Amicus Curiae Brief — Sunoco LP, et al., Petitioners v. City and County of Honolulu, Hawaii, et al.

Supreme Court briefApr 1, 2024

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Nos. 23-947 & 23-952

IN THE

Supreme Court of the United States

SUNOCO LP ET AL.,

Petitioners,

CITY AND COUNTY OF HONOLULU, ET AL.

(Caption continues on inside cover)

On Petitions for Writs of Certiorari

to the Supreme Court of Hawaii

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS

AMICUS CURIAE SUPPORTING

PETITIONERS

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, D.C. 20062

MARK M. MURAKAMI

DAMON KEY LEONG

KUPCHAK HASTERT

1003 Bishop Street,

Ste. 1600

Honolulu, HI 96813

April 1, 2024

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

JULIA C. STAMPER

GOODWIN PROCTER LLP

1900 N Street, N.W.

Washington, D.C. 20036

wjay@goodwinlaw.com

(202) 346-4000

SHELL PLC (F/K/A ROYAL DUTCH SHELL PLC),

SHELL USA, INC. (F/K/A SHELL OIL COMPANY),

AND SHELL OIL PRODUCTS COMPANY LLC,

Petitioners,

CITY AND COUNTY OF HONOLULU, ET AL.

TABLE OF CONTENTS

PAGE

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

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

ARGUMENT ............................................................... 4

Under our federal structure, emissions that

cross state lines are governed by federal law,

not state law. .................................................... 4

No state law can adequately

resolve a claim of interstate

emissions, so federal law must

apply. ...................................................... 6

The Clean Air Act’s displacement

of federal common law does not

authorize state law to govern

interstate emissions. ............................ 11

II.

The Clean Air Act leaves no room for a statelaw claim about out-of-state, cross-border

emissions. ........................................................ 15

III.

This Court should grant certiorari now, before

state courts begin to impose remedial orders

that will require this Court’s urgent

intervention. ................................................... 19

CONCLUSION .......................................................... 22

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) .............................................. 14

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) .......................... 8, 9, 10, 11, 14

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ................................................ 8

Bell v. Cheswick Generating Station,

734 F.3d 188 (3d Cir. 2013) ................................. 16

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ................................................ 7

City of N.Y. v. BP p.l.c.,

325 F. Supp. 3d 466 (S.D.N.Y. 2018) ..................... 9

City of N.Y. v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ....... 9, 12, 13, 16, 17, 18

Cnty. of Oneida v.

Oneida Indian Nation of N.Y.,

470 U.S. 226 (1985) ................................................ 7

North Carolina ex rel. Cooper v.

Tenn. Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ........ 11, 16, 17, 18, 19

Delaware v. Pennsylvania,

598 U.S. 115 (2023) ................................................ 7

iii

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938) .................................................. 6

Hinderlider v. La Plata River & Cherry

Creek Ditch Co.,

304 U.S. 92 (1938) ............................................ 7, 12

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ...................... 5, 6, 7, 8, 9, 10, 21

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) .................................. 10, 16, 17

Kansas v. Colorado,

206 U.S. 46 (1907) .................................................. 7

Massachusetts v. EPA,

549 U.S. 497 (2007) .............................................. 15

Mayor and City Council of

Baltimore v. BP p.l.c.,

31 F.4th 178 (4th Cir. 2022) .......................... 12, 13

Merrick v. Diageo Ams. Supply, Inc.,

805 F.3d 685 (6th Cir. 2015) ................................ 16

Missouri v. Illinois,

200 U.S. 496 (1906) ................................................ 4

Native Vill. of Kivalina v.

ExxonMobil Corp.,

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

Provincial Gov’t of Marinduque v.

Placer Dome, Inc.,

582 F.3d 1083 (9th Cir. 2009) ................................ 8

Rodriguez v. FDIC,

140 S. Ct. 713 (2020) .............................................. 7

Sam L. Majors Jewelers v. ABX, Inc.,

117 F.3d 922 (5th Cir. 1997) .................................. 6

Sola Elec. Co. v. Jefferson Elec. Co.,

317 U.S. 173 (1942) ................................................ 7

Tex. Indus., Inc. v.

Radcliff Materials, Inc.,

451 U.S. 630 (1981) .......................... 8, 9, 10, 11, 12

Treiber & Straub, Inc. v. UPS, Inc.,

474 F.3d 379 (7th Cir. 2007) .................................. 7

Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004) .............................. 8

United States v. Standard Oil Co.,

332 U.S. 301 (1947) .............................................. 18

Statutes and Regulations

42 U.S.C. § 7607(b)(1) ............................................... 15

Inflation Reduction Act of 2022, Pub. L.

No. 117-169, § 136, 136 Stat. 1818,

2023-74 ................................................................. 15

Waste Emissions Charge for Petroleum

and Natural Gas Systems, 89 Fed.

Reg. 5,318 (Jan. 26, 2024) .................................... 15

Other Authorities

Wright & Miller, 19 Fed. Prac. & Proc.

Juris. § 4514 (4th ed. 2022) ................................... 8

J.R. DeShazo & Jody Freeman, Timing

and Form of Federal Regulation: The

Case of Climate Change,

155 U. Pa. L. Rev. 1499 (2007) ............................ 21

Robert B. McKinstry, Jr. & Thomas D.

Peterson, The Implications of the

New “Old” Federalism in ClimateChange Legislation: How to

Function in a Global Marketplace

When States Take the Lead,

20 Pac. McGeorge

Global Bus & Dev. L.J. 61 (2007) ........................ 21

INTEREST OF THE AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members in

matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the nation’s business community.

The Chamber has a strong interest in legal and

policy issues relating to climate change. The global

climate is changing, and human activities contribute to

these changes. There is much common ground on

which all sides could come together to address climate

change with policies that are practical, flexible,

predictable, and durable. The Chamber believes that

durable climate policy must be made by Congress,

which should both encourage innovation and

investment to ensure significant emissions reductions

and avoid economic harm for businesses, consumers,

and disadvantaged communities. See, e.g., Press

Release, Sen. Sheldon Whitehouse, New Bipartisan,

Bicameral Proposal Targets Industrial Emissions for

Reduction (July 25, 2019), https://www.whitehouse.

senate.gov/news/release/new-bipartisan-bicameralproposal-targets-industrial-emissions-for-reduction

1 Amicus curiae timely provided notice of intent to file this brief to

all parties. No counsel for any party authored this brief in whole

or in part, and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

(reporting the Chamber’s support for the bipartisan

Clean Industrial Technology Act). U.S. climate policy

should recognize the urgent need for action, while

maintaining the national and international

competitiveness of U.S. industry and ensuring

consistency with free enterprise and free trade

principles. See U.S. Chamber of Commerce, The

Chamber’s Climate Position: ‘Inaction is Not an Option’

(Oct. 27, 2021), https://www.uschamber.com/climatechange/the-chambers-climate-position-inaction-is-notan-option. Governmental policies aimed at achieving

these goals should not be made by the courts, much

less by a patchwork of actions under state law.

Under this Court’s precedent, cases involving

“uniquely federal interests,” for which a uniform federal policy is necessary, must be decided under federal

law. In the limited range of circumstances in which

such uniquely federal interests arise, the relevant legal

questions often intersect with the interests of many of

the Chamber’s members, who rely on the predictability

and uniformity of federal policy. This case presents an

example of a court veering from this Court’s precedent,

rejecting the Second Circuit’s correct approach, and allowing claims about global emissions—for which no

State can claim a superior tie or interest—to be decided by a single state’s law. Claims of this kind, for

which a uniform federal standard is necessary, should

not be decided by a patchwork of state laws applied in

piecemeal fashion.

SUMMARY OF ARGUMENT

I. Climate change is a global phenomenon. The

emissions that cause climate change cross state and

national borders. As a result, claims about those

emissions necessarily concern the interests of more

than one State or foreign sovereign.

In our federal system, such cross-border claims

implicate “uniquely federal interests” that trigger the

application of federal law, to the exclusion of state law.

State laws may be competent to address environmental

issues within a State’s borders, but they are not

equipped to deliver cross-border solutions for emissions

emanating from elsewhere. And applying the law of a

particular State to a cross-border claim risks intruding

on the sovereign prerogatives of other States and

nations, which may have a different perspective on

how to resolve a cross-border problem.

Here, the Hawaii Supreme Court purported to

recognize the exclusive competence of federal law on

matters of cross-border emissions, but did so only in

principle, not in practice. It concluded that federal law

had no bearing on Honolulu’s claims because they were

claims about how petitioners marketed their products,

even though Honolulu had alleged that its harms

resulted from emissions that should be attributed to

petitioners. The court also determined that, because

the Clean Air Act (CAA) displaced the federal common

law of interstate emissions, Honolulu could pursue its

claims of transboundary pollution under Hawaii law.

But the court’s holding cannot be squared with the rule

that federal common law provides a cause of action

where no state law can apply. That federal common

law is displaced by a federal statute does not suddenly

make a single State’s law competent to resolve a crossborder claim in an area of uniquely federal interest.

II. The Hawaii Supreme Court relied on similar

misguided grounds in declining to give preemptive

effect to the Clean Air Act. Even assuming that the

viability of a state-law claim about cross-border

emissions depends only on the preemptive scope of the

Act (which it does not), the Act leaves no room for

state-law claims about emissions that are sourced from

outside of that state.

ARGUMENT

Under our federal structure, emissions

that cross state lines are governed by federal law, not state law.

Because emissions cross state and national borders,

the laws of a single state cannot resolve an emissions

dispute like this one.

Such a nationally and

internationally significant dispute is necessarily

governed by federal law. Unlike previous petitions this

Court has considered, the question here is not whether

that body of federal law supports removal jurisdiction

in federal court. Rather, the question is whether state

courts may lay down substantive state-specific rules

that purport to govern this interstate and international

dispute, or whether federal law alone controls.

For over a century, courts have used federal

common law to resolve disputes regarding pollutants

that cross state lines. E.g., Missouri v. Illinois, 200

U.S. 496 (1906). While federal common law is limited

in scope, common-law claims arising from a

transboundary dispute that implicates the interests of

more than one State or other sovereign must, by

necessity, be decided by federal law, because a single

state’s law cannot adequately reconcile competing

sovereign interests in resolving the claim. Indeed, this

Court has identified claims regarding the air and water

in their “ambient or interstate aspects” as entailing the

sort of dispute that is fit for the application of federal

law. Illinois v. City of Milwaukee (“Milwaukee I”), 406

U.S. 91, 103, 105 n.6 (1972).

The Hawaii Supreme Court acknowledged that

Honolulu’s claims concern the international

phenomenon of global climate change, and the impact

that cross-border emissions have on Honolulu’s lands

and residents. See Sunoco Pet. App. 9a. In the court’s

words, what causes “adverse impacts on the earth” is

“[t]he accumulation of green-house gases in the

atmosphere,” for which the “combustion of fossil fuels”

is a “chief cause.” Sunoco Pet. App. 7a. This “global

warming” is what allegedly caused “adverse effects on

Plaintiffs.” Sunoco Pet. 9a; see also Shell Pet. App.

138a (alleging that “Defendants’ conduct caused a

substantial portion of global atmospheric greenhouse

gas concentrations, and the attendant … disruptions to

the environment—and consequent injuries to

Plaintiffs—associated therewith”). The court also

recognized in the abstract that “federal law governs

disputes involving ‘air and water in their ambient or

interstate aspects.’” Sunoco Pet. App. 40-41a (quoting

Milwaukee I, 406 U.S. at 103, 105 n.6).

But in analyzing the viability of Honolulu’s statelaw claims, the state supreme court refused to put two

and two together. Despite observing that Honolulu is

harmed by emissions, the court indulged the fiction

that Honolulu’s claims were really about “the

promotion and sale of fossil-fuel products,” with the

emissions themselves somehow providing only

background and context. See Sunoco Pet. App. 38a

(concluding that “references to emissions … only serve

to tell a broader story”). And although the court

superficially accepted that there is an “overriding

federal interest” in matters of “air and water in their

ambient or interstate aspects,” Sunoco Pet. App. 40a-

41a (citation omitted), the court nevertheless failed to

treat federal law as “overriding” at all. Rather, the

court held that state law had a role to play because the

Clean Air Act displaced the federal common law

governing interstate emissions claims and did not

otherwise preempt state law.

The Hawaii Supreme Court failed to give effect to a

fundamental principle of federalism: that federal law

must control when a claim implicates conduct that

crosses state lines and implicates the competing

interests of multiple state sovereigns. Whether the

governing law is federal common law, or a federal

statute displacing it, there is no room for a state like

Hawaii to apply its laws to claims involving emissions

that are generated outside of Hawaii’s borders.

A. No state law can adequately resolve a

claim of interstate emissions, so federal

law must apply.

1. “There is no federal general common law,” Erie

R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (emphasis

added), but federal courts may “fashion federal law” in

limited areas “where federal rights are concerned.”

Milwaukee I, 406 U.S. at 103 (citation omitted). Erie

does not undermine this principle. Indeed, on “the

same day Erie was decided, the Supreme Court released an opinion in which Justice Brandeis, the author of Erie, relied upon federal common law to resolve

a case.” Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d

922, 927 n.8 (5th Cir. 1997) (citing Hinderlider v. La

Plata River & Cherry Creek Ditch Co., 304 U.S. 92

(1938)).

Courts typically apply federal common law in cases

presenting one (or more) of three characteristics. First,

federal common law applies in cases where “common

lawmaking must be ‘necessary to protect uniquely federal interests.’” Rodriguez v. FDIC, 140 S. Ct. 713, 717

(2020) (quoting Tex. Indus., Inc. v. Radcliff Materials,

Inc., 451 U.S. 630, 640 (1981)). Second, federal common law is used in “those areas of judicial decision

within which the policy of the law is so dominated by

the sweep of federal statutes that legal relations which

they affect must be deemed governed by federal law

having its source in those statutes, rather than by local

law.” Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173,

173-74 (1942). Finally, federal common law applies

“[w]hen Congress has not spoken to a particular issue,”

City of Milwaukee v. Illinois (Milwaukee II), 451 U.S.

304, 313 (1981), but federal policy calls for a “uniform

standard.” Milwaukee I, 406 U.S. at 107 n.9 (citation

omitted).

Several types of cross-border disputes—particularly

those that implicate the interests of more than one

State or sovereign—present “uniquely federal interests” that require the application of federal law because

state law cannot govern. Courts have applied federal

law in cases involving interstate water disputes,2 tribal

land rights, 3 interstate air carrier liability, 4 interstate

disputes over intangible property, 5 and foreign rela2 Hinderlider, 304 U.S. at 110; Kansas v. Colorado, 206 U.S. 46, 95

(1907).

3 Cnty. of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226,

235-36 (1985).

4 Treiber & Straub, Inc. v. UPS, Inc., 474 F.3d 379, 384 (7th Cir.

2007).

5 Delaware v. Pennsylvania, 598 U.S. 115, 128-29 (2023) (discussing federal common law rules for escheatment of money orders).

tions. 6 In such cases, federal law is necessary because

“local law will not be sufficiently sensitive to federal

concerns, it is not likely to be uniform across state

lines, and it will develop at various rates of speed in

different states.” Wright & Miller, 19 Fed. Prac. &

Proc. Juris. § 4514 (4th ed. 2022). Moreover, the structure of the Constitution does not allow States to engage

in such cross-border regulation. Tex. Indus., 451 U.S.

at 641 (“In these instances, our federal system does not

permit the controversy to be resolved under state

law….”).

Cases about global emissions, like this one, squarely

give rise to considerations that “do[] not permit the

controversy to be resolved under state law,” id., and require any action to proceed only under federal law. Allowing states to apply their own varying common-law

rules to environmental concerns crossing state lines

would mean “more conflicting disputes, increasing assertions and proliferating contentions” about the

standards for adjudging claims of “improper impairment.” Milwaukee I, 406 U.S. at 107 n.9 (quoting Texas v. Pankey, 441 F.2d 236, 241-42 (10th Cir. 1971)).

Thus, “[w]hen we deal with air and water in their ambient or interstate aspects, there is a federal common

law.” Id. at 103; accord Am. Elec. Power Co. v. Connecticut (“AEP”), 564 U.S. 410, 421 (2011). “Environmental protection” is, after all, “an area ‘within national legislative power,’” and thus, it is appropriate for

federal courts to “fill in ‘statutory interstices,’ and, if

6 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964);

Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d

1083, 1088 (9th Cir. 2009); Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227, 1233 (11th Cir. 2004).

necessary, even ‘fashion federal law.’” AEP, 564 U.S.

at 421 (citation omitted).

Because claims regarding transboundary emissions

implicate “uniquely federal interests,” the “interstate

or international nature of the controversy makes it inappropriate for state law to control.” Tex. Indus., 451

U.S. at 640-41 & n.13 (citation omitted); Native Vill. of

Kivalina v. ExxonMobil Corp., 696 F.3d 849, 855 (9th

Cir. 2012).

2. Climate change is an international and interstate phenomenon. In order for climate change to occur, as alleged by Honolulu here, myriad events caused

by myriad actors must occur all around the world. City

of N.Y. v. BP p.l.c., 325 F. Supp. 3d 466, 472 (S.D.N.Y.

2018) (climate-change claims “are ultimately based on

the ‘transboundary’ emission of greenhouse gases”),

aff’d sub nom. City of N.Y. v. Chevron Corp., 993 F.3d

81 (2d Cir. 2021). Indeed, much of what is alleged to

have caused harm to Honolulu are events by “sources

outside of [Hawaii’s] domain.” Milwaukee I, 406 U.S.

at 107 n.9 (citation omitted). Applying Hawaii law,

then, to a case about “outside sources of … impairment” invites other states to do the same, thereby risking “conflicting disputes, increasing assertions and proliferating contentions” by competing state sovereign

interests. Id. Because of that risk, only federal “comprehensive legislation,” federally “authorized administrative standards,” or federal “common law” are competent to resolve any claim about cross-border emissions.

Id.

That Honolulu’s claims are about “air and water in

their ambient or interstate aspects” would be enough

by itself to “undoubtedly” call for the application of fed-

eral law, AEP, 564 U.S. at 421 (citation omitted); Milwaukee I, 406 U.S. at 103. But there is more. Because

Honolulu seeks to press a “global issue,” its claims also

implicate foreign policy and the United States’ sovereign interests, which, too, call out for federal law. Tex.

Indus., 451 U.S. at 641 (identifying instances where

“our federal system does not permit [a] controversy to

be resolved under state law, … because the interstate

or international nature of the controversy makes it inappropriate for state law to control”).

No state or local government can claim a unique tie

to the phenomenon of global climate change. To be

sure, some commercial activity may happen within a

particular state’s or locality’s borders, but any such localized activity within Hawaii is not the sole or even

the primary basis of Honolulu’s claims. And localized

activity hardly justifies allowing the law of one state to

decide a sweeping claim based almost entirely on emissions from outside that state’s borders, emissions that

cross state and national borders and have impacts

mostly outside the state. After all, Honolulu is not alleging that what happened within its jurisdiction

caused the alleged harms of global warming. Nor

could it do so: as this Court explained in AEP, “emissions in New Jersey may contribute no more to flooding

in New York than emissions in China.” 564 U.S. at

422.

The Hawaii Supreme Court’s decision favoring the

application of state law over federal law encourages a

patchwork of outcomes arising under disparate state

laws, which are poor frameworks for “regulat[ing] the

conduct of out-of-state sources.” Int’l Paper Co. v. Ouellette, 479 U.S. 481, 495 (1987). Allowing claims about

global emissions to be decided by the varied laws of the

50 states would lead to fragmentation of judicial decisionmaking that in turn would hinder a coordinated

and effective federal response to climate change. See

pp. 20-21, infra. Moreover, leaving state courts to adjudicate disputes about interstate emissions while applying disparate standards would only make it “increasingly difficult for anyone to determine what

standards govern.” North Carolina ex rel. Cooper v.

Tenn. Valley Auth., 615 F.3d 291, 298 (4th Cir. 2010).

B. The Clean Air Act’s displacement of federal common law does not authorize state

law to govern interstate emissions.

The Hawaii Supreme Court reasoned that Honolulu

could proceed on its state-law claims because the Clean

Air Act displaces federal common law, the Act itself

does not preempt state law, and the court thought that

Honolulu must have some viable cause of action under

state or federal law. See Sunoco Pet. App. 37a, 45a.

Purporting to apply AEP, the Hawaii Supreme Court

concluded that the displacement of federal common law

meant acting as if it had no significance at all—i.e., beginning the analysis with “the preemptive effect of only

the CAA,” with no role played at all by federal common

law. Sunoco Pet. App. 37a.

But the state supreme court’s reasoning overlooks a

critical problem: federal common law applies only

when state law cannot govern. Tex. Indus., 451 U.S. at

641 (federal common law governs where the nature of

the claim “makes it inappropriate for state law to control”). Congress’s decision to displace the federal common law that governs interstate and international environmental claims does not invite state law in. State

law remains incapable of effectively adjudicating an

interstate and international claim arising from crossborder emissions. Federal law does that—and Congress has recently proved the point by amending the

Clean Air Act to add new measures to deter conduct

that contributes to global climate change.

1. As the Second Circuit explained—using reasoning that conflicts with the Hawaii Supreme Court’s

reasoning here, Sunoco Pet. 17; Shell Pet. 15—the notion that the displacement of federal common law may

“give birth to new state-law claims” is “difficult to

square with the fact that federal common law governed

[the] issue in the first place.” New York, 993 F.3d at

98. When a federal statute displaces federal common

law, it eliminates the causes of action or remedies that

might have been available under common law—“our

federal system” does not allow state-law claims into an

area that is exclusively federal in character. Tex. Indus., 451 U.S. at 641. Thus, for example, a State may

surrender its federal common-law cause of action over

water rights in an interstate compact. See Hinderlider,

304 U.S. at 104-05. But that does not imply the creation of state-law causes of action that otherwise are

plainly displaced by federal common law. See New

York, 993 F.3d at 110. “Such an outcome is too strange

to seriously contemplate.” Id. at 98-99.

The state supreme court concluded that the Second

Circuit’s analysis was ”flawed,” Sunoco Pet. App. 40a,

relying on the Fourth Circuit’s analysis in Mayor and

City Council of Baltimore v. BP p.l.c., 31 F.4th 178 (4th

Cir. 2022), which considered the related but distinct

question whether federal common law provided a basis

for removal jurisdiction. In particular, the court quoted Baltimore’s concern that the Second Circuit’s common law analysis did not “mention any obligatory stat-

utes or regulations,” only the policy concerns of having

state law govern interstate-emissions claims. Sunoco

Pet. App. 49a (quoting Baltimore, 31 F.4th at 203).

But the Hawaii Supreme Court missed a critical

reason why Baltimore’s reasoning (reasoning seen in

other similar removal cases) is inapposite here. As the

Fourth Circuit itself acknowledged: “City of New York

was in a completely different procedural posture.” Baltimore, 31 F.4th at 203. Because it was exercising diversity jurisdiction, the Second Circuit was not “bound

by the well-pleaded complaint rule,” or the “heightened

standard unique to the removability inquiry” that the

Fourth Circuit applied. Id. In contrast, Baltimore and

cases like it concerning removal jurisdiction expressly

refused to consider ordinary preemption, which the

Second Circuit addressed in New York—and which the

Hawaii Supreme Court (incorrectly) addressed here.

Id. at 198-99; see New York, 993 F.3d at 94. In doing

so, these courts invoked the rule that the availability of

federal preemption as a defense does not give rise to

federal jurisdiction. 31 F.4th at 198 & n.2. Following

that principle, the Fourth Circuit considered whether

the removing parties met the “significant burden” that

complete preemption requires. Id. at 199. The Hawaii

Supreme Court erred by transposing that burden onto

its consideration of whether, under ordinary preemption principles, federal law preempted state law on the

merits.

2. The Hawaii Supreme Court also wrongly reasoned that state law must apply because otherwise,

“Plaintiffs would have no viable cause of action under

state or federal law.” Sunoco Pet. App. 45a. But our

constitutional structure does not require that a cause

of action for global emissions must exist in some form,

lying either in federal or state law. If Congress, in exercising an exclusively federal authority to manage “air

and water in their ambient or interstate aspects,” decides not to craft a federal analogue to a state-law

cause of action as part of comprehensive legislation,

then a state court cannot raise up its own interstate

cause of action, “no matter how desirable that might be

as a policy matter.” Cf. Alexander v. Sandoval, 532

U.S. 275, 286-87 (2001).

While this Court observed in AEP that “the availability vel non of a state lawsuit depends inter alia on

the preemptive effect of the federal Act,” 564 U.S. at

429, that observation was not an invitation to apply

state law to transboundary claims, despite the Hawaii

Supreme Court’s conclusions to the contrary. AEP

merely recognized that not all state-law claims necessarily intrude on the supremacy of federal law—

specifically, claims about emissions that are sourced

within the state. Id. (quoting Ouellette for the proposition that “the Clean Water Act does not preclude aggrieved individuals from bringing a ‘nuisance claim

pursuant to the law of the source State’” (citation omitted, emphasis in original)). The Court did not hold

that “whether the state law nuisance claims were

preempted depended only on an analysis of the CAA,”

Sunoco Pet. App. 47a, or that the principles of federalism that compel the application of federal common law

in the absence of a federal statute were rendered irrelevant by Congress’s enactment of such a statute. Rather, this Court merely concluded that, where a federal

statutory scheme displaced the federal common law,

federal common law no longer provided a “parallel

track” in the form of an alternative cause of action.

AEP, 564 U.S. at 425.

Moreover, the Clean Air Act reflects Congress’s decision to replace federal tort law with federal regulatory law, not to give way to state tort law in the area of

cross-boundary emissions. Indeed, Congress recently

amended the Act as part of its continuing efforts to address the domestic sources of emissions causing global

climate change. Inflation Reduction Act of 2022, Pub.

L. No. 117-169, § 136, 136 Stat. 1818, 2023-74 (providing funding for “improving climate resiliency” and instructing EPA to “impose and collect a charge on methane emissions”); see Waste Emissions Charge for Petroleum and Natural Gas Systems, 89 Fed. Reg. 5,318

(Jan. 26, 2024) (proposed rule to implement mandated

emissions charge). And the Clean Air Act’s framework

gives states and local governments the ability to use

the judicial process to seek relief relating to the global

climate. E.g., 42 U.S.C. § 7607(b)(1); Massachusetts v.

EPA, 549 U.S. 497, 518 (2007) (a state has standing to

sue under the Clean Air Act to pursue its “well-founded

desire to preserve its sovereign territory”). That Congress has not provided at the federal level the specific

vehicle that Honolulu seeks to use here does not mean

that there is a vacuum for Hawaii law to fill.

II.

The Clean Air Act leaves no room for a

state-law claim about out-of-state, crossborder emissions.

After determining that the uniquely federal interest

in interstate emissions did not prevent Honolulu from

proceeding with its state-law claims, the Hawaii Supreme Court likewise concluded that the Clean Air Act

did not prohibit such claims, either. But the Clean Air

Act does not invert the federalism balance and cede interstate regulation to state law.

1. The state supreme court reasoned that there

was no clash between the Act and Honolulu’s claims

because Honolulu did not “seek to regulate emissions,”

and, in any event, the Clean Air Act “simply does not

occupy the entire field of emissions regulation.” Sunoco Pet. App. 57a-58a. But the Clean Air Act reinforces,

not refutes, the premise of federalism that is responsible for the application of federal common law on matters of “air and water in their ambient or interstate aspects”: that a single State’s law cannot govern when

the basis of a claim is an out-of-state emission that

crosses state and national borders. Much like the

Clean Water Act, the Clean Air Act leaves room for

state-common-law actions only where the claim concerns an “in-state source of pollution.” Bell v. Cheswick

Generating Station, 734 F.3d 188, 194-96 (3d Cir.

2013); Merrick v. Diageo Ams. Supply, Inc., 805 F.3d

685, 692 (6th Cir. 2015) (noting that “claims based on

the common law of the source State” are “not preempted by the Clean Air Act,” whereas “claims based on the

common law of a non-source State … are preempted by

the Clean Air Act”); see also Ouellette, 479 U.S. at 490

(“Even though it may be harmed by the discharges, an

affected State only has an advisory role [under the

Clean Water Act] in regulating pollution that originates beyond its borders.”); Cooper, 615 F.3d at 305-06

(extending Ouellette’s source-state rule to the Clean Air

Act, and noting that, as with the Clean Water Act, the

Clean Air Act “carefully defines the role of both the

source and affected States” (quoting Ouellette, 479 U.S.

at 497)). Honolulu does not invoke the “slim reservoir”

of the source-state exception here. See New York, 993

F.3d at 100.

As this Court recognized in Ouellette with respect to

the Clean Water Act, there is good reason not to apply

a single State’s law to emissions from outside of the

State’s borders. Applying “an affected State’s law to an

out-of-state source … would undermine the important

goals of efficiency and predictability.” Ouellette, 479

U.S. at 496. Allowing the common-law standards of

multiple States to resolve disputes about the same

cross-border emissions would “lead to chaotic confrontation between sovereign states,” and make it “virtually impossible to predict the standard” that applies. Id.

at 496-97 (quoting Illinois v. City of Milwaukee, 731

F.2d 403, 414 (7th Cir. 1984)). The discordant common-law suits that would result if multiple States were

permitted to apply their laws to out-of-state emissions

would “undermine [the] regulatory structure” provided

by the Clean Air Act. Id. at 497; New York, 993 F.3d at

96 (“[T]he City’s claims are clearly barred by the Clean

Air Act.”).

The regulatory chaos would be even more pronounced were a State to seek to apply its law to a claim

involving global climate change caused by emissions

from all around the world. If Hawaii can apply its laws

to claims about emissions from all over, then there is

no reason that each of the 49 other States cannot do

the same. The Clean Air Act leaves no room for “multiple and conflicting standards to guide emissions,” let

alone 50-plus different standards, many of which are

based on common-law principles derived from “illdefined omnibus tort[s] of last resort.” Cooper, 615

F.3d at 302. Rather, where “Congress has chosen to

grant states an extensive role in the Clean Air Act’s

regulatory regime, … preemption principles caution at

a minimum against according states a wholly different

role and allowing state [common] law” to extend beyond the “joint federal-state rules so meticulously

drafted.” Id. at 303. That caution compels a “uniform,

national disposition,” United States v. Standard Oil

Co., 332 U.S. 301, 307 (1947), and bars Honolulu’s

claims here.

2. The Hawaii Supreme Court concluded that there

was “no ‘actual conflict’ between Hawai‘i tort law and

the CAA.” Sunoco Pet. App. 61a. Honolulu’s claims,

the court reasoned, were about “marketing conduct,

while the CAA regulates pollution.” Id.

But as the Second Circuit explains, that reasoning

requires a suspension of disbelief that “ignores economic reality.” 993 F.3d at 92. Advertisements and marketing do not cause the emissions that contribute to

global climate change—the emissions occur when oil

and natural gas are produced, refined, and combusted.

In the words of the Hawaii Supreme Court, the “adverse impacts on the earth” occur with “[t]he accumulation of greenhouse gases” caused, in large part, as “a

byproduct of combustion of fossil fuels.” Sunoco Pet.

App. 7a.

Honolulu’s suit reflects an attempt to “regulate

cross-border emissions in an indirect and roundabout

manner,” City of New York, 993 F.3d at 93. In some respects, the attempt is not even indirect; in particular,

its complaint asks for “[e]quitable relief, including

abatement of the nuisances complained herein in and

near the County.” Haw. Cir. Ct. Dkt. No. 45, at 115. If

allowed to proceed, Honolulu’s suit will inevitably contribute to the “patchwork of nuisance injunctions” that

would arise through the pursuit of competing state-law

suits that seek the abatement of worldwide emissions

based on “marketing” or other claims. Cooper, 615

F.3d at 302; see also pp. 19-20, infra (describing the

suits).

III.

This Court should grant certiorari now,

before state courts begin to impose remedial orders that will require this Court’s

urgent intervention.

The Hawaii Supreme Court’s decision is among the

first to affirmatively use state law to govern a claim

about out-of-state emissions. Unless this Court intervenes now, it certainly will not be the last. Honolulu’s

is one of 29 lawsuits filed by state, local, and tribal

governments since 2017 that seek competing remedies

for overlapping claims of alleged harm arising from

emissions outside of the plaintiff-governments’ respective jurisdictional borders. 7 Their complaints allege a

7 Cnty. of San Mateo v. Chevron Corp., No. 17CV03222 (Cal. Su-

per. Ct. July 17, 2017); City of Oakland v. BP p.l.c., No.

RG17875889 (Cal. Super. Ct. Sept. 19, 2017); City of Santa Cruz v.

Chevron Corp., No. 17CV03243 (Cal. Super. Ct. Dec. 20, 2017);

Cnty. of Santa Cruz v. Chevron Corp., No. 17CV03242 (Cal. Super.

Ct. Dec. 20, 2017); City of New York v. BP p.l.c., No. 18-cv-182

(S.D.N.Y. Jan. 9, 2018); City of Richmond v. Chevron Corp., No.

C18-00055 (Cal. Super. Ct. Jan. 22, 2018); Bd. of Cnty. Comm’rs of

Boulder Cnty. v. Suncor Energy (U.S.A.), Inc., No. 2018CV030349

(Colo. Dist. Ct. Apr. 17, 2018); King Cnty. v. BP p.l.c., No. 18-211859-0 (Wash. Super. Ct. May 9, 2018); Rhode Island v. Shell Oil

Products Co., No. PC-2018-4716 (R.I. Super. Ct. July 2, 2018);

Mayor & City Council of Baltimore v. BP p.l.c., No. 24-C-18004219 (Md. Cir. Ct. July 20, 2018); Massachusetts v. ExxonMobil

Corp., No. 1984CV0-3333 (Mass. Super. Ct. Oct. 24, 2019); City &

Cnty. of Honolulu v. Sunoco LP, No. 1CCV-20-0000380 (Haw. Cir.

Ct. Mar. 9, 2020); Minnesota v. Am. Petroleum Inst., No. 62-CV20-3837 (Minn. Dist. Ct. June 24, 2020); Dist. of Columbia v. Exxon Mobil Corp., No. 2020 CA 002892 B (D.C. Super. Ct. June 25,

2020); City of Hoboken v. Exxon Mobil Corp., No. HUD-L-003179-

hodgepodge of different causes of action, ranging from

common-law public and private nuisance claims and

claims based on other tort theories, to statutory consumer-deception claims. All seek damages, and many

seek broad forms of injunctive relief. 8

The collision of state-law decisions, and the growth

of “conflicting disputes, increasing assertions[,] and

proliferating contentions would seem to be inevitable”

if States are permitted to apply their laws to claims of

20 (N.J. Super. Ct. Sept. 2, 2020); City of Charleston v. Brabham

Oil Co., No. 2020CP1003975 (S.C. Ct. Comm. Pleas Sept. 9, 2020);

Connecticut v. Exxon Mobil Corp., No. HHDCV206132568S (Conn.

Super. Ct. Sept. 14, 2020); Cnty. of Maui v. Sunoco LP, No. 2CCV20-000283 (Haw. Cir. Ct. Oct. 12, 2020); City of Annapolis v. BP

p.l.c., No. C-02-CV-21-000250 (Md. Cir. Ct. Feb. 22, 2021); Anne

Arundel Cnty. v. BP p.l.c., No. C-02-CV-21-000565 (Md. Cir. Ct.

Apr. 26, 2021); Vermont v. Exxon Mobil Corp., No. 21-CV-02778

(Vt. Super. Ct. Sept. 14, 2021); Municipality of Bayamon v. Exxon

Mobil Corp., No. 22-cv-1550 (D.P.R. Nov. 22, 2022); Cnty. of

Multnomah v. Exxon Mobil Corp., No. 23CV25164 (Or. Cir. Ct.

June 22, 2023); People v. Exxon Mobil Corp., No. CGC23609134

(Cal. Super. Ct. Sept. 15, 2023); Municipality of San Juan v. Exxon Mobil Corp., No. 23-cv-01608 (D.P.R. Dec. 13, 2023); Shoalwater Bay Indian Tribe v. Exxon Mobil Corp., No. 23-2-25215-2

(Wash. Super. Ct. Dec. 20, 2023); Makah Indian Tribe v. Exxon

Mobil Corp., No. 23-2-25216-1 (Wash. Super. Ct. Dec. 20, 2023);

City of Chicago v. BP p.l.c., No. 2024CH01024 (Ill. Cir. Ct. Feb. 20,

2024); Bucks County v. BP p.l.c., No. 2024-01836-0000 (Pa. Comm.

Pleas Ct. Mar. 25, 2024).

8 E.g., Compl. at 169, City of Chicago v. BP p.l.c., No.

2024CH01024 (Ill. Cir. Ct. Feb. 20, 2024) (seeking order requiring

“Defendants to immediately undertake the necessary action that

will result in a final and permanent abatement of the common law

private nuisance”); Compl. ¶ 265, People v. Exxon Mobil Corp., No.

CGC23609134 (Cal. Super. Ct. Sept. 15, 2023) (seeking “temporary and permanent equitable relief … to protect the natural resources of California from pollution, impairment, or destruction”).

cross-border pollution. Milwaukee I, 406 U.S. at 107

n.9 (citation omitted). And to little positive end: as

global climate change is “a global collective action problem, … a few jurisdictions acting alone cannot hope to

make meaningful progress on the problem.” J.R. DeShazo & Jody Freeman, Timing and Form of Federal

Regulation: The Case of Climate Change, 155 U. Pa. L.

Rev. 1499, 1518 (2007). State courts imposing divergent regulatory requirements by judicial fiat will only

muddy the waters, “making compliance confusing and

potentially costly.” Id. at 1531; Robert B. McKinstry,

Jr. & Thomas D. Peterson, The Implications of the New

“Old” Federalism in Climate-Change Legislation: How

to Function in a Global Marketplace When States Take

the Lead, 20 Pac. McGeorge Global Bus & Dev. L.J. 61,

89 (2007) (“A multiplicity of contrasting state programs

can pose particular difficulties for the regulated community, which operates in markets throughout the

United States and the world.”).

The impact of cross-border emissions on global climate change is an area where there is “an overriding

federal interest.” Milwaukee I, 406 U.S. at 105 n.6.

The array of state-law actions seeking relief under

“vague and indeterminate” standards threatens to seriously (and perhaps irreversibly) undermine the federal government’s ability to respond to global climate

change. And the causes of action are not limited to petitioners here; any alleged contributor to global climate

change could find itself in the crosshairs of a similar

state-law tort claim over cross-boundary emissions, in

any state court with personal jurisdiction.

This Court should grant certiorari now to restore

the supremacy of federal law, before a dissonant

patchwork of state-law decisions emerges to hinder a

uniform federal response. The state court’s assertion

of jurisdiction over this global issue is reason enough

for this Court to step in. If the Court waits for a state

court to impose its own professed solution to this global

issue, the Court may be forced to deal with the issue in

more urgent fashion. This case presents the opportunity to resolve this crucially important matter now.

CONCLUSION

ed.

The petitions for writs of certiorari should be grantRespectfully submitted.