Petition for Writ of Certiorari — Shell PLC, fka Royal Dutch Shell PLC, et al., Petitioners v. City and County of Honolulu, Hawaii, et al.
Supreme Court briefFeb 28, 2024
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No. 23-_____
IN THE
Supreme Court of the United States
__________
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,
v.
CITY AND COUNTY OF HONOLULU, ET AL.,
Respondents.
__________
On Petition for a Writ of Certiorari
to the Supreme Court of Hawai‘i
__________
PETITION FOR A WRIT OF CERTIORARI
__________
JOACHIM P. COX
RANDALL C. WHATTOFF
COX FRICKE LLP
800 Bethel Street
Suite 600
Honolulu, Hawai‘i 96813
(808) 585-9440
DAVID C. FREDERICK
Counsel of Record
DANIEL S. SEVERSON
D. CHANSLOR GALLENSTEIN
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C.
1615 M Street, N.W.
Suite 400
Washington, D.C. 20036
(202) 326-7900
(dfrederick@kellogghansen.com)
Counsel for Petitioners
February 2024
QUESTIONS PRESENTED
1. Whether claims seeking damages for the effects
of interstate and international emissions on the global
climate are beyond the limits of state law and thus
preempted under the federal Constitution.
2. Whether the Clean Air Act preempts state-law
claims predicated on damaging interstate emissions.
ii
PARTIES TO THE PROCEEDINGS
Petitioners Shell plc (f/k/a Royal Dutch Shell plc),
Shell USA, Inc. (f/k/a Shell Oil Company), and Shell
Oil Products Company LLC were defendants in the
state circuit court, appellants in the state intermediate
court of appeals, and respondents/appellants in the
Supreme Court of Hawai‘i.
Respondents City and County of Honolulu and
Honolulu Board of Water Supply were the plaintiffs
in the state circuit court, the appellees in the state
intermediate court of appeals, and the petitioners/
appellees in the Supreme Court of Hawai‘i.
Respondents Sunoco LP, Aloha Petroleum, Ltd.,
Aloha Petroleum LLC, Exxon Mobil Corporation,
ExxonMobil Oil Corporation, Chevron Corporation,
Chevron U.S.A., Inc., Woodside Energy Hawaii Inc.
(f/k/a BHP Hawaii Inc.), BP p.l.c., BP America Inc.,
Marathon Petroleum Corporation, ConocoPhillips,
ConocoPhillips Company, Phillips 66, and Phillips 66
Company were defendants in the state circuit court,
appellants in the state intermediate court of appeals,
and respondents/appellants in the Supreme Court of
Hawai‘i.
BHP Group Limited and BHP Group plc were
defendants in the state circuit court. That court
dismissed the claims against them, and the state
respondents did not appeal.
iii
RULE 29.6 STATEMENT
Shell plc (formerly Royal Dutch Shell plc) has no
parent corporation, and no publicly held company
owns 10% or more of its stock. Shell USA, Inc.
(formerly Shell Oil Company) and Shell Oil Products
Company LLC are wholly owned indirect subsidiaries
of Shell plc.
iv
RELATED CASES
State – Direct:
City & Cnty. of Honolulu, et al. v. Sunoco LP, et al.,
Civil No. 1CCV-20-00000380, Dkt. 618 (Haw. Cir.
Ct., 1st Cir., Mar. 29, 2022) (order denying defendants’
joint motion to dismiss for failure to state a claim)
City & Cnty. of Honolulu, et al. v. Sunoco LP, et al.,
Civil No. 1CCV-20-00000380, Dkt. 622 (Haw. Cir.
Ct., 1st Cir., Mar. 31, 2022) (order denying defendants’
joint motion to dismiss for lack of personal jurisdiction)
City & Cnty. of Honolulu, et al. v. Sunoco LP, et al.,
SCAP-22-0000429, Dkt. 7 (Haw. Mar. 31, 2023) (order
granting application to transfer appeal to Hawai‘i
Supreme Court)
City & Cnty. of Honolulu, et al. v. Sunoco LP, et al.,
SCAP-22-0000429, Dkts. 74 & 76, 537 P.3d 1173
(Haw. Oct. 31, 2023) (affirming circuit court’s decisions to deny joint motion to dismiss for failure to
state a claim and joint motion to dismiss for lack of
personal jurisdiction)
City & Cnty. of Honolulu, et al. v. Sunoco LP, et al.,
SCAP-22-0000429, Dkt. 80 (Haw. Dec. 13, 2023)
(judgment on appeal)
State – Related:
City & Cnty. of Honolulu, et al. v. Sunoco LP, et al.,
Civil No. 1CCV-20-00000380, Dkt. 637 (Haw. Cir.
Ct., 1st Cir., Apr. 7, 2022) (order granting defendants
BHP Group Ltd. and BHP Group plc’s motion to
dismiss for lack of personal jurisdiction)
City & Cnty. of Honolulu, et al. v. Sunoco LP, et al.,
Clean Air ActP-22-0000135 (Haw. Ct. App.)
v
City & Cnty. of Honolulu, et al. v. Sunoco LP, et al.,
Clean Air ActP-22-0000428 (Haw. Ct. App.)
County of Maui v. Sunoco LP, et al., Civil No. 2CCV20-0000283 (Haw. Cir. Ct., 2d Cir.)
Federal:
City & Cnty. of Honolulu v. Sunoco LP, et al.,
No. 1:20-cv-00163-DKW-RT, ECF No. 128, 2021 WL
531237 (D. Haw. Feb. 12, 2021) (granting motion to
remand to state circuit court), aff ’d, 39 F.4th 1101
(9th Cir. 2022), cert. denied, 143 S. Ct. 1795 (2023)
vi
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
PARTIES TO THE PROCEEDINGS ......................... ii
RULE 29.6 STATEMENT ......................................... iii
RELATED CASES ..................................................... iv
TABLE OF AUTHORITIES ...................................... ix
OPINIONS BELOW ................................................... 1
JURISDICTION.......................................................... 1
CONSTITUTIONAL PROVISION INVOLVED .......... 1
INTRODUCTION ....................................................... 1
STATEMENT .............................................................. 3
REASONS FOR GRANTING THE PETITION ......... 8
I. THE STATE SUPREME COURT
JUDGMENT THAT FEDERAL LAW
DOES NOT PREEMPT STATE-LAW
CLAIMS SEEKING DAMAGES FOR
THE EFFECTS OF GLOBAL CLIMATE
CHANGE CONFLICTS WITH OTHER
COURT DECISIONS ....................................... 9
A. A Long Line Of Cases Holds That
Only Federal Law Applies To Suits
Involving Interstate And Foreign
Emissions .................................................... 9
B. The State Supreme Court Expressly
Broke With City of New York And
Milwaukee III ............................................ 13
C. The State Court’s Decision Erred
Because The Constitution Preempts
These Claims............................................. 16
vii
II. THE HAWAI‘I SUPREME COURT’S
HOLDING THAT THE CLEAN AIR
ACT DOES NOT PREEMPT STATE
LAW CONFLICTS WITH DECISIONS
FROM THIS AND OTHER COURTS .......... 23
A. A Long Line Of Cases Holds That
The Clean Air Act Preempts StateLaw Claims Seeking To Regulate
Interstate Emissions ................................ 23
B. The Hawai‘i Judgment Conflicts
With Decisions From This Court And
Multiple Appellate Courts ........................ 27
C. The State Court Erred Because The
Clean Air Act Preempts These
Claims ....................................................... 29
III. THIS CASE PRESENTS A QUESTION
OF
EXCEPTIONAL
NATIONAL
IMPORTANCE WARRANTING THIS
COURT’S REVIEW ........................................ 31
CONCLUSION.......................................................... 34
APPENDIX:
Opinion of the Supreme Court of Hawai‘i, City
& Cnty. of Honolulu, et al. v. Sunoco LP, et al.,
SCAP-22-0000429 (Haw. Oct. 31, 2023) .................. 1a
Order of the First Circuit Court of Hawai‘i
Denying Defendants’ Joint Motion To Dismiss
for Lack of Personal Jurisdiction, City & Cnty.
of Honolulu, et al. v. Sunoco LP, et al., Civil
No. 1CCV-20-00000380 (Haw. Cir. Ct., 1st
Cir., Mar. 31, 2022) ................................................. 77a
viii
Order of the First Circuit Court of Hawai‘i
Denying Defendants’ Motion To Dismiss for
Failure To State a Claim, City & Cnty. of
Honolulu, et al. v. Sunoco LP, et al., Civil No.
1CCV-20-00000380 (Haw. Cir. Ct., 1st Cir.,
Mar. 29, 2022) ......................................................... 84a
Order of the Supreme Court of Hawai‘i Transferring Appeal, City & Cnty. of Honolulu, et al.
v. Sunoco LP, et al., SCAP-22-0000429 (Haw.
Mar. 31, 2023) ......................................................... 96a
Judgment on Appeal of the Supreme Court of
Hawai‘i, City & Cnty. of Honolulu, et al. v.
Sunoco LP, et al., SCAP-22-0000429 (Haw.
Dec. 13, 2023) .......................................................... 98a
First Amended Complaint, City & Cnty. of
Honolulu, et al. v. Sunoco LP, et al., Civil No.
1CCV-20-00000380 (Haw. Cir. Ct., 1st Cir.,
Mar. 22, 2021) ....................................................... 100a
ix
TABLE OF AUTHORITIES
Page
CASES
American Elec. Power Co. v. Connecticut, 564
U.S. 410 (2011) ........................................... 2, 12-13,
16-18, 20, 23, 30
American Ins. Ass’n v. Garamendi, 539 U.S.
396 (2003) ....................................................... 18-19
Arizona v. United States, 567 U.S. 387 (2012)......... 18
Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398 (1964) ...............................................18, 21
Bates v. Dow AgroSciences LLC, 544 U.S. 431
(2005) ................................................................... 21
Bell v. Cheswick Generating Station, 734 F.3d
188 (3d Cir. 2013) ................................................ 26
BMW of N. Am., Inc. v. Gore, 517 U.S. 559
(1996) ................................................................... 22
Boyle v. United Techs. Corp., 487 U.S. 500
(1988) ................................................................... 11
BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021) ................................. 6
Brown-Forman Corp. v. Miller, 528 S.W.3d
886 (Ky. 2017) ...................................................... 27
Buckman Co. v. Plaintiffs’ Legal Comm., 531
U.S. 341 (2001)..................................................... 30
Cipollone v. Liggett Grp., Inc., 505 U.S. 504
(1992) ................................................................... 21
x
City & Cnty. of Honolulu v. Sunoco LP:
2021 WL 531237 (D. Haw. Feb. 12, 2021),
aff ’d, 39 F.4th 1101 (9th Cir. 2022), cert.
denied, 143 S. Ct. 1795 (2023) .............................. 6
39 F.4th 1101 (9th Cir. 2022), cert. denied,
143 S. Ct. 1795 (2023) ........................................... 6
City of Milwaukee v. Illinois, 451 U.S. 304
(1981) ..............................................................17, 32
City of New York v. Chevron Corp., 993 F.3d 81
(2d Cir. 2021) .................................. 2, 4-5, 7-15, 20,
22-24, 27-28, 31-32
Comer v. Murphy Oil USA, Inc., 839 F. Supp.
2d 849 (S.D. Miss. 2012), aff ’d, 718 F.3d
460 (5th Cir. 2013) ............................................... 25
Delaware ex rel. Jennings v. BP America Inc.,
2024 WL 98888 (Del. Super. Ct. Jan. 9, 2024) .. 25-26
Franchise Tax Bd. of California v. Hyatt,
139 S. Ct. 1485 (2019) ......................................... 17
Freeman v. Grain Processing Corp., 848
N.W.2d 58 (Iowa 2014) ........................................ 27
Georgia v. Tennessee Copper Co., 206 U.S. 230
(1907) ................................................................... 16
Hines v. Davidowitz, 312 U.S. 52 (1941) .............19, 30
Illinois v. City of Milwaukee:
406 U.S. 91 (1972) ............................... 11, 16-17, 32
731 F.2d 403 (7th Cir. 1984) ....................12, 13, 15
International Paper Co. v. Ouellette, 479 U.S.
481 (1987) ................................................ 17, 22-23,
25-27, 30-31, 34
xi
Kansas v. Colorado, 206 U.S. 46 (1907) ................... 17
Kurns v. Railroad Friction Prods. Corp., 565
U.S. 625 (2012)..................................................... 22
Maryland v. Louisiana, 451 U.S. 725 (1981) ........... 30
Massachusetts v. EPA, 549 U.S. 497 (2007)............. 17
Mayor & City Council of Baltimore v. BP
P.L.C., 31 F.4th 178 (4th Cir. 2022), cert.
denied, 143 S. Ct. 1795 (2023) .............................. 7
Merrick v. Diageo Americas Supply, Inc.,
805 F.3d 685 (6th Cir. 2015) ............................... 26
Native Village of Kivalina v. ExxonMobil
Corp., 696 F.3d 849 (9th Cir. 2012) ...................... 4
North Carolina ex rel. Cooper v. TVA, 615 F.3d
291 (4th Cir. 2010) ......................... 24-26, 28-29, 34
Sunoco LP v. City & Cnty. of Honolulu, 143 S.
Ct. 1795 (2023)....................................................... 6
Texas Indus., Inc. v. Radcliff Materials, Inc.,
451 U.S. 630 (1981) ........................................11, 23
United States v. Locke, 529 U.S. 89 (2000) .............. 30
Zschernig v. Miller, 389 U.S. 429 (1968) ............. 18-19
CONSTITUTION AND STATUTES
U.S. Const.:
Art. I:
§ 8 .................................................................... 19
Cl. 3 ........................................................... 19
Cl. 4 ........................................................... 19
Cl. 10 ......................................................... 19
xii
Cl. 11 ......................................................... 19
Cl. 14 ......................................................... 19
Cl. 18 ......................................................... 19
§ 10 .................................................................. 19
Art. II ................................................................... 19
§ 2, cl. 2 ........................................................... 19
Art. VI, cl. 2 (Supremacy Clause) ................... 1, 21
Clean Air Act, 42 U.S.C. § 7401 et seq. ................. 5-8,
11-12, 23-31
42 U.S.C. § 7604(e) .............................................. 26
28 U.S.C. § 1257(a) ..................................................... 1
OTHER MATERIALS
Am. Compl. City of New York, No. 18-CV00182, Dkt. 80 (S.D.N.Y. Mar. 16, 2018) ..... 4, 9-10
Chad Blair, Two Hawaii Supreme Court Justices Are Speaking Out, Honolulu Civil
Beat, Nov. 7, 2023,
https://www.civilbeat.org/2023/11/chadblair-two-hawaii-supreme-court-justicesare-speaking-out/ ................................................... 8
BP p.l.c. v. Mayor & City Council of Baltimore,
No. 19-1189:
Br. for the United States as Amicus Curiae
Supp. Pet’rs (U.S. Nov. 23, 2020) ........................ 33
Oral Arg. Tr., 2021 WL 197342 (U.S. Jan.
19, 2021) ............................................................... 33
xiii
Br. for Appellant, City of New York v. Chevron
Corp., No. 18-2188, Dkt. 89 (2d Cir. Nov. 8,
2018)..................................................................... 13
Br. for the Tennessee Valley Auth. as Resp.
Supp. Pet’r, American Elec. Power Co. v.
Connecticut, No. 10-174 (U.S. Jan. 31, 2011) ...... 32
Br. for the United States as Amicus Curiae,
Suncor Energy (U.S.A.) Inc. v. Board of
Cnty. Comm’rs of Boulder Cnty., No. 211550 (U.S. Mar. 16, 2023) ................................... 33
Br. of the United States as Amicus Curiae in
Supp. of Pet. for Reh’g, City of Oakland v.
BP p.l.c., No. 18-16663, Dkt. 198 (9th Cir.
Aug. 3, 2020) ........................................................ 33
State Constitutional Law: The Critical Course
Missing from Most Law School Curricula,
12th Annual Stevens Lecture, Featuring
Justice Sabrina McKenna, Oct. 26, 2023,
https://www.youtube.com/watch?v=EjwjeBajnw&t=1796s ................................................... 8
The Federalist (Clinton Rossiter ed., 1961):
No. 42 (Madison).................................................. 18
No. 44 (Madison).................................................. 19
No. 80 (Hamilton) ................................................ 19
Petitioners Shell plc (f/k/a Royal Dutch Shell plc),
Shell USA, Inc. (f/k/a Shell Oil Company), and Shell
Oil Products Company LLC petition for a writ of
certiorari to review the judgment of the Hawai‘i
Supreme Court in this case.
OPINIONS BELOW
The opinion of the Hawai‘i Supreme Court (App.1a76a) is reported at 537 P.3d 1173. The orders of the
First Circuit Court of Hawai‘i (App.77a-83a, 84a-95a)
denying motions to dismiss are not reported.
JURISDICTION
The Hawai‘i Supreme Court entered judgment on
October 31, 2023. On January 16, 2024, Justice
Kagan extended the time for filing a petition for a
writ of certiorari to and including February 28, 2024.
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
The Supremacy Clause of the U.S. Constitution,
art. VI, cl. 2, provides in relevant part:
This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof
. . . , shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.
INTRODUCTION
This lawsuit is among many attempting to hold
certain energy companies liable under state laws
for global climate change. Plaintiffs seek to impose
billions of dollars in damages on petitioners – and
other companies that provide energy sources used by
many millions of people – for planet-wide changes in
the climate. Plaintiffs allege they can recover under
2
state law for such global climate-change effects as
“flooding, erosion, and beach loss; extreme weather,
including hurricanes . . . ; ocean warming and acidification . . . ; and the cascading social, economic, and
other consequences of those environmental changes.”
App.104a-105a (¶ 10).
Climate change is, by its nature, a global issue.
Because greenhouse gases comingle and become
“well mixed in the atmosphere,” a molecule of CO2
emitted “in New Jersey may contribute no more to
flooding in New York than emissions in China.”
American Elec. Power Co. v. Connecticut, 564 U.S.
410, 422 (2011) (“AEP ”). Plaintiffs admit that “it is
not possible to determine the source of any particular
individual molecule of CO2 in the atmosphere.”
App.229a (¶ 196). Yet they request relief for “disruption of the Earth’s energy balance.” App.136a (¶ 40).
Plaintiffs thus seek to hold petitioners liable “for the
effects of emissions made around the globe over the
past several hundred years.” City of New York v.
Chevron Corp., 993 F.3d 81, 92 (2d Cir. 2021).
In this case, like dozens of others being filed and
litigated around the country based on an expanding
variety of state laws, plaintiffs would impose state
standards of greenhouse gas emissions under the
guise of state-law duties for reasonableness, warnings,
and misrepresentations. In these nearly identical
cases, plaintiffs seek billions of dollars in damages
for energy companies’ marketing tactics, which they
allege contributed to global climate change. The
cross-border nature of global climate change, however,
implicates uniquely federal interests. Imposing such
sweeping liability based on state-law emissions
standards interferes with the application of unified
federal policies and federal law. Our constitutional
3
structure does not permit uniquely federal problems
like global climate change to be resolved by a patchwork of state laws.
By upholding plaintiffs’ claims against preemption
defenses, the state supreme court endorsed a position
contrary to federal court judgments that, in the same
posture, have dismissed such claims on the pleadings.
It also contravened decades of this Court’s precedents
interpreting federal statutes governing transboundary
pollution. The state supreme court got off track by
accepting plaintiffs’ contrived narrative that, because
state law could address failures to warn or allegedly
deceptive advertising, state law also could provide a
remedy for the global effects of emissions caused
by global consumption of hydrocarbons. Because
the duties, causes, and remedies of plaintiffs’ suit
indirectly regulate out-of-state activities, they necessarily raise questions answerable only by federal
law. The Hawaiʻi Supreme Court erred in failing to
recognize that conflict.
Lawsuits like this one seeking to regulate global
emissions are beyond the limits of state law. The
Constitution and federal law prohibit the application
of state law. Without action by this Court, the
Nation will be in the untenable position of having
innumerable competing and frequently conflicting
sources of law governing this important issue. The
petition should be granted.
STATEMENT
Over the past seven years, States and municipalities across the country have brought more than two
dozen nearly identical cases against energy companies for their alleged participation in causing global
climate change. Respondents City and County of
Honolulu and Honolulu Board of Water Supply filed
4
this lawsuit seeking to hold petitioners liable, under
state law, for harms they claim are attributable to
global climate change. App.101a (¶ 2). This case and
others like it seek to impose massive damages and
abatement remedies for global emissions.
1. Previous cases also sought to force energy
companies to remedy the effects of global greenhouse
gas emissions under similar theories. In Native
Village of Kivalina v. ExxonMobil Corp., 696 F.3d
849 (9th Cir. 2012), for example, an Alaskan city and
native Alaskan tribe alleged that energy companies
were “substantial contributors to global warming”
and had “conspir[ed] to mislead the public about the
science of global warming.” Id. at 854. The plaintiffs
contended that the defendants “act[ed] in concert to
create, contribute to, and maintain global warming”
and were “responsible for [the city’s] injuries” from
“melting [of ] arctic sea ice.” Id.
The City of New York similarly sued energy
companies under state law for the “production,
promotion, and sale of fossil fuels,” alleging that the
defendants had “known for decades that their fossil
fuel products pose a severe risk to the planet’s
climate” yet “downplayed the risks and continued to
sell massive quantities of fossil fuels.” City of New
York, 993 F.3d at 86-88. The City alleged that the
defendants “orchestrated a campaign of deception
and denial regarding climate change.” Am. Compl.
¶ 6, City of New York, No. 18-CV-00182, Dkt. 80
(S.D.N.Y. Mar. 16, 2018) (“City of New York Am.
Compl.”). And it “requested compensatory damages
for the past and future costs of climate-proofing its
infrastructure and property.” 993 F.3d at 88.
Federal courts dismissed such claims on the pleadings. See Kivalina, 696 F.3d at 857 (affirming dismis-
5
sal of “federal common law public nuisance damage
action” as “extinguished” by the Clean Air Act); City
of New York, 993 F.3d at 94 (affirming dismissal of
state-law nuisance and trespass claims on “preemption defense”).
2. Plaintiffs brought this case in Hawaiʻi circuit
court asserting state-law claims for public and
private nuisance; strict liability and negligent failure
to warn; and trespass. App.216a-231a (¶¶ 155-207).
Plaintiffs allege that the “production and use of
[the energy companies’] fossil fuel products create
greenhouse gas pollution that warms the planet and
changes our climate” and that “global warming” is
“overwhelmingly caused by anthropogenic greenhouse gas emissions.” App.100a, 134a (¶¶ 1, 35).
Indeed, plaintiffs allege that all of their injuries are
“caused by anthropogenic greenhouse gas emissions,”
App.134a (¶ 35), and that these greenhouse gas
emissions are “[t]he mechanism” of those alleged
injuries, id.
They seek compensatory damages,
abatement of the alleged nuisance, disgorgement of
profits, punitive damages, and attorneys’ fees and
costs. App.232a.
Plaintiffs allege that “sea level rise” and “more
extreme and volatile weather” are “the consequences
of Defendants’ campaign of deception.” App.101a
(¶¶ 2-3). Plaintiffs’ central theory is that defendants
(including petitioners) misrepresented the dangers
of global climate effects from the lawful use of their
energy products. They allege that such failures
to warn or deceptive statements caused increased
consumption and greenhouse gas emissions that
caused global climate change, for which they seek
remedies from such effects as sea-level rise.
6
The energy companies removed this case to federal
court, contending, among other things, that the case
was governed by federal law and removable under
the federal-officer statute. The district court remanded
the case. 2021 WL 531237 (D. Haw. Feb. 12, 2021).
After this Court’s decision in another climate-change
case, BP P.L.C. v. Mayor & City Council of Baltimore,
141 S. Ct. 1532 (2021), the Ninth Circuit considered
all of defendants’ removal arguments not foreclosed
by prior Ninth Circuit precedent, City & Cnty. of
Honolulu v. Sunoco LP, 39 F.4th 1101 (9th Cir. 2022).
The court of appeals affirmed remand, explaining
that the removal “question before us has nothing to
do with the merits of th[e] claims.” Id. at 1106. This
Court declined review. 143 S. Ct. 1795 (2023).
On remand, petitioners moved to dismiss the
amended complaint. They and other defendants
argued, among other things, that the complaint failed
to state a claim because federal law, including the
Clean Air Act, necessarily governs and preempts the
claims. App.11a. The trial court denied the motion
to dismiss, reasoning that the claims were based on
“alleged deceptive promotion” of fossil-fuel products.
App.89a. Despite “struggl[ing]” with the preemption
issue, the trial court held there was no “conflict”
between federal law and the state-law claims.
App.92a-93a.
Defendants filed a timely interlocutory appeal to
the Hawai‘i Intermediate Court of Appeals. The
Hawai‘i Supreme Court subsequently accepted a
transfer of the appeal and affirmed.
3. The Hawai‘i Supreme Court concluded that
plaintiffs’ state-law claims were not preempted by
federal law. App.69a. The court reasoned that a
federal statute (the Clean Air Act) displaced federal
7
common law governing interstate emissions, and
thus “Plaintiffs could [seek to] recover under Hawai‘i
tort law.” Id. The court further held that, even if the
federal common law of transboundary emissions still
exists, the claims asserted below were not preempted
because the “claims do not seek to regulate emissions.”
App.39a. The court believed that “[t]he source of
Plaintiffs’ injury is not pollution, nor emissions.
Instead, the source of [the] alleged injury is Defendants’ alleged failure to warn and deceptive promotion.” App.54a. The court also held that the Clean
Air Act did not preempt the state-law claims, again
concluding that the claims “do not seek to regulate
emissions.” App.61a-62a. The state supreme court
did not reconcile those holdings with plaintiffs’ request
for damages for the effects of greenhouse gas
emissions on the global climate. On the contrary,
the court acknowledged that plaintiffs’ “theory of
liability” – that the alleged “deceptive commercial
activities . . . increased greenhouse gas emissions”
that injured plaintiffs – “is central to the . . . preemption issues on appeal.” App.11a.
The Hawai‘i court recognized that City of New York
rejected state-law claims in the same procedural
posture as this case. But the state court expressly
declined to follow the Second Circuit, concluding that
its opinion rested on “flawed reasoning.” App.42a.
Instead, the court relied on Baltimore, where the
Fourth Circuit recognized it was “only concerned
with removal jurisdiction and complete preemption’s
application” and therefore did “not . . . delve into
[preemption] defenses at [d]efendants’ disposal.”
Mayor & City Council of Baltimore v. BP P.L.C., 31
F.4th 178, 198 n.2 (4th Cir. 2022).
8
The state supreme court based its holding largely
on its view that this lawsuit “do[es] not seek to
regulate emissions.” App.39a. But Associate Justice
McKenna stated (less than a week before the court
on which she sits issued its opinion), that “climate
change” is “the most important issue” facing courts
and that “[t]ort litigation is a method of regulatory
control.”1
In his concurring opinion, Associate Justice Eddins
wrote directly to this Court: “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!
. . . In Hawai‘i, the Aloha Spirit inspires constitutional interpretation. . . . The United States Supreme
Court could use a little Aloha.” App.74a-76a.
REASONS FOR GRANTING THE PETITION
The decision below misunderstands core constitutional and federalism questions on which acknowledged conflicts exist. The court’s holding that plaintiffs’ state-law claims are not preempted by federal
law directly conflicts with the Second Circuit’s
decision in a nearly identical case. That judgment
in City of New York followed and synthesized a string
of cases applying federal law to disputes over transboundary emissions, including how state liability
would interfere with federal authority over foreign
affairs. The decision below also conflicts with a line
1 Chad Blair, Two Hawaii Supreme Court Justices Are Speaking Out, Honolulu Civil Beat, Nov. 7, 2023; State Constitutional
Law: The Critical Course Missing from Most Law School Curricula, 12th Annual Stevens Lecture, Featuring Justice Sabrina
McKenna, Oct. 26, 2023 (video at 29:57).
9
of decisions holding that the Clean Air Act preempts
state-law claims seeking to regulate out-of-state
emissions. On both questions, this Court’s decisions
in analogous cases expose the state court’s error.
And the decision below raises a question of exceptional national importance: whether the States united
under the federal Constitution, with foreign and
national policies directed at regulating greenhouse
gas emissions, can apply their own laws to impose
liability for those same emissions. In this context,
the stakes could not be higher for all concerned: who
decides how to address the effects of global climate
change lies at the heart of lawsuits like this one. The
petition should be granted.
I. THE STATE SUPREME COURT JUDGMENT
THAT
FEDERAL
LAW
DOES
NOT
PREEMPT STATE-LAW CLAIMS SEEKING
DAMAGES FOR THE EFFECTS OF GLOBAL
CLIMATE CHANGE CONFLICTS WITH
OTHER COURT DECISIONS
A. A Long Line Of Cases Holds That Only
Federal Law Applies To Suits Involving
Interstate And Foreign Emissions
1. In City of New York, the Second Circuit held
that federal law preempted a lawsuit against energy
companies seeking damages and equitable relief
under theories of public nuisance, private nuisance,
and trespass “stemming from the [companies’]
production, promotion, and sale of fossil fuels.” 993
F.3d at 88. Like in this case, the plaintiff alleged that
the defendants “orchestrated a campaign of deception
and denial regarding climate change.” City of New
York Am. Compl. ¶ 6. The goal of these “sophisticated advertising campaigns,” the city alleged, was “to
promote pervasive fossil fuel use . . . and to portray
10
fossil fuels as environmentally responsible.” Id.
The plaintiff alleged that this “marketing” and
“promotion” of fossil fuels “caused, created, assisted
in the creation of, maintained, and/or contributed to”
the alleged public nuisance. Id. ¶ 133.
The Second Circuit saw through the plaintiff ’s
attempt to avoid discussing “emissions” and instead
focus on “earlier moment[s]” in its causal chain leading to the alleged injuries, including the “promotion[ ]
and sale of fossil fuels.” 993 F.3d at 91, 97. It concluded that this attempt to plead around Supreme
Court precedent was “merely artful pleading and
d[id] not change the substance of [the] claims.” Id. at
97. The court recognized that “[i]t [wa]s precisely
because fossil fuels emit greenhouse gases – which
collectively ‘exacerbate global warming’ – that the
“plaintiff ] [wa]s seeking damages.” Id. at 91, 97.
“Consequently, though the City’s lawsuit would regulate cross-border emissions in an indirect and roundabout manner, it would regulate them nonetheless.”
Id. at 93.
The Second Circuit explained that “[t]he question
before us is whether municipalities may utilize state
tort law to hold multinational oil companies liable
for the damages caused by global greenhouse gas
emissions”; it “h[e]ld that the answer is ‘no.’ ” Id. at
85. The court concluded that the city’s “sprawling”
claims, which – like plaintiffs’ claims here – sought
“damages for the cumulative impact of conduct
occurring simultaneously across just about every
jurisdiction on the planet” – were “simply beyond the
limits of state law.” Id. at 92. In fact, the court
found that the claims presented “the quintessential
example” of when state laws must yield to a unified
federal rule. Id.
11
2. The Second Circuit reasoned that, “[f ]or over
a century, a mostly unbroken string of [Supreme
Court] cases has applied federal law to disputes
involving interstate air . . . pollution.” City of New
York, 993 F.3d at 91 (collecting cases). The court
recognized that allowing the plaintiff ’s climatechange-based claims to proceed would defy the
Framers’ careful allocation of power between the
States and the federal government, and among the
States themselves. Id. at 92. The court explained
that “ ‘basic interests of federalism’ ” preempted the
lawsuit. Id. at 91-92 (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 105 n.6 (1972) (“Milwaukee I ”)).
The court concluded that “our constitutional architecture” forecloses applying state law in certain areas
that are inherently interstate. Id. at 90. In cases
involving “interstate and international disputes
implicating the conflicting rights of States or our
relations with foreign nations,” “our federal system
does not permit the controversy to be resolved under
state law” “because the interstate or international
nature of the controversy makes it inappropriate for
state law to control.” Texas Indus., Inc. v. Radcliff
Materials, Inc., 451 U.S. 630, 641 (1981). Indeed, “a
few areas [of law], involving ‘uniquely federal interests,’ are so committed by the Constitution and laws
of the United States to federal control that state law
is pre-empted and replaced.” Boyle v. United Techs.
Corp., 487 U.S. 500, 504 (1988) (citation omitted).
The Second Circuit explained that the “overriding”
federal “need for a uniform rule of decision” exists
even after the Clean Air Act displaced federal
common-law claims for domestic greenhouse gas
emissions. City of New York, 993 F.3d at 91-92. The
court noted that “state law does not suddenly become
12
presumptively competent to address issues that
demand a unified federal standard simply because
Congress saw fit to displace a federal court-made
standard with a legislative one” under the Clean Air
Act. Id. at 98. The Seventh Circuit reached the
same conclusion in the Clean Water Act context,
explaining that “[t]he claimed pollution of interstate
waters is a problem of uniquely federal dimensions
requiring the application of uniform federal standards”
such that “federal law must govern” unless “Congress[ ] authorizes resort to state law.” Illinois v. City
of Milwaukee, 731 F.2d 403, 410-11 (7th Cir. 1984)
(“Milwaukee III ”) (emphasis added). In other words,
regardless of whether the federal government acts
through statute to regulate interstate pollution or
allows federal common law to apply, the constitutional architecture prevents state law from applying
to interstate emissions.
3. The Second Circuit also concluded that the
Constitution’s assignment of power over foreign
affairs to the federal government bars claims based
on foreign emissions. The court explained that, because
“the Clean Air Act does not regulate foreign emissions,” “claims concerning those emissions still require”
variegated state law to yield to a federal rule of
decision. City of New York, 993 F.3d at 95 n.7.
In affirming the companies’ “preemption defense,”
the court explained that “[t]o permit this suit to
proceed under state law would further risk upsetting
the careful balance that has been struck between the
prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production,
economic growth, foreign policy, and national security,
on the other.” Id. at 93-94 (citing AEP, 564 U.S. at
13
427). Because “states will invariably differ in their
assessment of the proper balance between these
national and international objectives, there is a real
risk that subjecting the [energy companies’] global
operations to a welter of different states’ laws could
undermine important federal policy choices.” Id.
The court concluded that “[t]o hold the [energy
company defendants] accountable for purely foreign
activity (especially the Foreign [companies, including
a petitioner here]) would . . . bypass the various
diplomatic channels that the United States uses to
address this issue.” Id. at 103.
B. The State Supreme Court Expressly Broke
With City of New York And Milwaukee III
The Hawai‘i Supreme Court expressly rejected City
of New York and instead concluded the Second
Circuit’s decision was “flawed.” App.42a. Both cases
alleged public nuisance, private nuisance, and trespass claims under state law. And both courts recognized that the cases were premised on the defendants’
promotional activities that induced greenhouse gas
emissions allegedly causing injury. The state court
explained that “Plaintiffs summarized their theory
of liability” as “deceptive commercial activities . . .
increased greenhouse gas emissions, which exacerbated climate change.” App11a. As the City of New
York argued, “[t]he primary fault the City allege[d] is
that Defendants contributed to serious environmental harm” through “production and marketing activities.” Appellant Br. 16, City of New York v. Chevron
Corp., No. 18-2188, Dkt. 89 (2d Cir. Nov. 8, 2018).
The Second Circuit similarly recognized that “[i]t is
precisely because fossil fuels emit greenhouse gases –
which collectively ‘exacerbate global warming’ – that
the City is seeking damages.” 993 F.3d at 91. Yet
14
the two courts reached opposite results with reasoning that conflicted in multiple ways.
The Hawai‘i Supreme Court held “Plaintiffs could
[seek to] recover under Hawai’i tort law,” App.69a,
while the Second Circuit “h[e]ld that the answer is
‘no,’ ” 993 F.3d at 85. The Second Circuit held that
“federal common law preempts state law,” id. at 95,
whereas the state supreme court held that “federal
common law does not preempt state law,” App.4a.
The Second Circuit held that state law is not “competent to address issues that demand a unified federal
standard” like transboundary pollution, 993 F.3d
at 98, whereas the state supreme court “decline[d]
to unduly limit Hawai‘i’s ability to use its police
powers,” App.69a.
The state supreme court concluded that City of
New York “goes against [the energy companies] in
part by holding that the very federal common law
they rely on is no longer good law.” App.46a.
But the decision below ignored the Second Circuit’s
holding that, because “the Clean Air Act does not
regulate foreign emissions,” “claims concerning those
emissions still require us to apply federal common
law” and that the city’s claims were “simply beyond
the limits of state law” and thus preempted. 993
F.3d at 92, 95 n.7. The state supreme court did not
address at all the “foreign policy concerns” that the
Second Circuit determined “foreclose” claims “targeting emissions emanating from beyond our national
borders.” Id. at 101. Instead, the court below concluded that its “preemption analysis requires analyzing the preemptive effect of only the [Clean Air Act].”
App.39a. By contrast, the Second Circuit declined to
apply only “a traditional statutory preemption analysis” and found “a federal rule of decision is necessary”
15
under “our constitutional architecture.” 993 F.3d at
90, 98.
The state court also opined that “state law that
was previously preempted by federal common law
does have new life when the federal common law is
displaced” by federal statute. App.44a n.9. In so
holding, the court expressly disagreed with “the
Seventh Circuit’s approach” in Milwaukee III, 731
F.2d at 411, which it said “ignores the presumption”
against preemption in certain contexts. App.44a n.9.
But that conclusion likewise conflicts with the Second Circuit’s reasoning that any such presumption
against preemption does not apply in the context of
transboundary pollution: “where a federal statute
displaces federal common law, it does so not in a field
in which the states have traditionally occupied, but
one in which the states have traditionally not occupied.” 993 F.3d at 98 (cleaned up; citations omitted).
The state supreme court determined that the
claims did not “regulate” emissions, but “challenge
the promotion and sale of fossil-fuel products without
warning and abetted by a sophisticated disinformation campaign.” App.3a. It reached that conclusion
because plaintiffs “d[id] not ask th[e] court to limit,
cap, or enjoin the production and sale of fossil fuels.”
App.40a. “But this ignores economic reality,” as the
Second Circuit explained in addressing nearly identical state-law claims challenging promotion of fossil
fuels and seeking recovery “for the effects of emissions.” 993 F.3d at 92. Rather, “regulation can be
effectively exerted through an award of damages,”
and “though the City’s lawsuit would regulate crossborder emissions in an indirect and roundabout
manner, it would regulate them nonetheless.” Id. at
92-93.
16
The judgment below thus directly conflicts with
decisions by the Second and Seventh Circuits in
multiple respects.
C. The State Court’s Decision Erred Because
The Constitution Preempts These Claims
The Hawai‘i judgment erred for at least three
reasons. First, the federal constitutional system
prohibits States (and municipalities) from using their
law to resolve claims involving transboundary
pollution. Second, the Constitution preempts statelaw claims like those asserted here that trench on
the federal government’s assigned power over foreign
affairs. And, third, plaintiffs’ effort to impose massive
liability indirectly regulates emissions and thus is
preempted.
1. As this Court has explained, the “basic interests of federalism” embodied in the Constitution
and the “overriding federal interest in the need for a
uniform rule of decision” “demand[ ]” that federal law
govern disputes like this one involving “air and water
in their ambient or interstate aspects.” Milwaukee I,
406 U.S. at 103, 105 n.6. Thus, “the basic scheme of
the Constitution . . . demands” that “federal common
law” govern these types of interstate and international disputes because “borrowing the law of a
particular State would be inappropriate.” AEP, 564
U.S. at 421, 422.
When the States “by their union made the forcible
abatement of outside nuisances impossible to each,”
they agreed that such disputes would be governed by
federal law. Georgia v. Tennessee Copper Co., 206
U.S. 230, 237 (1907). “The States would have had
the raw power to apply their own law to such matters
before they entered the Union, but the Constitution
implicitly forbids that exercise of power because
17
the ‘interstate nature of the controversy makes it
inappropriate for state law to control’ ” and instead
requires those disputes to “turn on federal ‘rules of
law.’ ” Franchise Tax Bd. of California v. Hyatt, 139
S. Ct. 1485, 1498 (2019) (cleaned up; citation omitted); see also Massachusetts v. EPA, 549 U.S. 497,
519 (2007) (explaining that when “a State enters the
Union” it “surrenders certain sovereign prerogatives”
to the federal government); Kansas v. Colorado, 206
U.S. 46, 97 (1907) (noting the “cardinal rule” that
“[e]ach state . . . can impose its own legislation on no
one of the others”).
The result of this constitutional bargain is that,
in cases involving alleged interstate nuisances and
related interstate or international disputes, “[t]he
rule of decision [must] be[ ] federal.” Milwaukee I,
406 U.S. at 108 n.10. “[S]tate law cannot be used.”
City of Milwaukee v. Illinois, 451 U.S. 304, 313 n.7
(1981) (“Milwaukee II ”).
In Milwaukee I, this Court explained that
“[f ]ederal common law,” and “not the varying common law of the individual States,” is “necessary to be
recognized as a basis for dealing in uniform standard
with the environmental rights of a State against
improper impairment by sources outside its domain.”
406 U.S. at 107 n.9. In International Paper Co.
v. Ouellette, this Court reaffirmed that “interstate
water pollution is a matter of federal, not state, law.”
479 U.S. 481, 488 (1987). More recently, it reinforced
that conclusion in AEP with respect to similar
nuisance claims alleging injury from global climate
change allegedly caused by the defendants’ fossilfuel-based energy production. See 564 U.S. at 418.
This Court confirmed that federal law “undoubtedly”
governs claims involving “air and water in their
18
ambient or interstate aspects.” Id. at 421. The
“subject is meet for federal law governance,” and
“borrowing the law of a particular State would be
inappropriate.” Id. at 422.
The decision below contravenes these authorities
by holding that a lawsuit premising liability on
“increased greenhouse gas emissions, which exacerbated climate change,” “can proceed” under state law.
App.2a, 11a.
2. Our constitutional structure also does not
permit the States or their municipalities to act
in ways that “impair the effective exercise of the
Nation’s foreign policy.” Zschernig v. Miller, 389 U.S.
429, 440 (1968). As this Court repeatedly has recognized, “[v]arious constitutional and statutory provisions . . . reflect[ ] a concern for uniformity in this
country’s dealings with foreign nations and indicat[e]
a desire to give matters of international significance
to the jurisdiction of federal institutions.” Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427
n.25 (1964). This power is “broad” and “undoubted.”
Arizona v. United States, 567 U.S. 387, 394 (2012).
“There is . . . no question that at some point an exercise of state power that touches on foreign relations
must yield to the National Government’s policy,
given the ‘concern for uniformity in this country’s
dealings with foreign nations’ that animated the
Constitution’s allocation of the foreign relations
power to the National Government in the first place.”
American Ins. Ass’n v. Garamendi, 539 U.S. 396, 413
(2003) (quoting Sabbatino, 376 U.S. at 427 n.25).
In adopting the Constitution, the Framers recognized the need for the federal government’s plenary
power in foreign affairs. See The Federalist No. 42,
at 264 (Madison) (Clinton Rossiter ed., 1961) (“If we
19
are to be one nation in any respect, it clearly ought to
be in respect to other nations.”); id., No. 80, at 476
(Hamilton) (“[T]he peace of the WHOLE ought not to
be left at the disposal of a PART.”); id., No. 44, at 281
(Madison) (emphasizing “the advantage of uniformity
in all points which relate to foreign powers”). Article
I, Section 10 prohibits States from performing
certain foreign affairs functions, like entering into
treaties. See U.S. Const. art. I, § 10. Article I,
Section 8 and Article II broadly authorize the federal
political branches to regulate foreign affairs.2 As a
result, States cannot “intru[de] . . . into the field of
foreign affairs which the Constitution entrusts to the
President and the Congress.” Zschernig, 389 U.S. at
432 (citing Hines v. Davidowitz, 312 U.S. 52, 62-63
(1941) (“That the supremacy of the national power in
the general field of foreign affairs . . . is made clear
by the Constitution was pointed out by authors of the
Federalist in 1787, and has since been given continuous recognition by this Court.”) (footnote omitted)).
Because the claims here encroach on U.S. foreign
policy – i.e., challenging the reasonableness of
foreign-policy decisions that address energy policy
and global greenhouse gas emissions – they are
preempted by the Constitution’s structure. See Garamendi, 539 U.S. at 413-20 (collecting cases holding
2 U.S. Const. art. I, § 8, cl. 3 (Congress authorized to “regulate Commerce with foreign Nations”); id., cl. 4 (to “establish
an uniform Rule of Naturalization”); id., cl. 10 (to “define and
punish . . . Offences against the Law of Nations”); id., cl. 11 (to
“declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water”); id., cl. 14 (to
“make Rules for the Government and Regulation of the land
and naval Forces”); id., cl. 18 (Necessary and Proper Clause);
id., art. II, § 2, cl. 2 (President authorized to make treaties with
advice and consent of two-thirds of Senators present).
20
state laws preempted because of their intrusion
into the federal government’s power over foreign
relations). As the Second Circuit recognized,
[t]o hold the [energy companies] accountable for
purely foreign activity (especially the Foreign
[companies]) would require them to internalize
the costs of climate change and would presumably affect the price and production of fossil fuels
abroad. It would also bypass the various diplomatic channels that the United States uses to
address this issue, such as the U.N. Framework
and the Paris Agreement. Such an outcome
would obviously sow confusion and needlessly
complicate the nation’s foreign policy, while
clearly infringing on the prerogatives of the
political branches.
City of New York, 993 F.3d at 103.
Because plaintiffs’ claims (and the many others
like them) necessarily involve ambient, global transmissions, federal law must govern. Plaintiffs allege
that all of their injuries are “caused by anthropogenic
greenhouse gas emissions.” App.134a (¶ 35). As this
Court has recognized, “[g]reenhouse gases once emitted become well mixed in the atmosphere; emissions
in New Jersey may contribute no more to flooding
in New York than emissions in China.” AEP, 564
U.S. at 422 (cleaned up). The claims thus also are
preempted because they are based on undifferentiated
greenhouse gas emissions and seek to impose liability for foreign emissions emanating from every
country in the world, “all without asking what the
laws of those other . . . countries[ ] require.” City of
New York, 993 F.3d at 92. Plaintiffs’ claims hinge
on global emissions and necessarily implicate issues
involving “our relationships with other members of
21
the international community [that] must be treated
exclusively as an aspect of federal law.” Sabbatino,
376 U.S. at 425-26.
3. The state court incorrectly held that plaintiffs’
claims do not seek to regulate emissions and are
therefore not preempted by federal law. “The proper
inquiry,” to determine whether a state-law claim is
preempted by federal law, “calls for an examination
of the elements of the common-law duty at issue.”
Bates v. Dow AgroSciences LLC, 544 U.S. 431, 445
(2005). If compliance with the elements of a statelaw claim creates a conflict with federal law, the
state-law claim is preempted under the Supremacy
Clause and that state law is “without effect.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992);
see U.S. Const. art. VI, cl. 2.
The state claims’ elements necessarily invoke transnational, cross-boundary emissions. The “reasonableness” element of the state-law duty second-guesses
national and international judgments about energy
policy. As to causation, the complaint alleges that
“greenhouse gas emissions” are “[t]he mechanism”
of harm. App.134a (¶¶ 35-36). The alleged injuries
stem from a “dramatic increase” in “greenhouse
gases.” App.102a (¶ 4). Thus, in their own words,
the “causes of Plaintiffs’ injuries and damages” are
“greenhouse gas molecules.” App.223a (¶ 171). And
as to damages, plaintiffs allege that defendants’
conduct “caused a substantial portion of global
atmospheric greenhouse gas concentrations . . . and
consequent injuries to Plaintiffs.” App.138a (¶ 47).
Although plaintiffs have focused on the supposed
disinformation allegedly spread by defendants,
plaintiffs have acknowledged from the start that
the only alleged source of harm is more greenhouse
22
gas emissions. As the Second Circuit recognized,
“focus[ing] on [an] ‘earlier moment’ in the global
warming lifecycle” “cannot transform [the complaint]
into anything other than a suit over global greenhouse gas emissions.” City of New York, 993 F.3d at
91, 97.
This Court has held that state common-law
damages claims are a form of regulation. “[R]egulation
can be effectively exerted through an award of
damages,” Kurns v. Railroad Friction Prods. Corp.,
565 U.S. 625, 637 (2012) (cleaned up), and “[s]tate
power” can be wielded as much by the “application
of a state rule of law in a civil lawsuit as by a
statute,” BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
572 n.17 (1996). Environmental tort claims also
force defendants “to change [their] methods of doing
business and controlling pollution to avoid the threat
of ongoing liability.” Ouellette, 479 U.S. at 495. Each
cause of action asserted below requires injury or
harm as an element of the claim, and, in each one,
plaintiffs encroach on federal law in seeking to regulate the source of that alleged harm: extraterritorial
greenhouse gas emissions.
Moreover, the partial displacement of federal
common law does not give rise to a state-law claim
because, “where a federal statute displaces federal
common law, it does so not in a field in which the
states have traditionally occupied, but one in which
states have traditionally not occupied.” City of New
York, 993 F.3d at 98 (cleaned up). Thus, “state law
does not suddenly become presumptively competent
to address issues that demand a unified federal
standard simply because Congress saw fit to displace
a federal court-made standard with a legislative
one.” Id. Plaintiffs’ lawsuit is barred by federal law
23
because it “ ‘implicates the conflicting rights of states
and our relations with foreign nations.’ ” Id. at 92
(quoting Texas Indus., 451 U.S. at 641) (cleaned up).
This “sprawling case is simply beyond the limits of
state law.” Id.
II. THE HAWAI‘I SUPREME COURT’S HOLDING THAT THE CLEAN AIR ACT DOES
NOT PREEMPT STATE LAW CONFLICTS
WITH DECISIONS FROM THIS AND
OTHER COURTS
The decision below also conflicts with the
judgments of several federal courts holding that the
Clean Air Act preempts state-law claims involving
interstate emissions.
Multiple federal appellate
courts have applied this Court’s reasoning in
Ouellette to hold that the Clean Air Act preempts the
application of state law to remedy harms arising
from out-of-state emissions.
A. A Long Line Of Cases Holds That The
Clean Air Act Preempts State-Law Claims
Seeking To Regulate Interstate Emissions
Under the Clean Air Act, Congress designated
the Environmental Protection Agency (“EPA”) as
the “primary regulator of [domestic] greenhouse gas
emissions.” AEP, 564 U.S. at 428. Congress thus
balanced the costs and benefits associated with the
production and use of fossil fuels and greenhouse
gas emissions through an “informed assessment of
competing interests,” including the “environmental
benefit potentially achievable” and “our Nation’s
energy needs and the possibility of economic disruption.” Id. at 427. In Ouellette, this Court held that
“[t]he [Clean Water] Act pre-empts state law to the
extent that the state law is applied to an out-of-state
point source.” 479 U.S. at 500. Because the struc-
24
ture of the Clean Air Act parallels that of the Clean
Water Act, courts have held that state-law claims
seeking to regulate out-of-state air emissions are
preempted.
1. In City of New York, the Second Circuit held
that “the issues raised in this dispute concerning
domestic emissions are squarely addressed by the
Clean Air Act.” 993 F.3d at 98. That statute “does
not authorize the City’s state-law claims, meaning
that such claims concerning domestic emissions are
barred.” Id. at 100. In concluding that the city’s
claims were preempted, the Second Circuit explained
that the case “hinge[d] on the link between the release
of greenhouse gases and the effect those emissions
have on the environment generally (and on the City
in particular).” Id. at 97. The court emphasized that
“the City does not seek any damages . . . that do not
in turn depend on harms stemming from emissions.”
Id. As a result, the “well-defined and robust statutory
and regulatory scheme of environmental law”
Congress created in the Clean Air Act “displaced”
common-law claims for damages for “domestic greenhouse gas emissions” outside of New York. Id. at 95,
97-98.
The Fourth Circuit reached a similar conclusion in
North Carolina ex rel. Cooper v. TVA, 615 F.3d 291,
306 (4th Cir. 2010) (Wilkinson, J.). There, North
Carolina brought a nuisance suit based on emissions
from power plants in other States.
In finding
the claims preempted, the court reasoned that the
“comprehensive” statutory scheme did not allow for
state-law claims and that the plaintiff was improperly
seeking to “appl[y] home state law extraterritorially.”
Id. at 296, 298. To hold otherwise, the Fourth
Circuit explained, would “ ‘undermine this carefully
25
drawn statute.’ ” Id. at 304 (quoting Ouellette, 479
U.S. at 494).
Other courts also have held that the Clean Air Act
preempts state-law claims brought to curb global
warming. In Comer v. Murphy Oil USA, Inc., the
plaintiffs brought nuisance, trespass, negligence, and
fraudulent misrepresentation and concealment
claims against several energy companies because of
their alleged contributions to global warming. 839 F.
Supp. 2d 849, 852-53 (S.D. Miss. 2012), aff ’d, 718
F.3d 460 (5th Cir. 2013). Because “the state law
causes of actions asserted by the plaintiffs hinge on a
determination that the defendants’ emissions are
unreasonable,” the court held that the “entire lawsuit
is displaced by the Clean Air Act.” Id. at 865.
And in Delaware ex rel. Jennings v. BP America
Inc., Delaware sued several energy companies (including some involved as defendants in this lawsuit)
for, among other things, failure to warn. 2024 WL
98888, at *1 (Del. Super. Ct. Jan. 9, 2024). Delaware
alleged that the companies “knew or should have
known that the unrestricted production and use of
fossil fuel products creates greenhouse gas pollution
that causes damage to the planet, the State of Delaware, and its residents.” Id. Delaware further
alleged that the companies “concealed and misrepresented their products’ known dangers while promoting their use, which drove consumption leading to
creating more greenhouse gas pollution and causing
the climate crisis.” Id. The court held that “the
[Clean Air Act] preempts state law to the extent a
state attempts to regulate air pollution originating in
other states.” Id. at *10. The court reasoned that
a suit “seeking damages for injuries resulting from
out-of-state or global greenhouse emissions and
26
interstate pollution” is “beyond the limits of [state]
common law.” Id. at *9.
2. Although the Clean Air Act contains savings
clauses, courts have continued to find claims for
out-of-state emissions preempted under the statute.
For example, one provision states, in relevant part,
“[n]othing in this section shall restrict 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 (including relief against the Administrator or a State agency).” 42 U.S.C. § 7604(e). Every
court to weigh in on this issue has held that the
savings clause applies only to the regulation of
intrastate emissions.
In Merrick v. Diageo Americas Supply, Inc., for
example, homeowners in Kentucky sued in-state
distillers for state-law negligence, nuisance, and
trespass based on emissions from the distilleries that
damaged the plaintiffs’ properties. 805 F.3d 685,
688-89 (6th Cir. 2015). The Sixth Circuit held that
the Clean Air Act “does not preempt state source
common law.” Id. at 694. The court recognized,
however, that “claims based on the common law of a
non-source state . . . are preempted by the Clean Air
Act.” Id. at 693 (applying Ouellette and Cooper).
The Third Circuit has held the same. In Bell v.
Cheswick Generating Station, the plaintiffs, a class
of residents who lived within one mile of a power
station, alleged state-law nuisance, negligence, and
trespass claims. 734 F.3d 188, 189-90 (3d Cir. 2013).
The court applied Ouellette to hold that “the Clean
Air Act does not preempt state common law claims
based on the law of the state where the source of the
pollution is located.” Id. at 196-97.
27
State high courts agree with those holdings. See
Freeman v. Grain Processing Corp., 848 N.W.2d 58
(Iowa 2014); Brown-Forman Corp. v. Miller, 528
S.W.3d 886 (Ky. 2017).
B. The Hawai‘i Judgment Conflicts With
Decisions From This Court And Multiple
Appellate Courts
1. The state supreme court’s judgment conflicts
with the above decisions. The court below held that
the Clean Air Act did not preempt plaintiffs’ statelaw claims because the Clean Air Act does not occupy
the field of “emissions.”
App.61a.
The court
reasoned that, because the claims alleged here (e.g.,
deceptive marketing and failure to warn of the
dangers of fossil-fuel use) do not “regulate” emissions,
the Clean Air Act does not preempt those claims.
App.66a-67a. That holding conflicts with City of New
York and other judgments that state law cannot
regulate out-of-state emissions. As the Second Circuit
recognized, “while the Clean Air Act might not
concern itself with aspects of fossil fuel production
and sale that are unrelated to emissions, neither
does the City’s complaint”; claims that identify no
harms “other than those caused by emissions” are
barred. City of New York, 993 F.3d at 97 & n.8;
see also id. at 93.
The state supreme court believed that “the
rationale motivating the Ouellette court in preempting affected-state common law claims does not apply
to Plaintiffs’ state tort claims.” App.66a. The court
concluded that the “claims require additional tortious
conduct to succeed,” that is, “Defendants’ alleged
deceptive marketing and failure to warn about the
dangers of using their products.” Id. But the state
supreme court also acknowledged plaintiffs’ “theory
28
of liability” is that defendants’ conduct “increased
greenhouse gas emissions.” App.11a. The state
judgment thus conflicted with the Second Circuit’s
recognition that “the City does not seek any damages
. . . that do not in turn depend on harms stemming
from emissions.” City of New York, 993 F.3d at 97.
Moreover, the state supreme court allowed plaintiffs’ claims to proceed under Hawai‘i law despite
plaintiffs contending that defendants’ “deception
inflated global consumption of fossil fuels, which
increased greenhouse gas emissions, exacerbated
climate change, and created hazardous conditions in
Hawai‘i.” App.15a (emphasis added). Other courts,
by contrast, have held that the Clean Air Act
preempts claims seeking to “appl[y] home state law
extraterritorially.” Cooper, 615 F.3d at 296.
2. The Hawai‘i decision also misunderstood the
Clean Air Act’s savings clause as supporting its
holding that the Clean Air Act does not preempt the
asserted state-law claims. The court noted that
“the [Clean Air Act]’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 [Clean Air Act].” App.61a. The
Hawai‘i court acknowledged that plaintiffs alleged
defendants “inflated global consumption of fossil
fuels, which increased greenhouse gas emissions.”
App.15a. The court’s errant reasoning nonetheless
viewed the savings clause as authorizing state law to
apply, even as it paid lip service to the principle that
the Clean Air Act preempts the application of one
State’s law to sources in another State, but “does not
preempt” “[s]ource-state claims.” App.65a.
29
The state court’s interpretation of the Clean Air
Act’s savings clause would permit state tort claims
for interstate and global emissions that cause harm
in a State, regardless of the source of those emissions.
App.60a-61a. But as the Fourth Circuit recognized
in Cooper, “[w]e . . . cannot allow non-source states to
ascribe to a generic savings clause a meaning that
the Supreme Court in Ouellette held Congress never
intended.” 615 F.3d at 304.
C. The State Court Erred Because The Clean
Air Act Preempts These Claims
The state supreme court concluded that plaintiffs’
claims are not preempted by the Clean Air Act
because they did not seek to “regulate” interstate
emissions. App.57a. That holding cannot be squared
with the complaint’s reliance on increased greenhouse gas emissions as supporting the causation and
damages elements of plaintiffs’ claims. Plaintiffs
seek to impose liability on petitioners for having
allowed – through alleged deception or otherwise –
some amount of emissions to enter the atmosphere
that Hawai‘i law deems illegal. But Congress and
the EPA already have determined what amount of
emissions is permissible. The Clean Air Act gives
States a role to play in a cooperative federal statutory
scheme by regulating in-state sources of emissions.
But one State cannot dictate to other States the
appropriate amount of emissions or determine under
state law that statements about emissions in other
States or countries are “unreasonable.” The States
as represented in Congress already reached a federal
statutory bargain. The Clean Air Act thus preempts
plaintiffs’ claims.
State law is preempted where it “stands as an
obstacle to the accomplishment and execution of the
30
full purposes and objectives of Congress.” Ouellette,
479 U.S. at 492. Like the Clean Water Act, the
Clean Air Act “represents Congress’ considered
judgment as to the best method of serving the public
interest and reconciling the often competing concerns
of those affected by the pollution. It would be extraordinary for Congress, after devising an elaborate . . .
system that sets clear standards, to tolerate commonlaw suits that have the potential to undermine this
regulatory structure.” Id. at 497.
Nor does any presumption against preemption
apply here.
As this Court has recognized, in
“inherently federal” areas, “no presumption against
pre-emption” applies. Buckman Co. v. Plaintiffs’
Legal Comm., 531 U.S. 341, 347-48 (2001). Indeed,
in these areas, “there is no beginning assumption
that concurrent regulation by the State is a valid
exercise of its police powers.” United States v. Locke,
529 U.S. 89, 108 (2000). Especially in the realm of
international relations, “[a]ny concurrent state power
that may exist is restricted to the narrowest of
limits.” Hines, 312 U.S. at 68; see also Maryland v.
Louisiana, 451 U.S. 725, 746 (1981) (an “Act of Congress may touch a field in which the federal interest
is so dominant that the federal system will be
assumed to preclude enforcement of state laws on the
same subject”).
Although this Court reserved the narrow question
whether to allow state-law claims brought under
“the law of each State where the defendants operate
powerplants,” AEP, 564 U.S. at 429, that potential
exception merely proves the rule – one State cannot
apply its law to claims based on emissions from another State or country. The Clean Air Act’s narrow
exception for States to regulate intrastate emissions
31
does not save plaintiffs’ claims arising from interstate
and global emissions from preemption under the
Clean Air Act. Plaintiffs seek to use Hawai‘i common
law to “regulate the conduct of out-of-state sources,”
which federal law prohibits. Ouellette, 479 U.S. at
495; accord City of New York, 993 F.3d at 95. As this
Court has recognized, damages awarded by a state
court against an out-of-state emitter would cause
the source of the pollution “to change its methods
of doing business and controlling pollution to avoid
the threat of ongoing liability.” Ouellette, 479 U.S.
at 495. In these cases, “[t]he inevitable result” is
that the States “could do indirectly what they could
not do directly—regulate the conduct of out-of-state
sources.” Id. Because the complaint seeks recovery
of damages that plaintiffs assert are due to global
climate change from worldwide emissions, App.204a216a, 218a-223a, 226a, 229a-231a (¶¶ 149-150, 152,
156, 160-161, 167-169, 183-184, 195-196, 203), the
claims are preempted.
III. THIS CASE PRESENTS A QUESTION OF
EXCEPTIONAL NATIONAL IMPORTANCE
WARRANTING THIS COURT’S REVIEW
Dozens of climate change-related lawsuits filed
in state courts are currently pending across the
country. Energy companies have been haled into
courts in many States and face potentially massive
liability under the laws of more than a dozen States
based on similar theories of liability. Despite global
climate change being a matter of worldwide concern,
individual States are seeking to address the problem
by indirectly regulating emissions through their own
common law. The consequences of allowing any
one of these lawsuits to proceed under state common
law are tremendous. Jury verdicts in cases like this
32
could threaten the energy industry. The questions
presented here, which have substantial legal and
practical importance, implicate the principle that
only federal law governs disputes in which remedies
are sought for transboundary emissions.
As this Court has recognized, allowing the States
to apply their own common-law rules to seek
remedies for transboundary emissions would mean
“more conflicting disputes, increasing assertions
and proliferating contentions” about these disputes.
Milwaukee I, 406 U.S. at 107 n.9. Without a federal
standard, these companies will remain subject to
more than 50 sets of “vague and indeterminate”
state-law theories. Milwaukee II, 451 U.S. at 317.
The resulting fragmented, piecemeal approach to
judicial decision-making interferes with an appropriate, coordinated, and effective federal approach
to combatting global climate change. The Solicitor
General has stated that “virtually every person . . .
across the globe . . . emits greenhouse gases, and
virtually everyone will also sustain climate-changerelated injuries.” Tennessee Valley Auth. Br. 11,
American Elec. Power Co. v. Connecticut, No. 10-174
(U.S. Jan. 31, 2011). If allowed, the fragmented
approach sanctioned by the state supreme court
will “implicate many competing interests of almost
unimaginably broad categories of both potential
plaintiffs and potential defendants.” Id. at 15-16. At
its core, this case illustrates that problem.
Substantial disagreement in approach marks this
issue. The Second Circuit recognized that the numerous amicus briefs from the federal government, the
District of Columbia, and 23 States on both sides
of the dispute highlight that this is an interstate
controversy for which the law of one State cannot
apply. See City of New York, 993 F.3d at 84.
33
Even the United States has taken contrary positions on this issue. The Solicitor General has argued
that “cross-boundary tort claims associated with air
and water pollution involve a subject that ‘is meet for
federal law governance’ ” because claims “that seek
to apply the law of an affected State to conduct in
another State” necessarily “arise under ‘federal, not
state, law.’ ” U.S. Amicus Br. 26-27, BP p.l.c. v.
Mayor & City Council of Baltimore, No. 19-1189
(U.S. Nov. 23, 2020) (citations omitted). At oral
argument in Baltimore, the United States confirmed
that the plaintiff ’s claims are “inherently federal in
nature.” Oral Arg. Tr. 31:2-4, Baltimore, 2021 WL
197342 (U.S. Jan. 19, 2021). Although the plaintiff
“tried to plead around” contrary precedent, “its case
still depends on alleged injuries to the [plaintiff ]
caused by emissions from all over the world, and
those emissions just can’t be subjected to potentially
conflicting regulations by every state and city.”
Id. at 31:4-12. Similarly, and as the United States
explained to the Ninth Circuit, “[a]s a matter of
constitutional structure, any claims asserted in this
area are inherently federal,” so “state law could never
validly apply in the first place.” U.S. Amicus Br. 5,
City of Oakland v. BP p.l.c., No. 18-16663, Dkt. 198
(9th Cir. Aug. 3, 2020).
But the United States also has taken the position
that these claims do not arise under federal law.
See U.S. Amicus Br. 7, Suncor Energy (U.S.A.) Inc.
v. Board of Cnty. Comm’rs of Boulder Cnty., No.
21-1550 (U.S. Mar. 16, 2023) (“After the change in
Administration . . . , the United States has reexamined
its position and has concluded that state-law claims
like those pleaded here should not be recharacterized
as claims arising under federal common law.”).
34
The varying decisions and positions by the federal
government confirm the problem is one only this
Court can resolve. Instead of one federal rule, under
the logic of the decision below, at least 50 different
sets of state law govern global climate change. Thus,
courts inevitably will reach different results and
impose different remedial measures on the company
defendants – be they inconsistent injunctions or
huge damages awards. This fragmented approach to
disputes about interstate and global emissions will
continue to make it “increasingly difficult for anyone
to determine what standards govern.” Cooper, 615
F.3d at 298. “This problem is only exacerbated
[where, as here] state nuisance law is the mechanism
[to be] used, because ‘nuisance standards often are
vague and indeterminate.’ ” Id. at 301 (quoting Ouellette, 479 U.S. at 496).
The concurring justice below issued a challenge to
this Court and used his concurrence to express his
frustration with this Court’s rulings. Another justice
explained that she believes tort suits are a way for
States to assert regulatory control on the issue of
climate change. See supra note 1. Those statements
highlight the need for a federal standard for
cross-border, transient emissions cases. Without
such a standard, state courts are free to use these
cases to express discontent with this Court and
policies the Constitution has delegated to the federal
government.
CONCLUSION
The petition for a writ of certiorari should be
granted.
35
Respectfully submitted,
JOACHIM P. COX
RANDALL C. WHATTOFF
COX FRICKE LLP
800 Bethel Street
Suite 600
Honolulu, Hawai‘i 96813
(808) 585-9440
DAVID C. FREDERICK
Counsel of Record
DANIEL S. SEVERSON
D. CHANSLOR GALLENSTEIN
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C.
1615 M Street, N.W.
Suite 400
Washington, D.C. 20036
(202) 326-7900
(dfrederick@kellogghansen.com)
Counsel for Petitioners
February 2024
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