Respondents Brief — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. County Commissioners of Boulder County, et al.
Supreme Court briefNov 10, 2025
Ask Donna
What actually matters in this document.
Text
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;
CITY OF BOULDER,
Respondents.
On Petition for a Writ of Certiorari to the
Supreme Court of Colorado
BRIEF IN OPPOSITION
Richard L. Herz
Michelle C. Harrison
Alison Borochoff-Porte
EARTHRIGHTS
INTERNATIONAL
1400 K St. NW
Suite 750
Washington, DC 20005
Kevin S. Hannon
SINGLETON SCHREIBER,
LLP
1641 N. Downing St.
Denver, CO 80218
Kevin K. Russell
Counsel of Record
RUSSELL & WOOFTER LLC
1701 Pennsylvania Ave.
NW Suite 200
Washington, DC 20006
(202) 240-8433
kr@russellwoofter.com
Marco Simons
LAW OFFICE OF
MARCO B. SIMONS
6218 Georgia Ave. NW
Suite 1 #594
Washington, DC 20011
QUESTIONS PRESENTED
1. Whether this Court has statutory jurisdiction
to review the interlocutory decision of the Colorado
Supreme Court.
2. Whether this Court has Article III jurisdiction
to review the interlocutory decision of the Colorado
Supreme Court.
3. Whether the Clean Air Act impliedly
preempts the state law tort claims advanced in this
case.
4. Whether the structure of the Constitution
impliedly preempts the state law tort claims advanced
in this case without regard to whether Congress
intended to preempt those claims.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................... i
TABLE OF AUTHORITIES ....................................... iii
BRIEF IN OPPOSITION .............................................1
STATEMENT OF THE CASE .....................................3
REASONS FOR DENYING THE PETITION .............6
I.
This Court lacks statutory jurisdiction to
review the Colorado Supreme Court’s
interlocutory decision. ......................................... 6
A. The fourth Cox exception does not provide
jurisdiction. ..................................................... 7
B. The Court does not have statutory
jurisdiction under Atlantic Richfield. .......... 10
II.
Even if the judgment here were final, the
Court could not reach the merits without
first resolving complex questions of Article
III jurisdiction. ................................................... 13
III. This is not the right time or the right case
for deciding the Question Presented................. 17
IV. Petitioners identify no conflict that
justifies review of this petition.......................... 20
V.
The decision below is correct. ............................ 23
A. The Clean Air Act does not preempt
respondents’ claims. ..................................... 23
B. The structure of the Constitution does not
preempt respondents’ claims. ...................... 29
C. Respondents’ claims are not barred by
“foreign-policy principles.” ........................... 34
CONCLUSION............................................................36
iii
TABLE OF AUTHORITIES
Cases
Am. Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003) ............................................... 35
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997) ............................................... 34
Am. Elec. Power Co., Inc. v. Connecticut,
564 U.S. 410 (2011) .................... 1-2, 13, 14, 16, 21,
23, 24, 25, 30, 32
ASARCO Inc. v. Kadish,
490 U.S. 605 (1989) .......................................... 13-16
Atl. Richfield Co. v. Christian,
590 U.S. 1 (2020) ................................. 10, 13, 15, 31
Bd. of Cnty. Comm’rs of Boulder Cnty. v.
Suncor Energy (U.S.A.), Inc.,
25 F.4th 1238 (10th Cir. 2022) ....................... 3-4, 25
Bonaparte v. Tax Ct.,
104 U.S. 592 (1881) ............................................... 32
Bostwick v. Brinkerhoff,
106 U.S. 3 (1882) ..................................................... 7
Buckman Comm. v. Plaintiffs’ Legal Committee,
531 U.S. 341 (2001) ............................................... 24
City of Milwaukee v. Illinois (Milwaukee II),
451 U.S. 304 (1981) ......................................... 25, 30
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021) .......... 2, 18, 20-23, 25, 31
Clark v. Allen,
331 U.S. 503 (1947) ............................................... 34
iv
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ............................. 7, 8, 9, 10, 13
Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938) ................................................. 29
Fisher v. Dist. Ct. of Sixteenth Jud.
Dist. of Mont.,
424 U.S. 382 (1976) ............................................... 10
Flynt v. Ohio,
451 U.S. 619 (1981) ................................................. 8
Franchise Tax Bd. v. Hyatt,
587 U.S. 230 (2019) ............................................... 32
Fuld v. Palestine Liberation Org.,
606 U.S. 1 (2025) ................................................... 32
Harrington v. Purdue Pharma L.P.,
603 U.S. 204 (2024) ............................................... 34
Illinois v. City of Milwaukee,
731 F.2d 403 (7th Cir. 1984) ................................. 21
In re 2015-2016 Jefferson Cty. Grand Jury,
410 P.3d 53 (Colo. 2018) ........................................ 13
In re Summers,
325 U.S. 561 (1945) ............................................... 12
Int’l Paper Co. v. Ouellette,
479 U.S. 481 (1987) ............................. 23, 24, 26, 30
Kansas v. Garcia,
589 U.S. 191, 202 (2020) ........................... 28, 33, 35
Keeton v. Hustler Magazine, Inc.,
465 U.S. 770 (1984) ............................................... 34
Leonhart v. Dist. Ct. of 13th Jud. Dist.,
329 P.2d 781 (Colo. 1958) ...................................... 11
v
Mayor & City Council of Baltimore v. BP p.l.c.,
No. 11, Sept. Term 2025 (Md.) .............................. 16
Medellín v. Texas,
552 U.S. 491 (2008) ............................................... 35
Nat’l Pork Producers Council v. Ross,
598 U.S. 356 (2023) ............................................... 33
Nike, Inc. v. Kasky,
539 U.S. 654 (2003) ..................................... 2, 15, 16
North Carolina ex rel. Cooper v. TVA,
615 F.3d 291 (4th Cir. 2010) ................................. 21
O’Melveny & Myers v. FDIC,
512 U.S. 79 (1994) ................................................. 28
P.R. Dep’t of Consumer Affs. v.
Isla Petroleum Corp.,
485 U.S. 495 (1988) ............................................... 33
People ex rel. Gallagher v.
Dist. Ct. for Cnty. of Arapahoe,
933 P.2d 583 (Colo. 1997) ...................................... 12
People v. Cortes-Gonzalez,
506 P.3d 835 (Colo. 2022) ...................................... 13
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947) ............................................... 23
Ronquillo v. EcoClean Home Servs., Inc.,
500 P.3d 1130 (Colo. 2021) .................................... 13
Shell PLC v. City & County of Honolulu,
145 S. Ct. 1111 (2025) ............................................. 1
Southland Corp. v. Keating,
465 U.S. 1 (1984) ..................................................... 9
vi
State ex rel. Jennings v. BP Am., Inc.,
No. N20C-09-097, 2024 WL 98888
(Del. Super. Ct. Jan. 9, 2024) .................................. 9
Sunoco LP v. City & County of Honolulu,
145 S. Ct. 1111 (2025) ............................................. 1
Tex. Indus., Inc. v. Radcliff Materials, Inc.,
451 U.S. 630 (1981) ............................................... 32
United States v. Bevans,
16 U.S. 336 (1818) ................................................. 32
United States v. Hawaii,
Civ. No. 25-179 (D. Haw. Apr. 30, 2025) .............. 17
United States v. Locke,
529 U.S. 89 (2000) ................................................. 24
United States v. Michigan,
Civ. No. 25-496 (W.D. Mich. Apr. 30, 2025) ......... 17
Virginia Uranium, Inc. v. Warren,
587 U.S. 761 (2019) ............................. 26, 27, 32, 35
Wheeler v. N. Colo. Irrigation Co.,
11 P. 103 (Colo. 1886) ............................................ 11
Young v. Masci,
289 U.S. 253 (1933) ............................................... 33
Constitutional Provisions
Colo. Const. art. VI, § 3 ............................................ 11
Colo. Const. art. VI, § 2 .......................... 10, 11, 12, 30
U.S. Const. art. I, § 8 ................................................ 30
U.S. Const. art. VI, cl. 2 ............................................ 35
vii
Statutes and Rules
28 U.S.C. § 1257(a) ............................................... 6, 15
Clean Air Act,
42 U.S.C. § 7401-7626 ...................... 1, 4, 5, 6, 8, 18,
19, 22, 23, 26, 28, 29
Colo. App. R. 21 ............................................. 11, 12, 13
Colo. Rev. Stat. § 18-1-405(6)(b)............................... 13
Other Authorities
90 Fed. Reg. at 36325 ............................................... 19
Margaret Barry, Climate Deception Cases
Abound: They Aren’t All the Same,
https://blogs.law.columbia.edu/
climatechange/2025/11/05/climate-deceptioncases-abound-they-arent-all-the-same/ ................ 21
Editorial Board, Trump’s Biggest Climate
Decision, Wall St. J. (Mar. 13, 2025, 5:24 PM),
https://www.wsj.com/opinion/trumps-biggestclimate-decision-81c4e067..................................... 19
Exec. Order No. 14,260,
70 Fed. Reg. 15513, 15514 (Apr. 8, 2025) ............. 19
Letter from Mike Hilgers, Nebraska Attorney
General, and fifteen other Attorneys General
to Pamela Bondi, United States Attorney
General, 3-4 (June 12, 2025),
https://www.ag.ky.gov/Press%20Release%20At
tachments/Letter%20to%20Dep%27t%20of%2
0Justice%20on%20Energy%20Actions%20%28
corrected%29.pdf ................................................... 19
viii
Reconsideration of 2009 Endangerment Finding
and Greenhouse Gas Vehicle Standards
§ IV.A.2, 90 Fed. Reg. 36288, 36299 (proposed
Aug. 1, 2025) .......................................................... 19
BRIEF IN OPPOSITION
Petitioners ask this Court to grant certiorari to
review the interlocutory decision of a state supreme
court in order to consider the latest version of their
ever-evolving and mutually inconsistent preemption
theories. At one time, petitioners insisted that
respondents’ state-law claims were unavailable
because they were really federal common law claims
in disguise and had been eliminated when Congress
displaced that federal common law with the Clean Air
Act, 42 U.S.C. § 7401-7626. Then they argued that
even if the suit really brought state law claims, those
claims were preempted by federal common law, even
though that common law had been displaced by a
federal statute. Now, their principal argument is that
none of this matters because respondents’ claims are
impliedly preempted by the “structure of our
constitutional system” itself. Pet. 2. No appellate
court has accepted that argument. And this Court
denied review of that theory earlier this year at the
urging of the United States. See Sunoco LP v. City &
County of Honolulu, 145 S. Ct. 1111 (2025) (No. 23947); Shell PLC v. City & County of Honolulu, 145 S.
Ct. 1111 (2025) (No. 23-952). The Court should do the
same here.
As in the recent Honolulu case, granting
interlocutory review would require the Court to wade
into a thicket of preliminary questions that promise
nothing but rabbit holes and dead ends. In addition to
the same statutory jurisdictional problem presented in
Honolulu, the Court would confront complex questions
of Article III jurisdiction that left the Court
deadlocked in one prior case and caused another to be
dismissed as improvidently granted. See Am. Elec.
2
Power Co., Inc. v. Connecticut, 564 U.S. 410, 420
(2011); Nike, Inc. v. Kasky, 539 U.S. 654, 661 (2003)
(Stevens J., concurring in dismissal).
On the merits, petitioners’ novel constitutional
theory would vest judges—not legislators—with broad
authority to decide in which policy areas “federal law
must govern,” and which subjects the states can be
trusted to address. Pet. 5 (citation omitted). That
would invert our constitutional order. There is no
constitutional bar to states addressing in-state harms
caused by out-of-state conduct, be it the negligent
design of an automobile or sale of asbestos. While
federal courts may sometimes decide that certain
subjects are better addressed by a uniform rule of
federal common law, that policy decision has always
been subject to displacement by Congress. And when,
as here, Congress retakes the legislative reins,
preemption is a question of congressional intent,
discerned through this Court’s ordinary preemption
doctrine.
There is no circuit conflict over petitioners’ theory
of preemption by “constitutional structure.” Instead,
petitioners attempt to get their foot in the door to press
that novel theory by pointing to an alleged conflict
with the Second Circuit over a different question—i.e.,
whether federal common law itself, although now
displaced by statute, continues to preempt certain
claims relating to climate alteration unless Congress
expressly revives state law. See Pet. 13 (citing City of
New York v. Chevron Corp., 993 F.3d 81 (2d Cir.
2021)). Petitioners barely attempt to defend the
Second Circuit rule, which is both wrong and
irreconcilable with petitioners’ claim that “our federal
system does not permit” such controversies “to be
3
resolved under state law.” Pet. 4-5 (citation omitted).
The Court should reject petitioners’ attempt to
leverage an alleged conflict on a different preemption
question to force a decision on a constitutional theory
they have yet to convince any appellate court to adopt.
STATEMENT OF THE CASE
1. Respondents, a Colorado county and
municipality, brought this action in state court,
seeking to require petitioners to share a portion of the
financial burden their communities must bear in
coping with an altered climate brought about in part
by petitioners’ tortious conduct. See Pet. App. 2a-3a.
As relevant here, the complaint includes claims for
public and private nuisance, unjust enrichment,
trespass, and civil conspiracy. See id. 1a-2a. Those
claims are based on two distinct theories of liability.
First, respondents allege that “through their
advertising,
[petitioners]
have
for
decades
intentionally misled the public about the impacts of
climate change and the role that [petitioners’] fossil
fuel products have played in exacerbating those
impacts.” Id. 3a. Second, respondents further allege
that petitioners “knowingly caused and contributed to
the alteration of the climate by producing, promoting,
refining, marketing and selling fossil fuels at levels
that have caused and continue to cause climate
change.” Id. 2a. Respondents do not “seek to enjoin
any oil and gas operations or sales” or “seek to enforce
emissions controls of any kind.” Id. 4a. Instead, they
seek damages for the in-state harm caused by
petitioners’ torts.
Petitioners initially attempted to remove the case
to federal court, insisting that the asserted state-law
torts “arise under federal common law.” Bd. of Cnty.
4
Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.),
Inc., 25 F.4th 1238, 1254 (10th Cir. 2022). The Tenth
Circuit rejected that theory, remanding the case to
state court. See id. at 1246. Petitioners sought review
in this Court, arguing again that “federal common law
necessarily and exclusively governs” respondents’
claims. Pet. 23-24, Suncor Energy (U.S.A.) Inc. v. Bd.
of Cnty. Comm’rs of Boulder Cnty., No. 21-1550 (2022).
The Court denied the petition after calling for the
views of the United States, see 143 S. Ct. 78 (2022) (No.
21-1550), with Justice Kavanaugh dissenting from the
denial of certiorari and Justice Alito recusing, see 143
S. Ct. 1795 (2023) (No. 21-1550).
2. Back in state court, petitioners moved to
dismiss, raising a host of state and federal defenses.
After rejecting several defendants’ personal
jurisdiction objections, see Pet. App. 56a-87a, the state
trial court considered whether respondents’ claims
were preempted. In line with their removal theory,
petitioners argued that respondents’ “claims are based
on federal common law” and “must be dismissed”
because that federal common law was “displaced by
federal legislation.” Id. 92a. They also argued that
even if respondents brought truly state-law claims,
“federal common law survives” its displacement by the
Clean Air Act “with enough force to preempt state
common law claims involving interstate air pollution.”
Id. 95a. The trial court rejected both assertions. See
id. 92a-99a.
The trial court was also unpersuaded by
petitioners’ argument that “the displacement of
federal common law shifts the burden to the party
contesting preemption,” such that “the test is whether
the [Clean Air Act] specifically preserves the
5
particular type of state law claim at issue.” Id. 100a
(citation omitted). Instead, the trial court applied this
Court’s traditional preemption analysis and concluded
that the Act did not preempt respondents’ claims. Id.
99a-108a.
The trial court then rejected petitioners’ defenses
under the “federal foreign affairs power” (id. 108a09a), “separation of powers” (id. 109a-10a), the
Commerce Clause (id. 111a-12a), the Due Process
Clause (id. 112a-13a), and the First Amendment (id.
113a-15a).
3. Petitioner Exxon Mobil petitioned the Colorado
Supreme Court for discretionary interlocutory review
of the district court’s rejection of its personal
jurisdiction and preemption defenses. See Exxon Pet.
5. The court granted review of the preemption
question and affirmed. See Pet. App. 1a-2a, 7a-8a.
Like the district court, the Colorado Supreme
Court
rejected
petitioners’
contention
that
respondents’ claims were preempted because they
“assert what were formerly federal common law
claims.” Pet. App. 16a. The court further disagreed
with petitioner’s contention that “federal common
law . . . continue[d] to operate to bar” respondents’
claims even after displacement by the Clean Air Act.
Ibid.
The Colorado Supreme Court then turned aside
petitioners’ argument that “state law claims
previously preempted by federal common law may
proceed only to the extent authorized by federal
statute.” Id. 18a-20a. Instead, like the trial court,
the Colorado Supreme Court applied this Court’s
established preemption rules to conclude that
respondents’ suit was not field or conflict preempted
6
by the Clean Air Act. See id. 20a-22a. Among other
things, the Colorado Supreme Court recognized that
respondents’ suit was not “an attempt to regulate
[greenhouse gas] emissions,” but rather turned on
petitioners’ deceptive conduct and “upstream
production activities,” conduct the federal statute
“does not address.” Id. 20a-21a.
Finally, petitioners’ foreign affairs defense failed
because they did not “identify any express foreign
policy of the federal government that conflicts with
state tort law” or explain how respondents’ “claims
pose an obstacle to our federal government’s dealings
with any foreign nation.” Id. 22a (citation omitted);
see id. 22a-24a.
REASONS FOR DENYING THE PETITION
Petitioners ask this Court to decide the same
question it declined to consider earlier this year in
Honolulu. There is no reason for a different result
now. As in Honolulu, multiple difficult jurisdictional
questions stand between this Court and petitioners’
Question Presented. Nor is there any circuit conflict
on that question that warrants this Court’s immediate
attention.
Indeed, petitioners’ principal merits
argument has not been accepted by any appellate
court. Moreover, this case presents a poor vehicle for
considering petitioners’ constantly evolving theories of
preemption. And none of those theories has merit in
any event.
I.
This Court Lacks Statutory Jurisdiction To
Review The Colorado Supreme Court’s
Interlocutory Decision.
Under 28 U.S.C. § 1257(a), this Court has
jurisdiction to review only the “[f]inal judgments” of
7
state courts.
From the outset, this Court has
understood that phrase to encompass only judgments
that “terminate the litigation between the parties on
the merits of the case,” not decisions that merely
resolve a federal question in an interlocutory appeal.
Bostwick v. Brinkerhoff, 106 U.S. 3, 3 (1882). The
Colorado Supreme Court’s decision does not satisfy
this requirement.
A. The Fourth Cox Exception Does Not
Provide Jurisdiction.
Petitioners do not claim that the judgment here is
“final” in the traditional sense. Instead, they invoke
the fourth exception to the final judgment rule
recognized in Cox Broadcasting Corp. v. Cohn, 420
U.S. 469, 482-83 (1975). See Pet. 32. That exception
applies when: (1) “the federal issue has been finally
decided in the state courts with further proceedings
pending in which the party seeking review here might
prevail on the merits on nonfederal grounds, thus
rendering unnecessary review of the federal issue by
this Court”; (2) “reversal of the state court on the
federal issue would be preclusive of any further
litigation on the relevant cause of action”; and (3) “a
refusal immediately to review the state court decision
might seriously erode federal policy.” Cox, 420 U.S. at
482-83.
1. In Honolulu, the United States explained why
none of these requirements is met in a case like this.
See U.S. Honolulu Br. 8-11. Although the United
States’ present brief backtracks on other positions the
Government took in Honolulu, the brief notably does
not support petitioner’s Cox arguments. See U.S. Br.
12. That makes sense: it is clear that none of the
requirements for the fourth Cox exception is met here.
8
First, this is not a case in which further
proceedings present only the possibility that
petitioners “might prevail on the merits on nonfederal
grounds.” Cox, 420 U.S. at 482 (emphasis added). As
the United States explained in Honolulu, “this Court
‘observed in Cox that in most, if not all, of the cases
falling within the four exceptions, not only was there
a final judgment on the federal issue for purposes of
state-court proceedings, but also there were no other
federal issues to be resolved.’” U.S. Honolulu Br. 9
(quoting Flynt v. Ohio, 451 U.S. 619, 621 (1981) (per
curiam)).
Here, as in Honolulu, petitioners have raised a
host of other federal defenses on which they could yet
prevail. See supra p. 5. Granting immediate review of
one of several federal questions in the case risks the
kind of piecemeal appeals the final judgment rule was
enacted to avoid.
Second, “reversal of the state court on the federal
issue” would not be “preclusive of any further
litigation on the relevant cause of action.” Cox, 420
U.S. at 482-83. In Honolulu, the United States
explained that “[e]ven under [the defendants’] own
theory,” the plaintiffs’ claims would be preempted
“only to the extent those claims ‘seek to apply state law
extraterritorially
to
regulate
transboundary
pollution.’” U.S. Br. 9 (quoting Honolulu Cert. Reply
Br. 1). Accordingly, even if the Honolulu defendants
had prevailed in this Court, the plaintiffs would not
have been “precluded from pursuing claims involving
in-state deceptive practices or in-state pollution.”
Ibid.
Again, the same is true here. Petitioners argue
that the Clean Air Act and the Constitution prohibit
9
only claims for “injuries allegedly caused by pollution
emanating from outside the State.” Pet. 2. Even if
accepted, that argument would not prevent this suit
from continuing on the basis of deception, or for harms
from in-state conduct. Cf. State ex rel. Jennings v. BP
Am., Inc., No. N20C-09-097, 2024 WL 98888, at *9, *11
(Del. Super. Ct. Jan. 9, 2024) (dismissing as
preempted claims based on injuries arising from outof-state emissions, but permitting claims for injuries
“resulting from air pollution originating from sources
in Delaware”).
Third, denying immediate review would not
“seriously erode federal policy.” Cox, 420 U.S. at 483.
The question is not whether federal policy would be
eroded by a final judgment in respondents’ favor; it is
whether “a refusal immediately to review the state
court decision” would have that effect, ibid. (emphasis
added), as when a state court refuses to enforce an
arbitration agreement, see Southland Corp. v.
Keating, 465 U.S. 1, 7 (1984). Here, petitioners
identify no federal policy that is violated by simply
requiring them to await final judgment to seek this
Court’s review of their preemption arguments,
assuming the question even matters at that point. See
U.S. Honolulu Br. 10-11.
2. Even if it applied, the fourth Cox exception
should be overruled. Cox does not pretend that cases
falling within the fourth exception can plausibly be
described as “final” within any normal or historic
sense of the term. Instead, Cox pointed to the
“pragmatic approach” the Court had sometimes taken
to construing the limits on its jurisdiction, mostly in
cases from the 1960s and 1970s. 420 U.S. at 486; see
id. at 483-84. But the fourth exception is “pragmatic”
10
only in the sense of providing policy justifications for
simply refusing to adhere to the statute’s plain text
and historic meaning. See id. at 484-85 (explaining
that exception applied where “it would be intolerable
to leave unanswered” the question addressed in a nonfinal state court decision). In doing so, the exception
sweeps aside the principles of federalism and judicial
restraint at the core of Congress’s final judgment rule.
See id. at 502-05 (Rehnquist, J., dissenting). Rather
than extend the exception to apply here, the Court
should repudiate it.
B. The Court Does Not Have Statutory
Jurisdiction Under Atlantic Richfield.
Having declined to support petitioner’s Cox
theory, the United States advances an argument that
petitioners in turn forgo: that the decision below was
final because it supposedly resolved a “self-contained
case, not an interlocutory appeal.” U.S. Br. 10
(quoting Atl. Richfield Co. v. Christian, 590 U.S. 1, 12
(2020)). That argument has no merit either.
In Atlantic Richfield, this Court found jurisdiction
to review a Montana Supreme Court decision issued
on a “writ of supervisory control” because Montana
law treats such cases as “self-contained” original
proceedings, not interlocutory appeals. 590 U.S. at 12
(citing Fisher v. Dist. Ct. of Sixteenth Jud. Dist. of
Mont., 424 U.S. 382, 385 n.7 (1976) (per curiam)).
That conclusion rested on Montana’s constitution,
which grants the supreme court original jurisdiction
over such writs. See Fisher, 424 U.S. at 385 n.7.
Colorado is different. In that state, the supreme
court’s supervisory control over the lower courts is
conferred by Section 2 of Article VI of the Colorado
constitution. See Colo. Const. art. VI, § 2(1). Section
11
2 is entitled “Appellate jurisdiction” and provides that
the “supreme court, except as otherwise provided in
this constitution, shall have appellate jurisdiction
only . . . and shall have a general superintending
control over all inferior courts.” Ibid. The Colorado
Supreme Court’s original jurisdiction, in contrast, is
created in Section 3 (entitled “Original jurisdiction”)
and is limited to issuing certain prerogative writs that
petitioners neither sought nor would qualify for in this
case. See id. art. VI, § 3; Exxon Colo. Pet. 5-6; Colo.
App. R. 21(e)(1); U.S. Br. 7, 11 (recognizing state court
was exercising “general superintending authority” in
this case).1
To be sure, the Colorado Supreme Court’s opinion
referred to exercising “original jurisdiction under CAR
21.” Pet. App. 7a-8a. That shorthand is consistent
1
Section 3 grants the Colorado Supreme Court original
jurisdiction to “issue writs of habeas corpus, mandamus, quo
warranto, certiorari, injunction, and such other original and
remedial writs as may be provided by rule of court.” Colo. Const.
art. 6, § 3. Early on, the Colorado Supreme Court held that these
writs are not available for general supervision of lower courts, but
rather only in “cases involv[ing] questions of publici juris,” such
as “where the interest of the state at large is directly involved;
where its sovereignty is violated, or the liberty of its citizens
menaced; where the usurpation or the illegal use of its
prerogatives or franchises is the principal, and not a collateral,
question.” Wheeler v. N. Colo. Irrigation Co., 11 P. 103, 105 (Colo.
1886); see also id. at 104 (explaining that original jurisdiction
need not extend further because the “appellate jurisdiction and
the superintending control . . . carries with it authority to issue
all writs appropriately connected with the proper performance of
the duties imposed”); Leonhart v. Dist. Ct. of 13th Jud. Dist., 329
P.2d 781, 783 (Colo. 1958) (discussing limitations on original
writs of prohibition).
12
with the title of that Rule, which is an artifact of the
time of its enactment, when the Rule covered only
original jurisdiction cases. See Colo. App. R. 21 (1998).
But the current rule now also governs “the exercise of
the supreme court’s general superintending authority
over all courts as provided in Section 2 of Article VI of
the Colorado Constitution,” Colo. App. R. 21 (2025),
which, as discussed, defines the court’s appellate
jurisdiction. Particularly because the precise nature
of the Colorado Supreme Court’s jurisdiction made no
difference in this case (it almost never does), the label
cannot be given controlling significance for purposes of
this Court’s jurisdiction. See In re Summers, 325 U.S.
561, 567 (1945).
This proceeding also bears other markings of a
discretionary, interlocutory appeal. The Colorado
Supreme Court reviewed denial of a motion to dismiss,
see Pet. App. 1a-2a, a quintessential question for
interlocutory appeal. The court further decided that
question de novo, without the heightened standard
typical in original litigation seeking collateral writs.
See id. 8a. The decision furthermore ended in a
“remand . . . to the district court for further
proceedings consistent with this opinion,” as one
would expect from any other discretionary
interlocutory appeal—a “remand” makes no sense if
the proceeding were distinct from the underlying
litigation. Id. 24a.
The Colorado Supreme Court also treats Rule 21
proceedings as interlocutory appeals in other settings.
See People ex rel. Gallagher v. Dist. Ct. for Cnty. of
Arapahoe, 933 P.2d 583, 592 (Colo. 1997) (en banc)
(holding Rule 21 proceedings “qualify for interlocutory
13
appeal treatment” under the state speedy trial act,
which excludes “[d]elay occasioned by an interlocutory
appeal brought in good faith”) (citing Colo. Rev. Stat.
§ 18-1-405(6)(b)); see also, e.g., People v. CortesGonzalez, 506 P.3d 835, 839 (Colo. 2022) (referring to
Rule 21 proceeding as “interlocutory appeal”);
Ronquillo v. EcoClean Home Servs., Inc., 500 P.3d
1130, 1132 (Colo. 2021) (same); In re 2015-2016
Jefferson Cty. Grand Jury, 410 P.3d 53, 57 n.4 (Colo.
2018) (same).
II. Even If The Judgment Here Were Final, The
Court Could Not Reach The Merits Without
First Resolving Complex Questions Of
Article III Jurisdiction.
Even if this Court found that it had statutory
jurisdiction under Cox or Atlantic Richfield, it would
still be confronted with the complicated question
whether it has Article III jurisdiction to consider this
case at this time.
This Court, of course, may consider only cases
involving an Article III case or controversy. See
ASARCO Inc. v. Kadish, 490 U.S. 605, 611 (1989).
Article III jurisdiction to review the decision in this
case would exist only if (1) respondents would have
had Article III standing to bring this suit in federal
court in the first instance, or (2) the Colorado Supreme
Court’s refusal to dismiss the case inflicted an Article
III injury on petitioners. See id. at 612. Granting the
petition would require the Court to decide one or both
questions, neither of which is straightforward.
In American Electric Power Co., Inc. v.
Connecticut (AEP), 564 U.S. 410, 420 (2011), this
Court deadlocked over whether the federal courts have
Article III jurisdiction to consider a suit for public
14
nuisance arising from climate-change injuries. Id. at
415, 420. The Court explained that “[f]our members of
the Court . . . would hold that none of the plaintiffs
have Article III standing,” while four others would
have found constitutional standing established. AEP,
564 U.S. at 420.2
Any Justice who concluded that respondents could
not have brought this case in federal court would then
have to decide whether there is nonetheless Article III
jurisdiction to review the decision in this case based on
some injury inflicted on petitioners by the Colorado
Supreme Court’s refusal to order the case dismissed
on the pleadings. This Court addressed that theory of
jurisdiction in ASARCO, where it held that a state
supreme court’s “final judgment altering tangible legal
rights” can inflict an Article III injury sufficient to
support review in this Court even if federal courts
could not have entertained the suit initially. 490 U.S.
at 619.
That theory, however, does not apply in this case.
The Colorado Supreme Court merely declined to
reverse denial of a motion to dismiss—a decision that
had no more effect on petitioners’ “tangible legal
rights” than if the court had denied interlocutory
review altogether. Whether petitioners will ever
suffer any alteration of their “tangible legal rights” is
entirely speculative at this point. See supra p. 5
2
Petitioners did not ask the Colorado Supreme Court to rule
on respondents’ standing under state law, which is more
capacious than Article III in any event, see Pet. App. 115a
(“Colorado plaintiffs benefit from relatively broad individual
standing.”) (citation omitted).
15
(describing
petitioners’
alternative defenses).
multiple
unreviewed
Importantly, this Article III question is
independent of whether the judgment is “final” within
the meaning of 28 U.S.C. § 1257(a). For example, even
if this Court held that the Colorado Supreme Court’s
decision finally resolved a self-contained proceeding
under Atlantic Richfield, there would still be no
argument that the final judgment in that collateral
proceeding altered petitioners’ legal rights sufficient
to create an Article III injury for this Court to redress.
The Court confronted a similar circumstance in
Nike, Inc. v. Kasky, 539 U.S. 654 (2003). There, a state
supreme court refused to dismiss state law claims on
federal grounds, then remanded for further
proceedings. Id. at 657 (Stevens, J., concurring). After
this Court granted certiorari, much of the briefing and
argument centered on whether the Court had
jurisdiction to reach the merits, given that the suit was
brought by plaintiffs with only a marginal interest in
the subject matter, using a California “private
attorney general” statute. See id. at 661 (Stevens, J.,
concurring). After oral argument, the Court dismissed
the writ of certiorari as improvidently granted. Id. at
655. Justice Stevens explained that the plaintiff
would not have had Article III standing to bring the
suit in federal court, given that he “failed to allege any
injury to himself.” Id. at 661. Moreover, “[u]nlike
ASARCO, in which the state-court proceedings ended
in a declaratory judgment invalidating a state law, no
‘final judgment altering tangible legal rights’ ha[d]
been entered.” Id. at 662. “Rather, the California
Supreme Court merely held that respondent’s
complaint was sufficient to survive Nike’s demurrer
16
and to allow the case to go forward.” Ibid. “To apply
ASARCO to this case,” Justice Stevens explained,
“would effect a drastic expansion of ASARCO’s
reasoning, extending it to cover an interlocutory ruling
that merely allows a trial to proceed.” Ibid. (footnote
omitted).
Any Justice who concluded that this case could not
have been brought in an Article III court would have
to decide whether to embrace the extension of
ASARCO Justice Stevens rejected, and the Court
avoided, in Nike. And unless a majority of the Court
found both Article III jurisdiction and statutory
jurisdiction to review the decision below, the Court
would not reach petitioners’ Question Presented.3
*
*
*
Even if the Court believed that the Question
Presented might warrant review in an appropriate
case, there is no need to confront these vexing
jurisdictional issues to do so.
As petitioners
emphasize, a number of similar cases are working
their way through the state and federal systems. See
Pet. 7. For example, the Supreme Court of Maryland
recently heard argument in an appeal from dismissal
of a similar suit. See Pet. 20 (citing Mayor & City
Council of Baltimore v. BP p.l.c., No. 11, Sept. Term
2025 (Md.)). Should that court affirm the dismissal,
any resulting petition would arise from an
3
Any recusals in this case could create the possibility of the
Court evenly dividing on jurisdiction, as in AEP. In that case, the
Court was nonetheless able to proceed to the merits because its
even division resulted in affirmance of the lower court’s holding
that there was Article III jurisdiction. 564 U.S. at 420. But here,
the Colorado Supreme Court made no Article III determination
this Court could affirm. See supra n.2.
17
indisputably final judgment, removing at least that
complicating factor from the case. Moreover, the
United States itself is presently litigating the same
preemption theories in affirmative cases against
Hawaii and Michigan in federal court. See Pet. 21
(citing United States v. Michigan, Civ. No. 25-496
(W.D. Mich. Apr. 30, 2025) and United States v.
Hawaii, Civ. No. 25-179 (D. Haw. Apr. 30, 2025)).
That litigation does not present the kind of standing
question arising here.
III. This Is Not The Right Time Or The Right
Case For Deciding The Question Presented.
There are also several other reasons to await a
better time and case before addressing any
preemption questions that may warrant review in this
context.
1. Even aside from the jurisdictional implications,
the interlocutory posture of the case counsels against
review in this case at this time. See U.S. Honolulu Br.
11. Petitioners have raised multiple state and federal
defenses that may moot any need for this Court’s
review.
Further proceedings could also clarify
whether Colorado law recognizes torts based only on
deceptive marketing or also on broader conduct
knowingly contributing to climate alteration—a
distinction that may affect the preemption analysis.
See id. 16-17. Additionally, future choice-of-law
determinations may affect whether respondents’
claims will be governed uniformly by Colorado law or
by the law of the jurisdictions where products were
marketed or caused emissions, which may also be
relevant to preemption. See id. 18.
2. The Court would also benefit from further
percolation of petitioners’ constantly evolving theory
18
of preemption, the present incarnation of which
received limited briefing and consideration below.
Until recently, petitioners’ principal argument
was that the alleged state law torts were “necessarily
and exclusively federal common law claims” and
should be dismissed because that federal common law
had been displaced by the Clean Air Act. See supra p.
4 (quoting prior certiorari petition); see also Motion to
Dismiss §IV.A (heading: “Plaintiffs Claims Should Be
Dismissed Under Federal Common Law”); Pet. App.
16a. Then, after the Second Circuit’s decision in City
of New York v. Chevron Corp., 993 F.3d 81 (2d Cir.
2021), petitioners began arguing that even if
respondents raised truly state-law claims, those
claims extinguished by federal common law and not
revived by the Clean Air Act. See Pet. App. 18a-20a.
In their current petition, petitioners and the
United States focus on yet a third, even more recent
and less tested, variation: that the federal
Constitution itself preempts the claims because “the
structure of our constitutional system does not permit
a State to provide relief under state law for injuries
allegedly caused by” climate alteration, regardless of
the existence of any federal common law or statute.
Pet. 2. This theory appeared for the first time in
petitioners’ reply brief in the Colorado Supreme
Court,4 and received limited attention as a result, see
Pet. App. 17a-18a. For that reason, and because no
other appellate court has considered this novel
argument, see infra pp. 20-22, further percolation is
warranted.
4
Compare Exxon Pet. 27-37 with Exxon Pet. Reply 2, 4-6, 18.
19
3. Finally,
legislative
and
regulatory
developments may eliminate the need to address the
Question Presented or materially change the analysis.
Earlier this year, the President issued an
executive order directing the Department of Justice to
“recommend any . . . legislative action necessary to
stop” climate-alteration litigation. Exec. Order No.
14,260, 70 Fed. Reg. 15513, 15514 (Apr. 8, 2025).
Sixteen state attorneys general have since urged the
Department to propose a legislative “liability shield”
to end these cases.5
Meanwhile, in August, the EPA proposed
repealing its regulation of greenhouse gases on the
theory that it lacks statutory authority to regulate
those emissions.
See Reconsideration of 2009
Endangerment Finding and Greenhouse Gas Vehicle
Standards § IV.A.2, 90 Fed. Reg. 36288, 36299
(proposed Aug. 1, 2025). The EPA recognized that this
could significantly affect the preemption arguments
raised in this case, soliciting “comment on the
continued preemptive effect of the [Clean Air Act] in
the event that the EPA finalizes the proposed
rescission or otherwise concludes that it lacks
authority to regulate [greenhouse gas] emissions.” 90
Fed. Reg. at 36325; see also, e.g., Editorial Board,
Trump’s Biggest Climate Decision, Wall St. J. (Mar.
13, 2025, 5:24 PM), https://www.wsj.com/opinion/
trumps-biggest-climate-decision-81c4e067
(“Some
5
Letter from Mike Hilgers, Nebraska Attorney General, and
fifteen other Attorneys General to Pamela Bondi, United States
Attorney
General,
3-4
(June
12,
2025),
https://www.ag.ky.gov/Press%20Release%20Attachments/Letter
%20to%20Dep%27t%20of%20Justice%20on%20Energy%20Actio
ns%20%28corrected%29.pdf.
20
energy companies warn that withdrawing the
endangerment finding could make [fossil fuel
companies] vulnerable to lawsuits by states and
localities alleging that their emissions cause a public
nuisance by contributing to climate change.”).6 Were
the EPA to finalize its proposed rule after this Court
rendered a decision in this case, questions would arise
whether the Court’s disposition remained good law in
the aftermath of any regulatory change.
IV. Petitioners Identify No Conflict That
Justifies Review Of This Petition.
Petitioners assert the same shallow conflict
alleged in the Honolulu petition this Court denied.
That alleged conflict provides no basis to grant this
petition either.
1. As the United States has explained, City of
New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021),
did not consider whether the deceptive-marketing
claims at the core of this case would be preempted. See
U.S. Honolulu Br. 20-21. The United States correctly
observed that “whereas the companies in City of New
York could have avoided further liability only by
ceasing global production of fossil-fuel products
altogether,” liability for deception could be avoided
simply by “refraining from deceptive conduct.” Id. 20
(cleaned up).
Even though the complaint here includes theories
beyond deception, at most that means there may be a
shallow split on the viability of one of multiple liability
theories. Resolving that conflict would not end this
6
Available at https://www.epa.gov/newsreleases/icymi-wallstreet-journal-editorial-lauds-reconsideration-epasendangerment-finding
21
litigation or avoid the harms petitioners say make this
Court’s immediate review necessary. Nor would it
meaningfully impact the larger body of climate tort
litigation, which generally involves only deception
claims. 7 And this Court has already determined that
the viability of deception claims does not warrant
review, at least not in the absence of an on-point
circuit conflict that has yet to emerge.8
2. More fundamentally, petitioners appear to be
using the alleged City of New York conflict as a
stalking horse for their constitutional-structural
preemption theory—a theory no appellate court has
7
See Margaret Barry, Climate Deception Cases Abound: They
Aren’t
All
the
Same,
https://blogs.law.columbia.edu/
climatechange/2025/11/05/climate-deception-cases-abound-theyarent-all-the-same/.
8
Petitioners (but not the United States) argue that the
decision below also conflicts with two decisions considering
requests to abate point-source emissions. See Pet. 18-20. But
neither decision is on-point or in conflict, for the reasons the
United States has previously given. See U.S. Honolulu Br. 21-22;
North Carolina ex rel. Cooper v. TVA, 615 F.3d 291, 296 (4th Cir.
2010) (addressing suit by state government to “require immediate
installation of emissions controls at four TVA electricity
generating plants”); id. at 302 (disclaiming holding that
“Congress has entirely preempted the field of emissions
regulation,” including because the court “cannot anticipate every
circumstance that may arise in every future nuisance action.”);
Illinois v. City of Milwaukee, 731 F.2d 403, 404 (7th Cir. 1984)
(considering suits to require abatement of discharges into Lake
Michigan); id. at 410 n.2 (“Our decision here is limited to the
context of these cases . . . .”). Notably, both cases were decided
before this Court held in AEP that “the availability vel non of a
state lawsuit depends, inter alia, on the preemptive effect of the
federal Act.” 564 U.S. at 429 (citation omitted).
22
accepted and that contradicts the Second Circuit’s
holding.
Petitioners’ and the United States’ lead argument
is that “the structure of our constitutional system does
not permit a State to provide relief under state law”
for injuries arising from climate alteration. Pet. 2.
The Second Circuit did not consider that argument.
Instead, it addressed only the theory fossil fuel
companies were peddling at the time—i.e., that the
“City’s state-law tort claims are displaced by federal
common law,” 993 F.3d at 89 (heading, capitalization
altered), and that the “Clean Air Act, in turn, displaces
the City’s federal common law claims,” unless
Congress expressly revived the relevant state tort law,
id. at 95 (heading, capitalization altered).
Petitioners’ constitutional structure argument
cannot be reconciled with the Second Circuit’s holding.
Under petitioners’ view, the Constitution flatly
“precludes [such] claims from proceeding under state
law.” Pet. 22; see also id. 23-24 (arguing that
“borrowing the law of a particular State would be
inappropriate” and therefore “federal law must
govern”). This leaves no room for Congress to permit
state law to apply—whether by directly authorizing
suits (as the Second Circuit contemplated) or by
declining to preempt them (the ordinary preemption
question).
Petitioners attempt to maintain
consistency by stating that respondents’ claims are
preempted “unless the Clean Air Act permits them,”
Pet. 25, but this contradicts their emphatic contention
that the “Constitution precludes those claims from
proceeding under state law.” Id. at 22.
23
The Court should decline to intervene until the
industry defendants settle on a coherent theory and
convince an appellate court to accept it.
V. The Decision Below Is Correct.
Certiorari is also unwarranted because the
decision below is correct.
A. The Clean Air Act Does Not Preempt
Respondents’ Claims.
Respondents’ claims are not preempted by the
Clean Air Act under the Second Circuit’s rationale in
City of New York or this Court’s decision in
International Paper Co. v. Ouellette, 479 U.S. 481
(1987).
1. Even in the context of interstate pollution
claims, “courts should not lightly infer pre-emption.”
Ouellette, 479 U.S. at 491. Instead, courts “start with
the assumption that the historic police powers of the
States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of
Congress.” Id. at 491 n.11 (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947)).
In City of New York, the Second Circuit reversed
these presumptions, holding that claims once
governed by federal common law are presumed
preempted unless Congress specifically authorizes
them. 993 F.3d at 99. That is wrong for multiple
reasons.
First, in AEP this Court recited the same federal
common law history before holding that the
availability of state law pollution claims turned on
“the preemptive effect of the federal act” without
suggesting any modification of the Court’s traditional
24
preemption analysis. See 564 U.S. at 429. To the
contrary, the Court cited the preemption analysis in
Ouellette, see ibid., which applied the traditional
presumption against preemption, see 479 U.S. at 491
& n.11.
Petitioners point (Pet. 24) to Ouellette’s statement
that “[i]n light of this pervasive regulation and the fact
that the control of interstate pollution is primarily a
matter of federal law, it is clear that the only state
suits that remain available are those specifically
preserved by the Act.” 479 U.S. at 492 (citation
omitted). But the Court decided what was “specifically
preserved by the Act” by applying standard conflict
preemption principles—including the presumption
against preemption, see supra p. 23—not the Second
Circuit’s express authorization requirement. Id. at
491-92. And that analysis led this Court to find that
some state law claims were preserved even though the
statute did not expressly authorize them. See id. at
497-98.
Second, more broadly, even when a case involves
an issue “inherently federal in character,” the Court
has not reversed the presumption against preemption
such that a state law is deemed preempted unless
explicitly authorized by Congress. Buckman Comm. v.
Plaintiffs’ Legal Committee, 531 U.S. 341, 348 (2001).
Instead, in the cases petitioners cite (Pet. 22), the
Court simply declined to apply any presumption at all.
See Buckman, 531 U.S. at 348; United States v. Locke,
529 U.S. 89, 108 (2000).
Third, the Second Circuit’s presumption of
preemption does violence to the division of powers
between the elected and judicial branches of the
federal government.
This Court has “always
25
recognized that federal common law is subject to the
paramount authority of Congress,” such that “courts
have no power to substitute their own notions” of
sound public policy when Congress legislates on a
question previously addressed by federal common law.
City of Milwaukee v. Illinois (Milwaukee II), 451 U.S.
304, 313, 315 (1981) (cleaned up). For that reason,
“legislative displacement of federal common law does
not require the same sort of evidence of a clear and
manifest congressional purpose demanded for
preemption of state law.” AEP, 546 U.S. at 423
(cleaned up). City of New York defies these teachings
by refusing to recognize full legislative displacement
of federal common law unless Congress expressly
displaces both the substance and the preemptive effect
of judge-made law.
Finally, as petitioner Exxon itself once insisted to
the Ninth Circuit,9 claims like respondents’ do not fall
within the scope of the former federal common law of
interstate pollution. See Pet. App. 17a; U.S. Honolulu
Br. 16-17; see also AEP, 564 U.S. at 422 (“We have not
yet decided whether . . . political subdivisions (New
York City) of a State may invoke the federal common
law of nuisance to abate out-of-state pollution.”);
Suncor, 25 F.4th at 1260 n.5 (“It is also unsettled
whether the federal common law of interstate
pollution covers suits brought against product sellers
rather than emitters . . . .”). This is particularly true
of respondents’ false-marketing claims, which address
9
See Answering Br. for Defendants-Appellees at 56-61, Native
Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012)
(No. 09-17490);
26
conduct never subject to the federal rule of decision
created for interstate pollution nuisance litigation.
2. Respondents’ claims are not precluded by the
Clean Air Act under the ordinary preemption
principles applied in Ouellette either. Contra Pet. 2426; U.S. Br. 16-19.
In Ouellette, the Court held that the Clean Water
Act’s regulatory structure for discharges from point
sources “precludes a court from applying the law of an
affected State against an out-of-state source.” 479
U.S. at 494. The Court reasoned that because the
Clean Water Act includes extensive procedures for
setting discharge limits on point sources, applying a
sister state’s law to impose different point-source
restrictions would conflict with the objects and
purposes of the statute. Id. at 494-97. However,
because the Act permits a source state to impose
higher standards than federal law, the Court allowed
suits against out-of-state dischargers based on the
nuisance law of the discharging state. See id. at 49899.
Ouellette does not preclude respondents’ claims
here. Respondents do not seek to impose emissions
standards on any point source and choice of law has
not yet been resolved. Indeed, respondents have not
sued emitters at all. Petitioners and the United States
nonetheless insist that Ouelette should be extended to
preempt tort claims against industries supplying
inputs to emitting facilities. But this Court considered
and rejected a similar argument in Virginia Uranium,
Inc. v. Warren, 587 U.S. 761 (2019).10
10
Even under petitioners’ proposed extension, respondents’
deception claims would not be preempted.
27
In that case, federal law pervasively regulated
“the milling, transfer, use and disposal of uranium.”
Id. at 765 (lead opinion). The petitioner argued that
although the federal law did not directly regulate
upstream mining activities, Virginia’s complete ban on
uranium mining “disrupts the delicate ‘balance’
Congress sought to achieve between th[e] benefits and
costs” of nuclear energy. Id. at 777. This Court
rejected the argument. Justice Gorsuch’s lead opinion
explained that a “sound preemption analysis cannot be
as simplistic as that.” Id. at 778. “[I]nvoking some
brooding federal interest or appealing to a judicial
policy preference should never be enough to win
preemption of a state law.” Id. at 767. Instead, “only
federal laws ‘made in pursuance of’ the Constitution,
through its prescribed processes of bicameralism and
presentment, are entitled to preemptive effect.” Id. at
778 (citations omitted). The challengers could cite no
such law. And a majority of the Court agreed that
federal regulation of an activity does not preempt state
regulation of upstream “activities antecedent to those
federally regulated.”
Id. at 793 (Ginsburg, J.,
concurring in the judgment); see also id. at 777-80
(lead opinion).
In this case, as in Virginia Uranium, the federal
statute does not regulate upstream activity. And
petitioners point to nothing in the “the text and
structure of the statute” demonstrating congressional
intent to leave petitioners’ deceptive marketing and
other tortious activities entirely unregulated by either
state or federal law. Id. at 778 (lead opinion) (citation
omitted); cf. id. at 791 (Ginsburg, J., concurring in the
judgment) (“[T]he Federal Government does not
regulate the radiological safety of conventional
28
uranium mining on private land, so federal law struck
no balance in this area.”).
Petitioners may think that it makes no sense to
prohibit one state’s regulation of point-source
emissions in another state, yet not preempt claims
regarding the marketing and production of upstream
inputs into those emissions. But that is a judgment
for Congress to make. Simply stating that state-law
claims have an indirect effect on federally regulated
activities can never be sufficient for preemption. State
gasoline taxes, for example, have an undeniable
impact on emissions (including emissions in other
states), yet no one would claim that they are impliedly
preempted by the Clean Air Act, even when set at
rates intended to reduce emissions and climate
change. The question whether to extend the Clean Air
Act or its preemptive effect to a distinct, related field
is one for Congress, not the courts. See O’Melveny &
Myers v. FDIC, 512 U.S. 79, 85 (1994) (“In answering
the central question of displacement of [state] law,”
Court would not “adopt a court-made rule to
supplement federal statutory regulation that is
comprehensive and detailed; matters left unaddressed
in such a scheme are presumably left subject to the
disposition provided by state law.” (citations
omitted)).11
11
To the extent the Court’s existing “purposes and objectives”
preemption decisions would extend as far as petitioners must
argue, they should be reconsidered. See Kansas v. Garcia, 589
U.S. 191, 213 (2020) (Thomas, J., concurring).
29
B. The Structure Of The Constitution Does
Not Preempt Respondents’ Claims.
Petitioners spent years arguing that federal
common law or the Clean Air Act preempted
respondents’ claims. Now they say none of that
mattered. Even if courts had never created that
common law and Congress had never passed any
statute, the Constitution itself would preempt
respondents’ claims. See Pet. 2. Notably, if the Clean
Air Act already preempts those claims, it makes no
difference whether the Constitution would do so
independently.
The constitutional structure
argument thus matters only if this Court would
otherwise conclude that the Act does not preempt this
suit. And that reveals petitioners’ real aim: to give
courts a constitutional license to override Congress’s
choices about preemption. Nothing in the text or
history of the Constitution, or in this Court’s decisions,
supports that remarkable request.
1. Petitioners argue that because courts once
created federal common law for interstate air
pollution, the Constitution requires such questions to
be governed exclusively by a uniform rule of federal
law. See Pet. 5. But none of their cited cases addresses
what happens when Congress displaces federal
common law with a statute. In that situation, as the
Colorado Supreme Court correctly held, the scope of
any preemption turns on congressional intent and the
usual preemption analysis. See Pet. App. 20a.
Petitioners’ constitutional theory builds on cases
in which this Court declined to apply Erie Railroad Co.
v. Tompkins, 304 U.S. 64 (1938), and instead adopted
a federal common law rule pending congressional
action. See Pet. 23-24. While the choice to establish a
30
federal common law rule is informed by considerations
of the constitutional structure, the decision is not
tantamount to a determination that the Constitution
requires creation of a federal rule and displacement of
state law. On that view, the Constitution commands
Congress to legislate a federal rule for some subjects,
with the courts to take Congress’s place if the elected
branches default on that implicit obligation. That
would be anomalous. While the Constitution gives
Congress authority to legislate in enumerated fields, it
never requires it to exercise that power. See, e.g., U.S.
Const. art. I, § 8.
State law gives way to federal common law not
because of some implicit constitutional preemption,
but because federal common law counts as part of the
“Laws of the United States” under the Supremacy
Clause. U.S. Const. art. VI, cl. 2. However, as noted
earlier, the Court has always been emphatic that this
judge-made law is purely interstitial and subject to
displacement by Congress. See AEP, 564 U.S. at 42324; Milwaukee II, 451 U.S. at 313-14. Congress’s
prerogatives include the right to decide for itself the
extent to which federal law should preempt state law.
See AEP, 564 U.S. at 429; Ouellette, 479 U.S. at 49197. Thus, when Congress displaces federal common
law, “the availability vel non of a state lawsuit
depends, inter alia, on the preemptive effect of the
federal Act.” AEP, 564 U.S. at 429 (citation omitted).
Petitioners seek to short-circuit that analysis and
shoulder Congress aside. In their view, the only
question is whether courts once thought the subject fit
31
for federal common law.12 And under the logic of their
position, Congress should not be permitted to disagree
with the judicial sense that a question should be
addressed at the federal level. See, e.g., Pet. 23
(“Federal law must govern such controversies because
they ‘touch upon basic interests of federalism’ and
implicate the ‘overriding federal interest in the need
for a uniform rule of decision.’”) (cleaned up, emphasis
added)); id. 23-24 (“[B]ecause ‘borrowing the law of a
particular State would be inappropriate’ to resolve
such interstate disputes, federal law must govern.”)
(cleaned up, emphasis added). That position calls into
question the constitutionality of savings clauses and
other provisions of federal law implementing schemes
of “cooperative federalism” in any area a court might
deem to implicate uniquely federal interests. Atlantic
Richfield, 590 U.S. at 24.13
Just as bad, the task of identifying state laws
implicitly preempted by constitutional structure
would be guided by nothing more than a judicial sense
of what counts as “areas of special federal interest” or
whether there is an “overriding federal interest in the
need for a uniform rule of decision.” Pet. 5 (cleaned
up). That is exactly the kind of “brooding federal
interest” and “appeal[] to a judicial policy preference”
12
As noted above, petitioners’ argument would fail even if that
were the only question. See supra pp. 25-26.
13
As noted earlier, petitioners sometimes say Congress could
expressly authorize state law to apply. But that position conflicts
with their general account of constitutional preemption and its
rationale. See supra p. 22. If petitioners are just arguing for a
presumption favoring preemption when a statute displaces
federal common law (along the lines of City of New York), that
argument is irreconcilable with this Court’s precedents for the
reasons described above. See supra pp. 23-26.
32
that “should never be enough to win preemption of a
state law.” Va. Uranium, 587 U.S. at 767 (lead
opinion). Petitioners’ elastic test would unavoidably
risk courts mistaking their own policy intuitions for
what the structure of the Constitution supposedly
demands.
None of this Court’s cases claims such a power for
the judiciary. Instead, petitioners rely on language
used in a handful of decisions discussing federal
common law in general terms or other matters far
afield from the context of this case. See Pet. 4-5, 2223. 14 In AEP, for example, the Court took from the
“basic scheme of the Constitution” only that courts
have the power to “fill in statutory interstices, and, if
necessary, even fashion federal law.” 564 U.S. at 421
(cleaned up). The Court then emphasized that any
such common law is subject to congressional
displacement at will. Id. at 423-24. Even if some areas
exist where “the Constitution implicitly forbids”
States from “apply[ing] their own law,” Franchise Tax
Bd., 587 U.S. at 246, that category does not extend to
the subject matter here, much less to every matter
judges have deemed suitable for federal common law.
Finally, petitioners’ theory is that constitutional
preemption arises because “inherently federal areas
must turn on federal rules of law.” Pet. 5 (cleaned up).
Yet they do not claim that Congress has enacted any
14
See Pet. 4-5, 22-23 (citing, e.g., Franchise Tax Bd. v. Hyatt,
587 U.S. 230 (2019) (state sovereign immunity); Tex. Indus., Inc.
v. Radcliff Materials, Inc., 451 U.S. 630 (1981) (antitrust statute);
Fuld v. Palestine Liberation Org., 606 U.S. 1 (2025)
(constitutional limits on personal jurisdiction); Bonaparte v. Tax
Ct., 104 U.S. 592 (1881) (taxation); United States v. Bevans, 16
U.S. 336 (1818) (criminal jurisdiction)).
33
such federal rule to govern this case, or that this Court
should create one. Rather than seek a uniform rule of
decision, they ask for a sweeping preemption of state
law that leaves a legal void—where neither state nor
federal law provides a rule of decision. This Court has
previously refused to recognize that kind of “preemptive grin without a statutory cat.” P.R. Dep’t of
Consumer Affs. v. Isla Petroleum Corp., 485 U.S. 495,
504 (1988). “‘There is no federal preemption in vacuo,’
without a constitutional text, federal statute, or treaty
made under the authority of the United States.”
Kansas v. Garcia, 589 U.S. 191, 202 (2020) (quoting
Isla Petroleum, 485 U.S. at 503). At the very least, this
is not a context in which the Constitution implicitly
field preempts all state law without providing any
federal rule of decision and without regard to the
preemptive intent expressed in the statute Congress
enacted to replace prior federal common law.
2. Petitioners’ reliance on the territorial limits of
state power (Pet. 23) is also misplaced. “The cases are
many in which a person acting outside the state may
be held responsible according to the law of the State
for injurious consequences within it.” Young v. Masci,
289 U.S. 253, 258-59 (1933). And this Court recently
rejected the sort of sweeping “extraterritoriality
doctrine” petitioners invoke. See Nat’l Pork Producers
Council v. Ross, 598 U.S. 356, 371, 374-75 (2023). “In
our interconnected national marketplace, many
(maybe most) state laws have the ‘practical effect of
controlling’ extraterritorial behavior.” Id. at 374.
Accordingly, states have always had the authority
to provide remedies for in-state injuries arising from
out-of-state conduct, subject to Due Process
limitations on personal jurisdiction and the
34
restrictions of other specific constitutional provisions
(e.g., the Commerce Clause).
Such litigation is
commonplace. See, e.g., Harrington v. Purdue Pharma
L.P., 603 U.S. 204, 210-11 (2024) (describing
nationwide state tort litigation against opioids
maker); Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
597-98 (1997) (asbestos litigation); cf. Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 776 (1984) (in
considering state court’s personal jurisdiction to hear
libel claim arising from nationwide publication,
stating that “it is beyond dispute that New Hampshire
has a significant interest in redressing injuries that
actually occur within the State”). Whether to displace
that state law, and how best to balance the inevitable
competing interests, is a policy question for Congress,
not one to which the Constitution provides an implicit
answer for courts to divine on their own.
C. Respondents’ Claims Are Not Barred By
“Foreign-Policy Principles.”
For similar reasons, respondents’ suit is not
precluded by “foreign-policy principles,” Pet. 26, an
argument no appellate court has accepted.
As
discussed,
petitioners’
premise
that
respondents seek to regulate “international
greenhouse-gas emissions,” id. 16, is false, see supra
pp. 26-28. More broadly, the federal government’s
authority to conduct foreign policy does not displace
states’ sovereign power to protect their citizens from
in-state harm arising from the extraterritorial conduct
of U.S. corporations simply because state law may
have “some incidental or indirect effect in foreign
countries”—something that is “true of many”
unobjectionable state laws. Clark v. Allen, 331 U.S.
503, 517 (1947). And just as state law cannot be
35
preempted by “some brooding federal interest” in
domestic matters, Va. Uranium, 587 U.S. at 767 (lead
opinion), it cannot be displaced by petitioners’ hodgepodge of concerns about the indirect effects
respondents’ suit supposedly might have on some
foreign industries and unidentified “various
diplomatic channels,” Pet. 26.
Certainly, the
President’s bare policy preference for avoiding
international agreements that impose liability for
carbon emissions, see ibid., can have no preemptive
effect on state law absent congressional agreement.
See Garcia, 589 U.S. at 212 (“The Supremacy Clause
gives priority to ‘the Laws of the United States,’” not
the “priorities or preferences of federal officers.”
(quoting U.S. Const. art. VI, cl. 2)); Medellín v. Texas,
552 U.S. 491, 524-25, 530-32 (2008); Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 416-17 (2003).
36
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted,
Richard L. Herz
Michelle C. Harrison
Alison Borochoff-Porte
EARTHRIGHTS
INTERNATIONAL
1400 K St. NW
Suite 750
Washington, DC 20005
Kevin K. Russell
Counsel of Record
RUSSELL & WOOFTER LLC
1701 Pennsylvania Ave. NW
Suite 200
Washington, DC 20006
(202) 240-8433
kr@russellwoofter.com
Kevin S. Hannon
SINGLETON SCHREIBER, Marco Simons
LLP
LAW OFFICE OF
1641 N. Downing St.
MARCO B. SIMONS
Denver, CO 80218
6218 Georgia Ave. NW
Suite 1 #594
Washington, DC 20011
November 10, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.