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

No. 23-952

IN THE

Supreme Court of the United States

__________

SHELL PLC (F/K/A ROYAL DUTCH SHELL PLC),

SHELL USA, INC. (F/K/A SHELL OIL COMPANY),

AND SHELL OIL PRODUCTS COMPANY LLC,

Petitioners,

v.

CITY AND COUNTY OF HONOLULU, ET AL.,

Respondents.

__________

On Petition for a Writ of Certiorari

to the Supreme Court of Hawai‘i

__________

SUPPLEMENTAL BRIEF FOR PETITIONERS

__________

JOACHIM P. COX

RANDALL C. WHATTOFF

COX FRICKE LLP

800 Bethel Street

Suite 600

Honolulu, Hawai‘i 96813

(808) 585-9440

DAVID C. FREDERICK

Counsel of Record

DANIEL S. SEVERSON

DENNIS D. HOWE

D. CHANSLOR GALLENSTEIN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

Counsel for Petitioners

December 23, 2024

RULE 29.6 STATEMENT

Petitioners’ Statement pursuant to Rule 29.6 was set

forth at page iii of the petition for a writ of certiorari,

and there are no amendments to that Statement.

ii

TABLE OF CONTENTS

Page

RULE 29.6 STATEMENT ........................................... i

TABLE OF AUTHORITIES ...................................... iii

GLOSSARY ............................................................... vii

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

I. THE UNITED STATES FAILS TO

JUSTIFY REVERSING ITS POSITION

FROM CITY OF NEW YORK AND

OTHER CLIMATE CASES.............................. 3

A. The Government Argued The Clean

Air Act Preempted New York’s Identical Claims ................................................. 3

B. The Government Previously Recognized Artful Pleading Cannot Elude

Preemption Of Transboundary Emissions Claims ................................................ 4

C. The Government Relies On An

Untenable Distinction Between A

“Duty Not To Pollute” And A Duty

Not To Cause Pollution By “Deceptive

Marketing” .................................................. 6

D. The Government Erroneously Suggests Honolulu Could Avoid Preemption By Proceeding On An In-StateEmissions Case It Never Pleaded .............. 8

E. The Government Mischaracterizes The

Federal Common-Law Arguments ............. 9

II. THE UNITED STATES’ SHIFTING

POSITIONS CONFIRM IMMEDIATE

REVIEW IS NEEDED ................................... 11

CONCLUSION.......................................................... 12

iii

TABLE OF AUTHORITIES

Page

CASES

Aloha Petroleum, Ltd. v. National Union Fire

Ins. Co. of Pittsburgh, 557 P.3d 837 (Haw.

2024)....................................................................... 7

American Elec. Power Co. v. Connecticut, 564 U.S.

410 (2011) ...................................................6, 10, 11

City of New York v. BP P.L.C., 325 F. Supp. 3d

466 (S.D.N.Y. 2018), aff ’d sub nom. City of

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

Cir. 2021) ........................................................... 3, 4

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

(2d Cir. 2021) .................................................1, 2, 3,

4, 7, 9, 11

Delaware ex rel. Jennings v. BP Am. Inc., 2024

WL 98888 (Del. Super. Ct. Jan. 9, 2024).................. 9

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

481 (1987) .............................................................. 5

Kurns v. Railroad Friction Prods. Corp., 565 U.S.

625 (2012) .............................................................. 7

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

2024 WL 3678699 (Md. Cir. Ct. July 10,

2024)................................................................... 5, 6

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

291 (4th Cir. 2010) ................................................. 5

STATUTES

Clean Air Act, 42 U.S.C. § 7401 et seq. ....1, 2, 3, 4, 11

28 U.S.C. § 1257 .......................................................... 8

iv

OTHER MATERIALS

Am. Compl., City of New York v. BP P.L.C.,

et al., No. 18-CV-00182, Dkt. 80, 2018 WL

8064051 (S.D.N.Y. Mar. 16, 2018) ........................ 3

Amicus Curiae Br. of United States of America

in Support of Dismissal, City of Oakland,

et al. v. BP P.L.C., et al., Nos. 3:17-cv-06011WHA & 3:17-cv-06012-WHA, Dkt. 245, 2018

WL 2192113 (N.D. Cal. May 10, 2018) ................. 4

Audio of Oral Arg., City & Cnty. of Honolulu,

et al. v. Sunoco LP, et al., No. SCAP-220000429 (Haw. Aug. 17, 2023), https://

shorturl.at/ILMmI ................................................. 8

Biden for President Campaign, The Biden

Plan To Secure Environmental Justice and

Equitable Economic Opportunity (Aug. 6,

2020), https://shorturl.at/SYcHJ ........................... 2

Br. for Appellant, City of New York v. Chevron

Corp., et al., No. 18-2188, Dkt. 89, 2018 WL

5905772 (2d Cir. Nov. 8, 2018) .............................. 4

Br. for the Tennessee Valley Auth. as Resp.

Supp. Pet’rs, American Elec. Power Co.,

et al. v. Connecticut, et al., No. 10-174, 2011

WL 317143 (U.S. Jan. 31, 2011) ........................... 11

Br. for the United States and the Federal

Energy Regulatory Comm’n as Amici Curiae,

Mississippi Power & Light Co. v. Mississippi

ex rel. Pittman, et al., No. 86-1970, 1987 WL

880466 (U.S. Dec. 3, 1987) .................................... 8

Br. for the United States as Amicus Curiae

Supporting Appellant, Goodyear Atomic

Corp. v. Miller, No. 86-1172, 1987 WL 881253

(U.S. Sept. 3, 1987) ................................................ 8

v

Br. for the United States as Amicus Curiae

Supporting Resp., Dan’s City Used Cars,

Inc. v. Pelkey, No. 12-52, 2013 WL 769197

(U.S. Feb. 28, 2013) ............................................... 8

Br. of the United States as Amicus Curiae in

Support of Appellees, City of New York v. BP

P.L.C., et al., No. 18-2188, Dkt. 210, 2019

WL 1112108 (2d Cir. Mar. 7, 2019) ......1, 3, 4, 5, 6,

7, 8, 9, 10, 11

Br. of the United States as Amicus Curiae in

Support of Defs.’ Mot. To Dismiss, Mayor

& City Council of Baltimore v. B.P. p.l.c.,

et al., No. 24-C-18-004219 (Md. Cir. Ct. Mar.

20, 2020) ................................................2, 5, 6, 7, 10

City of Oakland, et al. v. BP p.l.c., et al.,

No. 18-16663 (9th Cir.):

Br. of the United States as Amicus Curiae

in Support of Appellees and Affirmance,

Dkt. 97, 2019 WL 2250196 (May 17, 2019) ........ 10

Br. of the United States as Amicus Curiae in

Support of Pet. for Reh’g, Dkt. 198 (Aug. 3,

2020)..............................................................8, 9, 10

Defs.-Appellants’ Jt. Opening Br., City & Cnty.

of Honolulu, et al. v. Sunoco LP, et al.,

No. CAAP-22-0000429 (Haw. Ct. App. Nov.

9, 2022) ................................................................. 10

Jt. Reply Mem. in Support of Defs.’ Mot. To

Dismiss for Failure To State a Claim, City

& Cnty. of Honolulu, et al. v. Sunoco LP,

et al., No. 1CCV-20-0000380 (JPC), 2021 WL

12299820 (Haw. Cir. Ct. Aug. 18, 2021) ............. 10

vi

Mem. of Law by Amicus Curiae the United

States in Support of Defs.’ Mot. To Dismiss,

Rhode Island v. Chevron Corp., et al., No.

PC-2018-4716 (R.I. Super. Ct. May 5, 2020) .... 2, 6

Oral Arg. Tr.:

American Elec. Power Co., et al. v. Connecticut,

et al., No. 10-174, 2011 WL 1480855 (U.S. Apr.

19, 2011) ........................................................................ 2

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

Baltimore, No. 19-1189, 2021 WL 197342

(U.S. Jan. 19, 2021) ............................................. 11

Pl.’s Mot. for Entry of Partial Judgment

Pursuant to Rule 54(b), Delaware ex rel.

Jennings v. BP Am. Inc., et al., No. N20C09-097 EMD CCLD (Del. Super. Ct. Oct. 21,

2024)............................................................................... 9

vii

GLOSSARY

AEP

American Elec. Power Co. v.

Connecticut, 564 U.S. 410 (2011)

AEP Tr.

Oral Arg. Tr., American Elec.

Power Co., et al. v. Connecticut,

et al., No. 10-174, 2011 WL

1480855 (U.S. Apr. 19, 2011)

App.

Appendix to Petition for a Writ

of Certiorari, Shell plc, et al. v.

City & Cnty. of Honolulu, et al.,

No. 23-952 (U.S. Feb. 28, 2024)

Baltimore Tr.

Oral Arg. Tr., BP P.L.C., et al.

v. Mayor & City Council of

Baltimore, No. 19-1189, 2021

WL 197342 (U.S. Jan. 19, 2021)

Biden Plan

Biden for President Campaign,

The Biden Plan To Secure

Environmental Justice and

Equitable Economic Opportunity

(Aug. 6, 2020), https://shorturl.

at/SYcHJ

Delaware Rule 54(b)

Mot.

Pl.’s Mot. for Entry of Partial

Judgment Pursuant to Rule

54(b), Delaware ex rel. Jennings

v. BP Am. Inc., et al., No. N20C09-097 EMD CCLD (Del. Super.

Ct. Oct. 21, 2024)

GHG

Greenhouse Gas

Honolulu Appellants’ Defs.-Appellants’ Jt. Opening

Br.

Br., City & Cnty. of Honolulu,

et al. v. Sunoco LP, et al.,

No. CAAP-22-0000429 (Haw. Ct.

App. Nov. 9, 2022)

viii

Honolulu MTD Reply Jt. Reply Mem. in Support of

Defs.’ Mot. To Dismiss for

Failure To State a Claim, City

& Cnty. of Honolulu, et al.

v. Sunoco LP, et al., No. 1CCV20-0000380 (JPC), 2021 WL

12299820 (Haw. Cir. Ct. Aug.

18, 2021)

Honolulu Tr.

Audio of Oral Arg., City & Cnty.

of Honolulu, et al. v. Sunoco

LP, et al., No. SCAP-22-0000429

(Haw. Aug. 17, 2023), https://

shorturl.at/ILMmI

New York Am. Compl. Am. Compl., City of New York

v. BP P.L.C., et al., No. 18-CV00182, Dkt. 80, 2018 WL 8064051

(S.D.N.Y. Mar. 16, 2018)

New York Appellant’s Br. for Appellant, City of New

Br.

York v. Chevron Corp., et al.,

No. 18-2188, Dkt. 89, 2018 WL

5905772 (2d Cir. Nov. 8, 2018)

Pet.

Pet. for a Writ of Certiorari,

Shell plc, et al. v. City & Cnty.

of Honolulu, et al., No. 23-952

(U.S. Feb. 28, 2024)

Reply

Reply Brief for Pet’rs, Shell

plc, et al. v. City & Cnty. of

Honolulu, et al., No. 23-952

(U.S. May 21, 2024)

TVA AEP Br.

Br. for the Tennessee Valley

Auth. as Resp. Supporting

Pet’rs, American Elec. Power

Co., et al. v. Connecticut, et al.,

No. 10-174, 2011 WL 317143

(U.S. Jan. 31, 2011)

ix

U.S. Baltimore Br.

Br. of the United States as

Amicus Curiae in Support of

Defs.’ Mot. To Dismiss, Mayor

& City Council of Baltimore v.

B.P. p.l.c., et al., No. 24-C-18004219 (Md. Cir. Ct. Mar. 20,

2020)

U.S. Br.

Br. for the United States as

Amicus Curiae, Sunoco LP, et

al. v. City & Cnty. of Honolulu,

et al., Nos. 23-947 & 23-952

(U.S. Dec. 10, 2024)

U.S. Dan’s City Br.

Br. for the United States

as Amicus Curiae Supporting

Resp., Dan’s City Used Cars,

Inc. v. Pelkey, No. 12-52, 2013

WL 769197 (U.S. Feb. 28, 2013)

U.S. Goodyear

Atomic Br.

Br. for the United States as

Amicus Curiae Supporting

Appellant, Goodyear Atomic

Corp. v. Miller, No. 86-1172,

1987 WL 881253 (U.S. Sept. 3,

1987)

U.S. Mississippi

Power Br.

Br. for the United States and

the Federal Energy Regulatory

Comm’n as Amici Curiae,

Mississippi Power & Light Co.

v. Mississippi ex rel. Pittman,

et al., No. 86-1970, 1987 WL

880466 (U.S. Dec. 3, 1987)

x

U.S. New York Br.

Br. of the United States as

Amicus Curiae in Support of

Appellees, City of New York v.

BP P.L.C., et al., No. 18-2188,

Dkt. 210, 2019 WL 1112108

(2d Cir. Mar. 7, 2019)

U.S. Oakland Br.

(N.D. Cal.)

Amicus Curiae Br. of United

States of America in Support

of Dismissal, City of Oakland,

et al. v. BP P.L.C., et al., Nos.

3:17-cv-06011-WHA & 3:17-cv06012-WHA, Dkt. 245, 2018 WL

2192113 (N.D. Cal. May 10,

2018)

U.S. Oakland Br.

(9th Cir.)

Br. of the United States as

Amicus Curiae in Support of

Appellees and Affirmance, City

of Oakland, et al. v. BP p.l.c.,

et al., No. 18-16663, Dkt. 97,

2019 WL 2250196 (9th Cir.

May 17, 2019)

U.S. Oakland Br.

(Reh’g)

Br. of the United States as

Amicus Curiae in Support of

Pet. for Reh’g, City of Oakland,

et al. v. BP p.l.c., et al., No. 1816663, Dkt. 198 (9th Cir. Aug.

3, 2020)

U.S. Rhode Island Br. Mem. of Law by Amicus Curiae

the United States in Support of

Defs.’ Mot. To Dismiss, Rhode

Island v. Chevron Corp., et al.,

No. PC-2018-4716 (R.I. Super.

Ct. May 5, 2020)

The Government reverses its position that the Clean

Air Act preempts claims in these climate cases seeking

damages for the alleged effects of transboundary emissions from artfully pleaded causes. That reversal

deepens an acknowledged conflict only this Court can

resolve. The escalating spate of state-court lawsuits

seeking damages for global emissions from an industry vital to the Nation requires urgent review.

The Hawai‘i Supreme Court green-lit claims seeking

damages for “effects of climate change” allegedly

caused by “the promotion and sale of fossil-fuel[s].”

App.39a-40a. The Second Circuit did the opposite: it

rejected identical claims seeking damages for “effects

of global warming” allegedly caused by the “promotion[ ] and sale of fossil fuels.” City of New York v.

Chevron Corp., 993 F.3d 81, 86, 88 (2d Cir. 2021). In

both cases, plaintiffs admitted global greenhouse gas

emissions are “a link in the causal chain.” Id. at 91;

App.67a. The Second Circuit recognized “such emissions as the singular source of the [alleged] harm,”

despite the City’s “artful pleading,” 993 F.3d at 91, 97,

while the Hawai‘i Supreme Court concluded those

emissions “only serve to tell a broader story,” App.40a.

The Government contended New York could not

“disavow[ ] an intent to regulate emissions” because

its “allegations of injury from the effects of climate

change all turn[ed] on greenhouse-gas emissions from

burning fossil fuels”; focusing on earlier moments in

the causal chain was “immaterial to the Court’s analysis.” U.S. New York Br. 11, 26. The Second Circuit

adopted that view: the City could not “disavow[ ] any

intent to address emissions [while] identifying such

emissions as the singular source of the City’s harm.”

993 F.3d at 91. Indeed, the Government acknowledges (at 18-19 n.3) its consistent view has been that

2

the Clean Air Act preempts identical cases alleging

“deception” leading to transboundary emissions. See

U.S. Baltimore Br. 15 (plaintiff cannot “paper over the

chain of causation”); U.S. Rhode Island Br. 12 (“This

is mere smoke and mirrors.”).

The Government offers no explanation for abruptly

changing position in a case presenting the same

claims and allegations in the same posture. The brief

says (at 19 n.3) “the United States did not separately

address that [deception] aspect of the claims.” But

deceptive marketing was central in City of New York.

The Government argued that focusing on the promotion of fossil fuels was “immaterial”: federal law

preempts claims for damages allegedly caused by

transboundary emissions. The Government’s flip-flop,

however, is consistent with the Biden Plan’s policy

pledge to “strategically support ongoing plaintiffdriven climate litigation against polluters.” It’s not

based on law.

The Government agrees it previously argued the

Clean Air Act preempts all state efforts to regulate

out-of-state emissions and that the court passed on

that question below. The Government presents no

serious challenge to the cert-worthiness of QP2. And

on QP1, the Government has explained “that the same

arguments that prohibit . . . recognizing a Federal

common law cause of action” for claims premised on

global greenhouse gas emissions “very well may be

preemption questions as well that could be addressed

down the road with respect to State common law

actions.” AEP Tr. 28:11-16. Given the Government’s

shifting positions and the ballooning roster of climate

cases, this Court should address those questions now.

3

ARGUMENT

I. THE UNITED STATES FAILS TO JUSTIFY

REVERSING ITS POSITION FROM CITY OF

NEW YORK AND OTHER CLIMATE CASES

A. The Government Argued The Clean Air Act

Preempted New York’s Identical Claims

The Second Circuit held New York’s claims “are

clearly barred by the Clean Air Act.” 993 F.3d at 96.

The Hawai‘i Supreme Court concluded the Second Circuit’s reasoning was “flawed” and held the Clean Air

Act “does not preempt [Honolulu’s] claims.” App.5a,

42a. The Government argued “[t]he Clean Air Act

preempts the City’s state-law claims.” U.S. New York

Br. 7. But it now contends (at 17) the Hawai‘i court

was “correct.”

The New York and Honolulu complaints are

substantively identical. The Government asserts (at

20) the claims “differ” but cites allegations showing

they’re the same: the “promotion[ ] and sale of fossil

fuels [despite] knowing the harms they would cause”

in City of New York is equivalent to “failures to warn”

here, and New York’s complaint alleged “campaigns of

deception” like Honolulu. See New York Am. Compl.

¶¶ 6-7 (“The purpose of this campaign of deception

and denial was to increase sales”). New York alleged

“Defendants have known for decades that their fossil

fuel products pose risks of severe impacts on the global

climate through the warnings of their own scientists,”

yet still “extensively promoted fossil fuels for pervasive use, while denying or downplaying these threats.”

City of New York v. BP P.L.C., 325 F. Supp. 3d 466,

468-69 (S.D.N.Y. 2018). Honolulu’s complaint is

the mirror image: “Defendants . . . have known for

decades” “that unrestricted promotion and use of

their fossil fuel products create greenhouse gas

4

pollution that warms the planet,” but “nevertheless”

“promoted . . . a massive increase in” fossil-fuel use,

while “conceal[ing] and deny[ing] their own knowledge of those threats.” App.100a-101a (¶¶ 1-2).

The Government’s assertion (at 19 n.3) it previously

did not “directly” consider “deceptive-marketing claims”

cannot be squared with its amicus brief defending

the district court’s ruling that New York’s “complaint

contains extensive allegations regarding Defendants’

past attempts to deny or downplay the effects of fossil

fuel use on climate change.” 325 F. Supp. 3d at 469;

see U.S. Oakland Br. (N.D. Cal.) 2, 4 (noting plaintiffs’

“claims . . . assertedly challenged Defendants’ deception” and describing City of New York as “similar”).

New York maintained the “primary fault” it alleged

was “marketing activities” that “downplayed the risks

of climate change,” New York Appellant’s Br. 5, 16;

and the Second Circuit rejected New York’s “artful

pleading,” 993 F.3d at 97.

The Government argued “the complaint on its face”

“alleged harms from out-of-state greenhouse gas

emissions” and therefore urged the Second Circuit

to “conclude that those claims are preempted by the

Clean Air Act.” U.S. New York Br. 5. Now, in conclusory fashion, the Government asserts (at 17) the Clean

Air Act “does not categorically preempt” Honolulu’s

claims, but fails to justify its about-face.

B. The Government Previously Recognized

Artful Pleading Cannot Elude Preemption

Of Transboundary Emissions Claims

Focusing on the promotion or marketing of fossilfuel products, an earlier step in the causal chain leading to emissions, is artful pleading that cannot avoid

preemption. The Government explained New York

could not “disavow[ ] an intent to regulate emissions”

5

because its “allegations of injury from the effects of

climate change all turn on greenhouse-gas emissions

from burning fossil fuels, not on their production

and sale.” U.S. New York Br. 11. “[T]hat the City’s

claims target production and sale of fossil fuels, rather

than directly targeting the resulting emissions, is

immaterial to the Court’s analysis.” Id. at 26. Thus,

New York could not “distinguish [International Paper

Co. v. Ouellette, 479 U.S. 481 (1987),] by framing its

claims as production and sale rather than emissions.”

Id. at 13.

The Government likewise argued Baltimore’s claims

would “ ‘overturn the judgment of Congress’ ” in “the

Clean Air Act” and “violate” “ ‘preemption principles.’ ”

U.S. Baltimore Br. 1 (quoting North Carolina ex rel.

Cooper v. TVA, 615 F.3d 291, 303, 306 (4th Cir. 2010)).

“[Baltimore’s] Complaint does not limit liability to

emissions sourced from or acts within the State of

Maryland” but depends on conduct “across the entire

world.” Id. “Baltimore strives to paper over the chain

of causation,” but its “allegations of injury from

Defendants’ conduct come from the effects of climate

change,” which “traces through the emission of greenhouse gases.” Id. at 15.

The Baltimore court followed the Government’s

recommendation and dismissed the case, noting a

common defect across cases: “Again, the bottom line

is that Baltimore, like NYC (and if truth be told

Honolulu), intends to hold the Defendants liable

under Maryland law, for the effects of emissions made

around the globe over the past several hundred

years.” Mayor & City Council of Baltimore v. BP

P.L.C., 2024 WL 3678699, at *7 (Md. Cir. Ct. July 10,

2024) (cleaned up). “The explanation by Baltimore

that it only seeks to address and hold Defendants

accountable for a deceptive misinformation campaign

6

is simply a way to get in the back door what they

cannot get in the front door.” Id. at *5.

C. The Government Relies On An Untenable

Distinction Between A “Duty Not To

Pollute” And A Duty Not To Cause Pollution

By “Deceptive Marketing”

The Government presents (at 18) a false dichotomy:

Honolulu’s “state-law claims seek to enforce a duty not

to deceive . . . rather than a duty not to pollute.” In

reality, New York, Honolulu, and others advancing

these cases all seek to enforce the same duty: a duty

not to cause pollution by means of deception. In other

words, the “duty not to deceive” is necessarily a duty

to warn consumers not to use products that increase

emissions.

The Government previously argued that “[t]o grant

relief on these claims would intrude impermissibly on

the role of the representative branches to determine

what level of greenhouse gas regulation is reasonable.” U.S. New York Br. 29; see U.S. Baltimore Br. 17;

U.S. Rhode Island Br. 7. That remains true regardless of how plaintiffs articulate the duty in question.

The federal government makes determinations about

the “appropriate amount” of emissions, and that “complex balancing” is disrupted when non-source States

impose liability for those same emissions. American

Elec. Power Co. v. Connecticut, 564 U.S. 410, 427

(2011). The Government cannot dispute that imposing liability for allegedly excessive emissions, whether

for violating a duty to warn or a public nuisance,

second-guesses policymaking by the elected branches.

The Government also ignores the causation and

harm elements of Honolulu’s claims, which indisputably hinge on increased emissions. Pet. 21-23. The

Government has recognized preemption from those

7

elements independent of the applicable duty. See

U.S. New York Br. 11 (New York’s “allegations of

injury from the effects of climate change all turn on

greenhouse-gas emissions from burning fossil fuels,

not on their production and sale”); U.S. Baltimore Br.

15-17 (same). Because “regulation can be effectively

exerted through an award of damages,” Kurns v. Railroad Friction Prods. Corp., 565 U.S. 625, 637 (2012)

(cleaned up), a state-law claim attacking transboundary emissions through the causation or harm element

is no less regulatory than a claim imposing a direct

“duty to reduce emissions.”

Moreover, since petitioners sought certiorari, the

Hawai‘i Supreme Court has acknowledged in adjudicating insurance for this very lawsuit that Honolulu’s

claims concern “reducing GHG emissions”: the court

explained Honolulu sued petitioners because their

“actions, the complaint alleged, increased carbon emissions, which have caused and will cause significant”

“climate change-related harms.” Aloha Petroleum,

Ltd. v. National Union Fire Ins. Co. of Pittsburgh,

557 P.3d 837, 840-41, 856 (Haw. 2024). That frank

assessment exposes the state court’s inconsistent conclusion here that “[t]his suit does not seek to regulate

emissions and does not seek damages for interstate

emissions.” App.3a.

“Stripped to its essence,” Honolulu’s complaint, like

New York’s, “seek[s] to recover damages for the harms

caused by global greenhouse gas emissions.” 993 F.3d

at 91. Thus, regardless of whether the Government

correctly characterized the relevant “duty,” Honolulu’s

“claims, if successful, would operate as a de facto

regulation on greenhouse gas emissions.” Id. at 96.

8

D. The Government Erroneously Suggests

Honolulu Could Avoid Preemption By

Proceeding On An In-State-Emissions Case

It Never Pleaded

As the Government previously recognized in a

similar context, the preemption ruling below is final

under 28 U.S.C. § 1257 because “the federal issue has

been finally decided by the [state court], . . . reversal

by this Court would preclude further proceedings,

and a serious erosion of federal policies is alleged.”

U.S. Goodyear Br. 11 n.9. Indeed, the Government

repeatedly has argued the Court has jurisdiction over

interlocutory appeals from state-court preemption

decisions. See also U.S. Dan’s City Br. 9 n.2; U.S.

Mississippi Power Br. 17-18. And it recognized

“[a]pplication of state nuisance law” in these cases

“would substantially interfere with the ongoing foreign

policy of the United States.” U.S. New York Br. 15-16;

see U.S. Oakland Br. (Reh’g) 10 (“[T]he federal interests in the subject matter are acute.”).

The Government imagines (at 9) Honolulu could

proceed on remand with an alternative in-stateemissions-only claim it never pleaded. But because

Honolulu pleaded a case that necessarily depends

on global emissions, reversal would end the case. See

Reply 10. Honolulu acknowledged before the Hawai‘i

Supreme Court that “the Complaint’s theory . . . envision[s] that there would be liability for representations made . . . around the world,” not “just . . . here

in Hawaii.” Honolulu Tr. 31:33-58. Common sense

dictates that no case pleading harms from global

climate change can proceed solely from one State’s

in-state emissions.

The Government itself recognized in another identical case that “[t]he harm alleged is the attenuated

9

result of emissions occurring and accumulating worldwide. . . . There is no way to apply Ouellette’s ‘source

state’ concept to this house of cards.” U.S. Oakland

Br. (Reh’g) 9-10. And the Government argued New

York’s “complaint on its face” “challenge[s] conduct . . .

almost entirely outside the State of New York,” “so the

City’s claims must likewise be dismissed.” U.S. New

York Br. 5; see id. at 23 (“The City’s claim for damages

depends on . . . emissions . . . worldwide.”).

Finally, Honolulu’s counsel concluded in an identical case that an order holding “that the Clean Air Act

. . . preempts [Delaware]’s claims ‘for injuries resulting from out-of-state or global greenhouse gas emissions’ ” “eliminates” the claims; “it is clear from

the face [of ] the Complaint that [plaintiff ] did not

plead claims for harms caused exclusively by in-state

emissions.” Delaware Rule 54(b) Mot. 2, 11 (quoting

Delaware ex rel. Jennings v. BP Am. Inc., 2024 WL

98888, at *9 (Del. Super. Ct. Jan. 9, 2024)).

E. The Government Mischaracterizes The

Federal Common-Law Arguments

Regarding foreign emissions, the Hawai‘i Supreme

Court held “this lawsuit can proceed” under state law

on the theory that petitioners “inflated global consumption of fossil fuels, which increased greenhouse

gas emissions.” App.2a, 15a. The Second Circuit held

federal law “preempts state law” as to those foreign

emissions. 993 F.3d at 95 & n.7.

The Second Circuit’s resolution of this issue followed

the Government’s unequivocal argument that New

York’s claims were “also preempted by the Foreign

Commerce Clause and by the foreign affairs power of

the Executive Branch because they have more than an

incidental or indirect effect on the actions of foreign

nations and impermissibly intrude into the field of

10

foreign affairs.” U.S. New York Br. 13. The Government noted there and in identical cases that “[e]fforts

to address climate change, including in a variety of

multilateral fora, have for decades been an important

element of U.S. foreign policy and diplomacy.” Id. at

15; see U.S. Baltimore Br. 17-18; U.S. Oakland Br.

(9th Cir.) 15-19.

The Government does not disavow that position

here. Indeed, it suggests quiet agreement that claims

arising from transboundary emissions are preempted.

See U.S. Br. 12 (“petitioners may ultimately prevail”

on their constitutional structure preemption arguments).

The Government instead unpersuasively suggests

(at 13, and for the first time by anyone) that petitioners did not “properly” present this argument below by

referencing federal common law. But the Government

previously maintained “[plaintiffs’] claims are irreconcilable with . . . the structure of the Constitution (as

the Supreme Court recognized by holding that interstate pollution claims are governed by federal common

law).” U.S. Oakland Br. (Reh’g) 12. Briefing before

the Hawai‘i Supreme Court argued “our federal

constitutional structure does not allow varying state

laws” to claim damages for transboundary emissions.

Honolulu Appellants’ Br. 26. Defendants similarly

argued the trial court should follow the Second Circuit’s “simple and straightforward approach,” including that “federal law necessarily governs interstate or

international pollution claims to the exclusion of state

law, because ‘the basic scheme of the Constitution so

demands.’ ” Honolulu MTD Reply 8, 12 (quoting AEP,

564 U.S. at 421). In any event, the federal common

law of transboundary emissions – and its preemptive

effect – is rooted in the Constitution. See Reply 7-8.

11

Notably, Honolulu does not argue petitioners did

not present this issue. And the Government concedes

the Clean Air Act preemption argument is “properly

before this Court.” U.S. Br. 13.

Accordingly, granting and reversing on either

question presented would terminate the litigation.

Reversing on QP1 would preempt Honolulu’s existing

case. Reversing on QP2 would satisfy constitutional

avoidance by preempting Honolulu’s existing case

and limiting any future case to allegations asserting

an in-state-emissions-only claim consistent with the

Clean Air Act. See AEP, 564 U.S. at 429.

II. THE UNITED STATES’ SHIFTING POSITIONS CONFIRM IMMEDIATE REVIEW IS

NEEDED

In City of New York, the Government was “aware of

similar suits by thirteen other municipalities, one

State, and one fisheries association against fossil-fuel

producing companies.” U.S. New York Br. 4. Now

there are more than 30 suits under burgeoning state

laws and States beginning to enact retroactive liability for climate change. The Government previously

cautioned that allowing state-law claims seeking

climate-related damages would invite cases involving

“almost unimaginably broad categories of both potential plaintiffs and potential defendants.” TVA AEP Br.

15-16. And the Government recognized that, although

plaintiffs have “tried to plead around this Court’s

decision in AEP,” the theory of causation and damages

“still depends on alleged injuries . . . caused by emissions from all over the world.” Baltimore Tr. 31:4-12.

Yet these lawsuits are proliferating. On December 4,

2024, the Town of Carrboro, NC sued Duke Energy (an

alleged successor to a defendant in AEP ) using the

same playbook Honolulu’s counsel is using here.

12

The Government’s abrupt shift in position will

only sow further confusion in the lower courts and

encourage similar untenable litigation. The most

the Government’s December 2024 position offers is

delayed resolution of the critical federal preemption

issues. The Government never acknowledges the

costs from the unbounded discovery plaintiffs seek,

the proliferation of copycat lawsuits, and the threat of

even a single ruinous final judgment in these cases to

an industry vital to economic and national security.

With the Government’s inconsistencies, the need for

this Court’s review now is even clearer.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOACHIM P. COX

RANDALL C. WHATTOFF

COX FRICKE LLP

800 Bethel Street

Suite 600

Honolulu, Hawai‘i 96813

(808) 585-9440

DAVID C. FREDERICK

Counsel of Record

DANIEL S. SEVERSON

DENNIS D. HOWE

D. CHANSLOR GALLENSTEIN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

Counsel for Petitioners

December 23, 2024