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, FKA ROYAL DUTCH 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 RICHARD A. EPSTEIN AND JOHN

YOO AS AMICI CURIAE IN SUPPORT OF

PETITIONS FOR WRIT OF CERTIORARI

__________________

RICHARD A. EPSTEIN

16 Thomas Place

Norwalk, CT 06853

(773) 450-4476

raepstein43@gmail.com

JOHN YOO

Counsel of Record

1550 Tiburon Blvd. #G-503

Tiburon, CA 94920

(510) 600-3217

johncyoo@gmail.com

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 4

I.

The Decision below creates a split between a

U.S. Court of Appeals and a State Supreme

Court. .................................................................... 4

II. This case presents a constitutional question of

national importance. .......................................... 11

III. Respondents distort universal tort doctrine as

found in every jurisdiction, state and federal,

in the United States. .......................................... 14

CONCLUSION ......................................................... 23

ii

TABLE OF AUTHORITIES

Cases

American Electric Power v. Connecticut,

564 U.S. 410 (2011) ............................ 2, 3, 5-11, 22

American Insurance Association v. Garamendi,

539 U.S. 396 (2003) ............................................. 12

City & Cnty. Of Honolulu v. Sunoco,

39 F.4th 1101 (9th Cir. 2022), cert. denied,

143 S. Ct. 1795 (2023) ..................................... 4, 14

City & Cnty. of Honolulu v. Sunoco LP,

537 P.3d 1173 (Haw. 2023) ................... 2, 4, 5, 6, 7

City of New York v. Chevron Corporation,

993 F.3d 81 (2d Cir. 2021)......................... 4, 6, 7, 9

Clearfield Trust Co. v. United States,

318 U.S. 363 (1943) ............................................... 8

Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000) ............................................. 12

Derry v. Peek,

L. R. 14 App. Cas. 337 (1889) ............................. 18

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) ............................................. 7, 8

Ford Motor Co. v. Montana Eighth Judicial District

Court,

592 U.S. 351 (2021) ............................................. 16

iii

Hinderlider v. La Plata River & Cherry Creek Ditch

Co.,

304 U.S. 92 (1938) ............................................. 7, 8

Hines v. Davidowitz,

312 U.S. 52 (1941) ............................................... 12

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ................................................. 8

International Shoe v. Washington,

326 U.S. 310 (1945) ....................................... 15, 16

Jesner v. Arab Bank, PLC,

584 U.S. 241 (2018) ............................................... 7

Kiobel v. Royal Dutch Petroleum, Co.,

569 U.S. 108 (2013) ............................................... 7

Massachusetts v. EPA,

549 U.S. 497 (2007) ............................................. 22

Mayor & City Council of Baltimore v. BP PLC.,

31 F.4th 178 (4th Cir. 2022), cert. denied,

143 S. Ct. 1795 (2023) ............................... 4, 5, 8, 9

McGee v International Life Insurance Co.,

355 U.S. 220 (1957) ............................................. 15

Milwaukee v. Illinois,

451 U.S. 304 (1981) ............................................... 7

Phillips Petroleum v. Shutts,

472 U.S. 797 (1985) ............................................. 15

iv

TSC Industries, Inc. v. Northway, Inc,

426 U.S. 438 (1976) ............................................. 19

Constitution

U.S. Const. amend. XIV ..................................... 14, 15

Statutes and Regulations

17 C.F.R. § 240.14a-9(a) ........................................... 19

Clean Air Act, 74 Fed. Reg. 66,496

(Dec. 15, 2009) ................................. 4, 6, 7, 8, 9, 22

Other Authorities

DEP’T OF COM. & CONSUMER AFFS., OFF. OF CONSUMER

PROT. (2013), https://cca.hawaii.gov/blog/office-ofconsumer-protection/ ........................................... 18

Henry Friendly, In Praise of Erie—And of the New

Federal Common Law, 39 N.Y.U. L. Rev. 383

(1964) ..................................................................... 8

Global Climate Change: Evidence, NASA GLOBAL

CLIMATE CHANGE AND GLOBAL WARMING: VITAL

SIGNS OF THE PLANET (2022),

https://climate.nasa.gov/vital-signs/methane/ ... 21

v

Adeel Hassan & Anna Betts, Maui Wildfires Latest:

Lahaina Reopens to Residents, THE NEW YORK

TIMES (Sept. 29, 2023),

https://www.nytimes.com/article/maui-wildfireshawaii.html#:~:text=Maui%20County%20officials

%20have%20claimed,had%20allowed%20flames%

20to%20spark ................................................ 21, 22

https://www.epa.gov/power-sector/electric-powersector-basics#:~:text=Across%20the%20United%2

0States%2C%20over,how%20EPA's%20programs

%20reduce%20emissions .................................... 12

Kyoto Protocol to the United Nations Framework

Convention on Climate Change, Dec. 10, 1997,

2303 U.N.T.S. 162; Rio Declaration on

Environment and Development, Jun. 13, 1992, 31

ILM 874 (1992) .................................................... 13

Paris Agreement to the United Nations Framework

Convention on Climate Change, Dec. 12, 2015,

T.I.A.S. No. 16-1104 ............................................ 13

RESTATEMENT (SECOND) OF TORTS § 525 (1977). ...... 17

RESTATEMENT (THIRD) OF TORTS § 9 (2020) ............. 19

Rio Declaration on Environment and Development,

Jun. 13, 1992, 31 ILM 874 (1992) ....................... 13

vi

Clair Rush et al., Maui’s fire became deadly fast.

Climate change, flash drought, invasive grass and

more fueled it, ASSOCIATED PRESS (Aug. 10, 2023),

https://apnews.com/article/hawaii-wildfiresclimate-change92c0930be7c28ec9ac71392a83c87582 ................ 21

United States Energy and Employment Report 2023:

https://www.energy.gov/media/299601 ............... 11

U.S. Energy Information Administration (EIA)

(2023), State Energy Data System (SEDS) 19602021: Prices and Expenditures ........................... 11

1

INTEREST OF AMICI CURIAE 1

Richard A. Epstein is the inaugural Laurence A.

Tisch Professor of Law at New York University School

of Law, the Peter and Kirstin Bedford Senior Fellow

at the Hoover Institution, and the James Parker Hall

Distinguished Service Professor of Law Emeritus and

senior lecturer at the University of Chicago.

John Yoo is the Emanuel S. Heller Professor of Law

at the University of California Berkeley, a nonresident

senior fellow at the American Enterprise Institute,

and a visiting fellow at the Hoover Institution.

They have both written extensively on the

Constitution, federalism, and the separation of

powers.

1 No counsel for a party authored the brief in whole or in part. No

party, counsel for a party, or any person other than amici and

their counsel made a monetary contribution intended to fund the

preparation or submission of the brief. All counsel were provided

timely notice in accordance with Supreme Court Rule 37.2.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

In this case, the Hawaii Supreme Court held that

the Respondents—the City and County of Honolulu

and its Water Department—could proceed to trial on

an

unprecedented

public

nuisance

theory.

Respondents asserted that Petitioners knew that oil

and gasoline products were dangerous, but that

Petitioners nonetheless “knowingly concealed and

misrepresented” the climate effects of their products

and engaged in “disinformation campaigns” to raise

doubts about global warming. City & Cnty. of

Honolulu v. Sunoco LP, 537 P.3d 1173, 1181 (Haw.

2023). The court below allowed Respondents to

further claim that Petitioners’ conduct thereby led to

an increase in fuel consumption and greenhouse gas

emissions, and thus “caused property and

infrastructure damage in Honolulu.” Id.

This Court should grant the petition for a writ of

certiorari for two related reasons. First, this case

raises a disputed question of federal constitutional law

over which the court below has split with the U.S.

Courts of Appeals for the Second Circuit. These courts

have divided over whether states and cities can use

tort law to sue energy companies for harms allegedly

caused by global warming. The Hawaiian Supreme

Court allowed Hawaiian law to apply notwithstanding

American Electric Power v. Connecticut, 564 U.S. 410,

422 (2011), which held that the Clean Air Act preempts judge-made federal common law causes of

action. The petition for a writ of certiorari is

particularly worthy not only because of the

importance of the underlying constitutional questions

3

but also because of the effect of the Hawaii decision on

the national energy industry, one of the nation’s

largest economic sectors whose rapid decline would

spread hardship throughout the nation.

The second reason to grant the petition for a writ

of certiorari reinforces the first. The court below

adopts an unprecedented theory of misrepresentation,

concealment, and nondisclosure that alleges that

Petitioners have misled the public on matters on

which the public is already fully informed. If this

Court does not exercise review, other states could

concoct similarly unlimited theories of tort liability

that will further interfere with the nation’s ability to

pursue coherent policies on energy and climate

change.

Certiorari is urgent because the decision of this

Court in AEP left open the question presented here.

AEP observed that the lower court opinion it reviewed

“did not reach the state-law claims because it held that

federal common law governed.” AEP, 564 U.S. at 429.

“In light of our holding that the Clean Air Act

displaces federal common law,” this Court concluded,

“the availability vel non of a state lawsuit depends,

inter alia, on the preemptive effect of the federal Act.”

Id.

AEP then remanded the case for further

consideration of the issue. This Court must now

resolve the split between the court below and a U.S.

court of appeal that has developed over the question it

left open.

4

ARGUMENT

I.

The Decision below creates a split between

a U.S. Court of Appeals and a State Supreme

Court.

This Court must act now because the decision of

the Supreme Court of Hawaii conflicts with the U.S.

Court of Appeals for the Second Circuit in City of New

York v. Chevron Corporation, 993 F.3d 81 (2d Cir.

2021). City of New York held that federal law preempts

state tort law that regulates air emissions caused by

the use of oil and gas for energy production. In

contrast, the Supreme Court of Hawaii declined to find

that preemption under federal law (including the

Clean Air Act) prohibits state tort lawsuits against

multinational oil companies for failing to warn

consumers about the perils of global greenhouse gas

emissions. As the decision below acknowledges, the

Second Circuit found such a claim to be pre-empted by

both federal common law and the Clean Air Act. Id. at

86.

Hawaii’s decision also deepens an earlier split

between the U.S. Court of Appeals for the Second and

Fourth Circuits. Indeed, the Hawaii Supreme Court

several times quotes from, and directly relies upon,

the Fourth Circuit’s opinion in Mayor & City Council

of Baltimore v. BP PLC., 31 F.4th 178 (4th Cir. 2022),

cert. denied, 143 S. Ct. 1795 (2023). See, e.g., City &

Cnty. of Honolulu, 537 P.3d at 1200 (following the

Fourth Circuit). This Court declined to exercise

jurisdiction over the Fourth Circuit decision, and

similar cases, see, e.g., City & Cnty. Of Honolulu v.

Sunoco, 39 F.4th 1101, 1113 (9th Cir. 2022), cert.

denied, 143 S. Ct. 1795 (2023). The issue now arrives

5

at this Court in the proper posture for resolution on

the merits.

Hawaii’s decision and the Second Circuit decision

present a clear conflict over the preemptive effect of

federal law. The court below upheld the application of

the state torts of public nuisance, private nuisance,

strict liability failure to warn, negligent failure to

warn, and trespass against the Petitioners in their

sale of fuel products in the state. The Second Circuit

rejected, but the Fourth Circuit allowed, identical

claims – which the court below recognized in siding

with the Fourth Circuit. The Hawaii Supreme Court

concluded: “This suit does not seek to regulate

emissions and does not seek damages for interstate

emissions. Rather, Plaintiffs’ complaint ‘clearly seeks

to challenge the promotion and sale of fossil-fuel

products without warning and abetted by a

sophisticated disinformation campaign.’” City & Cnty.

of Honolulu, 537 P.3d at 1181 (quoting Mayor & City

Council of Baltimore v. BP P.L.C., 31 F.4th 178, 233

(4th Cir. 2022), cert. denied, 143 S. Ct. 1795 (2023)).

Respondents’ theory of tort liability rests on the

view that worldwide greenhouse gas emissions raise

worldwide temperatures, which then purportedly

cause, among other things, the seas to rise to levels

that allegedly harm Honolulu. As this Court has

recognized in the past, the sale and consumption of

fossil fuels in any single state do not generate a

sufficiently large temperature change to produce a

rise in sea levels in any given jurisdiction.

“Greenhouse gases once emitted ‘become well mixed in

the atmosphere,’” AEP, 564 U.S. at 422 (quoting

Endangerment and Cause or Contribute Findings for

6

Greenhouse Gases Under Section 202(a) of the Clean

Air Act, 74 Fed. Reg. 66,496, 66,514 (Dec. 15, 2009)).

In rejecting a lawsuit brought by the City of New York

and other states against major emitters of carbon

dioxide, this Court stated that “emissions in [New

York or] New Jersey may contribute no more to

flooding in New York than emissions in China,” id.

(citations omitted). Hawaii’s claim parallels the one

rejected by the Second Circuit in City of New York.

The court below erred in rejecting the Second

Circuit’s approach. It concluded instead that federal

law does not preempt Respondents’ state tort law

claim because the Clean Air Act (“CAA”) had

“displaced” federal common law. City & Cnty. of

Honolulu, 537 P.3d at 1195. While pre-CAA federal

common law had allowed states to sue each other to

abate air and water pollution, AEP held that the CAA

displaced that law because it already “provides a

means to seek limits on emissions of carbon dioxide

from domestic power plants.” 564 U.S. at 425.

Unfortunately, the Hawaii Supreme Court misread

AEP to mean that the CAA’s displacement of a

judicially recognized federal common law cause of

action also allows states to manufacture their own

novel common law actions. City & Cnty. of Honolulu,

537 P.3d at 1195-1201.

This case requires this Court’s review because the

split arises over conflicting readings of AEP. The

Supreme Court of Hawaii, like the Fourth Circuit,

relied upon AEP for the proposition that “whether the

state law nuisance claims were preempted depended

only on an analysis of the CAA because ‘when

Congress addresses a question previously governed by

7

a decision rested on federal common law, . . . the need

for such an unusual exercise of law-making by federal

courts disappears.’” City & Cnty. of Honolulu, 537 P.3d

at 1199 (quoting AEP, 564 U.S. at 423 (quoting

Milwaukee v. Illinois, 451 U.S. 304, 314 (1981)). The

Second Circuit read AEP for the directly opposite

proposition. It found that the CAA did not authorize

state law to snap back into place “simply because

Congress saw fit to displace a federal court-made

standard with a legislative one.” City of New York, 993

F.3d at 98. Rather, as the Second Circuit observed,

AEP recognized that the CAA made the EPA the

“primary regulator of [domestic] greenhouse gas

emissions,” id. at 99 (citing AEP, 564 U.S. at 428), and

that it reserved to the states only the power to

regulate internal emissions sources, not those from

other states, id. at 100 (citing AEP, 564 U.S. at 422).

(The emission sources at issue in this case are not

internal). The Second Circuit further found that the

CAA would not have revived state tort law actions

against foreign nations under international law. Id. at

101-03 (citing Kiobel v. Royal Dutch Petroleum, Co.,

569 U.S. 108 (2013); Jesner v. Arab Bank, PLC, 584

U.S. 241 (2018)).

This Court has the opportunity here to make clear

that, as the Second Circuit correctly held, states

cannot “utilize state tort law to hold multinational oil

companies liable for the damages caused by global

greenhouse gas emissions.” City of New York, 993 F.3d

at 85. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938),

denied the existence of a general federal common law,

but also affirmed the existence of a specialized federal

common law where national concerns are paramount.

Hinderlider v. La Plata River & Cherry Creek Ditch

8

Co., 304 U.S. 92 (1938), decided on the same day as

Erie, held: “whether the water of an interstate stream

must be apportioned between the two States is a

question of ‘federal common law’ upon which neither

the statutes nor the decisions of either State can be

conclusive.” Id. at 110. This holding is logical as a

matter of law and prudent as a matter of fact because,

in the absence of a federal common-law rule, the states

in a dispute would presumably give priority to their

own laws. Justice William O. Douglas expressed the

same view in Clearfield Trust Co. v. United States, 318

U.S. 363, 367 (1943) (applying federal common law to

deal with commercial paper to avoid “making identical

transactions subject to the vagaries of the laws of the

several states.”) As Judge Henry Friendly observed,

“’[e]nvironmental protection is undoubtedly an area

‘within national legislative power,’ one in which

federal courts may fill in ‘statutory interstices,’ and, if

necessary, even ‘fashion federal law.’” AEP, 564 U.S.

at 421 (quoting Henry Friendly, In Praise of Erie—

And of the New Federal Common Law, 39 N.Y.U. L.

Rev. 383, 421-22 (1964)).

Indeed, almost a century of this Court’s precedents,

including Illinois v. City of Milwaukee, 406 U.S. 91,

102–03, 102 n.3 (1972), recognize that the federal

common law must govern here. As this Court

observed, interstate pollution presents an “overriding

. . . need for a uniform rule of decision” because states

have conflicting self-interests, energy production and

pollution are nationwide in scope, and the basic

interests of federalism are involved. Id. at 105 n.6.

The federal common law as it existed before the CAA

would have pre-empted the state tort claims in this

case and those in Mayor & City Council of Baltimore

9

v. BP P.L.C., 31 F.4th 178 (4th Cir. 2022), cert. denied,

143 S. Ct. 1795 (2023).

The Second Circuit properly found that the CAA

displaced any cause of action for trans-boundary

pollution provided by the federal common law. It

relied upon this Court’s statement in AEP: “We hold

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 powerplants.” AEP, 564 U.S. at 424.

This Court has issued no ruling on whether the CAA

revived state causes of action. The Second Circuit

answered that remaining question by holding that the

CAA also preempted state tort law over interstate air

pollution. “For many of the same reasons that federal

common law preempts state law, the Clean Air Act

displaces federal common law claims concerned with

domestic greenhouse gas emissions.” City of New

York, 993 F.3d at 95. It made no difference, the

Second Circuit held, whether the state styled its tort

action against the emissions from fossil fuels or

against misrepresentations in the sale of fossil fuels.

In both cases, the state sought improperly to hold

defendants liable for the release of greenhouse gases

and their harmful effects on the environment. Id. at

97.

AEP's conclusion that the CAA preempts judgemade federal causes of action for interstate air

pollution applies with even greater force to state law

causes of action. “The critical point is that Congress

delegated to EPA the decision whether and how to

regulate carbon-dioxide emissions from powerplants;

the delegation displaces federal common law.” AEP,

10

564 U.S. at 426. The lower federal courts are part of a

unified judicial system headed by this Court, which

can correct deviations from established tort doctrine

under a well-established body of federal law. By

contrast, the state courts are autonomous and can

develop tort law subject only to a weak set of

constitutional constraints. State tort law can create

higher levels of undesirable variation, as shown by the

unprecedented tort theory adopted by the Hawaii

Supreme Court. This variation produces the fractured

interpretation and application of federal law that only

this Court’s review can remedy.

Adoption of the rule of AEP, moreover, would not

represent an unconstitutional intrusion of federal

authority into internal state affairs. Following the

Second Circuit’s approach instead would prevent the

extraterritorial application of state law from

governing the behavior of the hundreds of millions

who live outside Hawaii. Because the Framers were

properly concerned with the limits on federal

authority, they wisely crafted a balanced system that

prevents a single state from regulating a nationwide

industry by the back door. Allowing Hawaii to

continue down this path could dislocate the affairs of

the hundreds of millions of Americans who live outside

the State of Hawaii. Following the Second Circuit’s

approach serves the interests of federalism by

maintaining orderly relations among the states while

reserving to the federal government control over

interstate pollution and nationwide industry.

11

II.

This case presents a constitutional question

of national importance.

As this Court recognized in AEP, greenhouse gases

and their impact on temperatures are not localized.

Emissions rapidly intermix with other gases in the

atmosphere, which then exert a cumulative effect on

the environment.

Necessarily and immediately,

greenhouse gas emissions have profound national

effects, which therefore require coordinated national

solutions. Hawaii’s case is one of multiple lawsuits

brought against energy companies for their alleged

role in climate change. While defendants in these

cases have sought the Court’s review of issues relating

to removal to federal court, this petition for a writ of

certiorari marks the first time the question on the

merits has reached this Court. This Court now has

the opportunity to review whether states may regulate

the energy industry for emissions that have national

and even global effects.

Given the national importance of the energy

industry, no further delay is prudent. In 2021, the

energy industry employed 7.8 million Americans; in

2022 employment rose to 8.1 million. United States

Energy

and

Employment

Report

2023:

https://www.energy.gov/media/299601.

Americans

last year spent $1.3 trillion on energy, which amounts

to 5.7 percent of the Gross Domestic Product. U.S.

Energy Information Administration (EIA) (2023),

State Energy Data System (SEDS) 1960-2021: Prices

and Expenditures. There are more than 11,000

utility-scale power plants located in every state that

deliver electricity to the nation’s power grid.

12

https://www.epa.gov/power-sector/electric-power-sect

or-basics#:~:text=Across%20the%20United%20States

%2C%20over,how%20EPA’s%20programs%20reduce

%20emissions.

Controlling energy has long constituted an

important national security goal that not only

supports economic independence and stability but also

U.S. diplomacy and military capabilities. If this Court

were to allow these tort cases to proceed, states and

localities could handicap an interstate industry

critical to the nation’s economy and security. This

Court should not let this issue be decided by defaulting

to the states but instead should reject Respondent’s

effort to regulate phenomenon with nationwide,

indeed global effects.

This Court has long recognized that the

Constitution vests the conduct of foreign relations in

the federal government alone. See, e.g., Hines v.

Davidowitz, 312 U.S. 52, 63 (1941). It has pre-empted

state laws that might interfere with federal foreign

policy, even in the absence of a treaty. In Crosby v.

National Foreign Trade Council, 530 U.S. 363 (2000),

for example, this Court pre-empted a state law that

imposed sanctions on Burmese-related goods because

it conflicted with federal foreign policy toward Burma.

This Court has further held that states cannot use

their police powers to regulate areas that are the

subject of diplomatic negotiations by the federal

government. In American Insurance Association v.

Garamendi, 539 U.S. 396 (2003), this Court held that

the federal common law of foreign relations preempted a California law that required insurers to

disclose information relating to pre-WWII insurance

13

policies held by Swiss and German companies. The

Court found that the state law conflicted with the

Clinton administration’s diplomatic efforts to achieve

a settlement between the German government, the

private financial institutions, and Holocaust survivors

and their families.

National foreign policy interests, of equal or

greater importance, are present in these air pollution

cases.

The executive branch has entered into

international agreements designed to regulate

greenhouse gas emissions and continues to participate

in international negotiations to identify areas for

cooperation between nations.

See, e.g., Paris

Agreement to the United Nations Framework

Convention on Climate Change, Dec. 12, 2015, T.I.A.S.

No. 16-1104; Kyoto Protocol to the United Nations

Framework Convention on Climate Change, Dec. 10,

1997, 2303 U.N.T.S. 162; Rio Declaration on

Environment and Development, Jun. 13, 1992, 31 ILM

874 (1992).

Respondents attempt to impose a

damages sanction on petitioners for the very conduct,

based on the same theory of harm, that is the focus of

these national diplomatic efforts.

The potential

interference with federal foreign policy further

demonstrates the national importance here that

justifies this Court’s review.

14

III. Respondents distort universal tort doctrine

as found in every jurisdiction, state and

federal, in the United States.

There are two reasons why this Court should reach

the validity of the tort claims addressed below. To be

sure, basic federalism principles dictate that every

state has the right to determine the content of its own

tort law. But that power is subject to constitutional

constraints. First, where, as here, the federal common

law controls, federal courts must develop the

substantive law that governs. The Hawaii Supreme

Court’s misapplication of tort law is not a matter of

state law, but instead represents the erroneous

incorporation of a state tort standard into the federal

common law of interstate pollution. In fashioning a

federal common law rule, courts may consider the

incorporation of state law, but the guiding principle is

to prevent significant conflict between state and

federal policies. In this case, this Court must address

the Hawaii Supreme Court’s distortion of standard

tort law principles as federal common law. Federal

courts have so far been unable to address the

substance of the federal common law in these cases

because the. Courts of Appeals, including the Ninth

Circuit in this case, City & Cnty. Honolulu v. Sunoco

LP, 39 F.4th 1101 (9th Cir. 2022), cert. denied 143

S. Ct. 1799 (2023), have refused to allow removal of

these actions from state court.

Second, this Court should grant certiorari to make

clear that the Fourteenth Amendment’s limits on the

exercise of personal jurisdiction bar Hawaii’s effort

here to regulate extraterritorially. The Respondents

did not claim that the case falls within its general

15

jurisdiction. The Hawaii Supreme Court’s assertion of

specific personal jurisdiction requires this Court to

evaluate the Respondents’ substantive causes of

action because their unlimited breadth expands the

state’s power so far as to render Due Process

protections meaningless. The Hawaii Supreme Court

has wrongly exercised its power over Petitioners by

defining a novel cause of action that has no geographic

or temporal limits. This allows the court below to

impermissibly transform specific jurisdiction into a

general jurisdiction that every state could exercise

over Petitioners. But no state could claim jurisdiction

over a motor collision in another state solely on the

ground that some of its citizens hope to do business on

some future day with the children of one of the

participants. This Court cannot allow speculative

connections to justify personal jurisdiction that would

allow every state in the nation to claim power over

every automobile accident in the world. While not

presented by the Petitioners, the question of judging

the Hawaii Supreme Court’s power to exercise specific

jurisdiction under the Fourteenth Amendment

requires evaluation of the tort claim.

Here, the Hawaii Supreme Court has adopted a

theory of tort liability so broad that it allows any state

to exercise personal jurisdiction over any defendant

involved in the production or distribution of fossil fuels

anywhere in the world. Measured against standard

personal jurisdiction cases such as International Shoe

v. Washington, 326 U.S. 310 (1945), McGee v

International Life Insurance Co., 355 U.S. 220 (1957),

and Phillips Petroleum v. Shutts, 472 U.S. 797 (1985),

Hawaii’s assertion of jurisdiction cannot be sustained.

This Court recently cited International Shoe for the

16

proposition that “a tribunal’s authority depends on the

defendant's having such ‘contacts’ with the forum

State that ‘the maintenance of the suit’ is ‘reasonable,

in the context of our federal system of government’ and

‘does not offend traditional notions of fair play and

substantial justice.’” Ford Motor Co. v. Montana

Eighth Judicial District Court, 592 U.S. 351, 358

(2021) (quoting International Shoe v. Washington, 326

U.S. 310, 316-17 (1945)). Here, there is no discrete

transaction, no automobile accident, no credit

transaction, no local tax, and no local real estate

interest within the state that meets the minimum

contacts test. Instead, the Respondents plead vague

counts of fraudulent misrepresentation and

fraudulent concealment that contain none of the

recognized elements of these familiar causes of action.

Respondents’ skeletal pleadings cannot be taken at

face value on this jurisdictional point. Once the

surplusage is stripped away, all that remains of these

claims is a bare assertion that Petitioners sold their

products in Hawaii in a lawful and proper matter,

which is also true of every local independent

distributor and retailer of fuel products in this and

every other state.

The opinion does not analyze whether Hawaii has

pleaded the standard elements of nondisclosure and

misinformation theories of liability found everywhere

in the United States. In fact, it pleaded none of these

elements. As stated in the Restatement (Second) of

Torts:

One

who

fraudulently

makes

a

misrepresentation of fact, opinion, intention

or law for the purpose of inducing another to

17

act or to refrain from action in reliance upon

it, is subject to liability to the other in deceit

for pecuniary loss caused by his justifiable

reliance on the misrepresentation.

RESTATEMENT (SECOND) OF TORTS § 525 (1977).

Misrepresentation and concealment cases both

start with the proposition that the defendant

possesses material information that is not known to

the plaintiff, after which the defendant makes a false

statement or, alternatively, omits to mention some

key fact of relevance to the plaintiff. The plaintiff, to

its detriment, then relies on the false statement or

improper omission, which in this case allegedly

includes a wide array of permanent damages to

Hawaii’s environment.

But the complaint only denounces a supposed

campaign of misinformation without specifying any of

its components. There is no allegation that fossil fuel

consumed in Hawaii was marketed using any

identifiable public statements that the production and

use of fossil fuels carries no or little danger to the

environment. Rather, Petitioners claimed without

contradiction that their fossil fuels could improve gas

mileage, reduce engine wear, or even reduce the

emission of harmful substances like nitrous acid and

sulfur dioxide. These statements cannot be treated as

a form of misinformation if they are all true. Indeed,

each of these true statements helps to improve the

operation of a competitive market, which only

produces positive externalities, not Respondents’

unspecified negative externalities. Hawaii has an

active Office of Consumer Protection, yet the Hawaii

Supreme Court has not produced a single instance in

18

which either that agency or the Federal Trade

Commission raised the issue of greenhouse gases with

any of the Petitioners as a matter of public concern.

DEP’T OF COM. & CONSUMER AFFS., OFF. OF CONSUMER

PROT. (2013), https://cca.hawaii.gov/blog/office-ofconsumer-protection/.

Sellers, distributors, and commercial consumers

within Hawaii commonly handle, use, consume, and

promote fossil fuel products in countless goods and

services without disclosing anything about carbon

dioxide or global warming. Yet Respondents did not

sue any of these local restaurants, recreational

facilities, transportation providers, or factories. The

same applies to the Hawaiian retailers who have a

closer connection to the public than Petitioners. By the

Respondents’ logic, however, the silence of these

businesses should be regarded as an illicit, and hence

actionable, form of omission.

Respondents’ complaint is similarly deficient in

establishing the element of reliance, which is critical

to any claim of fraudulent statements or omissions.

The minimum condition to prove a fraud case is

asymmetric information between the two parties. The

defendants must know something that the plaintiffs

do not. A leading illustration of a fraudulent

statement that caused justified reliance by the

plaintiffs is the English case, Derry v. Peek, L. R. 14

App.

Cas.

337

(1889).

There

the

fatal

misrepresentation was that defendants had “the right

to use steam or mechanical motive power instead of

horses” to run their trams along the public way, even

though they had secured such authorization for only

part of that way. Id. at 347. The concealment of that

19

vital information hurt the plaintiffs’ investment

prospects. The plaintiffs, who had no independent

source of information, relied on the defendants.

Section 9 of the Third Restatement of Torts also

sharply limits a plaintiff’s right to recover for any

trivial misstatements by requiring that all

misrepresentations be material:

§9. fraud Comment d. Materiality:

Liability for fraud attaches only to

misrepresentations that are material. A

misrepresentation is material if a

reasonable person would give weight to it in

deciding whether to enter into the relevant

transaction, or if the defendant knew that

the plaintiff would give it weight (whether

reasonably or not). The question, in effect, is

whether the defendant knew or should have

known that the misrepresentation would

matter to the plaintiff . . .

RESTATEMENT (THIRD) OF TORTS § 9 (2020).

This understanding is incorporated, for example,

into Rule 14a-9, promulgated under section 14(a) of

the Securities Exchange Act of 1934, which provides

that no proxy solicitation shall be made “which . . . is

false or misleading with respect to any material fact,

or which omits to state any material fact necessary in

order to make the statements therein not false or

misleading.” 17 C.F.R. § 240.14a-9(a). Thus, TSC

Industries, Inc. v. Northway, Inc, 426 U.S. 438 (1976),

stands for the proposition that sophisticated parties to

financial transactions must make reasonable

inquiries on their own, based on the information that

20

they already have acquired either from the defendant

or from independent sources. These parties should

rely, when appropriate, on informed intermediaries to

get accurate information about a proposed

transaction. There is a duty of inquiry on the recipient

of information from standard sources, which the

Respondents here and the public had in abundance.

Respondents fail to satisfy any of these

requirements for a claim of misstatement or

concealment. First, they do not identify any excessive

overpromotion or deliberate omissions that could form

the basis of liability. Respondents' general allegations

are so broad that they could apply to different sellers,

saying different things, at different times, to different

buyers. Pleading with particularity is necessary here

to give fair notice to each Petitioner to allow it to

prepare its individual defense.

Second, Respondents fail to identify the

information

that

Petitioners

must

disclose.

Respondents’ complaint assumes that the Petitioners

are in possession of information on global warming of

which the plaintiffs are ignorant. But nothing could

be further from the truth. Information about climate

change is a matter of public knowledge and can be

obtained from many different sources, each with its

own distinctive perspective.

No defendant, and

certainly none of the Petitioners in this case, could

deceive the Respondents given the substantial

knowledge available to state government entities. As

for the public, it is composed of highly heterogenous

groups of people who can acquire their information on

global warming and fossil fuels from many different

sources. Members of the public might have taken

21

anything that the Petitioners might have said about

global warming with a grain of salt or discounted it in

favor of other positions.

Respondents also face insuperable obstacles on the

question of causation. First, Respondents do not rule

out independent causes of global warming that are

widely understood in the scholarly literature.

Methane, for example, is often regarded as a cause of

climate change. Global Climate Change: Evidence,

NASA GLOBAL CLIMATE CHANGE AND GLOBAL

WARMING: VITAL SIGNS OF THE PLANET (2022),

https://climate.nasa.gov/vital-signs/methane/.

The

sale or use of fossil fuels only takes place after its

production. Furthermore, environmental disasters

can have a variety of causes unrelated to fossil fuels.

To give but one Hawaiian example, multiple accounts

of the 2023 Maui fires stress a variety of natural and

human causes without mentioning carbon dioxide or

fossil fuels. 2 Elsewhere, Maui officials have claimed

that “the ‘intentional and malicious’ mismanagement

of power lines by Hawaiian Electric,” caused the fire,

which attributes the fire’s cause to gross human error

rather than to any (nonexistent) marketing campaign

to induce the public to continue to use fossil fuels. 3

See, e.g., Clair Rush et al., Maui’s fire became deadly fast.

Climate change, flash drought, invasive grass and more fueled it,

PRESS

(Aug.

10,

2023),

ASSOCIATED

https://apnews.com/article/hawaii-wildfires-climate-change92c0930be7c28ec9ac71392a83c87582.

2

3 See Adeel Hassan & Anna Betts, Maui Wildfires Latest: Lahaina

Reopens to Residents, THE NEW YORK TIMES (Sept. 29, 2023),

https://www.nytimes.com/article/maui-wildfires-hawaii.html#:~:tex

22

Respondents cannot tease out the supposed effects of

fossil fuels from all other possible causes for the

environmental harms that they have allegedly

suffered.

In AEP, this Court held that the CAA’s

comprehensive scheme pre-empted any public

nuisance tort for the release of carbon dioxide into the

air. The decision itself only preempted suits under

federal common law; it did not preclude any state

public nuisance action so long as the sources and

targets of pollution were all located within the same

state. Nonetheless, the same fatal flaws with a judgemade federal common law cause of action applies as

well to any analogous state law action. In both

settings, the private law action could work at crosspurposes with the general regulatory federal scheme.

In the aftermath of Massachusetts v. EPA, 549 U.S.

497 (2007), where this Court instructed the EPA to

develop a plan to control carbon dioxide emissions,

AEP found emissions subject to direct regulation by

the Clean Air Act, not a patchwork of state private tort

actions.

Respondents cannot rely on the causation theory

used in ordinary pollution cases that they explicitly

disclaimed in their pleadings. The theory of causation

necessarily varies with changes in the underlying

cause of action. In this context, the correct definition

of causation does not ask how much global warming is

caused by pollution. It only asks the far more limited

question of how much, if any, the public would have

t=Maui%20County%20officials%20have%20claimed,had%20allowe

d%20flames%20to%20spark.

23

altered its fossil fuel consumption if it had received

material information that Petitioners allegedly

withheld. The answer here is de minimis at most. The

public already held this information; its members

would not have changed their behavior based on the

information that they already knew. In a world

saturated with constant discussion of global warming,

marketing that relied on no false statements about

fossil fuels cannot amount to misinformation and

concealment that caused a change in public behavior.

This weakness in causation makes it all the more

imperative for this Court to recognize that federal

common law preempts these state tort claims.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

24

Respectfully submitted,

JOHN YOO

Counsel of Record

1550 Tiburon Blvd. #G-503

Tiburon, CA 94920

(510) 600-3217

johncyoo@gmail.com

RICHARD A. EPSTEIN

16 Thomas Place

Norwalk, CT 06853

(773) 450-4476

raepstein43@gmail.com

Counsel for Amici Curiae