Amicus Curiae Brief — Shell PLC, fka Royal Dutch Shell PLC, et al., Petitioners v. City and County of Honolulu, Hawaii, et al.

Nos. 23-947 & 23-952

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------SUNOCO LP, ET AL.,

Petitioners,

v.

CITY AND COUNTY OF HONOLULU, HAWAII, ET AL.,

Respondents.

---------------------------------♦--------------------------------SHELL PLC, ET AL.,

Petitioners,

v.

CITY AND COUNTY OF HONOLULU, HAWAII, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Petitions For Writ Of Certiorari

To The Supreme Court Of Hawaii

---------------------------------♦--------------------------------BRIEF OF ATLANTIC LEGAL FOUNDATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

================================================================================================================

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................ii

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

SUMMARY OF ARGUMENT…………………………..3

ARGUMENT………………………………………………4

The Court Should Grant Review To Decide Whether

State & Local Governments’ Damages Suits Seeking

To Hold The Fossil Fuel Industry Liable For Global

Climate Change Are Precluded By Federal Law…….4

A. Global climate change is beyond the bounds of

traditional state tort litigation...............................4

B. Petitioners’ alleged liability for causing global

climate change cannot be fragmented into myriad

state and local pieces………………………………...9

C. Regulation of greenhouse gas emissions through

state tort litigation would undermine the

comprehensive federal-state regulatory scheme..14

CONCLUSION…………………………………………..22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

American Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) .......................... 9-11, 14-16, 18

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) .............................................. 13

Chic. & N.W. Transp. Co. v. Kalo Brick & Tile Co.,

450 U.S. 311 (1981) ................................................ 6

Cipollone v. Liggett Group, Inc.,

505 U.S. 504 (1992) .............................................. 17

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021).......... .5, 8, 11, 14-17, 19

North Carolina ex rel. Cooper v. TVA,

615 F.3d 291 (4th Cir. 2010) ................................ 18

Fry ex rel. E.F. v. Napoleon Cmty. Schools,

137 S. Ct. 743 (2017) .............................................. 6

International Paper Co. v. Ouellette,

479 U.S. 481 (1987) .............................................. 20

Massachusetts v. EPA,

549 U.S. 497 (2007) ........................................ 10, 14

Native Village of Kivalina v. ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) ................................ 16

iii

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2011) .............................................. 15

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ................................ 9, 11, 13

Statutes

42 U.S.C. §§ 7401 et seq. (Clean Air Act) .................... 2

42 U.S.C.] § 7401(a), (b). ........................................... 16

42 U.S.C. § 7411(c)(1), (d)(1)-(2). ............................... 16

42 U.S.C. § 7602(g) .................................................... 14

Other Authorities

Amy Smaldone & Mark L.J. Wright, Local

Governments in the U.S.: A Breakdown by

Number and Type, Fed. Res. Bank of St. Louis

(March 14, 2024) ................................................... .3

Climate Watch, Historical GHG Emissions. ....... 11-13

Cong. Rsch. Serv., Clean Air Act: A Summary of the

Act and Its Major Requirements (updated Sept.

13, 2022). .............................................................. 15

Daniel E. Walters, Animal Agriculture Liability for

Climatic Nuisance: A Path Forward for Climate

Change Litigation? 44 Colum. J. Env. L. 300

(2019) .................................................................... 12

iv

Kate Larsen et al., China’s Greenhouse Gas

Emissions Exceeded the Developed World for the

First Time in 2019

(Rhodium Group Mar. 6, 2021) ............................ 11

S. A. Montzka et al., Non-CO2 greenhouse gases and

climate change, Nature 476 (2011) (Abstract). ... 12

U.S. Environmental Protection Agency, Basics of

Climate Change (Nov. 1, 2023) ..................... .10, 12

1

INTEREST OF THE AMICUS CURIAE 1

Established in 1977, the Atlantic Legal

Foundation (“ALF”) is a national, nonprofit,

nonpartisan, public interest law firm. ALF’s mission

is to advance the rule of law and civil justice by

advocating for individual liberty, free enterprise,

property rights, limited and responsible government,

sound science in judicial and regulatory proceedings,

and effective education, including parental rights and

school choice. With the benefit of guidance from the

distinguished legal scholars, corporate legal officers,

private practitioners, business executives, and

prominent scientists who serve on its Board of

Directors and Advisory Council, ALF pursues its

mission by participating as amicus curiae in carefully

selected appeals before the Supreme Court, federal

courts of appeals, and state supreme courts. See

atlanticlegal.org.

***

The question presented by these appeals is

whether federal law precludes the dozens of global

climate change damages suits that state and local

governments, with the assistance of the plaintiffs’

bar, have been filing against the fossil fuel industry.

The potentially disastrous national and international

1 This amicus brief supports the Petitioners in Nos. 23-947 & 23-

952. Petitioners’ and Respondents’ counsel were provided

timely notice in accordance with Supreme Court Rule 37.2. No

counsel for a party authored this brief in whole or part, and no

party or counsel other than the amicus curiae and its counsel

made a monetary contribution intended to fund preparation or

submission of this brief.

2

ramifications of allowing these proliferating statecourt suits to proceed are enormously important—not

only for the defendant fossil fuel energy companies,

but also for the nation’s economy, critical

infrastructure, and national defense. The everyday

lives of virtually every American will be adversely

affected in numerous ways if these suits succeed in

crippling the fossil fuel industry.

Climate change tort suits pending in state courts

around the United States collectively seek billions of

dollars in compensatory and punitive damages from

fossil fuel producers for the alleged local effects of

global warming and climate change—a politically

charged, multi-source, scientific phenomenon that is

both borderless and indivisible. The urgent question

of whether these state-law suits are precluded by

federal law due to the inherently interstate (indeed

global) nature of greenhouse gas air pollution and/or

by the preemptive effect of the Clean Air Act (“CAA”),

42 U.S.C. §§ 7401 et seq., aligns with two of ALF’s

most prominent advocacy missions: defending free

enterprise and advancing sound science in the

nation’s courtrooms.

The Court should grant

certiorari and hold that federal law precludes the

efforts of state and local governments to shut down

the fossil fuel industry and cash-in on the so-called

“climate crisis.”

3

SUMMARY OF ARGUMENT

In addition to the 50 States, there are

approximately 40,000 county and sub-county

general-purpose local governments in the United

States. 2 If each and every State, county, city, or town

were free to pursue, in the friendly surroundings of

its own courts, multi-million dollar damages and

abatement litigation against the fossil fuel industry

for the novel and opportunistic tort of “causing global

climate change and dire effects on the planet,” Am.

Compl. at 60, there would be judicial chaos. At the

very least, there would be an enormous potential for

inconsistent or conflicting findings of fact,

conclusions of law, and imposition of astronomical

damages awards and onerous abatement measures

against the same “major corporate members of the

fossil fuel industry,” id. at 1, for engaging in heavily

regulated commercial activities that are vital to the

survival of our nation.

Although this suit, like many others around the

United States, masquerades as a traditional tort suit

for nuisance, trespass, and failure to warn, its unique

subject—atmospheric greenhouse gas pollution that

Respondents contend causes global warming and

climate change—is indisputably interstate—and

certainly not local—in nature. The advent of these

2 Amy Smaldone & Mark L.J. Wright, Local Governments in the

U.S.: A Breakdown by Number and Type, Fed. Res. Bank of St.

Louis (March 14, 2024), https://tinyurl.com/cv4yhzpc.

4

suits begs for a uniform rule of decision, which only

federal law can supply.

The Clean Air Act

accomplishes this by establishing, for greenhouse gas

emissions, a comprehensive federal-state regulatory

scheme that impliedly preempts state tort suits

seeking to impose liability for causing or contributing

to global warming and climate change. If successful,

these state-law suits would seriously undermine

national uniformity of regulation by imposing their

own conflicting or inconsistent requirements for

avoiding liability. The Hawaii Supreme Court’s

opinion errs by failing to recognize the true nature of

Respondents’ claims, and instead, pretends that this

is just a traditional tort suit that would have no effect

on the manner in which greenhouse gas emissions

are regulated.

ARGUMENT

The Court Should Grant Review To Decide

Whether State & Local Governments’ Damages

Suits Seeking To Hold The Fossil Fuel Industry

Liable For Global Climate Change Are

Precluded By Federal Law

A.

Global climate change is beyond the

bounds of traditional state tort

litigation

According to the Hawaii Supreme Court, “this is a

traditional tort case alleging Defendants misled

5

consumers and should have warned them about the

dangers of using their products.” App. 19a. Based on

the erroneous premise that “Plaintiffs’ claims do not

seek to regulate emissions,” but instead “challenge

the promotion and sale of fossil-fuel products without

warning,” id. 38a, the court held that the Clean Air

Act does not preempt Respondents’ claims.

Despite the complaint’s mundanely labeled causes

of action for nuisance, trespass, and failure to warn,

this extraordinary litigation bears no resemblance to

a garden-variety product liability suit. In its effort to

circumvent the Clean Air Act’s preemptive sweep,

the Hawaii Supreme Court has elevated artful

pleading over the true nature of Respondents’

allegations that Petitioners should be held liable for

their alleged alteration of the global climate.

As the Second Circuit explained in City of New

York v. Chevron Corp., 993 F.3d 81, 91 (2d Cir. 2021),

a climate-change damages suit with substantively

identical allegations,

[a]rtful pleading cannot transform the

City’s complaint into anything other than

a suit over global greenhouse gas

emissions. It is precisely because fossil

fuels emit greenhouse gases – which

collectively “exacerbate global warming”

– that the City is seeking damages.

6

See generally Fry ex rel. E.F. v. Napoleon Cmty.

Schools, 137 S. Ct. 743, 755 (2017) (“What matters is

the crux—or, in legal speak, the gravamen—of the

plaintiff’s complaint, setting aside any attempts at

artful pleading.”); Chic. & N.W. Transp. Co. v. Kalo

Brick & Tile Co., 450 U.S. 311, 324 (1981)

(“[C]ompliance with the intent of Congress cannot be

avoided by mere artful pleading.”).

According to the Hawaii Supreme Court,

“Plaintiffs’ references to emissions in [their]

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.”

App. 38a (internal

quotation marks omitted). In reality, Respondents’

“broader story” is the gravamen of their complaint.

Even a cursory review makes it clear that

Respondents’ causes of action for nuisance, trespass,

and failure-to-warn are a thinly disguised attempt to

hold Petitioners liable for nothing less than global

climate change—for the “greenhouse gas pollution

that warms the planet and changes climate”; for

“exacerbation of global warming” and “climate

disruption.” Am. Compl. at 1, 30, 34.

Although Respondents’ alleged harms are locally

focused, they are expressly predicated on “a wide

range of dire climate-related effects” allegedly

resulting from “anthropogenic global warming”—

“global greenhouse gas pollution” that Respondents

7

contend is primarily attributable to the fossil fuel

industry’s “contributions to the buildup of

greenhouse gases via their fossil fuel products in the

Earth’s environment.” Id. at 1, 4, 34; see also App. 7a

(“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.”).

Respondents’ 115-page complaint—which refers

to “global warming” more than 80 times—reads like

a climate activist’s handbook. Its 70-page “Factual

Background” section asserts, for example;

• that “[h]uman-caused warming of the Earth is

unequivocal”;

• that “ocean and atmospheric warming is

overwhelmingly

caused

by

anthropogenic

greenhouse gas emissions”;

• that “[g]reenhouse gases are largely byproducts

of humans combusting fossil fuels to produce energy

and using fossil fuels to create petrochemical

products”;

• that “[b]ecause of the increased burning of fossil

fuel products, concentrations of greenhouse gases in

the atmosphere are now at a level unprecedented in

at least 3 million years”;

8

• that “[t]his accumulation and associated

disruption of the Earth’s energy balance have

myriad environmental and physical consequences,

including but not limited to . . . [c]hanges to the

global climate”;

• that Petitioners’ “conduct caused a substantial

portion of global atmospheric greenhouse gas

concentrations, and the attendant . . . disruptions to

the environment”; and

• that “[w]ithout [Petitioners’] exacerbation of

global warming . . . the current physical and

environmental changes caused by global warming

would have been far less than those observed to date.”

Am. Compl. at 30, 31, 32, 34, 35.

These and similar allegations demonstrate that

this litigation is “a clash over regulating worldwide

greenhouse gas emissions and slowing global climate

change,” not “a more modest litigation akin to a

product liability suit.” City of New York, 993 F.3d at

91.

[T]he City intends to hold the Producers

liable, under [Hawaiian] law, for the

effects of emissions made around the globe

over the past several hundred years. In

other words, the City requests damages

for the cumulative impact of conduct

9

occurring simultaneously across just

about every jurisdiction on the planet.

Id. at 92.

Respondents’ attempt through this

litigation to hold virtually the entire fossil fuel

industry liable under Hawaiian law for “causing

global climate change and dire effects on the planet,”

Am. Compl. at 60, is reason enough for this Court to

grant review.

B.

Petitioners’ alleged liability for causing

global climate change cannot be

fragmented into myriad state and local

pieces

Damages suits that target fossil fuel producers for

causing global climate change—and that attempt to

fragment their alleged liability into countless state

and/or local pieces—ignore the scientific facts that

global warming and climate change have no

geographic or political boundaries, and that there are

a multitude of sources of carbon dioxide (CO2) and

other greenhouse gas emissions (including non-fossil

fuel sources) both in the United States and abroad.

The U.S. Environmental Protection Agency (EPA)

“serves as the Nation’s ‘primary regulator of

greenhouse gas emissions.’” West Virginia v. EPA,

142 S. Ct. 2587, 2627 (2022) (Kagan, J., dissenting)

(quoting American Elec. Power Co. v. Connecticut

(“AEP”), 564 U.S. 410, 428 (2011)). EPA’s website

10

emphasizes that climate change is a borderless,

whole-earth phenomenon:

The earth’s climate is changing. Multiple

lines of evidence show changes in our

weather,

oceans,

and

ecosystems

. . . . These changes are due to a buildup

of greenhouse gases in our atmosphere

and the warming of the planet due to the

greenhouse effect.

***

“[G]reenhouse gases”. . . act like a

blanket, making the earth warmer than

it otherwise would be. This process,

commonly known as the “greenhouse

effect,” is natural and necessary to

support life. However, the recent buildup

of greenhouse gases in the atmosphere

from human activities has changed the

earth’s climate and resulted in dangerous

effects to human health and welfare and

to ecosystems.

EPA, Basics of Climate Change (Nov. 1, 2023); 3 see

also AEP, 564 U.S. at 416 (describing the greenhouse

effect); Massachusetts v. EPA, 549 U.S. 497, 504-05

(2007) (same).

3 https://tinyurl.com/mwpwznx9.

11

“Since ‘[g]reenhouse gases once emitted become

well mixed in the atmosphere’ . . . [g]reenhouse gas

molecules cannot be traced to their source, and

greenhouse gases quickly diffuse and comingle in the

atmosphere.” City of New York, 993 F.3d at 92

(quoting AEP, 564 U.S. at 422) (cleaned up). Thus,

regardless of any local harm that Respondents

contend global warming and climate change have

caused, Petitioners’ alleged contribution to what

Respondents call “climate disruption,” see Am.

Compl. at 30-35, is necessarily global in scope.

In other words, “global warming — as the name

suggests — is a global problem.” City of New York,

993 F.3d at 88; see West Virginia, 142 S. Ct. at 262627 (Kagan, J., dissenting) (discussing the potential

worldwide effects of global warming). For example,

“[i]n 2019, China’s emissions not only eclipsed that of

the US—the world’s second-largest emitter at 11% of

the global total—but also, for the first time,

surpassed the emissions of all developed countries

combined.” Kate Larsen et al., China’s Greenhouse

Gas Emissions Exceeded the Developed World for the

First Time in 2019 (Rhodium Group Mar. 6, 2021); 4

see also Climate Watch, Historical GHG Emissions

(chart indicating that since 2005 China has far

4 https://tinyurl.com/59923sz6.

12

surpassed the United States in greenhouse gas

emissions). 5

EPA’s website also explains that greenhouse gas

emissions are not limited to fossil fuels: “Greenhouse

gases come from a variety of human activities,

including burning fossil fuels for heat and energy,

clearing forests, fertilizing crops, storing waste in

landfills, raising livestock, and producing some kinds

of industrial products.” EPA, Basics of Climate

Change, supra; see also Climate Watch, supra (listing

energy and heat generation, transportation,

manufacturing, agriculture, and other sources of

global greenhouse gas emissions). 6

“Anthropogenic emissions of non-CO2 greenhouse

gases, such as methane, nitrous oxide and ozonedepleting substances (largely from sources other than

fossil fuels), also contribute significantly to

warming.” S. A. Montzka et al., Non-CO2 greenhouse

gases and climate change, Nature 476, 43-50 (2011)

(Abstract) (emphasis added); see, e.g., Daniel E.

Walters, Animal Agriculture Liability for Climatic

Nuisance: A Path Forward for Climate Change

Litigation?, 44 Colum. J. Env. L. 300, 303 (2019)

(“The agriculture industry is responsible for a

surprising amount of greenhouse gas emissions. . . .

5 https://tinyurl.com/5eh9jnb7 (last visited Mar. 17, 2024).

6 https://tinyurl.com/yrdp2x85 (last visited Mar. 17, 2024).

13

In the United States, the numbers are . . .

stunning.”).

Further, since 2004, coal—not oil or gas—has

been the world’s largest emitter of carbon dioxide.

Climate Watch, supra (chart); see also West Virginia,

142 S. Ct. at 2627 (Kagan, J., dissenting) (“[F]ossilfuel-fired (mainly coal - and natural-gas-fired) power

plants . . . are responsible for about one quarter of the

Nation’s greenhouse gas emissions. . . .”).

Given the borderless, multi-source nature of

greenhouse gas emissions, global warming, and

climate change, Petitioners’ alleged liability for

“climate disruption”—for “causing global climate

change and dire effects on the planet”— Am. Compl.

at 30, 60, cannot be divided into potentially tens of

thousands of local bits and pieces of liability, each

subject to the vagaries of one of 50 States’ differing

judicial systems and tort law standards.

The

interstate, in fact worldwide, scope of atmospheric

greenhouse gas pollution cannot be transformed into

a parochial dispute merely by pointing to the

damages that a local government claims it has

suffered due to global climate change. “Proximate

cause and certainty of damages . . . are distinct

requirements for recovery in tort.” Anza v. Ideal

Steel Supply Corp., 547 U.S. 451, 466 (2006)

(Thomas, J., concurring in part and dissenting in

part).

14

The utter impracticality of climate change

damages litigation is underscored by the multiplicity

of industrial, agricultural, and other human and

natural sources of greenhouse gas emissions

throughout the nation and world. Liability for the

impacts of global climate change in Honolulu or any

other locale cannot be attributed to any particular

industry, corporation, individual, or other source of

greenhouse emissions. Insofar as any greenhouse

gas emitter can be held liable for causing global

climate change, then every greenhouse gas emitter

must be held liable. “Such a sprawling case is simply

beyond the limits of state law.” City of New York, 993

F.3d at 92.

C.

Regulation of greenhouse gas emissions

through state tort regulation would

undermine the comprehensive federalstate regulatory scheme

1. EPA has been regulating greenhouse gas

emissions under the Clean Air Act ever since the

Court held in Massachusetts v. EPA, 549 U.S. at 532,

that “greenhouse gases fit well within the Clean Air

Act’s capacious definition of ‘air pollutant.’”

(referring to 42 U.S.C. § 7602(g)); see AEP, 564 U.S.

at 424 (“Massachusetts made plain that emissions of

carbon dioxide qualify as air pollution subject to

regulation under the Act.”). “Responding to [the

Court’s] decision in Massachusetts, EPA undertook

greenhouse gas regulation.” Id. at 415. More

15

specifically, EPA initiated rulemakings to control

greenhouse gas emissions from motor vehicles and

stationary sources. See id. at 417; Util. Air Regul.

Grp. v. EPA, 573 U.S. 302, 310-13 (2011) (discussing

“EPA’s Greenhouse-Gas Regulations”); City of New

York, 993 F.3d at 87-88; see generally Cong. Rsch.

Serv., Clean Air Act: A Summary of the Act and Its

Major Requirements 10, 13 n.13, 19 (updated Sept.

13, 2022) (summarizing or citing certain greenhouse

gas-related provisions and programs). 7

The Court explained in AEP “[i]t is altogether

fitting that Congress designated an expert agency,

here, EPA, as best suited to serve as primary

regulator of greenhouse gas emissions.” 564 U.S. at

428. “The expert agency is surely better equipped to

do the job than individual . . . judges [who] lack the

scientific, economic, and technological resources an

agency can utilize in coping with issues of this order.”

Id.

Although “[t]he Clean Air Act is a comprehensive

statutory scheme that anoints EPA as the ‘primary

regulator’ of [domestic] greenhouse gas emissions . . .

[t]his does not mean that states are excluded from

the process.” City of New York, 993 F.3d at 99.

Instead, the Clean Air Act embodies a “cooperative

federalist approach” which vests state and local

governments with “primary responsibility for

enforcement.”

Id. (internal quotation marks

7 https://tinyurl.com/46dcmpba.

16

omitted). “The Act envisions extensive cooperation

between federal and state authorities, see [42 U.S.C.]

§ 7401(a), (b), generally permitting each State to take

the first cut at determining how best to achieve EPA

emissions standards within its domain, see

§ 7411(c)(1), (d)(1)-(2).” AEP, 564 U.S. at 428.

2. The Court held in AEP that “the Clean Air Act

and the EPA actions it authorizes displace any

federal common law right to seek abatement of

carbon-dioxide emissions from fossil-fuel fired power

plants.” 564 U.S. at 424; see City of New York, 993

F.3d at 95-96 (“In the wake of AEP, it is beyond cavil

that the Clean Air Act displaced federal common law

nuisance suits seeking to abate domestic

transboundary emissions of greenhouse gases.”).

“That Congress chose to preempt the federal common

law of nuisance with a well-defined and robust

statutory and regulatory scheme of environmental

law is by no means surprising.” Id. at 97. Nor is it

surprising that the Second Circuit, building upon

AEP and agreeing with the Ninth Circuit’s opinion in

Native Village of Kivalina v. ExxonMobil Corp., 696

F.3d 849 (9th Cir. 2012), held in City of New York

that “the City’s claims are clearly barred by the Clean

Air Act,” and “if successful, would act as a de facto

regulation on greenhouse gases.” 993 F.3d at 96.

“Congress has already spoken directly to th[at] issue

by empower[ing] the EPA to regulate [those very]

emissions.” Id. (internal quotation marks omitted).

17

This Court long has recognized that “[state]

regulation can be . . . effectively asserted through an

award of damages . . . . The obligation to pay

compensation can be, indeed is designed to be, a

potent method of governing conduct and controlling

policy.” Cipollone v. Liggett Group, Inc., 505 U.S.

504, 521 (1992) (internal quotation marks omitted).

As the Second Circuit recognized in City of New York,

if state-law climate change damages suits are

allowed to proceed, substantial damages awards

against fossil fuel producers “would effectively

regulate [their] behavior.” 993 F.3d at 92.

Rather than supplementing federal regulation

and state enforcement of greenhouse gas emissions

in a beneficial manner, multiple locally imposed

damages awards (and abatement measures) against

the same group of major fossil fuel companies would

compete with, indeed seriously undermine, the

federal-state regulatory scheme, especially as

climate change damages suits continue to proliferate.

Such suits would reflect the vagaries of individual

States’ tort regimes and the whims of local courts and

individual juries.

They likely would impose

conflicting or inconsistent tort duties, damages

awards, and remedial measures that would destroy

the national uniformity the Clean Air Act is intended

to achieve.

18

The Court explained in AEP that

[t]he appropriate amount of regulation in

any particular greenhouse gas-producing

sector cannot be prescribed in a vacuum:

as with other questions of national or

international

policy,

informed

assessment of competing interests is

required. Along with the environmental

benefit potentially achievable, our

Nation’s energy needs and the possibility

of economic disruption must weigh in the

balance.

The Clean Air Act entrusts such complex

balancing to EPA in the first instance, in

combination with state regulators.

AEP, 564 U.S. at 427 (emphasis added); cf. North

Carolina ex rel. Cooper v. TVA, 615 F.3d 291, 298 (4th

Cir. 2010) (“To say [the Clean Air Act’s] regulatory

and permitting regime is comprehensive would be an

understatement.

To say it embodies carefully

wrought compromises states the obvious.”).

Thus, “[t]o permit this suit to proceed under state

law would further risk upsetting the careful balance

that has been struck between the prevention of global

warming, a project that necessarily requires national

standards and global participation, on the one hand,

and energy production, economic growth, foreign

19

policy, and national security, on the other.” City of

New York, 993 F.3d at 93.

3. The Hawaii Supreme Court’s conclusion that

Respondents’ state common-law damages claims are

not impliedly preempted or otherwise precluded by

federal law is predicated upon the fiction that

Petitioners’ “alleged tortious conduct is not

production of emissions.”

App. 63a.

Taking

Respondents’ artfully pleaded complaint at face

value, the court’s preemption analysis is based on the

mantra (repeated throughout the court’s opinion)

that Respondents’ “claims do not seek to regulate

emissions,” id. 38a, but instead, are for Petitioners’

“alleged deceptive marketing and failure to warn

about the dangers of using their products.” Id. 63a.

According to the court, “the City’s claims do not seek

to regulate emissions, and so a claim of field

preemption in the field of emissions regulation is

inapposite.” Id. 58a. The court similarly asserted

that Petitioners’ “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.” Id.

61a. For essentially the same reason, the court

rejected Petitioners’ contention that due to the

inherently interstate nature of atmospheric

greenhouse gas pollution, federal law precludes the

application of state tort law. See id. 50a-52a.

The court’s opinion concedes that the Clean Air

Act does preempt state-law tort claims that seek to

regulate out-of-state greenhouse gas emissions. For

20

example, the court acknowledged that in

International Paper Co. v. Ouellette, 479 U.S. 481

(1987), involving the analogous Clean Water Act

(“CWA”) regulatory scheme, 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.’”

App. 62a (quoting Ouellette, 479 U.S. at 500); see also

id. 61a (acknowledging Petitioners are correct that

“the CAA does not permit States to use their state

tort law to address harms caused by emissions

occurring in other States”). “Applying affected-state

common law could potentially subject a defendantpolluter to ‘an indeterminate number of potential

regulations’ depending on how far the emission

traveled.” Id. (quoting Ouellette, 479 U.S. at 499).

The state supreme court asserted, however, that

“the rationale motivating the Ouellette court in

preempting affected-state common law claims does

not apply to [Respondents’] state tort claims

[because] the source of [their] alleged injury is not

emissions but the additional alleged torts” of

deceptive marketing and failure to warn. Id. 63a.

This analysis is wrong because it fails to recognize

the true nature and regulatory effect of Respondents’

claims. As discussed above, this suit, like many

21

others pending in state courts around the United

States, is a blatant attempt to hold Petitioners liable

for causing, or at least contributing to, global

warming and worldwide climate change.

The

“affected-state

common-law

claims,”

i.e.,

Respondents’ Hawaiian common-law claims, are

preempted because they necessarily “aris[e] from

polluting activity located outside the affected-state.”

App. 62a.

Indeed, Respondents’ complaint

repeatedly alleges that Petitioners’ alleged

“polluting activity” is global. See, e.g., Am. Compl. at

34 (referring to Petitioners’ “exacerbation of global

warming caused by their conduct as alleged herein”);

id. (alleging that Petitioners’ “contributions to the

buildup of greenhouse gases via their fossil fuel

products in the Earth’s environment are quantifiable

both individually and in the aggregate”); id. at 35

(alleging that Petitioners’ “conduct caused a

substantial

portion

of

global

atmospheric

greenhouse gas concentrations . . . and consequent

injuries to [Respondents]”); id. at 89 (alleging that

Petitioners’ “individual and collective conduct . . . is

[a] substantial factor causing global warming”).

Respondents’ additional allegations concerning

the fossil fuel industry’s supposedly deceptive

promotion and marketing do not change the fact that

this litigation is about local environmental harm

allegedly caused by global greenhouse gas pollution,

global warming, and global climate change. Nor does

Respondents’ attempt to frame their claims as run-

22

of-the-mill causes of action alter their indisputably

global nature. At the very least, this case presents

federal preclusion-of-state-law questions whose

immediate resolution is vital to the fossil fuel

industry, and in turn, to the entire nation.

CONCLUSION

The petitions for a writ of certiorari should be

granted.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, D.C. 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

March 2024