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

Supreme Court briefMay 21, 2026

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No. 25-170

In the Supreme Court of the United States

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

Petitioners,

COUNTY COMMISSIONERS OF BOULDER COUNTY, ET AL.,

Respondents.

_______________

On Writ of Certiorari to the

Supreme Court of Colorado

BRIEF OF AMICI CURIAE GENERAL

(RETIRED) RICHARD B. MYERS and

ADMIRAL (RETIRED) MICHAEL G.

MULLEN, IN SUPPORT OF

PETITIONERS

Tristan L. Duncan (Counsel of Record)

William F. Northrip

Daniel B. Rogers

SHOOK, HARDY & BACON L.L.P.

2555 Grand Blvd.

Kansas City, MO 64108

(816) 474-6550

tlduncan@shb.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF THE

ARGUMENT .......................................................... 5

ARGUMENT ............................................................. 13

I. The Important National Security

Interests in the Crosshairs of These

Cases: The Practical Realities and

Importance of the Production and Sale

of Oil and Gas to Our National Defense. .... 13

II. A Dependable, Abundant Supply of Oil

and Gas Continue to be Essential to

Our Nation’s Conduct of Foreign Affairs

and Military Preparedness. ........................ 20

III.Our Nation’s Vital Interests in Fuel

Security and Managing Climate Change

Cannot be Regulated by a Patchwork of

State-Court Actions. .................................... 25

CONCLUSION .......................................................... 28

TABLE OF AUTHORITIES

Page(s)

Cases

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

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

American Ins. Ass’n v. Garamendi,

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

Banco National de Cuba v. Sabbatino,

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

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

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

Bucks County v. BP P.L.C.,

2025 WL 1484203 (Pa. Ct. Com. P. May 16, 2025)

........................................................................ 10, 26

California ex rel. Brown v. Watt,

668 F.2d 1290 (D.C. Cir. 1981) ............................ 19

City of Charleston v. Brabham Oil Co.,

Case No. 2020-CP-02975 (S.C. Ct. Com. Pl.

Aug. 6, 2025) ................................................... 23

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ............. 3, 6, 8, 9, 25, 26

County Commissioners of Boulder County v. Suncor

Energy, et al.,

586 P.3d 161 (Colo. 2025) .............. 3, 7, 8, 9, 10, 28

iii

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

615 F.3d 291 (4th Cir. 2010) ............................... 12

Exxon Mobil Corp. v. United States,

2020 WL 5573048

(S.D. Tex. Sept. 16, 2020) ................................ 6, 17

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987)........................................ 10, 22

Kurns v. Railroad Friction Prods. Corp.,

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

Shell Oil Co. v. United States,

751 F.3d 1282 (Fed. Cir. 2014) ............................ 16

Torres v. Texas Dep’t of Pub. Safety,

597 U.S. 580 (2022).............................................. 26

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

332 U.S. 301 (1947).............................................. 12

Statutes

43 U.S.C. § 1802 ........................................................ 19

Defense Production Act of 1950,

Pub. L. No. 81–774 .............................................. 17

Outer Continental Shelf Lands

Act of 1953, 43 U.S.C. § 1332(3) ........ 17, 18, 19, 20

Trans-Alaska Pipeline Authorization Act of 1973,

Pub. L. No. 93-153,

§ 202(a), 87 Stat. 576, 584 (1973),

Pub. L. No. 93-153 ............................................... 19

Other Authorities

Annual Message to the Congress on the State of the

Union, 1 Pub. Papers 59 (Jan. 23, 1974) ............ 18

Def. Logistics Agency Energy, Fiscal Year 2019 Fact

Book (2019),

https://www.dla.mil/Portals/104/Documents/Ener

gy/Publications/FactBookFiscalYear2019_highres.

pdf?ver=2020-01-21-103755-473 ......................... 21

Department of Energy, “Energy for the Warfighter:

The Department of Defense Operational Energy

Strategy,” June 14, 2011,

https://www.energy.gov/articles/energy-warfighter-department-defense-operational-energystrategy .................................................................. 4

Energy Security Forum, Washington, D.C., 13

October 2010,

https://www.dvidshub.net/news/58040/mullenmilitary-has-strategic-imperative-save-resources 9

Executive Order 14260, Protecting American Energy

from State Overreach (Apr. 8, 2025) ................... 22

H.R. Rep. No. 94-1084 (1976) ................................... 20

H.R. Rep. No. 95-590 (1977) ..................................... 20

Hearings Before Committee on Naval Affairs of the

House of Representatives on Estimates Submitted

by the Secretary of the Navy, 64th Cong. 761

(1915).................................................................... 14

Ian O. Lessor, Resources and Strategy: Vital

Materials in International Conflict 1600 – The

Present (1989) ................................................ 14, 15

Jay Hakes, A Declaration of Energy Independence

(2008).................................................................... 17

John W. Frey & H. Chandler Ide,

A History of the Petroleum Administration for

War, 1941-1945 (1946) ......................................... 16

National Petroleum Council, A National Oil Policy

for the United States (1949) ........................... 15, 16

Nixon Message, N.Y. Times, Apr. 19, 1973 ........ 18, 19

President Barack Obama, Remarks on Energy at

Andrews Air Force Base, Maryland (Mar. 31,

2010) ..................................................................... 21

Presidential Determination to Section 303 of the Defense Production Act (“DPA”) of 1950, as

Amended, on Domestic Petroleum Production, Refining and Logistics Capacity, Apr. 20, 2026 ...... 24

Press Secretary, White House Office of

Communications, Statement on North Slope Oil

Bill Signing (Nov. 28, 1995), 1995 WL 699656 ... 20

Report of the Activities of the Joint Committee on

Defense Production, S. Rep. No. 94-1, Pt. 1 (Jan.

17, 1975, 1st Sess.)............................................... 19

Special Message to the Congress on the Energy

Crisis, 1 Pub. Papers 29 (Jan. 23, 1974) . 18, 19, 20

Statement By President George W. Bush Upon

Signing [H.R. 6111],

2 Pub. Papers 2217 (Dec. 20, 2006) ............... 20, 21

Statement of Ralph K. Davies, Deputy Petroleum

Administrator of War, Special Committee

Investigating Petroleum Resources, S. Res. 36

(Nov. 28, 1945) ..................................................... 15

Statement of Senator O’Mahoney, Chairman, Special

Committee Investigating Petroleum Resources, S.

Res. 36 (Nov. 28, 1945) ........................................ 17

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

National Security Interests by Robert Harward,

Vice Admiral, U.S. Navy Retired, American

Military News (April 20, 2023) at

https://americanmilitarynews.com/2023/04/u-sclimate-lawsuits-endanger-military-and-u-snational-security-interests/ ........................... 21, 22

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

explained (Apr. 27, 2020),

https://www.eia.gov/energyexplained/ us-energyfacts/imports-and-exports.php ............................ 21

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

Naval Petroleum Reserves: Oil Sales Procedures

and Prices at Elk Hills, April Through December

1986 (1987) ........................................................... 14

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

& POWER (1991) .................................................... 15

INTEREST OF AMICI CURIAE1

United States Air Force General (Retired)

Richard B. Myers was appointed Vice Chairman of the

Joint Chiefs of Staff by President William J. Clinton

in 2000 and was appointed by President George W.

Bush in 2001 to become the 15th Chairman of the Joint

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

principal military advisor to the United States

President, Secretary of Defense, and the National

Security Council. He served in that role until 2005.

General Myers joined the Air Force in 1965

through the ROTC program at Kansas State

University. He served in the Vietnam War and had

over 600 combat flying hours in Vietnam. He has held

numerous commands and served in significant staff

positions in the Air Force. General Myers has

received numerous awards and decorations for his

service, including the Legion of Merit, the French

Legion of Honor, and the Presidential Medal of

Freedom. He received his fourth-star in 1997 and

retired from active duty in 2005, after more than forty

years of active service. General Myers began serving

as the Interim President of Kansas State University

in late April 2016 and was announced as the

permanent President on November 15, 2016. General

Myers served as the 14th President of Kansas State

University until his retirement on February 11, 2022.

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

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

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

their counsel, made a monetary contribution to the preparation

or submission of the brief. Amici curiae have accepted no payment for submission of this brief.

United States Navy Admiral (Retired) Michael

G. Mullen, served as the 17th Chairman of the Joint

Chiefs of Staff from 2007-2011 under both President

George W. Bush and President Barack H. Obama. A

graduate of the United States Naval Academy in

1968, Admiral Mullen served in the Vietnam War and

commanded his first ship, the USS Noxubee, from

1973-1975. He earned a Master’s Degree in

Operations Research in 1985 and, later that year, took

command of the guided-missile destroyer USS

Goldsborough. In 1991, Admiral Mullen participated

in Harvard University’s Advanced Executive

Management graduate program. He was promoted to

Rear Admiral in 1997 and, in 1998, was named

Director of Surface Warfare in the office of the Chief

of Naval Operations (CNO). Admiral Mullen is one of

only four naval officers who has the distinction of

receiving four, 4-Star assignments. In 2003, Admiral

Mullen was named Vice Chief of Naval Operations

and was tapped to head the United States Naval

Forces in Europe and NATO’s Joint Force Command

in Naples. He then was appointed Chief of Naval

Operations in 2005, and, in 2007, he was nominated

by President George W. Bush to be the 17th Chairman

of the Joint Chiefs of Staff. Admiral Mullen retired

from this position in 2011 after serving for four years

under both a Republican and a Democratic president.

The focus of this brief is not on climate change

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

on climate change policy. They strongly believe these

important national and international policy issues

should be addressed to Congress and the Executive

Branch, not adjudicated piecemeal across the country

in a multitude of state courts. Instead, this brief

provides a history of the Federal Government’s role in

the production and sale of gasoline and diesel to

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

more than a century, petroleum products have been,

and currently are, essential for fueling the United

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

use of fossil fuels was crucial to the success of the

armed forces when amici served as Chairmen of the

Joint Chiefs of Staff, and it remains crucial today.

Considering that concern, amici believe this

extensive history and their practical experience

demonstrate that these cases do not involve localized,

intra-state interests. Rather, the causation and

damages theories in these cases inextricably involve

worldwide impacts and core federal interests. City of

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

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

effects of emissions made around the globe over the

past several hundred years.”); County Commissioners

of Boulder County v. Suncor Energy, et al., 586 P.3d

161, 175 (Colo. 2025) (Samour, J., Dissenting)

(“Boulder’s damages claims…are based on harms the

State of Colorado has allegedly suffered as a result of

global climate change. According to Boulder, by

producing, promoting, refining, marketing, and

selling fossil fuels in the United States and globally,

the energy companies have played and continue to

play a substantial role in increasing the concentration

of greenhouse gases (“GHGs”) in the atmosphere,

thereby inducing changes to the climate worldwide.”).

To be clear, it is not as though we believe

anything having to do with climate change presents a

national security concern. There are lots of lawsuits

filed that may relate in some way to greenhouse gases,

and we do not feel the need to weigh in on many of

those lawsuits. But climate change cases like this one

are different. This subset of cases causes us concern

because of both its sheer scope and its transparent

attempt to substitute parochial judgments for those of

the national, elected and appointed actors, to whom

the Constitution commits domestic and international

policy-making for this complex, multi-faceted

worldwide issue. Therefore, to assist the Court in

understanding why these cases cause significant

national security concerns, this brief first discusses

the

Federal

Government’s—particularly

the

military’s—historical control and direction of

Petitioners’ production and sale of petroleum

products.

The brief concludes with our perspective on the

practical realities presented by these cases and the

reasons we believe the Court should reverse the

Colorado Supreme Court’s decision. As former

Chairmen of the Joint Chiefs of Staff serving under

both Democratic and Republican administrations and

with over 80 years of combined service in the military,

we can personally attest that petroleum products

produced by companies like Petitioners have been

critical to national security, military preparedness,

and combat missions. We are not alone in this belief.

Military commanders, like General David Petraeus,

universally emphasize that “[e]nergy is the lifeblood

of our warfighting capabilities.”2 To ensure the

military has a dependable, abundant supply of the

energy indispensable to our Nation’s warfighting

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

The Department of Defense Operational Energy Strategy,” June

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

capacity, this brief explains why, in our view, the

climate change issues at the heart of these civil

damages suits are a matter for federal law, not state

law.

While it is important to continue to look for

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

U.S. military must always consider its enemies’ own

fossil-fuel uses and potential superior deployment

abilities because of those uses. The United States

could go it alone and unilaterally strip itself of higherperforming fossil fuels, but that approach would put

the Nation at a significant disadvantage. It would

weaken our armed forces while strengthening those of

our adversaries. Stated differently, achieving energy

security is a prerequisite for national security. As a

result, reduction in fossil-fuel use can be accomplished

only through comprehensive international, multilateral negotiations and treaties led by the Legislative

and Executive branches. This is how reduction of

nuclear weapons was achieved during and following

the Cold War.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

This case centers on the global sale and

consumption of oil and gas products that are used by

virtually every person on the planet every single day.

Respondents seek to impose ruinous liability on

Petitioners for their production and sale of these

essential products through claims brought under

state law. Due to the extensive Federal Government

involvement in the development and growth of the

domestic oil and gas industry, Respondents’ claims

implicate uniquely federal interests that are

necessarily governed by federal law.

Oil and gas products are critical to national

security,

economic

stability

and

military

preparedness. For more than 100 years, the Federal

Government has actively encouraged – indeed it has

compelled – domestic exploration, production and sale

of oil and gas. As federal courts have recognized,

petroleum products have been “crucial to the national

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

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

oils used for various military machines.” Exxon Mobil

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

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

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

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

Federal Government has incentivized and contracted

with Petitioners to obtain oil and gas products to

ensure a dependable, abundant supply of oil and gas

for the Nation’s economic and military security.

In contrast to the Colorado Supreme Court, the

United States Second Circuit Court of Appeals

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

fuels emit greenhouse gases – which collectively

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

[wa]s seeking damages.” City of New York, 993 F.3d

at 91, 97. “Consequently, though the City’s lawsuit

would regulate cross-border emissions in an indirect

and roundabout manner, it would regulate them

nonetheless.”

Id. at 93.

Therefore, the court

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

like Respondents claims here – sought “damages for

the cumulative impact of conduct occurring

simultaneously across just about every jurisdiction

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

state law.” Id. at 92.

We share the Second Circuit’s concerns. The

specter of huge and inconsistent damages awards

across the country is likely to trigger cascading effects,

gravely imperiling our military preparedness. Id. at

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

410, 427 (2011)) (explaining that “[t]o permit this suit

to proceed under state law would further risk upsetting

the careful balance that has been struck between the

prevention of global warming, a project that

necessarily requires national standards and global

participation, on the one hand, and energy production,

economic growth, foreign policy, and national security,

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

invariably differ in their assessment of the proper

balance between these national and international

objectives, there is a real risk that subjecting the

[energy companies’] global operations to a welter of

different states’ laws could undermine important

federal policy choices.” Id. The court concluded that

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

accountable … would ... bypass the various diplomatic

channels that the United States uses to address this

issue.” Id. at 103.

In contrast, the Colorado Supreme Court did

not address at all the “foreign policy concerns” that

the Second Circuit determined “foreclose” claims

“targeting emissions emanating from beyond our

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

foreign affairs concerns because that court concluded

Respondents “do not seek to regulate emissions”

because they have not “brought an action against a

pollution emitter to abate pollution” but instead “seek

damages from the production and sale of fossil fuels.”

586 P.3d at 165, 170, 171, 173, 175. But from our

perspective, this conclusion blinks reality. As

Colorado Supreme Court Justice Samour said in his

well-reasoned dissent, which was joined by Justice

Boatright, “that distinction is neither here nor there—

the bottom line is that this suit is about the alleged

GHG emissions from the energy companies, even if the

energy companies are actually a few steps removed

from the physical release of the pollutants.” Id. at

*178 (emphasis in the original). Similarly, the Second

Circuit explained “regulation can be effectively

exerted through an award of damages.” “Although the

City’s lawsuit would regulate cross-border emissions

in an indirect and roundabout manner, it would

regulate them nonetheless.” City of New York, 993

F.3d at 92-93.

It is precisely this “indirect and roundabout”

regulation of available fuel sources that concerns us.

State tort damages and abatement cases like this one

unduly risk constricting the availability of oil and gas

to the detriment of national security interests, at a

critical juncture in our Nation’s history, when

geopolitical forces and energy security are especially

vulnerable to international conflicts and belligerent

nations.

As the dissenting Justices recognized,

“Boulder’s requested relief will inevitably impose a

limitation on GHG emissions.” 586 P.3d at 178. This

is deeply concerning when the availability of

Petitioners’ fuel products remains crucial to the

success of our armed forces. As Admiral Mullen once

put it, “[e]nergy security needs to be one of the first

things we think about, before we deploy another

soldier, before we build another ship or plane, and

before we buy or fill another rucksack.”3 The Second

Circuit correctly recognized,

[t]o hold the [energy companies] accountable … would require them to internalize the costs of climate change

and would presumably affect the price

and production of fossil fuels abroad. It

would also bypass the various diplomatic channels that the United States

uses to address this issue, such as the

U.N. Framework and the Paris Agreement. Such an outcome would obviously sow confusion and needlessly

complicate the nation’s foreign policy,

while clearly infringing on the prerogatives of the political branches.

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

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

National de Cuba v. Sabbatino, 376 U.S. 398 (1964),

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

point an exercise of state power that touches on

foreign relations must yield to the National

Government’s policy, given the ‘concern for uniformity

in this country’s dealings with foreign nations’ that

animated the Constitution’s allocation of the foreign

relations power to the National Government in the

first place.”); 586 P.3d at 183, Samour, J. Dissenting

(“Because our federal government has clearly

balanced many different interests in formulating its

foreign policy on air pollution, it makes little sense to

allow international regulation through the types of

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

https://www.dvidshub.net/news/58040/mullen-military-hasstrategic-imperative-save-resources.

state claims Boulder has brought. By giving Boulder

the nod to proceed with its claims, the majority risks

impeding our federal government’s judgment as to

how to approach air pollution in the international

sphere.”).

And while Respondents may argue that their

case is not about regulating emissions, that they do

not seek to prevent the sale or use of fossil fuels, and

their claims are merely tort claims for damages, the

reality is their theory of causation and the relief they

seek are not so limited. As Justice Samour explained,

“[w]hile Boulder’s state-law claims masquerade as

tort claims for damages, a closer look at the substance

of those claims’ allegations reveals that Boulder seeks

to effectively abate or regulate interstate emissions.”

586 P.3d at 178. see also, Bucks County v. BP P.L.C.,

2025 WL 1484203 (Pa. Ct. Com. P. May 16, 2025) at

*7(“[w]hile Bucks County does everything it can to

avoid the issue of emissions, it cannot avoid the fact

that if there were no emissions there would be no

damages.”). Indeed, “regulation can be effectively

exerted through an award of damages,” Kurns v.

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

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

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

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

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

tort claims force defendants “to change [their]

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

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

Thus, to us, this clearly is not a simple,

localized dispute, with only limited intra-state

consequences and damages. We have seen firsthand

backdoor attempts to force reductions in tried-and-

true capabilities for less-proven substitutes. It poses

too much risk without as-good-if-not-better

performing substitutes. The military and Department

of Defense cannot afford to rely on a hope or an

aspiration that alternative fuels will be just as good

because there are too many lives at stake, and the

stakes are too great when fighting a war and

deploying men and women onto a battlefield. This is

especially so here when the alternative fuels are just

not sufficiently tested, especially battle-tested.

Our experience teaches us therefore that these

suits pose a grave threat to our national security

because any future damages award will necessarily

restrict fuel supply, and, in turn, will take from the

military, or significantly reduce, these proven fuel

capabilities without adequate substitutes, which will

imperil lives. The suggestion that we should just

“trust” that these suits will not take away or diminish

these capabilities, that the availability of fossil fuels

will not be reduced and that the military therefore will

not be weakened, defies reality.

The other side seems to rely on speculation that

these huge damages suits will not impact the supply

of fuel needed for our national security when we know

better; we’ve seen how these types of suits play out,

and it is men and women on the battlefield who wind

up getting hurt. Therefore, we feel duty-bound to file

this amicus brief as a friend of this Court on the

practical realities in play—not because we feel sorry

for the energy companies, but because we have seen

what happens when energy is effectively constrained

when it is needed most.

We have spent most of our adult lives managing

energy needs for the military, and it involves a complex, multi-factor apparatus to ensure our troops have

what they need to succeed. Neither this Court nor the

states and localities bringing these suits can expect

the military to take a leap of faith here; the risks are

just too high. As much as we’d like to never see war

again, sadly, past is prologue. We must be incredibly

judicious about putting these national assets at risk.

And while we are always open to new, innovative approaches, we must have the most effective and robust

energy sources possible and be wide-eyed and realistic

about what the costs versus rewards are with any

changes. We must look at alternatives honestly, not

hopefully. The military does not make policy, but once

we are sent to war or deployed into battle, we must

have the proven resources to succeed because lives are

at stake.

Allowing Respondents to obtain its requested

sweeping relief, therefore, “would encourage courts to

use vague public nuisance standards to scuttle the

nation’s carefully created system for accommodating

the need for energy production and the need for clean

air. The result would be a balkanization of clean air

regulations and a confused patchwork of standards, to

the detriment of industry and the environment alike.”

N. Car., ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d

291, 301 (4th Cir. 2010); see also United States v.

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

Because Respondents’ Complaint seeks to

penalize Petitioners for their lawful past, present and

future production and sale of oil and gas, it risks

making oil and gas prohibitively costly and scarce. See

Petitioners Merits Brief at 3 (describing a member of

the Respondents’ legal team as “openly avow[ing]”

that this case is part of “coordinated nationwide

litigation [that] aims to impose an enormous ‘carbon

tax’ that could ‘bankrupt[]’ the energy industry.”).

These claims, therefore, necessarily cause national

security concerns.

ARGUMENT

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

Federal Government has incentivized, compelled and

controlled aspects of United States oil and gas sales

and has reserved rights to take additional control for

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

economy. The Federal Government has required and

otherwise been inextricably involved in the

development of the Nation’s oil resources both for

governmental use and the use of billions of consumers.

Respondents’ claims arising from the production and

sale of oil and gas necessarily implicate the Federal

Government’s actions and policy choices, including

the extensive history of federal laws, contracts and

leases that supported and controlled significant

portions of our Nation’s fuel supply.

The Important National Security Interests in the Crosshairs of These Cases: The

Practical Realities and Importance of the

Production and Sale of Oil and Gas to Our

National Defense.

More than a century ago, in 1910, President

Taft implored Congress to develop domestic oil

sources: “As not only the largest owner of oil lands,

but as a prospective large consumer of oil by reason of

the increasing use of fuel oil by the Navy, the Federal

Government is directly concerned both in encouraging

rational development and at the same time insuring

the longest possible life to the oil supply.” Hearings

Before Committee on Naval Affairs of the House of

Representatives on Estimates Submitted by the

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

Within two years, on September 2, 1912,

President Taft established by Executive Order the

first “Naval Petroleum Reserve” at Elk Hills,

California, taking the extraordinary step of

withdrawing large portions of land from eligibility for

private ownership and designating them for the

development of fuel resources to ensure the United

States Navy would remain deployment-ready in the

event of war. See U.S. Gov’t Accountability Off.,

GAO/RCED-87-75FS, Naval Petroleum Reserves: Oil

Sales Procedures and Prices at Elk Hills, April

Through December 1986, at 3 (1987) (“GAO Fact

Sheet”).4

The defining characteristic of World War I was

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

and submarines), and accordingly “oil and its products

began to rank as among the principal agents by which

the Allies would conduct war and by which they could

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

Materials in International Conflict 1600 – The Present

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

Allies, as British Cabinet Minister Walter Long

expressed in an address to the House of Commons in

1917:

Oil is probably more important at this

moment than anything else. You may

have men, munitions, and money, but

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

if you do not have oil, … all your other

advantages would be of comparatively

little value.

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

& POWER (1991) at 177.

By 1917, American oil was vital for war efforts.

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

the aid of oil from America our modern oil-burning

fleet cannot keep the sea.” Lessor, Resources and

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

the United States provided over 80 percent of the

Allied requirements for petroleum products and

greatly influenced the outcome of the war. Id.

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

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

to President Wilson)).

World War II confirmed petroleum’s role as a

key American resource and underscored the

government’s interest in maintaining and managing

it. Statement of Ralph K. Davies, Deputy Petroleum

Administrator

War,

Special

Committee

Investigating Petroleum Resources, S. Res. 36, at 4

(Nov. 28, 1945) (“Our overseas forces required nearly

twice as many tons of oil as arms and armament,

ammunition,

transportation

and

construction

equipment, food, clothing, shelter, medical supplies,

and all other materials together. In both essentiality

and quantity, oil has become the greatest of all

munitions.”); National Petroleum Council, A National

Oil Policy for the United States at 1 (1949) (“A prime

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

of our national security.”).

In 1941, as the United States prepared to enter

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

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

oil for ships, lubricants, and synthetic rubber far

outstripped the Nation’s capacity. Given the role

played by strategic bombers, small attack bombers,

fighters, and search and rescue aircraft, avgas was

particularly essential to the war effort in both Europe

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

critically needed petroleum product during the War.

And it continues to be essential today. To ensure its

supply, the Federal Government created agencies to

control petroleum production and distribution; it

directed the production of certain petroleum products;

and it managed resources.

In 1942, President Roosevelt established

several agencies to oversee wartime petroleum

production, including the Petroleum Administration

for War (“PAW”).

The PAW centralized the

government’s petroleum-related activities. The PAW

dictated products, quantity and quality to America’s

oil refiners. See John W. Frey & H. Chandler Ide, A

History of the Petroleum Administration for War,

1941-1945, at 219 (1946)).

At the direction of the Federal Government, the

oil companies increased avgas production “over

twelve-fold from approximately 40,000 barrels per day

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

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

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

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

what the petroleum Industry contributed … can fail

to understand that it was, without the slightest doubt,

one of the most effective arms of this Government” in

fulfilling the government’s core defense functions.

Statement of Senator O’Mahoney, Chairman, Special

Committee Investigating Petroleum Resources, S.

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

In 1950, President Truman established the

Petroleum Administration for Defense (“PAD”) under

authority of the Defense Production Act of 1950, Pub.

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

of oil and gas to ensure adequate quantities of avgas

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

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

DPA to “force” the petroleum industry to “increase

[its] production of wartime . . . petroleum products”).

To further promote domestic oil and gas

production in 1953, Congress passed the Outer

Continental Shelf Lands Act (“OCSLA”), directing the

U.S. Department of the Interior to make nearly 27

million acres of the Outer Continental Shelf (“OCS”)

available for “expeditious and orderly development” of

fossil fuel production. 43 U.S.C. §1332(3).

During the Cold War, the U.S. military

commanded the development of more innovative

military fuels and continued its role as the driving

force behind domestic production. During the 1960s,

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

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

Declaration of Energy Independence at 17 (2008). As

demand continued to climb into the early 1970s, the

Nation faced a precarious shortage of oil and gas.

To avert a national energy crisis, in 1973,

President Nixon ordered a dramatic increase in

development for ready production from the OCS:

Approximately half of the oil and gas

resources in this country are located

on public lands, primarily on the

Outer Continental Shelf [OCS]. The

speed at which we can increase our

domestic energy production will

depend in large measure on how

rapidly these resources can be

developed. I am therefore directing

the Secretary of the Interior to take

steps which would triple the annual

acreage leased on the Outer

Continental Shelf by 1979 ….

Nixon Message, N.Y. Times, Apr. 19, 1973.5

The following year, President Nixon announced

a goal of energy independence by 1980. Annual

Message to the Congress on the State of the Union, 1

Pub. Papers 59 (Jan. 23, 1974).6

“Project

Independence 1980” ordered, among other things,

that the Secretary of the Interior “increase the

acreage leased on the [OCS] to 10 million acres

beginning in 1975, more than tripling what had

originally been planned.” Special Message to the

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

23, 1974).7

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

6 https://quod.lib.umich.edu/p/ppotpus/4731948.1974.001/99?view=image&size=100

7https://quod.lib.umich.edu/p/ppotpus/4731948.1974.001/69

In addition, Congress passed the Trans-Alaska

Pipeline Authorization Act of 1973, determining that

it was in the “national interest” to deliver oil and gas

from Alaska’s North Slope “to domestic markets …

because of growing domestic shortages and increasing

dependence upon insecure foreign sources.” TransAlaska Pipeline Authorization Act, Pub. L. No. 93153, § 202(a), 87 Stat. 576, 584 (1973), Pub. L. No. 93153.8

To address “immediate and critical” petroleum

shortages in the military brought about by the 1973

OPEC Oil Embargo, the Federal Government invoked

the DPA to bolster its reserves with additional

petroleum from domestic oil and gas companies.

Twenty-Fourth Annual Report of the Activities of the

Joint Committee on Defense Production, S. Rep. No.

94-1, Pt. 1, at 442 (Jan. 17, 1975, 1st Sess.).

In 1974, responding to President Nixon’s

direction to “increase the acreage leased on the Outer

Continental Shelf”, Congress amended OCSLA. This

amendment increased federal control over lessees “to

result in expedited exploration and development of

the Outer Continental Shelf in order to achieve

national economic and energy policy goals, assure

national security, reduce dependence on foreign

sources, and maintain a favorable balance of

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

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

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

8 https://www.govinfo.gov/content/pkg/ STATUTE-87/pdf/STAT-

UTE-87-Pg576.pdf

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

23, 1974).9

In 1978, as part of amendments to OCSLA, the

Congressional Ad Hoc Select Committee on the OCS

concluded again that “alternative sources of energy

will not be commercially practical for years to come,”

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

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

needed time—as much as a generation—within which

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

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

II.

A Dependable, Abundant Supply of Oil

and Gas Continue to be Essential to Our

Nation’s Conduct of Foreign Affairs and

Military Preparedness.

In 1995, Congress and President Clinton

amended OCSLA to permit the Secretary of the

Interior to “unlock an estimated 15 billion barrels of

oil in the central and western Gulf of Mexico” for

exploration, production and sale. Press Secretary,

White House Office of Communications, Statement on

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

699656, at *1.

Federal promotion and use of domestic oil continued to grow in the 2000s. In 2006, the Bush Administration opened leases of approximately 8 million

additional acres of OCS lands in the Gulf of Mexico to

“address high energy prices, protect American jobs,

and reduce our dependence on foreign oil.” Statement

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

9https://quod.lib.umich.edu/p/ppot-

pus/4731948.1974.001?rgn=main;view=fulltext.

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

added).10

In 2010, President Obama “announc[ed] the

expansion of offshore oil and gas exploration,”

explaining “in order to sustain economic growth,

produce jobs, and keep our businesses competitive, we

are going to need to harness traditional sources of fuel

even as we ramp up production of new sources of

renewable, homegrown energy.” President Barack

Obama, Remarks on Energy at Andrews Air Force

Base, Maryland (Mar. 31, 2010) (emphasis added).11

In 2019, the United States became a net total

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

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

(Apr. 27, 2020).12 The Department of Defense alone

purchased 94.2 million barrels of military-spec

compliant fuel products, totaling $12.1 billion in

procurement actions.13

Even during President

Biden’s Administration, as former Vice Admiral

Robert Harward reported, “energy manufacturers are

answering President Biden’s directive to export

natural gas to our allies in Europe. For example, the

U.S. has been able to respond to Russia’s chokehold of

the European energy market by increasing shipments

10 https://books.google.com/books?id=o2ei8yOph-

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

11https://obamawhitehouse.archives.gov/the-press-office/remarks-president-energy-security-andrews-air-force-base3312010

12 https://www.eia.gov/energyexplained/ us-energy-facts/imports-and-exports.php.

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

(2019) at 4, 27, https://www.dla.mil/Portals/104/Documents/Energy/Publications/FactBookFiscalYear2019_highres.pdf?ver=2020-01-21-103755-473.

of liquefied natural gas and crude oil by 137 percent

and 38 percent, respectively.”14

And, just a year ago, on April 8, 2025, President

Trump issued Executive Order 14260, titled “Protecting American Energy from State Overreach”, stating

the federal policy priority as follows: “An affordable

and reliable domestic energy supply is essential to the

national and economic security of the United States

as well as our foreign policy.” (Emphasis added).

Shortly, thereafter, on August 6, 2025, relying, in

part, on this Executive Order, a South Carolina court

dismissed a similar climate change case filed by a municipality in its entirety, stating:

“The U.S. Constitution makes certain

matters the exclusive domain of federal

law for good reason. If all fifty states,

let alone the tens of thousands of

political subdivisions therein, were

permitted to apply their own laws to

such federal issues as interstate and

international emissions, the result

would be conflicting state standards

that would be impossible for energy

companies to navigate—what the U.S.

Supreme Court called a “chaotic

confrontation

between

sovereign

states.” Ouellette, 479 U.S. at 496.

That chaos would hamstring

national energy production, which

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

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

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

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

the

Executive

Branch

has

highlighted as a priority across

Administrations. See Exec. Order

14,260, 90 Fed. Reg. 15,513, 15,513–14

(Apr. 8, 2025) (“My Administration is

committed to unleashing American

energy, especially through the removal

of all illegitimate impediments”—

including these “causes of action”—“to

the identification, development, siting,

production, investment in, or use of

domestic

energy

resources—

particularly oil, natural gas, coal,

hydropower,

geothermal,

biofuel,

critical mineral, and nuclear energy

resources.”); Ben Lefebvre, “We are on

war footing”: Granholm calls on oil

companies to ramp up production,

Politico

(Mar.

2022),

https://bit.ly/40b52i6

(Biden

Administration emphasizing the “need

[for] oil and gas production to rise to

meet current demand”); Obama’s

Remarks on Offshore Drilling, N.Y.

Times

(Mar.

31,

2010),

https://bit.ly/4lG2mkO

(Obama

Administration

announcing

“the

expansion of offshore oil and gas

exploration” because “our dependence

on foreign oil threatens our economy”)”.

Order Granting Defendants’ Joint Motion to Dismiss

at 14, City of Charleston v. Brabham Oil Co., Case No.

2020-CP-02975 (S.C. Ct. Com. Pl. Aug. 6, 2025)

(emphasis added).

Finally, as recently as last month, on April 20,

2026, President Trump signed several determinations

under the Defense Production Act finding that

“ensuring resilient domestic petroleum production,

refining and logistics capacity is central to the United

States defense readiness.” “Petroleum fuels the

Nation’s armed forces….Without immediate federal

action, United States defense capabilities will remain

vulnerable

disruption.”

The Presidential

Determinations also stated that “ensuring sufficient”

fossil fuels are “essential to United States national

defense,” and “critical” to sustaining United States

defense operations and ensuring allied energy

security. See, 2026-04-20, Presidential Determination

to Section 303 of the Defense Production Act (“DPA”)

of 1950, as Amended, on Domestic Petroleum

Production, Refining and Logistics Capacity.15 See

also,

2026-04-20

Presidential

Determination

pursuant to Section 303 of the Defense Production Act

of 1950, as Amended, on Natural Gas Transmission,

Processing, Storage, and Liquefied Natural Gas

Capacity (relying on the January 2025 Executive

Order 14156 (Declaring a National Energy

Emergency)(“hostile foreign actors have weaponized

American’s reliance on foreign energy…leaving the

United

States

and

its

allies

dangerously

exposed….America [therefore] must develop its

capacity to supply …energy to international allies to

compete with hostile foreign powers…and support

international peace and security.”).

15 See https://www.whitehouse.gov/presidential-ac-

tions/2026/04/presidential-determination-pursuant-to-section303-of-the-defense-production-act-of-1950-as-amended-on-domestic-petroleum-production-refining-and-logistics-capacity/

When Respondents’ Complaint is viewed

within the historical context of the Federal

Government’s pervasive control and direction of oil

and gas production, it is clear Respondents’ state law

claims seek to undercut these national and

international policies and actions governing the sale

of oil and gas and trigger national security concerns

for a reliable and stable energy supply.

III.

Our Nation’s Vital Interests in Fuel Security and Managing Climate Change Cannot be Regulated by a Patchwork of StateCourt Actions.

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

upshot of this litigation and the broad relief it seeks

would undermine national interests in fuel security

and military readiness. As the foregoing history and

our personal experience demonstrate, fuel security is

a crucial national interest and is especially critical to

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

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

bases, stations, and detachments, and enable

numerous operations. It should thus come as no

surprise that the U.S. military is the single largest

purchaser and consumer of fuel in the United States.

Climate change is likewise an issue of critical

national (indeed, global) importance. Greenhouse-gas

emissions are a form of transboundary air pollution

and thus present a matter of uniquely federal concern,

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

York, 993 F.3d at 85-86 (“Global warming presents a

uniquely international problem of national concern. It

is therefore not well-suited to the application of state

law.”).

Because national security issues and climate

change concerns are both uniquely federal interests,

they must be addressed and solved by the Federal

Government and the political branches, not through

bread-and-butter state law claims. See Torres v. Texas

Dep’t of Pub. Safety, 597 U.S. 580, 590 (2022) (“[T]he

Constitution’s text, across several Articles, strongly

suggests a complete delegation of authority to the

Federal Government to provide for the common

defense . . . [Therefore] [t]hese substantial limitations

on state authority, together with the assignment of

sweeping power to the Federal Government, provide

strong evidence that the structure of the Constitution

prevents States from frustrating national objectives

in this field.”).

Litigating

Respondents’

claims

against

Petitioners in a decentralized way under various

states’ laws will undermine these vital national

interests and undermine a reliable domestic fuel

supply. It would subject Petitioners to potential

liability under a patchwork of state laws, without a

uniform guide. Courts have recognized that this

would “risk upsetting the careful balance that has

been struck between the prevention of global

warming, a project that necessarily requires national

standards and global participation, on the one hand,

and energy production, economic growth, foreign

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

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

will invariably differ in their assessment of the proper

balance between these national and international

objectives, there is a real risk that subjecting the

Producers’ global operations to a welter of different

states’ laws could undermine important federal policy

choices.”); Bucks County, 2025 WL 1484203, at *8

(recognizing “that our federal structure does not allow

… any State’s law, to address the claims raised in

[the] County’s Complaint. Rather, federal common

law addresses subjects within national legislative

power where Congress has so directed or where the

basic scheme of the Constitution so demands.”).

To be sure, the U.S. military continues to look

for “greener” ways to fuel its operations, and we

support ameliorating climate change risks at our

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

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

potential superior deployment abilities because of

those uses. The United States could go it alone and

unilaterally strip itself of higher-performing fossil

fuels, but that risks putting the Nation at a significant

disadvantage, militarily and otherwise. The ruinous

damages these cases seek risk knee-capping this

country while empowering others who seek to exploit

just such vulnerabilities. Stated differently, energy

security and national security go hand-in-hand; we

cannot achieve national security without energy

security.

At bottom, our experience has taught us that

private-sector production and sale of oil and gas are

essential to our military operations and thus our

national security.

The practical reality is that

Respondents far-reaching claims are a recipe for a

runaway tort system, which would interfere with the

proper balancing of federal and state interests. It

would elevate parochial interests over the national

common good. Our Constitutional oath includes our

commitment to “support and defend the Constitution

of the United States against all enemies, foreign and

domestic,” which necessarily includes a commitment

to ensure the military has sufficient fuel to accomplish

its missions. To adhere to that oath, it is the duty of

military officers to enable a plentiful supply of fuel to

operate vehicles, ships, and planes. Because energy is

essential to protect our Nation, its people, and the

world at large, the decision of how much is

appropriate must be left with the Federal

Government and the branches of the Federal

Government tasked with our foreign policy and

national security.

CONCLUSION

The dissenting Justices below rightly explained

that if allowed to stand the decision would “contribute

to a patchwork of inconsistent local standards that

will beget regulatory chaos.” 586 P.3d at 184. We

share this exact concern, as the resulting regulatory

chaos and impact on our fuel supplies will directly impair national security. Having committed our lives to

the defense of this Nation, we view this problematic

outcome as completely inconsistent with the Constitution’s delegation of power. As Justice Samour succinctly put it “[i]n our individual nation, that just can’t

be right.” Id. Accordingly, we urge this Court to reverse the Colorado Supreme Court’s decision.

Respectfully submitted,

Tristan L. Duncan

(Counsel of Record)