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.,

v.

Petitioners,

CITY AND COUNTY OF HONOLULU, HAWAII, ET AL.

Respondents.

______________________

SHELL PLC, FKA ROYAL DUTCH SHELL PLC, ET AL.,

Petitioners,

v.

CITY AND COUNTY OF HONOLULU, HAWAII, ET AL.

Respondents.

______________________

BRIEF OF AMICUS CURIAE THE NATIONAL

ASSOCIATION OF MANUFACTURERS

IN SUPPORT OF PETITIONERS

_______________

On Petitions for a Writ of Certiorari

to the Supreme Court of Hawaii

_______________

Erica Klenicki

Michael A. Tilghman II

THE NAM LEGAL CENTER

733 10th Street, N.W.

Suite 700

Washington, D.C. 20001

April 1, 2024

Philip S. Goldberg

Counsel of Record

SHOOK, HARDY &

BACON L.L.P.

1800 K Street, N.W., 1000

Washington, D.C. 20006

(202) 783-8400

pgoldberg@shb.com

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND

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

ARGUMENT .......................................................... 6

I.

THE COURT SHOULD NOT ALLOW

STATES TO CIRCUMVENT ITS

RULING IN AMERICAN ELECTRIC

POWER THAT CLIMATE CHANGE

CLAIMS INVOKE A “SPECIAL

FEDERL INTEREST” ............................... 6

II. THE LOWER COURT’S RULING

PROVIDES A PLAYBOOK FOR

PEOPLE SEEKING TO ABROGATE

THIS COURT’S AUTHORITY .................. 10

III. MERELY PASTING STATE LAW

LABELS ON FEDERAL LAW CLAIMS

SHOULD NOT BE A MEANS FOR

USURPING FEDERAL AUTHORITY ...... 15

IV. THE COURT SHOULD AFFIRM THAT

CLAIMS ALLEGING HARM FROM

GLOBAL CLIMATE CHANGE RAISE

UNIQUELY FEDERAL INTERESTS....... 19

CONCLUSION ....................................................... 24

ii

TABLE OF AUTHORITIES

Cases

Page

American Electric Power Co. v. Connecticut,

564 U.S. 410 (2011)................................ 2, 4, 6, 7, 8

City and County of Honolulu v. Sunoco,

537 P.3d 1173 (Haw. 2023) .............................. 4, 11

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ................. 4, 5, 9, 16, 19

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

325 F. Supp. 3d 1017 (N.D. Cal. 2018) ........... 4, 17

Comer v. Murphy Oil USA, Inc.,

718 F.3d 460 (5th Cir. 2013) ............................. 3, 8

Delaware ex rel. Jennings v. BP America

Inc., 2024 WL 98888 (Del. Super. Ct.

Jan. 9, 2024) ........................................................ 21

Illinois v. City of Milwaukee,

406 U.S. 91 (1972).................................................. 6

Minnesota v. American Petroleum Inst.,

63 F.4th 703 (8th Cir. 2022) .......................... 13, 17

Native Village of Kivalina v. ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) ......................... 3, 8, 9

United States v. Standard Oil Co. of Cal.,

332 U.S. 301 (1947)................................................ 7

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007).............................................. 18

iii

West Virginia v. Environmental Prot. Agency,

142 S. Ct. 2587 (2022)............................................ 3

Other Authorities

Amicus Brief of Indiana and Fourteen Other

States in Support of Dismissal, City of Oakland v. BP (9th Cir. filed April 19, 2018) ............ 21

Brief for the Tennessee Valley Authority,

American Electric Power Co. v. Connecticut

(filed Jan. 31, 2011) ............................................. 16

California v. ExxonMobil Corp., No. CGC-23609134, Not. of Entry of Order Granting Pet.

for Coordination (Cal. Super. Feb. 07, 2024) ...... 16

Julia Caulfield, Local Lawsuits Asks Oil and

Gas to Help Pay for Climate Change,

KOTO, Dec. 14, 2020 ........................................... 12

Brett Chase, Chicago Sues Five Giant Oil Companies, Accusing Them of Climate Change Destruction, Fraud, Chicago Sun-Times, Feb. 20,

2024 ...................................................................... 23

City of Hoboken Press Release, Hoboken Becomes

First NJ City to Sue Big Oil Companies, American Petroleum Institute for Climate Change

Damages, Sept. 2, 2020 ....................................... 13

Lesley Clark, Why Oil Companies Are Worried

About Climate Lawsuits From Gas States,

E&E News, Nov. 7, 2023 ..................................... 14

iv

Zack Colman & Ben Lefebvre, Biden To Tap Oil

Reserves, Press Oil Sector To Hike Production,

Politico, Mar. 31, 2022 ......................................... 20

Brooks Dubose, Annapolis Sues 26 Oil

and Gas Companies for their Role in

Contributing to Climate Change,

Cap. Gazette, Feb. 23, 2021 ................................ 18

Editorial, Climate Lawsuits Take a Hit,

Wall St. J., May 17, 2021 .................................... 15

Ross Eisenberg, Forget the Green New Deal. Let’s

Get to Work on a Real Climate Bill, Politico,

Mar. 27, 2019 ....................................................... 23

Editorial, Multnomah County’s Lawsuit

Filing Does Not Count as Governance,

The Oregonian, June 25, 2023 ............................ 22

Entire January Meeting Agenda at Rockefeller

Family Foundation, Washington Free Beacon,

Apr. 2016, at https://freebeacon.com/wpcontent/uploads/2016/04/Entire-Januarymeeting-agenda-at-RFF-1-1.pdf .......................... 11

Establishing Accountability for Climate Damages:

Lessons from Tobacco Control, Summary of the

Workshop on Climate Accountability, Public

Opinion, and Legal Strategies, Union of

Concerned Scientists & Climate Accountability

Inst. (Oct. 2012) ................................................... 10

Ryan Fonseca, California Is Suing Big Oil,

Accusing Them of Climate Change ‘Deception,’

L.A. Times, Sept. 18, 2023................................... 22

v

Minnesota is Suing Climate Polluters: Why,

How and What’s Next?, Fresh Energy,

July 1, 2020 .......................................................... 14

Jennifer Hijazi, Oil Giants Fight Climate

Deception Suit at Hawaii Supreme Court,

Bloomberg Law, Aug. 18, 2023............................ 20

Kirk Herbertson, Oil Companies vs. Citizens:

The Battle Begins Over Who Will Pay

Climate Costs, EarthRights, Mar. 21, 2018 ........ 12

Clifford Krauss, As Western Oil Giants Cut

Production, State-Owned Companies Step

Up, N.Y. Times, Oct. 14, 2021 ............................. 19

Beyond the Courtroom, Manufacturers’

Accountability Project, at

https://mfgaccountability project.org/beyond-the-courtroom............................. 14

Robert Moran, Bucks County Sues Big Oil

Companies for Severe Weather Blamed

on Climate Change, The Philadelphia

Inquirer, Mar. 25, 2024 ....................................... 23

John O’Brien, Minnesota AG Sued for Info

on Employees Who Are Climate Change

Activists Paid by Bloomberg, Legal

Newsline, July 14, 2020....................................... 15

Dawn Reeves, As Climate Suits Keeps Issue

Alive, Nuisance Cases Reach Key Venue

Rulings, Inside EPA, Jan. 6, 2020 ...................... 13

vi

Jerry Taylor & David Bookbinder, Oil Companies

Should be Held Accountable for Climate

Change, Niskanen Center, Apr. 17, 2018 ........... 13

Media Advisory: UH Law School Is Co-organizer

of Climate Change Event at State Capitol, May

2, 2019 .................................................................. 15

Michael Thulen, Why Hoboken’s Climate

Change Lawsuit Is Bad for New Jersey,

NJBiz, Oct. 11, 2021 ............................................ 22

INTEREST OF AMICUS CURIAE1

Amicus curiae is the National Association of

Manufacturers (“NAM”). The NAM is the largest

manufacturing association in the United States, representing small and large manufacturers in every

industrial sector and in all 50 states. Manufacturing

employs 13 million men and women, contributes

$2.85 trillion to the U.S. economy annually, has the

largest economic impact of any major sector, and accounts for more than half of all private-sector research and development in the nation. The NAM is

the voice of the manufacturing community and the

leading advocate for a policy agenda that helps manufacturers compete in the global economy and create

jobs across the United States.

The NAM is dedicated to manufacturing safe, innovative and sustainable products that provide essential benefits to consumers while protecting human health and the environment. Climate change is

one of the most important public policy issues of our

time, and the NAM fully supports national efforts to

address climate change and improve public health

through appropriate laws and regulations. Developing new technologies to reduce greenhouse gas emissions, make energy more efficient, and modify infrastructures to deal with the impacts of climate change

has become an international imperative.

1 Pursuant to Rule 37.6, counsel for amicus curiae certifies that

this brief was not authored in whole or in part by counsel for

any party and that no person or entity, other than amicus curiae, its members, or its counsel made a monetary contribution to

the preparation or submission of the brief. The parties received

timely notice of the intent of amicus curiae to file this brief.

2

The NAM has grave concerns about this attempt

to impose liability over sales of lawful, beneficial energy products essential to modern life through state

law. As the Court found in American Electric Power

Co. v. Connecticut, 564 U.S. 410 (2011), climate litigation plainly implicates federal law and complex

policymaking. State law claims, no matter how artfully pleaded, against the energy sector cannot

achieve these goals and are not the appropriate vehicles to decide these critical national issues. For these

reasons, the NAM has a substantial interest in attempts by Respondent and local governments to subject some of its members to unprincipled state liability for harms associated with climate change and

impose these costs on American manufactures generally, particularly when doing so will not meaningfully address climate change and will harm their

ability to compete in the international marketplace.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case is part of a coordinated, national litigation campaign over global climate change and an unapologetic effort to invoke illusory state law claims to

circumvent this Court’s ruling in American Electric

Power Co. v. Connecticut, 564 U.S. 410 (2011) (hereafter “AEP”). In AEP, the Court addressed an earlier

wave of this litigation, holding unanimously that the

litigation over the impact of greenhouse gas (GHG)

emissions on the climate sound in the federal common law and Congress displaced such claims when it

enacted the Clean Air Act. See id. at 424. The Ninth

and Fifth Circuits then dismissed the climate suits

pending in their courts, which were brought under

federal and state law, respectively. See Native Vil-

3

lage of Kivalina v. ExxonMobil Corp., 696 F.3d 849

(9th Cir. 2012) and Comer v. Murphy Oil USA, Inc.,

718 F.3d 460 (5th Cir. 2013). The law was settled.2

As this brief will show, strategists behind this litigation campaign developed the state law theories in

this lawsuit in an effort to deliberately circumvent

this Court’s ruling in AEP. The lawyers involved said

they were looking for ways to re-package the litigation so their lawsuits would achieve comparable national GHG emission goals as in AEP, but would appeal to parochial interests of state courts by invoking

state law and seeking money for local constituencies.

So, they re-cast the federal public nuisance claims

against utilities in AEP, as state law public nuisance

and other state claims against energy manufacturers

along with others in the chain of commerce to defeat

diversity removal to federal courts. Since 2017, some

thirty of these suits have been filed in carefully chosen state and local jurisdictions around the country.

However, the state law packaging for these claims

is solely a veneer; the allegations they raise sound in

federal, not state law. For example, the lawsuits invoke state public nuisance theory and consumer protection acts, but the vast majority of conditions, actions and statements they claim violate their state’s

law exist or occurred outside of their borders. The

actions and conditions Honolulu alleges caused their

harm—the extraction, production, promotion, marketing and sale of energy and worldwide GHG emissions—are not subject to Hawaii law. As this Court

established in AEP, these matters are of national

2 The Court reaffirmed AEP in West Virginia v. Environmental

Prot. Agency. See 142 S. Ct. 2587, 2613 (2022); see also id. at

2636 (Kagan, J., dissenting).

4

and international scope and, thus, are “meet for federal law governance.” AEP, 564 U.S. at 422.

On the few occasions where federal courts have

reached the substance of these claims, they have

properly applied AEP and concluded that the claims

arise under federal law. See City of New York v.

Chevron Corp., 993 F.3d 81, 91 (2d Cir. 2021); City of

Oakland v. BP P.L.C., 325 F. Supp. 3d 1017 (N.D.

Cal. 2018) (vacated pursuant to an order to remand

the case to state court, see 960 F.3d 570 (9th Cir.

2020)). As the Second Circuit stated, the lawsuits

seek to subject a handful of energy companies to

state liability “for the effects of emissions made

around the globe over the past several hundred

years.” City of New York, 993 F.3d at 92. It concluded

this type of “sprawling case is simply beyond the limits” of state liability law, id., echoing the Court’s sentiment in AEP that climate litigation raises special

“federal interests.” Id. at 91. It stated these attempts

at “[a]rtful pleading cannot transform the City’s

complaint into anything other than a suit over global

greenhouse gas emissions.” Id.

The Hawaii Supreme Court’s ruling that Honolulu could pursue its climate change claims under state

law directly conflicts with this federal jurisprudence.

First, the ruling does not distinguish between acts

occurring in Honolulu and those in other states and

foreign countries. See City and County of Honolulu v.

Sunoco, 537 P.3d 1173 (Haw. 2023). Second, it states

even if federal law governs interstate and international emissions, Hawaii law could govern promotional and other activities around the world that

Honolulu alleges led to some of those emissions. See

id. at 1196. And third, it held that federal case law

5

no longer governs interstate GHG emissions because

Congress displaced the federal common law in this

area by delegating authority over interstate GHG

emissions to the Environmental Protection Agency in

the Clean Air Act. See id. at 1181. As a result, under

the Hawaii Supreme Court’s ruling, any state can

impose its own liability law over acts leading to GHG

emissions occurring in other states and countries.

Each of these conclusions creates a split with the

Second Circuit’s ruling in City of New York and runs

afoul of this Court’s ruling in AEP. In particular, the

Second Circuit called the notion that state claims

over interstate GHG emissions suddenly became viable when Congress spoke to the federal law questions

at issue “too strange to seriously contemplate.” City

of New York, 993 F.3d at 98-99. Allowing these

claims to proceed would also flout this Court’s sentiment in AEP that it is “fitting that Congress designated an expert agency, here, EPA, as best suited to

serve as primary regulator” of GHGs and that regulating these activities through “ad hoc, case-by-case”

judicial rulings would be inappropriate. 546 U.S. at

428. As indicated, there are some thirty lawsuits

around the country where local and state governments are seeking to impose their various states’

laws to interstate and international GHG emissions,

as well as to predicate acts far outside their borders.

In addition, the ruling below creates a playbook

for using state courts to usurp federal law on climate

change and many other federal issues. The exclusive

federal nature of climate policy has been on display

in recent years. State law rulings making the production, sale, promotion and use of oil and gas a liability-inducing event for the American, Canadian,

6

and European energy companies in these cases

would directly contradict the federal government’s

efforts to encourage an increase in such fuel production to reduce costs and enhance America’s and Europe’s energy security given recent global conflicts.

For these reasons, as discussed in more detail below, amicus respectfully requests that the Court

grant the Petition and ultimately determine that the

state law claims asserted below are not viable.

ARGUMENT

I.

THE COURT SHOULD NOT ALLOW

STATES TO CIRCUMVENT ITS RULING

IN AMERICAN ELECTRIC POWER THAT

CLIMATE CHANGE CLAIMS INVOKE A

“SPECIAL FEDERAL INTEREST”

The Court should grant the Petition so that state

courts cannot skirt this Court’s jurisprudence by

masking federal law issues with a state law veneer.

In AEP, this Court made it clear that climate litigation raises issues of “special federal interest.” AEP,

564 U.S. at 424. The Court explained that federal

common law addresses subjects “where the basic

scheme of the Constitution so demands,” including

“air and water in their ambient or interstate aspects.” Id. at 422 (quoting Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972)). This rule of law applies

to the claims here in equal force as it did in AEP.

The factual foundation in AEP is the exact same

as here: global climate change is caused by GHG

emissions “naturally present in the atmosphere

and . . . emitted by human activities,” including the

use of fossil fuels all over the world. Id. at 416. GHG

emissions from fossil fuels have combined with other

7

global sources of GHGs and have accumulated in the

earth’s atmosphere for more than a century since the

industrial revolution and are creating impacts on the

earth. “By contributing to global warming, the plaintiffs asserted, the defendants’ carbon-dioxide emissions created a ‘substantial and unreasonable interference with public rights,’ in violation of the federal

common law of interstate nuisance, or in the alternative, of state tort law.” Id. at 418. Here, the allegations are also that Petitioners contributed to global

warming by causing or contributing to GHG emissions through the production, marketing, and sale of

their fuels. In short, in both AEP and here, the heart

of the plaintiffs’ allegations is that the defendants

contributed to global warming and should be subject

to liability for doing so.

In AEP, the Court followed the two-step analysis

from United States v. Standard Oil Co. of Cal., 332

U.S. 301 (1947), in dismissing the claims, holding

that claims over global climate change cannot be adjudicated under state law. First, the Court determined the claims arose under federal common law

and that “borrowing the law of a particular State

would be inappropriate.” AEP, 564 U.S. at 422. As

Standard Oil instructs and affirmed in AEP, certain

claims invoke the “interests, powers, and relations of

the Federal Government as to require uniform national disposition rather than diversified state rulings.” Standard Oil, 332 U.S. at 78. Determining

rights and responsibilities for interstate GHG emissions and global climate change are among them. As

the Court stated, the production, sale, promotion,

and use of fossil fuels as well as global GHG emissions raise inherently interstate, federal questions,

including over national security.

8

Second, and only after determining the claims

arose under federal common law, did the Court hold

Congress displaced through the Clean Air Act remedies that might be granted under federal common

law. See AEP, 564 U.S. at 425. Any conclusion that

the moment Congress spoke on this issue by enacting

the CAA and making the EPA the governing authority over GHG emissions that Congress extinguished

the federal nature of this case is nonsensical. Congress’s decision to displace federal common law in

favor of federal regulatory authority does not make

GHG emissions any less of a federal issue. To the

contrary, as in AEP, federal courts should assess

whether the claims arise under federal common law

before considering the impact of displacement. Any

assertion that federal common law displacement

turns inherently federal issues into state law matters is entirely misplaced and should be reviewed.

At the time AEP was decided, two other climate

cases were pending against the energy sector. An

Alaskan village was suing many of the same energy

producers as here under federal law for damages related to rising sea levels. See Kivalina, 696 F.3d at

849. Also as here, the village alleged the energy producers were “substantial contributors to global

warming” in part caused by “conspir[ing] to mislead

the public about the science of global warming.” Id.

at 854. In Mississippi, a purported class of homeowners sued a multitude of energy producers under

state tort law for property damage from Hurricane

Katrina. See Comer, 718 F.3d at 460. The allegations

were that defendants, through their conduct and

products, caused certain emissions which contributed

to climate change and made the hurricane more intense. See id. These cases parallel the case at bar as

9

Honolulu also alleges that the defendants’ conduct

and products caused or exacerbated GHG emissions.

After AEP, both the Kivalina and Comer cases

were dismissed. As the Ninth Circuit explained, even

though the legal theories in Kivalina differed slightly

from AEP, given the Court’s message, “it would be

incongruous to allow [such litigation] to be revived in

another form.” Kivalina, 696 F.3d at 857. Climate

suits alleging harm from GHG emissions across the

country and globe are exactly the sort of “transboundary pollution” claims the Constitution exclusively commits to federal law. Id. at 855. This is true

regardless of how the suits are packaged—over energy use or products, by public or private plaintiffs,

under federal or state law, or for injunctive relief,

abatement, damages or other financial penalties.

Similarly, it does not matter where in the chain of

causation the alleged violation of state law occurred.

Here, the claim is that the defendants downplayed

the impacts of their products on the climate. Regardless, when harm alleged in one state was caused by

transboundary emissions from other states, federal

law applies. As the Second Circuit explained, “focus[ing] on [an] ‘earlier moment’ in the global warming lifecycle” “cannot transform [the lawsuit] into

anything other than a suit over global greenhouse

gas emissions.” City of New York, 993 F.3d at 91, 97.

Otherwise, plaintiffs need only find one aspect of the

chain of interstate emissions that they can claim violated state law and impose liability on the transboundary emissions. Plaintiffs, though, cannot “have

it both ways”: “disavowing any intent to address

emissions” while “identifying such emissions as the

singular source” of the harm they allege. Id. at 91.

10

The Court should grant the Petition because the

ruling below conflicts with rulings in federal courts,

including AEP, that claims over GHG emissions and

climate change implicate uniquely federal interests

and are governed by federal law. At the very least,

the Court should determine whether local and state

governments, along with state courts, can so readily

evade this Court’s jurisprudence as sought here.

II. THE LOWER COURT’S RULING

PROVIDES A PLAYBOOK FOR

PEOPLE SEEKING TO ABROGATE

THIS COURT’S AUTHORITY

To be clear, the advocacy groups and lawyers behind this litigation campaign have explicitly stated

that they developed the litigation strategy employed

in this case to circumvent this Court’s ruling in AEP.

In 2012, the year after AEP was decided, they convened in California to brainstorm on how to repackage the litigation in hopes of using lawsuits to

achieve their national policy priorities. Organizers of

the conference published their discussions. See Establishing Accountability for Climate Damages: Lessons from Tobacco Control, Summary of the Workshop on Climate Accountability, Public Opinion, and

Legal Strategies, Union of Concerned Scientists &

Climate Accountability Inst. (Oct. 2012).3

They said that despite the Court’s clear pronouncements in AEP, they still believed “the courts

offer the best current hope” for imposing their national public policy agenda over global fossil fuel

3 https://www.ucsusa.org/sites/default/files/attach/2016/04/

establishing-accountability-climate-change-damages-lessonstobacco-control.pdf.

11

emissions. Id. at 28. They discussed “the merits of

legal strategies that target major carbon emitters,

such as utilities [as in AEP], versus those that target

carbon producers.” Id. at 12. They talked through

causes of action, “with suggestions ranging from lawsuits brought under public nuisance laws,” “to libel

claims.” Id. at 11. Given AEP in particular, they emphasized making the lawsuits look like traditional

damages claims rather than directly asking a court

to regulate emissions or put a price on carbon use.

See id. at 13. As one person at the conference said,

“[e]ven if your ultimate goal might be to shut down a

company, you still might be wise to start out by asking for compensation for injured parties.” Id.

They also discussed “the importance of framing a

compelling public narrative,” including “naming [the]

issue or campaign” in an effort to generate “outrage.”

Id. at 21, 28. At a follow-up session in 2016, they explained that “creating scandal” through lawsuits

would also help “delegitimize” the companies politically. Entire January Meeting Agenda at Rockefeller

Family Foundation, Wash. Free Beacon, Apr. 2016.4

They have since tried to scandalize the fact that

companies knew about potential risks of climate

change—something widely known by governments

around the world—and still produced fossil fuels.5

4 https://freebeacon.com/wp-content/uploads/2016/04/Entire-

January-meeting-agenda-at-RFF-1-1.pdf.

5 The Hawaii Supreme Court ruling acknowledges that the

knowledge they allege was not unique to the industry: “In 1965,

President Lyndon B. Johnson’s Scientific Advisory Committee

warned of global warming and the catastrophic impacts that

could result.” See 537 P.3d at 1183.

12

To name the litigation, supporters asserted some

widespread “campaign of deception” involving the

many, often-changing companies named in the lawsuits. Here, Honolulu alleges fewer than a dozen entities, including Aloha Petroleum which runs gasoline and convenience stores in Hawaii, were involved

in this clandestine scheme and, therefore, should be

subject to liability for its climate damages. In other

similar lawsuits around the country, the governments there have named anywhere from one or two

defendants to several dozen companies, including, as

here, local entities in an effort to keep the cases in

state court. This ever-changing list of defendants in

different aspects of the energy industry highlights

the specious nature of this conspiracy-like narrative

and the lack of any principled basis for liability.

Outside of the courtroom, the advocates have

openly acknowledged that the desired effect of this

litigation is to penalize the worldwide production,

promotion, sale and use of fossil fuels—what they

call imposing the “true cost” of fuels on consumers.

Kirk Herbertson, Oil Companies vs. Citizens: The

Battle Begins Over Who Will Pay Climate Costs,

EarthRights, Mar. 21, 2018. They have said that

they want to use the litigation to force energy companies to raise the price of fossil fuels “so that if they

are continuing to sell fossil fuels, that the cost of

[climate change] would ultimately get priced into

them.” Julia Caulfield, Local Lawsuits Asks Oil and

Gas to Help Pay for Climate Change, KOTO, Dec. 14,

2020.6 They believe that because the “companies are

agents of consumers . . . holding oil companies re6 https://coloradosun.com/2021/02/01/boulder-climate-lawsuit-

opinion/.

13

sponsible is to hold oil consumers responsible.” Jerry

Taylor & David Bookbinder, Oil Companies Should

be Held Accountable for Climate Change, Niskanen

Center, Apr. 17, 2018.7

In an effort to mask this goal, the advocates chose

to partner with state and local governments seeking

money to deal with local impacts of global climate

change. These governments often disclaim any attempt to regulate emissions, but artful pleading and

disclaimers cannot mask the true federal nature of

this litigation. The lawsuits are being funded by nonprofit organizations because the litigation raises inherent federal legal and energy issues. See, e.g., City

of Hoboken Press Release, Hoboken Becomes First

NJ City to Sue Big Oil Companies, American Petroleum Institute for Climate Change Damages, Sept. 2,

2020 (noting legal fees would be paid by the Institute

for Governance and Sustainable Development).8 As

one jurist stated, the governments and backers are

waging this federal policy dispute “through the surrogate of a private party as the defendant.” Minnesota v. American Petroleum Inst., 63 F.4th 703 (8th Cir.

2022) 719-20 (Stras, J., concurring).

7 A reporter who follows the litigation has observed the incon-

gruity between the ways the cases are presented in and out of

court: “State and local governments pursuing the litigation argue that the cases are not about controlling GHG emissions . . .

But they also privately acknowledge that the suits are a tactic

to pressure the industry.” Dawn Reeves, As Climate Suits Keeps

Issue Alive, Nuisance Cases Reach Key Venue Rulings, Inside

EPA, Jan. 6, 2020, at https://insideepa.com/outlook/climatesuits-keeps-issue-alive-nuisance-cases-reach-key-venue-rulings.

8_https://www.hobokennj.gov/news/hoboken-sues-exxon-mobil-

american-petroleum-institute-big-oil-companies.

14

Thus, the purpose of this litigation is to use state

liability law to penalize national energy use and direct money from consumers across the country to local governments unbridled by the checks and balances of Congress’s legislative process. In addition, these

groups are using political-style tactics to encourage

and recruit local governments to bring these cases

and to leverage the litigation to hinder energy companies politically. See Lesley Clark, Why Oil Companies Are Worried About Climate Lawsuits From Gas

States, E&E News, Nov. 7, 2023 (quoting a leader of

this effort: “It’s no secret that we go around and talk

to elected officials” about bringing these lawsuits and

“look at the politics” in deciding whom to approach);

see generally Beyond the Courtroom, Manufacturers’

Accountability Project (detailing this litigation campaign).9 Unlike traditional state lawsuits, success

here includes filing and maintaining state lawsuits

they can use for their national goals, which underscores the need for the Court to grant the Petition.

In the Minnesota case, for example, after the lawsuit was announced, the Center for Climate Integrity

and Fresh Energy publicly said they “put this idea in

front of [the] Attorney General.” Minnesota is Suing

Climate Polluters: Why, How and What’s Next?,

Fresh Energy, July 1, 2020.10 They also said that two

Assistant Attorneys General reportedly hired and

paid by the State Energy & Environment Impact

Center at the New York University School of Law to

work in the Attorney General’s office and bring these

9 https://mfgaccountabilityproject.org/beyond-the-courtroom.

10 https://www.youtube.com/watch?v=2MqX14GTm-o&t=90s.

15

types of lawsuits11 “have basically been working on

this full-time over [a] few months.” Id. The government was simply a vehicle for the group’s efforts to

wage this national litigation campaign. In Hawaii,

public events were held to encourage Honolulu and

other governments to bring these lawsuits. See Media Advisory: UH Law School Is Co-organizer of Climate Change Event at State Capitol, May 2, 2019.12

Overall, more than two dozen of these lawsuits

have been filed since 2017 in carefully chosen jurisdictions in an effort to “side-step federal courts and

Supreme Court precedent” and convince local state

courts to help them advance their preferred national

and international policy agenda by awarding money

to state and local jurisdictions. Editorial, Climate

Lawsuits Take a Hit, Wall St. J., May 17, 2021. If

this gambit is successful, it will give activists a road

map for using state liability law to drive a wide variety of federal legal and public policy matters irrespective of decisions made in Congress or this Court.

III. MERELY PASTING STATE LAW

LABELS ON FEDERAL LAW CLAIMS

SHOULD NOT BE A MEANS FOR

USURPING FEDERAL AUTHORITY

The state law theories in this litigation have

proven to be mere fig leaves. The theory of harm is

not moored to any plaintiff, defendant, or jurisdiction, as the permutations of the cases show. And, the

chain of causation, as the Court observed in AEP, is

11 See John O’Brien, Minnesota AG Sued for Info on Employees

Who Are Climate Change Activists Paid by Bloomberg, Legal

Newsline, July 14, 2020.

12 https://manoa.hawaii.edu/news/article.php?aId=9945.

16

anything but local. In this regard, the predictions of

the Obama administration in AEP have been borne

out. The Solicitor General, in opposition to that lawsuit, cautioned that there would be “almost unimaginably broad categories of both potential plaintiffs

and potential defendants.” Brief for the Tennessee

Valley Authority, AEP at 15 (filed Jan. 31, 2011). It

would be “impossible to consider the sort of focused

and more geographically proximate effects that were

characteristic of traditional nuisance suits.” Id. at 17.

The California Superior Court made a similar observation in determining which venue should hear

cases filed there: “If ever there were litigations that

could be described as truly global in scope, they are

these. . . . Regardless of which government entities

have brought these lawsuits, the interests potentially affected by the issues in these cases apply equally

well to populations of San Francisco County, Contra

Costa County, or indeed any other county, state, or

nation on the face of the Earth. These are not lawsuits with a local focus or local stakes.” California v.

ExxonMobil Corp., No. CGC-23-609134, Not. of Entry

of Order Granting Pet. for Coordination, Ex. 1, Ex. A,

at 12 (Cal. Super. Feb. 07, 2024) (citing Fuel Industry Climate Cases, JCCP 5310, Tentative Ruling

(Cal. Super. Jan. 25, 2024)).

Under these theories, any local government could

bring one of these lawsuits and pursue money damages from any number of companies or industries to

pay the government’s “past and future costs of climate-proofing its infrastructure and property.” City

of New York, 993 F.3d at 88. Liability against whom

for whom and how much would be unprincipled and

would undoubtedly vary from court to court.

17

As alluded to above, the Second Circuit in response to New York City’s climate lawsuit, saw

through this veneer: “we are told that this is merely

a local spat about the City’s eroding shoreline, which

will have no appreciable effect on national energy or

environmental policy. We disagree. Artful pleading

cannot transform the City’s complaint into anything

other than a suit over global greenhouse gas emissions.” Id. at 91. The same is true here; referencing

state claims and asking for compensation and state

law penalties does not make federal matters related

to interstate GHG emissions and global climate

change suddenly suitable for state courts. “Such a

sprawling case is simply beyond the limits” of state

liability law. Id. at 92.

The concurrence in the Minnesota case captured

this point well: “Minnesota purports to bring statelaw consumer-protection claims against a group of

energy companies. But its lawsuit takes aim at the

production and sale of fossil fuels worldwide. . . . There is no hiding the obvious, and Minnesota does not even try: it seeks a global remedy for a

global issue.” American Petroleum Inst., 63 F.4th at

717 (Stras, J., concurring). The federal judge hearing

the climate case by San Francisco and Oakland made

the same observation when he initially dismissed the

claims on the merits: “Their theory rests on the

sweeping proposition that otherwise lawful and everyday sales of fossil fuels, combined with an awareness that greenhouse gas emissions lead to increased

global temperatures, constitute a public nuisance.”

City of Oakland, 325 F. Supp. 3d at 1022. It attempts

to “reach the sale of fossil fuels anywhere in the

world.” Id. The fact that this ruling was vacated

when the district judge’s order denying remand was

18

overturned underscores the reason this Court should

grant the Petition. Merely invoking state law labels

does not turn the production, sale, promotion and use

of fossil fuels into state law liability events.

Otherwise, state courts “may reflect ‘local prejudice’ against unpopular federal laws” or defendants,

which as indicated was part of the calculus for reframing the litigation as state law claims. Watson v.

Philip Morris Cos., 551 U.S. 142, 150 (2007). These

dynamics are certainly at risk here, as the desired

effect of these lawsuits is to bring private, out-ofstate money to the communities where the courts reside. In Maryland, when asked about the legal shortcomings of climate lawsuits, Annapolis officials expressed confidence that “the Maryland courts will get

us there.” Brooks Dubose, Annapolis Sues 26 Oil and

Gas Companies for their Role in Contributing to Climate Change, Cap. Gazette, Feb. 23, 2021.13

There is no doubt that if any state court allows a

hometown recovery, there will be a race to state

courthouses across the nation to file more climate

cases. State courts are not positioned to be arbiters of

who, if anyone, is to be legally accountable for global

climate change.

13_https://www.capitalgazette.com/maryland/annapolis/ac-cn-

annapolis-fossil-fuels-lawsuit-20210222-20210223vs2ff7eiibfgje6fvjwticys2i-story.html.

19

IV. THE COURT SHOULD AFFIRM THAT

CLAIMS ALLEGING HARM FROM

GLOBAL CLIMATE CHANGE RAISE

UNIQUELY FEDERAL INTERESTS

Finally, using state law to subjecting a few American, Canadian, and European energy manufacturers

to liability for global GHG emissions would directly

interfere with exclusive federal interests, as this

Court explained in AEP. At the heart of these claims

is the notion that America should increase the price

and reduce the production of fossil fuels because of

the impact these fuels are having on the climate. See

City of New York, 993 F.3d at 93 (“If the Producers

want to avoid all liability, then their only solution

would be to cease global production altogether.”).

Some may consider this to be a sensible solution to

climate change, but it is not the role of state courts to

impose these changes.

For starters, state governments do not control the

global fuel market, so forcing a reduction in western

oil production would not reduce GHG emissions. As

the New York Times reported, many of these companies are already “slowing down production as they

switch to renewable energy. . . . But that doesn’t

mean the world will have less oil.” Clifford Krauss,

As Western Oil Giants Cut Production, State-Owned

Companies Step Up, N.Y. Times, Oct. 14, 2021.14

“[S]tate-owned oil companies in the Middle East,

North Africa and Latin America are taking advantage of the cutbacks . . . by cranking up their production.” Id. “This massive shift could . . . make

14_https://www.nytimes.com/2021/10/14/business/energy-

environment/oil-production-state-owned-companies.html.

20

America more dependent on [OPEC], authoritarian

leaders and politically unstable countries . . . that

are not under as much pressure to reduce emissions.”

Id. “[T]he United States and Europe could become

more vulnerable to the political turmoil in those

countries and to the whims of their rulers”—and

Russian President Vladimir Putin “uses his country’s

vast natural gas reserves as a cudgel.” Id.

In response to the Ukrainian invasion, the Biden

administration took measures that would be directly

contradicted by these state lawsuits. Specifically, it

released oil from the nation’s strategic reserves,

urged American energy manufacturers to increase

their production of oil, tried to decrease energy prices, and invested in new energy technology. See Zack

Colman & Ben Lefebvre, Biden To Tap Oil Reserves,

Press Oil Sector To Hike Production, Politico, Mar.

31, 2022.15 These decisions to increase production

were made with full knowledge of climate change

risks, including to Honolulu. Further, state court rulings to curtail fossil fuel production, make fuels more

expensive, and hinder innovation would conflict with

this national security response.

In addition, this litigation raises federalism concerns. As demonstrated in the oral argument below,

the city is seeking “to apply Hawaii law to conduct in

every jurisdiction in the United States.” Jennifer Hijazi, Oil Giants Fight Climate Deception Suit at Hawaii Supreme Court, Bloomberg Law, Aug. 18, 2023.

Each local and state government bringing a climate

lawsuit is seeking to independently dictate consumer

15 https://www.politico.com/news/2022/03/31/biden-to-tap-oil-

reserves-use-wartime-powers-to-limit-fuel-shocks-00022020.

21

protection liability for communications companies

had with consumers, lawmakers and others entirely

outside of their borders—even in each other’s jurisdictions—regardless of whether those states would

find the communications fully lawful. Under the

American system of constitutional federalism, as

well as the Clean Air Act, these states and localities

are not allowed to impose their state’s law on activities that took place entirely in other jurisdictions.

A Delaware court made this observation in limiting that state’s climate change case against fossil

fuel producers to only those emissions in Delaware.

The court held that federal law “preempts state law

to the extent a state attempts to regulate air pollution originating in other states.” Delaware ex rel.

Jennings v. BP America Inc., 2024 WL 98888, at *10

(Del. Super. Ct. Jan. 9, 2024). The court explained

that a suit “seeking damages for injuries resulting

from out-of-state or global emissions and interstate

pollution” is “beyond the limits of [state] common

law.” Id. at *9. The Hawaii Supreme Court decision

directly conflicts with this ruling, as that is exactly

what the Hawaii court authorized in this case.

Indeed, more than fifteen state attorneys general

have objected to these climate lawsuits because the

governments in other states are using it to export

their laws and “preferred environmental policies and

their corresponding economic effects to other states.”

Amicus Brief of Indiana and Fourteen Other States

in Support of Dismissal, City of Oakland v. BP, No.

18-1663 (9th Cir. filed Apr. 19, 2018). It also would

hurt efforts by other communities to address climate

impacts in their own areas by draining resources.

22

To pay for any award in this case, people and

businesses in every state would have to pay higher

energy prices to fund projects in Honolulu, even

though their communities may have comparable

needs. As one New Jersey coastal leader said in response to a lawsuit from Hoboken, New Jersey: “Hoboken is sticking the rest of us with the bill” as the

litigation “will make it much more expensive for us

to put gas in our cars and turn on our lights.” Michael Thulen, Why Hoboken’s Climate Change Lawsuit Is Bad for New Jersey, NJBiz, Oct. 11, 2021

(Thulen served as President of the Point Pleasant

Borough Council).16 There are less harmful ways to

address impacts of climate change that do not have

the downsides associated with this litigation. Federal

and state programs have already made funds available that can provide local relief now.

Only uniform federal law supplies the standards

that can be applied here. Yet, there are some thirty

climate suits pending around the country, with organizers actively recruiting more lawsuits. In just

the past year, California and Multnomah County,

Oregon each filed lawsuits seeking tens of billions of

dollars for climate mitigation from energy companies

based on many of these same theories. See, e.g., Ryan

Fonseca, California Is Suing Big Oil, Accusing Them

of Climate Change ‘Deception,’ L.A. Times, Sept. 18,

2023; Editorial, Multnomah County’s Lawsuit Filing

Does Not Count as Governance, The Oregonian, June

25, 2023 (“While filing a lawsuit against Big Oil may

scratch a populist itch, this isn’t the kind of governance residents need.”). Within the past few weeks,

16 https://njbiz.com/opinion-wrong-course/.

23

the City of Chicago and Bucks County, Pennsylvania

filed similar lawsuits. See Brett Chase, Chicago Sues

Five Giant Oil Companies, Accusing Them of Climate

Change Destruction, Fraud, Chicago Sun-Times, Feb.

20, 2024; Robert Moran, Bucks County Sues Big Oil

Companies for Severe Weather Blamed on Climate

Change, The Philadelphia Inquirer, Mar. 25, 2024.

Lawsuits alleging energy manufacturers can be

subject to untold liability for harms stemming from

global climate change should not be the result of political decisions by municipal, county or state officials

on whether and whom to sue for climate change, as

well as ad hoc case-by-case rulings in local courts.

Also, as a matter of judicial efficiency, it is important

for the Court to provide guidance now, as proceedings have already begun in state courts around the

country and more suits are being filed.

***

Ultimately, amicus believes the best way to address the impact that energy use is having on the

climate is for Congress, federal agencies, and local

governments to work with manufacturers and other

businesses on developing public policies and technologies that can reduce emissions and mitigate damages. See Ross Eisenberg, Forget the Green New Deal.

Let’s Get to Work on a Real Climate Bill, Politico,

Mar. 27, 2019. The challenge facing society is to affordably and reliably provide this energy while mitigating its climate impacts. It is not to blame providers for selling energy people need to heat their

homes, fuel their cars, build schools, places of worship and workplaces, and turn on lights.

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CONCLUSION

For these reasons, amicus curiae respectfully requests that this Court grant the Petition and determine that the state law claims are not viable.

Respectfully submitted,

Philip S. Goldberg

Counsel of Record

SHOOK, HARDY & BACON L.L.P.

1800 K Street, N.W., Suite 1000

Washington, D.C. 20006

(202) 783-8400

pgoldberg@shb.com

Erica Klenicki

Michael A. Tilghman II

THE NAM LEGAL CENTER

733 10 Street, N.W., Suite 700

Washington, D.C. 20001

Dated: April 1, 2024