Amicus Curiae Brief — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. County Commissioners of Boulder County, et al.

No. 25-170

In the Supreme Court of the United States

______________________

SUNCOR ENERGY (U.S.A.) INC., ET AL.,

v.

Petitioners,

COUNTY COMMISSIONERS OF BOULDER COUNTY, ET AL.,

Respondents.

_______________

On Petition for a Writ of Certiorari

to the Supreme Court of Colorado

__________

BRIEF OF AMICI CURIAE GENERAL

(RETIRED) RICHARD B. MYERS and

ADMIRAL (RETIRED) MICHAEL G.

MULLEN, IN SUPPORT OF PETITIONERS

_______________

Tristan L. Duncan (Counsel of Record)

William F. Northrip

SHOOK, HARDY & BACON L.L.P.

2555 Grand Blvd.

Kansas City, MO 64108

(816) 474-6550

tlduncan@shb.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND

SUMMARY OF THE ARGUMENT ................... 5

ARGUMENT .......................................................... 11

I. The Important National Security

Interests in the Crosshairs of These

Cases: An Historical Overview of the

Federal Government’s Role in the

Production and Sale of Oil and Gas............ 11

II. The Federal Government’s Efforts to

Ensure a Dependable, Abundant Supply

of Oil and Gas Remain Essential to Its

Conduct of Foreign Affairs and Military

Preparedness. .............................................. 18

III.Our Nation’s Vital Interests in Fuel

Security and Managing Climate Change

Cannot be Regulated by a Patchwork of

State-Court Actions. .................................... 20

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Elec. Power Co. v. Conn.,

564 U.S. 410 (2011)................................................ 7

American Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003).......................................... 9, 21

Banco National de Cuba v. Sabbatino,

376 U.S. 398 (1964).......................................... 9, 21

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

517 U.S. 559 (1996).............................................. 10

California ex rel. Brown v. Watt,

668 F.2d 1290 (D.C. Cir. 1981) ............................ 17

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ............. 3, 6, 8, 9, 21, 22

N. Car., ex rel. Cooper v. Tenn. Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ............................... 10

Exxon Mobil Corp. v. United States,

2020 WL 5573048

(S.D. Tex. Sept. 16, 2020) ................................ 6, 15

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987).............................................. 10

Kurns v. Railroad Friction Prods. Corp.,

565 U.S. 625 (2012).............................................. 10

iii

Shell Oil Co. v. United States,

751 F.3d 1282 (Fed. Cir. 2014) ............................ 14

Torres v. Texas Dep’t of Pub. Safety,

597 U.S. 580 (2022).............................................. 21

United States v. Standard Oil Co. of Cal.,

332 U.S. 301 (1947).............................................. 10

Statutes

43 U.S.C. § 1802 ........................................................ 17

Defense Production Act of 1950,

Pub. L. No. 81–774 .............................................. 15

Outer Continental Shelf Lands

Act of 1953, 43 U.S.C. § 1332(3) ........ 15, 16, 17, 18

Trans-Alaska Pipeline Authorization

Act of 1973, Pub. L. No. 93-153,

§ 202(a), 87 Stat. 576, 584 (1973),

Pub. L. No. 93-153 ............................................... 17

Other Authorities

Annual Message to the Congress on the

State of the Union, 1 Pub. Papers 59

(Jan. 23, 1974)...................................................... 16

Def. Logistics Agency Energy, Fiscal

Year 2019 Fact Book (2019),

https://www.dla.mil/Portals/104/Doc

uments/Energy/Publications/FactBoo

kFiscalYear2019_highres.pdf?ver=20

20-01-21-103755-473 ........................................... 19

iv

Department of Energy, “Energy for the

Warfighter: The Department of

Defense Operational Energy

Strategy,” June 14, 2011,

https://www.energy.gov/articles/ener

gy-war-fighter-department-defenseoperational-energy-strategy .................................. 4

Energy Security Forum, Washington,

D.C., 13 October 2010,

https://www.dvidshub.net/news/5804

0/mullen-military-has-strategicimperative-save-resources ..................................... 9

H.R. Rep. No. 94-1084 (1976) ................................... 18

H.R. Rep. No. 95-590 (1977) ..................................... 18

Hearings Before Committee on Naval

Affairs of the House of

Representatives on Estimates

Submitted by the Secretary of the

Navy, 64th Cong. 761 (1915) ............................... 12

Ian O. Lessor, Resources and Strategy:

Vital Materials in International

Conflict 1600 – The Present (1989)................ 12, 13

Jay Hakes, A Declaration of Energy

Independence (2008) ............................................ 15

John W. Frey & H. Chandler Ide,

A History of the Petroleum

Administration for War, 1941-1945 (1946) ......... 14

v

National Petroleum Council, A National

Oil Policy for the United States (1949).......... 13, 14

Nixon Message, N.Y. Times, Apr. 19, 1973 .............. 16

President Barack Obama, Remarks on

Energy at Andrews Air Force Base,

Maryland (Mar. 31, 2010).................................... 19

Press Secretary, White House Office of

Communications, Statement on

North Slope Oil Bill Signing

(Nov. 28, 1995), 1995 WL 699656 ....................... 18

Report of the Activities of the Joint

Committee on Defense Production, S. Rep.

No. 94-1, Pt. 1 (Jan. 17, 1975, 1st Sess.)............. 17

Special Message to the Congress on the

Energy Crisis, 1 Pub. Papers 29

(Jan. 23, 1974).......................................... 16, 17, 18

Statement By President George W. Bush

Upon Signing [H.R. 6111],

2 Pub. Papers 2217 (Dec. 20, 2006)..................... 19

Statement of Ralph K. Davies, Deputy

Petroleum Administrator of War,

Special Committee Investigating

Petroleum Resources, S. Res. 36

(Nov. 28, 1945) ..................................................... 13

Statement of Senator O’Mahoney,

Chairman, Special Committee

Investigating Petroleum Resources,

S. Res. 36 (Nov. 28, 1945) .................................... 15

vi

U.S. Climate Lawsuits Endanger Military

and U.S. National Security Interests

by Robert Harward, Vice Admiral,

U.S. Navy Retired, American Military

News (April 20, 2023) at

https://americanmilitarynews.com/202

3/04/u-s-climate-lawsuits-endangermilitary-and-u-s-national-securityinterests/ ........................................................ 19, 20

U.S. Energy Info. Admin., U.S. energy

facts explained (Apr. 27, 2020),

https://www.eia.gov/energyexplained/

us-energy-facts/imports-andexports.php........................................................... 19

U.S. Gov't Accountability Off.,

GAO/RCED-87-75FS, Naval

Petroleum Reserves: Oil Sales

Procedures and Prices at Elk Hills,

April Through December 1986 (1987)................. 12

Yergin, THE PRIZE: THE EPIC QUEST FOR

OIL, MONEY & POWER (1991) ............................... 13

1

INTEREST OF AMICI CURIAE 1

United States Air Force General (Retired) Richard

B. Myers was appointed Vice Chairman of the Joint

Chiefs of Staff by President William J. Clinton in 2000

and was appointed by President George W. Bush in

2001 to become the 15th Chairman of the Joint Chiefs

of Staff. In that capacity, he served as the principal

military advisor to the United States President,

Secretary of Defense, and the National Security

Council. He served in that role until 2005. General

Myers joined the Air Force in 1965 through the ROTC

program at Kansas State University. He served in the

Vietnam War and had over 600 combat flying hours in

Vietnam. He has held numerous commands and

served in significant staff positions in the Air Force.

General Myers has received numerous awards and

decorations for his service, including the Legion of

Merit, the French Legion of Honor, and the

Presidential Medal of Freedom. He received his

fourth-star in 1997 and retired from active duty in

2005, after more than forty years of active

service. General Myers began serving as the Interim

President of Kansas State University in late April

2016, and was announced as the permanent President

on November 15, 2016. General Myers served as the

14th President of Kansas State University until his

retirement on February 11, 2022.

1 Pursuant to Rule 37.6, counsel for amici curiae affirm that this

brief was not authored in whole or in part by counsel for any

party and that no person or entity, other than amici curiae, or its

counsel, made a monetary contribution to the preparation or submission of the brief. Counsel of record for all parties received

timely notice of the intention to file this brief.

2

United States Navy Admiral (Retired) Michael G.

Mullen, served as the 17th Chairman of the Joint

Chiefs of Staff from 2007-2011 under both President

George W. Bush and President Obama. A graduate of

the United States Naval Academy in 1968, Admiral

Mullen served in the Vietnam War and commanded

his first ship, the USS Noxubee, from 1973-1975. He

earned a Master’s Degree in Operations Research in

1985 and, later that year, took command of the

guided-missile destroyer USS Goldsborough. In 1991,

Admiral Mullen participated in Harvard University’s

Advanced Executive Management graduate program.

He was promoted to Rear Admiral in 1997 and, in

1998, was named Director of Surface Warfare in the

office of the Chief of Naval Operations (CNO).

Admiral Mullen is one of only four naval officers who

has the distinction of receiving four, 4-Star

assignments. In 2003, Admiral Mullen was named

Vice Chief of Naval Operations and was tapped to

head the United States Naval Forces in Europe and

NATO’s Joint Force Command in Naples. He then was

appointed Chief of Naval Operations in 2005, and, in

2007, he was nominated by George W. Bush to be the

17th Chairman of the Joint Chiefs of Staff. Admiral

Mullen retired from this position in 2011 after serving

for four years under both a Republican and a

Democratic president.

The focus of this brief is not on climate change

policy. Amici express no view, and take no position,

on climate change policy. They strongly believe these

important national and international policy issues

should be addressed to Congress and the Executive

Branch, not adjudicated piecemeal across the country

in a multitude of state courts. Instead, this brief

provides a history of the Federal Government’s role in

3

the production and sale of gasoline and diesel to

ensure that the military is “deployment-ready.” For

more than a century, petroleum products have been,

and currently are, essential for fueling the United

States military around the world. In amici’s view, the

use of fossil fuels was crucial to the success of the

armed forces when amici served as Chairmen of the

Joint Chiefs of Staff, and it remains crucial today.

In light of that concern, amici believe this

extensive history and their practical experience

demonstrate that these cases do not involve localized,

intra-state interests. Rather, the causation and

damages theories in these cases inextricably involve

worldwide impacts and core federal interests. City of

New York v. Chevron Corp., 993 F.3d 81, 92 (2d Cir.

2021) (Plaintiffs seek to hold petitioners liable “for the

effects of emissions made around the globe over the

past several hundred years.”); App.25a-26a, Samour,

J. Dissenting (“Boulder’s damages claims … are based

on harms the State of Colorado has allegedly suffered

as a result of global climate change. According to

Boulder, by producing, promoting, refining,

marketing, and selling fossil fuels in the United

States and globally, the energy companies have

played and continue to play a substantial role in

increasing the concentration of greenhouse gases

(“GHGs”) in the atmosphere, thereby inducing

changes to the climate worldwide.”).

To be clear, it is not as though we believe anything

having to do with climate change presents a national

security concern. There are thousands of lawsuits

filed that may relate in some way to greenhouse gases,

and we do not feel the need to weigh in on the vast

majority of those lawsuits. But these climate change

4

cases are different. This subset of cases causes us

concern because of both its sheer scope and its

transparent attempt to substitute parochial

judgments for those of the national, elected and

appointed actors, to whom the Constitution commits

domestic and international policy-making for this

complex, multi-faceted world-wide issue. Therefore, to

assist the Court in understanding the importance of

granting review and why these cases cause significant

national security concerns, this brief first discusses

the

Federal

Government’s—particularly

the

military’s—historical control and direction of

Petitioners’ production and sale of petroleum

products.

The brief concludes with our perspective on the

practical realities presented by these cases and the

reasons we believe the writs of certiorari should be

granted. As former Chairmen of the Joint Chiefs of

Staff serving under both Democratic and Republican

administrations and with over 80 years of combined

service in the military, we can personally attest that

petroleum products produced by companies like

Petitioners have been critical to national security,

military preparedness, and combat missions. We are

not alone in this belief. Military commanders, like

General David Petraeus, universally emphasize that

“[e]nergy is the lifeblood of our warfighting

capabilities.” 2 To ensure the military has a

dependable, abundant supply of the energy

indispensable to our Nation’s warfighting capacity,

2 Quoted in Department of Energy, “Energy for the Warfighter:

The Department of Defense Operational Energy Strategy,” June

14, 2011, https://www.energy.gov/articles/energy-war-fighter-department-defense-operational-energy-strategy.

5

this brief explains why, in our view, the climate

change issues at the heart of these civil damages suits

is a matter for Federal law, not state law.

While it is important to continue to look for

“greener” ways to fuel the military, the reality is the

U.S. military must always take into account its

enemies’ own fossil-fuel uses and potential superior

deployment abilities because of those uses. The

United States could go it alone and unilaterally strip

itself of higher-performing fossil fuels, but that risks

putting the Nation at a significant disadvantage. It

would weaken our armed forces while relatively

strengthening those of our adversaries. Stated

differently, achieving energy security is a prerequisite

for national security. As a result, reduction in fossilfuel use can be accomplished only through

comprehensive

international,

multi-lateral

negotiations and treaties led by the Legislative and

Executive branches. This is how reduction of nuclear

weapons was achieved during and following the Cold

War.

INTRODUCTION AND SUMMARY OF

THE ARGUMENT

This case centers on the global sale and

consumption of oil and gas products that are used by

virtually every person on the planet every single day.

Respondent seeks to impose ruinous liability on

Petitioners’ production and sale of these essential

products through claims brought under state law

around the country. Due to the extensive Federal

Government involvement in the development and

growth of the domestic oil and gas industry,

6

Respondent’s claims implicate uniquely federal

interests that are necessarily governed by federal law.

Oil and gas products are critical to national

security,

economic

stability

and

military

preparedness. For more than 100 years, the Federal

Government has actively encouraged – indeed it has

compelled – domestic exploration, production and sale

of oil and gas. As federal courts have recognized,

petroleum products have been “crucial to the national

defense,” including but by no means limited to “fuel

and diesel oil used in the Navy’s ships; and lubricating

oils used for various military machines.” Exxon Mobil

Corp. v. United States, 2020 WL 5573048, at *31 (S.D.

Tex. Sept. 16, 2020) (emphasis added); see also id. at

*47 (noting the “value of [the] petroleum industry’s

contribution to the nation’s military success”). The

Federal Government has incentivized and contracted

with Petitioners to obtain oil and gas products to

ensure a dependable, abundant supply of oil and gas

for the nation’s economic and military security.

In contrast to the Colorado Supreme Court, the

United States Second Circuit Court of Appeals

recognized that “[i]t [wa]s precisely because fossil

fuels emit greenhouse gases – which collectively

‘exacerbate global warming’ – that the “plaintiff[]

[wa]s seeking damages.” 993 F.3d at 91, 97.

“Consequently, though the City’s lawsuit would

regulate cross-border emissions in an indirect and

roundabout manner, it would regulate them

nonetheless.” Id. at 93. Therefore, the court

concluded that the city’s “sprawling” claims, which –

like plaintiffs’ claims here – sought “damages for the

cumulative

impact

of

conduct

occurring

simultaneously across just about every jurisdiction

7

on the planet” – were “simply beyond the limits of

state law.” Id. at 92.

We share the Second Circuit’s concerns. The

specter of huge and inconsistent damages awards

across the country is likely to trigger cascading effects,

gravely imperiling our military preparedness. Id. at

93-94 (citing Am. Elec. Power Co. v. Conn., 564 U.S. 410

(2011) at 427) (explaining that “[t]o permit this suit to

proceed under state law would further risk upsetting

the careful balance that has been struck between the

prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production,

economic growth, foreign policy, and national security,

on the other.” (emphasis added)). Because “states will

invariably differ in their assessment of the proper

balance between these national and international

objectives, there is a real risk that subjecting the

[energy companies’] global operations to a welter of

different states’ laws could undermine important

federal policy choices.” Id. The court concluded that

“[t]o hold the [energy company defendants]

accountable … would ... bypass the various diplomatic

channels that the United States uses to address this

issue.” Id. at 103.

In contrast, the Colorado Supreme Court did not

address at all the “foreign policy concerns” that the

Second Circuit determined “foreclose” claims

“targeting emissions emanating from beyond our

national borders.” Id. at 101. It did not address those

foreign affairs concerns because that court concluded

plaintiffs “do not seek to regulate emissions” because

respondents have not “brought an action against a

pollution emitter to abate pollution” but instead “seek

8

damages from the production and sale of fossil fuels.”

App. 17a, 21a. But from our perspective, this

conclusion blinks reality. As Colorado Supreme Court

Justice Samour said in his well-reasoned dissent,

which was joined by Justice Boatright, “that

distinction is neither here nor there—the bottom line

is that this suit is about the alleged GHG emissions

from the energy companies, even if the energy

companies are actually a few steps removed from the

physical release of the pollutants.” App. 33a

(emphasis in original). Similarly, the Second Circuit

explained “regulation can be effectively exerted

through an award of damages.” Although “the City’s

lawsuit would regulate cross-border emissions in an

indirect and roundabout manner, it would regulate

them nonetheless.” 993 F.3d at 92-93. As Justice

Samour warned “Make no mistake: Boulder looks to

curb the energy companies’ conduct by hitting them

where it hurts—their wallets.” App. 34a.

It is precisely this “indirect and roundabout” de

facto regulation of available fuel sources that concerns

us. State tort damages and abatement cases unduly

risk constricting the availability of oil and gas to the

detriment of national security interests, at a critical

juncture in our Nation’s history, when geopolitical

forces and energy security are especially vulnerable to

belligerent nations. As the dissenting Justices

recognized, “Boulder’s requested relief will inevitably

impose a limitation on GHG emissions.” App. 33a.

This at a time when the availability of Petitioners’ fuel

products remains crucial to the success of our armed

forces. As Admiral Mullen once put it, “[e]nergy

security needs to be one of the first things we think

about, before we deploy another soldier, before we

build another ship or plane, and before we buy or fill

9

another rucksack.” 3

recognized,

The Second Circuit correctly

[t]o hold the [energy companies] accountable for

purely foreign activity … would require them to

internalize the costs of climate change and would

presumably affect the price and production of fossil fuels abroad. It would also bypass the various

diplomatic channels that the United States uses

to address this issue, such as the U.N. Framework and the Paris Agreement. Such an outcome

would obviously sow confusion and needlessly

complicate the nation’s foreign policy, while

clearly infringing on the prerogatives of the political branches.

City of New York, 993 F.3d at 103; American Ins. Ass’n

v. Garamendi, 539 U.S. 396, 413 (2003) (quoting

Banco National de Cuba v. Sabbatino, 376 U.S. 398

(1964), at 427 n.25) (“There is … no question that at

some point an exercise of state power that touches on

foreign relations must yield to the National

Government’s policy, given the ‘concern for uniformity

in this country’s dealings with foreign nations’ that

animated the Constitution’s allocation of the foreign

relations power to the National Government in the

first place.”); App. 44a, Samour, J. Dissenting

(“Because our federal government has clearly

balanced many different interests in formulating its

foreign policy on air pollution, it makes little sense to

allow international regulation through the types of

state claims Boulder has brought. By giving Boulder

the nod to proceed with it is claims, the majority risks

3 Energy Security Forum, Washington, D.C., 13 October 2010,

https://www.dvidshub.net/news/58040/mullen-military-has-stra

tegic-imperative-save-resources.

10

impeding our federal government’s judgment as to

how to approach air pollution in the international

sphere.”).

And while Respondents may argue that their case

is not about regulating emissions, that they do not

seek to enjoin the sale or use of fossil fuels, and their

claims are merely tort claims for damages– the reality

is their theory of causation and the relief they seek is

not so limited. As Justice Samour explained, “[w]hile

Boulder’s state-law claims masquerade as tort claims

for damages, a closer look at the substance of those

claims’ allegations reveals that Boulder seeks to

effectively abate or regulate interstate emissions.”

App. 32a. Indeed, “regulation can be effectively

exerted through an award of damages,” Kurns v.

Railroad Friction Prods. Corp., 565 U.S. 625, 637

(2012) (cleaned up), and “[s]tate power” can be wielded

as much by the “application of a state rule of law in a

civil lawsuit as by a statute,” BMW of N. Am., Inc. v.

Gore, 517 U.S. 559, 572 n.17 (1996). Environmental

tort claims force defendants “to change [their]

methods of doing business.” Int’l Paper Co. v.

Ouellette, 479 U.S. 481, at 495 (1987). Allowing

Respondent to obtain its requested sweeping relief,

therefore, “would encourage courts to use vague public

nuisance standards to scuttle the nation’s carefully

created system for accommodating the need for energy

production and the need for clean air. The result

would be a balkanization of clean air regulations and

a confused patchwork of standards, to the detriment

of industry and the environment alike.” N. Car., ex rel.

Cooper v. Tenn. Valley Auth., 615 F.3d 291, 301 (4th

Cir. 2010) see also United States v. Standard Oil Co.

of Cal., 332 U.S. 301, 311 (1947).

11

Because Respondent’s Complaint seeks to penalize

Petitioners for their lawful past, present and future

production and sale of oil and gas, it risks making oil

and gas prohibitively costly and scarce. Their claims,

therefore, necessarily cause national security

concerns. This amicus brief provides an historical

background of the Federal Government’s oversight

and control of the oil and gas industry, and an

explanation of how these state court damages and

abatement suits imperil our nation’s ability to be

“deployment-ready.”

ARGUMENT

For more than a century, and to this day, the

Federal Government has incentivized, compelled and

controlled aspects of United States oil and gas sales

and has reserved rights to take additional control for

the benefit of the nation’s defense, security, and

economy. The Federal Government has required and

otherwise been inextricably involved in the

development of the nation’s oil resources both for

governmental use and the use of billions of consumers.

Respondent’s claims arising from the production and

sale of oil and gas necessarily implicate the Federal

Government’s actions and policy choices, including

the extensive history of federal laws, contracts and

leases that supported and controlled significant

portions of our nation’s fuel supply.

12

I.

The Important National Security

Interests in the Crosshairs of These

Cases: An Historical Overview of

the Federal Government’s Role in

the Production and Sale of Oil and

Gas.

More than a century ago, in 1910, President Taft

implored Congress to develop domestic oil sources:

“As not only the largest owner of oil lands, but as a

prospective large consumer of oil by reason of the

increasing use of fuel oil by the Navy, the Federal

Government is directly concerned both in encouraging

rational development and at the same time insuring

the longest possible life to the oil supply.” Hearings

Before Committee on Naval Affairs of the House of

Representatives on Estimates Submitted by the

Secretary of the Navy, 64th Cong. 761 (1915).

Within two years, on September 2, 1912, President

Taft established by Executive Order the first "Naval

Petroleum Reserve" at Elk Hills, California, taking

the extraordinary step of withdrawing large portions

of land from eligibility for private ownership and

designating them for the development of fuel

resources to ensure the United States Navy would

remain deployment-ready in the event of war. See

U.S. Gov’t Accountability Off., GAO/RCED-87-75FS,

Naval Petroleum Reserves: Oil Sales Procedures and

Prices at Elk Hills, April Through December 1986, at

3 (1987) (“GAO Fact Sheet”). 4

The defining characteristic of World War I was

mechanization (i.e., the emergence of tanks, aircraft,

and submarines), and accordingly “oil and its products

4 http://www.gao.gov/assets/90/87497.pdf

13

began to rank as among the principal agents by which

the Allies would conduct war and by which they could

win it.’” Ian O. Lessor, Resources and Strategy: Vital

Materials in International Conflict 1600 – The Present

(1989) at 42. The necessity was echoed among the

Allies, as British Cabinet Minister Walter Long

expressed in an address to the House of Commons in

1917:

Oil is probably more important at this moment

than anything else. You may have men, munitions, and money, but if you do not have oil, …

all your other advantages would be of comparatively little value.

Yergin, THE PRIZE: THE EPIC QUEST FOR OIL, MONEY

& POWER (1991) at 177.

By 1917, American oil was vital for war efforts. As

the Admiralty Director of Stores stated, “[W]ithout

the aid of oil from America our modern oil-burning

fleet cannot keep the sea.” Lessor, Resources and

Strategy at 43. In response to the Allies’ cry for help,

the United States provided over 80 percent of the

Allied requirements for petroleum products and

greatly influenced the outcome of the war. Id.

(explaining that “petrol … is as necessary as blood in

the battles of tomorrow”) (quoting Clemenceau’s letter

to President Wilson)).

World War II confirmed petroleum’s role as a key

American resource and underscored the government’s

interest in maintaining and managing it. Statement

of Ralph K. Davies, Deputy Petroleum Administrator

of War, Special Committee Investigating Petroleum

Resources, S. Res. 36, at 4 (Nov. 28, 1945) (“Our

overseas forces required nearly twice as many tons of

14

oil as arms and armament, ammunition,

transportation and construction equipment, food,

clothing, shelter, medical supplies, and all other

materials together. In both essentiality and quantity,

oil has become the greatest of all munitions.”);

National Petroleum Council, A National Oil Policy for

the United States at 1 (1949) (“A prime weapon of

victory in two world wars, [oil] is a bulwark of our

national security.”).

In 1941, as the United States prepared to enter

World War II, its need for large quantities of oil and

gas to produce high-octane fuel for planes (“avgas”),

oil for ships, lubricants, and synthetic rubber far

outstripped the nation’s capacity. Given the role

played by strategic bombers, small attack bombers,

fighters, and search and rescue aircraft, Avgas was

particularly essential to the war effort in both Europe

and the Pacific. It is fair to describe it as the most

critically needed petroleum product during the War.

And it has continued being essential up to today. To

insure its supply, the Federal Government created

agencies to control petroleum production and

distribution; it directed the production of certain

petroleum products; and it managed resources.

In 1942, President Roosevelt established several

agencies to oversee wartime petroleum production,

including the War Production Board (“WPB”) and the

Petroleum Administration for War (“PAW”). The

PAW centralized the government’s petroleum-related

activities. The PAW dictated products, quantity and

quality to America’s oil refiners. See John W. Frey &

H. Chandler Ide, A History of the Petroleum

Administration for War, 1941-1945, at 219 (1946)).

15

At the direction of the Federal Government, the oil

companies increased avgas production “over twelvefold from approximately 40,000 barrels per day in

December 1941 to 514,000 barrels per day in 1945,

[which] was crucial to Allied success in the war.” Shell

Oil Co. v. United States, 751 F.3d 1282, 1285 (Fed. Cir.

2014). “No one who knows even the slightest bit about

what the petroleum industry contributed … can fail to

understand that it was, without the slightest doubt,

one of the most effective arms of this Government” in

fulfilling the government’s core defense functions.

Statement of Senator O’Mahoney, Chairman, Special

Committee Investigating Petroleum Resources, S.

Res. 36, at 1 (Nov. 28, 1945) (emphasis added).

In 1950, President Truman, established the

Petroleum Administration for Defense (“PAD”) under

authority of the Defense Production Act of 1950, Pub.

L. No. 81–774 (“DPA”). The PAD ordered production

of oil and gas to ensure adequate quantities of avgas

for military use. Exxon, 2020 WL 5573048, at *28; see

also id. at *15 (detailing the government’s use of the

Defense Production Act of 1950 to “force” the

petroleum industry to “increase [its] production of

wartime . . . petroleum products”).

To further promote domestic oil and gas production

in 1953, Congress passed the Outer Continental Shelf

Lands Act (“OCSLA”), directing the U.S. Department

of the Interior to make nearly 27 million acres of the

OCS available for “expeditious and orderly

development” of fossil fuel production. 43 U.S.C.

§1332(3).

During the Cold War, the U.S. military

commanded the development of more innovative

military fuels and continued its role as the driving

16

force behind domestic production. During the 1960s,

U.S. energy consumption increased 51%, compared to

only 36% during the previous decade. Jay Hakes, A

Declaration of Energy Independence at 17 (2008). As

demand continued to climb into the early 1970s, the

Nation faced a precarious shortage of oil and gas.

To avert a national energy crisis, in 1973,

President Nixon ordered a dramatic increase in

development for ready-production from the OCS:

Approximately half of the oil and gas resources

in this country are located on public lands,

primarily on the Outer Continental Shelf

[OCS]. The speed at which we can increase our

domestic energy production will depend in

large measure on how rapidly these resources

can be developed. I am therefore directing the

Secretary of the Interior to take steps which

would triple the annual acreage leased on the

Outer Continental Shelf by 1979 ….

Nixon Message, N.Y. Times, Apr. 19, 1973. 5

The following year, President Nixon announced a

goal of energy independence by 1980. Annual Message

to the Congress on the State of the Union, 1 Pub.

Papers 59 (Jan. 23, 1974). 6 “Project Independence

1980” ordered, among other things, that the Secretary

of the Interior “increase the acreage leased on the

[OCS] to 10 million acres beginning in 1975, more

than tripling what had originally been planned.”

https://www.nytimes.com/1973/04/19/archives/excerpts-fromnixon-message-developing-our-domestic-energy.html.

6 https://quod.lib.umich.edu/p/ppotpus/4731948.1974.001/99?view

=image&size=100

5

17

Special Message to the Congress on the Energy Crisis,

1 Pub. Papers 29 (Jan. 23, 1974). 7

Congress passed the Trans-Alaska Pipeline

Authorization Act of 1973, determining that it was in

the “national interest” to deliver oil and gas from

Alaska’s North Slope “to domestic markets … because

of growing domestic shortages and increasing

dependence upon insecure foreign sources.” TransAlaska Pipeline Authorization Act, Pub. L. No. 93153, § 202(a), 87 Stat. 576, 584 (1973), Pub. L. No. 93153, at

https://www.govinfo.gov/content/pkg/

STATUTE-87/pdf/STATUTE-87-Pg576.pdf.

To address “immediate and critical” petroleum

shortages in the military brought by the 1973 OPEC

Oil Embargo, the Federal Government invoked the

DPA to bolster its reserves with additional petroleum

from domestic oil and gas companies. Twenty-Fourth

Annual Report of the Activities of the Joint

Committee on Defense Production, S. Rep. No. 94-1,

Pt. 1, at 442 (Jan. 17, 1975, 1st Sess.).

In 1974, responding to President Nixon’s direction

to “increase the acreage leased on the Outer

Continental Shelf”, Congress amended OCSLA. This

amendment increased federal control over lessees “to

result in expedited exploration and development of

the Outer Continental Shelf in order to achieve

national economic and energy policy goals, assure

national security, reduce dependence on foreign

sources, and maintain a favorable balance of

payments in world trade.” California ex rel. Brown v.

Watt, 668 F.2d 1290, 1296 (D.C. Cir. 1981) (quoting 43

U.S.C. § 1802); see also Special Message to the

7

https://quod.lib.umich.edu/p/ppotpus/4731948.1974.001/69

18

Congress on the Energy Crisis, 1 Pub. Papers 29 (Jan.

23, 1974). 8

In 1978, as part of amendments to OCSLA, the

Congressional Ad Hoc Select Committee on the OCS

concluded again that “alternative sources of energy

will not be commercially practical for years to come,”

H.R. Rep. No. 94-1084, at 254 (1976) and

“[d]evelopment of our OCS resources will afford us

needed time—as much as a generation—within which

to develop alternative sources of energy.” H.R. Rep.

No. 95-590, at 53 (1977).

II.

The Federal Government’s Efforts

to Ensure a Dependable, Abundant

Supply of Oil and Gas Continue to

be Essential to Its Conduct of Foreign Affairs and Military Preparedness.

In 1995, Congress and President Bill Clinton

amended OCSLA to permit the Secretary of the

Interior to “unlock an estimated 15 billion barrels of

oil in the central and western Gulf of Mexico” for

exploration, production and sale. Press Secretary,

White House Office of Communications, Statement on

North Slope Oil Bill Signing (Nov. 28, 1995), 1995 WL

699656, at *1.

Federal promotion and use of domestic oil continued to grow in the 2000s. In 2006, the Bush administration opened leases of approximately 8 million additional acres of OCS lands in the Gulf of Mexico to

“address high energy prices, protect American jobs,

and reduce our dependence on foreign oil.” Statement

8https://quod.lib.umich.edu/p/ppotpus/4731948.1974.001?rgn=

main;view=fulltext.

19

By President George W. Bush Upon Signing [H.R.

6111], 2 Pub. Papers 2217 (Dec. 20, 2006) (emphasis

added). 9

In 2010, President Obama “announc[ed] the

expansion of offshore oil and gas exploration,”

explaining “in order to sustain economic growth,

produce jobs, and keep our businesses competitive, we

are going to need to harness traditional sources of fuel

even as we ramp up production of new sources of

renewable, homegrown energy.” President Barack

Obama, Remarks on Energy at Andrews Air Force

Base, Maryland (Mar. 31, 2010) (emphasis added). 10

In 2019, the United States became a net total

energy exporter for the first time since 1952. U.S.

Energy Info. Admin., U.S. energy facts explained

(Apr. 27, 2020), https://www.eia.gov/energyexplained/

us-energy-facts/imports-and-exports.php.

The

Department of Defense alone purchased 94.2 million

barrels of military-spec compliant fuel products,

totaling $12.1 billion in procurement actions. 11 And

even today, as former Vice Admiral Robert Harward

reports, “energy manufacturers are answering

President Biden’s directive to export natural gas to

our allies in Europe. For example, the U.S. has been

able to respond to Russia’s chokehold of the European

energy market by increasing shipments of liquefied

9 https://books.google.com/books?id=o2ei8yOphboC&printsec=

frontcover#v=onepage&q&f=false.

10

https://obamawhitehouse.archives.gov/the-press-office/remarks-president-energy-security-andrews-air-force-base-3312010

11 Def. Logistics Agency Energy, Fiscal Year 2019 Fact Book

(2019) at 4, 27, https://www.dla.mil/Portals/104/Documents/Energy/Publications/FactBookFiscalYear2019_highres.pdf?ver=

2020-01-21-103755-473.

20

natural gas and crude oil by 137 percent and 38

percent, respectively.” 12

When Respondent’s Complaint is viewed within

the historical context of the Federal Government’s

pervasive control and direction of oil and gas

production, it is clear Respondent’s state law claims

seek to undercut these national and international

policies and actions governing the sale of oil and gas

and trigger national security concerns for a reliable

and stable energy supply.

III.

Our Nation’s Vital Interests in Fuel

Security and Managing Climate

Change Cannot be Regulated by a

Patchwork of State-Court Actions.

At the end of the day, we are concerned that the

upshot of this litigation and the broad relief it seeks

would negatively impact strong national interests in

fuel security and military readiness. Fuel security is a

crucial national interest and is especially critical to

the U.S. military, in times of both war and peace, to

power ships, tanks, and aircraft, provide energy to run

bases, stations, and detachments, and enable

numerous operations. It should thus come as no

surprise that the US military is the single largest

purchaser and consumer of fuel in the United States.

Climate change is likewise an issue of critical

national (indeed, global) importance. Greenhouse-gas

emissions are a form of transboundary air pollution

12 U.S. Climate Lawsuits Endanger Military and U.S. National

Security Interests by Robert Harward, Vice Admiral, U.S. Navy

Retired, American Military News (April 20, 2023) at

https://americanmilitarynews.com/2023/04/u-s-climate-lawsuitsendanger-military-and-u-s-national-security-interests/

21

and thus present a matter of uniquely federal concern,

rather than a State or local matter. See City of New

York, 993 F.3d at 85-86 (2d Cir. 2021) (“Global

warming presents a uniquely international problem of

national concern. It is therefore not well-suited to the

application of state law.”). Because national security

issues and climate change concerns are both uniquely

federal interests, they must be addressed and solved

by the federal government and the political branches,

not through bread-and-butter state law tort claims.

See Torres v. Texas Dep’t of Pub. Safety, 597 U.S. 580,

590 (2022) (“[T]he Constitution’s text, across several

Articles, strongly suggests a complete delegation of

authority to the Federal Government to provide for

the common defense . . . [Therefore] [t]hese

substantial limitations on state authority, together

with the assignment of sweeping power to the Federal

Government, provide strong evidence that the

structure of the Constitution prevents States from

frustrating national objectives in this field.”);

American Ins. Ass’n v. Garamendi, 539 U.S. 396, 413

(2003) (quoting Banco National de Cuba v. Sabbatino,

376 U.S. 398, 427 n.25 (1964) (“There is . . . no

question that at some point an exercise of state power

that touches on foreign relations must yield to the

National Government’s policy, given the ‘concern for

uniformity in this country’s dealings with foreign

nations’ that animated the Constitution’s allocation of

the foreign relations power to the National

Government in the first place.”).

Litigating Plaintiff’s claims against Defendants in

a decentralized way under various states’ laws will

undermine these vital national interests and

undermine a reliable domestic fuel supply. It would

subject Defendants to potential liability and

22

injunctions under a patchwork of state laws, without

a uniform guide. Courts have recognized that this

would “risk upsetting the careful balance that has

been struck between the prevention of global

warming, a project that necessarily requires national

standards and global participation, on the one hand,

and energy production, economic growth, foreign

policy, and national security, on the other.” City of

New York, 993 F.3d at 93; see also id. (“And as states

will invariably differ in their assessment of the proper

balance between these national and international

objectives, there is a real risk that subjecting the

Producers’ global operations to a welter of different

states’ laws could undermine important federal policy

choices.”). “The federal government’s interest in

avoiding regulatory chaos through a uniform

standard is why federal common law existed in the

first place, and that interest is even more prominent

today.” App. 46a, Samour, J. Dissenting.

To be sure, the United States Military continues to

look for “greener” ways to fuel the military, and we

support ameliorating climate change risks at our

bases, but the reality is the U.S. military must always

take into account its enemies’ own fossil-fuel uses and

potential superior deployment abilities because of

those uses. The United States could go it alone and

unilaterally strip itself of higher-performing fossil

fuels, but that risks putting the Nation at a significant

competitive disadvantage, militarily and otherwise.

The ruinous damages these cases seek risk kneecapping this country while empowering others who

seek to exploit just such vulnerabilities. Stated

differently, energy security and national security go

hand-in-hand; we cannot achieve national security

without first accomplishing energy security.

23

At bottom, our experience has taught us that

private-sector production and sale of oil and gas are

essential to our military operations and thus our

national security. Our Constitutional oath includes

our commitment to “support and defend the

Constitution of the United States against all enemies,

foreign and domestic,” which necessarily includes a

commitment to ensure the military has sufficient fuel

to accomplish its missions. In order to adhere to that

oath, it is the duty of military officers to enable a

plentiful supply of fuel to operate vehicles, ships, and

planes. Because energy is essential to protect our

Nation, its people, and the world at large, the decision

of how much is appropriate must be left with the

Federal Government and the branches of the Federal

Government tasked with our foreign policy and

national security.

CONCLUSION

In concluding his dissent in the underlying case,

Justice Samour, joined by Justice Boatright, explained that if allowed to stand the decision would

“contribute to a patchwork of inconsistent local standards that will beget regulatory chaos.” Appx. At 47a.

We share this exact concern and note that, as set forth

above, this resulting regulatory chaos will directly impair national security. Having committed our lives to

the defense of this nation, we view this outcome as

very problematic and completely inconsistent with the

Constitution’s delegation of power, as Justice Samour

succinctly put it “[i]n our individual nation, that just

can’t be right[.]” Id.

Justice Samour concluded his dissent by stating

“[g]iven the number of local municipalities … that

have already brought claims like those advanced by

24

Boulder, given that more and more municipalities are

joining this trend, and given further that a number of

courts have now ruled that such claims may be prosecuted, I respectfully urge the Supreme Court to take

up this issue—whether in this case or another one.”

App. 46a. We too urge this Court to take up this issue

and submit that this case is the perfect vehicle to do

so. Accordingly, we urge this Court to grant the petition for certiorari.

Respectfully submitted,

Tristan L. Duncan

(Counsel of Record)

William F. Northrip

SHOOK, HARDY & BACON L.L.P.

2555 Grand Blvd.

Kansas City MO 64108

(816) 474-6550

tlduncan@shb.com

Counsel for Amici Curiae

Dated: September 5, 2025