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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APPENDIX
TABLE OF CONTENTS
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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
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
1a
IN THE SUPREME COURT OF
THE STATE OF HAWAI‘I
__________
SCAP-22-0000429
CITY AND COUNTY OF HONOLULU and
HONOLULU BOARD OF WATER SUPPLY,
Plaintiffs-Appellees,
v.
SUNOCO LP, et al.,
Defendants-Appellants,
and
BHP GROUP LIMITED and BHP GROUP PLC,
Defendants-Appellees.
__________
APPEAL FROM THE CIRCUIT COURT
OF THE FIRST CIRCUIT (CAAP-22-0000429;
CASE NO. 1CCV-20-0000380)
__________
[Filed: October 31, 2023]
__________
RECKTENWALD, C.J., McKENNA, AND EDDINS,
JJ., CIRCUIT JUDGE JOHNSON AND CIRCUIT
JUDGE TONAKI, ASSIGNED BY REASON OF
VACANCIES, AND EDDINS, J., CONCURRING
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OPINION OF THE COURT BY
RECKTENWALD, C.J.
I. INTRODUCTION
The City and County of Honolulu and the Honolulu
Board of Water Supply (collectively, Plaintiffs)
brought suit against a number of oil and gas producers1 (collectively, Defendants) alleging five counts:
public nuisance, private nuisance, strict liability failure to warn, negligent failure to warn, and trespass.
Defendants appeal the circuit court’s denial of their
motions to dismiss for both lack of jurisdiction and
failure to state a claim. We conclude that the circuit
court properly denied both motions, and accordingly,
this lawsuit can proceed.
Plaintiffs argue this is a traditional tort case alleging that Defendants engaged in a deceptive promotion campaign and misled the public about the dangers of using their oil and gas products. Plaintiffs
claim their theory of liability is simple: Defendants
knew of the dangers of using their fossil fuel products, “knowingly concealed and misrepresented the
climate impacts of their fossil fuel products,” and
engaged in “sophisticated disinformation campaigns
to cast doubt on the science, causes, and effects
of global warming,” causing increased fossil fuel
1 Defendants are: Sunoco LP, Aloha Petroleum, Ltd., Aloha
Petroleum LLC, Exxon Mobil Corporation, ExxonMobil Oil Corporation, Shell plc (f/k/a Royal Dutch Shell plc), Shell U.S.A.
Inc. (f/k/a Shell Oil Company), Shell Oil Products Company
LLC, Chevron Corporation, Chevron U.S.A. Inc., Woodside Energy
Hawaii Inc. (f/k/a BHP Hawaii Inc.), BP plc, BP America Inc.,
Marathon Petroleum Corporation, ConocoPhillips, ConocoPhillips
Company, Phillips 66, and Phillips 66 Company. The circuit
court dismissed BHP Group Limited and BHP Group plc – that
dismissal was not appealed and is not before this court.
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consumption and greenhouse gas emissions, which
then caused property and infrastructure damage in
Honolulu. Simply put, Plaintiffs say the issue is
whether Defendants misled the public about fossil
fuels’ dangers and environmental impact.
Defendants disagree. They say this is another in a
long line of lawsuits seeking to regulate interstate
and international greenhouse gas emissions, all of
which have been rejected. Greenhouse gas emissions
and global warming are caused by “billions of daily
choices, over more than a century, by governments,
companies, and individuals,” and Plaintiffs “seek to
recover from a handful of Defendants for the cumulative effect of worldwide emissions leading to global
climate change and Plaintiffs’ alleged injuries.” They
argue: (1) the circuit court lacked specific jurisdiction over the Defendants; (2) Plaintiffs’ claims are
preempted by federal common law, which in turn,
was displaced by the Clean Air Act (CAA); and
(3) alternatively, Plaintiffs’ claims are preempted by
the CAA.
We agree with Plaintiffs. This suit does not seek to
regulate emissions and does not seek damages for
interstate emissions. Rather, Plaintiffs’ complaint
“clearly seeks to challenge the promotion and sale of
fossil-fuel products without warning and abetted by
a sophisticated disinformation campaign.” Mayor &
City Council of Baltimore v. BP P.L.C., 31 F.4th 178,
233 (4th Cir. 2022), cert. denied, ––– U.S. –––, 143 S.
Ct. 1795, 215 L.Ed.2d 678 (2023) (characterizing a
complaint brought against many of the same Defendants in this case alleging broadly the same counts,
theory of liability, and injuries). This case concerns
torts committed in Hawai‘i that caused alleged injuries in Hawai‘i.
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Thus, Defendants’ arguments on appeal fail.
First, Defendants are subject to specific jurisdiction
in Hawai‘i because: (1) Plaintiffs’ allegations that
Defendants misled consumers about fossil fuels
products’ dangers “arise out of ” and “relate to”
Defendants’ contacts with Hawai‘i, i.e., Defendants’
sale and marketing of those fossil fuel products in
Hawai‘i, Ford Motor Co. v. Montana Eighth Judicial
District Court, 592 U.S. –––, 141 S. Ct. 1017, 1025,
209 L.Ed.2d 225 (2021); (2) it is reasonable for
Hawai‘i courts to exercise specific jurisdiction over
Defendants, and doing so does not conflict with interstate federalism principles because Hawai‘i has a
“significant interest[ ] . . . [in] ‘providing [its] residents
with a convenient forum for redressing injuries inflicted by out-of-state actors,’ ” see id. at 1030 (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473,
105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)); and (3) the
Supreme Court has never imposed a “clear notice”
requirement, see id. at 1025.
Second, the CAA displaced federal common law
governing interstate pollution damages suits; after
displacement, federal common law does not preempt
state law. See Am. Elec. Power Co. v. Connecticut,
564 U.S. 410, 423-24, 131 S.Ct. 2527, 180 L.Ed.2d
435 (2011) (“AEP ”); Bd. of Cnty. Comm’rs of Boulder
Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238,
1260 (10th Cir. 2022), cert. denied, ––– U.S. –––, 143
S. Ct. 1795, 215 L.Ed.2d 678 (2023) (“[T]he federal
common law of nuisance that formerly governed
transboundary pollution suits no longer exists due to
Congress’s displacement of that law through the
CAA.”). We must only consider whether the CAA
preempts state law. AEP, 564 U.S. at 429, 131 S.Ct.
2527 (“[T]he availability vel non of a state lawsuit
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depends inter alia on the preemptive effect of the
[CAA].”).
Third, the CAA does not preempt Plaintiffs’ claims.
The CAA does not occupy the entire field of emissions
regulation. See Merrick v. Diageo Ams. Supply, Inc.,
805 F.3d 685, 695 (6th Cir. 2015) (determining that
there is “no evidence that Congress intended that
all emissions regulation occur through the [CAA’s]
framework”). There is no “actual conflict” between
Plaintiffs’ state tort law claims and the CAA’s overriding federal purpose or objective. See In re Methyl
Tertiary Butyl Ether (MTBE) Prod. Liab. Litig.
(MTBE), 725 F.3d 65, 101 (2d Cir. 2013) (concluding
that CAA did not preempt state tort law claims relating to a gasoline additive where it was possible to
comply with both state and federal law).
Therefore, we affirm the circuit court’s orders denying Defendants’ motion to dismiss for lack of jurisdiction and motion to dismiss for failure to state a
claim.
II. BACKGROUND
A. Circuit Court Proceedings
1. Original complaint, removal, and remand
In March 2020, Plaintiffs filed their original
complaint in the Circuit Court for the First Circuit
alleging that for decades, Defendants knew their
fossil fuel products caused greenhouse gas emissions
and global warming, but they failed to warn consumers of the threat, and actively worked to discredit
scientific evidence that supported the existence of
global warming. In April 2020, Defendants removed
the case to federal court. Defendants argued that
removal jurisdiction was appropriate because federal
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common law governed, and the CAA and other federal
statutes preempted Plaintiffs’ claims.2
On Plaintiffs’ motion, the federal district court
remanded the case to state circuit court. The federal
court explained that the Ninth Circuit, in City of
Oakland v. BP PLC, 969 F.3d 895, 906-08 (9th Cir.
2020), recently rejected Defendants’ federal-commonlaw, federal-preemption, and federal-questionjurisdiction arguments. City & Cnty. of Honolulu v.
Sunoco LP, No. 20-CV-00163-DKW-RT, 2021 WL
531237, at *2 n.8 (D. Haw. Feb. 12, 2021). The court
explained that the “principal problem with Defendants’
arguments is that they misconstrue Plaintiffs’
claims.” Id. at *1. “More specifically, contrary to
Defendants’ contentions, Plaintiffs have chosen to
pursue claims that target Defendants’ alleged concealment of the dangers of fossil fuels, rather than the
acts of extracting, processing, and delivering those
fuels.” Id. Further, Plaintiffs’ nuisance claims arise
“not through [Defendants’] ‘fossil fuel production
2 Defendants asserted eight grounds for federal jurisdiction:
(1) the Outer Continental Shelf Lands Act (OCSLA) because “[a]
significant portion of oil and gas exploration and production”
occurs on the shelf; (2) the federal officer removal statute, see
28 U.S.C. § 1442(a)(1), because oil and gas production “took
place under the direction of a federal officer to support critical
national security, military, and other core federal government
operations;” (3) federal enclave jurisdiction because some oil
production occurred on federal enclaves like the Outer Continental Shelf; (4) federal common law, which defendants argue
governs Plaintiffs’ claims; (5) federal question jurisdiction
because Plaintiffs’ claims “necessarily raise[ ] federal questions
under the [CAA], EPA and other federal regulations and international treaties on climate change to which the United States
is a party;” (6) federal preemption by the CAA and other related
statutes; (7) bankruptcy jurisdiction; and (8) admiralty jurisdiction.
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activities,’ . . . but through their alleged failure to
warn about the hazards of using their fossil fuel
products and disseminating misleading information
about the same.” Id. at *3.
On appeal, the Ninth Circuit affirmed the district
court’s order remanding the case to state circuit
court. City & Cnty. of Honolulu v. Sunoco LP, 39
F.4th 1101, 1113 (9th Cir. 2022). Defendants filed an
application for writ of certiorari to the U.S. Supreme
Court, which was denied. Sunoco LP v. City &
Cnty. of Honolulu, ––– U.S. –––, 143 S. Ct. 1795,
215 L.Ed.2d 678 (2023) (denying application for
certiorari).
2. First Amended Complaint
In its First Amended Complaint (Complaint),
Plaintiffs added the Board of Water Supply (BWS)
as a plaintiff and amended certain allegations to
incorporate damages specific to BWS. Plaintiffs also
added an allegation that the wrongful conduct giving
rise to the second cause of action (private nuisance)
was committed with actual malice, permitting punitive damages.
First, Plaintiffs allege that human activity is causing the atmosphere and oceans to warm, sea levels to
rise, snow cover to diminish, oceans to acidify, and
hydrologic systems to change. Greenhouse gas emissions, which are largely a byproduct of combustion of
fossil fuels, are the chief cause of this warming. The
accumulation of greenhouse gases in the atmosphere
has adverse impacts on the earth, including: warming of the average surface temperature, resulting in
increasingly frequent heatwaves; sea level rise; flooding of land and infrastructure; changes to the global
climate, including longer periods of drought; ocean
acidification; increased frequency of extreme weather;
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changes to ecosystems; and impacts on human health
associated with extreme weather, decreased air quality, and vector-borne illnesses.
Next, Plaintiffs allege that Defendants knew about
the dangers associated with their products because
they, or their predecessors in interest, were members
of the American Petroleum Institute (API). Beginning in the 1950s, scientists warned the API that
fossil fuels were causing atmospheric carbon dioxide
levels to increase. In 1965, President Lyndon B.
Johnson’s Scientific Advisory Committee warned of
global warming and the catastrophic impacts that
could result. The API President related these findings to industry leaders at the association’s annual
meeting that year. Plaintiffs allege that by 1965,
industry leaders were aware of the global warming
phenomenon caused by their products. Defendants
continued to gather information on the climate
change impacts of their products throughout the
1960s, 1970s, and 1980s.
During the 1980s, many of the defendants in the
present case formed their own research units focused
on climate modeling. API provided a forum where
Defendants shared research efforts and corroborated
each other’s findings. Plaintiffs allege that by 1988,
Defendants “had amassed a compelling body of
knowledge about the role of anthropogenic greenhouse gases, and specifically those emitted from the
normal use of Defendants’ fossil fuel products, in
causing global warming and its cascading impacts[.]”
Plaintiffs allege that around 1990, public discussion shifted from gathering information on climate
change to international efforts to curb emissions.
At this point, Defendants – rather than collaborating
with the international community to help curb
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emissions – “embarked on a decades-long campaign
designed to maximize continued dependence on their
products and undermine national and international
efforts to rein in greenhouse gas emissions.” Defendants began a public relations campaign to cast
doubt on the science connecting global climate
change to their products. Defendants promoted their
products through misleading advertisements and
funding “climate change denialist organizations.”
According to Plaintiffs, Defendants’ efforts to cast
doubt on climate science continued throughout the
1990s and 2000s. Defendants “bankroll[ed]” scientists with “fringe opinions” in order to create a false
sense of disagreement in the scientific community.
Defendants’ own scientists, experts, and managers
had previously acknowledged climate change’s
effects. At the same time, Defendants worked to
change public opinion over climate change’s existence
and avoid regulation. Defendants funded dozens of
think tanks, front groups, and dark money foundations pushing climate change denial, with ExxonMobil alone spending almost $31 million.
Plaintiffs allege that, while Defendants publicly
cast doubt on climate change, they simultaneously
invested in operational changes to prepare for its
adverse consequences. For example, Defendants
allegedly raised offshore oil platforms to protect
against rising sea levels, reinforced them against
storms, and developed new technologies for extracting oil in places previously blocked by polar sea ice.
Defendants now claim they are investing in renewable energy, but Plaintiffs claim these statements are
a pretense. Defendants’ advertisements and promotional materials do not disclose the risks of their
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products, and they continue to ramp up fossil fuel
production, including new fossil fuel development.
Plaintiffs allege that they have sustained damages
caused by Defendants’ failure to warn and deceptive
promotion of dangerous products. Defendants’ conduct “is a substantial factor in causing global warming,” which has had adverse effects on Plaintiffs.
These effects include sea level rise (causing flooding,
erosion, and beach loss); more extreme weather
events; ocean warming (causing destruction of coral
reefs); loss of endemic species; and diminished availability of fresh water. Because of Defendants’ conduct, Plaintiffs suffered damage to their facilities and
property, incurred increased planning and preparation costs to adapt communities to global warming’s
effects, collected less tax revenue due to impacts
on tourism, and suffered the cost of public health
impacts such as an increase in heat-related illnesses.
Plaintiffs have already suffered damage to beach
parks, roads, and drain way infrastructure from
flooding and sea level rise.
Plaintiffs bring five counts under state law: public
nuisance, private nuisance, strict-liability failure
to warn, negligent failure to warn, and trespass.
All counts rely on the same theory of liability:
Defendants knew about the dangers of using their
fossil fuel products, failed to warn consumers about
those known dangers, and engaged in a sophisticated
disinformation campaign to increase fossil fuel
consumption, all of which exacerbated the impacts of
climate change in Honolulu.
3. Defendants’ joint motions to dismiss
Defendants filed two motions to dismiss, the first
for lack of jurisdiction and the second for failure to
state a claim. In their first motion to dismiss,
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Defendants argued the circuit court did not have
specific jurisdiction because
“(1) the Complaint avers, as it must, that Plaintiffs’
alleged injuries arise out of and relate to worldwide
conduct by countless actors, not Defendants’ alleged
contacts with Hawai‘i; (2) Defendants did not have
‘clear notice’ that as a result of their activities in
Hawai‘i they could be sued here for activity occurring around the world; and (3) exercising jurisdiction would be constitutionally unreasonable.”
In their second motion to dismiss, Defendants
argued: (1) Plaintiffs’ claims are interstate pollution
claims, which must be brought under federal common law, not state common law, and that the CAA
preempts interstate pollution federal common law
claims; or alternatively, (2) Plaintiffs’ state common
law claims are preempted by the CAA. Plaintiffs
opposed.
At the motion hearing, Plaintiffs summarized their
theory of liability, which is central to the jurisdictional and preemption issues on appeal. Plaintiffs
explained that defendants “concealed and misrepresented the climate impacts of their products, using
sophisticated disinformation campaigns to discredit
the science of global warming.” Defendants also
allegedly misled “consumers and the rest of the world
about the dangers of using their products as intended
in a profligate manner.” Thus, “these deceptive
commercial activities . . . inflated the overall consumption of fossil fuels, which increased greenhouse gas
emissions, which exacerbated climate change, which
created the hazardous environmental conditions”
that have allegedly injured Plaintiffs.
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4. The circuit denied Defendants’ motions to
dismiss
The circuit court subsequently denied both motions.3
The circuit court denied Defendants’ motion to
dismiss for lack of jurisdiction, concluding that it had
specific jurisdiction because Plaintiffs’ claims arose
out of and related to Defendants’ sales and marketing contacts in Hawai‘i. See, e.g., Ford Motor, 141 S.
Ct. at 1025. The circuit court also determined it
would be reasonable to exercise specific jurisdiction
over Defendants. See Hawaii Forest & Trial Ltd. v.
Davey, 556 F. Supp. 2d 1162, 1168-72 (D. Haw.
2008).
The circuit court also denied Defendants’ joint
motion to dismiss for failure to state a claim. The
court explained that the standard for the review of a
motion to dismiss “is generally limited to the allegations in the complaint, which must be deemed true
for purposes of the motion,” Kahala Royal Corp. v.
Goodsill Anderson Quinn & Stifel, 113 Hawai‘i 251,
266, 151 P.3d 732, 747 (2007), but courts are “not
required to accept conclusory allegations,” Civ. Beat
L. Ctr. for the Pub. Int., Inc. v. City & Cnty. of Honolulu, 144 Hawai‘i 466, 474, 445 P.3d 47, 55 (2019).
And “the issue is not solely whether the allegations
as currently pled are adequate.” Rather, “[a] complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her
claim that would entitle him or her to relief under
any set of facts or any alternative theory.” (Citations
omitted).
3 The Honorable Jeffrey P. Crabtree presided.
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The circuit court first concluded that City of New
York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021),
cited by Defendants, “has limited application to this
case, because the claims in the instant case are both
different from and were not squarely addressed in
[that] opinion.” The circuit court then determined
that federal common law did not govern Plaintiffs’
state law claims. The circuit court also determined
that Plaintiffs’ claims were not preempted by the
CAA.
The circuit court also rejected Defendants’ argument
that a large damages award in this case could act as
a de facto emissions regulation because an unfavorable judgment would “not prevent Defendants from
producing and selling as much fossil fuels as they
are able, as long as Defendants make the disclosures
allegedly required, and do not engage in misinformation.” The circuit court concluded:
A broad doctrine that damages awards in tort
cases impermissibly regulate conduct and are
thereby preempted would intrude on the historic
powers of state courts. Such a broad “damages =
regulation = preemption” doctrine could preempt
many cases common in state court, including much
class action litigation, products liability litigation,
claims against pharmaceutical companies, and
consumer protection litigation.
Last, the circuit court concluded that it was appropriate for state common law to govern Plaintiffs’
claims:
Defendants argue (and the City of New York
opinion expresses) that climate change cases are
based on “artful pleading.” Respectfully, we often
see “artful pleading” in the trial courts, where new
conduct and new harms often arise:
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The argument that recognizing the tort will
result in a vast amount of litigation has accompanied virtually every innovation in the law.
Assuming that it is true, that fact is unpersuasive unless the litigation largely will be spurious
and harassing. Undoubtedly, when a court recognizes a new cause of action, there will be many
cases based on it. Many will be soundly based
and the plaintiffs in those cases will have their
rights vindicated. In other cases, plaintiffs will
abuse the law for some unworthy end, but the
possibility of abuse cannot obscure the need to
provide an appropriate remedy.
Fergerstrom v. Hawaiian Ocean View Estates, 50
Haw. 374, 377 [441 P.2d 141] (1968) (opinion by
Levinson, J.)[.] Here, the causes of action may
seem new, but in fact are common. They just seem
new due to the unprecedented allegations involving
causes and effects of fossil fuels and climate
change. Common law historically tries to adapt to
such new circumstances.
The circuit court then granted Defendants leave to
file an interlocutory appeal.
B. Appellate Proceedings
Defendants timely filed their joint notice of interlocutory appeal from the circuit court’s Order Denying Defendants’ Joint Motion to Dismiss for Failure
to State a Claim and its Order Denying Defendants’
Joint Motion to Dismiss for Lack of Personal Jurisdiction. This court subsequently granted Plaintiffs’
application for transfer from the Intermediate Court
of Appeals.
On appeal, Defendants frame this case as one
where Plaintiffs “seek[ ] to hold Defendants liable
under Hawai‘i tort law for harms allegedly attributa-
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ble to global climate change.” This case should be
dismissed because “these emissions flow from billions
of daily choices, over more than a century, by
governments, companies, and individuals about what
types of fuels to use, and how to use them.” Plaintiffs
“seek to recover from a handful of Defendants for
the cumulative effect of worldwide emissions leading
to global climate change and Plaintiffs’ alleged
injuries.”
Plaintiffs dispute Defendants’ characterization of
the Complaint. Plaintiffs argue that the Complaint
does “not ask for damages for all effects of climate
change; rather, [it] seek[s] damages only for the
effects of climate change allegedly caused by Defendants’ breach of Hawai‘i law regarding failure to
disclose, failures to warn, and deceptive promotion.”
Plaintiffs contend their Complaint is “straightforward”: “Defendants knowingly concealed and misrepresented the climate impacts of their fossil fuel
products” and that “deception inflated global consumption of fossil fuels, which increased greenhouse gas
emissions, exacerbated climate change, and created
hazardous conditions in Hawai‘i.” Despite Defendants’ contention that this suit seeks to regulate
fossil fuel production, “so long as Defendants start
warning of their products’ climate impacts and stop
spreading climate disinformation, they can sell as
much fossil fuel as they wish without fear of incurring further liability.”
Defendants raise three points of error: (1) the
circuit court lacked specific jurisdiction over the
Defendants; (2) Plaintiffs’ claims are preempted by
federal common law, which in turn, was displaced by
the CAA; and (3) alternatively, Plaintiffs’ claims are
preempted by the CAA.
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First, Defendants argue that specific jurisdiction
does not attach because: (1) Plaintiffs cannot show
that their claims “arise out of or relate to,” Ford
Motor, 141 S. Ct. at 1025, Defendants’ contacts with
Hawai‘i because Plaintiffs’ alleged injuries did not
“occur in-state as a result of the use of the product
in-state;” (2) Defendants’ in-state conduct “did not
reasonably place them on clear notice” they would be
subject to specific jurisdiction in Hawai‘i as required
by the federal Due Process Clause; and (3) the exercise of “personal jurisdiction here would conflict with
federalism principles” limiting state jurisdiction in
areas of national interest.
Plaintiffs dispute Defendants’ arguments, contending: (1) the U.S. Supreme Court explained in Ford
Motor that it had “never framed the specific jurisdiction inquiry as always requiring proof of causation —
i.e., proof that the plaintiff ’s claim came about
because of the defendant’s in-state conduct,” id. at
1026; (2) Defendants had fair warning they could be
haled into Hawai‘i courts, and Ford Motor did not
create a “clear notice” requirement, id. at 1027; and
(3) Plaintiffs’ suit does not interfere with national
energy policy because Defendants can continue to
produce as much oil as they want as long as they stop
their tortious marketing conduct.
Second, Defendants argue that Plaintiffs’ state law
claims are governed by federal common law “because
they seek redress for harms allegedly caused by
interstate and international emissions.” Relying
on City of New York, Defendants say that federal
common law preempts Plaintiffs’ state common law
tort claims, and in turn, the CAA preempts the
federal common law. See City of New York, 993 F.3d
at 93-96. Defendants contend that “[o]nce this court
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correctly concludes that Plaintiffs’ claims are necessarily governed by federal law, it follows that Plaintiffs also have no remedy under federal law.”
Plaintiffs counter that the CAA displaced federal
common law governing interstate pollution, and that
law “no longer exists.” Boulder, 25 F.4th at 1260; see
also AEP, 564 U.S. at 423, 131 S.Ct. 2527. Plaintiffs
claim that “once federal common law disappears, the
question of state law preemption is answered solely
by reference to federal statutes, not the ghost of some
judge-made federal law.” See AEP, 564 U.S. at 429,
131 S.Ct. 2527 (“[T]he availability . . . of a state
lawsuit depends . . . on the preemptive effect of the
[CAA].”). According to Plaintiffs, the proper preemption analysis requires examining only whether the
CAA preempts their state law claims. The court
need not consider first whether displaced federal
common law preempts Plaintiffs’ state claims, and
second whether displaced federal common law is
preempted by the CAA.
Third and finally, Defendants alternatively argue
that the CAA preempts Plaintiffs’ claims. Defendants
say Plaintiffs seek damages for injuries allegedly
caused by out-of-state sources’ emissions. Relying
on N. Carolina ex rel. Cooper v. Tenn. Valley Auth.,
615 F.3d 291, 303, 306 (4th Cir. 2010), Defendants
contend that the “CAA preempts state-law claims
concerning out-of-state emissions.” Plaintiffs counter
that the “CAA does not concern itself in any way with
the acts that trigger liability under [its] Complaint,
namely:
the use of deception to promote the
consumption of fossil fuel products.” They say the
CAA regulates “pollution-generating emissions from
both stationary sources, such as factories and powerplants, and moving sources, such as cars, trucks, and
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aircraft,” Util. Air Regul. Grp. v. EPA, 573 U.S. 302,
308, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014), not the
traditional state tort claims for failure to warn and
deceptive promotion.
III. STANDARD OF REVIEW
A. Motion to Dismiss
A trial court’s ruling on a motion to dismiss is
reviewed de novo. The court must accept plaintiff ’s
allegations as true and view them in the light most
favorable to the plaintiff; dismissal is proper only if
it appears beyond doubt that the plaintiff can prove
no set of facts in support of his or her claim that
would entitle him or her to relief.
Delapinia v. Nationstar Mortg. LLC, 150 Hawai‘i 91,
97-98, 497 P.3d 106, 112-13 (2021) (quoting Goran
Pleho, LLC v. Lacy, 144 Hawai‘i 224, 236, 439 P.3d
176, 188 (2019)).
B. Jurisdiction
“A trial court’s determination to exercise personal
jurisdiction is a question of law reviewable de novo
when the underlying facts are undisputed.” Shaw v.
N. Am. Title Co., 76 Hawai‘i 323, 326, 876 P.2d 1291,
1294 (1994) (citing Bourassa v. Desrochers, 938 F.2d
1056, 1057 (9th Cir. 1991)). Plaintiffs “need make
only a prima facie showing that: (1) [defendant’s]
activities in Hawai‘i fall into a category specified by
Hawai‘i’s long-arm statute, [Hawai‘i Revised Statutes (HRS)] § 634-35; and (2) the application of HRS
§ 634-35 comports with due process.” Id. at 327, 876
P.2d at 1295 (citing Cowan v. First Ins. Co. of
Hawai‘i, 61 Haw. 644, 649, 608 P.2d 394, 399 (1980)).
When the circuit court relies on pleadings and affidavits, without conducting an “ ‘full-blown evidentiary
hearing,’ ” the plaintiff ’s “ ‘allegations are presumed
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true and all factual disputes are decided in [plaintiff ’s]
favor.’ ” Id. (citations omitted).
C. Preemption
Questions of federal preemption “are questions
of law reviewable de novo under the right/wrong
standard.” Rodrigues v. United Pub. Workers, AFSCME
Loc. 646, AFL-CIO, 135 Hawai‘i 316, 320, 349 P.3d
1171, 1175 (2015).
IV. DISCUSSION
We affirm the circuit court’s orders denying
Defendant’s motions to dismiss. Similar to Baltimore,
Plaintiffs’ Complaint “clearly seeks to challenge the
promotion and sale of fossil-fuel products without
warning and abetted by a sophisticated disinformation campaign.” 31 F.4th at 233. While Plaintiffs’
Complaint does reference global emissions repeatedly, “these references only serve to tell a broader story
about how the unrestrained production and use of
Defendants’ fossil-fuel products contribute to greenhouse gas pollution.” Id. Plaintiffs do “not merely
allege that Defendants contributed to climate change
and its attendant harms by producing and selling
fossil-fuel products; it is the concealment and misrepresentation of the products’ known dangers – and
the simultaneous promotion of their unrestrained
use – that allegedly drove consumption, and thus
greenhouse gas pollution, and thus climate change.”
Id. at 233-34.
As the circuit court explained:
The court recognizes that nuisance, trespass, and
failure to warn vary somewhat in terms of their
specific elements. All of these claims, however,
share the same basic structure of requiring that a
defendant engage in tortious conduct that causes
20a
injury to a plaintiff. Moreover, as the court understands it, Plaintiffs are relying on the same basic
theory of liability to prove each of their claims,
namely: that Defendants’ failures to disclose and
deceptive promotion increased fossil fuel consumption, which – in turn – exacerbated the local
impacts of climate change in Hawai‘i.
Because this is a traditional tort case alleging
Defendants misled consumers and should have warned
them about the dangers of using their products,
Defendants’ arguments fail. Defendants’ contacts
with Hawai‘i (selling oil and gas here) arise from and
relate to Plaintiffs’ claims (deceptive promotion and
failure to warn about the dangers of using the oil
and gas sold here). Defendants are alleged to have
engaged in tortious acts in Hawai‘i and have extensive contacts in Hawai‘i, and it is therefore reasonable for Defendants to be haled into court here.
Further, neither displaced federal common law nor
the CAA preempts Plaintiffs’ state-law tort claims.
A. Defendants Are Subject to Specific Jurisdiction in Hawai‘i
Specific jurisdiction attaches where (1) Defendants’
activity falls under the State’s long-arm statute, and
(2) the exercise of jurisdiction comports with due process. See Shaw, 76 Hawai‘i at 327, 876 P.2d at 1295.
As we recently explained, “the two-step inquiry may
in fact be redundant” because Hawai‘i’s long-arm
statute “was adopted to expand the jurisdiction of
the State’s courts to the extent permitted by the
due process clause of the Fourteenth Amendment.”
Yamashita v. LG Chem, Ltd., 152 Hawai‘i 19, 21-22,
518 P.3d 1169, 1171-72 (2022), opinion after certified
question answered, 62 F.4th 496 (9th Cir. 2023)
(quoting Cowan, 61 Haw. at 649, 608 P.2d at 399).
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But while “this collapsed inquiry yields the same
practical result as the two-step test” and is “not
improper,” “there is value in remembering that
personal jurisdiction rests on both negative federal
limits and positive state assertions of jurisdiction.”
Id. at 22, 518 P.3d at 1172. Accordingly, we engage
in the two-step test outlined in Yamashita.
First, Defendants’ activity in Hawai‘i falls under
the long-arm statute. Plaintiffs’ Complaint alleges
that Defendants conducted fossil fuel business in
Hawai‘i, committed torts in Hawai‘i, and caused
injury in Hawai‘i. See HRS § 634-35(a) (1)-(2)(2016)4
(persons subject to Hawai‘i’s personal jurisdiction
when transact business or commit tort within state).
Further, Defendants did not dispute below and do
not dispute on appeal that their in-state activity falls
under the long-arm statute.
Second, exercising specific jurisdiction over Defendants comports with due process. Specific jurisdiction
comports with due process where: (1) defendants
“purposefully avail[ed] [themselves] of the privilege
4 HRS § 634-35, Hawai‘i’s long-arm statute, provides:
Acts submitting to jurisdiction. (a) Any person, whether
or not a citizen or resident of this State, who in person or
through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, the
person’s personal representative, to the jurisdiction of the
courts of this State as to any cause of action arising from the
doing of any of the acts:
(1) The transaction of any business within this State;
(2) The commission of a tortious act within this State;
(3) The ownership, use, or possession of any real estate
situated in this State;
(4) Contracting to insure any person, property, or risk
located within this State at the time of contracting.
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of conducting activities in the forum, thereby invoking the benefits and protections of its laws”; (2) plaintiffs’ claim “arises out of or relates to the defendant[s’] forum-related activities”; and (3) exercising
specific jurisdiction “comport[s] with fair play and
substantial justice, i.e. it must be reasonable.” Int. of
Doe, 83 Hawai‘i 367, 374, 926 P.2d 1290, 1297 (1996).
This three-part test is “commonly referred to as the
minimum contacts test.” Greys Ave. Partners, LLC v.
Theyers, 431 F. Supp. 3d 1121, 1128 (D. Haw. 2020).
“The minimum contacts test ‘ensures that a defendant will not be haled into a jurisdiction solely as a
result of random, fortuitous, or attenuated contacts[.]’ ”
Freestream Aircraft (Bermuda) Ltd. v. Aero L. Grp.,
905 F.3d 597, 603 (9th Cir. 2018) (quoting Burger
King, 471 U.S. at 475, 105 S.Ct. 2174).
Defendants do not contest the first prong of the
minimum contacts test – that they “purposefully
avail[ed]” themselves of the forum. See id. Therefore,
at issue is whether Plaintiffs’ claims “arise out of or
relate to” Defendants’ Hawai‘i contacts and whether
the exercise of specific jurisdiction is reasonable.
Ford Motor, 141 S. Ct. at 1025. Defendants further
argue that, under Ford Motor, they did not have
“clear notice” they could be subject to specific jurisdiction in Hawai‘i. Id. at 1030 (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100
S.Ct. 559, 62 L.Ed.2d 490 (1980)).
As set forth below, Defendants are subject to
specific jurisdiction in Hawai‘i because: (1) Plaintiffs’
allegations that Defendants misled consumers about
the dangers of using their products “arise out of ” and
“relate to” Defendants’ contacts with Hawai‘i, here
Defendants’ sale and promotion of oil and gas in
Hawai‘i, id. at 1025 (quoting Bristol-Myers Squibb Co.
23a
v. Superior Ct. of Cal., 582 U.S. 255, 137 S. Ct. 1773,
1786, 198 L.Ed.2d 395 (2017)); (2) it is reasonable for
Hawai‘i courts to exercise specific jurisdiction over
Defendants and doing so does not conflict with interstate federalism principles because Hawai‘i has a
“significant interest[ ] [in] ‘providing [its] residents
with a convenient forum for redressing injuries inflicted by out-of-state actors,’ ” see id. at 1030 (quoting Burger King, 471 U.S. at 473, 105 S.Ct. 2174);
and (3) the U.S. Supreme Court has never imposed a
“clear notice” requirement, despite having the opportunity to do so, see id. at 1025.
Courts typically analyze jurisdictional contacts on
a claim-by-claim basis. See, e.g., Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274-75 (5th Cir.
2006). But courts “need not assess contacts on a
claim-by-claim basis if all claims arise from the same
forum contacts.” See, e.g., Moncrief Oil Int’l Inc. v.
OAO Gazprom, 414 S.W.3d 142, 150-51 (Tex. 2013).
Plaintiffs bring five claims: public nuisance, private
nuisance, strict liability failure to warn, negligent
failure to warn, and trespass. Plaintiffs’ claims all
arise from the same alleged forum contacts for all
Defendants – here, Defendants’ products were transported, traded, distributed, promoted, marketed,
refined, manufactured, sold, and/or consumed in
Hawai‘i. Plaintiffs’ claims also all arise from the
same alleged acts – here, Defendants’ deceptive
promotion of and failure to warn about the dangers of
using oil and gas. Accordingly, we examine all
claims against all Defendants together. See id.
1. Plaintiffs’ claims “arise out of or relate to”
Defendants’ in-state conduct
Quoting Ford Motor, Defendants argue that when
personal jurisdiction is based on “ ‘advertising, sell-
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ing, and servicing,’ ” the alleged injuries must be
“caused by the use and malfunction of the defendant’s
products within the forum State” for specific jurisdiction to attach. 141 S. Ct. at 1022. In short, Defendants say “the injury must occur in-state as a result
of the use of the product in-state” for specific jurisdiction to attach. In this case, Defendants contend that
Hawai‘i is a small state, with only 0.02% of the
world’s population, that accounts for only 0.06%
of the world’s carbon dioxide emissions per year.
Quoting Native Vill. of Kivalina v. ExxonMobil Corp.,
Defendants argue that “ ‘the undifferentiated nature
of greenhouse gas emissions from all global sources
and their world-wide accumulation over long periods
of time’ mean that ‘there is no realistic possibility
of tracing any particular alleged effect of global
warming to any particular emissions by any specific
person, entity, [or] group at any particular point in
time.’ ”5 663 F. Supp. 2d 863, 876 (N.D. Cal. 2009)
5 In Kivalina I, the Village of Kivalina brought a federal
common law nuisance claim for damages against 24 oil, energy,
and utility companies. 663 F. Supp. 2d at 868. Defendants’
Kivalina I quotations are taken from the court’s Article III
standing analysis, not from an analysis of whether the court
had specific jurisdiction under the minimum contacts test. See
id. at 881. The court concluded that because Kivalina sought
damages for greenhouse gas emissions, which come from “global
sources and their worldwide accumulation”, the “multitude of
alternative culprits” meant Kivalina could not establish its
injury was fairly traceable to Defendants. Id. at 880-81 (quotation marks omitted). Accordingly, the court dismissed the case
for lack of standing. Id. at 882. Kivalina I involved different
claims than those before us in this case, and was disposed of on
standing, not minimum contacts grounds – it is inapposite with
respect to Defendants’ jurisdictional arguments. See id. at 868,
882.
But Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d
849 (9th Cir. 2012) (“Kivalina II ”) is relevant to Defendants’
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(“Kivalina I ”), aff ’d, 696 F.3d 849 (9th Cir. 2012).
Given the “undifferentiated nature of greenhouse gas
emissions,” Defendants argue the circuit court erred
in asserting specific jurisdiction.
We agree with Plaintiffs that “Defendants’ arguments for reversal flow[ ] from a single, fatally flawed
premise: they say, in various formulations, that they
can only be subject to personal jurisdiction if the
climate change injuries Plaintiffs allege were caused
by Defendants’ fossil fuels being burned in Hawai‘i.”6
Indeed, the U.S. Supreme Court rejected an argument
similar to Defendants’ causation argument in Ford
Motor, holding that the “causation-only approach
finds no support in this Court’s requirement of a
‘connection’ between a plaintiff ’s suit and a defendant’s activities.” 141 S. Ct. at 1026.
In Ford Motor, the U.S. Supreme Court consolidated
two cases with the same underlying facts: in both,
there was a car accident in the forum state involving
an allegedly malfunctioning Ford vehicle designed,
manufactured, and sold outside of the forum state.
Id. at 1023. Ford moved to dismiss both cases, arguing that “the state court . . . had jurisdiction only if
federal common law arguments. There, the Ninth Circuit
affirmed the trial court’s dismissal for lack of jurisdiction in
Kivalina I, but not because Kivalina lacked standing. Id. at
856-58. Instead, the Ninth Circuit determined that “AEP
extinguished Kivalina’s federal common law public nuisance
damage action, along with the federal common law public nuisance
abatement actions.” 696 F.3d at 858. Accordingly, Kivalina
could not bring its federal common law nuisance claim, and
dismissal was proper. Id.
6 Defendants’ causation arguments are better saved for the
merits stage of this litigation where Plaintiffs must prove causation with respect to all of its tort claims. Of course, we express no opinion as to the validity of those arguments.
26a
the company’s conduct in the State had given rise to
the plaintiff ’s claims.” Id. Ford argued that a “causal
link” was required: it was only subject to specific
jurisdiction in the forum state “if the company had
designed, manufactured, or – most likely – sold in
the State the particular vehicle involved in the accident.” Id.
The Supreme Court held that for specific jurisdiction to attach, a defendant “must take ‘some act by
which [it] purposefully avails itself of the privilege of
conducting activities within the forum State.’ ” Id. at
1024 (quoting Hanson v. Denckla, 357 U.S. 235, 253,
78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). “The contacts
must be the defendant’s own choice and not ‘random,
isolated, or fortuitous.’ ” Id. at 1025 (quoting Keeton
v. Hustler Mag., Inc., 465 U.S. 770, 774, 104 S.Ct.
1473, 79 L.Ed.2d 790 (1984)). The contacts “must
show that the defendant deliberately ‘reached out
beyond’ its home — by, for example, ‘exploi[ting] a
market’ in the forum State or entering a contractual
relationship centered there.” Id. (quoting Walden v.
Fiore, 571 U.S. 277, 285, 134 S.Ct. 1115, 188 L.Ed.2d
12 (2014)).
Accordingly, for specific jurisdiction to attach, a
plaintiff ’s claims “ ‘must arise out of or relate to
defendant’s contacts’ with the forum.” Id. (quoting
Bristol-Myers, 137 S. Ct. at 1786). “The first half of
that standard asks about causation; but the back
half, after the ‘or,’ contemplates that some relationships will support jurisdiction without a causal showing.” Id. at 1026. Ford Motor thus requires only “a
‘connection’ between a plaintiff ’s suit and a defendant’s activities” for specific jurisdiction to attach.
Id. at 1026 (quoting Bristol-Myers, 137 S. Ct. at
1776). “Or put just a bit differently, there must be
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an affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that takes place in the forum State and is
therefore subject to the State’s regulation.” Id. at
1025 (quoting Bristol-Myers, 137 S. Ct. at 1779) (quotation marks omitted).
Similar to Defendants’ arguments here, the Ford
Motor defendants contended that the link between
their forum contacts and plaintiffs’ claims “must be
causal in nature: Jurisdiction attaches ‘only if the
defendant’s forum conduct gave rise to the plaintiff ’s
claims.’ ” Id. at 1026. But the Supreme Court made
clear that it has “never framed the specific jurisdiction inquiry as always requiring proof of causation —
i.e., proof that the plaintiff ’s claim came about
because of the defendant’s in-state conduct.” Id.
The Court relied on World-Wide Volkswagen, 444
U.S. at 295, 100 S.Ct. 580, which “held that an Oklahoma court could not assert jurisdiction over a New
York car dealer just because a car it sold later caught
fire in Oklahoma.” Ford Motor, 141 S. Ct. at 1027.
The World-Wide Volkswagen court “contrasted the
dealer’s position to that of two other defendants —
Audi, the car’s manufacturer, and Volkswagen, the
car’s nationwide importer (neither of which contested
jurisdiction).” Id. “[I]f Audi and Volkswagen’s business deliberately extended into Oklahoma (among
other States), then Oklahoma’s courts could hold the
companies accountable for a car’s catching fire there
— even though the vehicle had been designed and
made overseas and sold in New York.” Id. And while
“technically ‘dicta,’ ” the Audi/Volkswagen scenario
from World-Wide Volkswagen has become the
“paradigm case of specific jurisdiction” and has been
“reaffirmed” in other cases. Id. at 1027-28. This
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paradigm case appeared again in Daimler, where the
court again “did not limit jurisdiction to where the
car was designed, manufactured, or first sold.” Id. at
1028.
Turning back to the facts in Ford Motor, the Court
explained that “[b]y every means imaginable –
among them, billboards, TV and radio spots, print
ads, and direct mail – Ford urges [people in the
forum states] to buy its vehicles.” Id. Ford dealers
regularly maintained and repaired Ford cars, and
Ford distributed replacement parts throughout both
states. Id. Ford “systematically served a market in
[the forum states] for the very vehicles that the
plaintiffs allege malfunctioned and injured them in
those States.” Id. Accordingly, “there is a strong
‘relationship among the defendant, the forum, and
the litigation’ – the ‘essential foundation’ of specific
jurisdiction.” Id. (quoting Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct.
1868, 80 L.Ed.2d 404 (1984)).
The same is true here. Defendants do not contest
that they purposefully availed themselves of the rights
and privileges of conducting extensive business in
Hawai‘i. Indeed, the Complaint alleges that each
Defendant conducted substantial business in Hawai‘i.
Each defendant is alleged to have transported, traded,
distributed, promoted, marketed, refined, manufactured, sold, and/or consumed oil and gas in Hawai‘i.
Plaintiffs also allege that Defendants failed to warn
consumers in Hawai‘i about the dangers of using
the oil and gas Defendants sold in the state and that
Defendants engaged in a deceptive marketing campaign to conceal, deny, and discredit efforts to make
those dangers known to the public. Plaintiffs further
allege that Defendants’ tortious failure to warn and
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deceptive promotion caused extensive injuries in
Hawai‘i, including:
injury or destruction of City – or [Honolulu Board
of Water Supply] – owned or operated facilities
and property deemed critical for operations, utility
services, and risk management, as well as other
assets that are essential to community health,
safety, and well-being; increased planning and
preparation costs for community adaptation and
resiliency to global warming’s effects; decreased tax
revenue due to impacts on the local tourism – and
ocean-based economy; increased costs associated
with public health impacts; and others.
Just as in Ford Motor, “there is a strong ‘relationship among the defendant, the forum, and the litigation’ – the ‘essential foundation’ of specific jurisdiction.” See id. (quoting Helicopteros, 466 U.S. at 414,
104 S.Ct. 1868). Defendants sold and marketed oil
and gas in Hawai‘i, availed themselves of Hawai‘i
markets and laws, and the at-issue litigation alleges
tortious acts and damages in Hawai‘i that “arise out
of ” or “relate to” Defendants Hawai‘i contacts, i.e., oil
and gas business conducted in the state. See id. at
1026. Indeed, the connection between Defendants,
Hawai‘i, and this litigation is more closely intertwined than that of Ford Motor. See id. at 1028.
Unlike in Ford Motor, here, the alleged injury-causing
products (oil and gas) were marketed and sold in the
forum state. See id. Therefore, Defendants are
subject to specific jurisdiction because there is a clear
and unambiguous “affiliation between the forum and
the underlying controversy.” See id. (quoting BristolMyers, 137 S. Ct. at 1779) (quotation marks omitted).
Defendants rely on Martins v. Bridgestone Am.
Tire Ops., LLC, 266 A.3d 753, 759, 761 (R.I. 2022).
30a
Martins is inapposite. In Martins, a Rhode Island
resident drove a truck from Massachusetts to
Connecticut, and struck a tree in Connecticut when
an allegedly defective tire made in and installed
in Tennessee failed. Id. at 756. The Rhode Island
resident was severely injured and was taken to and
later died in Rhode Island. Id. The only connection
between Rhode Island (the forum state) and the
litigation was that the decedent was a Rhode Island
resident who passed away in Rhode Island. Id. at
761. The Rhode Island Supreme Court did not
endorse the causation test put forth by Defendants
here – the court instead determined that the plaintiffs’ claims did not arise out of or relate to the tire
companies’ Rhode Island contacts. Id.
The Supreme Court has “endorse[d] an ‘effects’ test
of jurisdiction in situations involving tortious acts.”
Shaw, 76 Hawai‘i at 330, 876 P.2d at 1298 (quoting
Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79
L.Ed.2d 804 (1984)). “Under this theory, asserting
jurisdiction against nonresident defendants who
commit torts directed at a forum state with the
intention of causing in-state ‘effects’ satisfies due
process.” Id. The effects test inquiry “focuses on
conduct that takes place outside the forum state and
that has effects inside the forum state.” Freestream
Aircraft, 905 F.3d at 604. Generally, “[t]he commission of an intentional tort in a state is a purposeful
act that will satisfy the first two requirements [of the
minimum contacts test].” Id. at 603 (quoting Paccar
Int’l, Inc. v. Com. Bank of Kuwait, S.A.K., 757 F.2d
1058, 1064 (9th Cir. 1985)). Therefore, where a nonresident defendant is alleged to have committed a
tort directed at the forum state, the effects test is an
alternate due process theory capable of establishing
that: (1) the defendant purposefully availed them-
31a
selves of the forum; and (2) the plaintiff ’s claim arises out of or relates to the defendant’s forum contacts.
Id. at 1062.
Plaintiffs argues that “the effects test . . . is satisfied here” because “the Complaint alleges that the
targets of Defendants’ deceptive marketing and
failure to warn included audiences and consumers in
Hawai‘i, and those misrepresentations and omissions, directed at least in part to Hawai‘i, contributed
to Plaintiff ’s injuries.” Defendants counter that
Plaintiffs failed to identify in their Complaint “a
single deceptive message that Defendants allegedly
made in or directed at Hawai‘i,” which “defeats personal jurisdiction under the effects test.”
The circuit court did not engage in an “effects” test
analysis, and the parties’ briefs almost exclusively
address the traditional “minimum contacts” test.
Because Defendants are subject to specific jurisdiction under the minimum contacts test, see infra
Section IV(A)(1), it is not necessary to engage in an
effects test analysis as to the first two prongs of the
due process inquiry. See Louis Vuitton Malletier,
S.A. v. Mosseri, 736 F.3d 1339, 1357 (11th Cir. 2013)
(determining that because the plaintiff had met the
“purposeful availment” prong of the “minimum contacts” test, the court “need not analyze the ‘effects
test’ here”).
Relatedly, Defendants argue that, under Shaw,
Plaintiffs’ claims “bear at most an ‘incidental’ . . .
relationship to Defendants’ in-state activities and
thus lack the requisite close connection found in Ford
Motor that permitted exercise of specific jurisdiction.” In Shaw, the court held that for the purposes
of the long-arm statute’s “transacting business” subsection, see HRS § 634-35(a)(1), the alleged Hawai‘i
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business conduct (the signing of escrow documents)
was “merely incidental” to business at the crux of
the case (the escrow transaction, which happened in
California). Shaw, 76 Hawai‘i at 328, 876 P.2d at
1296. Thus, the plaintiff failed to sufficiently allege,
for the purposes of the long-arm statute, that the
defendant “transact[ed] business” in Hawai‘i. Id.
The Court in Shaw held that the plaintiff sufficiently alleged under another subsection of the longarm statute that the defendant committed a “tortious
act” in Hawai‘i, see HRS § 634-35(a)(2), and that due
process was satisfied under the “effects” test. Shaw,
76 Hawai‘i at 329-330, 332, 876 P.2d at 1297-98,
1300. Notably, Shaw’s “merely incidental” holding
did not affect the court’s due process analysis – the
defendant was still subject to specific jurisdiction.
See Shaw, 76 Hawai‘i at 328, 876 P.2d at 1296.
Here, Defendants’ in-state conduct is anything but
“merely incidental” to Plaintiffs’ claims. See id.
2. Exercising specific jurisdiction is reasonable and does not “conflict with federalism
principles”
The exercise of specific jurisdiction must “comport
with fair play and substantial justice, i.e. it must be
reasonable.” Doe, 83 Hawai‘i at 374, 926 P.2d at
1297. In Doe, this court adopted the Ninth Circuit’s
seven-factor test for determining whether the exercise of jurisdiction is reasonable, which is as follows:
(1) the extent of the defendants’ purposeful interjection into the forum state’s affairs; (2) the burden
on the defendant of defending in the forum; (3) the
extent of any conflict with the sovereignty of the
defendants’ state; (4) the forum state’s interest in
adjudicating the dispute; (5) concerns of judicial
efficiency; (6) the significance of the forum to the
33a
plaintiff’s interest in relief; and (7) the existence of
alternative fora.
Id. (citing Caruth v. Int’l Psychoanalytical Ass’n, 59
F.3d 126, 127 (9th Cir. 1995)).
“None of the factors is solely dispositive; all seven
are weighed in the factual circumstances in which
they arise.” Id. (citation omitted). And, as here,
“where a defendant who purposefully has directed
[their] activities at forum residents seeks to defeat
jurisdiction, [they] must present a compelling case
that the presence of some other considerations would
render jurisdiction unreasonable.” Burger King, 471
U.S. at 477, 105 S.Ct. 2174 (emphasis added). Therefore, “we begin with a presumption of reasonableness.” Caruth, 59 F.3d at 128.
Defendants do not engage with the Doe factors, but
appear to argue that factors three and four weigh
against determining that the exercise of jurisdiction
over Defendants is “reasonable.” Doe, 83 Hawai‘i
at 374, 926 P.2d at 1297. Defendants say that
“exercising personal jurisdiction here would be
‘[un]reasonable, in the context of our federal system
of government.’ ” Quoting Ford Motor, 141 S. Ct. at
1024) (brackets in original). According to Defendants,
permitting specific jurisdiction in this context would
subject companies to climate change suits in every
court in the country. And if Plaintiffs’ theory were
adopted abroad, “American companies could be sued
on climate change-related claims in courts around
the world.” According to Defendants, “[d]ue process
does not countenance that result.” We review each of
the Doe factors in turn, and conclude that they weigh
in favor of exercising specific jurisdiction over
Defendants because doing so is “reasonable.” Id.
Defendants have not “present[ed] a compelling case”
34a
that the exercise of specific jurisdiction here would be
unreasonable. See Burger King, 471 U.S. at 477, 105
S.Ct. 2174.
The first factor examines “the extent of the defendants’ purposeful interjection into the forum state’s
affairs.” Doe, 83 Hawai‘i at 374, 926 P.2d at 1297.
Defendants are alleged to have engaged in repeated,
purposeful business in Hawai‘i. Their products were
transported, traded, distributed, promoted, marketed,
refined, manufactured, sold, and/or consumed in
Hawai‘i.
The second factor examines “the burden on the
defendant of defending in the forum.” Doe, 83
Hawai‘i at 374, 926 P.2d at 1297. Defendants are
multi-national oil and gas corporations with billions
in annual revenues. The burden on Defendants in
defending a suit in a state where Defendants conduct
extensive oil and gas business is slight.
The third factor examines “the extent of any
conflict with the sovereignty of the defendants’
[home] state.” Id. Defendants’ primary argument is
that Plaintiffs’ “claims [ ] implicate the interests of
numerous other States and nations, many of which
do not share the ‘substantive social policies’ Plaintiffs
seek to advance – such as curbing energy production
and the use of fossil fuels or allocating the downstream costs of consumer use to the energy companies to bear directly.” But this lawsuit does not seek
to regulate emissions or curb energy production – it
seeks to hold Defendants accountable for allegedly
(1) failing to warn about the dangers of their fossil
fuel products and (2) deceptively promoting those
products. Holding Defendants accountable for their
Hawai‘i torts implicates the sovereignty of no state
other than Hawai‘i. And, even if this case did involve
35a
“substantive social policies” not advanced by other
states, “the ‘fundamental substantive social policies’
of another State may be accommodated through
application of the forum’s choice-of-law rules.” Burger
King, 471 U.S. at 477, 105 S.Ct. 2174.
Relying on Bristol-Myers Squibb Co. v. Superior Ct.
of Cal., 137 S. Ct. at 1780, Defendants further
contend that “asserting personal jurisdiction over
these out-of-state Defendants for global climate
change would impermissibly interfere with the power
of Defendants’ home States (or nations) over their
own corporate citizens and could punish commercial
conduct that occurred beyond the forum State’s
borders.” However, Defendants’ reliance on BristolMyers is misplaced.
The U.S. Supreme Court in Bristol-Myers addressed
whether a claim arises out of or relates to a defendant’s contacts – the second prong of the minimum
contacts test. Id. at 1781. The Court did not hold
that specific jurisdiction was lacking because doing
so would be unreasonable. See id. Instead, the Court
determined that specific jurisdiction was improper
because there was no “connection between the forum
and the specific claims at issue.” See id.
The fourth factor examines “the forum state’s
interest in adjudicating the dispute.”
Doe, 83
Hawai‘i at 374, 926 P.2d at 1297. Defendants argue
that “Hawai‘i’s interests in this suit . . . are no greater
than other States,’ ” and later state that Hawai‘i’s
interest is “slight.” However, we agree with Plaintiffs that Hawai‘i “has a strong interest in remedying
local harms related to corporate misconduct.”
The fifth factor examines the “concerns of judicial
efficiency.” Id. Because this factor is not relevant
here, and Defendants make no arguments to the contrary, we do not address it.
36a
The sixth factor examines “the significance of the
forum to the plaintiff’s interest in relief.” Id. Again,
Plaintiffs seeks monetary damages for injuries allegedly suffered in Hawai‘i as a result of Defendants’
alleged tortious conduct in Hawai‘i.
The seventh factor examines the “existence of
alternate fora.” Id. Defendants have not shown that
there is an alternate forum that is better situated
than Hawai‘i to decide this dispute.
In sum, the Doe factors weigh heavily in favor
of determining it is reasonable to exercise specific
jurisdiction over Defendants. See id. Further, given
that Defendants purposefully availed themselves of
Hawai‘i markets, Defendants have failed to overcome
the presumption that the exercise of specific jurisdiction is reasonable. See Burger King, 471 U.S. at 477,
105 S.Ct. 2174, Caruth, 59 F.3d at 128.
3. The Due Process Clause does not require
that Defendants have “clear notice” they
could be subject to specific jurisdiction in
Hawai‘i
The exercise of specific jurisdiction is governed by
the three-part minimum contacts test: jurisdiction is
proper where: (1) the defendant purposefully avails
itself of the forum; (2) the defendant’s contacts “arise
out of or relate to” the plaintiff ’s claim; and (3) the
exercise of specific jurisdiction is reasonable. Doe,
83 Hawai‘i at 374, 926 P.2d at 1297. Where the
minimum contacts test is met, the exercise of specific
jurisdiction comports with due process. Id.
Defendants argue that in addition to the minimum
contacts test, the Fourteenth Amendment’s “Due
Process Clause requires a defendant’s activities in
the forum to place it on ‘clear notice’ that it is susceptible to a lawsuit in that State for the claims asserted
37a
by a plaintiff,” Ford Motor, 141 S. Ct. at 1025, 1030.
(Emphasis added.) This is wrong. The minimum contacts test “provides defendants with ‘fair warning’ ”
or, as the Supreme Court explained, “knowledge that
‘a particular activity may subject [it] to the jurisdiction of a foreign sovereign.” Id. at 1025 (emphasis
added) (quoting Burger King, 471 U.S. at 472, 105
S.Ct. 2174) (brackets in original). “[F]air warning”
is not an additional requirement for the exercise of
specific jurisdiction. Rather, “fair warning” is what
due process “provides.” If the minimum contacts test
is met, a defendant has fair warning; and if it has
fair warning, then due process is satisfied.
The U.S. Supreme Court has not held that “clear
notice” is a separate requirement (on top of the
minimum contacts test) necessary for the exercise of
specific jurisdiction. In Ford Motor, the Court used
the phrase “clear notice” three times, once in a parenthetical and twice when summarizing the holdings
in World-Wide Volkswagen. Id. at 1025, 1027, 1030.
At no point did the Court in Ford Motor hold that
“clear notice” was required for the exercise of specific
jurisdiction. Id. Rather, the Supreme Court used the
phrase “clear notice” in Ford Motor and other cases
like World-Wide Volkswagen to describe situations
where a defendant’s contacts were so pervasive that
the defendant had more than “fair warning” they
could be subject to specific jurisdiction in a forum.
Id. at 1025, 1030; see also World-Wide Volkswagen,
444 U.S. at 297, 100 S.Ct. 580.
In sum, if a defendant has purposefully availed
themselves of a forum, the claim arises from or
relates to those contacts with the forum, and the
exercise of jurisdiction is reasonable, the defendant
has “fair warning” they could be subject to specific
38a
jurisdiction in that forum. See id. at 1025. The
minimum contacts test (and the “fair warning” it
provides) allows a defendant to “ ‘structure [its]
primary conduct’ to lessen or avoid exposure to a
given State’s courts.”
Id. (quoting World-Wide
Volkswagen, 444 U.S. at 297, 100 S.Ct. 580 (brackets
in original)). Here, the exercise of specific jurisdiction
comports with due process because: (1) Defendants
purposefully availed themselves of the benefits and
protections of Hawai‘i laws; (2) Plaintiffs’ claims
“arise out of or relate to” Defendants’ Hawai‘i
contacts; and (3) the exercise of specific jurisdiction is
reasonable. Defendants had – at a minimum – “fair
warning” they could be subject to suit in Hawai‘i.
See id.
B. Federal Common Law Does Not Preempt
Plaintiffs’ Claims
Defendants next argue that “[f ]ederal law exclusively governs claims seeking relief for injuries allegedly caused by interstate and international emissions.” They say that the “basic scheme of the [federal] Constitution . . . demands that federal common
law,” AEP, 564 U.S. at 421, 131 S.Ct. 2527 (quotation
marks omitted), govern any dispute involving “air
and water in their ambient or interstate aspects,”
Illinois v. City of Milwaukee, 406 U.S. 91, 103, 92
S.Ct. 1385, 31 L.Ed.2d 712 (1972) (“Milwaukee I ”).
Defendants’ argument ignores well-settled law that
“the federal common law of nuisance that formerly
governed transboundary pollution suits no longer
exists due to Congress’s displacement of that law
through the CAA.” Boulder, 25 F.4th at 1260; see
also AEP, 564 U.S. at 421, 131 S.Ct. 2527.
And despite its displacement, Defendants also
argue that federal common law plays a role in our
39a
preemption analysis. They say that we should first
look to whether displaced federal common law
preempts Plaintiffs’ claims, and then to whether the
CAA displaced federal common law. We disagree.
“When a federal statute displaces federal common
law, the federal common law ceases to exist.” Baltimore, 31 F.4th at 205. And as the Supreme Court
explained in AEP, once federal common law is
displaced, “the availability vel non of a state lawsuit
depends inter alia on the preemptive effect of the
federal Act,” not displaced federal common law.
564 U.S. at 429, 131 S.Ct. 2527. Accordingly, our
preemption analysis requires analyzing the preemptive effect of only the CAA – and, it has none in this
context. See supra Section IV(C).
Defendants’ federal common law preemption arguments also fail because Plaintiffs’ claims do not seek
to regulate emissions. The federal common law cited
by Defendants formerly governed transboundary pollution abatement and damages suits, not the tortious
marketing and failure to warn claims brought by
Plaintiffs. We agree with the circuit court:
Plaintiffs’ framing of their claims in this case is
more accurate. The tort causes of action are well
recognized. They are tethered to existing wellknown elements including duty, breach of duty,
causation, and limits on actual damages caused by
the alleged wrongs. As this court understands it,
Plaintiffs do not ask for damages for all effects
of climate change; rather, they seek damages only
for the effects of climate change allegedly caused
by Defendants’ breach of Hawai‘i law regarding
failures to disclose, failures to warn, and deceptive
promotion (without deciding the issue, presumably
by applying Hawai‘i’s substantial factor test, see,
40a
e.g., Estate of Frey v. Mastroianni, 146 Hawai‘i 540,
550, 463 P.3d 1197 (2020)). Plaintiffs do not ask
this court to limit, cap, or enjoin the production
and sale of fossil fuels. Defendants’ liability in this
case, if any, results from alleged tortious conduct,
and not from lawful conduct in producing and selling fossil fuels.
Simply put, Plaintiffs’ claims do not seek to
regulate emissions. Instead, Plaintiffs’ Complaint
“clearly seeks to challenge the promotion and sale of
fossil-fuel products without warning and abetted by a
sophisticated disinformation campaign.” Baltimore,
31 F.4th at 233. Plaintiffs’ references to emissions in
its Complaint “only serve to tell a broader story
about how the unrestrained production and use of
Defendants’ fossil-fuel products contribute to greenhouse gas pollution.” Id.
1. The federal common law governing interstate pollution abatement and damages
suits was displaced by the CAA
Because the CAA displaced federal common law,
we cannot accept Defendants’ argument that the
federal common law governs here. First, “AEP
extinguished [ ] federal common law public nuisance
damage action[s], along with the federal common law
public nuisance abatement actions.” Native Vill. of
Kivalina v. ExxonMobil Corp., 696 F.3d 849, 857 (9th
Cir. 2012) (“Kivalina II ”). Federal appellate courts
have recently reaffirmed that the federal common
law once governing interstate pollution damages and
abatement suits was displaced.7 In Rhode Island v.
7 These courts did so in the context of removal jurisdiction.
All held that federal common law did not govern the plaintiffs’
claims, and as such, federal courts did not have jurisdiction over
the at-issue state law claims. But, regardless of context, all
41a
Shell Oil Prod. Co., 35 F.4th 44 (1st Cir. 2022), cert.
denied sub nom. Shell Oil Prod. Co. v. Rhode Island,
––– U.S. –––, 143 S. Ct. 1796, 215 L.Ed.2d 679
(2023), the First Circuit held that “[t]he Clean Water
Act and the [CAA] . . . have statutorily displaced any
federal common law that previously existed,” and
as such, the court could not “rule that any federal
common law controls Rhode Island’s claims.” Id. at
55 (quotation marks omitted).
In Baltimore, the Fourth Circuit held that federal
common law did not control the city of “Baltimore’s
state-law claims because federal common law in this
area cease[d] to exist due to statutory displacement,
Baltimore [did] not invoke[ ] the federal statute displacing federal common law, and . . . the CAA does
not completely preempt Baltimore’s claims.” 31 F.4th
at 204. And in Boulder, the Tenth Circuit held that
“the federal common law of nuisance that formerly
governed transboundary pollution suits no longer
exists due to Congress’s displacement of that law
through the CAA.” 25 F.4th at 1260. Indeed, Defendants even concede that “[t]he Supreme Court, the
Ninth Circuit, and the Second Circuit have all held
that a tort-law claim for greenhouse gas emissions
arising under federal common law fails as a matter of
law under [Federal Rules of Civil Procedure Rule]
12(b)(6) because Congress displaced such claims
when it established a comprehensive regulatory
scheme for emissions via the CAA.” (Emphasis added.)
three cases directly addressed whether federal common law
governs state common law claims based on failure to warn and
deceptive promotion theories. And all three courts determined
that federal common law had been displaced.
42a
Nonetheless, Defendants cite to three cases (Milwaukee I, Oakland I, and City of New York) that they
argue support the proposition that federal common
law governs Plaintiffs’ claims. These cases have
either been overturned (Milwaukee I and Oakland I )
or rely on flawed reasoning (City of New York).
In Milwaukee I, the state of Illinois brought an
original action against the state of Wisconsin in the
Supreme Court for Wisconsin’s “pollution . . . of Lake
Michigan, a body of interstate water.”8 Milwaukee I,
406 U.S. at 93, 92 S.Ct. 1385. Illinois alleged Wisconsin discharged “200 million gallons of raw or inadequately treated sewage and other waste materials”
daily into Lake Michigan. Id. The Supreme Court
explained that “where there is an overriding federal
interest in the need for a uniform rule of decision
or where the controversy touches basic interests of
federalism, we have fashioned federal common law.”
Id. at 105, 92 S.Ct. 1385 n.6. The Court concluded
that “[c]ertainly these same demands for applying
federal law are present in the pollution of a body of
water such as Lake Michigan,” and that federal law
governs disputes involving “air and water in their
ambient or interstate aspects.” Id. at 103, 105, 92
S.Ct. 1385 n.6.
Accordingly, the Court held that the “question of
apportionment of interstate waters is a question of
‘federal common law’ upon which state statutes or
decisions are not conclusive.” Id. at 105, 92 S.Ct.
1385. Notably, the Court acknowledged that the
8 The Court ultimately determined that “original jurisdiction
[was] not mandatory,” declined to exercise original jurisdiction,
and remitted the case to the “appropriate district court whose
powers are adequate to resolve the issues.” Milwaukee I, 406
U.S. at 98, 108, 92 S.Ct. 1385.
43a
federal common law it created might one day be
superseded by statute, explaining: “new federal laws
and new federal regulations may in time preempt the
field of federal common law of nuisance.” Id. at 107,
92 S.Ct. 1385.
After the Court remitted Milwaukee I to the
district court to determine the outcome of the case
under federal common law, Congress “enacted the
Federal Water Pollution Control Amendments of
1972 [(1972 FWPCA)].” City of Milwaukee v. Illinois,
451 U.S. 304, 307, 101 S.Ct. 1784, 68 L.Ed.2d 114
(1981) (“Milwaukee II ”). On appeal in Milwaukee II,
the Court held that in enacting the 1972 FWPCA,
which governed sewage discharges into interstate
bodies of water, Congress displaced the federal
common law created in Milwaukee I. The Court
concluded:
Congress has not left the formulation of appropriate federal standards to the courts through
application of often vague and indeterminate
nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through
the establishment of a comprehensive regulatory
program supervised by an expert administrative
agency.
[. . .]
The establishment of such a self-consciously
comprehensive program by Congress, which
certainly did not exist when [Milwaukee I ] was
decided, strongly suggests that there is no room
for courts to attempt to improve on that program
with federal common law.
Milwaukee II, 451 U.S. at 317, 319, 101 S.Ct. 1784.
44a
Accordingly, the Court determined that “no federal
common-law remedy was available,” thus overruling
Milwaukee I. Id. at 332, 101 S.Ct. 1784. That holding was reaffirmed in AEP when the Supreme Court
determined that the federal common law claims
permitted by Milwaukee I were displaced by the
CAA.9 AEP, 546 U.S. at 424, 126 S.Ct. 1211.
Defendants also rely on City of Oakland v. BP PLC,
325 F. Supp. 3d 1017, 1021-22 (N.D. Cal. 2018)
9 Defendants also cite to Illinois v. City of Milwaukee, 731
F.2d 403, 411 (7th Cir. 1984) (“Milwaukee III ”) for the proposition that the displacement of “one form of federal law (common
law) by another (federal statute) does not somehow breathe life
into nonexistent state law.” On remand from Milwaukee II,
Illinois argued that “Illinois common law controlled this case
until Milwaukee I judicially promulgated federal common law,
and that since the 1972 FWPCA dissipated federal common law,
Illinois law must again control.” Id. at 406. The Seventh Circuit disagreed, and held that, “[g]iven the logic of Milwaukee I
and Milwaukee II, we think federal law must govern in this
situation except to the extent that the 1972 FWPCA (the
governing federal law created by Congress) authorizes resort to
state law.” Id. at 411. Respectfully, the Seventh Circuit’s
approach in Milwaukee III ignores the presumption that state
laws and claims are not preempted absent “a clear and manifest
purpose of Congress” to do so. See Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)
(“[W]e start with the assumption that the historic police powers
of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.”).
Not surprisingly, the Supreme Court implicitly overruled the
Seventh Circuit’s Milwaukee III decision in AEP when the
Court held that, after federal common is displaced, “the availability vel non of a state lawsuit depends inter alia on the
preemptive effect of the federal Act.” 564 U.S. at 429, 131
S.Ct. 2527. Thus, contrary to Milwaukee III and Defendants’
argument, state law that was previously preempted by federal
common law does have new life when the federal common law is
displaced. See id.
45a
(“Oakland I ”), vacated and remanded sub nom. City
of Oakland v. BP PLC, 960 F.3d 570 (9th Cir. 2020),
opinion amended and superseded on denial of reh’g,
969 F.3d 895 (9th Cir. 2020). In Oakland I, the cities
of Oakland and San Francisco brought suit against
five large oil and gas companies10 in state court
alleging one count of nuisance on the same theory
that Plaintiffs raises here. Id. at 1021-22. The case
was removed to federal court, and Oakland and San
Francisco then amended their complaint to add a
“separate claim for public nuisance under federal
common law.” Id. The district court determined that
AEP and Kivalina II held that the CAA displaced
federal common law claims for emissions abatement
and damages. Id. at 1024. Accordingly, the district
court dismissed Oakland and San Francisco’s federal
common law claim and the state law nuisance claim
because “nuisance claims must stand or fall under
federal common law.” Id. at 1028.
On appeal, the Ninth Circuit reversed the federal
district court, determining that Oakland and San
Francisco only added the federal common law claim
“to conform” to an earlier district court ruling. City
of Oakland v. BP PLC, 969 F.3d 895, 909 (9th Cir.
2020) (“Oakland II ”). The Ninth Circuit also determined that the state law nuisance claim should not
have been dismissed because “it is not clear that the
claim requires an interpretation or application of
federal law at all, because the Supreme Court has
not yet determined [(since AEP displaced the old
federal common law)] that there is a [new] federal
common law of public nuisance relating to interstate
10 The five defendants in Oakland I (Chevron Corporation,
Exxon Mobil Corporation, BP p.l.c., Royal Dutch Shell plc, and
ConocoPhillips) are also defendants in this case.
46a
pollution.” Id. at 906. Indeed, in Kivalina II, the
Ninth Circuit held just that – concluding that federal
common law suits (not state common law suits)
“aimed at imposing liability on energy producers for
‘acting in concert to create, contribute to, and maintain global warming’ and ‘conspiring to mislead the
public about the science of global warming,’ [were]
displaced by the [CCA].” Id. (quoting Kivalina II, 696
F.3d at 854) (emphasis added). Therefore, the trial
court was incorrect when it determined that displaced federal common law required the dismissal of
Oakland and San Francisco’s state common law
claim because it was preempted. Id. Since displaced
federal common law did not provide a federal jurisdictional hook, the Ninth Circuit remanded the case
to the federal district court to determine whether
there was an alternate basis for federal jurisdiction
with respect to only the state common law claim. Id.
at 911.
Further, the Second Circuit in City of New York
also held that the “[CAA] displace[d] federal common
law claims concerned with domestic greenhouse gas
emissions.” 993 F.3d at 95. Thus, Defendants’ best
case – City of New York – goes against them in part
by holding that the very federal common law they rely
on is no longer good law. Indeed, City of New York
is consistent with AEP, Rhode Island, Baltimore,
Boulder, Kivalina II, and Oakland II in holding that
the federal common law once governing interstate
pollution suits was displaced by the CAA. Accordingly, Defendants’ argument that federal common law
preempts Plaintiffs’ claims fails, because Defendants
do not point to any case recognizing a federal common law action for interstate pollution suits that has
not been displaced by the CAA.
47a
2. Federal common law does not retain
preemptive effect after it is displaced
Defendants acknowledge that the federal common
law that once governed interstate pollution damages
and abatement suits was displaced by the CAA.
Nonetheless, Defendants argue that despite displacement, federal common law still lives. Defendants say
that federal common law still lives but only with
enough power to preempt state common law claims
“involving interstate air pollution.” According to
Defendants, federal common law is both dead and
alive – it is dead in that the CAA has displaced it,
but alive in that it still operates with enough force to
preempt Plaintiffs’ state law claims.
Under Defendants’ preemption theory, this court
should first look to whether the federal common law
governing interstate pollution damages and abatement
claims preempts Plaintiffs’ state common law claims.
After determining that federal common law does
in fact preempt Plaintiffs’ state common law claims,
Defendants say this court should then look to whether
the CAA displaced federal common law claims (and
Defendants say it did). Indeed, were this court to
adopt Defendants’ two-step approach, Plaintiffs
would have no viable cause of action under state or
federal law. Federal common law would preempt
state common law, and in turn, the CAA would
displace federal common law. No common law cause
of action would be available. Further, no federal
statutory cause of action would be available because
the CAA does not contain one available to Plaintiffs,
see 42 U.S.C. § 7401 et seq., and any state statutory
cause of action would be preempted by federal
common law, which, in turn, would be displaced by
the CAA.
48a
We decline to follow Defendants’ two-step approach
because it engages in backwards reasoning. This
court would first need to determine whether the federal common law governing interstate pollution suits
is still good law before determining whether it can
preempt state law claims. And, as we have explained
above, the federal common law governing interstate
pollution suits was displaced by the CAA and “no
longer exists.” Boulder, 25 F.4th at 1260; see also
Milwaukee II, 451 U.S. at 314, 101 S.Ct. 1784
(“[W]hen Congress addresses a question previously
governed by a decision rested on federal common law
the need for such an unusual exercise of lawmaking
by federal courts disappears.”).
Defendants’ approach cannot be reconciled with
AEP. In AEP, two groups of plaintiffs, including eight
States, brought suit against the Tennessee Valley
Authority and four private companies who were
allegedly responsible for 10% of global emissions.
564 U.S. at 418, 131 S.Ct. 2527. The plaintiffs
brought federal common law and state law nuisance
claims, and “sought injunctive relief requiring each
defendant to cap its carbon dioxide emissions and
then reduce them by a specified percentage each year
for at least a decade.” 564 U.S. at 419, 131 S.Ct.
2527 (quotation marks omitted). The Supreme Court
held that the CAA displaced only federal common
law governing interstate emissions. Id. at 428-29,
131 S.Ct. 2527. Having determined that federal
common law was displaced, the Court concluded that
“the availability vel non of a state lawsuit depends
inter alia on the preemptive effect of the [CAA].” Id.
at 429, 131 S.Ct. 2527. And since the parties had not
briefed whether the CAA preempted “the availability
of a claim under state nuisance law,” the Court left
“the matter open for consideration on remand.” Id.
49a
In AEP, with regard to the plaintiffs’ state common
law nuisance claims, the relevant inquiry was not:
(1) whether federal common law preempted the
remaining state law claims, and if so, (2) whether the
CAA displaced the federal common law. Id. Instead,
AEP made clear that whether the state law nuisance
claims were preempted depended only on an analysis
of the CAA because “ ‘when Congress addresses a
question previously governed by a decision rested
on federal common law, . . . the need for such an
unusual exercise of law-making by federal courts
disappears.’ ” AEP, 564 U.S. at 423, 131 S.Ct. 2527
(quoting Milwaukee II, 451 U.S. at 314, 101 S.Ct.
1784).11 The Supreme Court did not analyze the
federal common law’s preemptive effect because it
was displaced by the CAA. See id. And if federal
common law retained preemptive effect after displacement, the Court would have instructed the trial
court on remand to examine whether displaced
federal common law preempted the state law claims.
See id.
11 There is a “significant distinction between the statutory
displacement of federal common law and the ordinary preemption of a state law.” Baltimore, 31 F.4th at 205. Federal
common law is disfavored because “it is primarily the office of
Congress, not the federal courts, to prescribe national policy in
areas of special federal interest.” AEP, 564 U.S. at 423-24, 131
S.Ct. 2527. Thus, “[l]egislative displacement of federal common
law does not require the ‘same sort of evidence of a clear and
manifest [congressional] purpose’ demanded for preemption of
state law.” Id. at 423, 131 S.Ct. 2527. Instead, “[t]he test for
whether congressional legislation excludes the declaration of
federal common law is simply whether the statute ‘speak[s]
directly to [the] question’ at issue.” Id. at 424, 131 S.Ct. 2527.
When federal common law is displaced, it “no longer exists.”
Boulder, 25 F.4th at 1260.
50a
Simply put, displaced federal common law plays
no part in this court’s preemption analysis. Once
federal common law is displaced, the federal courts’
task is to “interpret and apply statutory law[.]”
Nw. Airlines, Inc. v. Transp. Workers Union of Am.,
AFL-CIO, 451 U.S. 77, 95 n.34, 101 S.Ct. 1571, 67
L.Ed.2d 750 (1981) (emphasis added). Therefore,
“[a]s instructed in AEP and supported by [Kivalina
II ], we look to the federal act that displaced the
federal common law to determine whether the state
claims are preempted.” Boulder, 25 F.4th at 1261.
The correct preemption analysis requires an examination only of the CAA’s preemptive effect because
“AEP extinguished [ ] federal common law public
nuisance damage action[s], along with the federal
common law public nuisance abatement actions.”
Kivalina II, 696 F.3d at 857; see also id. at 866 (Pro,
J., concurring) (“Once federal common law is displaced,
state nuisance law becomes an available option to
the extent it is not preempted by federal law.”).
Defendants primarily rely on City of New York to
argue that their two-step preemption analysis is the
correct one. In that case, New York City filed a
state-law tort suit in federal court “against five
oil companies to recover damages caused by those
companies’ admittedly legal commercial conduct in
producing and selling fossil fuels around the world.”
993 F.3d at 86. At issue was whether New York
City’s claims were preempted by either federal common law or the CAA. Id. at 89. The Second Circuit
first looked to whether federal common law governing interstate pollution damages and abatement
suits preempted New York City’s state law claims,
holding that it did. Id. at 95 (determining that New
York City’s “claims must be brought under federal
common law”). Next, the court examined whether
51a
the federal common law was displaced by the CAA,
holding again that it was. Id. at 98 (determining
that “federal common law claims concerning domestic
greenhouse gas emissions are displaced by statute.”).
Thus, the Second Circuit held that displaced federal
common law preempted New York City’s state law
claims. Id. at 95-98.
We agree with the Fourth Circuit’s analysis in
Baltimore, which explained why City of New York is
not persuasive in that respect:
[A]fter recognizing federalism and the need for
a uniform rule of decision as federal interests, City
of New York confusingly concludes that federal
common law is “most needed in this area” because
New York’s state-law claims touch upon the federal
government’s relations with foreign nations. [993
F.3d] at 91-92. But it never details what those
foreign relations are and how they conflict with
New York’s state-law claims. See id. at 92. The
same is true when City of New York declares
that state law would “upset[ ] the careful balance”
between global warming’s prevention and energy
production, economic growth, foreign policy, and
national security. Id. at 93. Besides referencing
statutes acknowledging policy goals, the decision
does not mention any obligatory statutes or regulations explaining the specifics of energy production,
economic growth, foreign policy, or national security, and how New York law conflicts therewith. See
id. It also does not detail how those statutory goals
conflict with New York law. See id. [Critically,]
City of New York essentially evades the careful
analysis that the Supreme Court requires during a
significant-conflict analysis.
Id. (emphasis added) (footnote omitted).
52a
3. Even were federal common law to control,
it would not govern Plaintiffs’ claims
Even if federal common law governing interstate
pollution claims had not been displaced, Plaintiffs’
claims would not be preempted by it. The claims
permitted by federal common law in this area were
brought against polluting entities and sought to
enjoin further pollution.12 See, e.g., Milwaukee I, 406
U.S. at 93, 92 S.Ct. 1385 (requesting court enjoin
“pollution by the defendants of Lake Michigan”).
Indeed, in AEP, the plaintiffs sued the Tennessee
Valley Authority and other powerplant owners and
sought injunctive relief to prevent future emissions.
564 U.S. at 418, 131 S.Ct. 2527. As the Supreme
Court explained in AEP, this “specialized federal
common law” governed “suits brought by one State to
abate pollution emanating from another State.” Id.
at 421, 131 S.Ct. 2527. Thus, the source of the injury
in federal common law claims is pollution traveling
from one state to another. That is not what Plaintiffs
allege here.
Rather, as the Ninth Circuit explained in earlier
proceedings in this case, Plaintiffs “allege that oil
12 Defendants cite to no cases recognizing federal common
law claims for interstate pollution damages. But this is neither
here nor there. Damages claims are no longer available under
federal common law. In Kivalina II, Kivalina sought “damages
for harm caused by past emissions.” 696 F.3d at 857. The Ninth
Circuit determined that “displacement of a federal common law
right of action means displacement of remedies.” Id. Therefore,
“AEP extinguished Kivalina’s federal common law public nuisance damage action, along with the federal common law public
nuisance abatement actions.” Id. We agree. Therefore, even
though it appears that no court has recognized a federal
common law claim for interstate pollution damages, such claims
were displaced by the CAA. See id.
53a
and gas companies knew about climate change,
understood the harms energy exploration and extraction inflicted on the environment, and concealed
those harms from the public.” Sunoco LP, 39 F.4th at
1106 (emphasis added). As Plaintiffs allege, “Defendants’ liability is causally tethered to their failure to
warn and deceptive promotion,” and “nothing in this
lawsuit incentivizes — much less compels — Defendants to curb their fossil fuel production or greenhouse gas emissions.” Simply put, the source of
Plaintiffs’ alleged injury is Defendants’ allegedly
tortious marketing conduct, not pollution traveling
from one state to another.
Numerous courts have rejected similar attempts by
oil and gas companies to reframe complaints alleging
those companies knew about the dangers of their
products and failed to warn the public or misled the
public about those dangers. The Ninth Circuit did
so in this case. See id. at 1113. And in other cases
alleging similar deceptive promotion and failure to
warn torts, the Fourth Circuit, Tenth Circuit, and
the Districts of Connecticut, Massachusetts, and
Minnesota have also rejected attempts to characterize those claims as being about emissions and pollution. See Boulder, 25 F.4th at 1264 (Boulder’s claims
“are premised on the Energy Companies’ activities of
‘knowingly producing, promoting, refining, marketing and selling a substantial amount of fossil fuels
used at levels sufficient to alter the climate, and misrepresenting the dangers.’ ”); Baltimore, 31 F.4th at
217 (“None of Baltimore’s claims concern emission
standards, federal regulations about those standards,
or pollution permits. Their Complaint is about Defendants’ fossil-fuel products and extravagant misinformation campaign that contributed to its injuries.”);
54a
Connecticut v. Exxon Mobil Corp., No. 3:20-CV-1555
(JCH), 2021 WL 2389739, at *13 (D. Conn. June 2,
2021) (“ExxonMobil’s argument on this issue fails
because the claims Connecticut has chosen to bring
in this case seek redress for deceptive and unfair
practices relating to ExxonMobil’s interactions with
consumers in Connecticut – not for harms that might
result from the manufacture or use of fossil fuels[.]”);
Minnesota v. Am. Petroleum Inst., No. CV 20-1636
(JRT/HB), 2021 WL 1215656, at *13 (D. Minn. Mar.
31, 2021) (“[T]he State’s action here is far more
modest than the caricature Defendants present.”);
Massachusetts v. Exxon Mobil Corp., 462 F. Supp. 3d
31, 44 (D. Mass. 2020) (“Contrary to ExxonMobil’s
caricature of the complaint, the Commonwealth’s
allegations do not require any forays into foreign
relations or national energy policy. It alleges only
corporate fraud.”).
The source of Plaintiffs’ alleged injury is Defendants’
alleged failure to warn and deceptive promotion. See
Sunoco LP, 39 F.4th at 1113 (“[t]his case is about
whether oil and gas companies misled the public
about dangers from fossil fuels.”). Even were this
court to determine that federal common law retains
preemptive effect after displacement, the federal
common law cited to by Defendants would not
preempt Plaintiffs’ claims in this case. The source
of Plaintiffs’ injury is not pollution, nor emissions.
Instead, the source of Plaintiffs’ alleged injury is
Defendants’ alleged failure to warn and deceptive
promotion. Therefore, even if federal common law
had not been displaced, Plaintiffs’ claims would not
be preempted by it.
55a
4. We decline to expand federal common law,
and, in any event, Defendants waived such
an argument
In their opening brief, Defendants say they “do not
seek to expand federal common law to a new sphere”
and instead “rely on extensive Supreme Court precedent establishing that federal law already governs in
this area.” Defendants have waived any argument
to expand federal common law to cover Plaintiffs’
claims here. Second, Defendants fail to point to any
case recognizing new federal common law decided
after AEP and Kivalina II displaced the old federal
common law that once governed suits for interstate
pollution damages or abatement. We reiterate that
the sources of Plaintiffs’ alleged injury are Defendants’ alleged tortious marketing and failure to warn.
Defendants also fail to point to any case recognizing
federal common law governing tortious marketing
suits.
Even if Defendants had argued federal common
law should be expanded to cover tortious marketing,
that argument would fail because the “cases in which
federal courts may engage in common lawmaking are
few and far between.” Rodriguez v. FDIC, ––– U.S.
–––, 140 S. Ct. 713, 716, 206 L.Ed.2d 62 (2020). We
see no “uniquely federal interests” in regulating
marketing conduct, an area traditionally governed by
state law. See id. at 717.
We also decline to create new federal common law
governing suits that “involv[e] . . . interstate air
pollution.” (Emphasis in original.) Congress has
enacted a comprehensive legislative scheme to address
interstate air pollution, and “once Congress addresses a subject, even a subject previously governed by
federal common law, the justification for lawmaking
56a
by the federal courts is greatly diminished.” Nw. Airlines, 451 U.S. at 95 n.34, 101 S.Ct. 1571 (emphasis
added). “[I]t is primarily the office of Congress, not
the federal courts, to prescribe national policy in areas
of special federal interest.” AEP, 564 U.S. at 423-24,
131 S.Ct. 2527. And “[c]ases justifying judicial
creation of preemptive federal rules are extremely
limited: [w]hether latent federal power should be
exercised to displace state law is primarily a decision
for Congress, not the federal courts.” In re Nat’l Sec.
Agency Telecomms. Recs. Order Litig., 483 F. Supp.
2d 934, 940 (N.D. Cal. 2007) (quoting Atherton, 519
U.S. at 218, 117 S.Ct. 666) (quotation marks omitted). “Our commitment to the separation of powers
is too fundamental to continue to rely on federal
common law by judicially decreeing what accords
with common sense and the public weal when Congress has addressed the problem.” Milwaukee II, 451
U.S. at 315, 101 S.Ct. 1784 (internal quotation marks
omitted).
C. The CAA Does Not Preempt Plaintiffs’
Claims
Having determined that displaced federal common
law plays no part in this court’s preemption analysis,
we now turn to whether the CAA preempts Plaintiffs’
state claims. See Boulder, 25 F.4th at 1261 (“As
instructed in AEP and supported by [Kivalina II ],
we look to the federal act that displaced the federal
common law to determine whether the state claims
are preempted.”). Defendants say that federal law
must govern all suits that “involve[ ] interstate and
international emissions.” (Emphasis added). They
say that a large damage award in effect could
57a
regulate air pollution,13 and that air pollution is an
area governed exclusively by “federal law.” But the
question before the court is not whether a potential
damages award in this case could regulate air pollution. If that were true, then any case with a potentially large damage award must be dismissed because
it might regulate a field – the mere possibility of
regulation, standing alone, is not enough to dismiss
Plaintiffs’ claims. A suit does not “regulate” a matter
simply because it might have “an impact” on that
matter. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,
50, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Rather,
the operative question is whether Plaintiffs’ state
law claims are preempted by federal law. To prevail,
Defendants need to show not only that Plaintiffs’
claims could lead to a large damages award that
effectively acts as a regulation, but critically, that
such a large damages award is preempted by federal
law. Defendants do not do so.
The doctrine of preemption is rooted in the federal
Constitution’s Supremacy Clause, which provides
that federal law “shall be the supreme Law of the
Land; . . . any Thing in the Constitution or Laws of
any state to the Contrary notwithstanding.” U.S.
13 Defendants cite to Kurns v. R.R. Friction Prod. Corp.,
565 U.S. 625, 637, 132 S.Ct. 1261, 182 L.Ed.2d 116 (2012), a
products liability cases involving a railroad worker exposed to
asbestos, to argue that damages awards can effectively act as
regulation. This is accurate, but incomplete. The Court did not
ask only whether such a large damages award could operate
as a regulation. The Court further engaged in a preemption
analysis, and asked whether such an award was preempted by
federal law. Id. Based on prior precedent, the Court concluded
that Congress had occupied the entire field of locomotive
equipment regulation and that the worker’s claims were therefore preempted. Id.
58a
Const. art. VI, cl. 2. Courts begin with the presumption that state laws and claims are not preempted.
Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187,
173 L.Ed.2d 51 (2009). This is because the “historic
police powers of the States [are] not to be superseded
. . . unless that was the clear and manifest purpose of
Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) (citing
Napier v. Atlantic Coast Line R. Co., 272 U.S. 605,
611, 47 S.Ct. 207, 71 L.Ed. 432 (1926) and AllenBradley Local v. Wisconsin Employment Relations
Board, 315 U.S. 740, 749, 62 S.Ct. 820, 86 L.Ed. 1154
(1942)).14 Therefore, when determining whether a
statute is preempted through any preemption doctrine,
courts primarily evaluate whether Congress intended
to preempt state law. Id.
There are two types of preemption: complete and
substantive (or ordinary) preemption. City of Hoboken v. Chevron Corp., 45 F.4th 699, 707 (3d Cir.
2022). Complete preemption applies only in the
context of federal removal jurisdiction, which is not
14 The Supreme Court has applied this presumption against
preemption of historic police powers broadly. Cipollone v.
Liggett Grp., Inc., 505 U.S. 504, 528-29, 112 S.Ct. 2608, 120
L.Ed.2d 407 (1992) (requiring a showing of congressional intent
to supersede state common law duties not to make false statements or conceal facts and holding that Congress expressed no
such intent in the Federal Cigarette Labeling and Advertising
Act); CTS Corp v. Waldburger, 573 U.S. 1, 19, 134 S.Ct. 2175,
189 L.Ed.2d 62 (2014) (quoting Wos v. E.M.A., 568 U.S. 627,
639-40, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013)) (“[i]n our federal
system, there is no question that States possess the ‘traditional
authority to provide tort remedies to their citizens’ as they see
fit”).
59a
at issue here.15 Id. Defendants argue that the CAA
substantively preempts Plaintiffs’ state tort law claims.
In general, there are three types of substantive
preemption:
(1) express preemption, where Congress has expressly preempted local law; (2) field preemption, “where
Congress has legislated so comprehensively that
federal law occupies an entire field of regulation
and leaves no room for state law”; and (3) conflict
preemption, where local law conflicts with federal
law such that it is impossible for a party to comply
with both or the local law is an obstacle to the
achievement of federal objectives.
New York SMSA Ltd. P’ship v. Town of Clarkstown,
612 F.3d 97, 104 (2d Cir. 2010) (emphases added)
(citing English v. General Elec. Co., 496 U.S. 72, 7879, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)).
Defendants do not specify which substantive
preemption theory they rely on. We address each
preemption theory in turn.
First, express preemption does not apply. Federal
law expressly preempts state law where the federal
statute contains an express preemption clause barring state law claims in enumerated areas. Oneok,
Inc. v. Learjet, Inc., 575 U.S. 373, 376, 135 S.Ct.
1591, 191 L.Ed.2d 511 (2015) (holding that Congress
may “pre-empt . . . a state law through . . . express
language in a statute”).
Simply put, the CAA
contains no “express language” preempting state
15 The Supreme Court has only recognized three federal statutes that completely preempt state laws: “ERISA, the National
Bank Act, and the Labor-Management Relations Act.” City
of Hoboken, 45 F.4th at 707 (citing Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 6-8, 10-11, 123 S.Ct. 2058, 156 L.Ed.2d 1
(2003)).
60a
common law tort claims. See id. Rather, the CAA
explicitly preserves “any right which any person (or
class of persons) may have under any statute or
common law to seek enforcement of any emission
standard or limitation or to seek any other relief[.]”
42 U.S.C. § 7604(e) (2018).
Second, field preemption does not apply because
the CAA does not completely occupy the field of
emissions. Field preemption applies where (1) the
“scheme of federal regulation [is] so pervasive as
to make reasonable the inference that Congress left
no room for the States to supplement” the regulation,
or (2) the “federal interest is so dominant” in a field
“that the federal system will be assumed to preclude
enforcement of state laws on the same subject.” Rice,
331 U.S. at 230, 67 S.Ct. 1146. Field preemption
“reflects a congressional decision to foreclose any
state regulation in the area, even if it is parallel to
federal standards,” so “even complementary state
regulation is impermissible” when Congress has
occupied an entire field. Arizona v. United States,
567 U.S. 387, 401, 132 S.Ct. 2492, 183 L.Ed.2d 351
(2012).
The CAA simply does not occupy the entire field of
emissions regulation, as noted above. Merrick, 805
F.3d at 694 (holding that CAA does not bar state
common law claims against in-state emitters because
“environmental regulation is a field that the states
have traditionally occupied”). “There is no evidence
that Congress intended that all emissions regulation
occur through the [CAA’s] framework, such that any
state law approach to emissions regulation would
stand as an obstacle to Congress’s objectives.” Id. at
695. Indeed, under the CAA, each state retains
regulatory power through their State Implementation
61a
Plan (SIP), which provides for state-level implementation, maintenance, and enforcement of CAA emissions
standards with federal oversight. 42 U.S.C. § 7410(a)(1)
(2018). While the federal government has primary
authority over emissions legislation, states are responsible for implementation through their SIP. See id.
And the CAA’s “Retention of State authority” section
expressly protects a state’s right to adopt or enforce
any standard or limitation respecting emissions
unless the state policy in question would be less
stringent than the CAA. 42 U.S.C. § 7416 (2018).16
Congress encouraged states to participate through
SIPs and provided for state regulation of any emissions standard or limitation as stringent as or more
stringent than the CAA. See 42 U.S.C. § 7410(a)(1)
(2018).
Accordingly, the CAA does not occupy the field of
emissions regulation such that state law is preempted
– it does not “reflect[ ] a congressional decision to
foreclose any state regulation in the area.” Arizona,
567 U.S. at 401, 132 S.Ct. 2492. And, even if it did,
the City’s claims do not seek to regulate emissions,
16 42 U.S.C. § 7416 (2018) provides:
Except as otherwise provided in sections 1857c-10(c), (e),
and (f ) (as in effect before August 7, 1977), 7543, 7545(c)(4),
and 7573 of this title (preempting certain State regulation
of moving sources) nothing in this chapter shall preclude or
deny the right of any State or political subdivision thereof to
adopt or enforce (1) any standard or limitation respecting
emissions of air pollutants or (2) any requirement respecting
control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable
implementation plan or under section 7411 or section 7412
of this title, such State or political subdivision may not adopt
or enforce any emission standard or limitation which is less
stringent than the standard or limitation under such plan or
section.
62a
and so a claim of field preemption in the field of
emissions regulation is inapposite.
Third, conflict preemption does not apply. Conflict
preemption takes two forms. The first form is obstacle preemption, where state law claims “stand[ ] as an
obstacle to the accomplishment and execution of the
full purposes and objectives of Congress,” Arizona,
567 U.S. at 399, 132 S.Ct. 2492 (quoting Hines v.
Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed.
581 (1941)).
The second form is impossibility
preemption, which is a “demanding defense”, Wyeth,
555 U.S. at 573, 129 S.Ct. 1187, that succeeds where
state law claims are shown to directly conflict
with federal law or penalize behavior that federal
law requires. AT&T Co. v. Cent. Off. Tel., Inc., 524
U.S. 214, 227 (1998) (holding that federal statute
preempts state law when state law claims directly
conflict with federal law); Geier v. Am. Honda Motor
Co., 529 U.S. 864, 873 (2000) (holding that federal
statute preempts state law where state law penalizes
what federal law requires). Neither obstacle preemption nor impossibility preemption applies here.
1. Obstacle preemption does not apply
The CAA does not preempt Plaintiffs’ claims
through obstacle preemption because their claims
arise from Defendants’ alleged failure to warn and
deceptive marketing conduct, not emissionsproducing activities regulated by the CAA. Obstacle
preemption applies only where there is an “actual
conflict” between state law and a statute’s overriding
federal purpose and objective. Mary Jo C. v. N.Y.
State & Loc. Ret. Sys., 707 F.3d 144, 162 (2d Cir.
2013). “[T]he conflict between state law and federal
policy must be a sharp one.” Marsh v. Rosenbloom,
499 F.3d 165, 178 (2d Cir. 2007) (quotation marks
63a
omitted). The operative federal purpose or policy is
defined by “examining the federal statute as a whole
and identifying its purpose and intended effects,” and
“[w]hat is a sufficient obstacle is a matter of judgment.” Arizona, 567 U.S. at 400, 132 S.Ct. 2492
(quoting Crosby, 530 U.S. at 363).
The U.S. Supreme Court has applied this standard
sparingly, finding obstacle preemption in only two
scenarios: (1) where a federal legislation involved a
uniquely federal area of regulation and state law
directly conflicted with the federal program’s operation, and (2) where Congress has clearly chosen to
preclude state regulation because the federal legislation struck a delicate balance of interests at risk of
disturbance by state regulation.17 In re Volkswagen
“Clean Diesel” Mktg., Sales Pracs., & Prod. Liab.
Litig., 959 F.3d 1201, 1212 (9th Cir. 2020). But this
is a “high threshold.” Chamber of Com. of U.S. v.
17 The first category historically includes areas such as
foreign affairs powers and regulating maritime vessels. Crosby,
530 U.S. at 373-74, 120 S.Ct. 2288 (holding that the federal
foreign affairs power is a uniquely federal area of regulation);
United States v. Locke, 529 U.S. 89, 97, 120 S.Ct. 1135, 146
L.Ed.2d 69 (2000) (holding that maritime vessel regulation is a
uniquely federal area). The second category historically includes
criminal immigration penalties, vehicle safety device implementation, and interstate pollution under the Clean Water Act.
Arizona, 567 U.S. at 405, 132 S.Ct. 2492 (holding that the federal government struck a balance in immigration penalties that
would be disturbed by an additional state law criminal penalty);
Geier, 529 U.S. at 879-81, 120 S.Ct. 1913 (holding that the
federal government struck a balance in gradual airbag phase-in
that would be undermined by a state law immediate implementation requirement); Int’l Paper Co. v. Ouellette, 479 U.S. 481,
494, 497, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987) (holding that
affected-state claims against out-of-state polluters stand as an
obstacle to the balance struck by the Clean Water Act).
64a
Whiting, 563 U.S. 582, 607, 131 S.Ct. 1968, 179
L.Ed.2d 1031 (2011).
Here, the CAA’s identified purposes are to protect
the country’s air resources, public health, and welfare;
prevent and control air pollution; and support state,
local, and regional air pollution prevention and control efforts. See 42 U.S.C. § 7401(b) (2018); Bunker
Hill Co. Lead & Zinc Smelter v. EPA, 658 F.2d 1280,
1284 (9th Cir. 1981) (“[The CAA] was intended
comprehensively to regulate, through guidelines and
controls, the complexities of restraining and curtailing modern day air pollution.”). The CAA achieves
these purposes primarily by “regulat[ing] pollutiongenerating emissions from both stationary sources,
such as factories and powerplants, and moving sources,
such as cars, trucks, and aircraft.” Util. Air Regul.
Grp. v. EPA, 573 U.S. 302, 308 (2014).
Plaintiffs’ state tort law claims do not seek to regulate emissions, and there is thus no “actual conflict”
between Hawai‘i tort law and the CAA. See Mary Jo,
707 F.3d at 162. These claims potentially regulate
marketing conduct while the CAA regulates pollution. We agree with Plaintiffs that the “CAA does not
concern itself in any way with the acts that trigger
liability under Plaintiffs’ Complaint, namely: the use
of deception to promote the consumption of fossil fuel
products.” The CAA expresses no policy preference
and does not even mention marketing regulations.
Defendants argue that the CAA preempts Plaintiffs’
claims because Congress preempted affected-state
common law claims regarding emissions through the
CAA, and Plaintiffs’ claims seek to regulate out-ofstate emissions. Affected-state claims are state law
actions where the injury occurred in a different state
from the state where the emission was released;
courts have held that the CAA preempts these
65a
claims. See Int’l Paper Co. v. Ouellette, 479 U.S. 481,
500, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). Sourcestate claims are state law actions where the injury
was suffered in the same state as the emitting
conduct; courts have held that the CAA does not
preempt these claims. See id.
Relying on Ouellette, Defendants say “[e]very federal
court of appeals to consider this issue has recognized
that the CAA does not permit States to use their
state tort law to address harms caused by emissions
occurring in other States.” Defendants are correct,
but their analysis is incomplete. In Ouellette, the
Supreme Court examined whether the Clean Water
Act (CWA) preempted “a common-law nuisance suit
filed in a Vermont court under Vermont law, when
the source of the alleged injury [was] located in New
York.” Id. at 483. The Supreme Court held that
affected-state common law claims arising from
polluting activity located outside the affected-state
are preempted by the CWA because “[t]he application
of affected-state laws would be incompatible with the
[CWA’s] delegation of authority and its comprehensive regulation of water pollution.” Id. at 500,
107 S.Ct. 805. Applying affected-state common law
could potentially subject a defendant-polluter to
“an indeterminate number of potential regulations”
depending on how far the emission traveled.18 Id. at
18 Defendants also cite to N. Carolina, ex rel. Cooper v. Tennessee Valley Auth., 615 F.3d 291, 297 (4th Cir. 2010), arguing
that Ouellette’s rationale in determining the CWA preempted
affected-state common law claims should be applied to the CAA.
In Cooper, the Fourth Circuit determined that North Carolina’s
nuisance action seeking an injunction against fixed powerplants
from emitting sulfur dioxides and nitrous oxides was preempted
by the CAA because the “EPA has promulgated [National Ambient
Air Quality Standards] for a number of emissions, including
66a
499, 107 S.Ct. 805; see also Merrick, 805 F.3d at 693
(explaining that “claims based on the common law of
the source state . . . are not preempted by the [CAA,]”
but “claims based on the common law of a non-source
state . . . are preempted by the [CAA]”).
But the rationale motivating the Ouellette court in
preempting affected-state common law claims does
not apply to Plaintiffs’ state tort claims. This is
because Plaintiffs’ claims require “additional tortious
conduct” to succeed. MTBE, 725 F.3d at 104. Here,
that additional tortious conduct is Defendants’
alleged deceptive marketing and failure to warn
about the dangers of using their products – the
source of Plaintiffs’ alleged injury is not emissions
but the additional alleged torts.
In this case, as in MTBE, Defendants’ alleged
tortious conduct is not production of emissions and
therefore, obstacle preemption does not apply. In
MTBE, the defendant gasoline producer used MTBE,
a fuel additive that reduced emissions, to bring its
gasoline into compliance with the CAA’s minimum
oxygen content requirement. Id. at 129. The CAA
identified a number of substances, including MTBE,
that could have been added to gasoline to help bring
it into compliance with the oxygen content requirement. Id. at 81. New York City and its agencies
brought ten causes of action, including strict liability
standards for all the emissions involved in this case.” Id. at 299.
Critically, the CAA, and the agency it empowers (the EPA), had
already expressly regulated the very emissions (sulfur dioxides
and nitrous oxides) alleged to have caused the nuisance. Id. at
299-303. But the Cooper court refused to “hold flatly that Congress has entirely preempted the field of emissions regulation.”
Id. at 302. And it acknowledged that the “Ouellette Court itself
explicitly refrained from categorically preempting every nuisance
action brought under source state law.” Id. at 303.
67a
failure to warn, negligence, public nuisance, private
nuisance, and trespass, arguing that the defendant
oil producer’s use of MTBE caused detrimental
contamination of groundwater. Id. at 80-83. The
defendant argued that the plaintiff ’s tort claims
“conflict[ed] with and are therefore preempted by . . .
the [CAA] Amendments of 1990[.]” Id. at 95.
The Second Circuit held that New York City’s
claims were not preempted under either obstacle or
impossibility preemption. Id. at 97-103. The court
held that where a party participates in a nonpolluting emissions-related activity (i.e., choosing
gasoline additives), the fact that it complied with
relevant CAA provisions did not absolve the party
of any state common law or statutory duties to warn
of public hazards or comply with an additional
standard of care. Id. at 65. In short, the Second
Circuit determined that state tort law claims are not
preempted by the CAA where the alleged tortious
behavior does not produce emissions. Id. at 104-05.
Plaintiffs’ claims simply do not risk subjecting
Defendants to “an indeterminate number of potential
regulations” because the claims do not subject
Defendants to any additional emissions regulation at
all. See Ouellette, 479 U.S. at 499, 107 S.Ct. 805.
Plaintiffs are correct that where the emissions originate is irrelevant because emissions are at most a
link in the causal chain connecting Plaintiffs’ alleged
injuries and Defendants’ unrelated liability-incurring
behavior. [AB at 33, ICA Dkt. 65:43] Simply put,
this means obstacle preemption does not apply.
2. Impossibility preemption does not apply
At its most demanding, the impossibility doctrine
historically required it to be a “physical impossibility”
to comply with both state and federal requirements
68a
for federal law to preempt state law. Florida Lime &
Avocado Growers v. Paul, 373 U.S. 132, 143, 83 S.Ct.
1210, 10 L.Ed.2d 248 (1963).19 The modern impossibility doctrine is broader and now includes instances
where state law penalizes what federal law requires,
Geier, 529 U.S. at 873, 120 S.Ct. 1913, or where state
law claims directly conflict with federal law, AT&T
Co., 524 U.S. at 227, 118 S.Ct. 1956. But impossibility preemption is still a “demanding defense.” Wyeth,
555 U.S. at 573, 129 S.Ct. 1187. Defendants do not
raise impossibility preemption, and it does not apply
regardless.
MTBE is instructive again. There, the Second
Circuit declined to preempt state tort claims through
impossibility preemption where: (1) it was possible
to comply with the CAA and avoid tort liability;
(2) state and federal law did not directly conflict; and
(3) the CAA did not require the alleged conduct.
MBTE, 725 F.3d at 97. The oil producer defendant
could have complied with both state and federal law
if it had used other additives (like ethanol) that did
not pose the same health risk as MTBE but would
bring the fuel into CAA oxygen content compliance
without incurring prohibitively high costs. Id. at
19 Under the Florida Lime & Avocado Growers standard,
some scenarios would yield different results than preemption
doctrine’s intended effect: “[f ]or example, if federal law gives
an individual the right to engage in certain behavior that state
law prohibits, the laws would give contradictory commands
notwithstanding the fact that an individual could comply with
both by electing to refrain from the covered behavior.” Wyeth,
555 U.S. at 590, 129 S.Ct. 1187 (2009) (Thomas, J., concurring).
In that scenario, it is not a physical impossibility to comply with
both requirements, but modern doctrine would find a sufficient
conflict between federal and state law to preempt state law
through impossibility preemption.
69a
99-101. Though the CAA identified MTBE as one
additive that would sufficiently boost oxygen content,
at no point did it require the specific use of MTBE in
gasoline – it was one of many options. Id. at 98.
The same is true here. The CAA does not bar
Defendants from warning consumers about the
dangers of using their fossil fuel products. See id.
Defendants could simply avoid federal and state liability by adhering to the CAA and separately issuing
warnings and refraining from deceptive conduct as
required by Hawai‘i law; it is not a “physical impossibility” to do both concurrently. See Florida Lime &
Avocado Growers, 373 U.S. at 143, 83 S.Ct. 1210;
State ex rel. Shikada v. Bristol-Myers Squibb Co., 152
Hawai‘i 418, 438, 526 P.3d 395, 415 (2023) (rejecting
a pharmaceutical company’s argument that “there
was no way [it] could have updated [a drug’s] label to
provide the warning that [state law] require[d] and
at the same time comply with federal law” regarding
drug labeling).
V. CONCLUSION
For the foregoing reasons, we hold that Defendants
are subject to specific jurisdiction in Hawai‘i and that
neither federal common law nor the Clean Air Act
preempt Plaintiffs’ claims. We reiterate that federal
common law retains no preemptive effect after it is
displaced. Were we to adopt Defendants’ argument
that displaced federal common law preempts Plaintiffs’ state law claims, Plaintiffs could not recover
under Hawai‘i tort law, even where the state specifically permits lawsuits to hold companies responsible
for allegedly deceptive marketing claims about any
product, including oil and gas products. We decline
to unduly limit Hawai‘i’s ability to use its police powers
to protect its citizens from alleged deceptive marketing.
70a
Accordingly, the circuit court’s Order Denying
Defendants’ Motion to Dismiss for Failure to State
a Claim, filed March 29, 2022, and Order Denying
Defendants’ Joint Motion to Dismiss for Lack of
Personal Jurisdiction, filed March 31, 2022, are
affirmed.
CONCURRING OPINION BY EDDINS, J.
I agree with the Chief Justice’s well-reasoned
opinion.
Because the principles that govern personal jurisdiction arose after 1868, I write separately.
Enduring law is imperiled. Emerging law is stunted. A justice’s personal values and ideas about the
very old days suddenly control the lives of present
and future generations. Recently, the Supreme Court
erased a constitutional right. It recalled autonomy
and empowered states to force birth “for one reason
and one reason only: because the composition of this
Court has changed.” Dobbs v. Jackson Women’s
Health Org., ––– U.S. –––, 142 S. Ct. 2228, 2319-20,
213 L.Ed.2d 545 (2022) (Kagan, J., dissenting). The
day before, the Court cherry-picked history to veto
public safety legislation, disturb the tranquility of
public places, and increase homicide. New York State
Rifle & Pistol Ass’n, Inc. v. Bruen, ––– U.S. –––, 142
S. Ct. 2111, 213 L.Ed.2d 387 (2022). The same week,
it promoted a conjured idea hostile to judicial restraint
– “major questions.” When executive branch policymaking grazes disliked policy preferences, major
questions “magically appear as get-out-of-text-free
cards.” West Virginia v. EPA, ––– U.S. –––, 142 S.
Ct. 2587, 2641, ––– L.Ed.2d ––– (2022) (Kagan, J.,
dissenting).
71a
For now, International Shoe still fits. Defendants
must have minimum contacts with the forum state
such that exercising jurisdiction over them does not
offend traditional notions of fair play and substantial
justice. But the due process clause mentions neither
fairness and justice, nor minimum contacts. And
those standards clash with how courts determined
personal jurisdiction long ago. See Pennoyer v. Neff,
95 U.S. 714, 733, 24 L.Ed. 565 (1877) (courts lack
jurisdiction over defendants who are not physically
present in the state or who have not consented to
jurisdiction).
So when justices solicit cases to test their way
against durable personal jurisdiction principles, a
state occupying one of the world’s most geographically
isolated land masses pays attention. Ford Motor’s
concurrence announced “International Shoe’s increasingly doubtful dichotomy.” Ford Motor Co. v. Montana
Eighth Jud. Dist. Ct., ––– U.S. –––, 141 S. Ct. 1017,
1039, 209 L.Ed.2d 225 (2021) (Gorsuch, J., concurring). It floated reviving the old tag rule to hale
corporations into court, asking “future litigants and
lower courts” to help determine how the Constitution’s original meaning or history jostles personal
jurisdiction law. Id.
Back in the day, parties played tag inside a state’s
boundaries. Once tagged, a party could be sued for
anything, even things that happened outside the
state. Mallory v. Norfolk S. Ry. Co., 600 U.S. 122,
128, 143 S.Ct. 2028, 216 L.Ed.2d 815 (2023). But if a
party couldn’t be tagged, they couldn’t be personally
sued.
Time-travelling to 1868 would unravel Hawai‘i’s
long arm statute. Hawai‘i Revised Statutes (HRS)
§ 634-35 (2016) reaches as far as the federal constitu-
72a
tion allows. Yamashita v. LG Chem, Ltd., 152 Hawai‘i
19, 21, 518 P.3d 1169, 1171 (2022). A state registration statute preserves jurisdiction over national corporations. Mallory, 600 U.S. at 134, 143 S.Ct. 2028.
But what about other businesses, shell companies,
and individuals that do not enter or remain in Hawai‘i?
See Shaffer v. Heitner, 433 U.S. 186, 200, 97 S.Ct.
2569, 53 L.Ed.2d 683 (1977) (“The Pennoyer rules
generally favored nonresident defendants by making
them harder to sue”).
Now, settled law easily unsettles. Some justices
feel precedent is advisory. See Gamble v. United
States, ––– U.S. –––, 139 S. Ct. 1960, 1984, 204
L.Ed.2d 322 (2019) (Thomas, J., concurring); Amy
Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1728 (2013); Dobbs,
142 S. Ct. at 2265. Who knows what law may vanish?
Or what text gets exiled next? See, e.g., Trinity
Lutheran Church of Columbia, Inc. v. Comer, 582
U.S. 449, 466, 137 S.Ct. 2012, 198 L.Ed.2d 551 (2017)
(ghosting the Establishment Clause).
Before the Court’s hubristic originalists arrived,
everyone got it wrong. Well, mostly everyone. See
Dred Scott v. Sandford, 60 U.S. 19 How. 393, 405, 15
L.Ed. 691 (1857) (enslaving human beings and denying citizenship based on race because the Supreme
Court must interpret the Constitution “according to
its true intent and meaning when it was adopted”).
All others, hall-of-fame jurists to 1Ls, held egregiously
wrong-headed views. Only public meaning at inception counts. Traditional methods to interpret the
Constitution are unacceptable. See, e.g., Brown v. Bd.
of Educ. of Topeka, Shawnee Cnty., Kan., 347 U.S.
483, 492-93, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“In
approaching this problem, we cannot turn the clock
73a
back to 1868 when the Amendment was adopted, or
even to 1896 when Plessy v. Ferguson was written.
We must consider public education in the light of its
full development and its present place in American
life throughout the Nation”).
A chosen interpretive theory cages the Constitution.
Why originalism? To keep value judgments out of
judging. To constrain judges.
Not that judges are always restrained. See, e.g.,
Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 133 S.Ct.
2612, 186 L.Ed.2d 651 (2013) (dismembering a
cornerstone of American civil rights because a few
judges made up a textually-unsupported rule that
Alabama’s equal sovereignty prevents the federal
government from enforcing federal law – a law those
judges felt worked too well).
Inconvenient originalism nurtures views that the
Court operates as a political body. For instance, Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
130 S.Ct. 876, 175 L.Ed.2d 753 (2010), sidestepped
text, history, and tradition to invalidate a major law
on a question vital to democracy – limitless corporate
money influencing elections. Corporations though
have never been “members of ‘We the People’ by
whom and for whom our Constitution was established.” Id. at 466, 130 S.Ct. 876 (opinion of Stevens,
J.). In 1791, corporations were rare, highly regulated
creations of the states and not mentioned in the Constitution. Id. at 426-27. Corporations had privileges,
not rights. Id. at 427, 130 S.Ct. 876. They did not
enjoy the same free speech protections as people.
Id. at 428-29, 466, 130 S.Ct. 876 (“corporations have
no consciences, no beliefs, no feelings, no thoughts,
no desires”). And they certainly were not spending
silver coins to sway elections.
74a
Whose history are we talking about anyway? The
powerful. The few white men who made laws and
shaped lives during the mostly racist and misogynistic very old days. Originalism revives their value
judgments. To constrain the value judgments of
contemporary judges!
What about today’s need-to-be-constrained judges?
They need to be historians. Figuring out the way
things were to govern the way things are. Excavating 18th and 19th century experiences to control 21st
century life. How? Relying on partisan amicus
briefs, borrowing history books and dictionaries,
searching online, using artificial intelligence? As one
judge put it: “[T]he standard articulated in Bruen
expects us to play historian in the name of constitutional adjudication.” United States v. Bullock, ––– F.
Supp. 3d –––, 2023 WL 4232309, at *4-*5 (S.D. Miss.
2023) (Reeves, J.) (“[A]n overwhelming majority of
historians reject the Supreme Court’s most fundamental Second Amendment holding – its 2008 conclusion that the Amendment protects an individual
right to bear arms, rather than a collective, Militiabased right”) (both quotes cleaned up).
I fear the Court self-inflicts harm, loses public
confidence, and exposes itself to real criticisms about
its legitimacy.
Inconvenient originalism may just save International
Shoe. Playing tag exposes nationwide corporations
to easy forum-shopping by plaintiffs. “[C]orporations
might lose special protections.” Ford Motor, 141 S.
Ct. at 1039 n.5 (Gorsuch, J., concurring). They might
get sued for any claim, in any state, even though
they have no connection to that state. Mallory, 600
U.S. at 128, 143 S.Ct. 2028. And states may enact
the broadest possible jurisdiction consent statutes to
75a
compete with each other. See id. at 130, 143 S.Ct.
2028.
Sharper minds than mine deep dive and debate the
tugs between originalism and other interpretative
modalities. I’m just a state judge who respects and
admires the federal constitution’s open-textured,
freedom-and-liberty-inspired language.
Sure, a constitutional provision’s public meaning at
ratification may matter centuries or decades later.
See United Pub. Workers, AFSCME, Local 646, AFLCIO v. Yogi, 101 Hawai‘i 46, 53, 62 P.3d 189, 196
(2002) (“[i]n construing a constitutional provision,
the court can also look to [the] understanding of
voters who ratified the constitutional provision”).
But to the Hawai‘i Supreme Court, it’s not decisive,
or the only way to interpret a constitution.
In Hawai‘i, the Aloha Spirit inspires constitutional
interpretation. When this court exercises “power
on behalf of the people and in fulfillment of [our]
responsibilities, obligations, and service to the people”
we “may contemplate and reside with the life force
and give consideration to the ‘Aloha Spirit.’ ” HRS
§ 5-7.5(b) (2009).
Hawai‘i’s people define the Aloha Spirit as:
“Aloha Spirit” is the coordination of mind and heart
within each person. It brings each person to the
self. Each person must think and emote good feelings to others. In the contemplation and presence
of the life force, “Aloha”, the following unuhi laulā
loa may be used:
“Akahai”, meaning kindness to be expressed with
tenderness;
“Lōkahi”, meaning unity, to be expressed with
harmony;
76a
“ ‘Olu‘olu”, meaning agreeable, to be expressed with
pleasantness;
“Ha‘aha‘a”, meaning humility, to be expressed with
modesty;
“Ahonui”, meaning patience, to be expressed with
perseverance.
These are traits of character that express the
charm, warmth and sincerity of Hawai‘i’s people.
It was the working philosophy of native Hawaiians
and was presented as a gift to the people of Hawai‘i.
“Aloha” is more than a word of greeting or farewell
or a salutation. “Aloha” means mutual regard and
affection and extends warmth in caring with no
obligation in return. “Aloha” is the essence of
relationships in which each person is important to
every other person for collective existence. “Aloha”
means to hear what is not said, to see what cannot
be seen and to know the unknowable.
HRS § 5-7.5(a).
Ku‘ia ka hele a ka na‘au ha‘aha‘a (hesitant walks
the humble hearted). Mary Kawena Pukui, ‘Ōlelo
No‘eau: Hawaiian Proverbs & Poetical Sayings 201
(1983). A humble person walks carefully so they will
not hurt others. Id.
The United States Supreme Court could use a little
Aloha.
77a
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAI‘I
__________
CIVIL NO. 1CCV-20-0000380 (JPC)
(Other Non-Vehicle Tort)
CITY AND COUNTY OF HONOLULU, AND
HONOLULU BOARD OF WATER SUPPLY,
Plaintiffs,
vs.
SUNOCO LP, et al.,
Defendants.
__________
[Filed March 31, 2022]
__________
ORDER DENYING DEFENDANTS’
JOINT MOTION TO DISMISS FOR LACK OF
PERSONAL JURISDICTION
Defendants’ Joint Motion to Dismiss for Lack of
Personal Jurisdiction (“Motion”), filed on June 2,
2021 (Dkt. 347), came for video hearing on August
27, 2021 at 8:30 a.m. before the Honorable Jeffrey P.
Crabtree. All parties appeared through counsel.
Theodore J. Boutrous argued for all Defendants,
Paul Alston argued for Exxon Mobil Corporation and
ExxonMobil Oil Corporation, and Corrie J. Yackulic
argued for Plaintiffs.
After considering the written submissions and the
arguments of counsel, the files herein, and other good
cause appearing therefore, Defendants’ Joint Motion
to Dismiss for Lack of Personal Jurisdiction is
DENIED for reasons set forth as follows. This order
78a
is the one proposed by Defendants following the
court’s ruling filed February 28, 2022 – except for the
court’s additions to paragraph I B regarding the
court’s ruling on Plaintiffs’ alternative alter ego
theory.
I. LEGAL STANDARD
A. This is a Rule 12(b)(2) motion to dismiss for
lack of personal jurisdiction. Plaintiffs’ initial burden
is to make a prima facie showing that 1) the criteria
in Hawai‘i’s long-arm statute (HRS 634-635) are met,
and 2) personal jurisdiction does not violate due
process. Norris v. Six Flags Theme Parks, Inc., 102
Haw 203, 207 (2003), as corrected (Aug. 12, 2003).
An evidentiary hearing was not requested and so the
personal jurisdiction issues were presented on the
briefs and at oral argument. Therefore, the court
looks to the allegations of the complaint, which are
deemed to be true for purposes of the motion. See
Shaw v. N. Am. Title Co., 76 Haw 323, 327 (1994),
and federal authorities cited therein.
B. The court concludes there is a prima facie
showing for specific jurisdiction, and therefore
DENIES the motion in large part. Per section III,
below, the court GRANTS the motion to the limited
extent Plaintiffs rely on an alter ego theory to attribute the contacts of an “at home” defendant, Aloha
Petroleum, Ltd., to an out-of-state corporate parent
or intermediate entity, Sunoco LP and Aloha Petroleum LLC, in order to gain general jurisdiction. This
limited ruling against the Plaintiffs’ alter ego theory
does not impact the court’s ruling as to specific jurisdiction. The court is simply rejecting what the court
concludes is Plaintiffs’ alternative and independent
argument that general personal jurisdiction is appropriate under an alter ego theory.
79a
II. SPECIFIC JURISDICTION
A. The first prong of specific jurisdiction (purposeful availment) is met. The out-of-state Defendants
all conducted fossil fuel-related business here and
purposefully availed themselves of the forum. Per
extensive case law, such availment invokes both
benefits and obligations. See, e.g., Ford Motor Co. v.
Mont. Eight Judicial Dist. Court, 141 S. Ct. 1017,
1025 (2021). This first prong does not seem to be in
dispute.
B. The second prong is whether the claim “arises
out of or relates to” the defendants’ forum-related
activities. The court agrees that Ford controls. Its
focus on the second prong is the crux of this motion.
Plaintiffs claim the “arising out of or relates to”
second prong is met here, because there is a connection between the activities in the forum (marketing
fossil fuels) and the claim or controversy (tortious
marketing of fossil fuels including failure to warn).
Defendants argue the second prong is not met because
their allegedly tortious business conduct did not
occur in and was not targeted at Hawai‘i, and the
connection between their allegedly tortious business
conduct and a tortious event or impact in Hawai‘i
is insubstantial, incidental, or not supported by
causation.
C. Some of the cases Defendants rely on (Burger
King, v. Rudzewicz, 471 U.S. 462 (1985); Walden v.
Fiore, 571 U.S. 277 (2014)) focus more on the first
prong, and Defendants seem to argue standards for
the first prong are part of the second prong. It is
important to keep the two prongs separate.
D. Second prong: “arising out of or relates to”.
Plaintiffs allege that Defendants’ fossil fuel marketing campaign was worldwide, including in Hawai‘i,
80a
and that the tortious marketing and failure to warn
helped drive fossil fuel demand worldwide, including
in Hawai‘i. Plaintiffs further allege Defendants’
tortious marketing activity caused impacts in the
forum state. As this court reads Ford, combined
with the first prong, more is not required. Ford does
not establish any in-forum, geo-located “causation”
requirement. 141 S. Ct. at 1026. Neither does Ford
require that particular or proportional Hawai‘i sales
and emissions “cause” harm to Hawai‘i. Rather,
Fordmade clear the US Supreme Court has not
and does not require a showing that plaintiff ’s claim
occurred due to or because of a defendant’s in-state
conduct. Id. Neither does Ford establish any secondprong requirement of “substantial connection.” “The
plaintiff ’s claims, we have often stated, ‘must arise
out of or relate to the defendant’s contacts’ with the
forum.” Id. at 1025. “Or put just a bit differently,
there must be an affiliation between the forum and
the underlying controversy, principally an activity or
an occurrence that takes place in the forum state and
is therefore subject to the State’s regulation.” Id.
(citation omitted, cleaned up). As contrast, if Defendants were marketing and installing only infrastructure for fossil fuels (e.g., pipelines, storage tanks),
the required relationship or affiliation might be lacking. Based on the allegations, the court sees little
daylight “between the forum and the underlying
controversy.” Defendants argue that general activities and injury in the state is not enough. The court
agrees. The key is the connection – the long-time
purposeful availment to market fossil fuels in the
forum state, the allegedly tortious marketing and
failure to warn in the forum state, and the related
impacts in the forum state. Defendants argue that
Ford is distinguishable because, in that case, the
81a
actual car crash occurred in the forum state. The
court does not see how that one fact is dispositive,
when the test is whether there is a relationship or
affiliation between contacts and claims. In any event,
based on the allegations which are presumed correct
for this motion, the court considers the in-state
conduct/events here to be just as substantial as in
Ford. In both cases, in addition to purposeful availment, the alleged result of the alleged tortious
conduct allegedly occurred in the forum state.
E. Failure to warn/Sulak. Defendants argue failure to warn cannot serve as the basis for jurisdiction,
and cite Sulak v. American Eurocopter Corp., CV. No.
09-00135, 2009 WL 2849136 (D. Haw. Aug. 26, 2009),
involving a helicopter crash in Hawai‘i. Although
Sulak is a trial court opinion and is not binding
precedent on this court, the court reviewed Sulak
carefully due to this court’s respect for Judge Ezra.
In Sulak, the court found there was no general jurisdiction and moved to consider whether the exercise of
specific jurisdiction was warranted. Id. at *6. The
evidence of specific jurisdiction was sparse. The
court next found there was no purposeful availment
(first prong), because the sale of the helicopter did
not occur in Hawai‘i, and any business connections
between the defendant and Hawai‘i were very limited. Id. at *6-7. Post-sale, there was maintenance of
the helicopter in Hawai‘i, but the available evidence
showed that a third party did the maintenance, not
the defendant. Id. at 7. The only argument left was
Plaintiff ’s failure-to-warn argument, which alone
would never support personal jurisdiction. Id. That
is what makes Sulak easily distinguishable. As
discussed above, there is far more here than just a
failure to warn.
82a
F. Fairness/reasonableness/due process.
Once
the first and second prongs of specific jurisdiction are
met, the final question is whether exercising personal
jurisdiction is unreasonable. See Hawaii Forest &
Trial Ltd. v. Davey, 556 F. Supp. 2d at 1162, 1169-72
(D. Haw. 2008). The court answers no. Defendants
have significant contacts with Hawai‘i, and purposefully availed themselves of the benefits and obligations of operating in the forum state for decades. As
discussed above, the court concludes those purposeful
forum contacts are related to the claims made, and
the tortious acts allegedly culminated in harms in
the forum. Under those circumstances, it cannot be a
great surprise to be haled into a U.S. court in that
forum. Looking at other factors, Defendants’ burden
in litigating here is not substantial in view of their
resources. The harms/damages claimed are those
in Hawai‘i only. Honolulu County and the Board of
Water Supply have a strong interest in litigating in
Hawai‘i. The location of the evidence and witnesses
could create some burden, but the evidence and
witnesses will likely be from around the country or
world, not just from a Defendant’s home state. When
balancing the various factors, the court concludes it
is not unreasonable to exercise personal jurisdiction
over movants.
G. Regarding Exxon’s separate argument that no
deceptive conduct took place in or targeted Hawai‘i,
the court disagrees. See above discussion, especially
paragraph II.D. The operative complaint alleges
“Exxon has and continues to tortiously distribute,
market, advertise, and promote its products in Hawai‘i,
with knowledge that those products have caused and
will continue to cause climate crisis-related injuries
in Hawai‘i . . . .” See Amended Complaint ¶ 21(h).
83a
Exxon did not factually challenge the allegations of
the complaint for purposes of this motion, except to
argue the allegations were conclusory and therefore
required dismissal. The court respectfully disagrees.
III. GENERAL JURISDICTION
A. The court rejects Plaintiffs’ arguments that the
alter ego theory applies here. Accordingly, general
jurisdiction does not exist as to Sunoco LP and Aloha
Petroleum LLC because the contacts of Aloha Petroleum, Ltd. may not be imputed to those entities
under a theory of alter ego, essentially for the reasons
argued by Defendants. Hawai‘i courts rarely apply
the alter ego doctrine, to better effectuate the protections of corporate form.1 The briefs did not demonstrate that the court should make an exception to the
general rule.
For the reasons stated above, and the Court’s
February 28, 2022 Order (Dkt. 591), Defendants’
Joint Motion is DENIED.
//
IT IS SO ORDERED.
Dated: Honolulu, Hawai’i, March 31, 2022.
/s/ Jeffrey P. Crabtree
HONORABLE JEFFREY T. CRABTREE
JUDGE OF THE ABOVE-ENTITLED COURT
1 Plaintiffs do not argue that any Defendants other than
Sunoco LP and Aloha Petroleum LLC are subject to general
personal jurisdiction.
84a
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAI‘I
__________
CIVIL NO. 1CCV-20-0000380 (JPC)
(Other Non-Vehicle Tort)
CITY AND COUNTY OF HONOLULU, AND
HONOLULU BOARD OF WATER SUPPLY,
Plaintiffs,
vs.
SUNOCO LP, et al.,
Defendants.
__________
[Filed March 29, 2022]
__________
ORDER DENYING DEFENDANTS’ MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM
Defendants’ Motion to Dismiss for Failure to State
a Claim, filed on June 2, 2021 (Dkt. 347), came for
video hearing on August 27, 2021, at 8:30 a.m.,
before the Honorable Jeffrey P. Crabtree. All parties
appeared through counsel. Theodore J. Boutrous
argued for Defendants, and Victor M. Sher argued for
Plaintiffs.
After considering the written submissions and
the arguments of counsel, the files herein, and other
good cause appearing therefore, Defendants’ Motion
to Dismiss for Failure to State a Claim is DENIED
for the following reasons. (Note: this order is the
version submitted by Plaintiffs during the posthearing Rule 23 process, with several of the changes
requested by Defendants as well as editing by the
court.)
85a
1. Legal Standard.
A. This is a Rule 12(b)(6) motion. Such motions
are viewed with disfavor and rarely granted in Hawai‘i.
Marsland v. Pang, 5 Haw. App. 463, 474 (1985).
B. Review of a motion to dismiss is generally
limited to the allegations in the complaint, which
must be deemed true for purposes of the motion.
Kahala Royal Corp. v. Goodsill Anderson Quinn &
Stifel, 113 Hawai‘i 251, 266 (2007). However, the
court is not required to accept conclusory allegations.
Civ. Beat L. Ctr. for the Pub. Int., Inc. v. City & Cty.
of Honolulu, 144 Hawai‘i 466, 474 (2019).
C. On a 12(b)(6) motion, the issue is not solely
whether the allegations as currently pled are adequate.
A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his or
her claim that would entitle him or her to relief
under any set of facts or any alternative theory. In re
Estate of Rogers, 103 Hawai‘i 275, 280-281 (2003);
Wright v. Home Depot U.S.A., Inc., 111 Hawai‘i
401, 406-07 (2006); Malabe v. AOAO Exec. Ctr., 147
Hawai‘i 330, 338 (2020).
D. Hawai‘i is a notice pleading jurisdiction.
Our Hawai‘i Supreme Court expressly rejected the
federal “plausibility” pleading standard (Twombly/
Iqbal) in Bank of America v. Reyes-Toledo, 143
Hawai‘i 249, 252 (2018).
2. This is an unprecedented case for any court, let
alone a state court trial judge. But it is still a tort
case. It is based exclusively on state law causes of
action.
3. City of New York.
A. Defendants’ motion relies heavily on City of
New York v. Chevron, 993 F.3d 81 (2d Cir. 2021).
86a
This court spent extensive time reviewing that decision multiple times, and considered it carefully. This
court respectfully concludes that City of New York
has limited application to this case, because the
claims in the instant case are both different from and
were not squarely addressed in the City of New York
opinion.
B. Plaintiffs emphasize repeatedly their state
law tort claims include failures to disclose and deceptive promotion. State law tort claims traditionally
involve four elements: duty, breach, causation, and
harm or damages. Plaintiffs allege that Defendants
had a duty to disclose and not be deceptive about the
dangers of fossil fuel emissions, and breached those
duties. As the court understands it, Plaintiffs claim
Defendants thereby exacerbated the costs to Plaintiffs
adapting to and mitigating impacts from climate
change and rising sea levels (causation). Finally,
Plaintiffs alleged harms include flooding, a rising
water table, increased damage to critical infrastructure like highways and utilities, and the costs
of prevention, mitigation, repair, and abatement – to
the extent caused by Defendants’ breach of recognized
duties. Plaintiffs double-down on this theory of
liability by expressly arguing that if Defendants
make the disclosures and stop concealing and misrepresenting the harms, Defendants can sell all the
fossil fuels they are able to without incurring any
additional liability.1
1 The court recognizes that nuisance, trespass, and failure to
warn vary somewhat in terms of their specific elements. All of
these claims, however, share the same basic structure of requiring that a defendant engage in tortious conduct that causes
injury to a plaintiff. Moreover, as the court understands it,
Plaintiffs are relying on the same basic theory of liability to
prove each of their claims, namely: that Defendants’ failures to
87a
C. Defendants frame Plaintiffs’ claims very
differently, saying Plaintiffs actually seek to regulate
global fossil fuel emissions, or alternatively, that the
claims amount to de facto regulation. This framing
also appears in the City of New York opinion, which
expressly stated that New York City’s claims targeted
“lawful commercial activity,” and Defendants would
need to “cease global production” if they wanted to
avoid liability. 993 F.3d at 87, 93 (cleaned up). The
United States Court of Appeals for the Second Circuit added that the threat of such liability would
“compel” Defendants to develop new pollution control
measures, and therefore the City of New York’s lawsuit would “regulate cross-border emissions.” Id. at
93 (cleaned up). This conclusion was important to
the ultimate holding that the claims in City of New
York are preempted by federal law (whether federal
common law or the Clean Air Act) (discussed further,
below).
D. This court concludes that Plaintiffs’ framing
of their claims in this case is more accurate. The tort
causes of action are well recognized. They are
tethered to existing well-known elements including
duty, breach of duty, causation, and limits on actual
damages caused by the alleged wrongs. As this court
understands it, Plaintiffs do not ask for damages for
all effects of climate change; rather, they seek damages only for the effects of climate change allegedly
caused by Defendants’ breach of Hawai‘i law regarding failures to disclose, failures to warn, and deceptive promotion (without deciding the issue, presumably by applying Hawai‘i’s substantial factor test, see,
e.g., Estate of Frey v. Mastroianni, 146 Hawai‘i 540,
disclose and deceptive promotion increased fossil fuel consumption, which – in turn – exacerbated the local impacts of climate
change in Hawai‘i.
88a
550 (2020)). Plaintiffs do not ask this court to limit,
cap, or enjoin the production and sale of fossil fuels.
Defendants’ liability in this case, if any, results from
alleged tortious conduct, and not from lawful conduct
in producing and selling fossil fuels.
E. This court concludes that Plaintiffs’ claims
as pled here were not squarely addressed in City of
New York given the way that opinion frames those
claims. This is especially true in the opinion’s
preemption analysis, which did not turn on any
allegations that fossil fuel companies concealed or
misrepresented the dangers of their products.2
4. Preemption.
A. Defendants argue that federal common law
“governs” or preempts the claims in this case. The
argument is that Plaintiffs seek to regulate out-ofstate and international fossil fuel emissions, and
therefore interfere with the need for a consistent
national response to climate change. Defendants
argue in the alternative that if Plaintiffs do not seek
actual regulation, then Defendants’ activity is de
facto “regulated” by the threat of a damages award.
To apply federal common law here, generally this
court needs to answer “yes” to at least three questions:
2 The Second Circuit noted generally that fossil fuel companies
allegedly “downplayed the risks” of their fossil fuel products
(City of New York, 993 F.3d at 86-87). But the court’s preemption analysis did not analyze a deception claim. Rather, the
court’s opinion stated that the claims sought “to impose strict
liability for the damages caused by fossil fuel emissions no
matter where in the world those emissions were released (or
who released them).” Id. at 93. The deception-based claims
asserted by Plaintiffs here were not squarely addressed. See
United States v. Shabani, 513 U.S. 10, 16 (1994) (“[Q]uestions
which merely lurk in the record are not resolved, and no resolution of them may be inferred.” (cleaned up)).
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1) is there a unique federal interest? 2) is there a
“significant conflict” in this case between a federal
policy or interest and applying state law? 3) do
Plaintiffs’ claims really seek to regulate out-of-state,
national, and international greenhouse gas emissions?
The court answers “no” to all three of these questions,
as discussed below.
B. Unique federal interest. Federal common law
does not apply in cases that fail to raise “uniquely
federal interests.” Rodriguez v. Fed. Deposit Ins.
Corp., 140 S. Ct. 713, 717 (2020). This court concludes
there is no unique federal interest in the alleged failure to disclose harms in this case, nor in the alleged
deceptive promotion. States have a well-established
“interest in ensuring the accuracy of commercial
information in the marketplace.” Edenfield v. Fane,
507 U.S. 761, 769 (1993); see also Fla. Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 150
(1963) (identifying “the protection of consumers” as a
traditional state interest); Lorillard Tobacco Co. v.
Reilly, 533 U.S. 525, 541-42 (2001) (noting that
“advertising” is “a field of traditional state regulation” (cleaned up)); California v. ARC Am. Corp., 490
U.S. 93, 101 (1989) (underscoring “the long history of
state common-law and statutory remedies against
monopolies and unfair business practices”). Moreover, under our state-federal system, states have
broad authority to protect residents’ health, safety,
property, and general welfare, and there is a strong
presumption against federal preemption. Wyeth v.
Levine, 555 U.S. 555, 565 (2009); see also In re MTBE
Products Liability Litigation, 725 F.3d 65, 96 (2d Cir.
2013) (MTBE ) (state tort law fell within the state’s
historic powers to protect health, safety, and property rights, and therefore the presumption against
preemption was “particularly strong”). States also
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have a legitimate interest in combatting the adverse
effects of climate change. Massachusetts v. EPA, 549
U.S. 497, 522-23 (2007); Am. Fuel & Petrochemical
Mfrs. v. O’Keeffe, 903 F.3d 903, 913 (9th Cir. 2018).
In other words, any federal interest in the local
impacts of climate change is an interest shared with
the states – and is not unique to federal law.
C. No “significant conflict.” The court also
concludes there is no “significant conflict” in this case
between a federal policy or interest and the operation
of Hawai‘i state law – a second “precondition” for
applying federal common law. O’Melveny & Myers v.
F.D.I.C., 512 U.S. 79, 87 (1994) (quotations omitted).
Such a conflict is key to preemption, because federal
and state policies and law can co-exist and supplement each other. This court is not aware of any
doctrine where federal common law broadly replaces
state-law tort claims, per se. To the contrary, federal
preemption requires a real and significant conflict:
e.g., the state-law duty requires Defendants to do
something that federal law forbids. See, e.g., Mutual
Pharm. Co. v. Bartlett, 570 U.S. 472, 480 (2013)
(finding preemption where “it was impossible for
[defendant] to comply with both its state-law duty
to strengthen the warnings on sulindac’s label and
its federal-law duty not to alter sulindac’s label”);
Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 528
(1992) (“Our preemption analysis requires us to
determine whether [the state-law] duty [at issue] is
the sort of requirement or prohibition proscribed by
[federal law].”). The federal policy or interest must be
concrete and specific, and not judicially constructed,
and not speculative. See O’Melveny, 512 U.S. at
88-89; Miree v. DeKalb Cty., 433 U.S. 25, 32-33
(1977). This court concludes there is no federal
policy (whether common law or statutory) against
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timely and accurate disclosure of harms from fossil
fuel emissions.
D. No “regulation.” Defendants are correct that
the claims here involve fossil fuel emissions, and the
complexity of global climate change involves matters
of federal concern. But at this stage of the litigation,
there is no concrete showing that a damages award
in this case would somehow regulate emissions.
Black’s Law Dictionary (11th ed. 2019) defines regulation as “control over something by rule or restriction,”
(emphasis added) and gives the example of federal
regulation over the airline industry. How would a
damages award actually “control” Defendants?
Under the limits imposed by a Rule 12(b)(6) motion,
how does a trial court make a “regulation” finding,
and based on what criteria exactly? The court
currently sees nothing in the record that tethers
the claim of “regulation” (whether it be of emissions,
disclosures, or something else) to a possible award of
damages. The federal court opinions cited to this
court do not clearly require that any potentially large
damages award constitutes “regulation” for purposes
of preemption. See generally Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987); see also BMW of N. Am.,
Inc. v. Gore, 517 U.S. 559, 572 (1996) (reaffirming
that state-court judicial remedies do not “infring[e]
on the policy choices of other States” when they are
“supported by the [forum] State’s interest in protecting its own consumers and its own economy”). In
any event, the damages claims made here focus on
failures to disclose, failures to warn, and deceptive
marketing. See, e.g., City & Cty. of Honolulu v.
Sunoco LP, No. 20-CV-00163-DKW-RT, 2021 WL
531237, at *1 (D. Haw. Feb. 12, 2021) (“Plaintiffs
have chosen to pursue claims that target Defendants’
alleged concealment of the dangers of fossil fuels,
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rather than the acts of extracting, processing, and
delivering those fuels”); Mayor & City Council of
Baltimore v. BP P.L.C., 952 F.3d 452, 467 (4th Cir.
2020) (“[T]he Complaint clearly seeks to challenge
the promotion and sale of fossil fuel products without
warning and abetted by a sophisticated disinformation
campaign”); Minnesota v. Am. Petroleum Inst., No.
CV 20-1636 (JRT/HB), 2021 WL 1215656, at *10 (D.
Minn. March 31, 2021) (“[T]he State’s claims are
rooted not in the Defendants’ fossil fuel production,
but in [their] alleged misinformation campaign”).
Thus, as pleaded and repeatedly argued by Plaintiffs,
this case does not prevent Defendants from producing and selling as much fossil fuels as they are able,
as long as Defendants make the disclosures allegedly
required, and do not engage in misinformation. The
court does not agree that this amounts to control by
rule or restriction of Defendants’ lawful production
and sale of fossil fuels.
E. Common law or statutory preemption? This
court struggled with City of New York’s apparent
reliance on both federal common law and statutory
preemption under the Clean Air Act. This issue was
discussed in the briefing, including supplemental
briefing following the hearing (Dkt. 581 filed 2/9/22;
and Dkt. 587 filed 2/17/22). The court agrees with
Plaintiffs that the Clean Air Act supplants the federal
common law invoked by Defendants, meaning that
federal common law cannot govern or preempt Plaintiffs’ claims. The Clean Air Act displaced any federal
common law relating to greenhouse gas emissions.
See AEP, 564 U.S. at 423 (holding that the Clean Air
Act “displaced” any “federal common-law claim for
curtailment of greenhouse gas emissions”). Federal
common law “disappears” once displaced by a federal
statute. City of Milwaukee v. Illinois, 451
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