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

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, F/K/A ROYAL DUTCH

SHELL PLC, ET AL., Petitioners,

v.

CITY AND COUNTY OF HONOLULU,

HAWAII, ET AL., Respondents.

____________

On Petitions for Writs of Certiorari

to the Supreme Court of the State of Hawaii

____________

BRIEF OF WASHINGTON LEGAL

FOUNDATION AS AMICUS CURIAE

SUPPORTING PETITIONERS

____________

John M. Masslon II

Counsel of Record

Cory L. Andrews

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

April 1, 2024

QUESTION PRESENTED

Whether federal law preempts state-law claims

seeking redress for injuries allegedly caused by the

effects of interstate and international greenhouse-gas

emissions.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES ..................................... iv

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

INTRODUCTION .......................................................2

STATEMENT ..............................................................4

I.

OIL IN AMERICA ....................................................4

II. STATES AND MUNICIPALITIES IGNORE

REALITY .................................................................6

SUMMARY OF ARGUMENT.....................................7

ARGUMENT ...............................................................8

I.

THE COURT SHOULD RESOLVE THE SPLIT ON

WHETHER FEDERAL LAW PREEMPTS STATELAW CLIMATE-CHANGE CLAIMS .............................8

A. Climate-Change

Claims

Are

Governed By Federal Common Law .........9

B. Federal Legislation On Issues

Governed By Federal Common Law

Does Not Eliminate The Preemptive

Effect Of Federal Common Law ..............11

II. DECLINING TO RESOLVE THE SPLIT WILL

HAVE DEVASTATING EFFECTS ..............................18

CONCLUSION ..........................................................21

iv

TABLE OF AUTHORITIES

Page(s)

Cases

In re Air Cargo Shipping

Servs. Antitrust Litig.,

697 F.3d 154 (2d Cir. 2012) .................................16

Alexander v. Sandoval,

532 U.S. 275 (2001) ................................................9

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) .................................. 12, 14, 17

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ..................................................9

Buckman Co. v. Plaintiffs’

Legal Comm.,

531 U.S. 341 (2001) ........................................16, 17

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ....................... 12, 14, 16

City of Oakland v. BP P.L.C.,

325 F. Supp. 3d 1017

(N.D. Cal. 2018) ...................................................19

Comcast Corp. v. Nat’l Ass’n

of Afr. Am.-Owned Media,

140 S. Ct. 1009 (2020)............................................9

Cuyler v. Adams,

449 U.S. 433 (1981) ..............................................12

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) ..................................................9

Geo Grp., Inc. v. Newsom,

50 F.4th 745 (9th Cir. 2022) ................................16

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ..................................................9

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ..............................................14

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................................1

Missouri v. Illinois,

200 U.S. 496 (1906) ................................................3

Montana v. Wyoming,

563 U.S. 368 (2011) ..............................................13

In re Otter Tail Power Co.,

116 F.3d 1207 (8th Cir. 1997)..............................10

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

117 F.3d 922 (5th Cir. 1997)..........................11, 15

United States v. Smiskin,

487 F.3d 1260 (9th Cir. 2007)..............................15

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................1

Washington v. Confederated Tribes

of Colville Indian Rsrv.,

447 U.S. 134 (1980) ..............................................10

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 3 ........................................10

U.S. Const. art. I, § 10 cl. 3 .......................................12

U.S. Const. art. VI, cl. 2 ............................................15

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Statutes

18 U.S.C. § 2342 ........................................................14

49 U.S.C. § 41713(b)(4)(A) ........................................16

Pecos River Compact, ch. 184,

160 Stat. 159 (1949) .............................................12

Wash. Rev. Code § 82.24.250(1) (2007) ....................14

Other Authorities

AAA, National Average Gas Prices

(Mar. 27, 2024) .....................................................18

Aaron O’Neill, Life expectancy (from

birth) in the United States, from

1860 to 2020 (Feb. 3, 2021) ....................................2

Alan Greenspan & Adrian Wooldridge,

Capitalism in America: A History

(2018) ..............................................................4, 5, 6

Bhu Srinivasan, Americana: A 400-Year

History of American Capitalism

(2017) ..................................................................4, 5

Donald G. Gifford, Public Nuisance as a

Mass Products Liability Tort,

71 U. Cin. L. Rev. 741 (2003) ................................3

The Federalist

No. 81 ...................................................................18

No. 82 .............................................................18, 19

Felix Frankfurter & James Landis, The

Business of the Supreme Court,

38 Harv. L. Rev. 1005 (1925) ...............................19

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Francesca Chambers, With gas prices at

$5 a gallon, Biden tells oil

companies to cut costs for Americans,

USA Today (June 15, 2022) .................................18

Jeremy Hodges et al., Climate Change

Warriors’ Latest Weapon of Choice is

Litigation, Bloomberg

(May 24, 2018) ...................................................6, 7

John Majewski, How the industrial

revolution raised the quality of life

for workers and their families,

Found. Econ. Educ. (July 1, 1986) ........................2

Lincoln Davis Wilson, Flawed Federal

Jurisdiction Ruling Grants State

Court National Climate-Change

Policymaking Power, WLF LEGAL

OPINION LETTER (Mar. 25, 2022) ...........................1

Max Roser, Light, Our

World in Data (2019) .............................................5

Michael McAdams, Biden called for US

energy independence — advanced

biofuels can propel us, The Hill

(Apr. 2, 2022)..........................................................6

Nancy Yamaguchi, EIA Gasoline and

Diesel Retail Prices Update, Oct. 20,

2020, Fuel Market News

(Oct. 21, 2020) ......................................................18

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

New Report: The All-of-the-Above

Energy Strategy as a Path to

Sustainable Economic Growth, The

White House (May 29, 2014) .................................6

Peter Glaser & Lynne Rhode, Three

Federal Courts Reject Public

Nuisance As Climate Change

Control Tool, WLF LEGAL OPINION

LETTER (Nov. 16, 2007) ..........................................1

U.S. energy facts explained, U.S.

Energy Info. Admin. (Aug. 9, 2023) ......................6

1

INTEREST OF AMICUS CURIAE*

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free

enterprise, individual rights, limited government,

and the rule of law. It often appears as amicus curiae

in disputes over the regulation of greenhouse-gas

emissions. See, e.g., Util. Air Regul. Grp. v. EPA, 573

U.S. 302 (2014); Massachusetts v. EPA, 549 U.S. 497

(2007).

WLF also regularly publishes, through its

Legal Studies Division, articles by outside experts on

climate-change lawsuits. See, e.g., Lincoln Davis

Wilson, Flawed Federal Jurisdiction Ruling Grants

State Court National Climate-Change Policymaking

Power, WLF LEGAL OPINION LETTER (Mar. 25, 2022);

Peter Glaser & Lynne Rhode, Three Federal Courts

Reject Public Nuisance As Climate Change Control

Tool, WLF LEGAL OPINION LETTER (Nov. 16, 2007).

WLF does not deny the realities of climate

change. But that does not mean that States have

unlimited power to regulate greenhouse-gas

emissions. For many reasons, the question of how

America should respond to rising global temperatures

is one solely for federal policymakers. WLF thus

opposes States’ and municipalities’ efforts to regulate

global conduct based on energy companies’ activities

here and abroad.

*

No party’s counsel authored any part of this brief. No

person or entity, other than Washington Legal Foundation and

its counsel, paid for the brief’s preparation or submission. WLF

timely notified all parties of its intent to file this brief.

2

INTRODUCTION

A world that never had oil is not one that sane

people would want to live in. The standard of living

for all mankind skyrocketed when humans realized

how to harness the power of oil. See John Majewski,

How the industrial revolution raised the quality of life

for workers and their families, Found. Econ. Educ.

(July 1, 1986), https://perma.cc/L6AL-G269. Rather

than having to choose between living in overcrowded

cities or on a farm, many people now enjoy suburban

life. And rather than taking a boat across the Atlantic

for vacation or work, people can hop on a redeye flight

and make the journey overnight.

These may be mere conveniences. But other

things are matters of necessity. No longer must

farmers rely on oxen when plowing their fields. Now

they can use gas-powered tractors to help produce

more food, which leads to reduced food prices. This

innovation, of course, helps alleviate the scourge of

hunger worldwide.

Oil has also increased life expectancies in other

ways. It helped power the industrial and

technological revolutions. The resulting increased

economic activity lifted the standard of living and

allowed more spending on healthcare. The overall

effect was to almost double the life expectancy of

Americans. See Aaron O’Neill, Life expectancy (from

birth) in the United States, from 1860 to 2020 (Feb. 3,

2021), https://perma.cc/5ERD-VTL7.

Rational people are happy that we have

abundant oil at our disposal. Although prices have

fluctuated recently, there is no risk that when you go

3

to the gas station you will be unable to fill your tank.

But politicians are rarely rational. Some don’t care

that oil has made Americans’ lives better. They

believe it’s advantageous for their political careers to

press for de-development rather than allow oil to

continue playing a critical role in our nation’s

progress.

This placing of politics over sound policy

explains why, as part of their climate-change crusade,

many municipalities and States have brought publicnuisance lawsuits against oil producers. There can be

“no pretense,” however, “that there is a nuisance”

here “of the simple kind that was known to the older

common law.” Missouri v. Illinois, 200 U.S. 496, 522

(1906). These States and municipalities are not

seeking to abate the sort of “minor offenses involving

public morals or the public welfare” that publicnuisance law traditionally addressed. Donald G.

Gifford, Public Nuisance as a Mass Products Liability

Tort, 71 U. Cin. L. Rev. 741, 800-01 (2003). Rather,

they are pursuing purely political goals.

The States’ and municipalities’ lawsuits raise

legal and policy questions of national and

international import. Fifty separate sovereigns

cannot regulate untraceable emissions that travel

across state and international borders. These

petitions are thus critical both to our country’s and

our world’s future. The Court should grant review to

reaffirm that federal law governs these disputes.

4

STATEMENT

I.

OIL IN AMERICA

In the early 1800s the world was a dark place,

just as it had always been. The main source of

artificial light, candlelight, was both expensive and

weak. Candles “were also dangerous: forget to snuff

your candle and you could be incinerated in a ball of

fire.” Alan Greenspan & Adrian Wooldridge,

Capitalism in America: A History 432 (2018).

“Productivity improvements” at that time were

“limited by the speed that horses could run or ships

could sail.” Id. at 18. Even by the mid-nineteenth

century, “the country still bore the traces of the old

world of subsistence. Cities contained as many

animals as people, not just horses but also cows, pigs,

and chickens.” Id. at 91.

Then, in the second half of the 1800s, the

Industrial Revolution accelerated. Key to this

transformation was oil. America’s “rise was propelled,

in no small way, by its immense natural-resource

wealth”—“starting with oil.” Bhu Srinivasan,

Americana: A 400-Year History of American

Capitalism 151 (2017).

Oil lit the darkness. The development in the

1860s of “viable [oil] drilling technique[s]” made

“basic, cheap lighting possible for millions of

Americans.” Srinivasan at 151. “From 1880 to 1920,”

therefore, “the amount of oil refined every year

jumped from 26 million barrels to 442 million.”

Greenspan & Woodridge at 102. This led to “an

astonishing decline in the price of kerosene paid by

consumers from 1860 to 1900.” Id. “Unlike the

5

spermaceti candles of decades prior[,] * * * cheap tin

cans filled with kerosene now allowed the common

man to light his home.” Srinivasan at 161.

The United States illuminated not just itself

but also the world. Much of the kerosene Standard Oil

produced in the late nineteenth century was exported.

In Europe, light went from something precious to

something ubiquitous. In Britain, for example, the

cost of a million lumen hours of light dropped from

around £9,400 in 1800 to around £230 in 1900. Max

Roser, Light, Our World in Data (2019),

https://perma.cc/4BVV-P4QZ.

And oil provided much more than light. It

“became the nation’s primary source of energy: as

gasoline and diesel for cars, fuel oil for industry, [and]

heating oil for homes.” Greenspan & Woodridge at

102-03. This energy helped drive “America’s takeoff

into self-reinforcing [economic] growth.” Id. at 92.

Economic growth, in turn, opened the way for better

lives for millions of people. Oil enabled Americans to

“live in far-flung suburbs because filling their cars

was cheap.” Id. at 103. It empowered average people

to leave multi-tenant buildings and move into their

own houses, to “choose space over proximity.” Id.

“More than any other country,” in short,

“America was built on cheap oil.” Greenspan &

Wooldridge at 103. Oil “laid the foundations of the age

of the common man: an age in which almost every

aspect of life for ordinary people became massively—

and sometimes unrecognizably—better.” Id. at 427.

The United States remains a leading innovator

of oil and natural gas production. In the development

6

of fracking, for instance, the “oil industry saw one of

the most surprising revolutions of the second half of

the twentieth century.” Greenspan & Wooldridge at

356-57. “Shale beds now produce more than half of

America’s natural gas and oil * * * compared with just

1 percent in 2000.” Id. at 357. Thanks to fracking, the

United States recently became a net energy exporter

for the first time in more than sixty years. U.S. energy

facts explained, U.S. Energy Info. Admin. (Aug. 9,

2023), https://perma.cc/ZK6Z-G7VA.

President Biden agrees “that the U.S. needs to

be energy independent.” Michael McAdams, Biden

called for US energy independence — advanced

biofuels can propel us, The Hill (Apr. 2, 2022),

https://perma.cc/XQQ3-8BTM. The modern oil and

natural-gas renaissance has therefore enjoyed

bipartisan political support. A report issued by

President Obama’s administration, for example,

applauded the fact that the recent increase in oil and

natural-gas production has “made a significant

contribution to GDP growth and job creation.” New

Report: The All-of-the-Above Energy Strategy as a

Path to Sustainable Economic Growth, The White

House (May 29, 2014), https://perma.cc/KR8M-2NYN.

“Increased domestic oil production,” the report noted,

“reduce[s] the vulnerability of the U.S. economy to oil

price shocks stemming from international supply

disruptions.” Id.

II.

STATES

AND

REALITY

MUNICIPALITIES

IGNORE

In 2017, many state and municipal

governments sued energy companies in state court.

See Jeremy Hodges et al., Climate Change Warriors’

7

Latest Weapon of Choice is Litigation, Bloomberg

(May 24, 2018), https://bloom.bg/3fczCz8. Those suits

alleged that the defendant energy companies

contributed to global warming by extracting,

producing, and selling fossil fuels. See, e.g., id.

Although energy companies provided vast benefits to

these States and municipalities and their citizens, the

governments decided it was time to pounce.

Inspired by this flood of lawsuits, in 2020

Honolulu sued energy companies in Hawaii state

court. Honolulu claims the energy companies

contributed to climate change by producing,

promoting, and (misleadingly) marketing fossil fuel

products after their dangers became apparent.

The energy companies removed the suit to the

District of Hawaii, but the case was later remanded

to state court. On remand, the Hawaii state courts

held that Honolulu’s claims were not preempted by

federal law. The energy companies now ask this Court

to resolve an issue that the circuit court called

“unprecedented [] for any court, let alone a state [trial

court].” Sunoco Pet. App. 74a; Shell Pet. App. 85a.

SUMMARY OF ARGUMENT

I.A. For the past century, federal common law

has continued to shrink. But that does not mean it is

a dead letter. Several issues are governed by active

federal common law. Three examples are interstate

water disputes, tribal sovereignty, and lost airline

cargo. This case involves a fourth area of federal

common law—interstate and international air

emissions. These four issues share many similarities.

8

It thus makes sense to categorize Honolulu’s claims

as arising under federal common law.

B. Congress has eliminated any federal

common-law cause of action for interstate

greenhouse-gas emissions. But that does not mean

that the federal common law governing interstate and

international greenhouse-gas emissions lost its

preemptive effect. Congress often passes laws that

limit or expand recovery for causes of action governed

by federal common law. The common law, however,

still preempts state claims related to those issues.

II. These cases are immensely important for

our nation’s economy and the well-being of all

Americans. If the Hawaii Supreme Court’s decision

stands, dozens of lawsuits from around the country

will proceed in state courts. The potential for massive

liability could cause oil companies to exit the

American market. Or the price of oil products could

spike. Either way, all Americans will be worse off if

the Court denies review.

ARGUMENT

I.

THE COURT SHOULD RESOLVE THE SPLIT ON

WHETHER FEDERAL LAW PREEMPTS STATELAW CLIMATE-CHANGE CLAIMS.

As described in the petitions, the Hawaii

Supreme Court’s decision deepens an acknowledged

split on an important question: Does federal law

preempt state-law claims alleging cross-border

pollution from greenhouse gases? This Court should

grant the petitions to resolve this vital question.

9

A.

Climate-Change

Claims

Are

Governed By Federal Common Law.

1. Since Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938), the role of federal common law has been

restricted. See Comcast Corp. v. Nat’l Ass’n of Afr.

Am.-Owned Media, 140 S. Ct. 1009, 1015 (2020)

(citing Alexander v. Sandoval, 532 U.S. 275, 286-87

(2001)). Rather than the province of the federal

courts, common law now is generally left to state

courts.

But that does not mean that federal common

law no longer exists. Several issues are still governed

by federal common law. For example, this Court has

created a federal common law governing interstate

water disputes. See Arkansas v. Oklahoma, 503 U.S.

91, 98-99 (1992); Illinois v. City of Milwaukee, 406

U.S. 91, 106 (1972). The federal resolution of

interstate water disputes makes sense. It would be

illogical to have Texas common law govern the State’s

water disputes with Oklahoma. The Texas courts

would create rules to ensure victory over Oklahoma.

The same is true of Oklahoma courts applying

Oklahoma law.

Another factor that makes federal common law

appropriate for interstate water disputes is that it is

impossible to link water that flows between two

States to only one of those States. For example, water

from Texas and Oklahoma flows into the Red River

from both tributaries and runoff. Deciding how much

10

water each State is entitled to thus cannot be

governed by state law.

The same is true for air pollution. When carbon

dioxide enters the atmosphere from a power plant in

West Virginia, it is impossible to track every molecule

to see if it is resting above Honolulu and increasing

temperatures there. So too for gasoline used to power

cars in Fiji or Canada. It makes no sense to have one

State’s common law govern emissions that emanate

from across state or international borders. Yet that is

the approach the Hawaii Supreme Court blessed here.

In its view, just because Honolulu framed this case as

one arising under state common law, state law

controls.

2. Federal common law also governs certain

Indian issues. For example, questions about “inherent

tribal sovereignty” are governed by federal common

law. See In re Otter Tail Power Co., 116 F.3d 1207,

1214 (8th Cir. 1997). This makes sense because “tribal

sovereignty is dependent on, and subordinate to, only

the Federal Government, not the States.” Washington

v. Confederated Tribes of Colville Indian Rsrv., 447

U.S. 134, 154 (1980). In other words, States lack

power over tribal governance. See U.S. Const. art. I,

§ 8, cl. 3.

A similar situation is present here. Besides

having sole authority to regulate tribal governance,

the federal government also has sole power to

regulate interstate and international commerce. See

U.S. Const. art. I, § 8, cl. 3. It makes no sense to have

state common law govern an area of law the

11

Constitution assigns to Congress. But that is what the

Hawaii Supreme Court’s decision here permits.

3. Both rationales above support applying

federal common law to lost airline shipments. See

Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922,

929 (5th Cir. 1997). When shipments are lost during

an interstate flight, you don’t know if the loss

occurred in the State of departure, the State of

arrival, or somewhere in between. So the Constitution

gives the federal government power to regulate this

type of commerce.

As described above, there are two reasons that

federal common law governs some claims—a

constitutional grant of power and the lack of a

practical way for state law to decide a dispute. Both

reasons apply here. First, air pollution does not

recognize state and international borders. Second, the

Constitution grants the federal government the sole

power to regulate interstate and international

commerce. Thus, like these other issues, federal

common law governs Honolulu’s claims, and state-law

claims are preempted by the federal common law. The

Hawaii Supreme Court’s contrary holding is wrong.

B.

Federal Legislation On Issues

Governed By Federal Common Law

Does Not Eliminate The Preemptive

Effect Of Federal Common Law.

The Hawaii Supreme Court held that federal

common law does not preempt state-law claims

seeking damages for interstate and international

greenhouse-gas emissions because the Clean Air Act

displaced federal common law. True, the CAA

12

eliminated federal common-law causes of action

otherwise available for interstate pollution. See Am.

Elec. Power Co. v. Connecticut, 564 U.S. 410, 424

(2011). But Honolulu’s argument still fails for two

reasons. First, even when Congress enacts legislation

displacing federal common-law claims, that does not

extinguish the preemptive effect of the federal

common law. See City of New York v. Chevron Corp.,

993 F.3d 81, 98 (2d Cir. 2021) (“[S]tate law does not

suddenly become presumptively competent to address

issues that demand a unified federal standard simply

because Congress saw fit to displace a federal courtmade standard with a legislative one.”). Second, the

CAA itself evidences Congress’s intent to preempt all

state-law claims not expressly allowed by the CAA.

Either of these reasons is enough to reverse the

Hawaii Supreme Court’s decision. Combined, they

underscore the political nature of the lower court’s

decision.

1.i.a. States may not, “without the Consent of

Congress * * * enter into any Agreement or Compact

with another State, or with a foreign Power.” U.S.

Const. art. I, § 10 cl. 3. “[C]ongressional consent

transforms an interstate compact within this Clause

into a law of the United States.” Cuyler v. Adams, 449

U.S. 433, 438 (1981) (citations omitted). These

compacts often deal with interstate water rights. See

generally, e.g., Pecos River Compact, ch. 184, 160

Stat. 159 (1949).

Although compacts become federal statutory

law (not common law) after their passage, the Court

has not recognized state-law causes of action because

of the displacement of the federal common law.

Rather, the Court has faithfully applied the compacts’

13

terms. When necessary to resolve an issue where the

compacts are silent, the Court turns to federal

common law.

The Court’s decision in Montana v. Wyoming,

563 U.S. 368 (2011) is instructive. There, the compact

directed that the Court should use “principles of

apportionment doctrine.” Id. at 377 n.5. The Court,

however, did not look to only Montana law, only

Wyoming law, or only another State’s laws when

deciding the case. Rather, the Court looked to

Wyoming law, Montana law, and “Western water law

more generally.” Id. at 375 n.4. This makes sense.

What would not make sense is for the Court to have

looked at only Wyoming law or only Montana law. As

discussed above, that would give one party an unfair

advantage over the other.

Yet that is what the Hawaii Supreme Court’s

decision here allows. Rather than look to the federal

common law, it looked to one State’s—its own—

common law. Neither Honolulu nor the Hawaii

Supreme Court cite a case in which this Court applied

one State’s common law after Congress ratified an

interstate water compact. And for good reason. The

federal common law preempts state laws on interstate

water issues, even when interstate water compacts

exist.

b. Besides interstate water compacts, Congress

also enacted the Clean Water Act. After the CWA’s

enactment, some citizens sued a company under

Vermont state law arguing that the company engaged

in a nuisance because of its water pollution. This

Court held that the plaintiffs’ claims were preempted

to the extent that they alleged interstate pollution. As

14

the Court explained, the CWA’s “pervasive

regulation” of water pollution, “and the fact that the

control of interstate pollution is primarily a matter of

federal law,” means that “the only state suits that

remain available are those specifically preserved by

the [CWA].” Int’l Paper Co. v. Ouellette, 479 U.S. 481,

492 (1987).

The same is true of the CAA. Under the CAA,

the Environmental Protection Agency is the “primary

regulator of [domestic] greenhouse gas emissions.”

Am. Elec. Power, 564 U.S. at 428. Of course, no CAA

provision gives States or localities the power to

regulate

interstate greenhouse-gas

emissions

through common-law suits. Rather, “the issues raised

in this dispute concerning domestic emissions are

squarely addressed by the” CAA’s grant of power to

the EPA. City of New York, 993 F.3d at 98. Because

the CAA and EPA do not “authorize the City’s statelaw claims,” the “claims concerning domestic

emissions are” preempted. Id. at 100.

ii. Like most States, Washington regulates the

transportation of cigarettes. See Wash. Rev. Code

§ 82.24.250(1) (2007). That law made it a crime for

most people to transport unstamped cigarettes. See

id. Congress also enacted a law dealing with the same

subject. Under that provision, a large enough

violation of Washington law also was a federal crime.

See 18 U.S.C. § 2342.

Still, the Washington statute could not be

applied against certain Indians. Even with the

passage of the federal statute touching on the same

subject, the Ninth Circuit explained that the federal

common law of interstate transportation for Indians

15

preempted the Washington statute. See United States

v. Smiskin, 487 F.3d 1260, 1269-72 (9th Cir. 2007). As

the court said, Congress has the ability under the

Constitution to give States like Washington the power

to regulate Indians’ transit on its highways. Id. at

1271. But Congress had not taken that step when the

Smiskin defendants’ conduct occurred. So the federal

common law preempted Washington state law.

This case presents a similar situation despite

Smiskin involving treaty-based federal common law

while this case deals with federal common law arising

from the Constitution’s structure. Under the

Supremacy Clause, the “Constitution * * * and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land.” U.S. Const. art. VI, cl. 2. So in

either scenario, the federal common law preempts

state-law actions when Congress has not given States

power to regulate in that area.

Congress has given States limited power to

regulate air emissions. That was a conscious decision

that left the preemptive effect of federal common law

in place today. State-law actions like Honolulu’s are

thus preempted and the Hawaii Supreme Court erred

in holding otherwise.

iii. Before the turn of the last century, “the

liability of common carriers was dictated by federal

and state common law.” Sam L. Majors Jewelers, 117

F.3d at 926 (footnote omitted). But in 1906, Congress

decided that federal common law should govern such

claims. See id. at 926 n.5 (citation omitted). In the

1970s, Congress deregulated the airline industry.

This deregulation abrogated many federal causes of

16

action but kept other “remedies [then] existing at

common law or by statute.” In re Air Cargo Shipping

Servs. Antitrust Litig., 697 F.3d 154, 160 (2d Cir.

2012) (quotation omitted).

While keeping remedies then existing at

common law or by statute, Congress still barred

States from regulating airlines’ rates, routes, or

services. 49 U.S.C. § 41713(b)(4)(A). In short,

Congress decided that federal common law should

govern disputes over cargo lost or damaged on

interstate flights. So although Congress gave States

some power over airlines, it decided that they should

not regulate interstate shipments by airplane.

Congress made a similar decision here. In the

CAA, Congress gave States some power to regulate

greenhouse-gas emissions within their borders. What

Congress did not do, however, was extend that power

to regulation of interstate or international

greenhouse-gas emissions. Cf. City of New York, 993

F.3d at 95 (“[T]he Clean Air Act does not regulate

foreign emissions. So the City’s claims concerning

those emissions still require us to apply federal

common law.”). Yet that is how the Hawaii Supreme

Court read the CAA. This erroneous reading deserves

the Court’s attention now.

2. Even absent federal common law, the CAA

preempts state-law claims related to interstate

greenhouse-gas emissions. Preliminarily, this “Court

has indicated that the presumption [against

preemption] does not apply when a state law would

interfere with inherently federal” matters. Geo Grp.,

Inc. v. Newsom, 50 F.4th 745, 761 (9th Cir. 2022) (en

banc) (citing Buckman Co. v. Plaintiffs’ Legal Comm.,

17

531 U.S. 341, 347 (2001)). So this Court just looks to

whether the text, structure, and history of the CAA

suggests that it preempts state-law claims about

interstate

and

international

greenhouse-gas

emissions. It does.

This Court’s decision in American Electric

Power is illustrative. There, the Court examined the

text, structure, and history of the CAA. Ultimately, it

declined to decide whether plaintiffs could sue under

“the law of each State where the defendants operate

powerplants.” Am. Elec. Power, 564 U.S. at 429. The

Court’s choice of words shows that the CAA preempts

state-law claims like those here.

The key phrase in American Electric Power is

“where the defendants operate powerplants.” 564 U.S.

at 429. This means that the Court reserved the

question of whether a common-law suit under

Montana law may be filed in Montana state court for

emissions that occurred in Montana. What the Court

did not reserve is whether a common-law suit under

Montana law may be filed in Montana state court for

emissions that occurred in Mississippi or Vanuatu.

Such a suit for emissions that occurred in another

State or in a foreign country is preempted by the CAA.

As only Congress may regulate interstate and

international greenhouse-gas emissions, the Hawaii

Supreme Court’s contrary decision warrants this

Court’s review.

II.

DECLINING TO RESOLVE THE SPLIT WILL

HAVE DEVASTATING EFFECTS.

The signs above gas stations tell a sobering

story. In October 2020, regular gasoline averaged

18

$2.17 per gallon nationwide. Nancy Yamaguchi, EIA

Gasoline and Diesel Retail Prices Update, Oct. 20,

2020, Fuel Market News (Oct. 21, 2020),

https://perma.cc/LU5S-YJH3. Now, gas is $4.71 per

gallon in Hawaii. AAA, National Average Gas Prices

(Mar. 27, 2024), https://perma.cc/VMG5-LW65.

This helps explain why President Biden has

asked the energy companies to sell their product

below cost. See Francesca Chambers, With gas prices

at $5 a gallon, Biden tells oil companies to cut costs

for Americans, USA Today (June 15, 2022),

https://perma.cc/X9X2-HSAK. If this Court denies

review, there is little chance that gas prices will go

down anytime soon. Rather, consumers should be

prepared to fork over even more money when they fill

their tanks to get to work.

Orders denying certiorari would send the

wrong message to federal and state courts around the

nation: Federal law does not preempt state-law claims

about greenhouse-gas emissions. There is a reason

that Honolulu is fighting to litigate this case under

state law rather than federal law. It understands that

bringing state-law claims in state court gives it an

unfair advantage over the energy companies.

“State judges, holding their offices during

pleasure, or from year to year, [are] too little

independent to be relied upon for an inflexible

execution of the national laws.” The Federalist No. 81,

486 (Alexander Hamilton) (Clinton Rossiter ed. 1961).

And “some of the most important and avowed

purposes of” our federal government would disappear

if “the judiciary authority of the Union may be eluded

at the pleasure of every plaintiff or prosecutor.” The

19

Federalist No. 82 at 494 (Alexander Hamilton); see

Felix Frankfurter & James Landis, The Business of

the Supreme Court, 38 Harv. L. Rev. 1005, 1014

(1925) (federal law is necessary to protect “against the

obstructions and prejudices of local authorities”).

Imagine a politically vulnerable state court

judge who has the power to make “Big Oil” pay

billions of dollars to Honolulu. Taxpayers would see

lower taxes and more amenities. And most taxpayers

are voters. So the state court judges are not motivated

to faithfully apply basic legal principles.

The pressure is even stronger given the

number and variety of similar suits around the

country. Each of these suits seeks billions of dollars

for harm that cannot be traced to one actor—much

less one actor in one jurisdiction. A few outsized,

unsupported verdicts for States or municipalities

could undermine energy companies’ businesses. Were

that to happen, Americans could forget driving to the

beach for July 4th or flying to Europe for vacation.

But even if energy companies continued operations,

the effects will be felt by all Americans. Some energy

companies may back out of selling oil products in

America. Again, that would cause America’s energy

gains to reverse as it falls behind countries like China

and India that allow unlimited emissions. Cf. City of

Oakland v. BP P.L.C., 325 F. Supp. 3d 1017, 1023

(N.D. Cal. 2018), vacated, 969 F.3d 895 (9th Cir. 2020)

(“[O]ur industrial revolution and the development of

our modern world has literally been fueled by oil and

coal. Without those fuels, virtually all of our

monumental progress would have been impossible.

All of us have benefitted.”).

20

If energy companies don’t leave the country,

consumers will still feel the effects of an explosion in

state-court climate litigation. It may cost $200 to fill

a tank with gas once the energy companies factor in

uncapped state-law liability for their actions around

the world. Again, there is no limit to the potential

damages that state courts could award if this Court

does not grant review and reverse the Hawaii

Supreme Court’s decision.

*

*

*

The petitions advance slightly different

arguments for why federal law preempts state-law

claims over interstate greenhouse-gas emissions. But

whether it be federal common law, the CAA, the

Constitution’s structure, or a combination thereof,

Honolulu’s state-law claims are preempted by federal

law. The Hawaii Supreme Court’s contrary decision

directly conflicts with the Second Circuit’s decision on

the same question. This Court should not allow that

conflict to persist. Rather, it should grant the

petitions and resolve the split now.

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CONCLUSION

This Court should grant the petitions.

Respectfully submitted,

John M. Masslon II

Counsel of Record

Cory L. Andrews

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

jmasslon@wlf.org

April 1, 2024