the CAA displaced federal common law governing interstate pollution, and that law “no

longer exists.” Boulder, 25 F.4th at 1260; see also AEP,

564 U.S. at 423. Plaintiffs claim that “once federal common law disappears, the question of state law preemption

is answered solely by reference to federal statutes, not the

ghost of some judge-made federal law.” See AEP, 564 U.S.

at 429 (“[T]he availability . . . of a state lawsuit depends

. . . on the preemptive effect of the [CAA].”). According to

Plaintiffs, the proper preemption analysis requires examining only whether the CAA preempts their state law

claims. The court need not consider first whether displaced federal common law preempts Plaintiffs’ state

claims, and second whether displaced federal common law

is preempted by the CAA.

Third and finally, Defendants alternatively argue that

the CAA preempts Plaintiffs’ claims. Defendants say

Plaintiffs seek damages for injuries allegedly caused by

out-of-state sources’ emissions. Relying on N. Carolina ex

rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291, 303, 306

(4th Cir. 2010), Defendants contend that the “CAA

preempts state-law claims concerning out-of-state emissions.” Plaintiffs counter that the “CAA does not concern

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itself in any way with the acts that trigger liability under

[its] Complaint, namely: the use of deception to promote

the consumption of fossil fuel products.” They say the

CAA regulates “pollution-generating emissions from both

stationary sources, such as factories and powerplants, and

moving sources, such as cars, trucks, and aircraft,” Util.

Air Regul. Grp. v. EPA, 573 U.S. 302, 308 (2014), not the

traditional state tort claims for failure to warn and deceptive promotion.

III. STANDARD OF REVIEW

A. Motion To Dismiss

A trial court’s ruling on a motion to dismiss is reviewed de novo. The court must accept plaintiff’s allegations as true and view them in the light most favorable to the plaintiff; dismissal is proper only if it appears beyond doubt that the plaintiff can prove no set

of facts in support of his or her claim that would entitle

him or her to relief.

Delapinia v. Nationstar Mortg. LLC, 150 Hawai‘i 91,

97-98, 497 P.3d 106, 112-13 (2021) (quoting Goran Pleho,

LLC v. Lacy, 144 Hawai‘i 224, 236, 439 P.3d 176, 188

(2019)).

B. Jurisdiction

“A trial court’s determination to exercise personal jurisdiction is a question of law reviewable de novo when the

underlying facts are undisputed.” Shaw v. N. Am. Title

Co., 76 Hawai‘i 323, 326, 876 P.2d 1291, 1294 (1994) (citing

Bourassa v. Desrochers, 938 F.2d 1056, 1057 (9th Cir.

1991)). Plaintiffs “need make only a prima facie showing

that: (1) [defendant’s] activities in Hawai‘i fall into a category specified by Hawai‘i’s long-arm statute, [Hawai‘i Revised Statutes (HRS)] § 634-35; and (2) the application of

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HRS § 634-35 comports with due process.” Id. at 327, 876

P.3d at 1295 (citing Cowan v. First Ins. Co. of Hawai‘i, 61

Haw. 644, 649, 608 P.2d 394, 399 (1980)). When the circuit

court relies on pleadings and affidavits, without conducting an “‘full-blown evidentiary hearing,’” the plaintiff’s

“‘allegations are presumed true and all factual disputes

are decided in [plaintiff’s] favor.’” Id. (citations omitted).

C. Preemption

Questions of federal preemption “are questions of law

reviewable de novo under the right/wrong standard.” Rodrigues v. United Pub. Workers, AFSCME Loc. 646,

AFL-CIO, 135 Hawai‘i 316, 320, 349 P.3d 1171, 1175

(2015).

IV. DISCUSSION

We affirm the circuit court’s orders denying Defendant’s motions to dismiss. Similar to Baltimore, Plaintiffs’

Complaint “clearly seeks to challenge the promotion and

sale of fossil-fuel products without warning and abetted

by a sophisticated disinformation campaign.” 31 F.4th at

233. While Plaintiffs’ Complaint does reference global

emissions repeatedly, “these references only serve to tell

a broader story about how the unrestrained production

and use of Defendants’ fossil-fuel products contribute to

greenhouse gas pollution.” Id. Plaintiffs do “not merely

allege that Defendants contributed to climate change and

its attendant harms by producing and selling fossil-fuel

products; it is the concealment and misrepresentation of

the products’ known dangers—and the simultaneous promotion of their unrestrained use—that allegedly drove

consumption, and thus greenhouse gas pollution, and thus

climate change.” Id. at 233-34.

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As the circuit court explained:

The court recognizes that nuisance, trespass, and failure to warn vary somewhat in terms of their specific

elements. All of these claims, however, share the same

basic structure of requiring that a defendant engage

in tortious conduct that causes injury to a plaintiff.

Moreover, as the court understands it, Plaintiffs are

relying on the same basic theory of liability to prove

each of their claims, namely: that Defendants’ failures

to disclose and deceptive promotion increased fossil

fuel consumption, which—in turn—exacerbated the

local impacts of climate change in Hawaiʻi.

Because this is a traditional tort case alleging Defendants misled consumers and should have warned them

about the dangers of using their products, Defendants’ arguments fail. Defendants’ contacts with Hawaiʻi (selling

oil and gas here) arise from and relate to Plaintiffs’ claims

(deceptive promotion and failure to warn about the dangers of using the oil and gas sold here). Defendants are

alleged to have engaged in tortious acts in Hawaiʻi and

have extensive contacts in Hawaiʻi, and it is therefore reasonable for Defendants to be haled into court here. Further, neither displaced federal common law nor the CAA

preempts Plaintiffs’ state-law tort claims.

A. Defendants Are Subject To Specific Jurisdiction In

Hawai‘i

Specific jurisdiction attaches where (1) Defendants’

activity falls under the State’s long-arm statute, and (2)

the exercise of jurisdiction comports with due process. See

Shaw, 76 Hawai‘i at 327, 876 P.2d at 1295. As we recently

explained, “the two-step inquiry may in fact be redundant” because Hawaiʻi’s long-arm statute “was adopted to

expand the jurisdiction of the State’s courts to the extent

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permitted by the due process clause of the Fourteenth

Amendment.” Yamashita v. LG Chem, Ltd., 152 Hawai‘i

19, 21-22, 518 P.3d 1169, 1171-72 (2022), opinion after certified question answered, 62 F.4th 496 (9th Cir. 2023)

(quoting Cowan, 61 Haw. at 649, 608 P.2d at 399). But

while “this collapsed inquiry yields the same practical result as the two-step test” and is “not improper,” “there is

value in remembering that personal jurisdiction rests on

both negative federal limits and positive state assertions

of jurisdiction.” Id. at 22, 518 P.3d at 1172. Accordingly,

we engage in the two-step test outlined in Yamashita.

First, Defendants’ activity in Hawai‘i falls under the

long-arm statute. Plaintiffs’ Complaint alleges that Defendants conducted fossil fuel business in Hawaiʻi, committed torts in Hawaiʻi, and caused injury in Hawaiʻi. See

HRS § 634-35(a)(1)-(2) (2016)4 (persons subject to Hawaiʻi’s personal jurisdiction when transact business or

commit tort within state). Further, Defendants did not

dispute below and do not dispute on appeal that their instate activity falls under the long-arm statute.

4

HRS § 634-35, Hawai‘i’s long-arm statute, provides:

Acts submitting to jurisdiction. (a) Any person, whether or not a

citizen or resident of this State, who in person or through an agent

does any of the acts hereinafter enumerated, thereby submits such

person, and, if an individual, the person’s personal representative, to

the jurisdiction of the courts of this State as to any cause of action

arising from the doing of any of the acts:

(1) The transaction of any business within this State;

(2) The commission of a tortious act within this State;

(3) The ownership, use, or possession of any real estate situated in

this State;

(4) Contracting to insure any person, property, or risk located

within this State at the time of contracting.

21a

Second, exercising specific jurisdiction over Defendants comports with due process. Specific jurisdiction comports with due process where: (1) defendants “purposefully avail[ed] [themselves] of the privilege of conducting

activities in the forum, thereby invoking the benefits and

protections of its laws”; (2) plaintiffs’ claim “arises out of

or relates to the defendant[s’] forum-related activities”;

and (3) exercising specific jurisdiction “comport[s] with

fair play and substantial justice, i.e. it must be reasonable.” Int. of Doe, 83 Hawai‘i 367, 374, 926 P.2d 1290, 1297

(1996). This three-part test is “commonly referred to as

the minimum contacts test.” Greys Ave. Partners, LLC v.

Theyers, 431 F. Supp. 3d 1121, 1128 (D. Haw. 2020). “The

minimum contacts test ‘ensures that a defendant will not

be haled into a jurisdiction solely as a result of random,

fortuitous, or attenuated contacts[.]’” Freestream Aircraft (Bermuda) Ltd. v. Aero L. Grp., 905 F.3d 597, 603

(9th Cir. 2018) (quoting Burger King, 471 U.S. at 475).

Defendants do not contest the first prong of the minimum contacts test—that they “purposefully avail[ed]”

themselves of the forum. See id. Therefore, at issue is

whether Plaintiffs’ claims “arise out of or relate to” Defendants’ Hawaiʻi contacts and whether the exercise of

specific jurisdiction is reasonable. Ford Motor, 141 S. Ct.

at 1025. Defendants further argue that, under Ford Motor, they did not have “clear notice” they could be subject

to specific jurisdiction in Hawaiʻi. Id. at 1030 (quoting

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,

297 (1980).

As set forth below, Defendants are subject to specific

jurisdiction in Hawaiʻi because: (1) Plaintiffs’ allegations

that Defendants misled consumers about the dangers of

using their products “arise out of” and “relate to” Defendants’ contacts with Hawaiʻi, here Defendants’ sale and

22a

promotion of oil and gas in Hawaiʻi, id. at 1025 (quoting

Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S.

Ct. 1773, 1786 (2017)); (2) it is reasonable for Hawaiʻi

courts to exercise specific jurisdiction over Defendants

and doing so does not conflict with interstate federalism

principles because Hawaiʻi has a “significant interest[]

[in] ‘providing [its] residents with a convenient forum for

redressing injuries inflicted by out-of-state actors,’” see

id. at 1030 (quoting Burger King, 471 U.S. at 473); and (3)

the U.S. Supreme Court has never imposed a “clear notice” requirement, despite having the opportunity to do

so, see id. at 1025.

Courts typically analyze jurisdictional contacts on a

claim-by-claim basis. See, e.g., Seiferth v. Helicopteros

Atuneros, Inc., 472 F.3d 266, 274-75 (5th Cir. 2006). But

courts “need not assess contacts on a claim-by-claim basis

if all claims arise from the same forum contacts.” See, e.g.,

Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142,

150-51 (Tex. 2013). Plaintiffs bring five claims: public nuisance, private nuisance, strict liability failure to warn,

negligent failure to warn, and trespass. Plaintiffs’ claims

all arise from the same alleged forum contacts for all Defendants—here, Defendants’ products were transported,

traded, distributed, promoted, marketed, refined, manufactured, sold, and/or consumed in Hawaiʻi. Plaintiffs’

claims also all arise from the same alleged acts—here, Defendants’ deceptive promotion of and failure to warn

about the dangers of using oil and gas. Accordingly, we

examine all claims against all Defendants together. See id.

1. Plaintiffs’ claims “arise out of relate to” Defendants’ in-state conduct

Quoting Ford Motor, Defendants argue that when

personal jurisdiction is based on “‘advertising, selling, and

servicing,’” the alleged injuries must be “caused by the

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use and malfunction of the defendant’s products within

the forum State” for specific jurisdiction to attach. 141 S.

Ct. at 1022. In short, Defendants say “the injury must occur in-state as a result of the use of the product in-state”

for specific jurisdiction to attach. In this case, Defendants

contend that Hawaiʻi is a small state, with only 0.02% of

the world’s population, that accounts for only 0.06% of the

world’s carbon dioxide emissions per year. Quoting Native Vill. of Kivalina v. ExxonMobil Corp., Defendants

argue that “‘the undifferentiated nature of greenhouse

gas emissions from all global sources and their world-wide

accumulation over long periods of time’ mean that ‘there

is no realistic possibility of tracing any particular alleged

effect of global warming to any particular emissions by

any specific person, entity, [or] group at any particular

point in time.’”5 663 F. Supp. 2d 863, 876 (N.D. Cal. 2009)

5

In Kivalina I, the Village of Kivalina brought a federal common

law nuisance claim for damages against 24 oil, energy, and utility companies. 663 F. Supp. 2d at 868. Defendants’ Kivalina I quotations are

taken from the court’s Article III standing analysis, not from an analysis of whether the court had specific jurisdiction under the minimum

contacts test. See id. at 881. The court concluded that because Kivalina sought damages for greenhouse gas emissions, which come

from “global sources and their worldwide accumulation”, the “multitude of alternative culprits” meant Kivalina could not establish its injury was fairly traceable to Defendants. Id. at 880-81 (quotation

marks omitted). Accordingly, the court dismissed the case for lack of

standing. Id. at 882. Kivalina I involved different claims than those

before us in this case, and was disposed of on standing, not minimum

contacts grounds—it is inapposite with respect to Defendants’ jurisdictional arguments. See id. at 868, 882.

But Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849

(9th Cir. 2012) (“Kivalina II”) is relevant to Defendants’ federal common law arguments. There, the Ninth Circuit affirmed the trial

court’s dismissal for lack of jurisdiction in Kivalina I, but not because

Kivalina lacked standing. Id. at 856-58. Instead, the Ninth Circuit determined that “AEP extinguished Kivalina’s federal common law

24a

(“Kivalina I”), aff’d, 696 F.3d 849 (9th Cir. 2012). Given

the “undifferentiated nature of greenhouse gas emissions,” Defendants argue the circuit court erred in asserting specific jurisdiction.

We agree with Plaintiffs that “Defendants’ arguments

for reversal flow[] from a single, fatally flawed premise:

they say, in various formulations, that they can only be

subject to personal jurisdiction if the climate change injuries Plaintiffs allege were caused by Defendants’ fossil

fuels being burned in Hawaiʻi.”6 Indeed, the U.S. Supreme Court rejected an argument similar to Defendants’

causation argument in Ford Motor, holding that the “causation-only approach finds no support in this Court’s requirement of a ‘connection’ between a plaintiff’s suit and

a defendant’s activities.” 141 S. Ct. at 1026.

In Ford Motor, the U.S. Supreme Court consolidated

two cases with the same underlying facts: in both, there

was a car accident in the forum state involving an allegedly malfunctioning Ford vehicle designed, manufactured, and sold outside of the forum state. Id. at 1023.

Ford moved to dismiss both cases, arguing that “the state

court . . . had jurisdiction only if the company’s conduct in

the State had given rise to the plaintiff’s claims.” Id. Ford

argued that a “causal link” was required: it was only subject to specific jurisdiction in the forum state “if the company had designed, manufactured, or—most likely—sold

public nuisance damage action, along with the federal common law

public nuisance abatement actions.” 696 F.3d at 858. Accordingly, Kivalina could not bring its federal common law nuisance claim, and dismissal was proper. Id.

Defendants’ causation arguments are better saved for the merits

stage of this litigation where Plaintiffs must prove causation with respect to all of its tort claims. Of course, we express no opinion as to

the validity of those arguments.

6

25a

in the State the particular vehicle involved in the accident.” Id.

The Supreme Court held that for specific jurisdiction

to attach, a defendant “must take ‘some act by which [it]

purposefully avails itself of the privilege of conducting activities within the forum State.’” Id. at 1024 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). “The contacts

must be the defendant’s own choice and not ‘random, isolated, or fortuitous.’” Id. at 1025 (quoting Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984)). The contacts

“must show that the defendant deliberately ‘reached out

beyond’ its home—by, for example, ‘exploi[ting] a market’

in the forum State or entering a contractual relationship

centered there.” Id. (quoting Walden v. Fiore, 571 U.S.

277, 285 (2014)).

Accordingly, for specific jurisdiction to attach, a plaintiff’s claims “‘must arise out of or relate to defendant’s

contacts’ with the forum.” Id. (quoting Bristol-Myers, 137

S. Ct. at 1786). “The first half of that standard asks about

causation; but the back half, after the ‘or,’ contemplates

that some relationships will support jurisdiction without a

causal showing.” Id. at 1026. Ford Motor thus requires

only “a ‘connection’ between a plaintiff’s suit and a defendant’s activities” for specific jurisdiction to attach. Id. at

1026 (quoting Bristol-Myers, 137 S. Ct. at 1776). “Or put

just a bit differently, there must be an affiliation between

the forum and the underlying controversy, principally,

[an] activity or an occurrence that takes place in the forum

State and is therefore subject to the State’s regulation.”

Id. at 1025 (quoting Bristol-Myers, 137 S. Ct. at 1779)

(quotation marks omitted).

Similar to Defendants’ arguments here, the Ford Motor defendants contended that the link between their fo-

26a

rum contacts and plaintiffs’ claims “must be causal in nature: Jurisdiction attaches ‘only if the defendant’s forum

conduct gave rise to the plaintiff’s claims.’” Id. at 1026.

But the Supreme Court made clear that it has “never

framed the specific jurisdiction inquiry as always requiring proof of causation—i.e., proof that the plaintiff’s claim

came about because of the defendant’s in-state conduct.”

Id.

The Court relied on World-Wide Volkswagen, 444

U.S. at 295, which “held that an Oklahoma court could not

assert jurisdiction over a New York car dealer just because a car it sold later caught fire in Oklahoma.” Ford

Motor, 141 S. Ct. at 1027. The World-Wide Volkswagen

court “contrasted the dealer’s position to that of two other

defendants—Audi, the car’s manufacturer, and

Volkswagen, the car’s nationwide importer (neither of

which contested jurisdiction).” Id. “[I]f Audi and

Volkswagen’s business deliberately extended into Oklahoma (among other States), then Oklahoma’s courts could

hold the companies accountable for a car’s catching fire

there—even though the vehicle had been designed and

made overseas and sold in New York.” Id. And while

“technically ‘dicta,’” the Audi/Volkswagen scenario from

World-Wide Volkswagen has become the “paradigm case

of specific jurisdiction” and has been “reaffirmed” in other

cases. Id. at 1027-28. This paradigm case appeared again

in Daimler, where the court again “did not limit jurisdiction to where the car was designed, manufactured, or first

sold.” Id. at 1028.

Turning back to the facts in Ford Motor, the Court explained that “[b]y every means imaginable—among them,

billboards, TV and radio spots, print ads, and direct

mail—Ford urges [people in the forum states] to buy its

27a

vehicles.” Id. Ford dealers regularly maintained and repaired Ford cars, and Ford distributed replacement parts

throughout both states. Id. Ford “systematically served a

market in [the forum states] for the very vehicles that the

plaintiffs allege malfunctioned and injured them in those

States.” Id. Accordingly, “there is a strong ‘relationship

among the defendant, the forum, and the litigation’—the

‘essential foundation’ of specific jurisdiction.” Id. (quoting

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

U.S. 408, 414 (1984)).

The same is true here. Defendants do not contest that

they purposefully availed themselves of the rights and

privileges of conducting extensive business in Hawaiʻi. Indeed, the Complaint alleges that each Defendant conducted substantial business in Hawaiʻi. Each defendant is

alleged to have transported, traded, distributed, promoted, marketed, refined, manufactured, sold, and/or

consumed oil and gas in Hawaiʻi. Plaintiffs also allege that

Defendants failed to warn consumers in Hawaiʻi about the

dangers of using the oil and gas Defendants sold in the

state and that Defendants engaged in a deceptive marketing campaign to conceal, deny, and discredit efforts to

make those dangers known to the public. Plaintiffs further allege that Defendants’ tortious failure to warn and

deceptive promotion caused extensive injuries in Hawaiʻi,

including:

injury or destruction of City—or [Honolulu Board of

Water Supply]—owned or operated facilities and

property deemed critical for operations, utility services, and risk management, as well as other assets

that are essential to community health, safety, and

well-being; increased planning and preparation costs

for community adaptation and resiliency to global

28a

warming’s effects; decreased tax revenue due to impacts on the local tourism—and ocean-based economy;

increased costs associated with public health impacts;

and others.

Just as in Ford Motor, “there is a strong ‘relationship

among the defendant, the forum, and the litigation’—the

‘essential foundation’ of specific jurisdiction.” See id.

(quoting Helicopteros, 466 U.S. at 414). Defendants sold

and marketed oil and gas in Hawaiʻi, availed themselves

of Hawaiʻi markets and laws, and the at-issue litigation

alleges tortious acts and damages in Hawaiʻi that “arise

out of” or “relate to” Defendants Hawaiʻi contacts, i.e., oil

and gas business conducted in the state. See id. at 1026.

Indeed, the connection between Defendants, Hawaiʻi, and

this litigation is more closely intertwined than that of

Ford Motor. See id. at 1028. Unlike in Ford Motor, here,

the alleged injury-causing products (oil and gas) were

marketed and sold in the forum state. See id. Therefore,

Defendants are subject to specific jurisdiction because

there is a clear and unambiguous “affiliation between the

forum and the underlying controversy.” See id. (quoting

Bristol-Myers, 137 S. Ct. at 1779) (quotation marks omitted).

Defendants rely on Martins v. Bridgestone Am. Tire

Ops., LLC, 266 A.3d 753, 759, 761 (R.I. 2022). Martins is

inapposite. In Martins, a Rhode Island resident drove a

truck from Massachusetts to Connecticut, and struck a

tree in Connecticut when an allegedly defective tire made

in and installed in Tennessee failed. Id. at 756. The Rhode

Island resident was severely injured and was taken to and

later died in Rhode Island. Id. The only connection between Rhode Island (the forum state) and the litigation

was that the decedent was a Rhode Island resident who

29a

passed away in Rhode Island. Id. at 761. The Rhode Island Supreme Court did not endorse the causation test

put forth by Defendants here—the court instead determined that the plaintiffs’ claims did not arise out of or relate to the tire companies’ Rhode Island contacts. Id.

The Supreme Court has “endorse[d] an ‘effects’ test of

jurisdiction in situations involving tortious acts.” Shaw, 76

Hawaiʻi at 330, 876 P.2d at 1298 (quoting Calder v. Jones,

465 U.S. 783, 789 (1984)). “Under this theory, asserting

jurisdiction against nonresident defendants who commit

torts directed at a forum state with the intention of causing in-state ‘effects’ satisfies due process.” Id. The effects

test inquiry “focuses on conduct that takes place outside

the forum state and that has effects inside the forum

state.” Freestream Aircraft, 905 F.3d at 604. Generally,

“[t]he commission of an intentional tort in a state is a purposeful act that will satisfy the first two requirements [of

the minimum contacts test].” Id. at 603 (quoting Paccar

Int’l, Inc. v. Com. Bank of Kuwait, S.A.K., 757 F.2d 1058,

1064 (9th Cir. 1985)). Therefore, where a nonresident defendant is alleged to have committed a tort directed at the

forum state, the effects test is an alternate due process

theory capable of establishing that: (1) the defendant purposefully availed themselves of the forum; and (2) the

plaintiff’s claim arises out of or relates to the defendant’s

forum contacts. Id. at 1062.

Plaintiffs argues that “the effects test . . . is satisfied

here” because “the Complaint alleges that the targets of

Defendants’ deceptive marketing and failure to warn included audiences and consumers in Hawaiʻi, and those

misrepresentations and omissions, directed at least in

part to Hawaiʻi, contributed to Plaintiff’s injuries.” Defendants counter that Plaintiffs failed to identify in their

Complaint “a single deceptive message that Defendants

30a

allegedly made in or directed at Hawaiʻi,” which “defeats

personal jurisdiction under the effects test.”

The circuit court did not engage in an “effects” test

analysis, and the parties’ briefs almost exclusively address the traditional “minimum contacts” test. Because

Defendants are subject to specific jurisdiction under the

minimum contacts test, see infra Section IV(A)(1), it is not

necessary to engage in an effects test analysis as to the

first two prongs of the due process inquiry. See Louis

Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1357

(11th Cir. 2013) (determining that because the plaintiff

had met the “purposeful availment” prong of the “minimum contacts” test, the court “need not analyze the ‘effects test’ here”).

Relatedly, Defendants argue that, under Shaw, Plaintiffs’ claims “bear at most an ‘incidental’ . . . relationship

to Defendants’ in-state activities and thus lack the requisite close connection found in Ford Motor that permitted

exercise of specific jurisdiction.” In Shaw, the court held

that for the purposes of the long-arm statute’s “transacting business” subsection, see HRS § 634-35(a)(1), the alleged Hawaiʻi business conduct (the signing of escrow

documents) was “merely incidental” to business at the

crux of the case (the escrow transaction, which happened

in California). Shaw, 76 Hawaiʻi at 328, 876 P.2d at 1296.

Thus, the plaintiff failed to sufficiently allege, for the purposes of the long-arm statute, that the defendant “transact[ed] business” in Hawaiʻi. Id.

The Court in Shaw held that the plaintiff sufficiently

alleged under another subsection of the long-arm statute

that the defendant committed a “tortious act” in Hawaiʻi,

see HRS § 634-35(a)(2), and that due process was satisfied

under the “effects” test. Shaw, 76 Hawaiʻi at 329-330, 332,

31a

876 P.2d at 1297-98, 1300. Notably, Shaw’s “merely incidental” holding did not affect the court’s due process analysis—the defendant was still subject to specific jurisdiction. See Shaw, 76 Hawaiʻi at 328, 876 P.2d at 1296. Here,

Defendants’ in-state conduct is anything but “merely incidental” to Plaintiffs’ claims. See id.

2. Exercising specific jurisdiction is reasonable

and does not “conflict with federalism principles”

The exercise of specific jurisdiction must “comport

with fair play and substantial justice, i.e. it must be reasonable.” Doe, 83 Hawai‘i at 374, 926 P.2d at 1297. In Doe,

this court adopted the Ninth Circuit’s seven-factor test for

determining whether the exercise of jurisdiction is reasonable, which is as follows:

(1) the extent of the defendants’ purposeful interjection into the forum state’s affairs; (2) the burden on the

defendant of defending in the forum; (3) the extent of

any conflict with the sovereignty of the defendants’

state; (4) the forum state’s interest in adjudicating the

dispute; (5) concerns of judicial efficiency; (6) the significance of the forum to the plaintiff’s interest in relief; and (7) the existence of alternative fora.

Id. (citing Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d

126, 127 (9th Cir. 1995)).

“None of the factors is solely dispositive; all seven are

weighed in the factual circumstances in which they arise.”

Id. (citation omitted). And, as here, “where a defendant

who purposefully has directed [their] activities at forum

residents seeks to defeat jurisdiction, [they] must present

a compelling case that the presence of some other considerations would render jurisdiction unreasonable.”

32a

Burger King, 471 U.S. at 477 (emphasis added). Therefore, “we begin with a presumption of reasonableness.”

Caruth, 59 F.3d at 128.

Defendants do not engage with the Doe factors, but

appear to argue that factors three and four weigh against

determining that the exercise of jurisdiction over Defendants is “reasonable.” Doe, 83 Hawai‘i at 374, 926 P.2d at

1297. Defendants say that “exercising personal jurisdiction here would be ‘[un]reasonable, in the context of our

federal system of government.’” Quoting Ford Motor, 141

S. Ct. at 1024) (brackets in original). According to Defendants, permitting specific jurisdiction in this context would

subject companies to climate change suits in every court

in the country. And if Plaintiffs’ theory were adopted

abroad, “American companies could be sued on climate

change-related claims in courts around the world.” According to Defendants, “[d]ue process does not countenance that result.” We review each of the Doe factors in

turn, and conclude that they weigh in favor of exercising

specific jurisdiction over Defendants because doing so is

“reasonable.” Id. Defendants have not “present[ed] a

compelling case” that the exercise of specific jurisdiction

here would be unreasonable. See Burger King, 471 U.S. at

477.

The first factor examines “the extent of the defendants’ purposeful interjection into the forum state’s affairs.” Doe, 83 Hawai‘i at 374, 926 P.2d at 1297. Defendants are alleged to have engaged in repeated, purposeful

business in Hawaiʻi. Their products were transported,

traded, distributed, promoted, marketed, refined, manufactured, sold, and/or consumed in Hawaiʻi.

The second factor examines “the burden on the defendant of defending in the forum.” Doe, 83 Hawai‘i at 374,

926 P.2d at 1297. Defendants are multi-national oil and

33a

gas corporations with billions in annual revenues. The

burden on Defendants in defending a suit in a state where

Defendants conduct extensive oil and gas business is

slight.

The third factor examines “the extent of any conflict

with the sovereignty of the defendants’ [home] state.” Id.

Defendants’ primary argument is that Plaintiffs’ “claims

[] implicate the interests of numerous other States and nations, many of which do not share the ‘substantive social

policies’ Plaintiffs seek to advance—such as curbing energy production and the use of fossil fuels or allocating the

downstream costs of consumer use to the energy companies to bear directly.” But this lawsuit does not seek to

regulate emissions or curb energy production—it seeks to

hold Defendants accountable for allegedly (1) failing to

warn about the dangers of their fossil fuel products and

(2) deceptively promoting those products. Holding Defendants accountable for their Hawaiʻi torts implicates

the sovereignty of no state other than Hawaiʻi. And, even

if this case did involve “substantive social policies” not advanced by other states, “the ‘fundamental substantive social policies’ of another State may be accommodated

through application of the forum’s choice-of-law rules.”

Burger King, 471 U.S. at 477.

Relying on Bristol-Myers Squibb Co. v. Superior Ct.

of Cal., 137 S. Ct. at 1780, Defendants further contend that

“asserting personal jurisdiction over these out-of-state

Defendants for global climate change would impermissibly interfere with the power of Defendants’ home States

(or nations) over their own corporate citizens and could

punish commercial conduct that occurred beyond the forum State’s borders.” However, Defendants’ reliance on

Bristol-Myers is misplaced.

34a

The U.S. Supreme Court in Bristol-Myers addressed

whether a claim arises out of or relates to a defendant’s

contacts—the second prong of the minimum contacts test.

Id. at 1781. The Court did not hold that specific jurisdiction was lacking because doing so would be unreasonable.

See id. Instead, the Court determined that specific jurisdiction was improper because there was no “connection

between the forum and the specific claims at issue.” See

id.

The fourth factor examines “the forum state’s interest

in adjudicating the dispute.” Doe, 83 Hawai‘i at 374, 926

P.2d at 1297. Defendants argue that “Hawaiʻi’s interests

in this suit . . . are no greater than other States,’” and later

state that Hawaiʻi’s interest is “slight.” However, we

agree with Plaintiffs that Hawaiʻi “has a strong interest

in remedying local harms related to corporate misconduct.”

The fifth factor examines the “concerns of judicial efficiency.” Id. Because this factor is not relevant here, and

Defendants make no arguments to the contrary, we do not

address it.

The sixth factor examines “the significance of the forum to the plaintiff’s interest in relief.” Id. Again, Plaintiffs seeks monetary damages for injuries allegedly suffered in Hawaiʻi as a result of Defendants’ alleged tortious

conduct in Hawaiʻi.

The seventh factor examines the “existence of alternate fora.” Id. Defendants have not shown that there is an

alternate forum that is better situated than Hawaiʻi to decide this dispute.

In sum, the Doe factors weigh heavily in favor of determining it is reasonable to exercise specific jurisdiction

over Defendants. See id. Further, given that Defendants

35a

purposefully availed themselves of Hawaiʻi markets, Defendants have failed to overcome the presumption that the

exercise of specific jurisdiction is reasonable. See Burger

King, 471 U.S. at 477, Caruth, 59 F.3d at 128.

3. The Due Process Clause does not require that

Defendants have “clear notice” they could be

subject to specific jurisdiction in Hawaiʻi

The exercise of specific jurisdiction is governed by the

three-part minimum contacts test: jurisdiction is proper

where: (1) the defendant purposefully avails itself of the

forum; (2) the defendant’s contacts “arise out of or relate

to” the plaintiff’s claim; and (3) the exercise of specific jurisdiction is reasonable. Doe, 83 Hawai‘i at 374, 926 P.2d

at 1297. Where the minimum contacts test is met, the exercise of specific jurisdiction comports with due process.

Id.

Defendants argue that in addition to the minimum

contacts test, the Fourteenth Amendment’s “Due Process

Clause requires a defendant’s activities in the forum to

place it on ‘clear notice’ that it is susceptible to a lawsuit

in that State for the claims asserted by a plaintiff,” Ford

Motor, 141 S. Ct. at 1025, 1030. (Emphasis added.) This is

wrong. The minimum contacts test “provides defendants

with ‘fair warning’ ” or, as the Supreme Court explained,

“knowledge that ‘a particular activity may subject [it] to

the jurisdiction of a foreign sovereign.” Id. at 1025 (emphasis added) (quoting Burger King, 471 U.S. at 472)

(brackets in original). “[F]air warning” is not an additional requirement for the exercise of specific jurisdiction.

Rather, “fair warning” is what due process “provides.” If

the minimum contacts test is met, a defendant has fair

warning; and if it has fair warning, then due process is

satisfied.

36a

The U.S. Supreme Court has not held that “clear notice” is a separate requirement (on top of the minimum

contacts test) necessary for the exercise of specific jurisdiction. In Ford Motor, the Court used the phrase “clear

notice” three times, once in a parenthetical and twice

when summarizing the holdings in World-Wide

Volkswagen. Id. at 1025, 1027, 1030. At no point did the

Court in Ford Motor hold that “clear notice” was required

for the exercise of specific jurisdiction. Id. Rather, the Supreme Court used the phrase “clear notice” in Ford Motor

and other cases like World-Wide Volkswagen to describe

situations where a defendant’s contacts were so pervasive

that the defendant had more than “fair warning” they

could be subject to specific jurisdiction in a forum. Id. at

1025, 1030; see also World-Wide Volkswagen, 444 U.S. at

297.

In sum, if a defendant has purposefully availed themselves of a forum, the claim arises from or relates to those

contacts with the forum, and the exercise of jurisdiction is

reasonable, the defendant has “fair warning” they could

be subject to specific jurisdiction in that forum. See id. at

1025. The minimum contacts test (and the “fair warning”

it provides) allows a defendant to “‘structure [its] primary

conduct’ to lessen or avoid exposure to a given State’s

courts.” Id. (quoting World-Wide Volkswagen, 444 U.S. at

297 (brackets in original)). Here, the exercise of specific

jurisdiction comports with due process because: (1) Defendants purposefully availed themselves of the benefits

and protections of Hawaiʻi laws; (2) Plaintiffs’ claims

“arise out of or relate to” Defendants’ Hawaiʻi contacts;

and (3) the exercise of specific jurisdiction is reasonable.

Defendants had—at a minimum—“fair warning” they

could be subject to suit in Hawaiʻi. See id.

37a

B. Federal Common Law Does Not Preempt Plaintiffs’ Claims

Defendants next argue that “[f]ederal law exclusively

governs claims seeking relief for injuries allegedly caused

by interstate and international emissions.” They say that

the “basic scheme of the [federal] Constitution . . . demands that federal common law,” AEP, 564 U.S. at 421

(quotation marks omitted), govern any dispute involving

“air and water in their ambient or interstate aspects,” Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972) (“Milwaukee I”). Defendants’ argument ignores well-settled

law that “the federal common law of nuisance that formerly governed transboundary pollution suits no longer

exists due to Congress’s displacement of that law through

the CAA.” Boulder, 25 F.4th at 1260; see also AEP, 564

U.S. at 421.

And despite its displacement, Defendants also argue

that federal common law plays a role in our preemption

analysis. They say that we should first look to whether

displaced federal common law preempts Plaintiffs’ claims,

and then to whether the CAA displaced federal common

law. We disagree. “When a federal statute displaces federal common law, the federal common law ceases to exist.”

Baltimore, 31 F.4th at 205. And as the Supreme Court explained in AEP, once federal common law is displaced,

“the availability vel non of a state lawsuit depends inter

alia on the preemptive effect of the federal Act,” not displaced federal common law. 564 U.S. at 429. Accordingly,

our preemption analysis requires analyzing the preemptive effect of only the CAA—and, it has none in this context. See supra Section IV(C).

Defendants’ federal common law preemption arguments also fail because Plaintiffs’ claims do not seek to

38a

regulate emissions. The federal common law cited by Defendants formerly governed transboundary pollution

abatement and damages suits, not the tortious marketing

and failure to warn claims brought by Plaintiffs. We agree

with the circuit court:

Plaintiffs’ framing of their claims in this case is more

accurate. The tort causes of action are well recognized.

They are tethered to existing well-known elements including duty, breach of duty, causation, and limits on

actual damages caused by the alleged wrongs. As this

court understands it, Plaintiffs do not ask for damages

for all effects of climate change; rather, they seek

damages only for the effects of climate change allegedly caused by Defendants’ breach of Hawaiʻi law regarding failures to disclose, failures to warn, and deceptive promotion (without deciding the issue, presumably by applying Hawaiʻi’s substantial factor test,

see, e.g., Estate of Frey v. Mastroianni, 146 Hawaiʻi

540, 550 (2020)). Plaintiffs do not ask this court to limit,

cap, or enjoin the production and sale of fossil fuels.

Defendants’ liability in this case, if any, results from

alleged tortious conduct, and not from lawful conduct

in producing and selling fossil fuels.

Simply put, Plaintiffs’ claims do not seek to regulate

emissions. Instead, Plaintiffs’ Complaint “clearly seeks to

challenge the promotion and sale of fossil-fuel products

without warning and abetted by a sophisticated disinformation campaign.” Baltimore, 31 F.4th at 233. Plaintiffs’

references to emissions in its Complaint “only serve to tell

a broader story about how the unrestrained production

and use of Defendants’ fossil-fuel products contribute to

greenhouse gas pollution.” Id.

39a

1. The federal common law governing interstate

pollution abatement and damages suits displaced by the CAA

Because the CAA displaced federal common law, we

cannot accept Defendants’ argument that the federal

common law governs here. First, “AEP extinguished []

federal common law public nuisance damage action[s],

along with the federal common law public nuisance abatement actions.” Native Vill. of Kivalina v. ExxonMobil

Corp., 696 F.3d 849, 857 (9th Cir. 2012) (“Kivalina II”).

Federal appellate courts have recently reaffirmed that

the federal common law once governing interstate pollution damages and abatement suits was displaced.7 In

Rhode Island v. Shell Oil Prod. Co., 35 F.4th 44 (1st Cir.

2022), cert. denied sub nom. Shell Oil Prod. Co. v. Rhode

Island, 143 S. Ct. 1796 (2023), the First Circuit held that

“[t]he Clean Water Act and the [CAA] . . . have statutorily

displaced any federal common law that previously existed,” and as such, the court could not “rule that any federal common law controls Rhode Island’s claims.” Id. at

55 (quotation marks omitted).

In Baltimore, the Fourth Circuit held that federal

common law did not control the city of “Baltimore’s statelaw claims because federal common law in this area

cease[d] to exist due to statutory displacement, Baltimore

[did] not invoke[] the federal statute displacing federal

7

These courts did so in the context of removal jurisdiction. All held

that federal common law did not govern the plaintiffs’ claims, and as

such, federal courts did not have jurisdiction over the at-issue state

law claims. But, regardless of context, all three cases directly addressed whether federal common law governs state common law

claims based on failure to warn and deceptive promotion theories.

And all three courts determined that federal common law had been

displaced.

40a

common law, and . . . the CAA does not completely

preempt Baltimore’s claims.” 31 F.4th at 204. And in

Boulder, the Tenth Circuit held that “the federal common

law of nuisance that formerly governed transboundary

pollution suits no longer exists due to Congress’s displacement of that law through the CAA.” 25 F.4th at 1260. Indeed, Defendants even concede that “[t]he Supreme

Court, the Ninth Circuit, and the Second Circuit have all

held that a tort-law claim for greenhouse gas emissions

arising under federal common law fails as a matter of law

under [Federal Rules of Civil Procedure Rule] 12(b)(6)

because Congress displaced such claims when it established a comprehensive regulatory scheme for emissions

via the CAA.” (Emphasis added.)

Nonetheless, Defendants cite to three cases (Milwaukee I, Oakland I, and City of New York) that they argue

support the proposition that federal common law governs

Plaintiffs’ claims. These cases have either been overturned (Milwaukee I and Oakland I) or rely on flawed

reasoning (City of New York).

In Milwaukee I, the state of Illinois brought an original action against the state of Wisconsin in the Supreme

Court for Wisconsin’s “pollution . . . of Lake Michigan, a

body of interstate water.”8 Milwaukee I, 406 U.S. at 93.

Illinois alleged Wisconsin discharged “200 million gallons

of raw or inadequately treated sewage and other waste

materials” daily into Lake Michigan. Id. The Supreme

Court explained that “where there is an overriding federal

interest in the need for a uniform rule of decision or where

8

The Court ultimately determined that “original jurisdiction [was]

not mandatory,” declined to exercise original jurisdiction, and remitted the case to the “appropriate district court whose powers are adequate to resolve the issues.” Milwaukee I, 406 U.S. at 98, 108.

41a

the controversy touches basic interests of federalism, we

have fashioned federal common law.” Id. at 105 n.6. The

Court concluded that “[c]ertainly these same demands for

applying federal law are present in the pollution of a body

of water such as Lake Michigan,” and that federal law

governs disputes involving “air and water in their ambient

or interstate aspects.” Id. at 103, 105 n.6.

Accordingly, the Court held that the “question of apportionment of interstate waters is a question of ‘federal

common law’ upon which state statutes or decisions are

not conclusive.” Id. at 105. Notably, the Court acknowledged that the federal common law it created might one

day be superseded by statute, explaining: “new federal

laws and new federal regulations may in time preempt the

field of federal common law of nuisance.” Id. at 107.

After the Court remitted Milwaukee I to the district

court to determine the outcome of the case under federal

common law, Congress “enacted the Federal Water Pollution Control Amendments of 1972 [(1972 FWPCA)].”

City of Milwaukee v. Illinois, 451 U.S. 304, 307 (1981)

(“Milwaukee II”). On appeal in Milwaukee II, the Court

held that in enacting the 1972 FWPCA, which governed

sewage discharges into interstate bodies of water, Congress displaced the federal common law created in Milwaukee I. The Court concluded:

Congress has not left the formulation of appropriate

federal standards to the courts through application of

often vague and indeterminate nuisance concepts and

maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert

administrative agency.

[...]

42a

The establishment of such a self-consciously comprehensive program by Congress, which certainly did not

exist when [Milwaukee I] was decided, strongly suggests that there is no room for courts to attempt to improve on that program with federal common law.

Milwaukee II, 451 U.S. at 317, 319.

Accordingly, the Court determined that “no federal

common-law remedy was available,” thus overruling Milwaukee I. Id. at 332. That holding was reaffirmed in AEP

when the Supreme Court determined that the federal

common law claims permitted by Milwaukee I were displaced by the CAA.9 AEP, 546 U.S. at 424.

Defendants also cite to Illinois v. City of Milwaukee, 731 F.2d

403, 411 (7th Cir. 1984) (“Milwaukee III”) for the proposition that the

displacement of “one form of federal law (common law) by another

(federal statute) does not somehow breathe life into nonexistent state

law.” On remand from Milwaukee II, Illinois argued that “Illinois

common law controlled this case until Milwaukee I judicially promulgated federal common law, and that since the 1972 FWPCA dissipated federal common law, Illinois law must again control.” Id. at 406.

The Seventh Circuit disagreed, and held that, “[g]iven the logic of

Milwaukee I and Milwaukee II, we think federal law must govern in

this situation except to the extent that the 1972 FWPCA (the governing federal law created by Congress) authorizes resort to state law.”

Id. at 411. Respectfully, the Seventh Circuit’s approach in Milwaukee

III ignores the presumption that state laws and claims are not

preempted absent “a clear and manifest purpose of Congress” to do

so. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)

(“[W]e start with the assumption that the historic police powers of the

States were not to be superseded by the Federal Act unless that was

the clear and manifest purpose of Congress.”).

9

Not surprisingly, the Supreme Court implicitly overruled the Seventh Circuit’s Milwaukee III decision in AEP when the Court held

that, after federal common is displaced, “the availability vel non of a

state lawsuit depends inter alia on the preemptive effect of the fed-

43a

Defendants also rely on City of Oakland v. BP PLC,

325 F. Supp. 3d 1017, 1021-22 (N.D. Cal. 2018) (“Oakland

I”), vacated and remanded sub nom. City of Oakland v.

BP PLC, 960 F.3d 570 (9th Cir. 2020), opinion amended

and superseded on denial of reh’g, 969 F.3d 895 (9th Cir.

2020). In Oakland I, the cities of Oakland and San Francisco brought suit against five large oil and gas companies10 in state court alleging one count of nuisance on the

same theory that Plaintiffs raises here. Id. at 1021-22. The

case was removed to federal court, and Oakland and San

Francisco then amended their complaint to add a “separate claim for public nuisance under federal common law.”

Id. The district court determined that AEP and Kivalina

II held that the CAA displaced federal common law claims

for emissions abatement and damages. Id. at 1024. Accordingly, the district court dismissed Oakland and San

Francisco’s federal common law claim and the state law

nuisance claim because “nuisance claims must stand or

fall under federal common law.” Id. at 1028.

On appeal, the Ninth Circuit reversed the federal district court, determining that Oakland and San Francisco

only added the federal common law claim “to conform” to

an earlier district court ruling. City of Oakland v. BP

PLC, 969 F.3d 895, 909 (9th Cir. 2020) (“Oakland II”). The

Ninth Circuit also determined that the state law nuisance

claim should not have been dismissed because “it is not

eral Act.” 564 U.S. at 429. Thus, contrary to Milwaukee III and Defendants’ argument, state law that was previously preempted by federal common law does have new life when the federal common law is

displaced. See id.

The five defendants in Oakland I (Chevron Corporation, Exxon

Mobil Corporation, BP p.l.c., Royal Dutch Shell plc, and ConocoPhillips) are also defendants in this case.

10

44a

clear that the claim requires an interpretation or application of federal law at all, because the Supreme Court has

not yet determined [(since AEP displaced the old federal

common law)] that there is a [new] federal common law of

public nuisance relating to interstate pollution.” Id. at 906.

Indeed, in Kivalina II, the Ninth Circuit held just that—

concluding that federal common law suits (not state common law suits) “aimed at imposing liability on energy producers for ‘acting in concert to create, contribute to, and

maintain global warming’ and ‘conspiring to mislead the

public about the science of global warming,’ [were] displaced by the [CCA].” Id. (quoting Kivalina II, 696 F.3d

at 854) (emphasis added). Therefore, the trial court was

incorrect when it determined that displaced federal common law required the dismissal of Oakland and San Francisco’s state common law claim because it was preempted.

Id. Since displaced federal common law did not provide a

federal jurisdictional hook, the Ninth Circuit remanded

the case to the federal district court to determine whether

there was an alternate basis for federal jurisdiction with

respect to only the state common law claim. Id. at 911.

Further, the Second Circuit in City of New York also

held that the “[CAA] displace[d] federal common law

claims concerned with domestic greenhouse gas emissions.” 993 F.3d at 95. Thus, Defendants’ best case—City

of New York—goes against them in part by holding that

the very federal common law they rely on is no longer

good law. Indeed, City of New York is consistent with

AEP, Rhode Island, Baltimore, Boulder, Kivalina II,

and Oakland II in holding that the federal common law

once governing interstate pollution suits was displaced by

the CAA. Accordingly, Defendants’ argument that federal

common law preempts Plaintiffs’ claims fails, because Defendants do not point to any case recognizing a federal

45a

common law action for interstate pollution suits that has

not been displaced by the CAA.

2. Federal common law does not retain preemptive effect after it is displaced

Defendants acknowledge that the federal common law

that once governed interstate pollution damages and

abatement suits was displaced by the CAA. Nonetheless,

Defendants argue that despite displacement, federal common law still lives. Defendants say that federal common

law still lives but only with enough power to preempt state

common law claims “involving interstate air pollution.”

According to Defendants, federal common law is both

dead and alive—it is dead in that the CAA has displaced

it, but alive in that it still operates with enough force to

preempt Plaintiffs’ state law claims.

Under Defendants’ preemption theory, this court

should first look to whether the federal common law governing interstate pollution damages and abatement

claims preempts Plaintiffs’ state common law claims. After determining that federal common law does in fact

preempt Plaintiffs’ state common law claims, Defendants

say this court should then look to whether the CAA displaced federal common law claims (and Defendants say it

did). Indeed, were this court to adopt Defendants’ twostep approach, Plaintiffs would have no viable cause of action under state or federal law. Federal common law

would preempt state common law, and in turn, the CAA

would displace federal common law. No common law

cause of action would be available. Further, no federal

statutory cause of action would be available because the

CAA does not contain one available to Plaintiffs, see 42

U.S.C. § 7401 et seq., and any state statutory cause of action would be preempted by federal common law, which,

in turn, would be displaced by the CAA.

46a

We decline to follow Defendants’ two-step approach

because it engages in backwards reasoning. This court

would first need to determine whether the federal common law governing interstate pollution suits is still good

law before determining whether it can preempt state law

claims. And, as we have explained above, the federal common law governing interstate pollution suits was displaced by the CAA and “no longer exists.” Boulder, 25

F.4th at 1260; see also Milwaukee II, 451 U.S. at 314

(“[W]hen Congress addresses a question previously governed by a decision rested on federal common law the

need for such an unusual exercise of lawmaking by federal

courts disappears.”).

Defendants’ approach cannot be reconciled with AEP.

In AEP, two groups of plaintiffs, including eight States,

brought suit against the Tennessee Valley Authority and

four private companies who were allegedly responsible

for 10% of global emissions. 564 U.S. at 418. The plaintiffs

brought federal common law and state law nuisance

claims, and “sought injunctive relief requiring each defendant to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least

a decade.” 564 U.S. at 419 (quotation marks omitted). The

Supreme Court held that the CAA displaced only federal

common law governing interstate emissions. Id. at 42829. Having determined that federal common law was displaced, the Court concluded that “the availability vel non

of a state lawsuit depends inter alia on the preemptive

effect of the [CAA].” Id. at 429. And since the parties had

not briefed whether the CAA preempted “the availability

of a claim under state nuisance law,” the Court left “the

matter open for consideration on remand.” Id.

In AEP, with regard to the plaintiffs’ state common

law nuisance claims, the relevant inquiry was not: (1)

47a

whether federal common law preempted the remaining

state law claims, and if so, (2) whether the CAA displaced

the federal common law. Id. Instead, AEP made clear that

whether the state law nuisance claims were preempted

depended only on an analysis of the CAA because “‘when

Congress addresses a question previously governed by a

decision rested on federal common law, . . . the need for

such an unusual exercise of law-making by federal courts

disappears.’” AEP, 564 U.S. at 423 (quoting Milwaukee

II, 451 U.S. at 314).11 The Supreme Court did not analyze

the federal common law’s preemptive effect because it

was displaced by the CAA. See id. And if federal common

law retained preemptive effect after displacement, the

Court would have instructed the trial court on remand to

examine whether displaced federal common law

preempted the state law claims. See id.

Simply put, displaced federal common law plays no

part in this court’s preemption analysis. Once federal

common law is displaced, the federal courts’ task is to “interpret and apply statutory law[.]” Nw. Airlines, Inc. v.

Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77,

95 n.34 (1981) (emphasis added). Therefore, “[a]s instructed in AEP and supported by [Kivalina II], we look

There is a “significant distinction between the statutory displacement of federal common law and the ordinary preemption of a state

law.” Baltimore, 31 F.4th at 205. Federal common law is disfavored

because “it is primarily the office of Congress, not the federal courts,

to prescribe national policy in areas of special federal interest.” AEP,

564 U.S. at 423-24. Thus, “[l]egislative displacement of federal common law does not require the ‘same sort of evidence of a clear and

manifest [congressional] purpose’ demanded for preemption of state

law.” Id. at 423. Instead, “[t]he test for whether congressional legislation excludes the declaration of federal common law is simply

whether the statute ‘speak[s] directly to [the] question’ at issue.” Id.

at 424. When federal common law is displaced, it “no longer exists.”

Boulder, 25 F.4th at 1260.

11

48a

to the federal act that displaced the federal common law

to determine whether the state claims are preempted.”

Boulder, 25 F.4th at 1261. The correct preemption analysis requires an examination only of the CAA’s preemptive

effect because “AEP extinguished [] federal common law

public nuisance damage action[s], along with the federal

common law public nuisance abatement actions.” Kivalina II, 696 F.3d at 857; see also id. at 866 (Pro, J., concurring) (“Once federal common law is displaced, state

nuisance law becomes an available option to the extent it

is not preempted by federal law.”).

Defendants primarily rely on City of New York to argue that their two-step preemption analysis is the correct

one. In that case, New York City filed a state-law tort suit

in federal court “against five oil companies to recover

damages caused by those companies’ admittedly legal

commercial conduct in producing and selling fossil fuels

around the world.” 993 F.3d at 86. At issue was whether

New York City’s claims were preempted by either federal

common law or the CAA. Id. at 89. The Second Circuit

first looked to whether federal common law governing interstate pollution damages and abatement suits

preempted New York City’s state law claims, holding that

it did. Id. at 95 (determining that New York City’s “claims

must be brought under federal common law”). Next, the

court examined whether the federal common law was displaced by the CAA, holding again that it was. Id. at 98 (determining that “federal common law claims concerning

domestic greenhouse gas emissions are displaced by statute.”). Thus, the Second Circuit held that displaced federal common law preempted New York City’s state law

claims. Id. at 95-98.

49a

We agree with the Fourth Circuit’s analysis in Baltimore, which explained why City of New York is not persuasive in that respect:

[A]fter recognizing federalism and the need for a uniform rule of decision as federal interests, City of New

York confusingly concludes that federal common law

is “most needed in this area” because New York’s

state-law claims touch upon the federal government’s

relations with foreign nations. [993 F.3d] at 91-92. But

it never details what those foreign relations are and

how they conflict with New York’s state-law claims.

See id. at 92. The same is true when City of New York

declares that state law would “upset[] the careful balance” between global warming’s prevention and energy production, economic growth, foreign policy, and

national security. Id. at 93. Besides referencing statutes acknowledging policy goals, the decision does not

mention any obligatory statutes or regulations explaining the specifics of energy production, economic

growth, foreign policy, or national security, and how

New York law conflicts therewith. See id. It also does

not detail how those statutory goals conflict with New

York law. See id. [Critically,] City of New York essentially evades the careful analysis that the Supreme

Court requires during a significant-conflict analysis.

Id. (emphasis added) (footnote omitted).

3. Even were federal common law to control, it

would not govern Plaintiffs’ claims

Even if federal common law governing interstate pollution claims had not been displaced, Plaintiffs’ claims

would not be preempted by it. The claims permitted by

50a

federal common law in this area were brought against polluting entities and sought to enjoin further pollution.12

See, e.g., Milwaukee I, 406 U.S. at 93 (requesting court

enjoin “pollution by the defendants of Lake Michigan”).

Indeed, in AEP, the plaintiffs sued the Tennessee Valley

Authority and other powerplant owners and sought injunctive relief to prevent future emissions. 564 U.S. at

418. As the Supreme Court explained in AEP, this “specialized federal common law” governed “suits brought by

one State to abate pollution emanating from another

State.” Id. at 421. Thus, the source of the injury in federal

common law claims is pollution traveling from one state to

another. That is not what Plaintiffs allege here.

Rather, as the Ninth Circuit explained in earlier proceedings in this case, Plaintiffs “allege that oil and gas

companies knew about climate change, understood the

harms energy exploration and extraction inflicted on the

environment, and concealed those harms from the public.” Sunoco LP, 39 F.4th at 1106 (emphasis added). As

Plaintiffs allege, “Defendants’ liability is causally tethered to their failure to warn and deceptive promotion,”

and “nothing in this lawsuit incentivizes—much less compels—Defendants to curb their fossil fuel production or

greenhouse gas emissions.” Simply put, the source of

Defendants cite to no cases recognizing federal common law

claims for interstate pollution damages. But this is neither here nor

there. Damages claims are no longer available under federal common

law. In Kivalina II, Kivalina sought “damages for harm caused by

past emissions.” 696 F.3d at 857. The Ninth Circuit determined that

“displacement of a federal common law right of action means displacement of remedies.” Id. Therefore, “AEP extinguished Kivalina’s

federal common law public nuisance damage action, along with the

federal common law public nuisance abatement actions.” Id. We

agree. Therefore, even though it appears that no court has recognized

a federal common law claim for interstate pollution damages, such

claims were displaced by the CAA. See id.

12

51a

Plaintiffs’ alleged injury is Defendants’ allegedly tortious

marketing conduct, not pollution traveling from one state

to another.

Numerous courts have rejected similar attempts by oil

and gas companies to reframe complaints alleging those

companies knew about the dangers of their products and

failed to warn the public or misled the public about those

dangers. The Ninth Circuit did so in this case. See id. at

1113. And in other cases alleging similar deceptive promotion and failure to warn torts, the Fourth Circuit, Tenth

Circuit, and the Districts of Connecticut, Massachusetts,

and Minnesota have also rejected attempts to characterize those claims as being about emissions and pollution.

See Boulder, 25 F.4th at 1264 (Boulder’s claims “are

premised on the Energy Companies’ activities of ‘knowingly producing, promoting, refining, marketing and selling a substantial amount of fossil fuels used at levels sufficient to alter the climate, and misrepresenting the dangers.’”); Baltimore, 31 F.4th at 217 (“None of Baltimore’s

claims concern emission standards, federal regulations

about those standards, or pollution permits. Their Complaint is about Defendants’ fossil-fuel products and extravagant misinformation campaign that contributed to

its injuries.”); Connecticut v. Exxon Mobil Corp., No.

3:20-CV-1555 (JCH), 2021 WL 2389739, at *13 (D. Conn.

June 2, 2021) (“ExxonMobil’s argument on this issue fails

because the claims Connecticut has chosen to bring in this

case seek redress for deceptive and unfair practices relating to ExxonMobil’s interactions with consumers in Connecticut—not for harms that might result from the manufacture or use of fossil fuels[.]”); Minnesota v. Am. Petroleum Inst., No. CV 20- 1636 (JRT/HB), 2021 WL 1215656,

at *13 (D. Minn. Mar. 31, 2021) (“[T]he State’s action here

is far more modest than the caricature Defendants present.”); Massachusetts v. Exxon Mobil Corp., 462 F.

52a

Supp. 3d 31, 44 (D. Mass. 2020) (“Contrary to ExxonMobil’s caricature of the complaint, the Commonwealth’s allegations do not require any forays into foreign relations

or national energy policy. It alleges only corporate

fraud.”).

The source of Plaintiffs’ alleged injury is Defendants’

alleged failure to warn and deceptive promotion. See

Sunoco LP, 39 F.4th at 1113 (“[t]his case is about whether

oil and gas companies misled the public about dangers

from fossil fuels.”). Even were this court to determine that

federal common law retains preemptive effect after displacement, the federal common law cited to by Defendants would not preempt Plaintiffs’ claims in this case. The

source of Plaintiffs’ injury is not pollution, nor emissions.

Instead, the source of Plaintiffs’ alleged injury is Defendants’ alleged failure to warn and deceptive promotion.

Therefore, even if federal common law had not been displaced, Plaintiffs’ claims would not be preempted by it.

4. We decline to expand federal common law, and,

in any event, Defendants waived such an argument

In their opening brief, Defendants say they “do not

seek to expand federal common law to a new sphere” and

instead “rely on extensive Supreme Court precedent establishing that federal law already governs in this area.”

Defendants have waived any argument to expand federal

common law to cover Plaintiffs’ claims here. Second, Defendants fail to point to any case recognizing new federal

common law decided after AEP and Kivalina II displaced

the old federal common law that once governed suits for

interstate pollution damages or abatement. We reiterate

that the sources of Plaintiffs’ alleged injury are Defend-

53a

ants’ alleged tortious marketing and failure to warn. Defendants also fail to point to any case recognizing federal

common law governing tortious marketing suits.

Even if Defendants had argued federal common law

should be expanded to cover tortious marketing, that argument would fail because the “cases in which federal

courts may engage in common lawmaking are few and far

between.” Rodriguez v. FDIC, 140 S. Ct. 713, 716 (2020).

We see no “uniquely federal interests” in regulating marketing conduct, an area traditionally governed by state

law. See id. at 717.

We also decline to create new federal common law governing suits that “involv[e] . . . interstate air pollution.”

(Emphasis in original.) Congress has enacted a comprehensive legislative scheme to address interstate air pollution, and “once Congress addresses a subject, even a subject previously governed by federal common law, the justification for lawmaking by the federal courts is greatly

diminished.” Nw. Airlines, 451 U.S. at 95 n.34 (emphasis

added). “[I]t is primarily the office of Congress, not the

federal courts, to prescribe national policy in areas of special federal interest.” AEP, 564 U.S. at 423-24. And

“[c]ases justifying judicial creation of preemptive federal

rules are extremely limited: [w]hether latent federal

power should be exercised to displace state law is primarily a decision for Congress, not the federal courts.” In re

Nat’l Sec. Agency Telecomms. Recs. Order Litig., 483 F.

Supp. 2d 934, 940 (N.D. Cal. 2007) (quoting Atherton, 519

U.S. at 218) (quotation marks omitted). “Our commitment

to the separation of powers is too fundamental to continue

to rely on federal common law by judicially decreeing

what accords with common sense and the public weal

when Congress has addressed the problem.” Milwaukee

II, 451 U.S. at 315 (internal quotation marks omitted).

54a

C. The CAA Does Not Preempt Plaintiffs’ Claims

Having determined that displaced federal common

law plays no part in this court’s preemption analysis, we

now turn to whether the CAA preempts Plaintiffs’ state

claims. See Boulder, 25 F.4th at 1261 (“As instructed in

AEP and supported by [Kivalina II], we look to the federal act that displaced the federal common law to determine whether the state claims are preempted.”). Defendants say that federal law must govern all suits that “involve[] interstate and international emissions.” (Emphasis added). They say that a large damage award in effect

could regulate air pollution,13 and that air pollution is an

area governed exclusively by “federal law.” But the question before the court is not whether a potential damages

award in this case could regulate air pollution. If that were

true, then any case with a potentially large damage award

must be dismissed because it might regulate a field—the

mere possibility of regulation, standing alone, is not

enough to dismiss Plaintiffs’ claims. A suit does not “regulate” a matter simply because it might have “an impact”

on that matter. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,

50 (1987). Rather, the operative question is whether Plaintiffs’ state law claims are preempted by federal law. To

prevail, Defendants need to show not only that Plaintiffs’

Defendants cite to Kurns v. R.R. Friction Prod. Corp., 565 U.S.

625, 637 (2012), a products liability cases involving a railroad worker

exposed to asbestos, to argue that damages awards can effectively act

as regulation. This is accurate, but incomplete. The Court did not ask

only whether such a large damages award could operate as a regulation. The Court further engaged in a preemption analysis, and asked

whether such an award was preempted by federal law. Id. Based on

prior precedent, the Court concluded that Congress had occupied the

entire field of locomotive equipment regulation and that the worker’s

claims were therefore preempted. Id.

13

55a

claims could lead to a large damages award that effectively acts as a regulation, but critically, that such a large

damages award is preempted by federal law. Defendants

do not do so.

The doctrine of preemption is rooted in the federal

Constitution’s Supremacy Clause, which provides that

federal law “shall be the supreme Law of the Land; . . .

any Thing in the Constitution or Laws of any state to the

Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

Courts begin with the presumption that state laws and

claims are not preempted. Wyeth v. Levine, 555 U.S. 555,

565 (2009). This is because the “historic police powers of

the States [are] not to be superseded . . . unless that was

the clear and manifest purpose of Congress.” Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (citing

Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611

(1926) and Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U.S. 740, 749 (1942)).14 Therefore, when determining whether a statute is preempted

through any preemption doctrine, courts primarily evaluate whether Congress intended to preempt state law. Id.

There are two types of preemption: complete and substantive (or ordinary) preemption. City of Hoboken v.

Chevron Corp., 45 F.4th 699, 707 (3d Cir. 2022). Complete

14

The Supreme Court has applied this presumption against

preemption of historic police powers broadly. Cipollone v. Liggett

Grp., Inc., 505 U.S.504, 528-29 (1992) (requiring a showing of congressional intent to supersede state common law duties not to make false

statements or conceal facts and holding that Congress expressed no

such intent in the Federal Cigarette Labeling and Advertising Act);

CTS Corp v. Waldburger, 573 U.S. 1, 19 (2014) (quoting Wos v.

E.M.A., 568 U.S. 627, 639-40 (2013)) (“[i]n our federal system, there

is no question that States possess the ‘traditional authority to provide

tort remedies to their citizens’ as they see fit”).

56a

preemption applies only in the context of federal removal

jurisdiction, which is not at issue here.15 Id. Defendants

argue that the CAA substantively preempts Plaintiffs’

state tort law claims.

In general, there are three types of substantive

preemption:

(1) express preemption, where Congress has expressly

preempted local law; (2) field preemption, “where

Congress has legislated so comprehensively that federal law occupies an entire field of regulation and

leaves no room for state law”; and (3) conflict preemption, where local law conflicts with federal law such

that it is impossible for a party to comply with both or

the local law is an obstacle to the achievement of federal objectives.

New York SMSA Ltd. P’ship v. Town of Clarkstown,

612 F.3d 97, 104 (2d Cir. 2010) (emphases added) (citing

English v. General Elec. Co., 496 U.S. 72, 78-79 (1990)).

Defendants do not specify which substantive preemption theory they rely on. We address each preemption theory in turn.

First, express preemption does not apply. Federal law

expressly preempts state law where the federal statute

contains an express preemption clause barring state law

claims in enumerated areas. Oneok, Inc. v. Learjet, Inc.,

575 U.S. 373, 376 (2015) (holding that Congress may “preempt . . . a state law through . . . express language in a

The Supreme Court has only recognized three federal statutes

that completely preempt state laws: “ERISA, the National Bank Act,

and the Labor-Management Relations Act.” City of Hoboken, 45

F.4th at 707 (citing Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 68, 10-11 (2003)).

15

57a

statute”). Simply put, the CAA contains no “express language” preempting state common law tort claims. See id.

Rather, the CAA explicitly preserves “any right which

any person (or class of persons) may have under any statute or common law to seek enforcement of any emission

standard or limitation or to seek any other relief[.]” 42

U.S.C. § 7604(e) (2018).

Second, field preemption does not apply because the

CAA does not completely occupy the field of emissions.

Field preemption applies where (1) the “scheme of federal

regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement” the regulation, or (2) the “federal interest is so

dominant” in a field “that the federal system will be assumed to preclude enforcement of state laws on the same

subject.” Rice, 331 U.S. at 230. Field preemption “reflects

a congressional decision to foreclose any state regulation

in the area, even if it is parallel to federal standards,” so

“even complementary state regulation is impermissible”

when Congress has occupied an entire field. Arizona v.

United States, 567 U.S. 387, 401 (2012).

The CAA simply does not occupy the entire field of

emissions regulation, as noted above. Merrick, 805 F.3d

at 694 (holding that CAA does not bar state common law

claims against in-state emitters because “environmental

regulation is a field that the states have traditionally occupied”). “There is no evidence that Congress intended

that all emissions regulation occur through the [CAA’s]

framework, such that any state law approach to emissions

regulation would stand as an obstacle to Congress’s objectives.” Id. at 695. Indeed, under the CAA, each state retains regulatory power through their State Implementation Plan (SIP), which provides for state-level implementation, maintenance, and enforcement of CAA emissions

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standards with federal oversight. 42 U.S.C. § 7410(a)(1)

(2018). While the federal government has primary authority over emissions legislation, states are responsible for

implementation through their SIP. See id. And the CAA’s

“Retention of State authority” section expressly protects

a state’s right to adopt or enforce any standard or limitation respecting emissions unless the state policy in question would be less stringent than the CAA. 42 U.S.C.

§ 7416 (2018).16 Congress encouraged states to participate

through SIPs and provided for state regulation of any

emissions standard or limitation as stringent as or more

stringent than the CAA. See 42 U.S.C. § 7410(a)(1) (2018).

Accordingly, the CAA does not occupy the field of

emissions regulation such that state law is preempted—it

does not “reflect[] a congressional decision to foreclose

any state regulation in the area.” Arizona, 567 U.S. at 401.

And, even if it did, the City’s claims do not seek to regulate

emissions, and so a claim of field preemption in the field

of emissions regulation is inapposite.

Third, conflict preemption does not apply. Conflict

preemption takes two forms. The first form is obstacle

16

42 U.S.C. § 7416 (2018) provides:

Except as otherwise provided in sections 1857c-10(c), (e), and (f)

(as in effect before August 7, 1977), 7543, 7545(c)(4), and 7573 of

this title (preempting certain State regulation of moving sources)

nothing in this chapter shall preclude or deny the right of any

State or political subdivision thereof to adopt or enforce (1) any

standard or limitation respecting emissions of air pollutants or (2)

any requirement respecting control or abatement of air pollution;

except that if an emission standard or limitation is in effect under

an applicable implementation plan or under section 7411 or section 7412 of this title, such State or political subdivision may not

adopt or enforce any emission standard or limitation which is less

stringent than the standard or limitation under such plan or section.

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preemption, where state law claims “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Arizona, 567 U.S. at

399 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

The second form is impossibility preemption, which is a

“demanding defense”, Wyeth, 555 U.S. at 573, that succeeds where state law claims are shown to directly conflict

with federal law or penalize behavior that federal law requires. AT&T Co. v. Cent. Off. Tel., Inc., 524 U.S. 214, 227

(1998) (holding that federal statute preempts state law

when state law claims directly conflict with federal law);

Geier v. Am. Honda Motor Co., 529 U.S. 864, 873 (2000)

(holding that federal statute preempts state law where

state law penalizes what federal law requires). Neither

obstacle preemption nor impossibility preemption applies

here.

1. Obstacle preemption does not apply

The CAA does not preempt Plaintiffs’ claims through

obstacle preemption because their claims arise from Defendants’ alleged failure to warn and deceptive marketing

conduct, not emissions-producing activities regulated by

the CAA. Obstacle preemption applies only where there

is an “actual conflict” between state law and a statute’s

overriding federal purpose and objective. Mary Jo C. v.

N.Y. State & Loc. Ret. Sys., 707 F.3d 144, 162 (2d Cir.

2013). “[T]he conflict between state law and federal policy

must be a sharp one.” Marsh v. Rosenbloom, 499 F.3d 165,

178 (2d Cir. 2006) (quotation marks omitted). The operative federal purpose or policy is defined by “examining the

federal statute as a whole and identifying its purpose and

intended effects,” and “[w]hat is a sufficient obstacle is a

matter of judgment.” Arizona, 567 U.S. at 400 (quoting

Crosby, 530 U.S. at 363).

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The U.S. Supreme Court has applied this standard

sparingly, finding obstacle preemption in only two scenarios: (1) where a federal legislation involved a uniquely federal area of regulation and state law directly conflicted

with the federal program’s operation, and (2) where Congress has clearly chosen to preclude state regulation because the federal legislation struck a delicate balance of

interests at risk of disturbance by state regulation.17 In re

Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prod.

Liab. Litig., 959 F.3d 1201, 1212 (9th Cir. 2020). But this

is a “high threshold.” Chamber of Com. of U.S. v. Whiting,

563 U.S. 582, 607 (2011).

Here, the CAA’s identified purposes are to protect the

country’s air resources, public health, and welfare; prevent and control air pollution; and support state, local, and

regional air pollution prevention and control efforts. See

42 U.S.C. § 7401(b) (2018); Bunker Hill Co. Lead & Zinc

Smelter v. EPA, 658 F.2d 1280, 1284 (9th Cir. 1981) (“[The

CAA] was intended comprehensively to regulate, through

guidelines and controls, the complexities of restraining

The first category historically includes areas such as foreign affairs powers and regulating maritime vessels. Crosby, 530 U.S. at 37374 (holding that the federal foreign affairs power is a uniquely federal

area of regulation); United States v. Locke, 529 U.S. 89, 97 (2000)

(holding that maritime vessel regulation is a uniquely federal area).

The second category historically includes criminal immigration penalties, vehicle safety device implementation, and interstate pollution

under the Clean Water Act. Arizona, 567 U.S. at 405 (holding that the

federal government struck a balance in immigration penalties that

would be disturbed by an additional state law criminal penalty);

Geier, 529 U.S. at 879-81 (holding that the federal government struck

a balance in gradual airbag phase-in that would be undermined by a

state law immediate implementation requirement); Int’l Paper Co. v.

Ouellette, 479 U.S. 481, 494, 497 (1987) (holding that affected-state

claims against out-of-state polluters stand as an obstacle to the balance struck by the Clean Water Act).

17

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and curtailing modern day air pollution.”). The CAA

achieves these purposes primarily by “regulat[ing] pollution-generating emissions from both stationary sources,

such as factories and powerplants, and moving sources,

such as cars, trucks, and aircraft.” Util. Air Regul. Grp. v.

EPA, 573 U.S. 302, 308 (2014).

Plaintiffs’ state tort law claims do not seek to regulate

emissions, and there is thus no “actual conflict” between

Hawaiʻi tort law and the CAA. See Mary Jo, 707 F.3d at

162. These claims potentially regulate marketing conduct

while the CAA regulates pollution. We agree with Plaintiffs that the “CAA does not concern itself in any way with

the acts that trigger liability under Plaintiffs’ Complaint,

namely: the use of deception to promote the consumption

of fossil fuel products.” The CAA expresses no policy preference and does not even mention marketing regulations.

Defendants argue that the CAA preempts Plaintiffs’

claims because Congress preempted affected-state common law claims regarding emissions through the CAA,

and Plaintiffs’ claims seek to regulate out-of-state emissions. Affected-state claims are state law actions where

the injury occurred in a different state from the state

where the emission was released; courts have held that

the CAA preempts these claims. See Int’l Paper Co. v.

Ouellette, 479 U.S. 481, 500 (1987). Source-state claims are

state law actions where the injury was suffered in the

same state as the emitting conduct; courts have held that

the CAA does not preempt these claims. See id.

Relying on Ouellette, Defendants say “[e]very federal

court of appeals to consider this issue has recognized that

the CAA does not permit States to use their state tort law

to address harms caused by emissions occurring in other

States.” Defendants are correct, but their analysis is incomplete. In Ouellette, the Supreme Court examined

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whether the Clean Water Act (CWA) preempted “a common-law nuisance suit filed in a Vermont court under Vermont law, when the source of the alleged injury [was] located in New York.” Id. at 483. The Supreme Court held

that affected-state common law claims arising from polluting activity located outside the affected-state are

preempted by the CWA because “[t]he application of affected-state laws would be incompatible with the [CWA’s]

delegation of authority and its comprehensive regulation

of water pollution.” Id. at 500. Applying affected-state

common law could potentially subject a defendant-polluter to “an indeterminate number of potential regulations” depending on how far the emission traveled.18 Id. at

499; see also Merrick, 805 F.3d at 693 (explaining that

“claims based on the common law of the source state . . .

are not preempted by the [CAA,]” but “claims based on

the common law of a non-source state . . . are preempted

by the [CAA]”).

Defendants also cite to N. Carolina, ex rel. Cooper v. Tennessee

Valley Auth., 615 F.3d 291, 297 (4th Cir. 2010), arguing that Ouellette’s rationale in determining the CWA preempted affected state

common law claims should be applied to the CAA. In Cooper, the

Fourth Circuit determined that North Carolina’s nuisance action

seeking an injunction against fixed powerplants from emitting sulfur

dioxides and nitrous oxides was preempted by the CAA because the

“EPA has promulgated [National Ambient Air Quality Standards] for

a number of emissions, including standards for all the emissions involved in this case.” Id. at 299. Critically, the CAA, and the agency it

empowers (the EPA), had already expressly regulated the very emissions (sulfur dioxides and nitrous oxides) alleged to have caused the

nuisance. Id. at 299-303. But the Cooper court refused to “hold flatly

that Congress has entirely preempted the field of emissions regulation.” Id. at 302. And it acknowledged that the “Ouellette Court itself

explicitly refrained from categorically preempting every nuisance action brought under source state law.” Id. at 303.

18

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But the rationale motivating the Ouellette court in

preempting affected-state common law claims does not

apply to Plaintiffs’ state tort claims. This is because Plaintiffs’ claims require “additional tortious conduct” to succeed. MTBE, 725 F.3d at 104. Here, that additional tortious conduct is Defendants’ alleged deceptive marketing

and failure to warn about the dangers of using their products—the source of Plaintiffs’ alleged injury is not emissions but the additional alleged torts.

In this case, as in MTBE, Defendants’ alleged tortious

conduct is not production of emissions and therefore, obstacle preemption does not apply. In MTBE, the defendant gasoline producer used MTBE, a fuel additive that reduced emissions, to bring its gasoline into compliance with

the CAA’s minimum oxygen content requirement. Id. at

129. The CAA identified a number of substances, including MTBE, that could have been added to gasoline to help

bring it into compliance with the oxygen content requirement. Id. at 81. New York City and its agencies brought

ten causes of action, including strict liability failure to

warn, negligence, public nuisance, private nuisance, and

trespass, arguing that the defendant oil producer’s use of

MTBE caused detrimental contamination of groundwater. Id. at 80-83. The defendant argued that the plaintiff’s

tort claims “conflict[ed] with and are therefore preempted

by . . . the [CAA] Amendments of 1990[.]” Id. at 95.

The Second Circuit held that New York City’s claims

were not preempted under either obstacle or impossibility

preemption. Id. at 97-103. The court held that where a

party participates in a non-polluting emissions-related activity (i.e., choosing gasoline additives), the fact that it

complied with relevant CAA provisions did not absolve

the party of any state common law or statutory duties to

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warn of public hazards or comply with an additional standard of care. Id. at 65. In short, the Second Circuit determined that state tort law claims are not preempted by the

CAA where the alleged tortious behavior does not produce emissions. Id. at 104-05.

Plaintiffs’ claims simply do not risk subjecting Defendants to “an indeterminate number of potential regulations” because the claims do not subject Defendants to

any additional emissions regulation at all. See Ouellette,

479 U.S. at 499. Plaintiffs are correct that where the emissions originate is irrelevant because emissions are at most

a link in the causal chain connecting Plaintiffs’ alleged injuries and Defendants’ unrelated liability-incurring behavior. [AB at 33, ICA Dkt. 65:43] Simply put, this means

obstacle preemption does not apply.

2. Impossibility preemption does not apply

At its most demanding, the impossibility doctrine historically required it to be a “physical impossibility” to

comply with both state and federal requirements for federal law to preempt state law. Florida Lime & Avocado

Growers v. Paul, 373 U.S. 132, 143 (1963).19 The modern

impossibility doctrine is broader and now includes instances where state law penalizes what federal law requires, Geier, 529 U.S. at 873, or where state law claims

Under the Florida Lime & Avocado Growers standard, some scenarios would yield different results than preemption doctrine’s intended effect: “[f]or example, if federal law gives an individual the

right to engage in certain behavior that state law prohibits, the laws

would give contradictory commands notwithstanding the fact that an

individual could comply with both by electing to refrain from the covered behavior.” Wyeth, 555 U.S. at 590 (2009) (Thomas, J., concurring). In that scenario, it is not a physical impossibility to comply with

both requirements, but modern doctrine would find a sufficient conflict between federal and state law to preempt state law through impossibility preemption.

19

65a

directly conflict with federal law, AT&T Co., 524 U.S. at

227. But impossibility preemption is still a “demanding

defense.” Wyeth, 555 U.S. at 573. Defendants do not raise

impossibility preemption, and it does not apply regardless.

MTBE is instructive again. There, the Second Circuit

declined to preempt state tort claims through impossibility preemption where: (1) it was possible to comply with

the CAA and avoid tort liability; (2) state and federal law

did not directly conflict; and (3) the CAA did not require

the alleged conduct. MBTE, 725 F.3d at 97. The oil producer defendant could have complied with both state and

federal law if it had used other additives (like ethanol) that

did not pose the same health risk as MTBE but would

bring the fuel into CAA oxygen content compliance without incurring prohibitively high costs. Id. at 99-101.

Though the CAA identified MTBE as one additive that

would sufficiently boost oxygen content, at no point did it

require the specific use of MTBE in gasoline—it was one

of many options. Id. at 98.

The same is true here. The CAA does not bar Defendants from warning consumers about the dangers of using

their fossil fuel products. See id. Defendants could simply

avoid federal and state liability by adhering to the CAA

and separately issuing warnings and refraining from deceptive conduct as required by Hawaiʻi law; it is not a

“physical impossibility” to do both concurrently. See Florida Lime & Avocado Growers, 373 U.S. at 143; State ex

rel. Shikada v. Bristol-Myers Squibb Co., 152 Hawaiʻi

418, 438, 526 P.3d 395, 415 (2023) (rejecting a pharmaceutical company’s argument that “there was no way [it]

could have updated [a drug’s] label to provide the warning

that [state law] require[d] and at the same time comply

with federal law” regarding drug labeling).

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V. CONCLUSION

For the foregoing reasons, we hold that Defendants

are subject to specific jurisdiction in Hawaiʻi and that neither federal common law nor the Clean Air Act preempt

Plaintiffs’ claims. We reiterate that federal common law

retains no preemptive effect after it is displaced. Were we

to adopt Defendants’ argument that displaced federal

common law preempts Plaintiffs’ state law claims, Plaintiffs could not recover under Hawai‘i tort law, even where

the state specifically permits lawsuits to hold companies

responsible for allegedly deceptive marketing claims

about any product, including oil and gas products. We decline to unduly limit Hawai‘i’s ability to use its police powers to protect its citizens from alleged deceptive marketing.

Accordingly, the circuit court’s Order Denying Defendants’ Motion to Dismiss for Failure to State a Claim,

filed March 29, 2022, and Order Denying Defendants’

Joint Motion to Dismiss for Lack of Personal Jurisdiction,

filed March 31, 2022, are affirmed.

EDDINS, J., concurring.

I agree with the Chief Justice’s well-reasoned opinion.

Because the principles that govern personal jurisdiction arose after 1868, I write separately.

Enduring law is imperiled. Emerging law is stunted.

A justice’s personal values and ideas about the very old

days suddenly control the lives of present and future generations. Recently, the Supreme Court erased a constitutional right. It recalled autonomy and empowered states

to force birth “for one reason and one reason only: because the composition of this Court has changed.” Dobbs

67a

v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2319-20

(2022) (Kagan, J., dissenting). The day before, the Court

cherry-picked history to veto public safety legislation, disturb the tranquility of public places, and increase homicide. New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111 (2022). The same week, it promoted a conjured idea hostile to judicial restraint—“major questions.” When executive branch policy-making grazes disliked policy preferences, major questions “magically appear as get-out-of-text-free cards.” West Virginia v. EPA,

142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting).

For now, International Shoe still fits. Defendants

must have minimum contacts with the forum state such

that exercising jurisdiction over them does not offend traditional notions of fair play and substantial justice. But

the due process clause mentions neither fairness and justice, nor minimum contacts. And those standards clash

with how courts determined personal jurisdiction long

ago. See Pennoyer v. Neff, 95 U.S. 714, 733 (1877) (courts

lack jurisdiction over defendants who are not physically

present in the state or who have not consented to jurisdiction).

So when justices solicit cases to test their way against

durable personal jurisdiction principles, a state occupying

one of the world’s most geographically isolated land

masses pays attention. Ford Motor’s concurrence announced “International Shoe’s increasingly doubtful dichotomy.” Ford Motor Co. v. Montana Eighth Jud. Dist.

Ct., 141 S. Ct. 1017, 1039 (2021) (Gorsuch, J., concurring).

It floated reviving the old tag rule to hale corporations

into court, asking “future litigants and lower courts” to

help determine how the Constitution’s original meaning

or history jostles personal jurisdiction law. Id.

68a

Back in the day, parties played tag inside a state’s

boundaries. Once tagged, a party could be sued for anything, even things that happened outside the state. Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 128 (2023). But if

a party couldn’t be tagged, they couldn’t be personally

sued.

Time-travelling to 1868 would unravel Hawaiʻi’s long

arm statute. Hawaiʻi Revised Statutes (HRS) § 634-35

(2016) reaches as far as the federal constitution allows.

Yamashita v. LG Chem, Ltd., 152 Hawaiʻi 19, 21, 518 P.3d

1169, 1171 (2022). A state registration statute preserves

jurisdiction over national corporations. Mallory, 600 U.S.

at 134. But what about other businesses, shell companies,

and individuals that do not enter or remain in Hawaiʻi?

See Shaffer v. Heitner, 433 U.S. 186, 200 (1977) (“The Pennoyer rules generally favored nonresident defendants by

making them harder to sue”).

Now, settled law easily unsettles. Some justices feel

precedent is advisory. See Gamble v. United States, 139 S.

Ct. 1960, 1984 (2019) (Thomas, J., concurring); Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1728 (2013); Dobbs, 142 S. Ct.

at 2265. Who knows what law may vanish? Or what text

gets exiled next? See, e.g., Trinity Lutheran Church of

Columbia, Inc. v. Comer, 582 U.S. 449, 466 (2017) (ghosting the Establishment Clause).

Before the Court’s hubristic originalists arrived, everyone got it wrong. Well, mostly everyone. See Dred Scott

v. Sandford, 60 U.S. 393, 405 (1857) (enslaving human beings and denying citizenship based on race because the

Supreme Court must interpret the Constitution “according to its true intent and meaning when it was adopted”).

All others, hall-of-fame jurists to 1Ls, held egregiously

wrong-headed views. Only public meaning at inception

69a

counts. Traditional methods to interpret the Constitution

are unacceptable. See, e.g., Brown v. Bd. of Educ. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 492-93 (1954)

(“In approaching this problem, we cannot turn the clock

back to 1868 when the Amendment was adopted, or even

to 1896 when Plessy v. Ferguson was written. We must

consider public education in the light of its full development and its present place in American life throughout

the Nation”).

A chosen interpretive theory cages the Constitution.

Why originalism? To keep value judgments out of judging.

To constrain judges.

Not that judges are always restrained. See, e.g.,

Shelby Cnty., Ala. v. Holder, 570 U.S. 529 (2013) (dismembering a cornerstone of American civil rights because a

few judges made up a textually-unsupported rule that Alabama’s equal sovereignty prevents the federal government from enforcing federal law—a law those judges felt

worked too well).

Inconvenient originalism nurtures views that the

Court operates as a political body. For instance, Citizens

United v. Fed. Election Comm’n, 558 U.S. 310 (2010),

sidestepped text, history, and tradition to invalidate a major law on a question vital to democracy—limitless corporate money influencing elections. Corporations though

have never been “members of ‘We the People’ by whom

and for whom our Constitution was established.” Id. at

466 (opinion of Stevens, J.). In 1791, corporations were

rare, highly regulated creations of the states and not mentioned in the Constitution. Id. at 426-27. Corporations had

privileges, not rights. Id. at 427. They did not enjoy the

same free speech protections as people. Id. at 428-29, 466

(“corporations have no consciences, no beliefs, no feelings,

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no thoughts, no desires”). And they certainly were not

spending silver coins to sway elections.

Whose history are we talking about anyway? The powerful. The few white men who made laws and shaped lives

during the mostly racist and misogynistic very old days.

Originalism revives their value judgments. To constrain

the value judgments of contemporary judges!

What about today’s need-to-be-constrained judges?

They need to be historians. Figuring out the way things

were to govern the way things are. Excavating 18th and

19th century experiences to control 21st century life.

How? Relying on partisan amicus briefs, borrowing history books and dictionaries, searching online, using artificial intelligence? As one judge put it: “[T]he standard articulated in Bruen expects us to play historian in the name

of constitutional adjudication.” United States v. Bullock,

___ F. Supp. 3d ___, 2023 WL 4232309, at *4-*5 (S.D.

Miss. 2023) (Reeves, J.) (“[A]n overwhelming majority of

historians reject the Supreme Court’s most fundamental

Second Amendment holding—its 2008 conclusion that the

Amendment protects an individual right to bear arms, rather than a collective, Militia-based right”) (both quotes

cleaned up).

I fear the Court self-inflicts harm, loses public confidence, and exposes itself to real criticisms about its legitimacy.

Inconvenient originalism may just save International

Shoe. Playing tag exposes nationwide corporations to easy

forum-shopping by plaintiffs. “[C]orporations might lose

special protections.” Ford Motor, 141 S. Ct. at 1039 n.5

(Gorsuch, J., concurring). They might get sued for any

claim, in any state, even though they have no connection

71a

to that state. Mallory, 600 U.S. at 128. And states may enact the broadest possible jurisdiction consent statutes to

compete with each other. See id. at 130.

Sharper minds than mine deep dive and debate the

tugs between originalism and other interpretative modalities. I’m just a state judge who respects and admires the

federal constitution’s open-textured, freedom-and-liberty-inspired language.

Sure, a constitutional provision’s public meaning at

ratification may matter centuries or decades later. See

United Pub. Workers, AFSCME, Local 646, AFL-CIO v.

Yogi, 101 Hawaiʻi 46, 53, 62 P.3d 189, 196 (2002) (“[i]n construing a constitutional provision, the court can also look

to [the] understanding of voters who ratified the constitutional provision”). But to the Hawaiʻi Supreme Court, it’s

not decisive, or the only way to interpret a constitution.

In Hawaiʻi, the Aloha Spirit inspires constitutional interpretation. When this court exercises “power on behalf

of the people and in fulfillment of [our] responsibilities,

obligations, and service to the people” we “may contemplate and reside with the life force and give consideration

to the ‘Aloha Spirit’” HRS § 5-7.5(b) (2009).

Hawaiʻi’s people define the Aloha Spirit as:

“Aloha Spirit” is the coordination of mind and heart

within each person. It brings each person to the self.

Each person must think and emote good feelings to

others. In the contemplation and presence of the life

force, “Aloha”, the follow unuhi laulā loa may be used:

“Akahai”, meaning kindness to be expressed with tenderness;

“Lōkahi”, meaning unity, to be expressed with harmony;

72a

“ʻOluʻolu”, meaning agreeable, to be expressed with

pleasantness;

“Haʻahaʻa”, meaning humility, to be expressed with

modesty;

“Ahonui”, meaning patience, to be expressed with perseverance.

These are traits of character that express the charm,

warmth and sincerity of Hawaiʻi’s people. It was the

working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi. “Aloha” is

more than a word of greeting or farewell or a salutation. “Aloha” means mutual regard and affection and

extends warmth in caring with no obligation in return.

“Aloha” is the essence of relationships in which each

person is important to every other person for collective existence. “Aloha” means to hear what is not said,

to see what cannot be seen and to know the unknowable.

HRS § 5-7.5(a).

Kuʻia ka hele a ka naʻau haʻahaʻa (hesitant walks the

humble hearted). Mary Kawena Pukui, ʻŌlelo Noʻeau:

Hawaiian Proverbs & Poetical Sayings 201 (1983). A

humble person walks carefully so they will not hurt others. Id.

The United States Supreme Court could use a little

Aloha.

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APPENDIX B

CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI‘I

No. 1CCV-20-380 (JPC)

CITY AND COUNTY OF HONOLULU;

HONOLULU BOARD OF WATER SUPPLY,

PLAINTIFFS,

v.

SUNOCO LP, ET AL.,

DEFENDANTS

ORDER DENYING DEFENDANTS’ MOTION

TO DISMISS FOR FAILURE TO STATE A CLAIM

CRABTREE, Judge.

Defendants’ Motion to Dismiss for Failure to State a

Claim, filed on June 2, 2021 (Dkt. 347), came for video

hearing on August 27, 2021, at 8:30 a.m., before the Honorable Jeffrey P. Crabtree. All parties appeared through

counsel. Theodore J. Boutrous argued for Defendants,

and Victor M. Sher argued for Plaintiffs.

After considering the written submissions and the arguments of counsel, the files herein, and other good cause

appearing therefore, Defendants’ Motion to Dismiss for

Failure to State a Claim is DENIED for the following reasons. (Note: this order is the version submitted by Plaintiffs during the post-hearing Rule 23 process, with several

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of the changes requested by Defendants as well as editing

by the court.)

1. Legal Standard.

A. This is a Rule 12(b)(6) motion. Such motions are

viewed with disfavor and rarely granted in Hawai‘i.

Marsland v. Pang, 5 Haw. App. 463, 474 (1985).

B. Review of a motion to dismiss is generally limited to the allegations in the complaint, which must be

deemed true for purposes of the motion. Kahala Royal

Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai‘i

251, 266 (2007). However, the court is not required to accept conclusory allegations. Civ. Beat L. Ctr. for the Pub.

Int., Inc. v. City & Cty. of Honolulu, 144 Hawai‘i 466, 474

(2019).

C. On a 12(b)(6) motion, the issue is not solely

whether the allegations as currently pled are adequate. A

complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his or her claim that

would entitle him or her to relief under any set of facts or

any alternative theory. In re Estate of Rogers, 103 Hawai‘i 275, 280-281 (2003); Wright v. Home Depot U.S.A.,

Inc., 111 Hawai‘i 401, 406-07 (2006); Malabe v. AOAO

Exec. Ctr., 147 Hawai‘i 330, 338 (2020).

D. Hawai‘i is a notice pleading jurisdiction. Our

Hawai‘i Supreme Court expressly rejected the federal

“plausibility” pleading standard (Twombly/Iqbal) in Bank

of America v. Reyes-Toledo, 143 Hawai‘i 249, 252 (2018).

2. This is an unprecedented case for any court, let

alone a state court trial judge. But it is still a tort case. It

is based exclusively on state law causes of action.

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3. City of New York.

A. Defendants’ motion relies heavily on City of

New York v. Chevron, 993 F.3d 81 (2d Cir. 2021). This

court spent extensive time reviewing that decision multiple times, and considered it carefully. This court respectfully concludes that City of New York has limited application to this case, because the claims in the instant case are

both different from and were not squarely addressed in

the City of New York opinion.

B. Plaintiffs emphasize repeatedly their state law

tort claims include failures to disclose and deceptive promotion. State law tort claims traditionally involve four elements: duty, breach, causation, and harm or damages.

Plaintiffs allege that Defendants had a duty to disclose

and not be deceptive about the dangers of fossil fuel emissions, and breached those duties. As the court understands it, Plaintiffs claim Defendants thereby exacerbated

the costs to Plaintiffs adapting to and mitigating impacts

from climate change and rising sea levels (causation). Finally, Plaintiffs alleged harms include flooding, a rising

water table, increased damage to critical infrastructure

like highways and utilities, and the costs of prevention,

mitigation, repair, and abatement—to the extent caused

by Defendants’ breach of recognized duties. Plaintiffs

double-down on this theory of liability by expressly arguing that if Defendants make the disclosures and stop concealing and misrepresenting the harms, Defendants can

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sell all the fossil fuels they are able to without incurring

any additional liability.1

C. Defendants frame Plaintiffs’ claims very differently, saying Plaintiffs actually seek to regulate global

fossil fuel emissions, or alternatively, that the claims

amount to de facto regulation. This framing also appears

in the City of New York opinion, which expressly stated

that New York City’s claims targeted “lawful commercial

activity,” and Defendants would need to “cease global production” if they wanted to avoid liability. 993 F.3d at 87,

93 (cleaned up). The United States Court of Appeals for

the Second Circuit added that the threat of such liability

would “compel” Defendants to develop new pollution control measures, and therefore the City of New York’s lawsuit would “regulate cross-border emissions.” Id. at 93

(cleaned up). This conclusion was important to the ultimate holding that the claims in City of New York are

preempted by federal law (whether federal common law

or the Clean Air Act) (discussed further, below).

D. This court concludes that Plaintiffs’ framing of

their claims in this case is more accurate. The tort causes

of action are well recognized. They are tethered to existing well-known elements including duty, breach of duty,

causation, and limits on actual damages caused by the alleged wrongs. As this court understands it, Plaintiffs do

The court recognizes that nuisance, trespass, and failure to warn

vary somewhat in terms of their specific elements. All of these claims,

however, share the same basic structure of requiring that a defendant

engage in tortious conduct that causes injury to a plaintiff. Moreover,

as the court understands it, Plaintiffs are relying on the same basic

theory of liability to prove each of their claims, namely: that Defendants’ failures to disclose and deceptive promotion increased fossil fuel

consumption, which—in turn—exacerbated the local impacts of climate change in Hawai‘i.

1

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not ask for damages for all effects of climate change; rather, they seek damages only for the effects of climate

change allegedly caused by Defendants’ breach of Hawai‘i

law regarding failures to disclose, failures to warn, and

deceptive promotion (without deciding the issue, presumably by applying Hawai‘i’s substantial factor test, see, e.g.,

Estate of Frey v. Mastroianni, 146 Hawai‘i 540, 550

(2020)). Plaintiffs do not ask this court to limit, cap, or enjoin the production and sale of fossil fuels. Defendants’ liability in this case, if any, results from alleged tortious

conduct, and not from lawful conduct in producing and

selling fossil fuels.

E. This court concludes that Plaintiffs’ claims as

pled here were not squarely addressed in City of New

York given the way that opinion frames those claims. This

is especially true in the opinion’s preemption analysis,

which did not turn on any allegations that fossil fuel companies concealed or misrepresented the dangers of their

products.2

4. Preemption.

A. Defendants argue that federal common law

“governs” or preempts the claims in this case. The argu-

2

The Second Circuit noted generally that fossil fuel companies allegedly “downplayed the risks” of their fossil fuel products (City of

New York, 993 F.3d at 86-87). But the court’s preemption analysis did

not analyze a deception claim. Rather, the court’s opinion stated that

the claims sought “to impose strict liability for the damages caused

by fossil fuel emissions no matter where in the world those emissions

were released (or who released them).” Id. at 93. The deception-based

claims asserted by Plaintiffs here were not squarely addressed. See

United States v. Shabani, 513 U.S. 10, 16 (1994) (“[Q]uestions which

merely lurk in the record are not resolved, and no resolution of them

may be inferred.” (cleaned up)).

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ment is that Plaintiffs seek to regulate out-of-state and international fossil fuel emissions, and therefore interfere

with the need for a consistent national response to climate

change. Defendants argue in the alternative that if Plaintiffs do not seek actual regulation, then Defendants’ activity is de facto “regulated” by the threat of a damages

award. To apply federal common law here, generally this

court needs to answer “yes” to at least three questions: 1)

is there a unique federal interest? 2) is there a “significant

conflict” in this case between a federal policy or interest

and applying state law? 3) do Plaintiffs’ claims really seek

to regulate out-of-state, national, and international greenhouse gas emissions? The court answers “no” to all three

of these questions, as discussed below.

B. Unique federal interest. Federal common law

does not apply in cases that fail to raise “uniquely federal

interests.” Rodriguez v. Fed. Deposit Ins. Corp., 140 S.

Ct. 713, 717 (2020). This court concludes there is no unique

federal interest in the alleged failure to disclose harms in

this case, nor in the alleged deceptive promotion. States

have a well-established “interest in ensuring the accuracy

of commercial information in the marketplace.” Edenfield

v. Fane, 507 U.S. 761, 769 (1993); see also Fla. Lime &

Avocado Growers, Inc. v. Paul, 373 U.S. 132, 150 (1963)

(identifying “the protection of consumers” as a traditional

state interest); Lorillard Tobacco Co. v. Reilly, 533 U.S.

525, 541-42 (2001) (noting that “advertising” is “a field of

traditional state regulation” (cleaned up)); California v.

ARC Am. Corp., 490 U.S. 93, 101 (1989) (underscoring

“the long history of state common-law and statutory remedies against monopolies and unfair business practices”).

Moreover, under our state-federal system, states have

broad authority to protect residents’ health, safety, property, and general welfare, and there is a strong presumption against federal preemption. Wyeth v. Levine, 555

79a

U.S. 555, 565 (2009); see also In re MTBE Products Liability Litigation, 725 F.3d 65, 96 (2d Cir. 2013) (MTBE)

(state tort law fell within the state’s historic powers to

protect health, safety, and property rights, and therefore

the presumption against preemption was “particularly

strong”). States also have a legitimate interest in combatting the adverse effects of climate change. Massachusetts

v. EPA, 549 U.S. 497, 522-23 (2007); Am. Fuel & Petrochemical Mfrs. v. O’Keeffe, 903 F.3d 903, 913 (9th Cir.

2018). In other words, any federal interest in the local impacts of climate change is an interest shared with the

states—and is not unique to federal law.

C. No “significant conflict.” The court also concludes there is no “significant conflict” in this case between a federal policy or interest and the operation of Hawai‘i state law—a second “precondition” for applying federal common law. O’Melveny & Myers v. F.D.I.C., 512

U.S. 79, 87 (1994) (quotations omitted). Such a conflict is

key to preemption, because federal and state policies and

law can co-exist and supplement each other. This court is

not aware of any doctrine where federal common law

broadly replaces state-law tort claims, per se. To the contrary, federal preemption requires a real and significant

conflict: e.g., the state-law duty requires Defendants to do

something that federal law forbids. See, e.g., Mutual

Pharm. Co. v. Bartlett, 570 U.S. 472, 480 (2013) (finding

preemption where “it was impossible for [defendant] to

comply with both its state-law duty to strengthen the

warnings on sulindac’s label and its federal-law duty not

to alter sulindac’s label”); Cipollone v. Liggett Grp., Inc.,

505 U.S. 504, 528 (1992) (“Our preemption analysis requires us to determine whether [the state-law] duty [at issue] is the sort of requirement or prohibition proscribed

by [federal law].”). The federal policy or interest must be

concrete and specific, and not judicially constructed, and

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not speculative. See O’Melveny, 512 U.S. at 88-89; Miree

v. DeKalb Cty., 433 U.S. 25, 32-33 (1977). This court concludes there is no federal policy (whether common law or

statutory) against timely and accurate disclosure of

harms from fossil fuel emissions.

D. No “regulation.” Defendants are correct that

the claims here involve fossil fuel emissions, and the complexity of global climate change involves matters of federal concern. But at this stage of the litigation, there is no

concrete showing that a damages award in this case would

somehow regulate emissions. Black’s Law Dictionary

(11th ed. 2019) defines regulation as “control over something by rule or restriction,” (emphasis added) and gives

the example of federal regulation over the airline industry. How would a damages award actually “control” Defendants? Under the limits imposed by a Rule 12(b)(6) motion, how does a trial court make a “regulation” finding,

and based on what criteria exactly? The court currently

sees nothing in the record that tethers the claim of “regulation” (whether it be of emissions, disclosures, or something else) to a possible award of damages. The federal

court opinions cited to this court do not clearly require

that any potentially large damages award constitutes

“regulation” for purposes of preemption. See generally

Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987); see also

BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 572 (1996) (reaffirming that state-court judicial remedies do not “infring[e] on the policy choices of other States” when they

are “supported by the [forum] State’s interest in protecting its own consumers and its own economy”). In any

event, the damages claims made here focus on failures to

disclose, failures to warn, and deceptive marketing. See,

e.g., City & Cty. of Honolulu v. Sunoco LP, No. 20-CV00163-DKW-RT, 2021 WL 531237, at *1 (D. Haw. Feb. 12,

2021) (“Plaintiffs have chosen to pursue claims that target

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Defendants’ alleged concealment of the dangers of fossil

fuels, rather than the acts of extracting, processing, and

delivering those fuels”); Mayor & City Council of Baltimore v. BP P.L.C., 952 F.3d 452, 467 (4th Cir. 2020)

(“[T]he Complaint clearly seeks to challenge the promotion and sale of fossil fuel products without warning and

abetted by a sophisticated disinformation campaign”);

Minnesota v. Am. Petroleum Inst., No. CV 20-1636

(JRT/HB), 2021 WL 1215656, at *10 (D. Minn. March 31,

2021) (“[T]he State’s claims are rooted not in the Defendants’ fossil fuel production, but in [their] alleged misinformation campaign”). Thus, as pleaded and repeatedly argued by Plaintiffs, this case does not prevent Defendants

from producing and selling as much fossil fuels as they are

able, as long as Defendants make the disclosures allegedly

required, and do not engage in misinformation. The court

does not agree that this amounts to control by rule or restriction of Defendants’ lawful production and sale of fossil fuels.

E. Common law or statutory preemption? This

court struggled with City of New York’s apparent reliance

on both federal common law and statutory preemption under the Clean Air Act. This issue was discussed in the

briefing, including supplemental briefing following the

hearing (Dkt. 581 filed 2/9/22; and Dkt. 587 filed 2/17/22).

The court agrees with Plaintiffs that the Clean Air Act

supplants the federal common law invoked by Defendants, meaning that federal common law cannot govern or

preempt Plaintiffs’ claims. The Clean Air Act displaced

any federal common law relating to greenhouse gas emissions. See AEP, 564 U.S. at 423 (holding that the Clean

Air Act “displaced” any “federal common-law claim for

curtailment of greenhouse gas emissions”). Federal common law “disappears” once displaced by a federal statute.

City of Milwaukee v. Illinois, 451 U.S. 304, 314 (1981)

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(Milwaukee II). Alternatively, as discussed above, even if

federal common law still exists on these issues, it does not

preempt the state law claims in this case. Although the

court concludes the Clean Air Act replaces federal common law, this does not help Defendants. As with the test

for federal common law, statutory preemption requires a

significant and concrete conflict between a federal policy

and the operation of state law. As discussed above, the

court sees no such conflict here.

F. States’ rights. A broad doctrine that damages

awards in tort cases impermissibly regulate conduct and

are thereby preempted would intrude on the historic powers of state courts. Such a broad “damages = regulation

= preemption” doctrine could preempt many cases common in state court, including much class action litigation,

products liability litigation, claims against pharmaceutical

companies, and consumer protection litigation.

5. Out-of-state and international activities. Out-ofstate and international events do not mean preemption is

automatically appropriate. Without the power to hold

tortfeasors liable under state law for out-of-state conduct

that causes in-state injuries, municipalities such as Honolulu could be hard-pressed to seek redress. See Young v.

Masci, 289 U.S. 253, 258-59 (1933) (“The cases are many

in which a person acting outside the state may be held responsible according to the law of the state for injurious

consequences within it.”); Watson v. Emps. Liab. Assur.

Corp., 348 U.S. 66, 72 (1954) (“As a consequence of the

modern practice of conducting widespread business activities throughout the entire United States, this Court has

in a series of cases held that more states than one may

seize hold of local activities which are part of multistate

transactions and may regulate to protect interests of its

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own people, even though other phases of the same transactions might justify regulatory legislation in other

states.”). There are limits on state law claims involving

out-of-state activity (e.g., choice of law, foreign affairs

preemption, due process limits on punitive damages, and

due process limits on personal jurisdiction, among others). In fact, Defendants have asked this court to dismiss

most of the Defendants for lack of personal jurisdiction/due process concerns. These issues are not part of the

instant Rule 12(b)(6) motion, and will be decided by separate order(s). Not among those limitations, however, is a

federal common law doctrine that preempts state law

claims simply because they involve some out-of-state conduct. Jackson v. Johns-Manville Sales Corp., 750 F.2d

1314, 1324 (5th Cir. 1985) (en banc) (“[A] dispute . . . cannot become ‘interstate,’ in the sense of requiring the application of federal common law, merely because the conflict is not confined within the boundaries of a single

state.”).

6. HRCP 9(b) & 9(g). Defendants also argue dismissal is warranted for alleged shortcomings under HRCP

Rules 9(b) and 9(g). The court disagrees. Hawai‘i is a notice-pleading jurisdiction and Plaintiffs are not required

to cite every bad act in their operative complaint. Defendants clearly have reasonably particular notice of the misconduct alleged and the remedies sought. (See Plaintiffs’

opposition to this motion, Dkt. 375, especially pages 3845.) To the extent more details can be fleshed out, that is

for discovery and standard motions practice.

7. The common law adapts. Defendants argue (and

the City of New York opinion expresses) that climate

change cases are based on “artful pleading.” Respectfully,

we often see “artful pleading” in the trial courts, where

new conduct and new harms often arise:

84a

The argument that recognizing the tort will result in a

vast amount of litigation has accompanied virtually

every innovation in the law. Assuming that it is true,

that fact is unpersuasive unless the litigation largely

will be spurious and harassing. Undoubtedly, when a

court recognizes a new cause of action, there will be

many cases based on it. Many will be soundly based

and the plaintiffs in those cases will have their rights

vindicated. In other cases, plaintiffs will abuse the law

for some unworthy end, but the possibility of abuse

cannot obscure the need to provide an appropriate

remedy.

Fergerstrom v. Hawaiian Ocean View Estates, 50 Haw.

374, 377 (1968) (opinion by Levinson, J.) Here, the causes

of action may seem new, but in fact are common. They just

seem new due to the unprecedented allegations involving

causes and effects of fossil fuels and climate change. Common law historically tries to adapt to such new circumstances.

Dated: Honolulu, Hawai‘i, March 29, 2022.

/s/ Jeffrey Crabtree

JEFFREY P. CRABTREE

JUDGE OF THE ABOVEENTITLED COURT

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APPENDIX C

SUPREME COURT OF HAWAI‘I

No. SCAP-22-429

CITY AND COUNTY OF HONOLULU;

HONOLULU BOARD OF WATER SUPPLY,

PLAINTIFFS-APPELLEES

v.

SUNOCO LP, ET AL.,

DEFENDANTS-APPELLANT

BHP GROUP LIMITED; BHP GROUP PLC,

DEFENDANTS-APPELLEES

BEFORE: RECKTENWALD, C.J., NAKAYAMA,

MCKENNA, WILSON, and EDDINS, J.J.

ORDER GRANTING APPLICATION

FOR TRANSFER

Upon consideration of the application for transfer filed

on March 3, 2023, and the record,

IT IS HEREBY ORDERED that the application for

transfer is granted. This case is transferred to the Supreme Court effective the date of this order.

DATED: Honolulu, Hawai‘i, March 31, 2023.

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APPENDIX D

CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI‘I

No. 1CCV-20-380 (JPC)

CITY AND COUNTY OF HONOLULU;

HONOLULU BOARD OF WATER SUPPLY,

PLAINTIFFS,

v.

SUNOCO LP, ET AL.,

DEFENDANTS

ORDER GRANTING DEFENDANTS’ MOTION FOR

LEAVE TO FILE AN INTERLOCUTORY APPEAL,

AND GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTION TO STAY

PENDING APPEAL

CRABTREE, Judge.

1. Defendants’ motion for leave to file an interlocutory appeal and to stay action pending appeal, filed on

April 11, 2022 (Dkt. 639), was heard in person on May 17,

2022. Victor M. Sher argued on behalf of Plaintiffs. Theodore J. Boutrous, Jr. argued on behalf of the Defendants.

The court took the motions under advisement, and now

issues its ruling.

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2. The motion for leave to file an interlocutory appeal

is hereby GRANTED under Hawai‘i Revised Statute

(“HRS”) § 641-1(b):

A. An interlocutory appeal of a circuit court’s order is

proper when an appeal is “advisable for the speedy termination of litigation.” HRS § 641-1(b). The Hawai‘i Supreme Court has explained that, “if the appeal may put an

end to the action, obviously the requirement [of speedy

termination] is met.” Lui v. City & Cnty. of Honolulu, 63

Haw. 668, 671 (1981). The court grants Defendants’ motion for interlocutory appeal because reversal of the

court’s orders denying Defendants’ motions to dismiss

would bring a “speedy termination,” in whole or part, to

the present litigation.

B. This case is unprecedented. The complexity, scope,

time, and cost of discovery and motion practice, let alone

trial, will be enormous. The impact on judicial resources

will be significant. (As of May 16, 2022, 663 items were

listed on the docket of this case, and no Answer has yet

been filed.)

C. The 12(b)(6) motion to dismiss for failure to state a

claim (Dkt. 347) was directed at all claims. Therefore, this

court’s denial of the Rule 12(b)(6) motion (Dkt. 618)—if

reversed—would likely speedily terminate the case. The

potential enormous waste of money, time, and resources

would largely be avoided. The court fully appreciates

Plaintiffs’ argument that every 12(b)(6) denial should not

and cannot lead to an interlocutory appeal. See Dkt. 649,

at 5–6. This court cannot recall a single time it granted an

interlocutory appeal on denial of a 12(b)(6) motion. But

this case is different because of its sheer size and complexity.

88a

D. This court’s denial (Dkt. 622) of the Rule 12(b)(2)

motion to dismiss for lack of personal jurisdiction (Dkt.

347)—if reversed—would speedily terminate the case as

to most Defendants. The potential enormous waste of

money, time, and resources would largely be avoided.

E. This court’s denial (Dkt. 585) of Chevron’s antiSLAPP motion to dismiss (Dkt. 349) only applies to Defendant Chevron, so whether it meets the “speedily terminate the action” standard is more doubtful. Standing

alone, the court might well deny an interlocutory appeal

of its anti-SLAPP order. But since there will already be

an interlocutory appeal for the other rulings described

above, and since the anti-SLAPP appeal could be dispositive as to Chevron, and again given the potential enormous waste of cost and effort if this court’s denial of the

motion was wrong, the court allows an interlocutory appeal of its anti-SLAPP order as well.

3. Stay Pending Appeal. At the start of the hearing

on May 17, 2022, the court gave an inclination that on the

stay issue, if an interlocutory appeal was granted, the stay

would likely be granted. The court has now changed its

inclination to this extent: rather than an “all or nothing”

stay, the court will instead be granting a stay in part, and

denying a stay in part. The court’s reasoning is as follows:

A. It made sense for this court to decide the interlocutory appeal issue (since this court decided the underlying

motions for which leave to appeal was sought). That logic

does not apply with equal force on the issue of a stay.

B. Every circuit court judge has inherent powers to

issue stays pending interlocutory appeals (Salera v. Caldwell, 137 Haw. 409 (2016)). So as soon as this case is reassigned, the new judge will have the inherent power to

make decisions regarding a stay. The need for a stay and

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the scope of a stay is ordinarily a flexible issue depending

on then-present circumstances.

C. This case is in a fluid position to say the least. In

addition to the interlocutory appeal this court is granting,

there are potentially relevant appeals in seven different

federal circuit courts (the First, Second, Third, Fourth,

Eighth, Ninth, and Tenth) that could impact this case.

Four of those courts issued opinions after this court’s rulings. All four opinions support this court’s ruling that federal preemption does not apply. There may or may not be

en banc proceedings in some of those appeals, and the

U.S. Supreme Court may or may not grant cert. The federal appellate proceedings may impact what the Hawaii

appellate court does on the federal preemption issue—either as guiding precedent from the federal circuit courts’

decisions or as a controlling decision if the U.S. Supreme

Court decides the federal preemption issue.

D. With all this fluidity in mind, and since this court is

a co-equal to the Division and judge who will be assigned

this case, this court concludes the incoming trial judge

should have free rein to decide the stay issues, unhampered by this court’s ruling as to a stay—either as law of

the case or as a matter of judicial comity. See Wong v. City

and County of Honolulu, 66 Haw. 389, 394 (1983). Further details regarding the scope and duration of the stay

are included in the court’s concurrently filed Order Regarding Defendants’ Motion to Stay Action Pending Appeal, (Dkt. 684). In the meantime, all non-voluntary discovery is hereby stayed absent further court order. /jpc

*

*

*

For the reasons stated above, Defendants’ motion for

leave to file an interlocutory appeal is GRANTED, and

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Defendants’ motion to stay pending appeal is GRANTED

IN PART and DENIED IN PART.

Dated: Honolulu, Hawaii, June 3, 2022.

/s/ Jeffrey Crabtree

JEFFREY P. CRABTREE

JUDGE OF THE ABOVEENTITLED COURT