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 and 23-952

In the Supreme Court of the United States

SUNOCO LP, ET AL., PETITIONERS

v.

CITY AND COUNTY OF HONOLULU, HAWAII, ET AL.

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

PETITIONERS

v.

CITY AND COUNTY OF HONOLULU, HAWAII, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE SUPREME COURT OF HAWAII

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

FREDERICK LIU

Assistant to the Solicitor

General

CHRISTINE W. ENNIS

ROBERT P. STOCKMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Hawaii Supreme Court correctly affirmed the denial of petitioners’ motion to dismiss, which

argued that respondents’ state-law claims alleging the

deceptive marketing of fossil-fuel products were either

governed by the federal common law of transboundary air

pollution or preempted by the Clean Air Act, 42 U.S.C.

7401 et seq.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

Discussion ...................................................................................... 6

A. This Court lacks jurisdiction to review the Hawaii

Supreme Court’s interlocutory decision, and the

existence of pending constitutional issues counsels

against review at this time ............................................... 7

B. The merits of the decision below do not warrant

this Court’s review at this time ...................................... 14

C. Petitioners have not demonstrated that any

appellate court would have reached a different

outcome than the court below ........................................ 19

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Adams v. Robertson, 520 U.S. 83 (1997) ....................... 12, 13

American Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011).................................................. 14, 15, 16

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

(3d Cir. 2013), cert. denied, 572 U.S. 1149 (2014) ............ 22

BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ............ 12

Brown-Forman Corp. v. Miller,

528 S.W.3d 886 (Ky. 2017) .................................................. 22

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ............................................. 19-21

Connecticut v. Exxon Mobil Corp.,

83 F.4th 122 (2d Cir. 2023) ................................................. 21

Coventry Health Care of Missouri, Inc. v. Nevils,

576 U.S. 1048 (2015)............................................................ 11

(III)

IV

Cases—Continued:

Page

Coventry Health Care of Missouri, Inc. v. Nevils,

581 U.S. 87 (2017) ............................................................... 10

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ................ 8, 9

Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251

(2013) .............................................................................. 10, 11

Flynt v. Ohio, 451 U.S. 619 (1981) ................................... 9, 10

Freeman v. Grain Processing Corp., 848 N.W.2d 58

(Iowa), cert. denied, 574 U.S. 1026 (2014) ........................ 22

Gordon Coll. v. DeWeese-Boyd, 142 S. Ct. 952 (2022) ....... 11

Honolulu v. Sunoco LP:

No. 20-cv-163, 2021 WL 531237

(D. Haw. Feb. 12, 2021) ........................................... 2, 16

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

143 S. Ct. 1795 (2023) ........................................... 2, 3, 16

Howell v. Mississippi, 543 U.S. 440 (2005) ......................... 12

Illinois v. Milwaukee, 731 F.2d 403 (7th Cir. 1984),

cert. denied, 469 U.S. 1196 (1985) ............................... 21, 22

International Paper Co. v. Ouellette,

479 U.S. 481 (1987).................................................. 15, 17, 18

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ................. 14

Johnson v. California, 541 U.S. 428 (2004) .......................... 8

Merrick v. Diageo Americas Supply, Inc.,

805 F.3d 685 (6th Cir. 2015) ............................................... 22

North Carolina ex rel. Cooper v. TVA, 615 F.3d 291

(4th Cir. 2010), cert. denied, 564 U.S. 1054 (2011) ..... 21, 22

Northwest Airlines, Inc. v. Transport Workers,

451 U.S. 77 (1981) ............................................................... 14

Pierce County v. Guillen, 537 U.S. 129 (2003) ................. 7, 8

Puerto Rico Dep’t of Consumer Affairs v. Isla

Petroleum Corp., 485 U.S. 495 (1988) ......................... 15, 16

Republic Natural Gas Co. v. Oklahoma,

334 U.S. 62 (1948) ................................................................. 8

V

Cases—Continued:

Page

Rodriguez v. FDIC, 589 U.S. 132 (2020) ............................. 16

Suncor Energy (U.S.A.) Inc. v. Board of County

Comm’rs of Boulder County:

143 S. Ct. 78 (2022) ............................................................ 3

143 S. Ct. 1795 (2023) ........................................................ 3

Sunoco LP v. Honolulu, 143 S. Ct. 1795 (2023) ................... 3

Wilson v. Hawaii, No. 23-7517 (Dec. 9, 2024) .................... 11

Constitution, statutes, and rule:

U.S. Const.:

Art. I, § 8, Cl. 3 (Interstate and Foreign

Commerce Clauses) ........................................... 6, 12, 13

Amend. XIV, § 1 (Due Process Clause) .............. 6, 12, 13

Clean Air Act, 42 U.S.C. 7401 et seq. ..................................... 4

Clean Water Act, 33 U.S.C. 1251 et seq. .............................. 15

28 U.S.C. 1257(a) ........................................................... 7, 8, 11

43 U.S.C. 1802 ........................................................................ 10

43 U.S.C. 1802(1) ................................................................... 10

Haw. R. Civ. P. 12(b)(6) ............................. 3, 4, 6, 9, 10, 12, 13

In the Supreme Court of the United States

No. 23-947

SUNOCO LP, ET AL., PETITIONERS

v.

CITY AND COUNTY OF HONOLULU, HAWAII, ET AL.

No. 23-952

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

PETITIONERS

v.

CITY AND COUNTY OF HONOLULU, HAWAII, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE SUPREME COURT OF HAWAII

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s orders inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petitions for writs of certiorari should be denied.

STATEMENT

1. Petitioners are “extractors, producers, refiners,

manufacturers, distributors, promoters, marketers,

and/or sellers of fossil fuel products”—namely, “coal,

oil, and natural gas.” Compl. ¶¶ 4-5. In 2020, the City

(1)

2

and County of Honolulu (Honolulu) brought suit against

petitioners in Hawaii state court, alleging five claims

under Hawaii state common law: public nuisance, private nuisance, strict-liability failure to warn, negligent

failure to warn, and trespass. Compl. ¶¶ 154-205. All five

state-law claims rested on the same theory of liability:

that petitioners have known for decades that greenhousegas emissions from the use of their fossil-fuel products

would contribute to climate change; that instead of warning consumers about those consequences, petitioners

engaged in deceptive marketing by concealing and mispresenting the dangers of using their fossil-fuel products; and that as a result of that deception, consumers

used more of petitioners’ fossil-fuel products than they

otherwise would have, causing “a substantial portion” of

the injuries that Honolulu has suffered because of climate change. Compl. ¶¶ 7-13.

Petitioners removed the case to federal court pursuant to various statutes. Honolulu v. Sunoco LP, No. 20cv-163, 2021 WL 531237, at *1-*2 (D. Haw. Feb. 12, 2021).

The federal district court rejected each ground for removal and remanded the case to state court. Id. at *9.

The district court observed that Honolulu had “chosen

to pursue claims that target [petitioners’] alleged concealment of the dangers of fossil fuels, rather than the

acts of extracting, processing, and delivering those

fuels.” Id. at *1. Viewing the claims “in th[at] light,” the

court found “no basis for federal jurisdiction.” Ibid.

The Ninth Circuit affirmed. Honolulu v. Sunoco LP,

39 F.4th 1101 (2022), cert. denied, 143 S. Ct. 1795 (2023).

Like the district court, the Ninth Circuit understood

Honolulu’s claims to be “about whether oil and gas companies misled the public about dangers from fossil

fuels.” Id. at 1113. Given the nature of Honolulu’s claims,

3

the Ninth Circuit rejected petitioners’ contention that

the suit “belong[ed] in federal court.” Id. at 1106. Petitioners filed a petition for a writ of certiorari on the

question whether Honolulu’s state-law suit was removable to federal court, and this Court denied review.

Sunoco LP v. Honolulu, 143 S. Ct. 1795 (2023) (No. 22523).1

2. In 2021, the Honolulu Board of Water Supply joined

this suit as a plaintiff. 23-952 Pet. App. 7a, 107a. Honolulu and the Board, respondents here, filed an amended

complaint with the same claims and theory of liability—

i.e., that petitioners deceptively marketed their fossilfuel products. Id. at 100a-234a.

Petitioners moved under Hawaii Rule of Civil Procedure 12(b)(6) to dismiss the amended complaint for failure to state a claim. Joint Mem. in Support of Mot. to

Dismiss for Failure to State a Claim, Cir. Ct. Doc. 347,

at 1-29 (June 2, 2021) (Mem.). Petitioners characterized

respondents’ claims as “seek[ing] to regulate transboundary and international emissions and pollution.” Mem. 11.

Petitioners then argued that federal law precludes respondents’ claims for two reasons. Mem. 11-24. First,

petitioners contended that “federal common law governs all of [respondents’] claims.” Mem. 5. Second, petiThis Court called for the views of the Solicitor General on a petition seeking review of whether a similar state-law suit was removable to federal court. Suncor Energy (U.S.A.) Inc. v. Board of County

Comm’rs of Boulder County, 143 S. Ct. 78 (2022) (No. 21-1550). The

government filed a brief expressing the view that the suit was not

removable and that the certiorari petition should be denied. U.S.

Cert. Amicus Br. at 6-7, Suncor, supra (No. 21-1550). The Court

subsequently denied review in that case and others—including this

one—raising the same issue. See, e.g., Suncor Energy (U.S.A.) Inc.

v. Board of County Comm’rs of Boulder County, 143 S. Ct. 1795

(2023) (No. 21-1550).

1

4

tioners argued that “even if [respondents’] common law

claims could be governed by state law,” the claims would

be “preempted” by the Clean Air Act, 42 U.S.C. 7401

et seq. Mem. 5; see Mem. 22-24.

In 2022, the state trial court denied petitioners’ Rule

12(b)(6) motion. 23-952 Pet. App. 84a-95a. The court

explained that “[s]tate law tort claims traditionally involve four elements: duty, breach, causation, and harm

or damages.” Id. at 86a. The court understood all of respondents’ claims to rely on “the same basic theory of

liability”: that petitioners breached “a duty to disclose

and not be deceptive about the dangers of fossil fuel

emissions,” thereby increasing fossil-fuel consumption

and exacerbating the effects of climate change in Honolulu. Id. at 86a & n.1 (emphasis omitted).

The trial court then rejected petitioners’ arguments

that federal statutory and common law precludes respondents’ claims. 23-952 Pet. App. 88a-93a. The court

explained that “the Clean Air Act supplants the federal

common law invoked by [petitioners],” id. at 92a, and

that there is no federal “common law” policy “against

timely and accurate disclosure of harms from fossil fuel

emissions” in any event, id. at 90a-91a. The court likewise rejected petitioners’ Clean Air Act preemption argument on the ground that there is no federal “statutory” policy against “timely and accurate disclosure” of

such harms. Id. at 90a; see id. at 93a. The court, however, granted petitioners leave to file an interlocutory

appeal to the Hawaii Intermediate Court of Appeals.

23-947 Pet. App. 86a-90a.

3. In 2023, the Hawaii Supreme Court accepted transfer of the appeal, 23-952 Pet. App. 96a-97a, and affirmed

the denial of petitioners’ Rule 12(b)(6) motion, id. at 1a76a.

5

As an initial matter, the Hawaii Supreme Court rejected petitioners’ characterization of respondents’ suit.

23-952 Pet. App. 2a-3a. The court explained that, contrary to petitioners’ contention, respondents’ suit “does

not seek to regulate emissions or curb energy production.” Id. at 34a. Instead, the court emphasized, respondents’ suit “seeks to hold [petitioners] accountable for allegedly (1) failing to warn about the dangers of their

fossil fuel products and (2) deceptively promoting those

products.” Ibid.; see id. at 39a-40a.

The Hawaii Supreme Court then rejected petitioners’ reliance on federal common law. 23-952 Pet. App.

38a-56a. First, the court held that the federal common

law on which petitioners relied—i.e., the federal common law of “transboundary pollution”—had been displaced by the Clean Air Act. Id. at 39a. The court observed that petitioners themselves had “acknowledge[d]”

as much. Id. at 47a. Second, the court held that “[e]ven

if federal common law governing interstate pollution

claims had not been displaced, [respondents’] claims

would not be preempted” because respondents’ claims

target petitioners’ “allegedly tortious marketing conduct,

not pollution traveling from one state to another.” Id.

at 52a-53a. The court noted that petitioners had “fail[ed]

to point to any case recognizing federal common law

governing tortious marketing suits.” Id. at 55a. And

the court found that petitioners had “waived any argument to expand federal common law to cover [respondents’] claims.” Ibid.

The Hawaii Supreme Court also rejected petitioners’

Clean Air Act preemption argument. 23-952 Pet. App.

56a-69a. The court explained that the Clean Air Act “regulates pollution,” not “marketing conduct,” and “does

not concern itself in any way with * * * the use of de-

6

ception to promote the consumption of fossil fuel products.” Id. at 64a. The court concluded that “because

[respondents’] claims arise from [petitioners’] alleged

failure to warn and deceptive marketing conduct, not

emissions-producing activities regulated by the [Clean

Air Act],” the statute “does not preempt [respondents’]

claims.” Id. at 62a.

DISCUSSION

Respondents brought suit alleging that petitioners

violated various state common-law duties by deceptively marketing fossil-fuel products. Petitioners filed

a Rule 12(b)(6) motion to dismiss, arguing that respondents’ claims are either governed by the federal common

law of transboundary air pollution or preempted by the

Clean Air Act. The Hawaii Supreme Court rejected those

arguments and affirmed the denial of petitioners’ motion, thereby allowing the suit to proceed.

The petitions for writs of certiorari seeking review of

that ruling should be denied for multiple interrelated

reasons.2 This Court does not have jurisdiction to review

the Hawaii Supreme Court’s interlocutory decision, and

even if it did, further review at this time would be unwarranted. In addition to presenting federal-commonlaw and statutory preemption arguments in their Rule

12(b)(6) motion, petitioners have taken the position in

their answers filed in the trial court that respondents’

state-law claims are barred by the Interstate and Foreign Commerce Clauses, the Due Process Clause, and

federal primacy in foreign affairs. Those constitutional

In a brief filed simultaneously with this one, the United States

has expressed the view that the motion for leave to file a bill of complaint in Alabama v. California, No. 158, Orig., should likewise be

denied. The proposed complaint in that case seeks to enjoin other

state-court suits brought against private energy companies.

2

7

arguments may ultimately be held to foreclose respondents’ state-law claims to the extent they are based on

emissions or other conduct outside Hawaii. Yet those

defenses have not been addressed by the Hawaii Supreme Court, or even the trial court. The existence of

those pending constitutional issues counsels against review now, which would risk piecemeal review of federal

issues by this Court.

A. This Court Lacks Jurisdiction To Review The Hawaii

Supreme Court’s Interlocutory Decision, And The

Existence Of Pending Constitutional Issues Counsels

Against Review At This Time

The Hawaii Supreme Court’s interlocutory decision

does not satisfy 28 U.S.C. 1257(a)’s final-judgment rule.

This Court therefore lacks jurisdiction to review the decision below. Moreover, even if that decision were a final judgment, the extent to which the Constitution itself

may preclude respondents’ claims would not be properly

before this Court, and the interlocutory nature of the

decision below would counsel against the Court’s review

at this time.

1. Under Section 1257(a), this Court’s jurisdiction is

limited to review of “[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). “As a general matter,

to be reviewed by this Court, a state-court judgment

must be final ‘as an effective determination of the litigation and not of merely interlocutory or intermediate

steps therein.’ ” Pierce County v. Guillen, 537 U.S. 129,

140 (2003) (citation and some internal quotation marks

omitted). The Hawaii Supreme Court’s decision in this

case is not final in that sense because it affirms the denial of a motion to dismiss and contemplates further proceedings. 23-952 Pet. App. 2a.

8

This Court has “acknowledged, however, that certain

state-court judgments can be treated as final for jurisdictional purposes, even though further proceedings are

to take place in the state courts.” Guillen, 537 U.S. at

140-141. In Cox Broadcasting Corp. v. Cohn, 420 U.S.

469 (1975), this Court divided state-court judgments of

that kind into “four exceptional categories.” Johnson v.

California, 541 U.S. 428, 429 (2004) (per curiam). As

the parties invoking this Court’s jurisdiction, petitioners bear the burden of establishing that this case falls

within one of the four. See Republic Natural Gas Co. v.

Oklahoma, 334 U.S. 62, 70-71 (1948).

Petitioners invoke only the fourth Cox category. 23947 Cert. Reply Br. 3-4; 23-952 Cert. Reply Br. 9-11.

That category encompasses cases in which (1) “the federal issue has been finally decided in the state courts

with further proceedings pending in which the party

seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of

the federal issue by this Court”; (2) “reversal of the

state court on the federal issue would be preclusive of

any further litigation on the relevant cause of action”;

and (3) “a refusal immediately to review the state-court

decision might seriously erode federal policy.” Cox, 420

U.S. at 482-483.

Petitioners have not met their burden of showing

that this case satisfies those factors. With respect to the

first factor, this is not a case in which all that remains is

the prospect that petitioners “might prevail on the merits on nonfederal grounds.” Cox, 420 U.S. at 482-483 (emphasis added). Petitioners could instead succeed, in substantial part, on federal grounds under the Constitution.

Petitioners have not shown that jurisdiction lies under

Section 1257(a) in these circumstances. To the contrary,

9

this Court “observed in Cox that in most, if not all, of

the cases falling within the four exceptions, not only was

there a final judgment on the federal issue for purposes

of state-court proceedings, but also there were no other

federal issues to be resolved.” Flynt v. Ohio, 451 U.S.

619, 621 (1981) (per curiam). Treating this case as nevertheless falling within the fourth exception would risk

“piecemeal review with respect to federal issues.” Ibid.

With respect to the second factor, petitioners’ Rule

12(b)(6) motion relied on the federal common law of

transboundary air pollution and the Clean Air Act. See

pp. 3-4, supra. Even under petitioners’ own theory,

those authorities would preclude respondents’ claims

only to the extent those claims “seek to apply state law

extraterritorially to regulate transboundary pollution.”

23-947 Cert. Reply Br. 1 (emphasis added). Thus, even

if this Court were to accept petitioners’ arguments, respondents would not be precluded from pursuing claims

involving in-state deceptive practices or in-state pollution. Br. in Opp. 8. And although petitioners dispute

whether respondents have preserved any in-state

claims, see 23-947 Cert. Reply Br. 3; 23-952 Cert. Reply

Br. 10, that issue would itself be one for the state courts

to address in further proceedings. Petitioners have

therefore failed to show that reversal of the decision below on petitioners’ federal-common-law and Clean Air

Act arguments would be “preclusive of further litigation” on respondents’ claims. Cox, 420 U.S. at 482-483.

Petitioners have also failed to show that “a refusal

immediately to review the state-court decision might seriously erode federal policy.” Cox, 420 U.S. at 483. To

satisfy that factor, it is not enough to assert that the

state court decided a federal issue erroneously. If that

were sufficient, the “fourth [Cox] exception [would]

10

swallow the rule.” Flynt, 451 U.S. at 622. Instead, the

question is whether this Court’s resolution of the federal issue “can await final judgment without any adverse effect upon important federal interests.” Ibid. The

party invoking this Court’s jurisdiction bears the burden of showing that “delaying review” until final judgment might “seriously erode” an “identifiable federal

policy.” Ibid.

Petitioners have failed to meet that burden here. In

attempting to satisfy this requirement under the fourth

Cox category, petitioners do not rely on either federal

common law or the Clean Air Act. 23-947 Cert. Reply

Br. 3-4; 23-952 Cert. Reply Br. 9-11. Instead, petitioners

invoke “federal interests in the regulation of fossil fuels

and greenhouse-gas emissions.” 23-947 Cert. Reply Br.

3. But petitioners do not point to any “identifiable federal policy” embodying those interests—especially with

respect to claims of deceptive marketing—that would

demonstrate that the interests could not be adequately

vindicated by this Court’s review after final judgment.

Flynt, 451 U.S. at 622. Petitioners also invoke 43 U.S.C.

1802(1) and the Constitution. 23-952 Cert. Reply Br. 11;

23-947 Cert. Reply Br. 3-4. But this case does not implicate Section 1802(1), which merely describes the

“purposes” of a statute concerning the Outer Continental Shelf. 43 U.S.C. 1802. And petitioners’ Rule 12(b)(6)

motion did not raise, and the state courts did not address, any argument that the Constitution itself precludes respondents’ claims. See pp. 11-13, infra.

Petitioners’ reliance (23-947 Cert. Reply Br. 3) on

Coventry Health Care of Missouri, Inc. v. Nevils, 581

U.S. 87 (2017), and Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251 (2013), is likewise misplaced. Although this

Court did not address its jurisdiction in either decision,

11

the Court presumably concluded that each case fell

within the fourth Cox category because of an express

preemption clause. See U.S. Cert. Amicus Br. at 19-20,

Coventry Health Care of Missouri, Inc. v. Nevils, 576

U.S. 1048 (2015) (No. 13-1305); U.S. Amicus Br. at 9 n.2,

Dan’s City, supra (No. 12-52). The statute at issue in

Dan’s City, moreover, contained an express finding by

Congress that “state governance of intrastate transportation of property had become ‘unreasonably burdensome’ to ‘free trade, interstate commerce, and American consumers.’ ” 569 U.S. at 256 (brackets and citation

omitted). Because petitioners fail to point to any similar

expression of federal policy that would call for immediate review here, petitioners have not met their burden

of showing that this case fits the fourth Cox category.

This Court therefore lacks jurisdiction under Section

1257(a) to review the Hawaii Supreme Court’s interlocutory decision. “At the very least,” the need to resolve

“this threshold jurisdictional issue would complicate

[the Court’s] review.” Gordon Coll. v. DeWeese-Boyd,

142 S. Ct. 952, 955 (2022) (Alito, J., respecting the denial

of certiorari); see Wilson v. Hawaii, No. 23-7517 (Dec.

9, 2024), slip op. 7 (Thomas, J., respecting the denial of

certiorari) (explaining that the Hawaii Supreme Court’s

decision was “an interlocutory order over which [this

Court] may not have jurisdiction”); Wilson, supra, slip

op. 4 (Gorsuch, J., respecting the denial of certiorari)

(emphasizing the “interlocutory” nature of the Hawaii

Supreme Court’s decision).

2. Section 1257(a) further limits this Court’s review

to “right[s] * * * specially set up or claimed under the

Constitution or the treaties or statutes of, or * * * authority exercised under, the United States.” 28 U.S.C.

1257(a) (emphasis added). Accordingly, “this Court has

12

almost unfailingly refused to consider any federal-law

challenge to a state-court decision unless the federal

claim ‘was either addressed by or properly presented to

the state court that rendered the decision [this Court]

ha[s] been asked to review.’ ” Howell v. Mississippi, 543

U.S. 440, 443 (2005) (per curiam) (quoting Adams v.

Robertson, 520 U.S. 83, 86 (1997) (per curiam)).

In moving to dismiss under Rule 12(b)(6), petitioners

argued that respondents’ claims were either governed

by federal common law or preempted by the Clean Air

Act. Mem. 5. To the extent petitioners’ Rule 12(b)(6)

motion invoked the Constitution at all, it did so only in

connection with their federal-common-law argument,

without citing any particular constitutional provision.

See, e.g., Mem. 12 (“ ‘The basic scheme of the Constitution . . . demands’ that federal common law apply in

these circumstances.”) (brackets and citation omitted).

Petitioners’ Rule 12(b)(6) motion did not argue that the

Constitution itself precludes respondents’ claims, and in

ruling on that motion, the state courts likewise did not

address any such constitutional issue. See 23-952 Pet.

App. 3a-5a, 11a, 15a-18a (summarizing the issues raised

and addressed below).

Petitioners now contend, however, that “[i]t is * * *

the Constitution * * * that is doing the relevant work.”

23-947 Cert. Reply Br. 7; see 23-947 Pet. 24, 27-28; 23952 Pet. 16-23. To be sure, petitioners may ultimately

prevail on their contention that respondents’ claims are

barred by the Constitution—specifically, the Interstate

and Foreign Commerce Clauses, the Due Process Clause,

and federal constitutional structure—to the extent the

claims rely on conduct occurring outside Hawaii. See,

e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 572, 573

n.20 (1996) (explaining that “principles of state sover-

13

eignty and comity” mean “that a State may not impose

economic sanctions on violators of its laws with the intent of changing the tortfeasors’ lawful conduct in other

States,” while reserving judgment on “whether one State

may properly attempt to change a tortfeasor’s unlawful

conduct in another State”). But no such question was addressed or properly presented below. And regardless of

whether the “requirement that a federal claim be addressed or properly presented in state court is jurisdictional or prudential,” “the circumstances here justify no

exception.” Adams, 520 U.S. at 90. Thus, even if the decision below fell within the fourth Cox category, the extent to which the Constitution itself may preclude respondents’ claims would not be properly before this

Court.

3. In any event, even if the possibility of piecemeal

review were not a jurisdictional problem, see pp. 8-9,

supra, it at least counsels against review at this juncture. As discussed, the only federal issues raised in petitioners’ Rule 12(b)(6) motion—and addressed below—

were petitioners’ federal-common-law and Clean Air Act

arguments. See pp. 3-6, supra. But in their answers to

respondents’ amended complaint, petitioners have raised

additional federal issues, including whether and to what

extent the Constitution itself precludes respondents’

claims. See, e.g., Shell Answer, Cir. Ct. Doc. 742, at 32,

34 (Sept. 12, 2022) (asserting defenses based on the

Commerce Clause, the Due Process Clause, the foreignaffairs doctrine, and separation of powers); Sunoco Answer, Cir. Ct. Doc. 750, at 27, 29 (Sept. 12, 2022) (same).

The state courts may well address those additional

federal issues in further proceedings. In particular, the

state courts could conclude that the Constitution bars

the state-law claims to the extent they rely on conduct

14

occurring outside Hawaii, even though the Hawaii Supreme Court concluded that the Clean Air Act does not

preempt those claims. Postponing review until final

judgment would thus allow the Court to consider all of

the federal issues presented in this case at one time.

Jefferson v. City of Tarrant, 522 U.S. 75, 83 (1997).

B. The Merits Of The Decision Below Do Not Warrant This

Court’s Review At This Time

1. The Hawaii Supreme Court correctly rejected petitioners’ reliance on federal common law for two independent reasons. 23-952 Pet. App. 38a-56a.

a. First, as the United States has previously explained, the federal common law that petitioners invoke

—the federal common law of “transboundary [air] pollution,” 23-952 Pet. App. 39a; see Mem. 11—has been

displaced by Congress in the Clean Air Act, at least with

respect to greenhouse-gas emissions. See U.S. Cert.

Amicus Br. at 11-15, Suncor Energy (U.S.A.) Inc. v.

Board of County Comm’rs of Boulder County, 143 S. Ct.

1795 (2023) (No. 21-1550). This Court so held in American Electric Power Co. v. Connecticut, 564 U.S. 410,

424 (2011) (AEP).

Despite acknowledging that displacement, petitioners contend that respondents’ claims are still governed

by federal common law. 23-952 Pet. App. 47a. But “federal common law is ‘subject to the paramount authority

of Congress.’ ” Northwest Airlines, Inc. v. Transport

Workers, 451 U.S. 77, 95 (1981) (citation omitted). “Thus,

once Congress addresses a subject, even a subject previously governed by federal common law, * * * the task

of the federal courts is to interpret and apply statutory

law, not to create common law.” Id. at 95 n.34.

In AEP, for example, the Court did not remand for

consideration of the viability of the plaintiffs’ state-law

15

claims in light of the federal common law that the Clean

Air Act had displaced. 564 U.S. at 429. To the contrary,

the Court described any remaining disputes over the

scope of that “displaced” body of federal common law as

“academic.” Id. at 423. The Court then treated the viability of the plaintiffs’ state-law claims as a matter of

Clean Air Act preemption, instructing the lower courts

to consider “the availability vel non of a state lawsuit”

in light of “the preemptive effect of the federal Act.” Id.

at 429.

This Court took a similar approach in International

Paper Co. v. Ouellette, 479 U.S. 481 (1987). After concluding that the Clean Water Act, 33 U.S.C. 1251 et seq.,

had displaced the federal common law governing transboundary water pollution, Ouellette, 479 U.S. at 489, the

Court did not suggest that the prior federal-commonlaw regime had any bearing on the extent to which

state-law claims could go forward. Instead, the Court

treated the viability of state-law claims as solely a matter of Clean Water Act preemption, to be addressed in

light of statutory provisions that “specifically preserve[d] [certain] state actions” and “allow[ed] source

States to impose stricter standards.” Id. at 497, 499; see

id. at 488-500. Petitioners’ assertion that federal common law governs respondents’ claims even after Congress displaced that body of law cannot be reconciled

with AEP or Ouellette.

This Court addressed a similar argument in Puerto

Rico Department of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988), where it rejected the

contention that a Puerto Rico law imposing price and

allocation controls on petroleum products was preempted by the Emergency Petroleum Allocation Act

(EPAA), which had since been repealed. The Court ob-

16

served that “repeal of EPAA regulation did not leave

behind a pre-emptive grin without a statutory cat.” Id.

at 504. So too here, the displacement of the federal common law “did not leave behind a pre-emptive grin” without a common-law “cat.” Ibid.

b. Second, even if Congress had not displaced the

federal common law on which petitioners rely, that body

of federal common law would still not govern respondents’ claims. 23-952 Pet. App. 52a-56a. “There is no federal general common law.” AEP, 564 U.S. at 420 (citation omitted). “Instead, only limited areas exist in which

federal judges may appropriately craft the rule of decision.” Rodriguez v. FDIC, 589 U.S. 132, 136 (2020). Petitioners invoke one such area of federal common law

here: the federal common law of transboundary air pollution. That specialized body of federal common law imposed on polluters certain duties not to pollute. See

AEP, 564 U.S. at 421.

But respondents in this case do not allege the violation of such a duty. Rather, they allege the violation of

a different one: “a duty to disclose and not be deceptive

about” the dangers of using fossil-fuel products. 23-952

Pet. App. 86a (emphasis omitted); see id. at 103a-106a.

Indeed, every court to have addressed respondents’

claims has described them as claims “about whether oil

and gas companies misled the public about dangers from

fossil fuels.” Honolulu v. Sunoco LP, 39 F.4th 1101, 1113

(9th Cir. 2022), cert. denied, 143 S. Ct. 1795 (2023); see

23-952 Pet. App. 34a, 86a n.1; Honolulu v. Sunoco LP,

No. 20-cv-163, 2021 WL 531237, at *1 (D. Haw. Feb. 12,

2021).

Because respondents do not allege the violation of a

duty not to pollute, the federal common law that petitioners invoke would not govern respondents’ claims

17

even if it still existed. To establish that federal common

law governs respondents’ claims, this Court would have

to fashion a new body of federal common law—one that

governs “tortious marketing.” 23-952 Pet. App. 55a. But

petitioners have not cited “any case recognizing federal

common law governing tortious marketing suits,” and

they have “waived any argument to expand federal common law to cover [respondents’] claims.” Ibid.

Given that state-law ground of waiver found by the

Hawaii Supreme Court, the decision below would be a

poor vehicle for considering whether federal common

law governs respondents’ claims. Even if this Court

were to look past Congress’s displacement of the federal common law on which petitioners rely, that federal

common law still would not reach tortious marketing.

2. The Hawaii Supreme Court was also correct in

concluding that the Clean Air Act does not categorically

preempt respondents’ claims. 23-952 Pet. App. 56a-69a.

In arguing that the Act preempts respondents’ claims

in their entirety, petitioners do not rely on any express

preemption clause. Instead, petitioners rely on a theory

of obstacle preemption drawn from this Court’s decision

in Ouellette. Mem. 22-24; 23-952 Pet. 29-31.

Ouellette involved a defendant whose discharges into

the waters of one State (the source State) affected the

waters of another (the affected State). 479 U.S. at 483484. The plaintiff sued, alleging that the defendant’s discharges violated the law of the affected State. Id. at 484.

This Court held that the Clean Water Act precluded

“applying the law of an affected State” to impose a duty

not to pollute on “an out-of-state source.” Id. at 494. The

Court explained that “if affected States were allowed to

impose separate discharge standards on a single point

source, the inevitable result would be a serious interfer-

18

ence with the achievement of the ‘full purposes and objectives of Congress.’ ” Id. at 493-494 (citation omitted).

Analogizing this case to Ouellette, petitioners contend that the Clean Air Act likewise precludes applying

Hawaii law to regulate “air pollution originating out-ofstate.” Mem. 23. But unlike in Ouellette, the defendants

here are fuel marketers, not “emitters.” 23-947 Pet. 25.

And most importantly, respondents’ state-law claims

seek to enforce a duty not to deceive—i.e., “a duty to

disclose and not be deceptive about” the dangers of using fossil-fuel products—rather than a duty not to pollute. 23-952 Pet. App. 86a (emphasis omitted); see 23952 Pet. 21 (acknowledging that the “proper inquiry” focuses on the “common-law duty at issue”) (citation omitted). That distinction matters because while the Clean

Air Act “regulates pollution,” it “does not concern itself ”

with the kind of deceptive marketing alleged here. 23952 Pet. App. 64a. Thus, unlike in Ouellette, respondents’ claims would not necessarily stand as an obstacle

to the achievement of Congress’s “purposes and objectives.” 479 U.S. at 493 (citation omitted).

Ouellette therefore does not support petitioners’ theory that the Clean Air Act preempts respondents’ claims

in their entirety. And while there may be arguments

that the Act nevertheless limits the scope of respondents’ claims or the relief that could be granted, the decision below would be an unsuitable vehicle for considering those narrower theories because the precise contours of respondents’ claims have not yet been developed or addressed in the state courts below. 3

In previous lower-court filings in other cases, the United States

took the position that the Clean Air Act preempts certain state-law

claims that the United States characterized as seeking to “regulate

out-of-state pollution sources.” U.S. Amicus Br. in Support of Mot.

3

19

C. Petitioners Have Not Demonstrated That Any Appellate

Court Would Have Reached A Different Outcome Than

The Court Below

Petitioners contend that the decision below conflicts

with the decisions of other appellate courts. 23-947 Pet.

14-21; 23-952 Pet. 9-16, 23-29. But none of those other

decisions involved state-law claims like the ones here—

claims alleging the violation of a duty not to deceive, rather than a duty not to pollute. Petitioners therefore

have not established that any appellate court would have

reached a different outcome in the particular circumstances of this case. And because the Hawaii Supreme

Court is the only appellate court that has addressed the

viability of claims like the ones here, this Court would

benefit from further percolation in the lower courts.

See 23-947 Pet. 31 (citing other cases in which similar

issues could arise).

1. The Second Circuit’s decision in City of New York

v. Chevron Corp., 993 F.3d 81 (2021), involved claims alleging that private energy companies violated various

state-law duties by producing, promoting, and selling

fossil-fuel products that the companies knew were the

source of greenhouse-gas emissions that posed a risk to

the planet’s climate. 993 F.3d at 86-87. Because the

to Dismiss at 2, Mayor & City Council of Baltimore v. B.P. p.l.c.,

No. 24-C-18-004219 (Md. Cir. Ct. Mar. 20, 2020); U.S. Amicus Mem.

of Law in Support of Mot. to Dismiss at 2, Rhode Island v. Chevron

Corp., No. PC-2018-4716 (R.I. Super. Ct. May 5, 2020); see U.S.

Amicus Br. at 7-13, City of New York v. Chevron Corp., 993 F.3d 81

(2d Cir. 2021) (No. 18-2188). The Baltimore and Rhode Island cases

included claims of deception, but the United States did not separately address that aspect of the claims. Having considered that

issue directly in this case, the United States is of the view that the

Act does not categorically preempt deceptive-marketing claims

like the ones here.

20

companies could have “avoid[ed] all liability” only by

“ceas[ing] global production [of fossil-fuel products] altogether,” the Second Circuit viewed the claims as a

“regulat[ion]” of “cross-border emissions.” Id. at 93.

The Second Circuit then held that the claims had to “be

brought under federal common law,” id. at 95, but that

any federal common-law claim would fail because “the

Clean Air Act displaces federal common law claims concerned with domestic greenhouse gas emissions,” ibid.,

and because federal common law would not extend extraterritorially to reach foreign emissions, id. at 101.

Contrary to petitioners’ contention (23-947 Cert. Reply Br. 1), the claims in this case differ from those addressed in City of New York. The claims in City of New

York targeted fossil-fuel products themselves, seeking

to hold the companies responsible for the products’ production, promotion, and sale, even in the absence of any

deception; the claims in this case, in contrast, target only

the products’ deceptive marketing. Compare Appellant

Br. at 9, City of New York, supra (No. 18-2188) (“The

complaint focuses exclusively on [the companies’] production, promotion, and sale of fossil fuels while knowing the harms they would cause.”), with Resp. Opp. to

Mot. to Dismiss for Failure to State a Claim, Cir. Ct. Doc.

375, at 8 (July 19, 2021) (“[Respondents’] claims focus

entirely on [petitioners’] failures to warn and campaigns

of deception.”). Thus, whereas the companies in City of

New York could have avoided further liability only by

“ceas[ing] global production [of fossil-fuel products] altogether,” 993 F.3d at 93, the Hawaii Supreme Court

concluded that petitioners in this case could avoid further liability simply by “issuing warnings and refraining

from deceptive conduct,” 23-952 Pet. App. 69a. Indeed,

respondents themselves acknowledge that, “so long as

21

[petitioners] start warning of their products’ climate

impacts and stop spreading climate disinformation,

they can sell as much fossil fuel as they wish without

fear of incurring further liability.” Id. at 15a.

Given the nature of respondents’ claims, petitioners

err in asserting that the outcome of this case necessarily

would have been different if it had arisen in the Second

Circuit. In City of New York, the Second Circuit concluded that the plaintiff ’s claims “must be brought under federal common law.” 993 F.3d at 95. But the court

reached that conclusion only because it understood those

claims to “regulate cross-border emissions.” Id. at 93.

The court did not consider whether “federal common

law govern[s] tortious marketing suits” like respondents’. 23-952 Pet. App. 55a; cf. Connecticut v. Exxon

Mobil Corp., 83 F.4th 122, 142 (2d Cir. 2023) (holding

that a tortious marketing suit, brought by a State against

private energy companies, could be resolved “ ‘without

reaching’ the federal common law of transboundary pollution”) (emphasis added; citation omitted). The Second

Circuit also concluded that “the Clean Air Act’s displacement of federal common law d[id] not resuscitate

the [plaintiff ’s] state-law claims.” City of New York, 993

F.3d at 98 (capitalization altered). But again, the court

reached that conclusion only because it understood those

claims to regulate “emissions,” id. at 100—not deceptive marketing.

2. Petitioners likewise err in asserting that the decision below conflicts with North Carolina ex rel. Cooper

v. TVA, 615 F.3d 291 (4th Cir. 2010), cert. denied, 564

U.S. 1054 (2011), and Illinois v. Milwaukee, 731 F.2d

403 (7th Cir. 1984), cert. denied, 469 U.S. 1196 (1985).

Those cases involved suits brought against out-of-state

polluters seeking to enforce certain state-law duties not

22

to pollute. See Cooper, 615 F.3d at 296; Milwaukee, 731

F.2d at 404-406. In Cooper, the Fourth Circuit held that

the suit was preempted by the Clean Air Act. 615 F.3d

at 301-306. In Milwaukee, the Seventh Circuit held that

the suit was preempted by the Clean Water Act. 731

F.2d at 414. But neither case involved state-law claims

like the ones here, alleging the violation of a duty not to

deceive.

3. The remaining decisions that petitioners cite are

also inapposite. Each involved state-law claims brought

against in-state polluters alleging the violation of duties

not to pollute, rather than duties not to deceive. See

Merrick v. Diageo Americas Supply, Inc., 805 F.3d 685,

686, 689, 695 (6th Cir. 2015); Bell v. Cheswick Generating Station, 734 F.3d 188, 189-190, 192-193, 197 (3d Cir.

2013), cert. denied, 572 U.S. 1149 (2014); Freeman v.

Grain Processing Corp., 848 N.W.2d 58, 63-64, 82-85

(Iowa 2014), cert. denied, 574 U.S. 1026 (2014); BrownForman Corp. v. Miller, 528 S.W.3d 886, 888-889, 893

(Ky. 2017). And each decision allowed the state-law

claims to go forward, finding no preemption under the

Clean Air Act. See ibid. None of those decisions conflicts with the Hawaii Supreme Court’s finding of no

preemption here.

23

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

TODD KIM

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

FREDERICK LIU

Assistant to the Solicitor

General

CHRISTINE W. ENNIS

ROBERT P. STOCKMAN

Attorneys

DECEMBER 2024