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

No. 25-170

IN THE

Supreme Court of the United States

_____________

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

Petitioners,

v.

COUNTY COMMISSIONERS OF BOULDER COUNTY,

ET AL.,

Respondents.

_____________

On Writ of Certiorari to the

Supreme Court of Colorado

_____________

BRIEF OF AMICI CURIAE AMERICAN

PROPERTY CASUALTY INSURANCE

ASSOCIATION, COMPLEX INSURANCE CLAIMS

LITIGATION ASSOCIATION AND

REINSURANCE ASSOCIATION OF AMERICA

IN SUPPORT OF PETITIONERS

______________

Laura A. Foggan

Counsel of Record

LAVIN RINDNER DUFFIELD LLC

1717 K St., NW, Ste 900

Washington, DC 20006

(202) 759-6767

lfoggan@lrd.law

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT.................................... 3

ARGUMENT .............................................................. 4

I.

LOCALIZED CLIMATE CHANGE

TORT CLAIMS, WHICH PRODUCE

FRAGMENTED,

INCONSISTENT

AND

EXTRATERRITORIAL

EXPOSURES, ARE PREEMPTED BY

FEDERAL LAW. ............................................... 4

II.

EXCESSIVE

UNCERTAINTY

CREATED BY LOCALIZED STATE

CLIMATE CHANGE TORTS MAKES

CLIMATE

RISK

FAR

MORE

DIFFICULT TO INSURE. .............................. 10

A. Uncertainty in Exposure and Risk

Undermines the Insurance Market

for All Interested Parties. ......................... 10

B. A

Viable

Insurance

Market

Depends on Consistent Standards

of Liability for GHG Emissions................. 11

C. Insurance is Necessary and

Supports Efforts to Balance a

Reliable Energy System and

Environmental Protection. ........................ 14

CONCLUSION ......................................................... 16

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Am. Electric Power Co., v. Connecticut,

564 U.S. 410 (2011) ................................................ 5

Great Lakes Ins. SE v.

Raiders Retreat Realty Co., LLC,

601 U.S. 65 (2024) ................................................ 12

Illinois v. City of Milwaukee,

731 F.2d 403 (7th Cir. 1984) .................................. 7

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ............................................ 5, 7

Kurns v. R.R. Friction Prods. Corp.,

565 U.S. 625 (2012) ................................................ 7

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

353 A.3d 1142 (Md. 2026)....................................... 6

Minnesota Energy and Econ. Dev. Auth. v. Printy,

351 N.W.2d 319 (Minn.1984) ............................... 16

San Diego Building Trades Council v. Garmon,

359 U.S. 236 (1959) ................................................ 7

Truck Ins. Exch. v. Kaiser Gypsum Co.,

602 U.S. 268 (2024) ................................................ 2

iii

XP Vehicles, Inc. v. United States,

121 Fed. Cl. 770 (2015) ........................................ 16

Constitution & Statutes:

U.S. Const. Art. I, § 8, cl. 3 ........................................ 8

U.S. Const. Art. VI, cl. 2 ............................................ 8

42 U.S.C. §7401 ......................................................... 9

42 U.S.C. §§7401-7675 ............................................... 8

42 U.S.C. §§16511–16516 ........................................ 16

Other Authorities:

Climate Change 2021: The Physical Science Basis

(Intergovenmental Panel on Climate Change

Working Group I, Sixth Assessment Report),

https://www.ipcc.ch/report/ar6/wg1/

(last visited May 20, 2026) ..................................... 6

Greenhouse Gas Emissions by Country,Worldometer

https://www.worldometers.info/greenhouse-gasemissions/greenhouse-gas-emissions-by-country/

(last visited May 20, 2026) ..................................... 6

“Navigating Insurance Coverage Challenges in the

Energy Sector,” KPMG (2025),

https://kpmg.com/us/en/articles/2025/navigatinginsurance-coverage-challenges-energy-sector.html

(last visited on May 20, 2026) .............................. 15

iv

U.S. Env’t Prot. Agency, Clean Air Act Requirements

and History, https://www.epa.gov/clean-air-actoverview/clean-air-act-requirements-and-history

(last visited May 20, 2026) ..................................... 9

U.S. Env’t Prot. Agency, Sources of Greenhouse Gas

Emissions: Overview,

https://www.epa.gov/ghgemissions/sourcesgreenhouse-gas-emissions

(last visited May 20, 2026) .................................... 6

World Energy Investment 2025, Int'l Energy Agency,

OECD, Infrastructure at

https://www.iea.org/reports/world-energyinvestment-2025

(last visited on May 20, 2026) ............................... 11

1

INTEREST OF AMICI CURIAE

The American Property Casualty Insurance

Association (“APCIA”), Complex Insurance Claims

Litigation Association (“CICLA”), and Reinsurance

Association of America (“RAA”) (collectively, “Amici”)

are trade associations of property and casualty

insurance and reinsurance companies. Together,

Amici represent most of the commercial and personal

lines insurance and reinsurance companies in the

United States. Amici help courts resolve important

insurance and reinsurance cases, regularly appearing

as amicus curiae in state and federal courts around

the country. 1

APCIA is the primary national trade association

for home, automobile, and business insurers. With a

legacy dating back 150 years, APCIA promotes and

protects the viability of private competition to benefit

consumers and insurers. APCIA’s member companies

represent 66 percent of the U.S. property-casualty

insurance market, including 74 percent of the

commercial insurance market. On issues of

importance to the insurance industry and

marketplace, APCIA advocates sound public policies

on behalf of its members in legislative and regulatory

forums at the federal and state levels and submits

amicus curiae briefs in significant cases before federal

and state courts.

1 No part of this brief was authored in whole or in part by

counsel for any party, and no person or entity has made

any monetary contribution to the preparation or

submission of this brief other than amici curiae and their

counsel.

2

CICLA is a trade association of major property and

casualty insurance companies. Through amicus

curiae briefs, CICLA seeks to help courts understand

and resolve the core insurance coverage issues of

greatest importance to insurers today. CICLA has

participated as amicus curiae in many insurance

cases in state and federal appellate courts across the

United States.

RAA is the leading trade association of property

and casualty reinsurers doing business in the United

States. RAA membership is diverse, including

reinsurance underwriters and intermediaries

licensed in the U.S. and those that conduct business

on a cross-border basis. The RAA also has life

reinsurance affiliates and insurance-linked securities

(ILS) fund managers and market participants that

are engaged in the assumption of property/casualty

risks. The RAA represents its members before state,

federal and international bodies and participates as

amicus curiae in various state and federal courts in

insurance and reinsurance cases on behalf of its

members.

Many courts, including this Court, have found

APCIA, CICLA, and RAA’s amicus submissions

helpful in evaluating and resolving important issues

of significance to insurers and the insurance market.

See, e.g., Truck Ins. Exch. v. Kaiser Gypsum Co., 602

U.S. 268, 281-282 (2024) (Citing APCIA and CICLA

amicus brief explaining insurer interests in

bankruptcy standing).

3

SUMMARY OF ARGUMENT

The Court is asked to decide whether state and

local government entities may bring state law tort

claims against fossil fuel companies for injuries

allegedly caused by greenhouse-gas (GHG) emissions,

which are inter-state and global in nature and effect.

These claims are preempted by federal law. Through

these claims, state and local governments

impermissibly attempt to regulate air emissions

beyond their jurisdictional boundaries and to impose

energy policies that differ from those set by the

federal government.

Local governments’ pursuit of state law claims for

tort recovery for GHG emissions do not respect limits

of traditional tort claims. By imposing liability based

on fossil fuel production and use across the globe and

across generations, these state law claims for harms

from GHG emissions create a chaotic liability

landscape and with it, difficulty in underwriting and

insuring (and in procuring insurance for) climate

change-related risks.

The procurement problem is especially acute for

the energy sector, which already struggles to obtain

liability

insurance

for

climate

and

other

environmental risks. Energy companies face unique

hazards that require specialized risk management

strategies to address exposures, including climate

risks that fall outside commercial general liability

(CGL) insurance. CGL policies require an accident or

occurrence, as well as bodily injury or property

damage, to trigger coverage and are subject to other

terms, conditions, and exclusions (such as pollution

exclusion clauses) that bar coverage for damage

4

caused by GHG emissions. Energy companies

typically manage risk through a variety of insurance

products and other strategies, including captive

insurance and specialty policies such as Pollution

Liability, Environmental Impairment Liability, and

Oil and Gas Policies.

Clear and predictable rules governing climaterelated liability are important to insurers and the

energy sector, and to society as it balances a reliable

energy system with environmental protection.

ARGUMENT

I. LOCALIZED CLIMATE CHANGE TORT

CLAIMS,

WHICH

PRODUCE

FRAGMENTED,

INCONSISTENT

AND

EXTRATERRITORIAL EXPOSURES, ARE

PREEMPTED BY FEDERAL LAW.

The city and county of Boulder, Colorado

(collectively, “Boulder”), as well as dozens of other

state and local government entities across the United

States, seek to use local tort law to address a global

problem. Climate change stems from decades of

worldwide GHG emissions from many sources,

including energy generation, transportation, and

industrial activity. States and municipalities like

Boulder seek redress for the local impact of GHG

emissions by imposing on targeted defendants

liability for the cumulative, cross-border conduct of

many actors occurring over many years and many

5

generations, far beyond the borders of any single state

or nation. 2

This Court repeatedly has held that federal law

governs disputes involving interstate air or water

pollution. Am. Electric Power Co. v. Connecticut

(“AEP”), 564 U.S. 410, 421 (2011); Int’l Paper Co. v.

Ouellette, 479 U.S. 481 (1987). The federal

Constitution and federal law preclude and preempt

states from using their own local law to remedy harm

caused by out-of-state and worldwide emissions.

Climate change is driven by countless individual

and industrial activities across the world: energy

production,

transportation,

manufacturing,

2 E.g., Rhode Island v. Chevron Corp., No. PC-2018-4716 (R.I.

Super. Ct.) (claims include public nuisance, strict liability for

failure to warn, impairment of public trust resources, and

violations of State Environmental Rights Act); State of Maine v.

BP p.l.c., PORSC-CV-24-442 (Me. Super. Ct. filed Nov. 26, 2024);

In re Fuel Indus. Climate Cases, No. S288664 (Cal.); City & Cty.

of Honolulu v. Sunoco LP, No. 1CCV-20-380 (Haw. Cir. Ct.); Cty.

of Maui v. Sunoco LP, No. 2CCV-20283 (Haw. Cir. Ct.); City of

Chicago v. BP p.l.c., No. 2024CH1024 (Ill. Cir. Ct.); Platkin v.

Exxon Mobil Corp., No. MER-L-1797-22 (N.J. Super. Ct.); City of

Hoboken v. Exxon Mobil Corp., No. HUD-L-3179-20 (N.J. Super.

Ct.); City of New York v. BP p.l.c., No. 18-cv-182 (S.D.N.Y.); Cty.

of Multnomah v. Exxon Mobil Corp., No. 23-cv-25164 (Or. Cir.

Ct.); Bucks Cty. v. BP p.l.c., No. 2024-1836 (Pa. Ct. Com. Pl.);

City of Charleston v. Brabham Oil Co., No. 2020 CP-10-3975

(S.C. Ct. Com. Pl.); King Cty. v. BP p.l.c., No. 18-2-11859-0

(Wash. Super. Ct., King Cty.); Mun. of Bayamón v. Exxon Mobil

Corp., No. 22-cv-1550 (D.P.R.); Mun. of San Juan v. Exxon Mobil

Corp., No. 23-cv-1608 (D.P.R.).

6

agriculture, and land-use practices. 3 No single source

or location can be said to “own” the problem. Instead,

climate change results from the cumulative effect of

emissions over time and across jurisdictions. 4

This cumulative nature means that even if a

particular locality were to eliminate emissions within

its borders entirely, it would still experience

climate-related impacts caused by emissions

originating elsewhere, as the Maryland Supreme

Court observed in holding that federal law preempted

local climate change tort claims. Mayor & City

Council of Baltimore v. B.P. P.L.C., 353 A.3d 1142,

1175 (Md. 2026) (“Given that Maryland accounts for

only a fraction of global carbon dioxide emissions,

Maryland’s emissions alone cannot possibly be

responsible for causing the local governments’ alleged

injuries.”)

Further, permitting states and municipalities

across the country to use local tort law to address

3 U.S. Env’t Prot. Agency, Sources of Greenhouse Gas Emissions:

Overview,

https://www.epa.gov/ghgemissions/sourcesgreenhouse-gas-emissions (last visited May 20, 2026);

Intergovernmental Panel on Climate Change, Climate Change

2021: The Physical Science Basis (Working Group I Contribution

to

the

Sixth

Assessment

Report),

https://www.ipcc.ch/report/ar6/wg1/ (last visited May 20, 2026).

4

Cf.

Greenhouse

Gas

Emissions

by

Country,

https://www.worldometers.info/greenhouse-gasemissions/greenhouse-gas-emissions-by-country/ (last visited

May 20, 2026) (stating China emits more greenhouse gases than

the United States, India, and Russia combined).

7

interstate conflicts would create a disordered mosaic

of competing and inconsistent standards applicable to

the very same conduct, injecting instability into the

assessment of exposure and risk – a problem this

Court recognized in Ouellette. 479 U.S. at 496 (if such

claims were permitted, the targeted source “would be

subject to a variety of common law rules established

by the different states along the interstate

waterways. These nuisance standards often are

‘vague’ and ‘indeterminate.’ The application of

numerous states’ laws would only exacerbate the

vagueness and resulting uncertainty.”) 5 See also

Illinois v. City of Milwaukee, 731 F.2d 403, 414 (7th

Cir. 1984) (“For a number of different states to have

independent and plenary regulatory authority over a

single discharge would lead to chaotic confrontation

between sovereign states…. It would be virtually

impossible to predict the standard for a lawful

discharge into an interstate body of water…”).

As the Court has recognized, certain disputes, by

their very nature, cannot be resolved through the

application of state law. Where a controversy is

interstate or international in character, or involves

5 In Oulette, the Court stated that Vermont’s public nuisance tort

has the effect of regulating out-of-state conduct because, by

permitting the state to seek recovery of damages and injunctive

relief, the defendant would “have to change its methods of doing

business and controlling pollution to avoid the threat of ongoing

liability.” 479 U.S. at 496. See also Kurns v. R.R. Friction Prods.

Corp., 565 U.S. 625, 637 (2012) (“regulation can be effectively

exerted through an award of damages” and “[t]he obligation to

pay compensation can be, indeed is designed to be, a potent

method of governing conduct and controlling policy.” (quoting

San Diego Building Trades Council v. Garmon, 359 U.S. 236,

247 (1959)).

8

issues of national importance, domestic security or

foreign relations, the Constitution requires the

application of federal law to ensure uniformity and

prevent undesirable conflict among sovereigns. See

U.S. Const. Art. VI, cl. 2. In such areas, the

Constitution calls for a federal rule of decision rather

than an inconsistent mix of individual state

standards. Id.

Cross-border air pollution has long been

understood to fall squarely within this category. See

42 U.S.C. 7401-7675; U.S. Const. Art. I, § 8, cl. 3.

Disputes involving emissions that flow across state

lines—or affect foreign nations—implicate uniquely

federal concerns, including the allocation of authority

among states, the Nation’s foreign relations, and the

sovereignty of foreign nations. Allowing each state to

impose its own regime in this area would create a

fragmented and incoherent state-level regulatory

system, spark conflicts among sovereigns, and leave

parties facing significant uncertainty when forced to

comply with potentially conflicting state and local

laws.

Consistent with these principles, the Constitution

demands a uniform federal approach to controversies

involving interstate emissions. Before Congress

acted, federal common law supplied the governing

rules. AEP, 564 U.S. at 410-11. Congress later

displaced that common law by enacting the Clean Air

Act and subsequently expanding it into a

comprehensive nationwide framework for regulating

9

air pollution. 6 See 42 U.S.C. § 7401 et seq. The federal

government is charged with advancing a coordinated

national strategy addressing environmental pollution

and the maintenance of an affordable and reliable

domestic energy supply. Id.

The federal government has also addressed GHG

emissions by joining global, multilateral climate

agreements. At the same time, the United States has

chosen not to adopt some binding international

commitments, reflecting the national judgment that

stricter regulations do not always serve broader U.S.

interests.

Together, this constitutional, statutory, and

diplomatic framework shows that regulating GHG

emissions, which necessarily are interstate and global

in nature, is an exclusively federal matter—one that

requires balancing environmental protection with

economic, energy, security, and foreign policy

interests on a national and international scale.

Federal preemption of localized climate torts prevents

conflicting state rules from undermining federal

policy and establishes a uniform, predictable

standard for climate change liability. It ensures

uniform national regulation of problems that are

interstate and international in scope.

6 See also U.S. Env’t Prot. Agency, Clean Air Act Requirements

and History, https://www.epa.gov/clean-air-act-overview/cleanair-act-requirements-and-history (last visited May 20, 2026).

10

II. EXCESSIVE UNCERTAINTY CREATED BY

LOCALIZED STATE CLIMATE CHANGE

TORTS MAKES CLIMATE RISK FAR MORE

DIFFICULT TO INSURE.

A.

Uncertainty in Exposure and Risk

Undermines the Insurance Market

for All Interested Parties.

Uniform standards governing GHG emissions

under federal preemption would also enable a

favorable environment for insurance of those risks. A

viable insurance system involves the spreading of

actuarially predictable risks across a large pool of

insureds. Reasonable confidence as to the scope and

nature of the risk assumed is essential to the

risk-spreading function. Only with that certainty can

an insurer accurately price coverage and ensure the

availability of adequate reserves to pay future claims.

By evaluating and distributing risks in this fashion,

insurance allows individuals and businesses to

engage in socially useful activities.

To preserve solvency, insurers must spread the

costs of uncertainty across the insurance-buying

public. When, as would be the case in the absence of

preemption, uncertainty expands from specific,

defined risks to entire categories of potentially

limitless liability, rational underwriting becomes

virtually impossible. An insurer cannot rationally set

a premium for an insurance policy that could

encompass an unbounded and indeterminate

collection of risks arising from penalties or liabilities

that states and municipalities across the country may

seek to impose for climate change. Insurers cannot

insure against the consequences of generations of

11

conduct occurring nationwide and worldwide without

any limiting principle.

B.

A Viable Insurance Market Depends

on Consistent Standards of Liability

for GHG Emissions.

Available and affordable liability insurance for the

energy sector and other sources of GHG emissions

depends critically on the existence of consistent,

stable tort liability standards governing the conduct

of insureds. Liability insurance functions by allowing

insurers to evaluate the probability and magnitude of

legally imposed losses based on established legal

rules. When the scope of potential liability is

knowable and constrained, insurers can price

coverage, allocate capital, and maintain reserves in a

manner that supports both solvency and availability

of coverage across the market.

The energy sector, by its nature, involves

large-scale, capital-intensive, and long-duration

activities that operate within dense regulatory

frameworks and span multiple jurisdictions. 7

Insurers underwriting liability risks for energy

producers must assess not only operational hazards

but also the legal standards by which harm is

evaluated and liability imposed. Consistent,

traditional tort doctrines provide the essential

framework within which insurers can model risk.

When courts apply settled principles of tort law in a

7 See, e.g., World Energy Investment 2025, International Energy

Agency,

OECD,

Infrastructure

at

https://www.iea.org/reports/world-energy-investment-2025 (last

visited on May 20, 2026).

12

predictable manner, it enables insurers to estimate

expected losses and spread those risks across a broad

pool of policyholders. See Great Lakes Ins. SE v.

Raiders Retreat Realty Co., LLC, 601 U.S. 65, 73

(2024) (applying a predictable legal standard allows

insurers to better assess risk and “therefore can lower

the price and expand the availability of [ ] insurance”).

By contrast, if energy producers are subject to

varying and novel standards for climate change

liability across the country, the risk from GHG

emissions becomes fundamentally indeterminate.

This uncertainty undermines core insurance

functions such as actuarial pricing, reserving and

aggregation of risk, because insurers cannot reliably

predict when liability may attach, how courts will

allocate fault among defendants, or whether losses

will be considered fortuitous rather than systemic.

The problem is compounded where multiple states or

municipalities bring parallel or sequential suits

premised on the same conduct, creating correlated

losses that defeat the basic premise of risk pooling. As

a result, insurers face strong incentives to sharply

limit coverage, exclude climate-related liabilities in

policies where they might otherwise be covered, and

possibly even withdraw from affected lines altogether.

Expansive local climate litigation does not merely

raise premiums but hinders the insurability of

climate risk itself.

In the energy sector, where insurance is often

required by contract or regulation, the erosion of

affordable coverage can constrain investment, impede

infrastructure development, and distort markets

without any corresponding improvement in safety or

13

accountability. This uncertainty is not confined to the

insureds whose conduct is challenged; it extends to

the entire class of energy-sector risks, making

actuarial predictions unreliable and undermining the

economic foundations of liability insurance.

Moreover, predictable liability standards promote

competition and efficiency in insurance markets. A

common understanding of the legal environment in

which claims will be adjudicated underpins insurers’

ability to compete on price, coverage terms, and

service quality. Fragmented or rapidly shifting

liability theories distort this competition, favoring

short-term

retrenchment

over

long-term

underwriting and discouraging market participation.

The resulting reduction in available capacity

disproportionately affects sectors like energy, where

risks are already complex and capital requirements

are high.

In sum, the availability and affordability of

liability insurance for the energy sector are

inextricably intertwined and dependent on stable,

predictable tort principles governing liability

exposure. Consistent standards are critical for

insurers to price risk rationally, maintain adequate

reserves, and provide coverage that supports lawful,

socially necessary economic activity. When those

standards erode, insurance markets are pressured to

respond not by absorbing limitless uncertainty, but by

contracting—shifting costs, narrowing coverage, and

ultimately limiting access to insurance in ways that

ripple far beyond the courtroom.

14

C.

Insurance

is

Necessary

and

Supports Efforts to Balance a

Reliable

Energy

System

and

Environmental Protection.

The nation is best served when energy is the most

affordable and reliable, and energy is made more

affordable and reliable by a diverse portfolio of energy

sources, consistent with any constraints that may be

imposed by federal policies on energy and the

environment. This in turn is made possible by a

robust insurance market that supports the energy

industry, while encouraging environmental risk

avoidance by pricing coverage commensurate with

risk. But the level of unpredictability and uncertainty

created by localized state climate tort litigation

impairs the ability to assess risk and therefore is

constraining the insurance market for industries

contributing to GHG emissions.

Significant challenges in the energy sector

insurance market already exist. As one commentator

recently explained:

The insurance industry is facing

significant capacity challenges in the

energy sector. There is a substantial

protection gap between global economic

losses and insured losses, with a gap of

around $60 billion. Severe convective

storms, flooding, wildfires, windstorms,

and earthquakes are driving substantial

losses, with the United States being the

region experiencing the highest insured

losses.

15

Reportedly, many insurers are reluctant

to deploy capacity for certain industries,

such as oil and gas, due to climate

change concerns and the risk of

litigation. Major insurance companies

that previously offered substantial

limits, often exceeding $100 million,

have

significantly

reduced

their

capacity. Some have even capped their

offerings at $20 million or less. 8

A healthy insurance marketplace contributes to

both promoting a reliable energy system and enabling

society to respond constructively to climate change.

By pooling and pricing risk through actuarial

methods, insurers enable long-term investments in

infrastructure, energy systems, and technology that

would otherwise be prohibitively risky. This function

is especially critical in the context of climate change,

where solutions require large-scale, capital-intensive

projects with long planning horizons.

Energy transition projects—such as renewable

generation, grid modernization, carbon capture, and

climate-resilient infrastructure—depend on the

availability of liability, property, and specialty

insurance. Insurers assess risks associated with these

projects and translate them into premiums, coverage

conditions, and incentives for loss prevention. To

evaluate risk, insurers rely on defined legal rules and

See, e.g., “Navigating insurance coverage challenges in the

energy sector,” https://kpmg.com/us/en/articles/2025/navigatinginsurance-coverage-challenges-energy-sector.html (last visited

on May 20, 2026).

8

16

credible data, requirements that are necessary for

insurers to support investment in new technologies

and adaptive strategies that expand energy

production options and reduce climate-related

vulnerability over time. 9 A functioning climate risk

insurance market can internalize environmental

costs into economic decision-making while preserving

socially valuable energy production, aligning

environmental protection with long term energy

stability rather than forcing society to sacrifice one for

the other.

CONCLUSION

Responsibility for interstate air emissions rests

with the federal government, and federal law bars

state and local tort claims from overriding those

decisions. Allowing such claims is unlawful and

counterproductive, creates intolerable uncertainty for

the energy and insurance sectors and, in turn, harms

society.

Congress and state legislatures repeatedly have recognized

that without insurance or insurance-equivalent financial

mechanisms, clean energy and climate adaptation projects

cannot attract the private capital necessary for development.

E.g., 42 U.S.C. §§ 16511–16516 (the Energy Policy Act of 2005)

(authorizes the Department of Energy to guarantee up to 80% of

loans for such projects to reduce emissions of greenhouse gasses);

XP Vehicles, Inc. v. United States, 121 Fed. Cl. 770 (2015) (the

purpose of the loan guarantee program under the Energy Policy

Act of 2005 is to “support innovative clean energy projects that

are typically unable to obtain conventional private financing due

to high technology risks”). See also Minnesota Energy and Econ.

Dev. Auth. v. Printy, 351 N.W.2d 319, 343 (Minn.1984)

(recognizing cost constraints on investment in new technologies

aimed at “energy conservation and development of alternative

energy resources”).

9

17

Respectfully submitted,

Laura A. Foggan

Counsel of Record

LAVIN RINDNER DUFFIELD, LLC

1717 K St., NW, Ste 900

Washington, DC 20006

(202) 759-6767

lfoggan@lrd.law

Counsel for Amici Curiae, the

American Property Casualty

Insurance Association, Complex

Insurance Claims Litigation

Association, and Reinsurance

Association of America