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.; SUNCOR ENERGY

SALES, INC.; EXXON MOBIL CORPORATION,

Petitioners,

v.

COUNTY COMMISSIONERS OF BOULDER COUNTY AND

CITY OF BOULDER.

Respondents.

♦

On Petition for Writ of Certiorari to the

Supreme Court of Colorado

♦

AMICI CURIAE BRIEF BY

PROFESSOR RICHARD EPSTEIN AND

PROFESSOR JOHN YOO

IN SUPPORT OF PETITIONERS

♦

Ivan L. London

Counsel of Record

William E. Trachman

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wtrachman@mslegal.org

September 11, 2025

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

Page(s)

TABLE OF CONTENTS ..............................................

i

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

iii

IDENTITIES AND INTERESTS OF AMICI

CURIAE ..........................................................................

1

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

2

ARGUMENT ..................................................................

4

I.

The Decision Below Reflects the Divide

Among Courts on The Preemption Issue. ......

4

II.

The CAA And Federal Law Preempt

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

8

III.

Respondents Cannot Plead Their Tort

Claims. ................................................................

13

A.

Respondents lack a proper

defendant. ..............................................

17

B.

There is no materiality or

causation. ...............................................

19

C.

Respondents have no justifiable

reliance. ..................................................

23

ii

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

27

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ............................................. 9, 11, 12

Am. Insurance Association v. Garamendi,

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

12

Anonymous, Y.B. Mich., 27 Hen. 8, f. 27, pl. 10 (King’s

Bench 1536) .................................................................

14

Ashcroft v.Iqbal,

556 U.S. 662 (2009)....................................................

23

Bell Atlantic, Co. v.Twombly,

550 U.S. 544 (2007)....................................................

23

Burgess v. M/V Tamano,

370 F. Supp. 247 (D. Me. 1973)................................

14

City & Cnty. of Honolulu v. Sunoco LP,

537 P.3d 1173 (Haw. 2023).................................

2, 7, 15

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021)............................. 2, 5, 6, 7, 10

Derry v. Peek,

L. R. 14 App. Cas. 337 (1889) ....................................

26

Clearfield Trust Co. v. United States,

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

11

iv

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938)......................................................

10

Hinderlider v. La Plata River & Cherry Creek Ditch Co.,

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

10

Illinois v. City of Milwaukee,

406 U.S. 91 (1972).......................................................

11

Ultramares Corp. v. Touche,

174 N.E. 441 (N.Y. 1931) ...........................................

26

W. Virginia v. EPA,

597 U.S. 697 (2022).....................................................

12

Statutes

42 U.S.C. § 9613(F) ........................................................

18

Rules

Fed. R. Civ. P. 12(B).......................................................

5

Fed. R. Civ. P. 12(B)(1) and (6).....................................

5

Other Authorities

Kyoto Protocol to the United Nations Framework

Convention on Climate Change, Dec. 10, 1997, 2303

U.N.T.S. 162 ................................................................

13

Paris Agreement to the United Nations Framework

Convention on Climate Change, Dec. 12, 2015, T.I.A.S.

No. 16-1104 ..................................................................

13

v

Praise of Erie—And of The New Federal Common Law,

39 N.Y.U. L. Rev. 383, 421–22 (1964) .....................

11

Restatement (Third) of Torts: Liability For

Economic Harm § 9 ....................................................

16

The Private Law Connections To Public

Nuisance Law: Some Realism About Today’s

Intellectual Nominalism,

17 J.L. Econ. & Pol’y 282 (2022) ...............................

15

1

IDENTITIES AND INTERESTS

OF AMICI CURIAE1

Professor Richard A. Epstein is the Laurence A.

Tisch Professor of Law at New York University. He is

also a Senior Fellow at the Civitas Institute, and the

James Parker Hall Distinguished Service Professor

Emeritus of Law and Senior Lecturer at the

University of Chicago Law School. Professor Epstein

is one of the foremost scholars in the United States on

tort and takings law, and he maintains a unique

interest in ensuring that courts appropriately apply

basic tort doctrine to the rapidly evolving field of

public nuisances.

Professor John Yoo is the Emanuel S. Heller

Professor of Law at the University of California at

Berkeley and Faculty Director of its Law & Public

Policy Program; Distinguished Visiting Professor at

the School of Civic Leadership, University of Texas at

Austin; and Non-resident Senior Fellow at the

American Enterprise Institute. He maintains a

unique interest and expertise in ensuring that courts

apply preemption doctrine appropriately.

♦

1 No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of the brief.

Further, all counsel of record received timely notice of the intent

to file the brief.

2

SUMMARY OF THE ARGUMENT

If the global and national climate is changing,

then the Nation should decide how to address it. See

City of New York v. Chevron Corp., 993 F.3d 81, 91 (2d

Cir. 2021) (“[T]he question before us is whether a

nuisance suit seeking to recover damages for the

harms caused by global greenhouse gas emissions

may proceed under New York law. Our answer is

simple: no.”) (New York). Neither Boulder, Colorado,

nor other state and local actors applying state and

local common law and statutes can decide climate and

energy policy for the entire Nation. See Pet. 4.

Yet despite the obvious conclusion to the

important question of who gets to decide, the federal

and state appellate courts ranging from the far

eastern part of the Country to the far western part of

the Country are deeply divided on the answer. From

New York in the east, the United States Court of

Appeals for the Second Circuit rejected local attempts

to use common law claims to address alleged injuries

supposedly arising from greenhouse gas emissions.

New York, 993 F.3d at 91. But from the west, the

Supreme Court of Hawaii said that the Second Circuit

had relied on “flawed reasoning,” and rejected the

court of appeals’ decision. City & Cnty. of Honolulu v.

Sunoco LP, 537 P.3d 1173, 1196 (Haw. 2023)

(Hawaii).

Amidst this conflict between Hawaii’s court of

last resort and the United States Court of Appeals for

3

the Second Circuit, 2 the petition comes to this Court

arising from a case filed by Boulder, Colorado. In this

case, Colorado’s court of last resort followed the

Hawaii Supreme Court’s decision in conflict with the

Second Circuit’s, making this conflict on an important

federal issue a great justification for the Court’s

review. See Rule 10(b).

But decades of federal common and statutory

law, acknowledged, interpreted, and applied by this

Court’s precedents, require cutting off such claims at

the pleading stage. The Colorado Supreme Court

disagreed, which is a further justification for the

Court’s review. See Rule 10(c).

Going beyond the Question Presented, which

focuses on this issue of preemption, see Pet. (I), amici

curiae can help the Court further understand another

good reason to stop cases like this one at the pleading

stage. No matter how they try to mask their aims,

Respondents want to misuse the settled laws of

nuisance and misrepresentation against Petitioners

in this case, and several others like it, to set

nationwide climate policy, all in violation of sound tort

principles.

2 The dispute is not just between these two courts, but among

other courts too. For example, a trial court in Minnesota agreed

with Hawaii’s side in a case that is now on appeal at the state’s

intermediate appellate court; while two trial courts in Maryland

took the Second Circuit’s side in cases that are now on appeal to

the state’s court of last resort. The citations to these and other

recent court decisions on this issue are in Argument § I.

4

At bottom, Respondents say that Petitioners

“knew” their actions were altering the global climate,

only to conceal the truth from consumers worldwide,

and Respondents’ conduct led to an increase in

greenhouse gases, which raised temperatures

globally. But there is no reason to think that

Petitioners said anything to Respondents or other

potential plaintiffs nationwide that anyone

reasonably relied on to their detriment. There is thus

no reason to let this case or any of the many copycat

cases get past the pleadings stage.

The Court should grant the petition and

reverse the Colorado Supreme Court, find that the

claims in this case are preempted, and stop these and

other state and local attempts to set national climate

policy via flawed state-law tort theories.

ARGUMENT

I.

The Decision Below Reflects the Divide

Among Courts on The Preemption Issue.

The Board of County Commissioners of Boulder

County and the City of Boulder—plaintiffs below and

Respondents here—filed tort claims against

Petitioners (which are energy companies) based on

harms Respondents say that they or the State of

Colorado, have allegedly suffered due to global climate

change, and that these defendants in particular are

theoretically at fault because they played some role in

increasing the concentration of greenhouse gases

somewhere in the global atmosphere, thereby playing

5

some part in global climate change. See Pet.App.25a–

26.a (Samour, J., dissenting).

Decades of federal common and statutory law

acknowledged, interpreted, and applied by this

Court’s precedents, say that the courts below should

have preempted Respondents’ ability to get such

claims past the pleading stage. Nevertheless, on this

topic of whether plaintiffs can get tort claims for

supposed climate change injuries past the pleadings,

there is now a deep divide among courts across the

Country.

But a federal appellate court took on this

iteration of such claims specifically in the context of a

motion to dismiss per Fed. R. Civ. P. 12(b)(1) and (6).

That was the United States District Court for the

Second Circuit in New York. Back in 2018, New York

City sued energy companies in federal court, asserting

causes of action for public nuisance, private nuisance,

and trespass under New York law stemming from the

same types of activities underlying the allegations in

this case. New York, 993 F.3d at 88. The defendants

filed Fed. R. Civ. P. 12(b) motions to dismiss, which

the district court granted generally on preemption

grounds. Id. at 88–89.

That posed to the Second Circuit the same

question at issue here: should a court dismiss such

state tort claims geared to address global climate

issues as preempted by federal law? The answer there

was yes, and the Second Circuit had no problem

saying so clearly: federal law preempts Respondents’

6

claims. See New York, 993 F.3d at 91. The court saw

right through New York City’s attempt to avoid the

obvious preemption by dressing its claims up as statelaw torts—that is, as a purely local issue. Yes, New

York City had engaged in “artful pleading,” but such

“[a]rtful pleading cannot transform the City’s

complaint into anything other than a suit over global

greenhouse gas emissions.” Id. at 91. The court

explained further:

Stripped to its essence, then, the

question before us is whether a

nuisance suit seeking to recover

damages for the harms caused by

global greenhouse gas emissions may

proceed under New York law. Our

answer is simple: no. . . .

To state the obvious, the City does not

seek to hold the Producers liable for the

effects of emissions released in New

York, or even in New York’s

neighboring states. Instead, the City

intends to hold the Producers liable,

under New York law, for the effects of

emissions made around the globe over

the past several hundred years. In

other words, the City requests damages

for the cumulative impact of conduct

occurring simultaneously across just

about every jurisdiction on the planet.

7

Such a sprawling case is simply beyond

the limits of state law.

Id. at 91–92. Given such a logical, strong statement by

a United States court of appeals on this important

federal question, one might expect later federal courts

and state courts of last resort to follow suit.

But local governments have found ways to skirt

the Second Circuit’s reasoning. State and local

governments have filed slightly revised (but otherwise

copycat) suits around the Country, but in state courts

rather than federal courts.

The first state court of last resort to reach a

decision was the Hawaii Supreme Court, which

decided that the Second Circuit had relied on “flawed

reasoning” in its New York decision. Hawaii, 537 P.3d

at 1196. The Hawaii Supreme Court invented a legal

fiction: while it is true that federal common law

preempted state common law claims like the

plaintiffs’ claims in that case, the preemption

evaporated once Congress enacted the Clean Air Act.

Id. at 1198. This aspect of the court’s decision directly

contradicted the Second Circuit’s decision about the

effect of the Clean Air Act on preemption of common

law claims. New York, 993 F.3d at 98–99. The Second

Circuit thoroughly considered the argument and

concluded that such evaporation of preemption—

allowing previously preempted state-tort claims to

“snap back into action”—was “too strange to seriously

contemplate.” Id.

8

Here, Colorado’s court of last resort has

followed Hawaii down this “strange” and illogical

path, further rejecting the Second Circuit on this

important federal question. Pet.App.13a, 15a–16a.

The Court should step in now. See Rule 10(b).

This dispute is not limited to a conflict between

a New York federal court and the state courts of

Colorado and Hawaii. Many states are currently

considering whether to bring similar cases. This case

presents the Court with the opportunity to explain

that federal law preempts Respondents’ state law

claims and prevent further waste of legal and judicial

resources. See, e.g., Minnesota v. Am. Petroleum Inst.,

A25-407 (Minn. Ct. App. Sept. 10, 2025) (setting

argument on anti-SLAPP issues for motions to

dismiss in Minnesota); Mayor & City Council of

Baltimore v. B.P. P.L.C., SCM-REG-0011-2025 (Md.

Aug. 25, 2025) (setting argument on nuisance and

representation issues in Maryland); City of Charleston

v. Brabham Oil Co., 2020-CP-10-03975 (S.C. Ct. of

Common Pleas Aug. 6, 2025) (granting motion to

dismiss misrepresentation claims for failure to state a

claim); California v. Exxon Mobil Corp., Case No.

S288664 (Cal. Feb. 11, 2025) (denying review of

jurisdiction issues).

II.

The CAA And Federal Law Preempt

Respondents’ Claims.

The Colorado Supreme Court’s decision on the

important federal question of preemption conflicts

with relevant decisions of this Court. The sale and

9

consumption of fossil fuels in any single state does not

generate a sufficiently large temperature change to

produce a rise in sea levels anywhere, let alone in any

given jurisdiction. “Greenhouse gases once emitted

‘become well mixed in the atmosphere.’” Am. Elec.

Power Co. v. Connecticut, 564 U.S. 410, 422 (2011)

(AEP). This reason alone is sufficient for the Court to

hold that the Colorado courts cannot let Respondents

advance their torts—in novel forms—against

Petitioners for their production, marketing, and sale

of fuels.

This erroneous approach to tort liability—

which rests on an assumption that worldwide

greenhouse gas emissions necessarily and directly

raise worldwide temperatures, and thus purportedly

cause weather changes that allegedly harm Colorado,

even if limited to Boulder County, Colorado—doesn’t

warrant further consideration, much less discovery

and full-blown trials.

Before New York, this Court had already

rejected a lawsuit brought by New York City and

several states against major emitters of carbon

dioxide, saying that “emissions in [New York or] New

Jersey may contribute no more to flooding in New

York than emissions in China.” AEP, 564 U.S. at 422.

The Court went on to reject the plaintiffs’ claims. Id.

at 424. The claims in these cases parallel those

rejected by the Court.

The Colorado Supreme Court acknowledged

AEP, Pet.App.10a, but danced around it, Pet.App.13a,

10

15a–16a, 19a–20a (most directly in ¶ 57). Yet the

court below was simply wrong: federal law preempts

Colorado tort claims based on a two-step analysis.

First, federal common law preempted state-level

common law claims. And then the CAA displaced that

federal common law and stepped into its shoes—also

preempting local tort claims. AEP does not let local

tort laws snap back into place “simply because

Congress saw fit to displace a federal court-made

standard with a legislative one.” New York, 993 F.3d

at 98. Rather, the CAA made EPA the “primary

regulator of [domestic] greenhouse gas emissions,” id.

at 99, and it left to the states only the power to

regulate internal emissions sources, id. at 100.

This Court should grant the petition for

certiorari and agree with the Second Circuit that

states cannot “utilize state tort law to hold

multinational oil companies liable for the damages

caused by global greenhouse gas emissions.” New

York, 993 F.3d at 85.

Explaining further, while Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938), denied the existence of

a general federal common law, it affirmed the

existence of a specialized federal common law where

national concerns are paramount. In Hinderlider v.

La Plata River & Cherry Creek Ditch Co., 304 U.S. 92

(1938), the Court held that interstate water disputes

are “a question of ‘federal common law’ upon which

neither the statutes nor the decisions of either State

can be conclusive.” Id. at 110. Any other rule would let

11

states give priority to their own laws. Justice William

O. Douglas expressed the same view in Clearfield

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

which applied federal common law to commercial

paper to avoid “making identical transactions subject

to the vagaries of the laws of the several states.” And

as Judge Henry Friendly observed, “‘[e]nvironmental

protection is undoubtedly an area ‘within national

legislative power,’ one in which federal courts may fill

in ‘statutory interstices,’ and, if necessary, even

‘fashion federal law.’” AEP, 564 U.S. at 421 (quoting

Henry Friendly, In Praise of Erie—And of the New

Federal Common Law, 39 N.Y.U. L. REV. 383, 421–22

(1964)).

The Court’s precedents, including Illinois v.

City of Milwaukee, 406 U.S. 91, 102–03, 102 n.3

(1972), recognize that federal common law must

preempt. Interstate pollution presents an “overriding

. . . need for a uniform rule of decision” because states

have conflicting self-interests, energy production and

pollution are nationwide in scope, and the basic

interests of federalism are involved. Id. at 105 n.6.

At the second step, the CAA displaces or

preempts any claims for trans-boundary pollution

provided by federal common law or state law: “We

hold that the Clean Air Act and EPA actions it

authorizes displace any federal common-law right to

seek abatement of carbon-dioxide emissions from

fossil-fuel fired powerplants.” AEP, 564 U.S. at 424.

AEP did not hold that the CAA revived state causes of

12

action that earlier federal law had preempted. 3 AEP

does not let federal regulators intrude into state

affairs. Rather, confirming the CAA’s preemptive

effect prevents the extraterritorial application of

Colorado tort law on people outside Colorado.

Properly concerned with the tension between federal

and state authority, the Framers of the Constitution

crafted a balanced system that prevents a single state

from regulating a nationwide industry.

And states cannot use police powers to regulate

areas that are the subject of diplomatic negotiations

by the federal government. In American Insurance

Association v. Garamendi, 539 U.S. 396 (2003), for

example, the Court held that federal common law of

foreign relations preempted a California law that

required insurers to disclose information relating to

pre-WWII insurance policies held by foreign

companies. The Supreme Court found that the state

law conflicted with President Clinton’s diplomatic

efforts to achieve a settlement between the German

3 Of course, Congress and the Executive Branch can change their

minds on greenhouse gas emissions. In 2011, this Court wrote:

“The critical point is that Congress delegated to EPA the decision

whether and how to regulate carbon-dioxide emissions from

powerplants; the delegation displaces federal common law.”

AEP, 564 U.S. at 426. Today, it is uncertain whether the major

questions doctrine allows EPA to make that decision with such

broad authority suggested in 2011. See W. Virginia v. EPA, 597

U.S. 697, 723–24 (2022) (EPA still needs “clear congressional

authorization” for the regulatory power it claims).

13

government, the private financial institutions, and

Holocaust survivors and their families.

Foreign policy interests are present in this case.

We have entered into international agreements

designed to regulate greenhouse gas emissions and we

take part in international negotiations to identify

areas for cooperation between nations. See, e.g., Paris

Agreement to the United Nations Framework

Convention on Climate Change, Dec. 12, 2015,

T.I.A.S. No. 16-1104; Kyoto Protocol to the United

Nations Framework Convention on Climate Change,

Dec. 10, 1997, 2303 U.N.T.S. 162; Rio Declaration on

Environment and Development, June 13, 1992, 31

ILM 874 (1992). Yet Respondents try to impose a

damages sanction on Petitioners for the very conduct,

based on the same theory of harm, that is the focus of

these national diplomatic efforts.

III.

Respondents Cannot Plead Their Tort

Claims.

The Court should also grant certiorari to for the

bigger-picture reason that Respondents’ cannot even

state valid claims—and in that way send a message to

other courts that in copycat cases, the plaintiffs

repeatedly fail to plead intelligible tort claims. Here,

for

example,

Respondents

say

they

have

misrepresentation claims, but they plead those

14

supposed claims as a public nuisance case while

failing to allege a physical invasion. It’s nonsense. 4

Even if this Court were to entertain such

sleight of hand, it must find that the alleged facts

cannot support a public nuisance claim. The standard

definition of a public nuisance draws its inspiration

from the private law of nuisance. Under § 822 of the

Restatement (Second) of Torts, a private nuisance

holds an actor “liable in an action for damages for a

non-trespassory invasion of another’s interest in the

private use and enjoyment of land”; and § 821B(1)

defines a public nuisance as “an unreasonable

interference with a right common to the general

public.” Throughout the evolution of public nuisance,

courts never included issues of misrepresentation,

concealment, and nondisclosure. The most common

invasions of a public right are blocking rights of ways,

Anonymous, Y.B. Mich., 27 Hen. 8, f. 27, pl. 10 (King’s

Bench 1536), or discharging 100,000 gallons of oil into

public waters, Burgess v. M/V Tamano, 370 F. Supp.

247 (D. Me. 1973). The law has always “used the same

definition of nuisance to cover both public and private

nuisances,” with the former used to reach damage to

4 Just last month, a trial court in South Carolina saw such claims

roughly the same way: “For the reasons below, the Court grants

Defendants’ motions and dismisses Plaintiff’s Complaint with

prejudice. . . . [A]lthough Plaintiff’s claims purport to be about

deception, they are premised on, and seek redress for, the effects

of greenhouse gas emissions.” City of Charleston v. Brabham Oil

Co., 2020-CP-10-03975 (S.C. Ct. of Common Pleas Aug. 6, 2025),

at 2, and cited supra, for a different purpose.

15

the public at large, instead of damages to neighboring

property owners. Richard A. Epstein, The Private Law

Connections to Public Nuisance Law: Some Realism

About Today’s Intellectual Nominalism, 17 J.L. Econ.

& Pol’y 282, 283 (2022).

Respondents do artfully say “invasion,” but

simply to aver that Petitioners’ “fossil fuel activities

would cause and contribute to climate change and

thus cause these invasions of Plaintiff’s property.”

Am. Compl. ¶ 475 (this document is in the Appendix

to Petitioners’ (here) Petition for Order to Show Cause

Pursuant at C.A.C. 21, which they filed at the

Colorado Supreme Court on July 16, 2024, at Ex. 2

p. 192 of 810). Respondents do not say who committed

these alleged invasions or that Petitioners have

released or discharged any greenhouse gas onto

Colorado’s land, air, or waters. Instead, unidentified

third-party users of Petitioners’ products made the

alleged “invasions,” which would have to include

Respondents themselves and Boulder’s residents.

So Respondents invent a new claim that twists

the traditional law of misrepresentation. The

Supreme Court of Hawaii blessed a similar maneuver.

Hawaii, 537 P.3d at 1187. But Respondents pled

vague counts of fraudulent misrepresentation and

fraudulent concealment that have none of the

misrepresentation elements. Once the surplusage is

stripped away, all that stays is a bare assertion that

Petitioners sold products in a lawful and proper

manner.

16

The proceedings below are replete with

references

to

the

misrepresentations

and

concealment. But misrepresentation and concealment

cases start with the proposition that the defendant

has material information that is not known to the

plaintiff, after which the defendant makes a false

statement to the plaintiff or omits to say a relevant

material fact. The plaintiff, to its detriment, then

relies on the false statement or improper omission.

The Restatement explains:

One who fraudulently makes a

misrepresentation of fact, opinion,

intention or law for the purpose of

inducing another to act or to refrain

from acting, is subject to liability for

economic loss caused by the other’s

justifiable

reliance

on

the

misrepresentation.

See Restatement (Third) of Torts: Liability for

Economic Harm § 9. Respondents fail on each

element: to name the full class of proper defendants;

to show causation; and to show justifiable reliance. As

a result, this Court should tell other courts to reject

the statement-based claims as a matter of law.

And before getting into each of those three

failures, it is worth shading them as trial court judge

in Baltimore City did in a related case: “Baltimore

seeks compensatory and punitive damages,

disgorgement of profits, civil penalties under the

17

MCPA, and equitable relief. . . . [But t]he explanation

by Baltimore that it only seeks to address and hold

Defendants

accountable

for

a

deceptive

misinformation campaign is simply a way to get in the

back door what they cannot get in the front door.”

Mayor & City Council of Baltimore v. BP P.L.C., 24-C15-004219 (Circuit Ct. for Baltimore City July 10,

2024), at p. 11 (also available in the appendix filed at

the Maryland Supreme Court in case SCM-REG0011-2025 at p. E.11). Judge Brown’s point is

obviously correct. This Court should consider what’s

really going on around the Nation. Courts cannot

allow plaintiffs like Respondents to manipulate state

tort laws of misrepresentation and nuisance to get

from Petitioners and similarly situated defendants

the same damages as if they were the actual

polluters—all while denying that this has anything to

do with any actual pollution.

A. Respondents lack a proper defendant.

Respondents

single

out

large

energy

defendants, but they do not explain why they picked

these companies from all other fossil fuel producers or

the many dealers and retailers of fossil fuel products

in Colorado. The complaint does not name any false

statement made by Petitioners to Colorado residents

about fossil fuels. It does not explain that any

misstatements or omissions reached Boulder

residents within the relevant time. Nor is this a case

of concealment in the absence of a duty to disclose.

The promotion of oil and gas does not resemble the

18

health claims that tobacco companies made about

their product. They don’t say that Respondents told

the public—through advertisements—about price,

mileage, additives, and services.

Sellers, distributors, and consumers handle,

use, consume, and promote fossil fuel products in

countless goods and services within Colorado without

mentioning carbon dioxide or global warming. And on

Respondents’ theory, the list of other possible

defendants goes far beyond the sellers of fossil fuel

products to include the sellers of cars, trucks, and

airplanes in Colorado and the many companies that

supply natural gas and coal products to Colorado

residents. Respondents continue their own use of

fossil fuels even after they filed this lawsuit, and they

have information on whatever they consider to be the

scope and importance of global warming. Yet

Respondents did not sue themselves.

Under the standard rules of joint and several

liability, the alleged misrepresentations amount to a

tiny fraction of those made by the thousands of firms

that deal in some way with fossil fuels but generate

no emissions. Under the two prevailing rules for

apportioning loss, § 433A of the Restatement (Second)

Torts and the Comprehensive Environmental

Response, Compensation, and Liability Act, 42 U.S.C.

§ 9613(f), there must be a reasonable basis for

division, here by market share, for any fraction of

alleged misrepresentations made. Petitioners’

supposed contributions would be de minimis. On this

19

ground alone, this Court should affirm the trial

courts.

B. There is no materiality or causation.

In every tort case, a plaintiff must show that

the actions attributed to the defendant has caused the

specified harm. But here, the complaint does not do

that. Therefore, Respondents must prove causation by

showing that the alleged misrepresentations satisfy

two conditions.

First, if the requisite misstatements or

omissions had not taken place, there would have been

a lower level of consumption of fossil fuels. And

second, without the increases in fuel-consumption

levels, the alleged local adverse events would have

been reduced or even eliminated.

But how could Respondents here or so many

other copycat plaintiffs maintain their claims when

they and the public at large knew as much or more

about global warming as Petitioners? Respondents do

not meaningfully allege that as to increases in fuelconsumption levels. At most, they say that

Petitioners’ supposed misrepresentations caused

increases “in extreme hot summer days and increases

in minimum nighttime temperatures, precipitation

changes, larger and more frequent wildfires,

increased concentrations of ground-level ozone,

higher transmission of viruses and disease from

insects, altered streamflows, bark beetle outbreaks,

ecosystem damage, forest die-oft reduced snowpack,

20

and drought.” In re Exxonmobil v. Bd. of Cty.

Comm’rs, 2024SA000206 (Colo. July 16, 2024), App.

to Pet. for Order to Show Cause Pursuant to C.A.R.

21, at Ex. 2, pp. 118–19 of 810 (presenting the

Amended Complaint and Jury Demand ¶ 140).

But Respondents cannot satisfy their pleading

burden on tort claims by simply claiming vague

adverse climate effects from temperature increases,

as if this were a poorly pled res ipsa loquitor case. It’s

not. They must allege that increased consumption of

fossil fuels attributable to nonspecific representations

by these Respondents were both material and

sufficient to produce changes in consumption levels.

Then they must allege that these supposed increases

would have produced the necessary temperature

changes to cause the alleged adverse climate events.

Respondents cannot simply plead that the

consequences of all weather-related changes must be

laid at Petitioners’ doorsteps because of their general

marketing activities.

Rightly understood, this supposed causal chain

has missing links. It ignores the sequence of events

that would theoretically—never mind actually—link

Petitioners’ conduct to the possible damages, given

that Petitioners’ fossil fuel sales include coal, natural

gas, and gasoline. These different energy sources are

distributed through different channels. Coal is often

sold to industrial users; natural gas is used for

heating and industrial purposes; gasoline is

commonly sold at automobile service stations.

21

Respondents do not identify the different forms of

improper communications that accompany each

method of distribution, and they cannot show that the

supposed forms of misinformation were material and

sole sources of greenhouse gases information to

whatever hypothetical groups of buyers.

Take, for example, the sale of gasoline at

service stations. If Petitioners had revealed all

allegedly true information about global warming,

Respondents do not explain the difference it would

have made by individual drivers, all of whom have

been bombarded with claims about the dangers of

greenhouse cases for years on end. Consumers might

believe that reducing their individual gasoline

consumption might have only an infinitesimal effect

on global warming. They would then have to balance

this against the major changes in lifestyle that would

occur if they could not drive to work or take their kids

to school.

Those sacrifices would loom too large for

individuals to change major driving habits.

Consumers and consumption levels are far more

responsive to taxes and regulations that immediately

affect prices. Changes in consumer behavior due to

federal regulation of fossil fuels swamp any weak

voluntary responses to new information about

greenhouse gases. The disparate modes of distribution

for coal and natural gas are also heavily subject to

regulation.

It

is

implausible

that

any

communications by Petitioners about their products

22

would influence consumption. The increasing demand

for Respondents’ products in Colorado and worldwide

has a far greater impact on consumption than

anything Respondents supposedly said.

Respondents must also show that other

variables do not account for the alleged environmental

harms. Thus, in the Pacific Palisades, for decades it

has been well understood that rainy seasons would

produce new green growth that would in a following

dry year create kindling for the huge fires that

followed—global temperature changes had nothing to

do with those fires. Instead, “two ‘extraordinarily’ wet

winters in 2023 and 2024 were followed by a dry

period starting in February 2024.” This was well

understood when the fires started. 5

Taking the point further, forest management

policies, rather than greenhouse gasses, surely matter

more than temperature changes with respect to forest

beetle infestations and fires. The extent of chronic

mismanagement can vary widely over time, as shown

by the sharp rise in fires that began when government

strategies shifted from forest management to fire

suppression. Similarly, the deterioration in road

conditions will depend far more on whether cities and

counties have properly kept and salted roads, the

change in the number and weight of cars and trucks,

5 Julia Jacobo, This is the worst fire the Pacific Palisades has ever

seen,

experts

say

(Jan.

10,

https://abcnews.go.com/US/worst-fire-pacific-palisadesexperts/story?id=117507457, last visited July 9, 2025.

2025),

23

and whether any

necessitated repairs.

storms

or

parasites

have

The theory that global consequences attach to

both local sales campaigns and to the alleged

nondisclosure of research activities over the last fifty

or more years creates an open ticket to collect tens of

billions of dollars, not only in Boulder, but also

worldwide. Yet each allegation of an adverse event

claimed to arise from misrepresentation during fossil

fuel sales is both speculative and unsustainable. The

claims of irreversible damage require a detailed and

separate account of each element in the chain of

causation. So given the more stringent pleading

requirements of Bell Atlantic, Co. v. Twombly, 550

U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662

(2009), Respondents failed to explain the direct link

between Petitioners’ supposed statements, which

maybe accompanied the sales of their products, to the

asserted physical damages. But they cannot carry

their pleading burden if they cannot rule out other

well-known causes—poor forest management etc.—

that bring about the same alleged harms produced by

greenhouse gas emissions.

C. Respondents

reliance.

have

no

justifiable

American law distinguishes between speaking

falsely to someone and actively deceiving someone. It

is not possible to deceive a person who knows the true

facts, because that knowledge precludes any

justifiable reliance on the defendant’s statements or

24

omissions. Here, Respondents did not identify anyone

who can show actual reliance on Petitioners’ supposed

misrepresentations. They had to point to a

misrepresentation or concealment by Petitioners

that fossil fuels “do no harm to the environment.”

They offered no explanation as to why these

defendants (Petitioners), among thousands of other

possible parties, including Respondents themselves,

had a unique duty of disclosure to the public. But even

if every statement uttered by Petitioners were false,

Respondents could still not justifiably rely on the

supposed statements about climate change.

Hundreds, if not thousands, of sources proclaim the

threat that greenhouse gases pose to the environment.

Respondents cannot claim that these

defendants withheld critical information about the

effects of greenhouse gases. Intensive public

knowledge and discussion of these issues already

exists. Thus the United Nations’ Intergovernmental

Panel on Climate Change issued a 2021 report in a

press release that had these emphatic words: “Climate

change is widespread, rapid, and intensifying, and

some trends are now irreversible, at least during the

present time frame.” 6 In the same press release, UN

Secretary-General António Guterres declared that the

IPCC’s Working Group’s report was nothing less than

“a code red for humanity.” “The alarm bells are

6 United Nations, IPCC report: ‘Code red’ for human driven

global heating, warns UN chief (Aug. 9, 2021),

https://news.un.org/en/story/2021/08/1097362, last visited July

9, 2025.

25

deafening, and the evidence is irrefutable.” Guterres

continues to call publicly for a fossil fuel ban to avoid

“an escalating crisis.”

Websites such as Carbon Monitor 7 give

exhaustive updates on all issues carbon. Just recently,

James Gustave Speth published his recent book, They

Knew. 8 Mr. Speth has been actively involved in

climate work since his days as a high-level official in

the President Carter Administration. And who is

“they”? It is not Petitioners. No, as the subtitle says it

is “The US Federal Government’s Fifty-Year Role in

Causing the Climate Crisis.”

One can agree or disagree with any of these

studies, but what Respondents cannot show or even

allege is that in this world teeming with information,

Petitioners’ supposed silence has led to changes in

fossil fuel consumption, let alone to changes in

temperature. Every court should take judicial notice

that public statements from a multitude of public and

private sources make it impossible to conceive of

Petitioners or the other similarly situated defendants

nationwide playing a decisive role in the public

creation and transmission of carbon-related

information. Respondents cannot sufficiently allege

that Petitioners by some devious schemes supposedly

7 https://carbonmonitor.org/, last visited July 9, 2025.

https://mitpress.mit.edu/9780262545099/they-knew/,

visited July 9, 2025.

8

last

26

were able to keep the public in the dark.

The law of fraud rests on the rule that a

defendant cannot keep secret private information in

its commercial dealings with others. The minimum

condition to prove a fraud case is asymmetric

information between the two parties. The defendants

must know something that the plaintiffs do not. A

leading illustration is the English case, Derry v. Peek,

L. R. 14 App. Cas. 337 (1889). There, the fatal

misrepresentation was that defendants had “the right

to use steam or mechanical motive power instead of

horses” to run their trams along the public way, even

though they had secured such authorization for only

part of that way. Id. at 347. The concealment of that

vital information hurt the plaintiffs’ investment

prospects. The plaintiffs, who had no independent

source of information, relied on the defendants.

This case raises the opposite prospect. It bears

similarity to the situation condemned nearly 100

years ago by Justice Benjamin Cardozo, in a case

involving financial fraud undetected by accountants,

against imposing “a liability in an indeterminate

amount for an indeterminate time to an

indeterminate class.” Ultramares Corp. v. Touche, 174

N.E. 441, 444 (N.Y. 1931).

Here, Respondents have filed generic

allegations that anyone could repeat virtually

verbatim, with a few name changes, against a broad

universe of defendants. Every producer, user, and

consumer of fossil fuels, and every entity in the supply

27

chain in between, could become the next defendant in

a suit for contributing to energy use, which allegedly

increases greenhouses gases, allegedly raises global

temperatures, and then allegedly causes climate

change, which in turn maybe harms Colorado

somewhere, maybe including Boulder County—along

with every other state in the Union. Hundreds of cities

and counties could bring copycat complaints that

could plunge these defendants, or any of a thousand

other firms, into the same morass. The Court should

take this case and reverse the decisions below, and

should reject such limitless theories of tort liability.

♦

CONCLUSION

For these reasons, the Court should grant the

request for certiorari.

Respectfully submitted,

Ivan L. London

Counsel of Record

William E. Trachman

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

ilondon@mslegal.org

September 11, 2025

Attorneys for Amici Curiae