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

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Nos. 23-947 & 23-952

In The

Supreme Court of the United States

Sunoco LP, et al., Petitioners,

City and County of Honolulu, et al., Respondents.

Shell PLC, et al., Petitioners,

City and County of Honolulu, et al., Respondents.

On Petitions for Writs of Certiorari

to the Supreme Court of Hawai‘i

BRIEF FOR RESPONDENTS

CITY AND COUNTY OF HONOLULU,

AND HONOLULU BOARD OF WATER SUPPLY

Dana M.O. Viola

Corporation Counsel

Paul S. Aoki

Robert M. Kohn

Nicolette Winter

Jeff A. Lau

Deputies Corporation Counsel

530 South King St., Room 110

Honolulu, HI 96813

(808) 768-5129

paoki@honolulu.gov

robert.kohn@honolulu.gov

nwinter@honolulu.gov

jlau3@honolulu.gov

Victor M. Sher

Counsel of Record

Matthew K. Edling

Michael Burger

Martin D. Quiñones

Quentin C. Karpilow

Sher Edling LLP

100 Montgomery St., Ste. 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

matt@sheredling.com

michael@sheredling.com

marty@sheredling.com

quentin@sheredling.com

Counsel for Respondents the City and County of Honolulu

and Honolulu Board of Water Supply

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

QUESTIONS PRESENTED

1. Does the Court have jurisdiction under 28 U.S.C.

§ 1257(a) to review a state supreme court’s affirmance on interlocutory appeal of an order denying

motions to dismiss where the decision below does

not constitute a final judgment, and no exception to

the final judgment rule applies?

2. Does the Clean Air Act, 42 U.S.C. § 7401 et seq., or

the defunct federal common law that it displaced,

or national foreign policy, or the Constitution’s

structure generally, preempt state common-law

causes of action where the defendants’ alleged tortious conduct is deceptive consumer marketing and

failures to warn and not the emission of regulated

air pollutants?

iii

TABLE OF CONTENTS

Page

INTRODUCTION................................................

STATEMENT.......................................................

REASONS FOR DENYING THE PETITION....

I. The Court Lacks Jurisdiction Under 28

U.S.C. § 1257(a) to Review the

Interlocutory Decision Below.....................

II. There Is No Split of Authority Concerning

Petitioners’ Preemption Defenses...............

A. The Decision Below Does Not Conflict

with City of New York...........................

B. The Decision Below Does Not Conflict

with Petitioners’ Other Authority........

III. The Decision Below Is Correct...................

A. Neither Federal Common Law Nor

“Constitutional Structure” Preempt

Respondents’ Claims.............................

B. The Clean Air Act Does Not Preempt

Respondents’ Claims.............................

C. Respondents’ Claims Do Not Impinge

on Federal Foreign Affairs

Prerogatives...........................................

IV. The Decision Below Is a Poor Vehicle.......

V. Further Percolation Is Warranted.............

CONCLUSION.....................................................

TABLE OF AUTHORITIES

Page

Cases

Abbott v. Veasey,

137 S. Ct. 612 (2017)........................................

Allstate Ins. Co. v. Hague,

449 U.S. 302 (1981)..........................................

Am. Constr. Co. v. Jacksonville,

T. & K.W. Ry. Co.,

148 U.S. 372 (1893)..........................................

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011)...............................

1, 5, 17-21

Am. Ins. Ass’n v. Garamendi,

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

Bates v. Dow Agrosciences LLC,

544 U.S. 431 (2005)..........................................

Bell v. Cheswick Generating Station,

734 F.3d 188 (3d Cir. 2013).............................

Bonaparte v. Appeal Tax Ct.,

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

Box v. Planned Parenthood of Ind. & Ky., Inc.,

139 S. Ct. 1780 (2019)......................................

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988)..........................................

Brown-Forman Corp. v. Miller,

528 S.W.3d 886 (Ky. 2017)..............................

California v. ARC Am. Corp.,

490 U.S. 93 (1989)............................................

Calvert v. Texas,

141 S. Ct. 1605 (2021)......................................

Chamber of Com. of U.S. v. Whiting,

563 U.S. 582 (2011)..........................................

TABLE OF AUTHORITIES—Continued

Page

City & Cnty. of Honolulu v. Sunoco LP,

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

City of Milwaukee v. Illinois,

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

18, 19, 21

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021).......................

2, 12, 14

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975).....................................

2, 7-10

Coyle v. Smith,

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

Delaware ex rel. Jennings v. BP Am. Inc.,

No. N20C-09-097, 2024 WL 98888

(Del. Super. Ct. Jan. 9, 2024)..........................

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 2155 (2022)........................................

Doe v. Facebook, Inc.,

142 S. Ct. 1087 (2022)......................................

Edenfield v. Fane,

507 U.S. 761 (1993)..........................................

Edgar v. MITE Corp.,

457 U.S. 624 (1982)..........................................

Estelle v. Gamble,

429 U.S. 97 (1976)............................................

Fla. Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963)..........................................

Florida v. Thomas,

532 U.S. 774 (2001)..........................................

Flynt v. Ohio,

451 U.S. 619 (1981)..........................................

vii

TABLE OF AUTHORITIES—Continued

Franchise Tax Bd. v. Hyatt,

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

Page

22, 23

Freeman v. Grain Processing Corp.,

848 N.W.2d 58 (Iowa 2014).............................

Georgia v. Tenn. Copper Co.,

206 U.S. 230 (1907)..........................................

Goodyear Atomic Corp. v. Miller,

486 U.S. 174 (1988)..........................................

Gordon Coll. v. DeWeese-Boyd,

142 S. Ct. 952 (2022)........................................

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251 (1916)......................................

29, 33

Illinois v. City of Milwaukee,

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

14-16

Int’l Paper Co. v. Ouellette,

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

6, 8, 18, 24-26

Jefferson v. City of Tarrant,

522 U.S. 75 (1997)............................................

Kansas v. Colorado,

206 U.S. 46 (1907)............................................

Kansas v. Garcia,

589 U.S. 191 (2020)..........................................

Local No. 438 Constr. & Gen. Laborers’ Union

v. Curry,

371 U.S. 542 (1963)..........................................

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001)..........................................

Maslenjak v. United States,

582 U.S. 335 (2017)......................................

31, 32

viii

TABLE OF AUTHORITIES—Continued

Page

McCray v. New York,

461 U.S. 961 (1983)..........................................

Medellín v. Texas,

552 U.S. 491 (2008)..........................................

Mercantile Nat’l Bank v. Langdeau,

371 U.S. 555 (1963)..........................................

Merrick v. Diageo Americas Supply, Inc.,

805 F.3d 685 (6th Cir. 2015)............................

Minnick v. Cal. Dep’t of Corr.,

452 U.S. 105 (1981)..........................................

Missouri v. Illinois,

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

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009)..........................................

Mount Soledad Mem’l Ass’n v. Trunk,

567 U.S. 944 (2012)..........................................

Nat’l Football League v. Ninth Inning, Inc.,

141 S. Ct. 56 (2020)..........................................

Nat’l Pork Producers Council v. Ross,

598 U.S. 356 (2023).......................................

17, 21

New Jersey v. City of New York,

283 U.S. 473 (1931)..........................................

New York v. New Jersey,

256 U.S. 296 (1921)..........................................

Nike, Inc. v. Kasky,

539 U.S. 654 (2003)..........................................

North Carolina ex rel. Cooper v.

Tenn. Valley Auth.,

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

TABLE OF AUTHORITIES—Continued

Page

Nw. Airlines, Inc. v. Transp. Workers

Union of Am.,

451 U.S. 77 (1981)............................................

Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009)..........................................

O’Melveny & Myers v. FDIC,

512 U.S. 79 (1994)........................................

18, 20

Ouellette v. Int’l Paper Co.,

666 F. Supp. 58 (D. Vt. 1987)..........................

Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41 (1987)............................................

Rice v. Norman Williams Co.,

458 U.S. 654 (1982)..........................................

Rodriguez v. FDIC,

589 U.S. 132 (2020)..........................................

Southland Corp. v. Keating,

465 U.S. 1 (1984)..............................................

Sunoco LP v. City & Cnty. of Honolulu,

143 S. Ct. 1795 (2023)......................................

Taylor v. Riojas,

592 U.S. 7 (2020)..............................................

Tex. Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981)..........................................

United States v. Arthrex, Inc.,

594 U.S. 1 (2021)..............................................

United States v. Bevans,

16 U.S. (3 Wheat.) 336 (1818)..........................

Util. Air Regul. Grp. v. EPA,

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

TABLE OF AUTHORITIES—Continued

Page

Va. Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019)......................................

Wrotten v. New York,

560 U.S. 959 (2010)..........................................

Young v. Masci,

289 U.S. 253 (1933)..........................................

Zschernig v. Miller,

389 U.S. 429 (1968)......................................

27, 29

Statutes

28 U.S.C. § 1257(a)................................

i, 2, 7, 8, 29

42 U.S.C. § 7401...................................................

i, 24

Other Authorities

Br. of Appellant,

City of New York v. Chevron Corp.,

No. 18-2188, 2018 WL 5905772

(2d Cir. Nov. 8, 2018)............................................

Br. of Appellant,

City & Cnty. of Honolulu v. Sunoco LP,

No. CAAP-22-0000135

(Haw. Ct. App. Jul. 27, 2022)...........................

Restatement (Third) of Foreign Relations Law

§ 402...................................................................

Stephen M. Shapiro et al.,

Supreme Court Practice (11th ed. 2019)..........

William J. Brennan, Jr., Some Thoughts on the

Supreme Court’s Workload,

66 Judicature 230 (1983)..................................

INTRODUCTION

This case seeks to hold petitioners liable under

Hawai‘i tort law for deliberately concealing and misrepresenting the climate-change impacts of their fossilfuel products. Although deceptive commercial practices

fall squarely within the core interests and historic powers of the states, petitioners moved to dismiss this lawsuit on the theory that federal law exclusively governs

any “claim[] involving transboundary pollution.” Shell.

Pet.16. The trial court denied the motion, and the

Hawai‘i Supreme Court unanimously affirmed after

granting discretionary interlocutory appeal.

As the Hawai‘i Supreme Court explained, petitioners mischaracterize the complaint as seeking to regulate pollution. Sunoco.App.51a (“Numerous courts

have rejected similar attempts by oil and gas companies to reframe [analogous] complaints . . . .”). This

suit does not request relief for “all effects of climate

change,” but “only for the effects of climate change

allegedly caused by [petitioners’] breach of Hawai‘i

law regarding failures to disclose, failures to warn,

and deceptive promotion.” Id. 38a. Because “liability

is causally tethered to [petitioners’] failure to warn

and deceptive promotion,” “nothing in this lawsuit

incentivizes—much less compels—[petitioners] to

curb their fossil fuel production or greenhouse gas

emissions.” Id. 50a. Based on that accurate characterization of the complaint, the Hawai‘i Supreme

Court rejected petitioners’ preemption defenses,

which rest on the Clean Air Act (CAA) and a congressionally displaced body of federal common law that

once “governed ‘suits brought by one State to abate

pollution emanating from another State.’ ” Ibid. (quoting Am. Elec. Power Co. v. Connecticut (AEP), 564

U.S. 410, 421 (2011)).

The ruling below does not warrant certiorari review

for multiple reasons. To begin, this Court lacks jurisdiction under 28 U.S.C. § 1257(a) because the Hawai‘i

Supreme Court’s decision is interlocutory and does not

satisfy any exception to the final judgment rule. Reversing the decision below would not terminate the litigation; no federal policy would be “seriously erode[d]”

by litigating this case to final judgment; and petitioners

have raised additional federal defenses that might warrant this Court’s review at a later date. See Cox Broad.

Corp. v. Cohn, 420 U.S. 469, 479–83 (1975). Petitioners

entirely ignore the jurisdictional defect, and their petitions should be denied on that basis alone.

Review would also be premature and unnecessary

because the opinion below does not conflict with any

other appellate decision. Petitioners rely heavily on

City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir.

2021), but that case is distinguishable. There, the

plaintiff sought to hold the defendants liable for “admittedly legal commercial conduct in producing and

selling fossil fuels.” Id. at 86. The defendants could not

“avoid all liability” unless they “cease[d] global production altogether.” Id. at 93. The court thus held that the

plaintiff ’s “effectively . . . strict liability” claims were

preempted by the CAA or the federal common law of

transboundary pollution because they would “regulate

cross-border emissions.” Ibid. Petitioners’ “liability in

this case,” by contrast, does not arise “from lawful conduct in producing and selling fossil fuels.” Sunoco.

App.38a. Rather, it “results from allegedly tortious

conduct,” namely petitioners’ “failures to disclose, failures to warn, and deceptive promotion.” Ibid. The court

below thus held that unlike in City of New York, respondents’ claims neither “compel[]” petitioners to

“curb their fossil fuel production” nor “subject [them]

to any additional emissions regulation,” and therefore

are not preempted by the CAA or any federal common

law. Id. 50a, 64a (quotations omitted). That holding

independently supports the result below and does not

conflict with the reasoning or result in City of New

York. Even though the court below disagreed with other parts of City of New York ’s analysis, that disagreement is not outcome-determinative and does not warrant certiorari review.

The decision below also correctly applies this Court’s

precedents. Petitioners theorize that the “structure” of

the Constitution bars this suit. Shell.Pet.19. That

theory improperly attempts to cloak the former federal

common law of interstate pollution in constitutional

garb, with no foundation in the Constitution’s text or

history. There is no basis to constitutionalize the judgemade federal law underpinning petitioners’ arguments,

which in any event does not preempt respondents’

state-law claims because (1) it has been displaced by

the CAA, and (2) it never encompassed suits for deceptive marketing. This lawsuit also falls far outside the

CAA’s preemptive scope. The CAA “regulates pollution”

and “does not concern itself in any way with the acts

that trigger liability under [respondents’] Complaint,

namely: the use of deception to promote the consumption of fossil fuel products.” Sunoco.App.61a. For similar reasons, this suit does not impermissibly interfere

with the federal government’s foreign affairs power.

Finally, there is no reason for the Court to decide

the questions presented now, rather than allowing

them to percolate in the lower courts. Due to its interlocutory nature, the decision below is a poor vehicle

for addressing petitioners’ preemption defenses, which

could be mooted by additional litigation. The Court

will, moreover, have multiple opportunities to review

those defenses in the future—either after final judg-

ment in this case if respondents prevail, or in analogous lawsuits progressing through other state courts.

The same defenses are in fact currently being adjudicated by courts in four different states. Rather than

short circuit the ordinary percolation process, this

Court should deny certiorari, especially in light of this

case’s interlocutory posture and the absence of any actual split in authority.

STATEMENT

1. Respondents allege petitioners have, for decades,

intentionally misled consumers and the public about

the climate-change effects of their fossil-fuel products,

including in Hawai‘i. See, e.g., Shell.App.100a–101a.

Those “failures to disclose and deceptive promotion increased fossil fuel consumption, which—in turn—exacerbated the local impacts of climate change in

Hawai‘i.” Sunoco.App.76a. Respondents pleaded

state-law claims for nuisance, trespass, and failure to

warn. Shell.App.216a–231a. The complaint “do[es]

not ask th[e] court to limit, cap, or enjoin the production and sale of fossil fuels” by petitioners or anyone

else. Sunoco.App.38a. Instead, it seeks damages for

local climate-change impacts in Honolulu that are attributable to petitioners’ deceptive conduct, and it requests equitable relief to mitigate the ongoing risks

posed by those local impacts through, for example, infrastructure projects to protect respondents from sealevel rise. Shell.App.203a–216a, 232a.

Petitioners removed the case to federal court, and

the district court granted respondents’ motion to remand. After the Ninth Circuit affirmed, petitioners

sought review from this Court, which denied certiorari. See 143 S. Ct. 1795 (2023). Following remand,

the state trial court denied petitioners’ motions to dismiss the complaint based on lack of personal jurisdic-

tion, federal preemption, and California’s anti-SLAPP

statute. Shell.App.77a, 84a. The Hawai‘i Supreme

Court then unanimously affirmed after accepting petitioners’ interlocutory appeal.

2. The Hawai‘i Supreme Court held that respondents’ state-law claims are not preempted by either

federal common law or the CAA. Sunoco.App.37a–66a.

As to the former, the court rejected petitioners’ theory

that “the basic scheme of the federal Constitution demands that federal common law govern any dispute

involving air and water in their ambient or interstate

aspects.” Id. 37a (cleaned up). The court explained

that the CAA displaced the federal common law of

transboundary pollution, and federal common law

does not retain preemptive force once Congress displaces it. Id. 39a–49a. Because petitioners “sa[id] they

do not seek to expand federal common law to a new

sphere,” the court found they had “waived any argument to expand federal common law to cover [respondents’] claims here.” Id. 52a (quotation omitted). Even

if the argument had been made, the court held that

judicial lawmaking would be inappropriate given Congress’s enactment of the CAA, “a comprehensive legislative scheme to address interstate air pollution” that

leaves no room for judges to legislate. Id. 53a.

As an alternative holding, the court concluded that

“even if federal common law governing interstate pollution claims had not been displaced,” respondents’

claims “would not be preempted by it.” Id. 49a. That

“ ‘specialized federal common law’ ” formerly “governed

‘suits brought by one State to abate pollution emanating from another State.’ ” Id. 50a (quoting AEP, 564

U.S. at 421). By contrast, “nothing in [respondents’]

lawsuit incentivizes—much less compels—[petitioners] to curb their fossil fuel production or greenhouse

gas emissions” because “[petitioners’] liability is causally tethered to their failure to warn and deceptive

promotion.” Id. 50a.

The court further held that the CAA itself does not

preempt respondents’ claims because they “arise from

defendants’ alleged failure to warn and deceptive marketing conduct, not emissions-producing activities

regulated by the CAA.” Id. 59a. In reaching that conclusion, the decision below carefully applied this

Court’s tests for express, field, obstacle, and impossibility preemption. Id. 56a–65a. Petitioners could not

satisfy any of those tests, however, because the “CAA

does not concern itself in any way with the acts that

trigger liability under [the] Complaint, namely: the

use of deception to promote the consumption of fossil

fuel products.” Id. 61a.

As for International Paper Co. v. Ouellette, 479 U.S.

481 (1987), the Hawai‘i Supreme Court distinguished

that case on its facts. Unlike the claims in Ouellette,

respondents’ claims “require additional tortious conduct to succeed”—i.e., “[petitioners’] alleged deceptive

marketing and failure to warn about the dangers of

using their products.” Sunoco.App.63a (quotation

omitted). Thus, unlike in Ouellette, respondents’

“claims do not subject [petitioners] to any additional

emissions regulation at all” because “emissions are at

most a link in the causal chain connecting [respondents’] alleged injuries to [petitioners’] unrelated liability-incurring behavior.” Id. 64a.

The court affirmed the orders denying petitioners’

motions to dismiss, and remanded the case for further

proceedings. Id. 66a.

REASONS FOR DENYING THE PETITION

I. The Court Lacks Jurisdiction Under 28

U.S.C. § 1257(a) to Review the Interlocutory

Decision Below.

Petitioners seek certiorari review of a state supreme court’s interlocutory order affirming denial of

petitioners’ motions to dismiss. Because there has

been no “[f]inal judgment[] or decree[],” the Court

lacks jurisdiction to grant review under 28 U.S.C.

§ 1257(a). No exception to the statute’s final judgment

requirement applies. Petitioners entirely fail to address this jurisdictional deficiency, notwithstanding

their obligation to “show . . . that this Court has jurisdiction to review the judgment on a writ of certiorari.”

S. Ct. R. 14(1)(g)(i). The petition must be denied on

this preliminary jurisdictional ground.

1. Certiorari review of state court decisions is available only from “[f]inal judgments or decrees rendered

by the highest court of a State in which a decision

could be had.” 28 U.S.C. § 1257(a). The statute “establishes a firm final judgment rule” that is jurisdictional and “not one of those technicalities to be easily

scorned.” Jefferson v. City of Tarrant, 522 U.S. 75,

81 (1997). The appeal below was interlocutory,

Sunoco.App.13a, and “[e]ven if the [Hawai‘i] Supreme Court [later] adheres to its interlocutory ruling as ‘law of the case,’ that determination will in no

way limit [this Court’s] ability to review the issue on

final judgment,” Jefferson, 522 U.S. at 83. Petitioners can seek certiorari then.

This Court recognizes four exceptions to the final

judgment rule under Cox Broadcasting Corp. v. Cohn,

420 U.S. at 479–83. The Sunoco petition cites the pages from Cox describing the fourth exception, suggesting that is the purported basis for jurisdiction. Sunoco.

Pet.2.1 That exception applies only where (1) “reversal

of the state court on the federal issue would be preclusive of any further litigation,” rather than “merely

controlling the nature and character of” further state

court proceedings, and (2) “a refusal immediately to

review the state court decision might seriously erode

federal policy.” Cox, 420 U.S. at 482–83.

2. Neither element of the fourth Cox exception is

satisfied here. First, reversing the decision below

would not terminate the litigation even under petitioners’ reasoning. Petitioners say that under Ouellette, this case can only proceed “under the law of the

State in which the source of the pollution is located.”

Sunoco.Pet.26. Petitioners assert that proving any

theory of liability based on source-state law “is impossible here,” ibid., but the issue was not litigated or

decided below and will remain open on remand even

if this Court grants the petitions and reverses. In

Ouellette itself, this Court held that while the district

court erred by applying Vermont common law to

claims against a polluting defendant in New York,

the lower court had “correctly denied [the defendant’s]

motion for summary judgment and judgment on the

pleadings.” 479 U.S. at 500. The Court therefore “remanded for further proceedings consistent with this

opinion,” ibid., and litigation continued below under

New York law, see, e.g., Ouellette v. Int’l Paper Co.,

666 F. Supp. 58 (D. Vt. 1987) (denying motions to dismiss). Here, as in Ouellette, a reversal adopting petitioners’ arguments would at most control “the nature

and character of” further litigation below, Cox, 420

U.S. at 483, which takes this case outside the fourth

1 The Shell petition states baldly that “jurisdiction is invoked

under 28 U.S.C. § 1257(a),” and it makes no mention of the finality rule or its exceptions. Shell.Pet.1.

Cox exception. See also, e.g., Nike, Inc. v. Kasky, 539

U.S. 654, 660 (2003) (Stevens, J., concurring in dismissal of writ as improvidently granted) (“an opinion

on the merits . . . could take any one of a number of

different paths”).

Second, petitioners have no argument that denying

review “might seriously erode federal policy.” Cox, 420

U.S. at 483. The Court has relied on the fourth Cox

exception only in cases that “involved identifiable federal statutory or constitutional policies which would

have been undermined by the continuation of the litigation in the state courts.” Flynt v. Ohio, 451 U.S. 619,

622 (1981). This Court has most commonly reviewed a

statutory preemption ruling based on that exception

where denying immediate review would contravene a

statutory mandate that certain controversies be heard

in a specific forum.2 Otherwise, the Court has required

a concrete, immediate potential interference with express federal policy. In Goodyear Atomic Corp. v. Miller, for example, the Court accepted jurisdiction to consider whether state workers’ compensation rules were

preempted at “the only nuclear facility producing nuclear fuel for the Navy’s nuclear fleet,” which “ha[d]

important implications for the regulation of federally

owned nuclear production facilities” nationwide. 486

U.S. 174, 180 (1988). Nothing like those concerns are

present here. Petitioners “make no claim of serious

erosion of federal policy that is not common to all runof-the-mine decisions” denying a preemption defense.

See Florida v. Thomas, 532 U.S. 774, 780 (2001).

2 See, e.g., Southland Corp. v. Keating, 465 U.S. 1 (1984) (Federal Arbitration Act); Local No. 438 Constr. & Gen. Laborers’

Union v. Curry, 371 U.S. 542 (1963) (National Labor Relations

Act); Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555 (1963)

(National Banking Act).

Petitioners gesture ominously at a “stark[] conflict

with the policies and priorities of the federal government,” Sunoco.Pet.14, and “encroach[ment] on U.S.

foreign policy,” Shell.Pet.19, but venture no further.

Petitioners have not, here or in state court, identified

any specific policy, program, statutory mandate, agency action, treaty, or international agreement that

would be imperiled by deferring potential review to

final judgment. Petitioners assert these climate-deception cases are “important,” Sunoco.Pet.30–31, but

that is not enough. The Court has repeatedly and consistently denied review in cases implicating issues of

general public importance where finality is absent or

suspect. See, e.g., Doe v. Facebook, Inc., 142 S. Ct.

1087, 1088–89 (2022) (Thomas, J., respecting denial of

cert.) (Section 230 of the Communications Decency

Act); Gordon Coll. v. DeWeese-Boyd, 142 S. Ct. 952,

955 (2022) (Alito J., respecting denial of cert.) (ministerial exception as to First Amendment Religion

Clauses); cf. Minnick v. Cal. Dep’t of Corr., 452 U.S.

105 (1981) (dismissing writ as improvidently granted)

(affirmative action).

Additionally, the Cox exceptions generally apply

only where further proceedings “would not require the

decision of other federal questions that might also require review by the Court” later. 420 U.S. at 477. That,

too, is not the case here. As petitioners have made

clear, they will press multiple additional federal defenses that were not at issue below, including “the

government-contractor defense, . . . federal immunity,

the Interstate and Foreign Commerce Clauses, the

Due Process Clause, [and] the First Amendment.”

City & Cnty. of Honolulu v. Sunoco LP, 39 F.4th 1101,

1110 (9th Cir. 2022). The Chevron petitioners in fact

have a separate appeal pending in Hawai‘i’s Intermediate Court of Appeal, asserting that respondents’

claims infringe on Chevron’s “constitutionally protected” speech. See Br. of Appellant at 1, City & Cnty. of

Honolulu v. Sunoco LP, No. CAAP-22-0000135 (Haw.

Ct. App. Jul. 27, 2022). None of those defenses have

been fully litigated, and each might provide a basis for

this Court’s certiorari jurisdiction post-judgment.

II. There Is No Split of Authority Concerning

Petitioners’ Preemption Defenses.

Even if this Court had jurisdiction, it should deny

the petitions because they do not identify any certworthy split. All petitioners’ appellate decisions are

distinguishable for the same reason: In each, the

plaintiffs sought to restrict interstate emissions by

holding out-of-state defendants liable merely for selling fossil-fuel products or emitting pollution. This

case, by contrast, cannot limit emissions of any sort

because “the acts that trigger liability” are petitioners’ “use of deception to promote the consumption of

fossil fuel products,” such that petitioners can sell

fossil fuels while avoiding future liability so long as

they disclose and accurately represent the climate

risks of their products. Sunoco.App.61a.

The Decision Below Does Not Conflict

with City of New York.

City of New York is distinguishable from this case

because the plaintiff ’s theory of liability there was

materially different from respondents’ here. Because

of that difference, the court below held that respondents’ claims would not be preempted even under

City of New York ’s reasoning. That alternative holding independently supports the result and implicates

no conflict.

1. In City of New York, the plaintiff sought to hold

several fossil-fuel companies “strict[ly] liab[le]” for climate impacts caused by “those companies’ admittedly

legal commercial conduct in producing and selling fossil fuels.” 993 F.3d at 86, 93. Under the plaintiff ’s theory, the defendants would be required to “cease global

production altogether” if they “want[ed] to avoid [future] liability.” Id. at 93. As the plaintiff “admit[ted],”

moreover, “a significant damages award” in its case

would have “compel[led] the [defendants] to develop

new means of pollution control.” Ibid. (quotations

omitted). Accordingly, the Second Circuit concluded

that the “lawsuit would regulate cross-border emissions,” ibid., and therefore held that the suit was preempted by federal common law or the CAA. See id. at

90–91 (explaining that whether federal common law

applies turns on “the nature of the [plaintiff ’s] lawsuit” and whether it is “a clash over regulating worldwide greenhouse gas emissions”); id. at 96 (explaining

that the CAA “displaces the [plaintiff ’s] common law

damages claims” because “if successful, [those claims]

would operate as a de facto regulation on greenhouse

gas emissions”).

2. In contrast to City of New York, this suit does not

and could not regulate pollution from any source. As

correctly construed by the Hawai‘i Supreme Court,

the complaint does not seek to hold petitioners liable

for merely “producing and selling fossil fuels.” Sunoco.

App.38a. It instead seeks relief “only for the effects of

climate change allegedly caused by [petitioners’]

breach of Hawai‘i law regarding failures to disclose,

failures to warn, and deceptive promotion.” Ibid. (first

emphasis added). As a result, “nothing in this lawsuit

incentivizes—much less compels—[petitioners] to

curb their fossil fuel production or greenhouse gas

emissions.” Id. 50a. So long as petitioners adequately

disclose and accurately represent the climate-change

risks of their fossil fuels, they can produce and sell as

much fossil fuels as they are able without incurring

additional liability. Unlike City of New York, then,

this lawsuit does not “subject [petitioners] to any additional emissions regulation at all.” Id. 64a. The

court below thus concluded that respondents’ statelaw claims are not preempted by federal common law

or the CAA. Id. 37a–38a (federal common law), 65a

(CAA).

3. The Hawai‘i Supreme Court did expressly disagree with one part of the Second Circuit’s analysis,

namely that federal common law can preempt state

law even after it is displaced by federal statute. See

Sunoco.App.49a. But that disagreement was not outcome-determinative. For the reasons just discussed,

the court below held in the alternative that even assuming “federal common law retains preemptive effect after displacement,” it “would not preempt [respondents’] claims in this case.” Id. 52a. That holding

does not conflict with City of New York’s application of

federal common law to claims that would have regulated emissions by holding the defendants strictly liable for their mere production and sale of fossil fuels.

Because the court below determined that respondents’

claims for deceptive marketing do not regulate emissions, it would have reached the same outcome even if

it had fully adopted the Second Circuit’s reasoning

concerning the preemptive effect of congressionally

displaced federal common law.

Contrary to petitioners’ suggestions, moreover, City

of New York did not implicitly reject a deception-based

theory of liability, because the plaintiff in that case

did not assert one. See Shell.Pet.4, 9, 13. The Second

Circuit’s preemption analysis did not mention the de-

fendants’ alleged efforts to conceal and misrepresent

their products’ climate-change impacts. It instead explicitly characterized the plaintiff ’s claims as imposing “strict liability” for the mere release of “fossil fuel

emissions.” City of New York, 993 F.3d at 93. That

matched the plaintiff ’s own characterization of its

“particular theory of the claims,” which “assume[d]

that [the] [d]efendants’ business activities have substantial social value and [did] not hinge on a finding

that those activities themselves were unreasonable or

violated any obligation.” See Br. of Appellant, City of

New York, No. 18-2188, 2018 WL 5905772, at *19 (2d.

Cir. Nov. 8, 2018).

The Decision Below Does Not Conflict

with Petitioners’ Other Authority.

Petitioners’ other cases are distinguishable for the

same reason as City of New York. The claims in those

cases would have imposed liability on the defendants

for merely releasing pollutants from a point source,

and thus would have had the effect of regulating crossborder pollution. The claims in this case would have

no such regulatory effect because they seek to hold petitioners liable only for the harms caused by their failure to warn and deceptive promotion.

1. The decision below does not conflict with Illinois

v. City of Milwaukee (Milwaukee III), 731 F.2d 403

(7th Cir. 1984). In Milwaukee III, Illinois sought to

hold the City of Milwaukee liable under Illinois law

for “dump[ing] substantial quantities of pathogencontaining sewage into Lake Michigan,” which then

flowed into Illinois waters. Id. at 404. “Illinois’ basic

grievance” was that the “permits issued to Milwaukee

pursuant to the [Clean Water Act] d[id] not impose

stringent enough controls on the discharges.” Id. at

412 n.5. But the court reasoned that if Illinois law

could impose a more demanding effluent standard on

a permitted pollution source in Wisconsin, “[a]ny permit issued under the Act would be rendered meaningless.” Id. at 414. The court thus held that the Clean

Water Act preempted the plaintiff ’s claims under Illinois law, and expressly “limited” that holding “to the

context of these cases.” Id. at 410 n.2.

Respondents’ claims are nothing like those in Milwaukee III. This suit does not allege that petitioners

violated tort law duties by discharging pollutants from

a point source, does not challenge the sufficiency of

any pollution control measure, and does not interfere

with any permitting decision under the CAA or any

other federal law. Because respondents’ claims “do not

subject [petitioners] to any additional emissions regulation at all,” Sunoco.App.64a, the reasoning in Milwaukee III simply does not apply here.

2. The decision below also does not conflict with

North Carolina ex rel. Cooper v. Tennessee Valley Authority, 615 F.3d 291 (4th Cir. 2010). There, the plaintiff obtained an injunction under North Carolina law

that would have imposed specific new emissions controls on power plants in Alabama and Tennessee. Id.

at 296. The court held that the CAA preempted those

state-law claims because they would impose air quality “standards” different from those “authorized by

Congress, established by the EPA, and implemented

through Alabama and Tennessee permits.” Id. at 301.

Again, this lawsuit cannot interfere with any air

quality standards imposed through the CAA permitting process. That is because, as the court below recognized, petitioners can “concurrently” “adher[e] to the

CAA and separately issu[e] warnings and refrain[]

from deceptive conduct as required by Hawai‘i law.”

Sunoco.App.65a.

3. Petitioners’ remaining appellate decisions are all

inapposite for the same reason as Milwaukee III and

Cooper. In each, the plaintiffs alleged that a pointsource emitter violated state tort duties by releasing

airborne pollutants. See Merrick v. Diageo Americas

Supply, Inc., 805 F.3d 685, 694–95 (6th Cir. 2015);

Bell v. Cheswick Generating Station, 734 F.3d 188,

193–94, 197 (3d Cir. 2013); Freeman v. Grain Processing Corp., 848 N.W.2d 58, 84–85 (Iowa 2014); BrownForman Corp. v. Miller, 528 S.W.3d 886, 890, 894 (Ky.

2017). The tortious conduct alleged here “is not production of emissions,” but rather petitioners’ “alleged

deceptive marketing and failure to warn about the

dangers of using their products.” Sunoco.App.63a. As

a result, the decision below does not conflict with any

of petitioners’ appellate authority.3

III. The Decision Below Is Correct.

Denying interlocutory review is also appropriate because the court below correctly rejected petitioners’

preemption defenses. Petitioners ask this Court to

consider a new constitutional preemption theory cobbled together from cases dealing with the displaced

federal common law of interstate pollution, the CAA,

and the federal foreign affairs power. Specifically,

they say “the federal constitutional system” preempts

all state-law “claims involving transboundary pollution.” Shell.Pet.16. This constitutional “rule,” petitioners insist, “emanates from ‘the Constitution’s structure and the principles of sovereignty and comity it

3 Petitioners also cite the trial court decision in Delaware ex

rel. Jennings v. BP America Inc., No. N20C-09-097, 2024 WL

98888 (Del. Super. Ct. Jan. 9, 2024), which dismissed in part

claims similar to respondents’. See Shell.Pet.25–26. Delaware

has sought interlocutory review of that ruling, which in any

event provides no basis for this Court to grant certiorari.

embraces.’ ” Sunoco.Pet.22 (quoting Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 376 (2023))).

None of petitioners’ cases adopt or support their novel,

far-reaching constitutional rule, and neither federal

common law, nor the CAA, nor any foreign policy preempts respondents’ claims. Petitioners’ mangled theory of constitutional preemption does not merit this

Court’s consideration.

Neither Federal Common Law Nor

“Constitutional Structure” Preempt

Respondents’ Claims.

Petitioners first argue that “the Constitution preempts [respondents’] claims.” Shell.Pet.16 (capitalization omitted). That theory finds no support in this

Court’s precedents.

1. Petitioners’ constitutional argument relies primarily on federal common-law cases involving interstate pollution. See Sunoco.Pet.5–6; Shell.Pet.16–18.

Those cases address the judiciary’s power to create

federal common law in the absence of congressional

action, however, and none of them hold that the Constitution implicitly prohibits state-law claims “seeking redress for interstate pollution.” Sunoco.Pet.12.

The court below correctly concluded that the federal

common law of transboundary pollution cannot preempt respondents’ claims for three primary reasons.

See Sunoco.App.37a–53a.

First, when Congress enacted the CAA, it displaced

any prior federal common law concerning transboundary air pollution. See AEP, 564 U.S. at 429. After displacement, the question of state-law preemption turns

on the preemptive scope of the displacing statute, not

a defunct body of judge-made federal law. See, e.g.,

Nw. Airlines, Inc. v. Transp. Workers Union of Am.,

451 U.S. 77, 95 n.34 (1981) (“[Following displacement,]

the task of the federal courts is to interpret and apply

statutory law, not to create common law.”); O’Melveny

& Myers v. FDIC, 512 U.S. 79, 85 (1994) (courts cannot

“supplement federal statutory regulation” with federal

common law because “matters left unaddressed in

such a [regulation] are presumably left to the disposition provided by state law”); City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304, 315 (1981) (judges

must stop “rely[ing] on federal common law . . . when

Congress has addressed the problem”).

Ouellette and AEP make that point crystal clear. In

Ouellette, the Court considered a preemption challenge

to state-law claims that would formerly have been governed by the federal common law of interstate water

pollution. 479 U.S. at 484, 487. Because the Clean Water Act had displaced the common law, the Court

framed the relevant inquiry as whether the statute itself preempted the plaintiffs’ state-law claims, which it

resolved through a traditional statutory preemption

analysis. See id. at 491–500. The Court used the same

analysis 20 years later in AEP, when discussing the

displacement of federal common law relating to greenhouse gas emissions. 564 U.S. at 429. After holding

that the CAA displaced the plaintiffs’ federal commonlaw claims, the Court remanded their state-law claims

for further consideration by the lower courts, noting

that “the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal [CAA].” Ibid. As the court below recognized here,

this Court’s precedent “requires analyzing the preemptive effect of only the CAA,” without reference to any

common law it displaced. Sunoco.App.37a.

Second, the federal common law of transboundary

pollution would not preempt respondents’ claims even

if it still existed. This Court has only applied that body

of judge-made law in cases “brought by one State to

abate pollution emanating from another State.” AEP,

564 U.S. at 421.4 But because petitioners’ “liability is

causally tethered to their failure to warn and deceptive promotion,” “nothing in this lawsuit incentivizes—much less compels—[petitioners] to curb their

fossil fuel production or greenhouse gas emissions”

from any source. Sunoco.App.50a. The case thus falls

outside the obsolete federal common law of interstate

air pollution, whatever its scope might once have been.

Third, petitioners “waived any argument to expand

federal common law to cover [respondents’] claims”

below. Id. 52a. Even if petitioners had preserved the

argument, they could not satisfy the “strict conditions

[that] must be satisfied” before “federal judges may

claim a new area for common lawmaking.” Rodriguez

v. FDIC, 589 U.S. 132, 136 (2020). “[O]ne of the most

basic” conditions is that federal common law “must be

necessary to protect uniquely federal interests.” Ibid.

(quotations omitted). The “cases in which judicial creation of a special federal rule would be justified” are

4 See also Missouri v. Illinois, 200 U.S. 496, 517 (1906) (Missouri seeking “to restrain the discharge of . . . sewage” into Mississippi River tributary); Georgia v. Tenn. Copper Co., 206 U.S.

230, 236 (1907) (Georgia seeking “to enjoin the defendant copper

companies from discharging noxious gas” in Tennessee); Kansas

v. Colorado, 206 U.S. 46, 94–99, 117 (1907) (Kansas seeking to

enjoin diversion of Colorado River water); New York v. New

Jersey, 256 U.S. 296, 298 (1921) (New York seeking to “permanently enjoin[]” New Jersey defendants from “discharging . . .

sewage” into New York harbor); New Jersey v. City of New York,

283 U.S. 473, 476–77 (1931) (New Jersey seeking “an injunction”

that would “restrain[] the city from dumping garbage into the

ocean or waters” off New Jersey coast); Milwaukee II, 451 U.S. at

311 (Illinois seeking “to eliminate all overflows and to achieve

specified effluent limitations on treated sewage”).

thus “limited to situations where there is a significant

conflict between some federal policy or interest and

the use of state law.” O’Melveny, 512 U.S. at 87 (quotations omitted).

The court below correctly held that the state-law

claims in this case do not present, let alone significantly conflict with, any uniquely federal interest.

Sunoco.App.53a. Respondents’ claims rest on the

States’ historic powers and interests in “ensuring the

accuracy of commercial information in the marketplace.” Edenfield v. Fane, 507 U.S. 761, 769 (1993);

see also, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S.

525, 541–42 (2001) (“advertising” is “a field of traditional state regulation” (cleaned up)); California v.

ARC Am. Corp., 490 U.S. 93, 101 (1989) (“unfair business practices” are “an area traditionally regulated

by the States”); Fla. Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 150 (1963) (“protection of consumers” is an area of “traditional [state] power”). Because

there is no federal policy against accurately disclosing the environmental risks of fossil-fuel products,

petitioners cannot show a “significant conflict between some federal policy or interest and the use of

state law” in this case. O’Melveny, 512 U.S. at 87; see

also, e.g., Boyle v. United Techs. Corp., 487 U.S. 500,

509 (1988) (no preemption by federal common law

where a defendant “could comply with both its [federal] obligations and the state-prescribed duty of

care”).

2. Petitioners acknowledge that Congress displaced the federal common law of interstate pollution. Sunoco.Pet.23; Shell.Pet.11. They nonetheless

suggest that their proposed constitutional rule is

supported by “the reason why” federal courts resorted to common lawmaking “in the first place.” Sunoco.

Pet.28. But as this Court observed in AEP, the reason why federal common law exists in areas of “[e]nvironmental protection” is to “fill in statutory interstices.” 564 U.S. at 421 (quotation omitted). And far from

conflating federal-common-law rules with constitutional ones, this Court “ha[s] always recognized that

federal common law is subject to the paramount authority of Congress.” Milwaukee II, 451 U.S. at 313

(quotation omitted). The Court simply did not announce any constitutional rules sub silentio in its

cases addressing the federal common law of transboundary pollution. In fact, none of those cases reference, much less analyze, any specific text or provision of the U.S. Constitution—the first and most

basic step of any constitutional analysis. See Dobbs

v. Jackson Women’s Health Org., 597 U.S. 215, 235

(2022) (“Constitutional analysis must begin with ‘the

language of the instrument,’ which offers a ‘fixed

standard’ for ascertaining what our founding document means.” (citations omitted)).

3. Petitioners’ remaining cases are even further

afield. The petitions speak in grand generalizations

about the States’ co-equal dignity, and the constitutional restraints on their assertion of power among

one another, see, e.g., Sunoco.Pet.21–23, but none of

petitioners’ cited authorities stand for a sweeping constitutional principle that any case “involving transboundary pollution” necessarily “raise[s] questions

answerable only by federal law,” Shell.Pet.3, 16.

If anything, petitioners’ cases confirm that the

Court will not lightly infer that the Constitution’s

structure preempts traditional state authority, even

“in an area of national concern.” Sunoco.Pet.16. In

National Pork Producers, for example, the Court rejected the theory that the dormant Commerce Clause

precludes “state laws that have the ‘practical effect

of controlling commerce outside the State.’ ” 598 U.S.

at 371–76; see also Coyle v. Smith, 221 U.S. 559, 565

(1911) (Congress could not, even temporarily, prohibit Oklahoma from relocating its capital as a condition of admission to the Union); Bonaparte v. Appeal Tax Ct., 104 U.S. 592, 594–95 (1881) (a state

may tax registered public debt issued by another

state and held by one of the taxing state’s residents,

even if the debt would not be taxable in the issuing

state); United States v. Bevans, 16 U.S. (3 Wheat.)

336, 386–91 (1818) (Marshall, C.J.) (Article III’s

grant of maritime and admiralty jurisdiction and

Article I’s grant of power to provide and maintain a

navy did not automatically confer jurisdiction on

federal courts to hear a trial for murder committed

on a military vessel in Boston Habor, or divest Massachusetts courts of such jurisdiction). In Franchise

Tax Board v. Hyatt, 587 U.S. 230, 245 (2019), the

Court concluded that the framers “embed[ded] interstate sovereign immunity within the constitutional

design,” but only after conducting a searching and

rigorous analysis of the Constitution’s text and history, id. at 237–48. Petitioners offer no similar analysis here.

4. Finally, petitioners incorrectly assert that “only

federal law can apply” to this lawsuit because it

“implicat[es] the conflicting rights of States.” Sunoco.

Pet.28; Shell.Pet.23. But that assertion misapplies

the rule on which it relies.

The Court has made clear that “States may not supply rules of decision governing ‘disputes implicating

the[ir] conflicting rights,’ ” such as “disputes over borders,” “water rights,” and “the interpretation of interstate compacts.” Hyatt, 587 U.S. at 246 (quoting Tex.

Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630,

641 (1981)). That is because those controversies “involve[] a direct conflict between sovereigns.” Id. at

246–47 (emphasis added). When such a direct conflict

arises, “[s]ome subjects that were decided by pure ‘political power’ before ratification now turn on federal

‘rules of law.’ ” Id. at 246.

Those concerns are not implicated in this case,

however, where non-sovereign plaintiffs seek to hold

private companies liable under tort law for in-state

injuries. And contrary to petitioners’ insinuations,

Sunoco.Pet.22, the U.S. Constitution does not preclude this suit simply because it involves out-of-state

conduct. This Court has long recognized that “[t]he

cases are many in which a person acting outside the

State may be held responsible according to the law of

the state for injurious consequences within it.” Young

v. Masci, 289 U.S. 253, 258–59 (1933); see also, e.g.,

Allstate Ins. Co. v. Hague, 449 U.S. 302, 307 (1981)

(plurality) (“[A] set of facts giving rise to a lawsuit . . .

may justify, in constitutional terms, application of

the law of more than one jurisdiction.”); Restatement

(Third) of Foreign Relations Law § 402 & cmt. k (1987)

(state law may generally apply to foreign conduct

that “has or is intended to have substantial effect

within [the forum State]”).

The Court should therefore decline to review petitioners’ novel theory of constitutional preemption,

which invites it to “stare deeply into the penumbras”

of the Supremacy Clause “to identify new structural

limitations” on state authority. United States v. Arthrex, Inc., 594 U.S. 1, 58 (2021) (Thomas, J. dissenting); see also Sunoco.Pet.2 (citing Supremacy Clause

as only constitutional provision involved); Shell.

Pet.1 (same).

The Clean Air Act Does Not Preempt

Respondents’ Claims.

Petitioners also appear to advance an obstacle preemption defense based on the CAA and Ouellette. See

Shell.Pet.29. That defense fails because respondents’

“claims arise from [petitioners’] alleged failure to

warn and deceptive marketing conduct, not emissions-producing activities regulated by the CAA.”

Sunoco.App.59a.

1. State law may be preempted when it “stands as

an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress.” Ouellette, 479 U.S. at 492. This is “a high threshold” to

clear. Chamber of Com. of U.S. v. Whiting, 563 U.S.

582, 607 (2011). Obstacle preemption must be

“grounded in the text and structure of the statute at

issue.” Kansas v. Garcia, 589 U.S. 191, 208 (2020)

(quotations omitted). It cannot arise from “brooding

federal interest[s],” “judicial policy preference[s],” or

“abstract and unenacted legislative desires.” Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1901, 1907

(2019) (opinion of the court). Nor can it rest on “a hypothetical or potential conflict” between state and

federal law. Rice v. Norman Williams Co., 458 U.S.

654, 659 (1982). The operation of state law must actually “frustrate[] the objectives of the [federal act] in

some substantial way.” Edgar v. MITE Corp., 457

U.S. 624, 632 (1982); see also Kansas, 589 U.S. at 212

(preemption requires more than an “overlap” in subject matter or the “possibility that federal enforcement priorities might be upset”).

Respondents’ state-law claims pose no such obstacle to the CAA. The statute’s purpose is to protect the

nation’s air resources by preventing air pollution.

See 42 U.S.C. § 7401. It achieves that objective by

“regulat[ing] pollution-generating emissions.” Util.

Air Regulatory Grp. v. EPA, 573 U.S. 302, 308 (2014).

The CAA’s regulatory scheme “does not concern itself

in any way with the acts that trigger liability under

[respondents’] Complaint, namely: the use of deception to promote the consumption of fossil fuel products.” Sunoco.App.61a. Nor does this lawsuit interfere at all with the Environmental Protection

Agency’s “authority to regulate greenhouse-gas emissions.” Sunoco.Pet.26. As explained above, respondents’ claims cannot regulate emissions because petitioners do not need to limit their fossil-fuel

production, or their products’ emissions, to avoid future liability. See supra Part II.A. And to the extent

that petitioners are subject to any CAA emissions

standards, they can simultaneously comply with

those standards and their state-law duties to warn

and not deceive consumers about the climate impacts

of their products. See Sunoco.App.65a.

2. Ouellette does not support preemption here either. The Court there held that “[t]he [Clean Water

Act] precludes only those suits that may require

standards of effluent control that are incompatible

with those established by the procedures set forth in

the Act.” 479 U.S. at 497 (emphasis added). Because

the plaintiffs in Ouellette sought to hold an out-ofstate source of pollution liable for its “discharge of

effluents” into interstate waters, id. at 484, the suit

would effectively “compel the source to adopt different control standards and a different compliance

schedule from those approved by the EPA,” id. at

495. It was therefore preempted by the Clean Water

Act, which has an analogous preemptive reach to the

CAA, as petitioners agree. Sunoco.Pet.26; Shell.

Pet.23–24.

Unlike the defendant in Ouellette, petitioners do not

need to “change [their] methods of . . . controlling pollution” or “cease operations” to “avoid the threat of ongoing liability” in this case. Ouellette, 479 U.S. at 495.

They can avoid liability simply by “issuing warnings

and refraining from deceptive conduct.” Sunoco.

App.65a. At most, this suit will encourage petitioners

to be more truthful in the promotion of their products.

Because “[t]he CAA does not bar [petitioners] from

warning consumers about the dangers of using their

fossil fuel products,” the statute does not preempt respondents’ claims. Ibid.

3. In passing, petitioners suggest that this case regulates emissions merely because emissions would

have decreased if petitioners had adequately disclosed

and accurately represented the climate impacts of

their products. See Sunoco.Pet.25. But state law does

not “regulate” an industry merely because it may

“have an impact” on that industry. See Pilot Life Ins.

Co. v. Dedeaux, 481 U.S. 41, 50 (1987). Regulation

means “[c]ontrol over something by rule or restriction.” Regulation, Black’s Law Dictionary (11th ed.

2019). This lawsuit does not and cannot control or restrict greenhouse gas emissions at all, for the reasons

discussed above. See supra Part II.A.

C. Respondents’ Claims Do Not Impinge on

Federal Foreign Affairs Prerogatives.

Petitioners also say permitting this case to proceed

past the pleadings “would interfere with federal authority over foreign affairs.” Shell.Pet.8. But petitioners have “never detail[ed] what those foreign relations

are and how they conflict with [respondents’] statelaw claims.” Sunoco.App.49a (quotation omitted). Because petitioners have not shown that litigating this

case will have a “more than incidental effect on for-

eign affairs,” Am. Ins. Ass’n v. Garamendi, 539 U.S.

396, 418 (2003), the court below correctly held that

petitioners had not established a preemption defense.

1. The Court has found certain state law preempted where “there is evidence of clear conflict between”

it and the foreign policy of the United States,

id. at 421, or where the state law “establish[es] its

own foreign policy,” Zschernig v. Miller, 389 U.S.

429, 441 (1968). But the federal government’s foreign

affairs power will only preempt state law which, at a

minimum, “produce[s] something more than [an] incidental effect in conflict with express foreign policy

of the National Government.” Garamendi, 539 U.S.

at 420; see Zschernig, 389 U.S. at 433, 441 (similar).

The Court evaluates potential conflicts between state

law and foreign policy against “the backdrop of traditional state legislative subject matter.” Garamendi,

539 U.S. at 425; see also Medellín v. Texas, 552 U.S.

491, 532 (2008) (President’s memorandum directing

state courts to give effect to International Court of

Justice decision did not have preemptive effect in

part because it “reache[d] deep into the heart of the

State’s police powers”).

Petitioners do not argue that Hawai‘i is making its

own foreign policy in this case, and they have not

identified any “express foreign policy of the National

Government” with which respondents’ claims might

conflict. Garamendi, 539 U.S. at 420. Nor could they.

This case falls within the area of “traditional state

responsibility” to remedy deceptive marketing and

failures to warn about a product’s dangers. Id. at 419

n.11; see supra Part III.A (collecting cases on areas of

traditional state responsibility). The court below recognized as much in holding that respondents’ claims

do not come within the federal common law. See

Sunoco.App.53a (“We see no ‘uniquely federal interests’ in regulating marketing conduct, an area traditionally governed by state law.”).

2. The petitions’ vague assertions of a conflict betray their position. Petitioners say respondents’ claims

“encroach on U.S. foreign policy” by “challenging the

reasonableness of foreign-policy decisions that address energy policy and global greenhouse emissions.”

Shell.Pet.19; see also Sunoco.Pet. 27–28. But they do

not say what those foreign-policy decisions are or why

they are in conflict with state-law duties to warn and

avoid disinformation in the marketplace. Likewise,

petitioners assert that “[t]he ‘reasonableness’ element

of the state-law duty second-guesses national and international judgments about energy policy.” Shell.

Pet.21. But once again, they do not specify which judgments or policies are at issue, or why Hawai‘i tort law

would require a court to second-guess them.

Petitioners also speculate that a damages award in

this case might “affect the price and production of

fossil fuels abroad.” Shell.Pet.20; see also Sunoco.

Pet.27. But a “proper [preemption] inquiry calls for

an examination of the elements of the common-law

duty at issue; it does not call for speculation as to

whether a jury verdict will prompt the manufacturer

to take any particular action (a question, in any

event, that will depend on a variety of cost/benefit

calculations best left to the manufacturer’s accountants).” Bates v. Dow Agrosciences LLC, 544 U.S.

431, 445 (2005) (citation omitted). As explained

above, moreover, a damages award in this suit will at

most encourage petitioners to adequately and accurately disclose the risks of their products. See supra

Part III.B. Even if those disclosures had the potential to impact foreign markets, that “incidental or in-

direct effect in foreign countries” would be insufficient to preempt state law here. Zschernig, 389 U.S.

at 433–34 (quotations omitted).

IV. The Decision Below Is a Poor Vehicle.

The interlocutory posture of this case makes it a

particularly poor vehicle for considering petitioners’

preemption defenses, even if the Court had jurisdiction to grant certiorari under § 1257(a).

This Court is “generally hesitant to grant review of

non-final decisions,” even when it has jurisdiction to

do so. Taylor v. Riojas, 592 U.S. 7, 11 (2020) (Alito, J.,

concurring); Abbott v. Veasey, 137 S. Ct. 612, 613

(2017) (Roberts, C.J., respecting denial of cert.) (“Although there is no barrier to our review, the discriminatory purpose claim is in an interlocutory posture

. . . .”). That is for good reason. Later developments in

a case can moot the questions presented in an interlocutory appeal. Am. Constr. Co. v. Jacksonville, T. &

K.W. Ry. Co., 148 U.S. 372, 384 (1893) (“[M]any orders

made in the progress of a suit become quite unimportant by reason of the final result, or of intervening matters.”). Having a petitioner present all of its arguments to the Court in a single petition, rather than in

a series of interlocutory appeals, also promotes judicial economy. See Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100, 106 (2009) (“Permitting piecemeal, prejudgment appeals . . . undermines efficient judicial administration . . . .” (cleaned up)). Accordingly, lack of

finality is itself a “sufficient ground” for denying certiorari. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251, 258 (1916). “And, except in extraordinary cases, [a] writ [of certiorari] is not issued until

final decree.” Stephen M. Shapiro et al., Supreme

Court Practice § 4.18 (11th ed. 2019).

This is not one of those extraordinary cases. As litigation progresses towards final judgment, petitioners

will raise other federal- and state-law defenses. See supra Part I. If petitioners were to prevail on any of those

defenses, it could eliminate any need for this Court to

review the questions presented, including petitioners’

constitutional preemption theory. Denying the petitions is therefore consistent with the Court’s “usual

practice” of “avoid[ing] the unnecessary resolution of

constitutional questions.” Nw. Austin Mun. Util. Dist.

No. One v. Holder, 557 U.S. 193, 197 (2009); see also

William J. Brennan, Jr., Some Thoughts on the Supreme Court’s Workload, 66 Judicature 230, 231–32

(1983) (“[A]llowing the case to proceed to its final disposition below might produce a result that makes it

unnecessary to address an important and difficult constitutional question.”). If, on the other hand, respondents ultimately prevail on their claims, this Court

will have the opportunity to review all of petitioners’

challenges to final judgment in a single petition.

The Court should therefore adhere to its “normal

practice of denying interlocutory review.” Estelle v.

Gamble, 429 U.S. 97, 114–15 (1976) (Stevens, J., dissenting); see also Nat’l Football League v. Ninth Inning, Inc., 141 S. Ct. 56, 57 (2020) (Kavanaugh, J.,

respecting denial of cert.) (“the interlocutory posture

is a factor counseling against” review); Wrotten v. New

York, 560 U.S. 959 (2010) (Sotomayor, J., respecting

denial of certiorari) (similar); Mount Soledad Mem’l

Ass’n v. Trunk, 567 U.S. 944, 944 (2012) (Alito, J., respecting denial of cert.) (similar).

V. Further Percolation Is Warranted.

Finally, the benefits of percolation weigh heavily in

favor of denying certiorari. This Court will have other

opportunities to take up petitioners’ federal preemp-

tion defenses, which are currently being evaluated by

multiple state courts. There is no need to short-circuit

the state courts’ analysis, which “could yield insights

(or reveal pitfalls)” that this Court “cannot muster

guided only by [its] own lights.” Maslenjak v. United

States, 582 U.S. 335, 354 (2017) (Gorsuch, J., concurring in part and concurring in the judgment).

1. The percolation process has only just begun. The

Hawai‘i Supreme Court was the first appellate court

to decide whether federal law preempts state-law

claims that seek to hold fossil-fuel companies liable

for concealing and misrepresenting the climate impacts of their products. It will not be the last. Already,

a state trial court in Delaware has ruled on petitioners’ preemption defenses in an analogous suit, and

that ruling is the subject of a pending petition for interlocutory review by that state’s supreme court. See

Notice of Appeal from Interlocutory Order, Delaware

ex rel. Jennings v. BP Am., Inc., No. 54,2024 (Del. Feb.

8, 2024). In the near future, moreover, courts in Maryland, New Jersey, and South Carolina will adjudicate

these same defenses, which have been raised in fully

briefed motions to dismiss. And in all likelihood, petitioners and other defendants will advance those same

theories of preemption in similar cases being litigated

in Minnesota, Rhode Island, Illinois, and elsewhere.

The Court should allow the state courts to develop

the issues, in keeping with “ordinary practice.” Box v.

Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct.

1780, 1782 (2019) (per curiam). As this Court has repeatedly recognized, the collective wisdom of the lower courts is especially important when a petition raises “issue[s] of first impression,” id. at 1784 (Thomas,

J., concurring); or “complex” questions of law, Calvert

v. Texas, 141 S. Ct. 1605, 1606 (2021) (Sotomayor, J.,

respecting denial of cert.). Although petitioners’ theory of preemption lacks any merit, it is novel and complicated, relying on a confusing mélange of “federal

common law,” “constitutional structure,” “principles

of sovereignty and comity,” “[f]oreign-policy principles,” and statutory preemption. Sunco.Pet.22–24, 27.

The petitions raise precisely the sort of legal questions

that would benefit from additional exploration and deliberation by other courts below.

That conclusion is reinforced by petitioners’ efforts

to obtain a federal constitutional ruling from this

Court. The need for percolation is particularly pronounced “in the context of constitutional adjudication,

where the Court’s decisions cannot be overruled” by

Congress. Shapiro, Supreme Court Practice § 6.37(I).

(1). The Court should not rush to review petitioners’

theory of constitutional preemption and should instead

wait to see how the lower courts grapple with that novel theory and whether any consensus emerges.

2. Petitioners identify no countervailing reason for

prematurely terminating the percolation process. They

urge immediate review so that this Court can “provide

clarity” to state courts, who are just “beginning in earnest” to adjudicate cases like respondents’. Sunoco.

Pet.33. That argument has it backwards: “This Court

often speaks most wisely when it speaks last.” Maslenjak, 582 U.S. at 354 (Gorsuch, J., concurring in part and

concurring in the judgment). For that reason, it usually

lets a legal question fully percolate in the lower courts

before intervening. E.g., McCray v. New York, 461 U.S.

961, 963 (1983) (Stevens, J., respecting denial of cert.)

(“[I]t is a sound exercise of discretion for the Court to

allow the various States to serve as laboratories in

which the issue receives further study before it is addressed by this Court.”).

Petitioners will not, moreover, suffer any significant

or irreparable harm from litigating this case to final

judgment. They gesture vaguely at “litigation costs”

and the “threat[]” of a large “damages award.” Sunoco.

Pet.33. But these massive companies are wellequipped to handle the ordinary costs and risks of

state-court litigation. In any event, petitioners simply

describe the ordinary consequences of denying interlocutory appeals. They do not identify any “extraordinary” circumstances that would justify pre-judgment

review by this Court. Hamilton-Brown Shoe, 240 U.S.

at 258; see also Shapiro, Supreme Court Practice § 4.18

(“[I]n the absence of some such unusual factor, the interlocutory nature of a lower court judgment will generally result in a denial of certiorari.”).

CONCLUSION

The Court should deny the petitions for writ of certiorari.

Respectfully Submitted,

dana M.o. VIoLa

Corporation Counsel

PauL S. AokI

RoberT M. Kohn

NIcoLeTTe WInTer

Jeff A. Lau

Deputies Corporation Counsel

530 South King St., Room 110

Honolulu, HI 96813

(808) 768-5129

paoki@honolulu.gov

robert.kohn@honolulu.gov

nwinter@honolulu.gov

jlau3@honolulu.gov

Counsel for Respondents City and

County of Honolulu and

Honolulu Board of Water Supply

May 1, 2024

VIcTor M. Sher

Counsel of Record

MaTThew K. EdLIng

MIchaeL Burger

MarTIn d. QuIñones

QuenTIn C. KarpILow

Sher Edling LLP

100 Montgomery St., Ste. 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

matt@sheredling.com

michael@sheredling.com

marty@sheredling.com

quentin@sheredling.com

Counsel for Respondents

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