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 AMERICAN FREE ENTERPRISE

CHAMBER OF COMMERCE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

_______________

Michael Francisco

Counsel of Record

James Compton

FIRST & FOURTEENTH, PLLC

800 Connecticut Avenue NW,

Suite 300

Washington, DC 20006

(202) 998-1978

michael@first-fourteenth.com

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT .............................................................. 3

I.

II.

The Clean Air Act Does Not Authorize Boulder

County’s Suit. ...................................................... 3

A.

Federal Law Governs Transboundary

Emissions Claims. ....................................... 4

B.

Congress Must Speak Clearly to Delegate

Authority Over Transboundary Emissions

to the States............................................... 10

C.

The Clean Air Act Does Not Give States

Authority Over Transboundary Emissions.

.................................................................... 12

Boulder County and the Colorado Supreme

Court Conspired Together To Deceive the Public

About the Nature of the Claims at Issue. ........ 14

III. The Colorado Supreme Court’s Decision Has

Dire Consequences for the Nation’s Energy

Security. ............................................................ 17

CONCLUSION ......................................................... 21

ii

TABLE OF AUTHORITIES

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ......................................... 13, 14

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ......................................... 5, 7, 9

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021)..... 2, 6, 10, 12, 14–16, 18

Cooley v. Bd. of Wardens of Port of Phila.,

53 U.S. 299 (1851) ................................................. 12

Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993) ............................................... 17

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019) ........................................... 17

Franchise Tax Bd. of Cal. v. Hyatt,

587 U.S. 230 (2019) ............................................. 4–5

Georgia v. Tenn. Copper Co.,

206 U.S. 230 (1907) ............................................. 6, 8

Huntington v. Attrill,

146 U.S. 657 (1892) ................................................. 7

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ................................................... 9

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ....................................... 2, 9–15

Int’l Shoe Co. v. Washington,

326 U.S. 310 (1945) ................................................. 8

Kansas v. Colorado,

206 U.S. 46 (1907) ............................................... 5–6

iii

Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487 (1941) ................................................. 8

Livingston v. Jefferson,

15 F. Cas. 660 (C.C.D. Va. 1811) ............................ 5

Mallory v. Norfolk S. Ry. Co.,

600 U.S. 122 (2023) ................................................. 8

Massachusetts v. EPA,

549 U.S. 497 (2007) ............................. 1, 2, 4, 12, 15

M’Culloch v. Maryland,

17 U.S. 316 (1819) ................................................... 4

Minnesota v. Am. Petrol. Inst.,

63 F.4th 703 (8th Cir. 2023).................................... 3

North Carolina ex rel. Cooper v. Tenn. Valley Auth.,

615 F.3d 291 (4th Cir. 2010) ............................. 7, 12

NFIB v. OSHA,

595 U.S. 109 (2022) ................................................. 5

Ohio v. Wyandotte Chems. Corp.,

401 U.S. 493 (1971) ................................................. 8

Ontario v. EPA,

912 F.2d 1525 (D.C. Cir. 1990) ............................... 7

Rhode Island v. Massachusetts,

37 U.S. 657 (1838) ................................................... 4

Sackett v. EPA,

598 U.S. 651 (2023) ............................................... 11

Texas v. Pankey,

441 F.2d 236 (10th Cir. 1971) ................................. 9

Tex. Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) ................................................. 5

Trump v. Anderson,

144 S. Ct. 662 (2024) (per curiam) ........................ 14

iv

The Antelope,

23 U.S. 66 (1825) ..................................................... 7

Trail Smelter Arb. (U.S. v. Can.),

3 R.I.A.A. 1905 (1938) ............................................. 7

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ........................................... 3, 22

United States v. Darby,

312 U.S. 100 (1941) ................................................. 6

West Virginia v. EPA,

597 U.S. 697 (2022) ............................................... 13

West Virginia ex rel. Dyer v. Sims,

341 U.S. 22 (1951) ................................................... 7

Constitutional Provisions

U.S. Const. art. I, § 10 ................................................. 4

U.S. Const. art. I, § 10, cl. 3. ....................................... 6

U.S. Const. art. III, § 2 ................................................ 4

Statutes

28 U.S.C. § 1441(d) .................................................... 19

28 U.S.C. § 1604 .................................................... 3, 19

42 U.S.C. § 7402 .......................................................... 6

42 U.S.C. § 7411(a)(1) ............................................... 13

42 U.S.C. § 7521(a)(2) ............................................... 13

42 U.S.C. § 7522 .......................................................... 6

42 U.S.C. § 7545(c)(2)(B) ........................................... 13

42 U.S.C. § 7545(o) .................................................... 13

42 U.S.C. § 7607(d) .................................................... 14

v

Other Authority

89 Fed. Reg. 16,280 (Mar. 6, 2024) ........................... 13

Clifford Krauss, As Western Oil Giants Cut

Production, State-Owned Companies Step Up,

N.Y. Times (Oct. 14, 2021). ................................... 18

Climate Accountability Inst., Carbon Majors: Update

of Top Twenty Companies 1965–2017 .................. 18

David Fickling & Elaine He, The Biggest

Polluters Are Hiding in Plain Sight,

Bloomberg (Sept. 30, 2020) ................................... 18

Dep’t of Defense, Fiscal Year 2023 Energy

and Fuel Budget Justification Report

(Aug. 2022)............................................................. 20

Energy Info. Admin., U.S. Energy Facts

Explained (last updated Aug. 16, 2023) ............... 20

George L. Priest, Market Share Liability in Personal

Injury and Public Nuisance Litigation: An

Economic Analysis,

18 S. Ct. Econ. Rev. 109 (2010) ............................. 19

Liberty Energy, Bettering Human Lives (2024) ....... 16

Michael S. Greve, The Upside-Down

Constitution (2012) ............................................ 8, 12

Patrick R. P. Heller & David Mihalyi, Nat’l Res.

Governance Inst., Massive and Misunderstood:

Data Driven Insights into National Oil Companies

(Apr. 2019) ............................................................. 18

Proclamation No. 230,

19 Stat. 655 (Aug. 1, 1876) ...................................... 5

The Federalist No. 80 (Alexander Hamilton) ............. 2

vi

Thomas A. Troszak, Why Do We Burn Coal and Trees

To Make Solar Panels? (rev. 2019) ....................... 16

Thomas W. Merrill, Is Public Nuisance a Tort?,

4 J. Tort L. 1 (2011) ................................................. 7

Thomas W. Merrill, Preemption in Environmental

Law, in Federal Preemption (Richard A. Epstein &

Michael S. Greve eds. 2007). ................................. 11

Thomas W. Merrill, The New Public Nuisance:

Illegitimate and Dysfunctional,

132 Yale L.J. F. 985 (2023). .................................. 19

Stephen E. Sachs, Pennoyer Was Right,

95 Tex. L. Rev. 1249 (2017)..................................... 8

Williams Nordhaus, The Climate Casino (2013)...... 16

1

INTEREST OF AMICUS CURIAE1

Formed in 2022, the American Free Enterprise

Chamber of Commerce (“AmFree”) is an entity organized consistent with section 501(c)(6) of the Internal

Revenue Code that represents hard-working

entrepreneurs and businesses across all sectors of the

U.S. economy. AmFree’s members are vitally

interested in energy security and the continued

viability of our commercial republic.

AmFree launched the Center for Legal Action

(“CLA”) to represent these interests in court. CLA is

spearheaded by former U.S. Attorney General Bill

Barr. Under Attorney General Barr’s leadership, the

Department of Justice argued that federal law exclusively governs transboundary emissions claims. The

Colorado Supreme Court’s contrary view is not just

wrong, it gravely threatens the energy security of the

United States, and therefore, our national sovereignty.

SUMMARY OF ARGUMENT

This case is about who decides. The Colorado

Supreme Court claims the Clean Air Act empowers

every state to govern “the atmosphere around the

world.” Massachusetts v. EPA, 549 U.S. 497, 541

(2007) (Roberts, C.J., dissenting). The Second

Circuit’s response to this contention was right: “Such

1 Pursuant to Supreme Court Rule 37.6, amicus curiae affirms

that no counsel for a party authored this brief in whole or in part,

and that no person or entity, other than amicus, its members, or

its counsel made a monetary contribution to the preparation or

submission of the brief.

2

an outcome is too strange to seriously contemplate.”

City of New York v. Chevron Corp., 993 F.3d 81, 98–

99 (2d Cir. 2021). The Court should reverse.

Amicus Curiae underscore three key points.

First, constitutional text, history, and tradition

demonstrate that federal law governs claims premised

on transboundary emissions. Congress legislates

against that legal backdrop. Accordingly, this Court’s

decision in International Paper Company v. Ouellette,

479 U.S. 481 (1987), demonstrates that a clear delegation of authority from Congress is necessary before

states may enter the field of transboundary emissions.

No such delegation appears in the text of the Clean

Air Act, and none may be implied.

The Colorado Supreme Court reached the wrong

answer because it asked the wrong question. The

question is not “whether any federal common law

exists at all,” Pet. App. 20a, but whether the Clean Air

Act, as read by this Court, gives birth to “a hydra in

government” by silently delegating power over transboundary emissions to all 50 states. The Federalist

No. 80 (Alexander Hamilton). This has never been the

law. Indeed, even this Court’s most expansive decision

regarding state involvement in carbon emissions,

Massachusetts v. EPA, rejected this proposition, reasoning that states have standing to sue precisely

because they are constitutionally powerless to regulate greenhouse gas emissions beyond their borders

without federal assistance. 549 U.S. at 519.

Second, the Colorado Supreme Court brazenly

asserts that “Boulder’s claims do not seek to regulate

GHG emissions,” but only “seek compensation for”

Petitioners’ “upstream production activities.” Pet.

3

App. 21a. This Court should not be fooled by

Colorado’s deliberate obfuscation of what this lawsuit

is really about. “There is no hiding the obvious”: this

lawsuit “seeks a global remedy for a global issue.”

Minnesota v. Am. Petrol. Inst., 63 F.4th 703, 717 (8th

Cir. 2023) (Stras, J., concurring).

Third, the stakes could hardly be higher. If

Colorado and like-minded states succeed in imposing

an unwieldy patchwork of carbon penalties on private

energy firms, the United States could soon become

dependent on energy companies owned by foreign

states to meet its energy needs, since foreign states

alone can claim sovereign immunity. 28 U.S.C. § 1604.

Many of those companies are controlled by countries

hostile to the United States.

The Court should reverse to stop this grave

threat to U.S. energy security and the principles of

horizontal federalism. The Court should not be

“willing to stand on the dock and wave goodbye as

[Colorado] embarks on this multiyear voyage of

discovery.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302,

328 (2014).

ARGUMENT

I.

The Clean Air Act Does Not Authorize

Boulder County’s Suit.

According to the Supreme Court of Colorado, the

Clean Air Act silently empowered all 50 states and

each of their political subdivisions to seek damages for

alleged harm resulting from the use of fossil fuels

around the world. Pet. App. 11a–16a. The Clean Air

Act accomplished no such sub rosa delegation of

power. Indeed, this Court has explained that “[w]hen

4

a State enters the Union, it surrenders certain

sovereign prerogatives,” including the power to

control emissions beyond its borders. Massachusetts,

549 U.S. at 519. The Clean Air Act does not expand

those sovereign prerogatives.

A.

Federal Law Governs Transboundary

Emissions Claims.

The U.S. Constitution extinguishes diplomatic

relations among the states and forbids them from

engaging in war, unless in imminent danger of invasion. See U.S. Const. art. I, § 10; Franchise Tax Bd. of

Cal. v. Hyatt, 587 U.S. 230, 245 (2019). In doing so,

the Constitution replaces war and peace with law and

courts. Conflicts among states are no longer “decide[d]

by the sic volo, sic jubeo, of political power,” but by the

“judgment” of courts “bound to act by known and settled principles of national or municipal jurisprudence,

as the case requires.” Rhode Island v. Massachusetts,

37 U.S. 657, 737 (1838). This is not the Articles of

Confederation.

The Constitution says precious little about how

judges ought to decide the interstate and international disputes that would inevitably arise among

states and their citizens. The Constitution, to use a

felicitous phrase, doesn’t “partake of the prolixity of a

legal code.” M’Culloch v. Maryland, 17 U.S. 316, 407

(1819). Instead, the Constitution establishes national

institutions designed to give national, impartial

answers to those disputes. That includes Congress

and a Supreme Court, vested with original jurisdiction to decide cases “in which a State shall be [a]

Party.” U.S. Const. art. III, § 2.

5

For most of our history, interstate disputes proceeded without Congress. Congress did not create a

Code Napoléon because it didn’t have to. In our system, unwritten law supplies the background rules of

decision “until those rules should be changed by the

competent authority.” Livingston v. Jefferson, 15 F.

Cas. 660, 665 (Marshall, Circuit Justice, C.C.D. Va.

1811) (emphasis added). The question in this case is,

who is the competent authority? “Who decides?” NFIB

v. OSHA, 595 U.S. 109, 121 (2022) (Gorsuch, J., concurring).

Not Colorado. Colorado stands on an equal

footing with the other states, so it is not a competent

authority over interstate or international emissions

questions. See Proclamation No. 230, 19 Stat. 655, 655

(Aug. 1, 1876) (Admission of Colorado Into the Union).

The “Constitution implicitly forbids that exercise of

power because the ‘interstate … nature of the

controversy makes it inappropriate for state law to

control.’” Hyatt, 587 U.S. at 246 (quoting Tex. Indus.,

Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641

(1981)).

Instead, interstate emissions are a federal

domain. The default authority, until Congress acts, is

this Court. As this Court put it over a century ago:

One cardinal rule, underlying all the relations

of the states to each other, is that of equality

of right. Each state stands on the same level

with all the rest. It can impose its own

legislation on no one of the others, and is

bound to yield its own views to none. Yet,

whenever … the action of one state reaches,

through the agency of natural laws, into the

territory of another state, the question of the

6

extent and the limitations of the rights of the

two states becomes a matter of justiciable

dispute between them, and this court is called

upon to settle that dispute in such a way as

will recognize the equal rights of both and at

the same time establish justice between them.

In other words, through these successive

disputes and decisions this court is practically

building up what may not improperly be called

interstate common law.

Kansas v. Colorado, 206 U.S. 46, 97–98 (1907).

“For over a century,” interstate common law

developed by this Court governed air pollutants blown

to another state by the prevailing winds. City of New

York, 993 F.3d at 91. As Justice Holmes observed in

Georgia v. Tennessee Copper Company, when states

surrendered their prerogatives of war and peace to the

national government, they “made the forcible abatement of outside nuisances impossible to each.” 206

U.S. 230, 237 (1907). “[T]he alternative to force is a

suit in this court.” Id.

Congress is the only competent authority to

change these rules. Congress may enact a “policy of

excluding from interstate commerce all goods …

which do not conform” to federal emissions standards.

United States v. Darby, 312 U.S. 100, 121 (1941); see,

e.g., 42 U.S.C. § 7522. The U.S. Constitution also

allows states to enter interstate compacts to resolve

interstate disputes, subject to Congress’s approval.

U.S. Const. art. I, § 10, cl. 3. The Compact Clause thus

confirms that Congress, not one state, or multiple

states together, is the competent authority to change

background rules of interstate common law. See, e.g.,

42 U.S.C. § 7402 (encouraging interstate air pollution

7

compacts).

Interpreting

interstate

compacts,

moreover, “is the function and duty of the Supreme

Court of the Nation.” West Virginia ex rel. Dyer v.

Sims, 341 U.S. 22, 28 (1951).

When it comes to transnational emissions, states

have even less power, as does this Court. States must

enlist the political branches to assist them in diplomatic negotiations, for example, by setting up an

international arbitral tribunal or an international

commission, which decides questions according to

principles of international law, not state law. See, e.g.,

Trail Smelter Arb. (U.S. v. Can.), 3 R.I.A.A. 1905

(1938); Ontario v. EPA, 912 F.2d 1525, 1529 (D.C. Cir.

1990).

It is, after all, a longstanding principle that “[t]he

Courts of no country execute the penal laws of

another.” The Antelope, 23 U.S. 66, 123 (1825). Public

nuisance is a public wrong with roots in the “criminal

law.” Thomas W. Merrill, Is Public Nuisance a Tort?,

4 J. Tort L. 1, 5 (2011). It was used to punish “broadranging offenses” against public health and morals,

including “bullfights.” North Carolina ex rel. Cooper v.

Tenn. Valley Auth., 615 F.3d 291, 301–02 (4th Cir.

2010) (Wilkinson, J.). Under international rules of

conflicts of law, public nuisance claims may have been

penal laws barred from extraterritorial operation. See

Huntington v. Attrill, 146 U.S. 657, 673 (1892)

(discussing the meaning of penal laws).

In any event, there was little need to confirm that

the federal law of transboundary emissions was exclusive. Throughout this period, territorial rules of personal jurisdiction prevented states from seeking

recourse through their courts against out-of-state persons. Before International Shoe Company v.

8

Washington, 326 U.S. 310 (1945), jurisdiction was

based on a territorial theory of presence or consent.

See Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 138

(2023). A copper company located in Tennessee was

not personally subject to a suit in Georgia court under

Georgia law, even if its copper and emissions ended

up in Georgia through the stream of commerce and

the prevailing winds. To secure a binding judgment

against a Tennessee copper company in an impartial

forum, Georgia had to submit to this Court, which

would then apply a general law of nuisance, not

Georgia law. Tenn. Copper, 206 U.S. at 237.

International Shoe and the related “development

of ‘long-arm jurisdiction’ means, in most instances,

that no necessity impels [this Court] to perform such

a role.” Ohio v. Wyandotte Chems. Corp., 401 U.S. 493,

497 (1971); see also City of Milwaukee v. Illinois

(Milwaukee II), 451 U.S. 304, 312 n.5 (1981) (rejecting

a personal jurisdiction defense under International

Shoe). Under International Shoe’s malleable standards, state courts can claim broad power over out-ofstate persons—so broad, that the state of Colorado can

become a focal point for torts allegedly committed by

multinational energy companies everywhere and

affecting everyone. Pet. App. 23a, 67a.

It doesn’t take an expert in game theory to grasp

how this threatens a “race to the courthouse”—and to

the bottom. Stephen E. Sachs, Pennoyer Was Right,

95 Tex. L. Rev. 1249, 1259 (2017); Michael S. Greve,

The Upside-Down Constitution 234, 304 (2012).

International Shoe, combined with other legal developments in horizontal federalism, see, e.g., Klaxon Co.

v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941),

threatened to leave no impartial court and body of law

9

to resolve transboundary emissions claims. Why

would a state negotiate in Congress when its courts

can simply impose liability on out-of-state defendants

or order them to cease doing business?

Federal courts have rejected this race to the bottom. As the Tenth Circuit explained in a pathbreaking

decision, history and precedent confirm that:

Federal common law and not the varying

common law of the individual States is, we

think, entitled and necessary to be recognized

as a basis for dealing in uniform standard

with the environmental rights of a State

against improper impairment by sources

outside its domain.

Texas v. Pankey, 441 F.2d 236, 241 (10th Cir. 1971).

In Milwaukee I, this Court embraced Pankey, confirming that disputes that “deal with air and water in

their ambient or interstate aspects” are governed by

federal common law. Illinois v. City of Milwaukee

(Milwaukee I), 406 U.S. 91, 99–100, 103 (1972). The

Court identified an “overriding federal interest” in

applying federal law to “the pollution of a body of

water such as Lake Michigan bounded, as it is, by four

States.” Id. at 105 n.6.

Logically, “[i]f federal common law exists, it is

because state law cannot be used.” Milwaukee II, 451

U.S. at 313 n.7. “[T]he implicit corollary of this ruling,” therefore, “was that state common law was

preempted.” Ouellette, 479 U.S. at 488; see Illinois v.

Milwaukee (Milwaukee III), 731 F.2d 403, 414 (1984)

(so concluding on remand). Milwaukee I, therefore,

confirmed what history and tradition already showed:

the law of transboundary emissions is a federal

10

domain, not a state domain. City of New York, 993

F.3d at 91–92.

B.

Congress Must Speak Clearly to

Delegate Authority Over Transboundary

Emissions to the States.

The question in this case is whether Congress

subsequently changed that status quo and delegated

authority to the states. Changing the federal baseline

of exclusive federal power over transboundary emissions requires a clear statement from Congress. As

Ouellette put it, Congress must “specifically” authorize state transboundary emissions lawsuits to proceed. 479 U.S. at 492.

Ouellette involved a nuisance claim under

Vermont law, seeking compensatory, punitive, and

injunctive relief against a New York source that was

polluting Lake Champlain. 479 U.S. at 484. By the

time of Ouellette, Milwaukee II had decided the relevant federal common law had been displaced by the

Clean Water Act. Id. at 489. The question, as here,

was whether this opened the field of interstate water

pollution to the rule of 50 states.

The answer was no. As this Court recognized, the

default rule is that control over interstate pollution is

“a matter of federal law.” Ouellette, 479 U.S. at 492.

“[I]f a New York source were liable for violations of

Vermont law,” this Court recognized, “Vermont and

other states could do indirectly what they could not do

directly—regulate the conduct of out-of-state sources.”

Id. at 495. “Nothing in the Act gives each affected

State this power to regulate discharges.” Id. at 497. “It

would be extraordinary for Congress,” this Court con-

11

tinued, to delegate to the states the power “to undermine” the balance of interests struck by the federal

agency in charge. Id.

In light of the tradition of exclusive federal law

and the federal scheme, the best reading of the Clean

Water Act (including its savings clause) was that it

authorized suits only under the law of the “source

State.” Id. at 496–500. A suit for compensatory, punitive, or injunctive relief against a New York source

thus could not proceed under Vermont law. See id. at

498 n.19 (rejecting the U.S. Solicitor General’s argument that suits for compensatory relief could proceed

under Vermont law).

Although couched as an obstacle preemption

case, Ouellette’s logic follows from the federalism

canon, which “requires Congress to enact exceedingly

clear language if it wishes to significantly alter the

balance between federal and state power.” Sackett v.

EPA, 598 U.S. 651, 679 (2023) (cleaned up); see

Ouellette, 479 U.S. at 492. “[M]any decades before the

[Clean Water Act] was enacted, such pollution was

governed exclusively by federal common law, and

Congress is presumed to legislate against the background of established law.” Thomas W. Merrill,

Preemption in Environmental Law, in Federal

Preemption 166, 183 (Richard A. Epstein & Michael S.

Greve eds. 2007). Therefore, if an issue was beyond

the authority of a state before a statute like the Clean

Water Act, it remains out of reach after the Act unless

Congress clearly says otherwise. The Act did not

speak clearly enough to delegate power in this

“extraordinary” way to the states. Ouellette, 479 U.S.

at 497.

12

In other words, when it comes to the law of interstate pollution, the presumption under the

Supremacy Clause is exclusive federal power, not concurrent power. “Whatever subjects of this power are

in their nature national, or admit only of one uniform

system, or plan of regulation, may justly be said to be

of such a nature as to require exclusive legislation by

Congress.” Cooley v. Bd. of Wardens of Port of Phila.,

53 U.S. 299, 319 (1851). So it is with the law of transboundary emissions. The Second Circuit therefore

was right to hold that “resorting to state law … is permissible only to the extent authorized by federal statute.” City of New York, 993 F.3d at 99 (emphasis

added) (cleaned up). And, under Ouellette, that

authorization must be clear.

The Colorado Supreme Court’s reliance on the

presumption against preemption is backwards. Pet.

App. 11a–12a. The background “balance between federal and state power” is that states have never governed this area, so the presumption is that they still

don’t.

C.

The Clean Air Act Does Not Give States

Authority

Over

Transboundary

Emissions.

“To say [the Clean Air Act’s] regulatory and permitting regime is comprehensive would be an understatement.” Cooper, 615 F.3d at 298. In Massachusetts

v. EPA, this Court held that the term “air pollution

agent” in the Clean Air Act unambiguously delegates

to EPA authority to control domestic gases that

absorb infrared radiation, commonly known as greenhouse gases, at least in some contexts. 549 U.S. at

528–29. Under this decision, EPA has proceeded to

13

comprehensively regulate greenhouse gas emissions

from the oil and gas sectors. 89 Fed. Reg. 16,280 (Mar.

6, 2024). EPA also administers a fuel program that

aims to reduce the “lifecycle greenhouse gas

emissions” of transportation fuel. Id. § 7545(o). In the

past, EPA has zealously executed this regulatory

task—some would argue, too zealously. See West

Virginia v. EPA, 597 U.S. 697 (2022).

Under Massachusetts v. EPA, it’s clear what happens next. Am. Elec. Power Co. (“AEP”) v. Connecticut,

564 U.S. 410, 430 (2011) (Alito, J., concurring). As this

Court has held, the interstate law of transboundary

emissions is displaced. Id. at 427. Citing Ouellette,

AEP left open “the availability of a claim under state

nuisance law” on remand, and in particular “‘the law

of the source State.’” Id. at 429. Taking this remand

instruction seriously means that state courts must follow Ouellette, not cast it aside.

Ouellette controls here as it did in AEP. The

Clean Air Act’s comprehensive scheme sets a complex

“balance of interests.” Ouellete, 479 U.S. at 495.

“Along with the environmental benefit potentially

achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance.” AEP, 564 U.S. at 427. And “[t]he Clean Air Act

entrusts such complex balancing to EPA in the first

instance.” Id.2 State courts are not equipped to

perform that balancing act.

2 For example, regulating the “offering for sale, or sale of any

fuel” requires “a cost benefit analysis.” 42 U.S.C. § 7545(c)(2)(B);

see also, e.g., id. §§ 7521(a)(2), 7571(b). When relevant, EPA must

also consider “energy requirements.” Id. § 7411(a)(1).

14

EPA’s rules, moreover, operate prospectively,

after public notice and comment, in accordance with

detailed rulemaking requirements in the Clean Air

Act. 42 U.S.C. § 7607(d). They are overseen by an

elected President who is accountable to voters across

the Nation, Trump v. Anderson, 144 S. Ct. 662, 670

(2024) (per curiam), and is better suited at addressing

the “questions of national or international policy”

raised by climate change, AEP, 564 U.S. at 428. After

all, “global warming—as its name suggests—is a

global problem that the United States cannot confront

alone.” City of New York, 993 F.3d at 88. Colorado is

not just attempting to govern Lake Michigan—it is

attempting to govern “the atmosphere around the

world.” Massachusetts, 549 U.S. at 541 (Roberts, C.J.,

dissenting).

The Clean Air Act (including its savings clauses)

is not materially distinguishable from Ouellette. No

provision delegates federal authority over interstate

or international greenhouse gas emissions to the

states, so “[n]othing in the Act gives each affected

State this power to regulate” global emissions.

Ouellette, 479 U.S. at 497; accord City of New York,

993 F.3d at 99. Colorado’s attempted regulation has

no legal basis.

II. Boulder County and the Colorado Supreme

Court Conspired Together To Deceive the

Public About the Nature of the Claims at

Issue.

The Colorado Supreme Court asserted that “[a]s

a factual matter, Boulder’s claims do not seek to

regulate GHG emissions (the claims do not seek

compensation for any GHG emissions by defendants

15

themselves but rather focus on defendants’ upstream

production activities).”” Pet. App. 21a. That, is an

untenable distinction.

The Colorado Supreme Court’s recitation of the

claims refutes this supposed dichotomy. According to

that court’s description, Boulder claims that

Petitioners “knowingly caused and contributed to the

alteration of the climate by producing, promoting,

refining, marketing and selling fossil fuels,“ “the

burning of” which “would exacerbate climate change”

by emitting greenhouse gases. Pet. App. 2a–3a

(emphasis original). No increase in emissions, no

increase in climate change, no injury. Indeed, the

emissions are necessary ex hypothesi to the alleged

harm from climate change. Deftly avoiding

mentioning the words “greenhouse gas” and

“emissions” when describing these claims doesn’t

change that they attempt to regulate and impose

liability on transboundary emissions.

The Second Circuit rightly saw through similar

“[a]rtful pleading,” and, indeed, artful opinion writing.

City of New York, 993 F.3d at 91. Ouellette wouldn’t

have turned out differently if the Vermont residents

had studiously avoided using the words “pollution”

and “effluent” to describe how International Paper

allegedly caused them harm. The effect of the tort suit

would be the same. Vermont “and other states could

do indirectly what they could not do directly—

regulate the conduct of out-of-state sources.”

Ouellette, 479 U.S. at 495.

The Colorado Supreme Court’s word games are a

ruse. The court never explained how a jury would

decide how a Petitioner’s activity “exacerbate[d]

climate change.” Pet. App. 3a. That’s because a jury

16

cannot possibly decide that nationwide question—

rationally at least.

Global energy use continues to grow today, and

fossil fuels with it. Humans use 574 exajoules of

energy a year—and four-fifths comes from fossil fuels.

Liberty Energy, Bettering Human Lives 41 (2024),

https://perma.cc/M2TD-756F. Fossil fuels, predominantly oil and natural gas, have provided 76% of the

added energy since 2010—well after ”alternative”

energy sources became widely known. Id. at 42. The

solar panels, wind turbines, and batteries touted by

many politicians remain a trivial share of primary

world energy—and require copious amounts of fossil

fuel inputs to make and maintain. See, e.g., Thomas

A. Troszak, Why Do We Burn Coal and Trees To Make

Solar Panels? (rev. 2019), https://perma.cc/WA2YDTGU (“Every step in the production of solar photovoltaic (PV) power systems requires a perpetual input

of fossil fuels.”).

Humans don’t use fossil fuels because Petitioners

encourage them to. They use fossil fuels because they

are necessary to the technologies that underlay global

human prosperity—from synthetic fertilizer, to

cement, to plastics, to internal-combustion engines, to

steel. See Williams Nordhaus, The Climate Casino 20

(2013) (“Why in the world do we use this vast quantity

of fossil fuels? We use it to drive, to fly, to heat our

houses and schools, to run our computers, and for

everything we do.”). Under any counterfactual

scenario in which political leaders don’t launch a

globally coordinated assault on the standard of living

or impose permanent emergency lockdowns, fossil

fuels would have increased in past decades, regardless

17

of whether Petitioners or someone else provided and

promoted them.

Given all this, how is a jury from Boulder

supposed to isolate the effect of a Petitioners’ conduct

on the additional use of fossil fuels, the effect of those

additional fossil fuels on the climate, and the

consequent effect of that in Boulder County or some

other place? The questions at issue in Ouellette pale in

comparison to the inquiry envisioned by Colorado’s

Supreme Court.

More than that, the question cannot be answered

through any evidence that follows basic rules of

scientific integrity. Any counterfactual scenario would

be unfalsifiable, and so unscientific. Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993).

Allegations that cannot be proven through falsifiable

evidence are not elements of a legal tort. They are

instead an attempt to plead indirectly what Boulder

County (and the Colorado Supreme Court) knows it

cannot plead (or hold) directly. In short, artful

pleading and opinion writing.

The Court is “‘not required to exhibit a naiveté

from which ordinary citizens are free.’” Dep’t of Com.

v. New York, 139 S. Ct. 2551, 2575 (2019). It should

not do so here.

III. The Colorado Supreme Court’s Decision

Has Dire Consequences for the Nation’s

Energy Security.

The Second Circuit correctly noted the very significant “energy production, economic growth, foreign

policy, and national security” consequences of these

cases around the country. City of New York, 993 F.3d

at 93.

18

There is a pattern to these cases. All involve suits

against private energy companies—typically, bigpocketed ones, unless a small local company is needed

to destroy complete diversity and avoid federal court.

None involve energy companies owned by foreign

states, which account for the “majority of the world’s

oil and gas, pumping out an estimated 85 million barrels of oil equivalent per day.” Patrick R. P. Heller &

David Mihalyi, Nat’l Res. Governance Inst., Massive

and Misunderstood: Data Driven Insights into

National Oil Companies 6 (Apr. 2019). Such companies control “up to 90 percent of global reserves.” Id.

And their market influence is growing as private oil

companies cut back under pressure from “ESG” investors and governments. Clifford Krauss, As Western Oil

Giants Cut Production, State-Owned Companies Step

Up, N.Y. Times (Nov. 4, 2021).

Energy companies owned by foreign states, therefore, account for an enormous quantity of greenhouse

gases resulting from the eventual burning of their

products downstream. The eventual consumption of

oil and gas extracted by Saudi Aramco produces an

estimated 1.6 billion metric tons of greenhouse gases,

more than Chevron, BP, and Shell combined. David

Fickling & Elaine He, The Biggest Polluters Are

Hiding in Plain Sight, Bloomberg (Sept. 30, 2020).

According to the data and liability theory used by the

state and locality plaintiffs in these cases, Saudi

Aramco’s marketing of fuels has contributed to an

estimated 4.38% of global carbon emitted since 1965,

more than any private energy firm. See Climate

Accountability Inst., Press Release, Carbon Majors:

Update of Top Twenty Companies 1965–2017 (Oct. 9,

2019), https://perma.cc/95YV-RY97. Several other

firms owned by foreign states make the top twenty

19

list. Id. These companies are therefore a big part of

the alleged problem.

They are not, however, part of the Colorado

Supreme Court’s litigation-driven solution. The reason is obvious. Apart from personal jurisdiction and

service hurdles, companies owned by foreign sovereigns could remove the cases to federal court. 28

U.S.C. § 1441(d). They are also presumably immune

from suits for damages. Id. § 1604.

If successful, the suits brought by Boulder

County and like-minded states and localities would

therefore create a perverse two-tiered system of

justice. By imposing market-share liability on this

select group of companies, the lawsuits would

establish a de facto taxation system, “but taxation in

a form that is very difficult to defend.” George L.

Priest, Market Share Liability in Personal Injury and

Public Nuisance Litigation: An Economic Analysis, 18

S. Ct. Econ. Rev. 109, 113 (2010).

The tax will be imposed through ad hoc public

nuisance litigation that “violates the most elemental

aspect of the rule of law: that legal duties must be sufficiently predictable to guide those to whom they

apply.” Thomas W. Merrill, The New Public Nuisance:

Illegitimate and Dysfunctional, 132 Yale L.J. F. 985,

987–88 (2023). And it will be imposed selectively, creating a patchwork of judge-made carbon taxes for an

assortment of private companies, many of them

domestic, and no carbon taxes for energy companies

owned by foreign sovereigns, many of them hostile to

the United States.

The result would be disastrous. Demand for oil

and gas will not go away. Oil and gas account for over

20

two-thirds of primary energy consumption in the

United States. Energy Info. Admin., U.S. Energy

Facts Explained, https://perma.cc/LHD7-47YV (last

updated Aug. 16, 2023). Despite political platitudes,

this will not change soon, nor will this litigation

change consumer demand.

But our sources of supply could change if these

lawsuits move forward. By artificially biasing the

market against private firms, and toward unaccountable companies owned by foreign states, the suits

brought by Boulder County and states and localities

across the country could make the U.S. captive to

foreign countries, many of them hostile to U.S.

interests, threatening our national security. The

Organization of Petroleum Exporting Countries, and

Russia, would again be able to leverage market power

to sway foreign policy decisions around the world. And

the U.S military, which “consumed nearly 78 million

barrels of fuel to power ships, aircraft, combat

vehicles, and contingency bases” in fiscal year 2021,

would lack a robust and vibrant private industry to

supply the refined products it needs to protect the

Nation. Dep’t of Defense, Fiscal Year 2023 Energy and

Fuel Budget Justification Report 2 (Aug. 2022). The

grave energy security and foreign policy implications

of these suits underscore that states are incompetent

to regulate transboundary greenhouse gas emissions.

21

CONCLUSION

The Court should reverse.

Respectfully submitted,

Michael Francisco

Counsel of Record

James Compton

First & Fourteenth, PLLC

800 Connecticut Avenue NW,

Suite 300

Washington, DC 20006

(202) 998-1978

michael@first.fourteenth.com

Attorneys for Amicus Curiae

May 21, 2026