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

Supreme Court of the United States

──────────────────────────

SUNOCO LP, ET AL.,

Petitioners,

v.

CITY & COUNTY OF HONOLULU, ET AL.,

Respondents.

──────────────────────────

SHELL PLC, ET AL.,

Petitioners,

v.

CITY & COUNTY OF HONOLULU, ET AL.,

Respondents.

──────────────────────────

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE SUPREME COURT OF HAWAII

──────────────────────────

BRIEF OF ALABAMA AND 19 OTHER STATES AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

──────────────────────────

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Robert M. Overing

Deputy Solicitor General

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

Counsel for Amici States

(additional counsel listed on signature page)

APRIL 1, 2024

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ................................ 1

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

ARGUMENT................................................................ 3

I.

Federalism and Precedent Foreclose

State-Law Claims Based on Interstate

Emissions. ...................................................... 3

A. Federalism

permits

States

to

regulate emissions within their

borders but not beyond them. .................. 5

B. Claims based on interstate emissions

are interstate controversies that

demand a uniform federal rule of

decision. .................................................. 10

C. Displacement of federal common law

does not render state law competent

to govern interstate emissions. .............. 15

II.

This Case Is an Ideal Vehicle to Address

an Issue of Great Constitutional and

Economic Significance. ................................ 19

CONCLUSION .......................................................... 22

ii

TABLE OF AUTHORITIES

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) .............................. 10, 15, 17-19

Anne Arundel County v. BP P.L.C.,

94 F.4th 343 (4th Cir. 2024).................................. 14

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ............................................... 16

Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor

Energy (U.S.A.) Inc.,

25 F.4th 1238 (10th Cir. 2022).............................. 15

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) ................................................. 9

Bonaparte v. Appeal Tax Ct. of Baltimore,

104 U.S. 592 (1881) ................................................. 8

Boomer v. Atl. Cement Co.,

257 N.E.2d 870 (1970) ............................................. 6

Boyle v. United States,

487 U.S. 500 (1998) ............................................... 13

Bucks County v. BP P.L.C. et al.,

No. 2024-01836 (Pa. Ct. Com. Pl. filed

Mar. 25, 2024)........................................................ 14

Burton’s Lessee v. Williams,

16 U.S. 529 (1818) ................................................... 3

California ex rel. Bonta v. Exxon Mobil Corp.,

No. CGC23609134 (S.F. Super. Ct. filed

Sept. 15, 2023) ....................................................... 14

iii

City & Cnty. of Honolulu v. Sunoco LP,

39 F.4th 1101 (9th Cir. 2022)................................ 14

City of Charleston v. Brabham Oil Co.,

No. 23-1802 (4th Cir.)............................................ 14

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

No. 2024CH01024 (Ill. Cir. Ct. filed

Feb. 20, 2024) ........................................................ 14

City of Hoboken v. Chevron Corp.,

45 F.4th 699 (3d Cir. 2022) ................................... 14

City of Milwaukee v. Illinois, (Milwaukee II)

451 U.S. 304 (1981) ............................................... 16

City of New York v. Chevron Corp.,

993 F.3d 81 (2021) .................. 7, 9, 11, 14-16, 20, 21

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

969 F.3d 895 (9th Cir. 2020) ................................. 15

Clearfield Tr. Co. v. United States,

318 U.S. 363 (1943) ............................................... 13

Connecticut v. Exxon Mobil Corp.,

83 F.4th 122 (2d Cir. 2023) ................................... 14

Connecticut v. Massachusetts,

282 U.S. 660 (1931) ........................................... 4, 12

County of Maui v. Chevron U.S.A. Inc.,

39 F.4th 1101 (9th Cir. 2022)................................ 14

County of Multnomah v. Exxon Mobil Corp.,

No. 23-CV25164 (Or. Cir. Ct. filed

June 22, 2023) ....................................................... 14

County of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022).................................. 15

iv

Coyle v. Smith,

221 U.S. 559 (1911) ................................................. 3

Delaware ex rel. Jennings v. B.P. America, Inc.,

No. 22-1096 (3rd Cir. 2022)................................... 14

District of Columbia v. Exxon Mobil Corp.,

89 F.4th 114 (D.C. Cir. 2023) ................................ 14

Franchise Tax Bd. of Cal. v. Hyatt,

587 U.S. 230 (2019) ................................................. 3

Georgia v. Tenn. Copper Co.,

206 U.S. 230 (1907) ....................................... 4, 6, 11

Gibbons v. Ogden,

22 U.S. 1 (1824) ....................................................... 4

Healy v. Beer Inst.,

491 U.S. 324 (1989) ................................................. 9

Hinderlider v. La Plata River & Cherry Creek Ditch

Co.,

304 U.S. 92 (1938) ................................................... 4

Hoyt v. Sprague,

103 U.S. 613 (1880) ................................................. 8

Huron Portland Cement Co. v. City of Detroit,

362 U.S. 440 (1960) ................................................. 6

Illinois v. City of Milwaukee, (Milwaukee I)

406 U.S. 91 (1972) ............................... 2, 4, 5, 10, 11

........................................................ 13, 15, 17, 18, 20

Illinois v. City of Milwaukee, (Milwaukee III)

731 F.2d 403 (7th Cir. 1984) ................................. 17

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ................................... 14, 17, 18

v

Iowa v. Illinois,

147 U.S. 1 (1893) ................................................... 12

Kansas v. Colorado,

206 U.S. 46 (1907) ............................. 3, 4, 10, 13, 17

King County v. BP P.L.C.,

No. C18-758-RSL (W.D. Wash. 2018) ................... 15

Kurns v. RR. Friction Prods. Corp.,

565 U.S. 625 (2012) ................................................. 9

Lane County v. Oregon,

74 U.S. 71 (1868) ..................................................... 9

Lessee of Marlatt v. Silk,

36 U.S. 1 (1837) ....................................................... 4

Lochner v. New York,

198 U.S. 45 (1905) ................................................... 5

Mayor & City Council of Baltimore v. BP P.L.C.,

31 F.4th 178 (4th Cir. 2022).................................. 15

McIlvaine v. Coxe’s Lessee,

8 U.S. 209 (1808) ..................................................... 3

Metro v. Exxon Mobil Corp.,

No. 23-cv-51752 (D. Or. filed Jan. 3, 2024) .......... 14

Minnesota v. Am. Petroleum Inst.,

63 F.4th 703 (8th Cir. 2023)........................ 5, 10, 14

Missouri v. Illinois,

200 U.S. 496 (1906) ....................................... 3, 4, 11

Missouri v. Illinois,

180 U.S. 208 (1901) ................................................. 4

Municipalities of Puerto Rico v. Exxon Mobil,

No. 3:22-cv-01550 (D.P.R. 2022) ........................... 15

vi

Murphy v. Nat’l Collegiate Athletic Ass’n,

584 U.S. 453 (2018) ................................................. 3

Nat’l Audubon Soc’y v. Superior Ct.,

658 P.2d 709 (Cal. 1983) ......................................... 6

Native Vill. of Kivalina v. ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012) ................................. 17

New Jersey v. Exxon Mobil,

No. 22-cv-06733 (D.N.J. 2022) .............................. 15

New Jersey v. New York,

283 U.S. 336 (1931) ............................................. 4, 6

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................. 7

New York v. JBS USA Food Co.,

No. 450682/2024 (N.Y. Sup. Ct. filed

Feb. 28, 2024) ........................................................ 22

North Carolina ex rel. Cooper v. Tenn. Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ........................... 14, 15

Nw. Laundry v. City of Des Moines,

239 U.S. 486 (1916) ................................................. 6

Oneida Indian Nation of N.Y. v. Oneida County,

414 U.S. 661 (1974) ............................................... 17

Rhode Island v. Massachusetts,

37 U.S. 657 (1838) ............................................... 3, 4

Rhode Island v. Shell Oil Prods. Co.,

35 F.4th 44 (1st Cir. 2022) .........................14, 15-16

Sable Commc’ns of Cal., Inc. v. FCC,

492 U.S. 115 (1989) ................................................. 7

San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236 (1959) ................................................. 9

vii

State Farm Mut. Auto. Ins. Co. v. Campbell,

538 U.S. 408 (2003) ................................................. 5

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) ......................................... 10, 16

United States v. Standard Oil Co.,

332 U.S. 301 (1947) ......................................... 13, 16

Vermont v. Exxon Mobil,

No. 2:21-cv-00260 (D. Vt. 2021) ............................ 15

Virginia v. Tennessee,

148 U.S. 503 (1893) ............................................... 12

Wisc. Dept. of Ind. v. Gould Inc.,

475 U.S. 282 (1986) ............................................... 14

Statutes

42 U.S.C. §7401(a)(3) .................................................. 6

42 U.S.C. §7410(a)(1) .................................................. 6

Ala. Code §6-5-127 ..................................................... 13

Ala. Code §9-1-6(a) .................................................... 12

Ala. Code §9-2-2......................................................... 13

Ala. Code §9-17-1 ....................................................... 12

Ala. Code §22-23-47 ................................................... 13

Ala. Code §22-28-3 ..................................................... 13

Cal. Gov’t Code §7513.75(a)(3) (West) ........................ 7

Cal. Pub. Res. Code §25000.5(a) (West) ..................... 7

Tex. Water Code Ann. §7.257 (West) .......................... 6

Utah Code Ann. §78B-4-515 ....................................... 6

viii

Other Authorities

Office of the N.Y. Att’y Gen., Attorney General

James Sues World’s Largest Beef Producer for

Misrepresenting Environmental Impact of Their

Products, Feb. 28, 2024, ag.ny.gov/pressrelease/2024/attorney-general-james-suesworlds-largest-beef-producer-misrepresenting .... 22

Stephen E. Sachs, Finding Law,

107 Cal. L. Rev. 527 (2019) ................................... 10

INTEREST OF AMICI CURIAE

The States of Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska,

North Dakota, Oklahoma, South Carolina, Texas,

Utah, and Wyoming respectfully submit this brief as

amici curiae in support of Petitioners.1

This suit is an affront to the equal sovereignty of

Amici States and a dire threat to their policy choices.

Respondents Honolulu and the Honolulu Board of

Water Supply assert the power to enact disastrous

global energy policy via state tort law. Among their

demands is that major energy companies stop “promoting the sale and use” of their fuel products.

Compl. ¶158. Any sale anywhere is deemed trespassing, id. ¶201, which Honolulu seeks “to punish …

and deter,” id. ¶206. Amici States do not share such

aims, which would imperil access to affordable energy and inculpate every State and every person on the

planet. If that is what Hawaii law requires, then

Hawaii law should not govern.

The ruling below endangers the rights of States to

adopt their own policies with respect to energy production, environmental protection, and potentially

any other activity that “exacerbate[s] the impacts of

climate change.” App.10a.2 To be sure, Amici States

recognize that one State’s actions may affect others;

after all, resources are finite and the natural world is

shared. But that reality is all the more reason why

state law cannot extend beyond its proper sphere,

and cases like this one require federal resolution.

1 Per Rule 37, Amici provided timely notice to counsel of record.

2 Citations to “App.” refer to the appendix filed in No. 23-952.

2

SUMMARY OF ARGUMENT

I. The same “demands for applying federal law” to

a dispute over interstate waters apply equally to this

dispute over interstate air. See Illinois v. City of

Milwaukee, 406 U.S. 91, 105 & n.6 (1972) (“Milwaukee I”). A case “requires” federal resolution “where

there is an overriding federal interest in the need for

a uniform rule of decision or where the controversy

touches basic interests of federalism.” Id. at 105 n.6.

Our constitutional structure and this Court’s precedents confirm that both conditions are satisfied here.

An action seeking abatement and damages for an alleged “global climate crisis” must be governed by federal law, so Honolulu’s state-law claims fail.

II. The time for this Court’s intervention is now.

The question presented has percolated for years, albeit in a removal posture that complicated review.

Such complexity is absent here, and there is now a

clear split between courts that will entertain statelaw suits over interstate emissions and courts that

will not. This case may be a unique opportunity because the Hawaii courts granted a rare interlocutory

appeal and stayed most of discovery. The Court

should act before state courts issue preliminary relief

that could trigger a national emergency or fashion a

patchwork of new taxes on the Nation’s energy system that would make life harder for every American.

3

ARGUMENT

I. Federalism and Precedent Foreclose StateLaw Claims Based on Interstate Emissions.

By declaring independence, the Colonies laid

claim “to all the rights and powers of sovereign

states.” Franchise Tax Bd. of Cal. v. Hyatt, 587 U.S.

230, 237-38 (2019) (citing McIlvaine v. Coxe’s Lessee,

8 U.S. 209, 212 (1808)). “A sovereign decides by his

own will, which is the supreme law within his own

boundary.” Rhode Island v. Massachusetts, 37 U.S.

657, 737 (1838). When sovereign wills conflict, they

may settle their differences by treaty or war. For example, if a state creates a “nuisance” “upon a navigable river like the Danube, [it] would amount to a

casus belli for a state lower down, unless removed.”

Missouri v. Illinois, 200 U.S. 496, 520-21 (1906).

But the Colonies joined the Union, and from the

origins of our federal system flow several basic tenets

of constitutional law. While the Constitution “did not

abolish the sovereign powers of the States,” it “limits

[their] sovereignty in several ways.” Murphy v. Nat’l

Collegiate Athletic Ass’n, 584 U.S. 453, 470 (2018).

Unlike “absolutely independent nations,” which

may resort to force, no State “can impose its own legislation” or “enforce its own policy upon the other[s].”

Kansas v. Colorado, 206 U.S. 46, 95, 98 (1907).

“[H]appily for our domestic harmony, the power of

aggressive operation against each other is taken

away.” Burton’s Lessee v. Williams, 16 U.S. 529, 538

(1818). Every State agreed to “stand[] on the same

level with all the rest,” id. at 97, forming “a union of

states, equal in power, dignity and authority.” Coyle

v. Smith, 221 U.S. 559, 567 (1911).

4

Relinquishing the powers of diplomacy and war

did not render the States defenseless. What would

have been political fights among sovereigns became

judicial questions with answers in federal law. Rhode

Island, 37 U.S. at 737-38, 743. By ratifying the Supremacy Clause, the States “surrendered to congress,

and its appointed Court, the right and power of settling their mutual controversies.” Id. at 737; see Kansas, 206 U.S. at 95; Missouri, 200 U.S. at 518-20;

Missouri v. Illinois, 180 U.S. 208, 241 (1901); see also; Gibbons v. Ogden, 22 U.S. 1, 211 (1824). The Constitution thus provided a structural solution for

“bickerings and animosities … that could not be foreseen.” The Federalist No. 80. “Whatever practices”

that “tend[] to disturb the harmony between the

States are proper objects of federal superintendence

and control.” Id.

In areas ripe for interstate conflict, the Court has

maintained State equality and harmony by declining

to apply any one State’s law. See Kansas, 206 U.S. at

95; Missouri, 200 U.S. at 520; see also, e.g., New Jersey v. New York, 283 U.S. 336, 342 (1931); Connecticut v. Massachusetts, 282 U.S. 660, 670-71 (1931).

Instead, only federal law can govern matters that

implicate interstate relations. The doctrine extends

even to cases involving private parties. See, e.g.,

Hinderlider v. La Plata River & Cherry Creek Ditch

Co., 304 U.S. 92, 110 (1938); Georgia v. Tenn. Copper

Co., 206 U.S. 230, 237 (1907); Lessee of Marlatt v.

Silk, 36 U.S. 1, 22–23 (1837).

The Court had these principles in mind when it

decided Milwaukee I. In an original nuisance suit,

Illinois alleged that Milwaukee was polluting Lake

Michigan, an interstate body of water. The Court in-

5

voked the logic of federalism: While Illinois could not

force Milwaukee to abate its activity, neither could

Illinois be required “to submit to whatever might be

done.” 406 U.S. at 104. Thus, the “nature of the problem” created an impasse that only neutral federal

law could resolve. Id. at 103 n.5. Congress would legislate, or federal courts would apply common law. Either way, state law cannot govern a controversy that

“touches basic interests of federalism” or that needs

“a uniform rule.” Id. at 105 n.6. “Certainly,” the pollution of Lake Michigan was such a controversy. Id.

Like Milwaukee I, this case must be decided by

federal law. Plaintiffs seek to enact a global climate

policy—one that would interfere with the sovereign

power of every other State to regulate energy within

its borders. Cf. Minnesota v. Am. Petroleum Inst., 63

F.4th 703, 718 (8th Cir. 2023) (Stras, J., concurring)

(“This is, in effect, an interstate dispute.”). By ruling

that state law can resolve an interstate dispute, the

court below contravened basic federalism principles

that this Court has applied time and again.

A. Federalism permits States to regulate

emissions within their borders but not

beyond them.

1. It is axiomatic that “each State may make its

own reasoned judgment about what conduct is permitted or proscribed within its borders.” State Farm

Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422

(2003). At the heart of State sovereignty is the police

power to “to promote the general welfare, or to guard

the public health, the public morals, or the public

safety.” Lochner v. New York, 198 U.S. 45, 67 (1905)

(Harlan, J., dissenting). A State sovereign has “real

and substantial interests” in the natural environ-

6

ment, New Jersey, 283 U.S. at 342, including “all the

earth and air within its domain,” Tenn. Copper Co.,

206 U.S. at 237. “By the law of nature these things

are common to mankind.” Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d 709, 718 (Cal. 1983) (quoting the

Justinian Code).

Through regulation, litigation, and other means,

States have long exercised their powers to reduce

pollution. See, e.g., Nw. Laundry v. City of Des

Moines, 239 U.S. 486, 490-92 (1916) (expressing “no

doubt” that “emission of smoke [was] within the regulatory power of the state”); Boomer v. Atl. Cement

Co., 257 N.E.2d 870 (1970). As a general matter, law

“designed to free from pollution the very air that

people breathe clearly falls within … the police power.” Huron Portland Cement Co. v. City of Detroit,

362 U.S. 440, 442 (1960).

States have retained certain powers to regulate

emissions notwithstanding federal intervention. The

Clean Air Act recognizes “the primary responsibility”

of States to prevent and control “air pollution … at

its source.” 42 U.S.C. §7401(a)(3). The statutory

scheme exemplifies cooperative federalism, permitting States to implement their own regulations consistent with a federal baseline. See, e.g., id.

§7410(a)(1) (providing that States adopt plans to enforce federal standards “within such State”).

As a result, our federal system allows States to

pursue divergent policies with respect to energy production and environmental protection. Compare, e.g.,

Utah Code Ann. §78B-4-515 (West) (limiting liability

for “greenhouse gas emissions”); Tex. Water Code

Ann. §7.257 (West) (providing affirmative defenses to

torts allegedly “arising from greenhouse gas emis-

7

sions”) with Cal. Gov’t Code §7513.75(a)(3) (West)

(noting “the state’s broad[] efforts to decarbonize”);

Cal. Pub. Res. Code §25000.5(a) (West) (declaring

“overdependence on … petroleum based fuels” to be

“a threat”). Such variety reflects the genius of American federalism, which allows “different communities”

to live by “different local standards.” Sable Commc’ns

of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). Within

its own domain, a State may “serve as a laboratory[]

and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co.

v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,

dissenting).

2. The theory behind this suit, however, would

trample over every State’s sovereignty to regulate

energy and other activity within its borders, posing

enormous “risk to the rest of the country.” Id. As the

court below tells it, the suit “does not seek to regulate emissions” at all. App.3a. Rather, “the source of

[the] alleged injury is … marketing conduct, not pollution.” Id. at 53a. Thus, “nothing in this lawsuit incentivizes – much less compels” emissions reduction.

Id. The energy companies “can sell as much fossil

fuel as they wish,” according to the court. Id. at 15a.

The lower court’s depiction defies “common

sense,” City of New York v. Chevron Corp., 993 F.3d

81, 93 (2021), and cannot be squared with the complaint. Right up front, Honolulu alleges that the

source of its “injuries” is a “climate crisis” caused by

“use of [] fossil fuel products.” Compl. ¶¶9, 11. Honolulu thus demands that the defendants “bear the

costs” “of dealing with global warming.” Id. ¶15.

Among the acts alleged to cause harm are “promoting the sale and use of fossil fuel products,”

8

Compl. ¶158, and “placing [] fossil fuel products into

the stream of commerce,” id. ¶161. Honolulu says the

companies should have instead invented “better

technologies” and “transition[ed] to a lower carbon

economy.” Id. ¶161. The complaint alleges trespass

for “distributing, analyzing, merchandising, advertising, promoting, marketing, and/or selling fossil fuel

products.” Id. ¶201. Each cause of action demands

punishment “for the good of society and [to] deter Defendants from ever committing … similar acts.” E.g.,

id. ¶163.

The case is about more than “torts committed in

Hawai‘i.” App.3a. If the allegations are true, Honolulu’s injuries stem from “global warming,” global

emissions, and the global use of energy and fuel

products. Compl. ¶¶148-54. As Honolulu admits, “it

is not possible to determine the source of any particular individual molecule of CO2.” Compl. ¶171. Thus,

the only way for energy companies to avoid potential

liability is to cease the production and sale of their

products everywhere. And any “[e]quitable relief, including abatement,” id. §VII, would need to reach

conduct everywhere to redress the alleged injuries.

But reducing the sale and use of traditional energy everywhere is not among a State’s constitutional

powers. Contra App.44a. Hawaii is entitled to regulate only “persons and property within the limits of

its own territory.” Hoyt v. Sprague, 103 U.S. 613, 630

(1880); see also Bonaparte v. Appeal Tax Ct. of Baltimore, 104 U.S. 592, 594 (1881). There is no historical analogue to this suit, which is plainly unlike any

“well recognized” tort. App.39a.

Honolulu cannot mask its attempt at extraterritorial policymaking with talk of “tortious marketing.”

9

App.39a. The threat of damages in tort can be “a potent method of governing conduct and controlling policy.” San Diego Bldg. Trades Council v. Garmon, 359

U.S. 236, 247 (1959). To be sure, not every suit

against the energy industry is an attempt to regulate

interstate emissions. But this case is. The trial court

admitted as much when it counted the State “interest in combatting … climate change” as a reason

against preemption. App.89a-90a. If this litigation

promotes that interest, then of course “a damages

award in this case would [] regulate emissions.” Id.

at 91a. See also New York, 993 F.3d at 93 (discussing

“basic economics”).

If the effect of Honolulu’s action would be “to impose its own policy choice on neighboring States,”

then the suit is forbidden by “principles of state sovereignty and comity.” BMW of N. Am., Inc. v. Gore,

517 U.S. 559, 572 (1996). Those principles would be

“meaningless” if a State could avoid them by doing

indirectly what it could not do directly. See Kurns v.

RR. Friction Prods. Corp., 565 U.S. 625, 637 (2012).

The lower court’s assurance that Honolulu seeks

only damages caused by tortious conduct, App.39a,

just begs the question—how much lawful conduct in

other States can Hawaii deem tortious? According to

the complaint, the allegedly tortious conduct occurred almost entirely outside of Hawaii. Some of it

predates Hawaii statehood. See Compl. ¶¶49-50. On

its face, this suit, which is “broadly the same” as

many others, App.3a, has everything to do with a national environmental agenda and very little to do

with Hawaii. Such action is well beyond the proper

sphere of States. See Healy v. Beer Inst., 491 U.S.

324, 335-36 (1989); Lane County v. Oregon, 74 U.S.

71, 76 (1868); New York, 993 F.3d at 92.

10

B. Claims based on interstate emissions are

interstate controversies that demand a

uniform federal rule of decision.

1. For two centuries, this Court has protected

States by applying federal rules of decision to interstate controversies. It follows from the equality of

States that when their sovereign wills collide, neither State’s law supersedes. See supra pp. 3-5. In

such cases, the Court “recognize[s] the equal rights of

both” by applying higher order principles—“what

may … be called interstate common law.” Kansas,

205 U.S. at 98; accord Am. Petroleum Inst., 63 F.4th

at 718 (Stras, J., concurring) (“The rule of decision …

has always been … what we now know as the federal

common law.”).

While “general common law” is no more, “specialized federal common law” remains. Am. Elec. Power

Co. v. Connecticut, 564 U.S. 410, 421 (2011) (“AEP”).

Often, the rules of specialized common law “are, in

substance, just the old general-law doctrines in disguise.” Stephen E. Sachs, Finding Law, 107 Cal. L.

Rev. 527, 558 (2019). This Court has repeatedly identified interstate common law as an example of the

“special” kind that survived Erie. See, e.g., AEP, 564

U.S. at 421; Milwaukee I, 406 U.S. at 105-06; Hinderlider, 304 U.S. at 110.

A dispute over the boundary between two States

may be the paradigm case for applying interstate

common law. But other cases “implicating the conflicting rights of States” also involve “especial federal

concerns to which federal common law applies.” Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.

630, 641 & n.13 (1981).

11

Cases involving interstate emissions—i.e., the

pollution of air and water in one State from sources

in another State—are interstate controversies that

implicate the conflicting rights of States. Accordingly, the federal judiciary has understood for well “over

a century” the need for federal resolution of these

disputes. New York, 993 F.3d at 91 (collecting cases).

Where no federal statute governs, this Court has

identified and applied federal common law.

For example, in Missouri v. Illinois, Missouri

sued to enjoin the dumping of sewage into an Illinois

river, which, the State alleged, ultimately deposited

downstream into Missouri riverbeds and poisoned

Missouri water. 200 U.S. at 517. Applying principles

“known to the older common law,” the Court found

that Missouri’s claim failed for want of injury and

causation. Id. at 522.

Interstate air pollution is no different. When

Georgia sought to enjoin a Tennessee company from

“discharging noxious gas” over state lines, Georgia

law did not govern. Tenn. Copper Co., 206 U.S. at

236. Rather, the Court identified common-law principles. As to the remedy, the Court thought a State

could be “entitled to specific relief” rather than “give

up quasi-sovereign rights for pay.” Id. at 237-38. And

the Court rejected a laches defense. Id. at 239. Its

analysis did not depend on state law but a federal

equity jurisprudence for interstate emissions cases.

More recently in Milwaukee I, the Court recognized a general rule: a State’s claims to protect its

“ecological rights” against “improper impairment …

from sources outside the State[]” have their “basis

and standard in federal common law.” 406 U.S. at

100. The dispositive fact was not that Lake Michigan

12

is a body of water but that it is “bounded … by four

States,” one of which was polluting. Id. at 104 n.6.

When “deal[ing] with air and water in their … interstate aspects,” the “basic interests of federalism” demand the application of a neutral law: federal law.

Id. at 103 n.5, 104 n.6; see also Iowa v. Illinois, 147

U.S. 1, 7-8, 13 (1893) (rejecting the views of dueling

state courts in favor of “equality” in river rights);

Connecticut, 282 U.S. at 669-70 (rejecting “municipal

law”); Virginia v. Tennessee, 148 U.S. 503, 523-24

(1893) (applying public law, international law, and

moral law).

Having alleged liability for interstate emissions,

Honolulu’s suit is an interstate controversy under

this Court’s binding precedent. Though Respondents

will undoubtedly characterize their case as a matter

of local tort law, the ramifications for other States if

the suit “succeeds” are clear: The traditional energy

companies would be forced to pay damages, disgorge

profits, and pay punitive penalties amounting to a de

facto carbon tax. Worse, they could face unspecified

equitable relief to abate “the impacts of climate

change.” App.10a.

Honolulu’s aims conflict with many policies

adopted by Amici States. Alabama, for example,

highly values the production and use of traditional

energy. It is Alabama’s policy “that the extraction of

coal provides a major present and future source of

energy and is an essential and necessary activity

which contributes to the economic and material wellbeing of the state.” Id. §9-1-6(a); see also id. §9-17-1,

et seq. (governing the development of oil and gas).

While Alabama has also enacted laws to protect

air quality, prevent water pollution, and conserve

13

wildlife, see, e.g., Ala. Code §§6-5-127, 9-2-2, 22-2347, 22-28-3, its views on how to achieve those ends

diverge sharply from those of Honolulu. This Court

should reaffirm that cases about interstate emissions

are interstate conflicts in which no State is “bound to

yield its own views.” Kansas, 206 U.S. at 97.

2. Separately, this Court has identified the need

for uniformity as a structural reason to apply federal

law. Specialized federal common law “remain[s] unimpaired for dealing … with essentially federal matters,” United States v. Standard Oil Co., 332 U.S.

301, 307 (1947), i.e., those implicating “uniquely federal interests … committed by the Constitution and

laws of the United States to federal control.” Boyle v.

United States, 487 U.S. 500, 504 (1998) (cleaned up).

Uniquely federal interests exist where the application of state law “would lead to great diversity in results by making identical transactions subject to the

vagaries of the laws of several states.” Clearfield Tr.

Co. v. United States, 318 U.S. 363, 367 (1943).

The problem of interstate emissions requires a

uniform federal solution. Only federal law, “not the

varying common law of individual states,” can serve

as a “basis for dealing in uniform standard with the

environmental rights of [each] State.” Milwaukee I,

406 U.S. at 108 n.9. The Court’s view in Milwaukee I

applies a fortiori to claims premised on global emissions, which implicate every State, not just those

with claims to a specific river or lake.

The logic of the ruling below would mean that the

conduct of energy companies could be subjected to

every State’s regulatory and enforcement regime

simultaneously—resulting in unpredictable and irreconcilable duties. See Wisc. Dept. of Ind. v. Gould

14

Inc., 475 U.S. 282, 286 (1986) (“Conflict is imminent

whenever two separate remedies … bear on the same

activity.” (cleaned up)). The alternative to federal law

is a “balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike.” North Carolina

ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291,

296 (4th Cir. 2010); see also New York, 993 F.3d at

91. If every State can regulate the same conduct, energy companies will face tremendous “vagueness”

and “uncertainty,” and States will risk “chaotic confrontation” with each other. Int’l Paper Co. v. Ouellette, 479 U.S. 481, 496 (1987).

Unfortunately, such chaos is already unfolding.

Dozens of States and localities have brought enforcement actions like this one under the aegis of

their own state laws.3 The resulting lack of uniformi3 See, e.g., Bucks County v. BP P.L.C. et al., No. 2024-01836 (Pa.

Ct. Com. Pl. filed Mar. 25, 2024); Anne Arundel County v. BP

P.L.C., 94 F.4th 343 (4th Cir. 2024); City of Chicago v. BP

P.L.C., No. 2024CH01024 (Ill. Cir. Ct. filed Feb. 20, 2024); Metro v. Exxon Mobil Corp., No. 23-cv-51752 (D. Or. filed Jan. 3,

2024); District of Columbia v. Exxon Mobil Corp., 89 F.4th 114

(D.C. Cir. 2023); California ex rel. Bonta v. Exxon Mobil Corp.,

No. CGC23609134 (S.F. Super. Ct. filed Sept. 15, 2023); City of

Charleston v. Brabham Oil Co., No. 23-1802 (4th Cir.); County

of Multnomah v. Exxon Mobil Corp., No. 23-CV25164 (Or. Cir.

Ct. filed June 22, 2023); Connecticut v. Exxon Mobil Corp., 83

F.4th 122 (2d Cir. 2023); Minnesota, 63 F.4th 703; Rhode Island

v. Shell Oil Prods. Co., 35 F.4th 44 (1st Cir. 2022); City of

Hoboken v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022) (consolidated with Delaware ex rel. Jennings v. B.P. America, Inc., No.

22-1096 (3rd Cir. 2022)); City & Cnty. of Honolulu v. Sunoco LP,

39 F.4th 1101 (9th Cir. 2022) (consolidated with County of Maui

v. Chevron U.S.A. Inc., 39 F.4th 1101 (9th Cir. 2022)); County of

San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022);

15

ty will continue to breed confusion while threatening

ruinous liability for traditional energy companies. As

proceedings progress around the country, it becomes

more and more likely that one state court, interpreting one State’s law, could “scuttle the nation’s carefully created system for accommodating the need for

energy production and the need for clean air.” North

Carolina, 615 F.3d at 296; see also AEP, 564 U.S. at

427 (“[O]ur Nation’s energy needs and the possibility

of economic disruption must weigh in the balance.”).

Disaster may be avoided by this Court’s instruction

to apply only federal law to cases premised on interstate emissions.

C. Displacement of federal common law

does not render state law competent to

govern interstate emissions.

To the extent that Milwaukee I rejected state law

as a decisional rule for interstate conflicts over air

and water, the case remains precedential. Yet the

court below and others around the country have resisted Milwaukee I’s application to cases like this

one, reasoning that the federal common law governing interstate emissions “no longer exists” after the

Clean Air Act and Clean Water Act. App.38a (quoting Boulder, 25 F.4th at 1260); see also, e.g., Rhode

Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178

(4th Cir. 2022); Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor

Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022); New Jersey

v. Exxon Mobil, No. 22-cv-06733 (D.N.J. 2022); Municipalities of

Puerto Rico v. Exxon Mobil, No. 3:22-cv-01550 (D.P.R. 2022);

City of Oakland v. BP P.L.C., 969 F.3d 895 (9th Cir. 2020);

Vermont v. Exxon Mobil, No. 2:21-cv-00260 (D. Vt. 2021); City of

New York, 993 F.3d 81; King County v. BP P.L.C., No. C18-758RSL (W.D. Wash. 2018).

16

Island, 35 F.4th at 55; Baltimore, 31 F.4th at 206. On

this view, displacement of federal common law allows

“state law … [to] snap back into action unless specifically preempted by statute.” City of New York, 993

F.3d at 98. The “snap back” approach is misguided

for several reasons.

First, the court below misapprehended the function of federal common law, which “exists … because

state law cannot be used.” City of Milwaukee v. Illinois, 451 U.S. 304, 313 n.7 (1981) (“Milwaukee II”).

In the “enclaves” of federal common law, States are

not “free to develop their own doctrines.” Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426

(1964). After displacement, “the need” for federal

common law “disappears,” App.48a, but only because

a different federal rule governs. Whatever form federal law takes, it remains equally “inappropriate for

state law to control.” Texas Indus., 451 U.S. at 641.

As the Second Circuit explained, “state law does not

suddenly become competent to address issues that

demand a unified federal standard simply because

Congress … displace[d] a federal court-made standard with a legislative one.” New York, 993 F.3d at 98.

The Court addressed the same issue in Standard

Oil, a damages action arising from the collision of a

truck with a U.S. Army soldier. 332 U.S. at 302. The

Court answered the choice-of-law question first: The

truck owner’s liability could not “be determined by

state law” because the matter “vitally affect[ed] [federal] interests, powers, and relations … as to require

uniform national disposition rather than diversified

state rulings.” Id. at 305, 307. “The only question,”

then, was “which organ of the Government is to

make the determination that liability exists.” Id. at

316. Finding that decision best left “for the Congress,

17

not for the courts,” id. at 317, the Court effectively

barred a remedy. It did not then revisit its choice-oflaw holding in the absence of federal common law.

Similarly, a claim traditionally governed by federal common law remains so, notwithstanding

whether that “claim may fail at a later stage.” Oneida Indian Nation of N.Y. v. Oneida County, 414 U.S.

661, 675 (1974); cf. Ouellette, 479 U.S. at 499-500.

Any “displacement of a federal common law right of

action” is a “displacement of remedies.” Native Vill.

of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 857

(9th Cir. 2012). Whether the remedy is still “good

law,” App.48a, has no bearing on centuries of doctrine that forbids the application of state law. On the

lower court’s view, if Honolulu’s suit would not succeed under federal common law, then every interstate pollution case before the Clean Air Act is

irrelevant. That is “backwards reasoning.” Id.

Second, state law would be especially inappropriate to replace federal common law fashioned out of

constitutional necessity. Here, interstate common

law developed because “the basic scheme of the Constitution so demands.” AEP, 564 U.S. at 421. “The

very reasons the Court gave for resorting to federal

common law in Milwaukee I are the same reasons

why … federal law must govern” even after any displacement. Illinois v. City of Milwaukee, 731 F.2d

403, 410-11 (7th Cir. 1984) (“Milwaukee III”). In an

area ripe for interstate conflict, applying one State’s

law would derogate the sovereignty of another; it

would treat the States unequally. Kansas, 206 U.S.

at 95. If this case is an interstate conflict, then it

would be a constitutional wrong to apply Hawaii law.

18

Likewise, if “uniquely federal” interests demand

“uniform federal standards,” state law can never be

conclusive. Milwaukee III, 731 F.2d at 410. The interests identified in Milwaukee apply even more

strongly here. As the Court explained in AEP, “district judges issuing ad hoc, case-by-case injunctions”

are not well “suited to serve as primary regulator of

greenhouse gas emissions.” 564 U.S. at 428. If that

was one of the reasons for displacement, it would

make no sense for state law to “snap back” and recreate the problem that better federal law was needed

to solve.

Third, the court below misread AEP. True, the

Court left open the possibility of certain state-law

claims, 564 U.S. at 429, but not Honolulu’s claims.

The Court remarked in dicta that after the Clean

Water Act, plaintiffs could still bring a “nuisance

claim pursuant to the law of the source State.” Id.

(quoting Ouelette, 479 U.S. at 489) (emphasis in original). That fact does not help Honolulu, which brings

its claims under Hawaii law, not the law of the

source States. See Ouelette, 479 U.S. at 495. The type

of claim AEP left open (intrastate) was never governed by federal common law in the first place. The

type of claim here (interstate) was historically governed by federal common law, precluding state law.

In fact, AEP reaffirmed that “suits brought by one

State to abate pollution emanating from another

State” are “meet for federal law governance.” 564

U.S. at 421-22. In such suits, “borrowing the law of a

particular State would be inappropriate.” Id. (citing

cases pre- and post-Erie). Claiming AEP for itself,

the court below largely ignored these lines, App.48a,

as well as this Court’s doubt that “a State may sue to

abate any and all manner of [interstate] pollution.”

19

AEP, 564 U.S. at 421-22. If federal law might not

provide a cause of action for unbounded claims of

global warming, id. at 422-23, the AEP Court surely

did not invite state law to fill the void.

II. This Case Is an Ideal Vehicle to Address an

Issue of Great Constitutional and Economic

Significance.

1. This case may be a rare opportunity for the

Court to intervene before Amici States, their citizens,

and our Nation’s energy sector suffer tremendous

damage. The trial court granted an interlocutory appeal from the denial of a motion to dismiss for failure

to state a claim. Although the court could not “recall

a single time” it had granted such an appeal, “this

case is different.” Sunoco.App.87a. “This case is unprecedented” because the “complexity, scope, time,

and cost of discovery and motion practice, let alone

trial, will be enormous. The impact on judicial resources will be significant.” Id. Erroneously proceeding beyond the motion-to-dismiss stage would be an

“enormous waste of money, time, and resources.” Id.

The trial court was right, and this Court’s calculus should account for the “enormous” costs of continued litigation here and in dozens of courts around

the country. See supra n.3. In this case, the parties

were spared the potential waste by a stay pending

appeal. But other proceedings may not be stayed;

other courts may not grant an interlocutory appeal

on these issues at all. Consequently, the Court may

not have another chance to review before litigation

costs skyrocket. Worse, the Court may not have another chance to review before a state court imposes

devastating preliminary relief. The plaintiffs here

are demanding “abatement of the nuisances.”

20

2. The question presented has percolated, and a

clear split of authority has emerged. Because this

case arose in state court, the Court may resolve the

split without reaching any more complicated questions concerning removal jurisdiction.

In the Second Circuit, a “nuisance suit seeking to

recover damages for the harms caused by global

greenhouse gas emissions” may not proceed under

state law. New York, 993 F.3d at 91. That court did

not credit New York’s narrative that its suit concerned only “production, promotion, and sale,” rather

than the regulation of emissions. Id. The court held

that New York’s claims “must be brought under federal common law,” but the Clean Air Act “barred”

them by displacing the common-law remedy. Id. at

95, 100. Nor did the Act “[r]esuscitate” state-law

claims that were verboten under federal common

law. Id. at 98.

The Seventh Circuit decided decades ago that

“the state claiming injury cannot apply its own state

law to out-of-state discharges.” Milwaukee III, 731

F.2d at 410. Illinois had squarely argued that if federal common law were “dissipated” by statute, “Illinois law must again control.” Id. at 406. Citing “the

logic of Milwaukee I,” the court rejected the notion

that state law could ever apply to interstate pollution. Id. at 411. Whether common law or statute,

“federal law must govern.” Id.

The Hawaii Supreme Court expressly departed

from both decisions. On its view, “neither federal

common law nor the Clean Air Act preempt[s]” the

state-law claims here. App.69a. First, the court gave

no weight to the reasons of constitutional structure

that motivated interstate common law. Id. at 50a

21

(“displaced federal common law plays no part”). Second, the court held that federal common law never

governed this type of suit because Honolulu’s “injury

is not pollution, nor emissions,” but “marketing conduct.” Id. at 52a-54a. For similar reasons, the court

found no preemption by the Clean Air Act on the

ground that this suit is not about emissions. See, e.g.,

id. at 61a, 64a, 66a-67a.

Other courts have adopted reasoning like that of

the Hawaii Supreme Court, but this is the first petition in years to raise the issues outside of the context

of removal. Whether the federal common law precludes the application of state law is a simpler question than whether it does so in a way that supports

removal. If this Court grants review, it would be

“free to consider the [] preemption defense on its own

terms, not under the heightened standard unique to

the removability inquiry.” New York, 993 F.3d at 94

(collecting cases acknowledging the distinction).

Again, this clean vehicle is available only because the

Hawaii courts granted a rare interlocutory appeal

from the denial of a motion to dismiss.

3. The grave threat these suits pose to equal sovereignty and our Nation’s energy infrastructure are

reason enough for this Court to grant review. But the

theory used against energy companies can be expanded to allow targeting of any cross-border activity

that purportedly “exacerbate[s] the impacts of climate change.” App.10.

Indeed, just a few weeks ago, the State of New

York sued “the world’s largest producer of beef products, for misleading the public about its environmen-

22

tal impact.”4 The beef producer’s stated commitment

to reach “Net Zero by 2040” is allegedly misleading

because the company “plans to grow global demand

for its product,” rather than “reduce production of

and demand for” it. Compl. ¶¶143-44, New York v.

JBS USA Food Co., No. 450682/2024 (N.Y. Sup. Ct.

filed Feb. 28, 2024). The company’s emissions “of

greenhouse gases to the atmosphere” and “supply

chain practices” purportedly “contribut[e] to climate

change harms.” Id. ¶11.

New York’s complaint alleges that “the world’s

top five meat and dairy corporations combined are

responsible for more annual greenhouse gas emissions than ExxonMobil, Shell, or BP, individually.”

Id. ¶88. Surely in some State’s view, those companies

too (and countless others) have “exacerbated the impacts of climate change.” App.10a. But the States,

upon entering the Union, gave up the right to use

their laws to wage this sort of interstate conflict. The

Court should grant review here before any further

damage is done to our national economy and our federal scheme.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Office of the N.Y. Att’y Gen., Attorney General James Sues

World’s Largest Beef Producer for Misrepresenting Environmental Impact of Their Products, Feb. 28, 2024, ag.ny.gov/pressrelease/2024/attorney-general-james-sues-worlds-largest-beefproducer-misrepresenting.

4

23

Respectfully submitted,

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Robert M. Overing

Deputy Solicitor General

OFFICE OF THE ALABAMA

ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

ADDITIONAL COUNSEL

TREG TAYLOR

Attorney General

State of Alaska

ANDREW BAILEY

Attorney General

State of Missouri

TIM GRIFFIN

Attorney General

State of Arkansas

AUSTIN KNUDSEN

Attorney General

State of Montana

CHRISTOPHER M. CARR

Attorney General

State of Georgia

MICHAEL T. HILGERS

Attorney General

State of Nebraska

RAÚL R. LABRADOR

Attorney General

State of Idaho

DREW WRIGLEY

Attorney General

State of North Dakota

THEODORE E. ROKITA

Attorney General

State of Indiana

GENTNER DRUMMOND

Attorney General

State of Oklahoma

BRENNA BIRD

Attorney General

State of Iowa

ALAN WILSON

Attorney General

State of South Carolina

KRIS KOBACH

Attorney General

State of Kansas

KEN PAXTON

Attorney General

State of Texas

RUSSELL COLEMAN

Attorney General

Commonwealth

of Kentucky

SEAN D. REYES

Attorney General

State of Utah

LIZ MURRILL

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

BRIDGET HILL

Attorney General

State of Wyoming