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

No. 25-170

In the Supreme Court of the United States

________________________________________

SUNCOR ENERGY (U.S.A.) INC.; SUNCOR ENERGY

SALES INC.; EXXON MOBIL CORPORATION,

Petitioners,

v.

COUNTY COMMISSIONERS OF BOULDER COUNTY;

CITY OF BOULDER,

Respondents.

________________________________________

On Writ of Certiorari to the

Supreme Court of Colorado

________________________________________

BRIEF OF PROFESSOR TODD ZYWICKI AND

THE CENTER FOR INDIVIDUAL FREEDOM AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

________________________________________

Kevin F. King

Counsel of Record

Paul J. Ray

Bradley K. Ervin

Logan Kirkpatrick

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

kking@cov.com

(202) 662-6000

Counsel for Amici Curiae

—i—

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

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

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

I. UDAP Claims Must Satisfy Myriad Procedural

and Substantive Requirements to Obtain Relief. .4

II. Climate-Related UDAP Claims Are Meritless and

Routinely Dismissed. .............................................9

III.The Court Should Avoid Opining on the Specific

Merits of, or the Specific Defenses to, ClimateRelated UDAP Claims. ........................................ 17

IV. If the Court Addresses Climate-Related UDAP

Claims, It Should Find Them to Be Precluded. .. 18

CONCLUSION .......................................................... 20

—ii—

TABLE OF AUTHORITIES

Page(s)

Cases

Altria Group, Inc. v. Good,

555 U.S. 70 (2008) ................................................ 19

Argyropoulos v. City of Alton,

539 F.3d 724 (7th Cir. 2008) ................................ 15

Aspinall v. Philip Morris Cos.,

442 Mass. 381 (2004) ............................................. 7

Boyle v. United Technologies,

487 U.S. 500 (1988) .............................................. 18

Capiccioni v. Brennan Naperville, Inc.,

339 Ill. App. 3d 927 (2003)..................................... 6

Castro v. NYT Television,

370 N.J. Super. 282 (App. Div. 2004) .................. 13

Cipollone v. Liggett Group, Inc.,

505 U.S. 504 (1992) .............................................. 19

City of Annapolis v. BP PLC,

Nos. C-02-CV-21-000250, 2025 WL

588595 (Md. Cir. Ct. Jan. 23, 2025) .................... 19

City of Charleston v. Brabham Oil Co.,

No. 2020-CP-10-03975, 2025 WL 2269770

(S.C. Ct. Com. Pl. Aug. 6, 2025)........... 3, 13, 17, 19

City of New York v. Exxon Mobil Corp.,

226 N.Y.S.3d 863 (N.Y. Sup. Ct.

2025) ........................................... 5, 7, 10–11, 13–14

Commonwealth v. Exxon,

No. 1984CV03333BLS1, 2021 WL

3493456 (Mass. Super. Ct. June 22, 2021) ........... 7

—iii—

Cutter v. Wilkinson,

544 U.S. 709 (2005) .............................................. 17

Daugherty v. Am. Honda Motor Co.,

51 Cal. Rptr. 3d 118 (Cal. Ct. App. 2006) ............. 5

Fink v. Time Warner Cable,

714 F.3d 739 (2d Cir. 2013) ................................... 5

Gennari v. Weichert Co. Realtors,

148 N.J. 582 (1997) ...................................... 7, 8, 11

Hodsdon v. Mars, Inc.,

891 F.3d 857 (9th Cir. 2018) .................................. 5

Hoffman v. Hampshire Labs, Inc.,

405 N.J. Super. 105 (App. Div. 2009) .............. 8, 15

State ex rel. Jennings v. BP Am. Inc.,

No. N20C-09-097, 2024 WL 98888

(Del. Super. Ct. Jan. 9, 2024) .................. 15, 16, 17

Joe Hand Promotions, Inc. v. Mills,

567 F. Supp. 2d 719 (D.N.J. 2008) .................. 6, 11

Juliana v. United States,

947 F.3d 1159 (9th Cir. 2020) .............................. 14

Lafferty v. Jones,

229 Conn. App. 487 (2024)............................... 7, 12

Massachusetts v. EPA,

549 U.S. 497 (2007) .............................................. 14

Maurizio v. Goldsmith,

230 F.3d 518 (2d Cir. 2000) ................................... 5

Mayer v. Cohen-Miles Ins. Agency, Inc.,

48 Mass. App. Ct. 435 (2000) ................................. 6

Mayor of Baltimore v. B.P. P.L.C.,

493 Md. 427 (2025)............................................... 18

—iv—

Mayor of Baltimore v. BP P.L.C.,

No. 24-C-18-004219, 2024 WL 3678699

(Md. Cir. Ct. July 10, 2024) ................................... 9

NetScout Sys., Inc. v. Gartner, Inc.,

334 Conn. 396 (2020) ........................................... 10

People by James v. PepsiCo, Inc.,

85 Misc. 3d 969 (N.Y. Sup. Ct. 2024) .................. 10

Platkin v. Exxon Mobil Corp.,

No. MER-L-001797-22, 2025 WL 604846

(N.J. Super. Ct. Law Div. Feb. 5, 2025) .............. 19

PNC Bank, Nat’l Ass’n v. Great Gorge

Vill. S. Condo. Council, Inc.,

No. 16-7648, 2017 WL 436389

(D.N.J. Feb. 1, 2017) .................................. 6, 11, 13

Tietsworth v. Harley-Davidson, Inc.,

270 Wis. 2d 146 (2004) ........................................... 5

Tomasella v. Nestlé USA, Inc.,

962 F.3d 60 (1st Cir. 2020) .......................... 7, 8, 13

Tucker v. Gen. Motors L.L.C.,

58 F.4th 392 (8th Cir. 2023) .................................. 8

Vermont v. Exxon Mobil Corp.,

No. 21-cv-02778 (Vt. Super. Ct. filed

Sept. 14, 2021) ........................................................ 9

Statutes

Del. Code Ann. tit. 6, § 2513 ....................................... 6

N.J. Stat. Ann. § 56:8-2 ............................................... 6

N.Y.C. Admin. Code § 20-701 ..................................... 6

S.C. Code Ann. § 39-5-20............................................. 7

—v—

Other Authorities

Am. Compl., City of Hoboken v. Exxon

Mobil Corp., No. HUD-L-3179-20

(N.J. Super. Ct. Law Div. Apr. 21,

2023) ..................................................................... 15

Compl., California ex rel. Bonta v. Exxon

Mobil Corp., No. CGC-23-609134 (Cal.

Super. Ct. Sept. 15, 2023) .................................... 11

Compl., City of Charleston v. Brabham

Oil Co., No. 2020-CP-10-03975 (S.C.

Ct. C.P. Sept. 9, 2020) ...................................... 9, 12

Compl., City of New York v. Exxon

Mobil Corp., No. 451071/2021 (N.Y.

Sup. Ct. Apr. 22, 2021)..................................... 9, 10

Compl., City of Richmond v. Chevron

Corp., No. MSC18-00055 (Cal.

Super. Ct. Jan. 22, 2018) ..................................... 11

Compl., Hawai'i ex rel. Lopez v. BP

P.L.C., No. 1CCV-25-717 (Haw. Cir.

Ct. May 1, 2025) ................................................... 10

Nat’l Consumer L. Ctr., Unfair and

Deceptive Acts and Practices (11th

ed. 2025) ................................................................. 4

Todd Zywicki, End the Climate Lawsuit

Feeding Frenzy, Wash. Examiner

(Feb. 20, 2026) ........................................................ 5

—1—

INTEREST OF AMICI CURIAE 1

Professor Todd Zywicki is the George Mason

University Foundation Professor of Law at George

Mason University Antonin Scalia Law School, where

he specializes in questions of consumer protection law,

among other things. From 2020-2021, he was Chair

of the Consumer Financial Protection Bureau

Taskforce on Federal Consumer Financial Law, and

he served as the Director of the Office of Policy

Planning at the Federal Trade Commission from 2003

to 2004. In 2025, he was chosen as a member of the

United States delegation to the Expert Advisory

Group of the OECD Global Forum on Consumer

Policy.

The Center for Individual Freedom (hereinafter

“CFIF”) is a non-partisan, non-profit organization

established in 1998 to protect and defend individual

freedom, economic liberty and fidelity to the rule of

law, specifically as it constrains and disperses

governmental authority. Since its founding, CFIF has

appeared as amicus curiae in numerous cases before

this Court.

Professor Zywicki and CFIF have a particular

interest in this case insofar as allegations of violation

of consumer deception statutes are increasingly

implicated in litigation around the alleged causes and

harms of global climate change, including in the

complaint initially lodged by Respondents in the court

of first instance below.

1 No party’s counsel authored any part of this brief, and nobody

other than amici and their counsel made any monetary

contribution intended to fund its preparation or submission.

—2—

Accordingly, Professor Zywicki and CFIF file this

brief in support of Petitioners.

—3—

INTRODUCTION AND

SUMMARY OF ARGUMENT

State and local governments have increasingly

invoked state laws prohibiting unfair and deceptive

acts and practices (“UDAP”) against alleged

contributors to global climate change. A “growing

chorus of state and federal courts across the United

States” have dismissed these claims on the pleadings,

often for several compounding reasons. City of

Charleston v. Brabham Oil Co., No. 2020-CP-1003975, 2025 WL 2269770, at *3 (S.C. Ct. Com. Pl. Aug.

6, 2025) (citation omitted). “The ranks of this chorus

are swelling,” and for good reason. Id.

Respondents asserted UDAP claims against

Petitioners in their complaint, but these claims were

dismissed without prejudice and are not within the

scope of the questions presented to this Court. In

addressing those questions, the Court should take

care to avoid inadvertently opining on or otherwise

prejudicing the increasingly established defenses to

climate-related UDAP claims being litigated across

the country.

Further, if the Court opts to address UDAP claims,

it should hold that they are precluded for the same

reasons as Respondents’ other claims. Climaterelated UDAP claims are rooted in the same facts,

allege the same bases for injury, and arise from the

same circumstances as the parallel tort theories, and

plaintiffs typically raise them in the same litigation.

However the allegations are styled, they should be

precluded on identical grounds to those set forth in

Petitioners’ briefing and adopted by several courts

across the country. Plaintiffs cannot plead around

—4—

preclusion simply by repackaging their tort claims as

UDAP claims.

ARGUMENT

I.

UDAP Claims Must Satisfy Myriad

Procedural

and

Substantive

Requirements to Obtain Relief.

The core statutory prerequisites of UDAP claims

are well defined. Across jurisdictions, UDAP statutes

generally require plaintiffs to establish three

foundational elements: (1) deceptive or unfair

conduct, (2) in connection with a consumer

transaction, and (3) which is material to the

transaction. See Nat’l Consumer L. Ctr., Unfair and

Deceptive Acts and Practices, App’x A (11th ed. 2025)

(50-state survey). Courts further restrict such claims

by enforcing the heightened pleading standard for

claims of fraud and applicable statutes of limitations.

Plaintiffs in climate-related consumer protection

cases do not claim the products they bought failed to

work as advertised; the fuel they purchased to power

their cars and machinery and light their homes and

businesses did just that. Rather, their core objection

is to the alleged environmental harm caused from the

use of the fuels they purchased. That objection sounds

in tort, not consumer protection. Otherwise, nearly

every tort claim against a business could be converted

into a consumer protection claim by the business’s

customers, who can almost always claim they

wouldn’t have bought from the business had they

known about its allegedly tortious behavior. 2

2 Although we express no opinion in this brief on the merits of

public nuisance claims, Professor Zywicki has expressed his

—5—

1. Deceptive Conduct. To assert a UDAP claim,

a plaintiff must generally first identify a statement

that is deceptive—i.e., “likely to mislead a reasonable

consumer

acting

reasonably

under

the

circumstances.” Maurizio v. Goldsmith, 230 F.3d 518,

521 (2d Cir. 2000). Courts assessing deceptiveness

consider a statement “as a whole” in light of its full

context. See Fink v. Time Warner Cable, 714 F.3d 739,

742 (2d Cir. 2013). Statements that cannot be

evaluated for their truth or falsity—including those of

“aspiration, opinion, or puffery” and those too

“subjective, non-specific, and vague” to be factually

appraised—generally cannot be considered deceptive.

See City of New York v. Exxon Mobil Corp., 226

N.Y.S.3d 863, 880 (N.Y. Sup. Ct. 2025).

In addition to non-verifiable affirmative

statements, some jurisdictions reject UDAP claims

based on failures to disclose or omissions. See

Tietsworth v. Harley-Davidson, Inc., 270 Wis. 2d 146,

170 (2004) (Wisconsin UDAP statute “does not

purport to impose a duty to disclose, but, rather,

prohibits only affirmative assertions . . . that are

false”). Others limit liability to omitted information

that directly contradicts a prior affirmative

representation or to circumstances where a defendant

owed a plaintiff a special duty of disclosure. See

Daugherty v. Am. Honda Motor Co., 51 Cal. Rptr. 3d

118 (Cal. Ct. App. 2006); accord Hodsdon v. Mars,

Inc., 891 F.3d 857, 865 (9th Cir. 2018) (California law).

Even states that recognize omission-based UDAP

claims typically impose additional guardrails that

views elsewhere. See Todd Zywicki, End the Climate Lawsuit

Feeding

Frenzy,

Wash. Examiner (Feb. 20, 2026),

https://tinyurl.com/293eupea.

—6—

limit when such omissions are actionable. For

instance, many states require the omitted information

to be unavailable to the consumer through reasonable

alternative means.

See Capiccioni v. Brennan

Naperville, Inc., 339 Ill. App. 3d 927, 935–36 (2003)

(“failure to disclose” “a matter of public knowledge”

that was “readily discoverable by the plaintiffs . . . did

not violate the Consumer Fraud Act”). Still other

states demand proof of purposeful concealment with

the intent to mislead. See Del. Code Ann. tit. 6,

§ 2513(a) (requiring “intent that others rely upon

such concealment, suppression, or omission, in

connection with the sale”); Mayer v. Cohen-Miles Ins.

Agency, Inc., 48 Mass. App. Ct. 435, 443 (2000) (UDAP

statute proscribes “material, knowing, and wilful

nondisclosure” (citation omitted)).

2. Consumer Transaction. To be actionable

under UDAP statutes, allegedly misleading

statements or omissions also must generally be made

“in connection with the sale . . . of consumer goods or

services.” N.Y.C. Admin. Code § 20-701(a); accord

Del. Code Ann. tit. 6, § 2513(a); N.J. Stat. Ann. § 56:82. UDAP laws extend only to “fraud in the sale” of

consumer goods, PNC Bank, Nat’l Ass’n v. Great Gorge

Vill. S. Condo. Council, Inc., No. 16-7648, 2017 WL

436389, at *2 (D.N.J. Feb. 1, 2017), because the

statutes are “aimed basically at unlawful sales and

advertising practices,” Joe Hand Promotions, Inc. v.

Mills, 567 F. Supp. 2d 719, 723 (D.N.J. 2008).

Plaintiffs invoking them must therefore prove that

“fraudulent conduct induced or lured the[m] into

purchasing merchandise.” Id. at 724.

In practice, plaintiffs generally cannot establish

the requisite consumer connection by pointing to a

—7—

defendant’s broad statements about its business—

such as assertions that a company is “working to make

energy that’s cleaner and better” or “providing more

and cleaner energy solutions for the world.” City of

New York, 226 N.Y.S.3d at 872, 881 (citations

omitted); see also id. at 881 (dismissing these

allegations because the statements “are generic in

nature and implicate broad policy initiatives and

statements, as opposed to the sale of Defendants’ . . .

products”). The fact that such statements might be

“motivated by a desire to generate profit through sales

of products . . . is not adequate” to establish the

connection to a consumer transaction. Lafferty v.

Jones, 229 Conn. App. 487, 545 (2024). Rather, a

plaintiff must identify a deceptive statement or

omission made in relation to a consumer transaction

specifically “to induce the buyer to make the

purchase.” Gennari v. Weichert Co. Realtors, 148 N.J.

582, 607 (1997); see also S.C. Code Ann. § 39-5-20(a)

(requiring deception “in the conduct of any trade or

commerce”).

3. Materiality. Linking the first two statutory

UDAP requirements, the alleged deception must also

be material to the alleged transaction—that is, “likely

to affect consumers’ conduct or decision with regard to

a product.” Tomasella v. Nestlé USA, Inc., 962 F.3d

60, 72 (1st Cir. 2020) (citation omitted). Materiality

is an objective test that turns on the behavior of a

rational consumer of a defendant’s products or

services. A material statement is one that would

“entice a reasonable consumer to purchase the

product.”

Commonwealth

v.

Exxon,

No.

1984CV03333BLS1, 2021 WL 3493456, at *9 (Mass.

Super. Ct. June 22, 2021) (quoting Aspinall v. Philip

—8—

Morris Cos., 442 Mass. 381, 396 (2004)); Gennari, 148

N.J. at 607 (“[N]ot just ‘any erroneous statement’ will

constitute a misrepresentation prohibited by [the New

Jersey UDAP statute]. The misrepresentation has to

be one which is material to the transaction and . . .

made to induce the buyer to make the purchase.”

(citation omitted)).

The materiality requirement applies regardless of

the level of deception actionable under a given UDAP

statute. In jurisdictions that extend UDAP liability to

deceptive omissions, a plaintiff must establish that

the particular information that a defendant withheld

would have been material to a reasonable person’s

conduct as a consumer. Tomasella, 962 F.3d at 72;

accord Tucker v. Gen. Motors L.L.C., 58 F.4th 392 (8th

Cir. 2023) (Missouri law).

4. Particularity. Because deceptive-practices

allegations sound in fraud, many courts—including in

Colorado—impose a heightened pleading standard for

plaintiffs who assert UDAP claims. Hoffman v.

Hampshire Labs, Inc., 405 N.J. Super. 105, 112 (App.

Div. 2009) (“[A] claim under the [New Jersey UDAP

statute] is essentially a fraud claim,” triggering

heightened pleading requirement); accord Pet. App.

133a. To satisfy that standard, plaintiffs must “allege

with particularity the statements that were false or

misleading, the particulars as to why they contend the

statements were fraudulent, when and where the

statements were made, and identify those

responsible.” Pet. App. 133a. Any complaint that fails

to do so is subject to dismissal. See Hoffman, 405 N.J.

Super. at 112.

5. Statutes of Limitations. Like most civil

causes of action, UDAP claims must be asserted

—9—

within the applicable statute of limitations. Under

the discovery rule employed by many jurisdictions,

that limitations period (commonly two or three years)

begins at the point when the plaintiff “knew or

reasonably should have known by reasonable

diligence the facts giving rise to its [UDAP] claim.”

Mayor of Baltimore v. BP P.L.C., No. 24-C-18-004219,

2024 WL 3678699, at *15 (Md. Cir. Ct. July 10, 2024),

aff’d, 493 Md. 427 (2025).

II.

Climate-Related

UDAP

Claims

Meritless and Routinely Dismissed.

Are

The core requirements of state UDAP statutes

pose serious obstacles for plaintiffs raising UDAP

claims in climate-change-related cases. Over the last

six years, state attorneys general and local

governments have filed a growing torrent of lawsuits

alleging that business activities violate local UDAP

statutes in the context of climate change, including in

this case. See, e.g., Pet. App. 120a; City of New York

v. Exxon Mobil Corp., No. 451071/2021 (N.Y. Sup. Ct.

filed Apr. 22, 2021); City of Charleston v. Brabham Oil

Co., No. 2020-CP-10-03975 (S.C. Ct. Com. Pl. filed

Sept. 9, 2020); Vermont v. Exxon Mobil Corp., No. 21cv-02778 (Vt. Super. Ct. filed Sept. 14, 2021). State

and lower federal courts have repeatedly dismissed

these suits for failure to state a claim and for

attempting to leverage state consumer protection laws

to dictate national and even international energy and

environmental policy.

1. Deceptive Conduct. UDAP claimants often

struggle to allege actionable deception concerning

global climate change.

—10—

Many UDAP claims focus on statements that are

either objectively true or too vague, subjective, or

forward-looking to be objectively verifiable. Plaintiffs

frequently seek to impose liability, for instance, based

on broad aspirational company policies supporting

energy efficiency and transition. E.g., Compl. ¶ 49,

City of New York v. Exxon Mobil Corp., No.

451071/2021 (N.Y. Sup. Ct. Apr. 22, 2021) (“We

support the ambition to achieve net-zero emissions by

2050”); id. ¶ 58 (“[W]e’re working to make energy

that’s cleaner and better.”). Courts have declined to

impose UDAP liability on the basis of such

statements. See People by James v. PepsiCo, Inc., 85

Misc. 3d 969, 979 (N.Y. Sup. Ct. 2024) (New York’s

UDAP law does not allow plaintiffs “to create liability

for Defendants’ aspirational statements to curtail

[their environmental] footprint”). As one trial court

found, “[n]o reasonable consumer would be misled by

[such] subjective, non-specific, and vague” expressions

of corporate climate ambitions and sustainability

initiatives. City of New York, 226 N.Y.S.3d at 880–81

(dismissing climate-related UDAP claim in its

entirety); see also NetScout Sys., Inc. v. Gartner, Inc.,

334 Conn. 396, 414 (2020) (a statement likely to

mislead consumers should be “subject to objective

verification”).

The same goes for allegedly deceptive omissions.

Many claims rely upon allegedly omitted information

that is too abstract and vague for its nondisclosure to

constitute deception. See, e.g., Compl. ¶ 238, Hawai’i

ex rel. Lopez v. BP P.L.C., No. 1CCV-25-717 (Haw. Cir.

Ct. May 1, 2025) (alleging that Shell “fail[ed] to

disclose the extreme safety risk associated with the

use of fossil fuel products”). Moreover, in jurisdictions

—11—

that require proof of intent to mislead, plaintiffs may

fall short of alleging an adequate basis to infer that

defendants knowingly or purposefully omitted

information to induce sales—for example by focusing

on the alleged nature of the omissions without

plausibly alleging an intent to deceive. And plaintiffs

raising omission-based UDAP claims often do not

even attempt to allege the existence of a relationship

giving rise to a special duty of disclosure—a

prerequisite to imposing UDAP liability for deceptive

omissions in some jurisdictions. See generally Compl.,

California ex rel. Bonta v. Exxon Mobil Corp., No.

CGC-23-609134 (Cal. Super. Ct. Sept. 15, 2023);

Compl., City of Richmond v. Chevron Corp., No.

MSC18-00055 (Cal. Super. Ct. Jan. 22, 2018).

2. Consumer Transaction. Even assuming that

a company’s broad representations concerning its

climate policy could be considered deceptive, such

statements generally lack the necessary connection to

a specific commercial sale. UDAP statutes prohibit

deception in trade or commercial transactions, not

generalized communications about a company’s

“brand,” “business,” or corporate “policy.” City of New

York, 226 N.Y.S.3d at 881 (citation omitted); see also

PNC Bank, 2017 WL 436389, at *2 (UDAP law “only

protects against fraud in a sale” (emphasis added));

Gennari, 148 N.J. at 607 (misrepresentation must be

“made to induce the buyer to make [a particular]

purchase”).

Thus, allegations that a company

overstated its commitment to sustainability or

misleadingly portrayed itself as climate conscious fail

to establish that the company deceived consumers in

connection with a specific sale of a discrete product.

See Joe Hand, 567 F. Supp. 2d at 724 (dismissing

—12—

UDAP claim for failure to “allege facts that establish

that the alleged fraudulent conduct induced or lured

the plaintiff into purchasing merchandise”).

In this case, Respondents’ consumer protection

claims are even more far-fetched. In the litigation

below, Respondents claimed that Petitioner

“deceived” the public by expressing the view that the

harms of global warming are overstated, or can be

limited by human adaptation.

Both consumer

protection law and contract law have long recognized

that broad, subjective, and contestable claims such as

these—and that do not relate to the qualities of the

product in question—cannot be characterized as

having “induced” or “lured” consumers into

purchasing any product.

So too for allegedly misleading omissions.

Sweeping general allegations that a company

deceptively withheld information on “the extreme

safety risk” associated with “catastrophic climate

change,” Compl. ¶ 143, City of Charleston v. Brabham

Oil Co., No. 2020-CP-10-03975 (S.C. Ct. C.P. Sept. 9,

2020), lack a sufficient connection to any particular

transaction.

The fact that profit might have

motivated a company not to broadcast such global

risks is not enough to support a UDAP claim. See

Lafferty, 229 Conn. App. at 545 (“That the defendants’

speech was motivated by a desire to generate profit

through sales of products . . . is not adequate to satisfy

the ‘trade or commerce’ prong of [Connecticut’s UDAP

statute].”).

Courts have repeatedly enforced these limitations

by dismissing climate-related cases premised on

allegations of consumer deception or other

—13—

misrepresentation. In City of Charleston, the South

Carolina court dismissed a climate-change-focused

UDAP claim after finding that the “allegations relate

only to alleged deception concerning the risks of

climate change generally—not statements concerning

Defendants’ specific products.” 2025 WL 2269770, at

*18. Likewise, in City of New York, a court dismissed

plaintiff’s climate-related action in its entirety,

reasoning in part that broad “corporate greenwashing

statements” could not have violated the state’s UDAP

statute because they “d[id] not reference [the] fossil

fuel products” actually purchased by New York

consumers. 226 N.Y.S.3d at 882. In reaching that

conclusion, the court emphasized that it is not enough

that a statement be motivated by a general desire to

maximize a company’s profitability, reasoning that

such “an expansive interpretation of the [New York

UDAP statute] would render the ‘made in connection’

requirement meaningless.” Id. at 700; see also PNC

Bank, 2017 WL 436389, at *2 (rejecting interpretation

of UDAP statute that would reach “all unconscionable

activity”).

3. Materiality. Climate-related UDAP claims

also falter on materiality. To state a viable claim, a

plaintiff must plausibly allege that the challenged

statement or omission was “made to induce the buyer

to make [a] purchase,” Castro v. NYT Television, 370

N.J. Super. 282, 294 (App. Div. 2004), and was, in fact,

“likely to affect consumers’ conduct or decision” with

respect to that product, Tomasella, 962 F.3d at 72.

That requirement is not satisfied where the

supposedly deceptive statement or omission concerns

widely known risks that have been the subject of

scientific study, media coverage, public debate,

—14—

government action, and litigation for decades. See

Juliana v. United States, 947 F.3d 1159, 1166 (9th Cir.

2020) (“The federal government has long understood

the risks of fossil fuel use and increasing carbon

dioxide emissions.”); accord Massachusetts v. EPA,

549 U.S. 497, 507 (2007).

Inundated with the well-known benefits and risks

posed by fossil fuels, a plaintiff cannot plausibly claim

that a company’s alleged misstatement or

nondisclosure of such information would have affected

his or her purchasing decisions. For this reason,

plaintiffs “cannot succeed” in showing material

deception under UDAP laws “where Plaintiff's own

allegations concede that the connection between fossil

fuels and climate change is public information.” City

of New York, 226 N.Y.S.3d at 878–79. As the court in

City of New York explained, those allegations are

mutually exclusive:

The City cannot have it both ways by, on

one hand, asserting that consumers are

aware of and commercially sensitive to

the fact that fossil fuels cause climate

change, and, on the other hand, that the

same consumers are being duped by

Defendants’ failure to disclose that their

fossil fuel products emit greenhouse

gases that contribute to climate change.

Id. at 879–80.

Even assuming that some consumers were

unaware of the alleged environmental effects of fossil

fuel combustion, the notion that additional corporate

disclosures would have changed their consumption

behavior is highly speculative. Fossil fuels provide

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American consumers with significant benefits,

including affordable transportation and access to

commerce. In this light, the idea that consumers

would alter consumption habits in response to a

defendant’s disclosure of concomitant risks of global

climate change is implausible. Consumers might just

as well discount that abstract global information, view

their individual contribution to climate change as too

minuscule to warrant lifestyle changes, lack feasible

alternatives, be unwilling or unable to alter

entrenched transportation or consumption habits,

believe that one company’s efforts to reduce emissions

would not have meaningfully mitigated global climate

change regardless, or continue to purchase fossil-fuel

products for other reasons. UDAP statutes do not

permit liability to rest on conjecture about how

consumers might have behaved—particularly when

powerful competing considerations undermine any

hypothesis that the information would be material.

See Argyropoulos v. City of Alton, 539 F.3d 724, 732

(7th Cir. 2008) (refusing to draw “[i]nferences that are

supported by only speculation or conjecture”).

4. Particularity. Plaintiffs also regularly fail to

plead UDAP violations with sufficient particularity.

See Hoffman, 405 N.J. Super. at 112; State ex rel.

Jennings v. BP Am. Inc., No. N20C-09-097, 2024 WL

98888, at *17 (Del. Super. Ct. Jan. 9, 2024). By

grouping multiple defendants together and

attributing statements, omissions, or public-relations

campaigns collectively, plaintiffs often fail to identify

what each defendant supposedly said, when it said it,

where the statement appeared, why it was false or

misleading, or how it affected consumer conduct. See,

e.g., Am. Compl. ¶ 78(a), City of Hoboken v. Exxon

—16—

Mobil Corp., No. HUD-L-3179-20 (N.J. Super. Ct. Law

Div. Apr. 21, 2023) (alleging broad, collective

misconduct on the part of “The Fossil Fuel Company

Defendants” writ large).

That group-pleading

approach is inconsistent with the heightened pleading

requirement, which at a minimum requires plaintiffs

to “allege with particularity the statements that were

false or misleading” and “identify those responsible.”

Pet. App. 133a.

Even when identifying specific defendants,

plaintiffs routinely allege a misrepresentation—

particularly in the form of omissions—in vague and

imprecise terms that fail to identify particular alleged

acts of misconduct. Jennings is instructive. There,

the court dismissed climate-related UDAP claims

because the State “failed to specifically identify

alleged misrepresentations” at issue in the litigation.

2024 WL 98888, at *17. Such generalized accusations

of deception fall short of a plaintiff’s obligation to

plead the who, what, when, where, and how of the

alleged fraud underlying their climate-related UDAP

claim.

5. Statutes of Limitations. Many climaterelated UDAP claims—including those initially

brought in the trial court below—are also time barred

because the allegedly concealed underlying facts

regarding global climate change were publicly known,

or reasonably knowable, long before the relevant

limitations period. In Jennings, for example, a

Delaware court held that because “the general public

had knowledge of or had access to information about”

concerns over the risks of fossil fuels for “decades,”

plaintiffs either knew or “should have known” by

reasonable diligence of the facts giving rise to their

—17—

claim long before the start of the applicable

limitations periods. 2024 WL 98888, at *2, 19. In

other words, “ample information in the public record

for decades confirm[s]” that UDAP plaintiffs have long

been “on notice” of the environmental risks posed by

fossil fuel consumption. City of Charleston, 2025 WL

2269770, at *13. Current UDAP claims thus come far

too late.

III.

The Court Should Avoid Opining on the

Specific Merits of, or the Specific Defenses

to, Climate-Related UDAP Claims.

This Court need not say anything about the

specific merits of climate-related UDAP claims to

resolve this case. The questions before the Court

concern only whether federal law precludes state tort

claims arising from the global effects of greenhousegas emissions. The Court can answer that question

without commenting on the specific merits of UDAP

claims that lower courts are addressing in climaterelated consumer-protection cases across the country.

Cf. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)

(observing that this Court is “a court of review, not of

first view”).

We respectfully urge the Court to avoid statements

about Respondents’ claims or Petitioners’ defenses

that may inadvertently affect climate-related UDAP

litigation. For instance, we urge the Court to refrain

from suggesting that plaintiffs whose tort claims are

precluded by federal law may have a cause of action

under other state laws. We also respectfully request

that the Court refrain from characterizing Petitioners’

statements about their fuel products as deceptive (or

truthful, for that matter), commenting on the

materiality of climate-related concerns to consumers’

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purchasing decisions, or opining on the reasons

consumers use fossil fuels. Statements on these

issues—even in dicta—could inadvertently affect

lower courts’ assessment of climate-based UDAP

claims in unpredictable ways.

IV.

If the Court Addresses Climate-Related

UDAP Claims, It Should Find Them to Be

Precluded.

If the Court nevertheless reaches the UDAP

claims, it should hold that they are precluded for the

same reasons as the tort claims asserted by

Respondents. As multiple courts have recognized, the

same considerations that preclude state tort theories

predicated upon alleged global environmental harms

also apply to UDAP claims arising from identical

facts.

State and local government agencies cannot skirt

preclusion by simply claiming they are seeking to

prevent deceptive trade practices within their home

jurisdiction. This Court has made clear that in

applying preclusion, courts should look to the

substance of the claim and its conflict with the federal

interests and policies at stake, not the form of the

pleading. See Boyle v. United Technologies, 487 U.S.

500, 506 (1988). Lower courts have applied that

principle in these cases. As recently stated by the

Maryland Supreme Court, “[n]o amount of creative

pleading can masquerade the fact that the local

governments are attempting to utilize state law to

regulate global conduct that is purportedly causing

global harm.” Mayor of Baltimore v. B.P. P.L.C., 493

Md. 427, 482 (2025). Recognizing this principle,

multiple state courts have concluded that federal

common law, the Clean Air Act, and federal

—19—

constitutional structure preclude climate-changefocused claims based on common law and UDAP alike.

See, e.g., Platkin v. Exxon Mobil Corp., No. MER-L001797-22, 2025 WL 604846 (N.J. Super. Ct. Law Div.

Feb. 5, 2025); City of Annapolis v. BP PLC, Nos. C-02CV-21-000250, 2025 WL 588595, at *6 (Md. Cir. Ct.

Jan. 23, 2025); City of Charleston, 2025 WL 2269770,

at *20. If it reaches the UDAP claims, this Court

should do the same.

Members of the Court also have recognized in the

preemption context that when a local effort to regulate

conflicts with principles of federal law, the practical

regulatory effect of the local action, not its label,

should dictate whether it is consistent with federal

interests. See Cipollone v. Liggett Group, Inc., 505

U.S. 504, 553 (1992) (Scalia, J., concurring in part and

dissenting in part) (“the methodology [for assessing

the scope of preemption] must focus not upon the

ultimate source of the duty . . . but upon its proximate

application”); see also Altria Group, Inc. v. Good, 555

U.S. 70, 96 (2008) (Thomas, J., dissenting) (“This

‘proximate application’ test, therefore, focuses not on

the state-law duty invoked by the plaintiff, but on the

effect of the suit on the [defendant] manufacturer’s

conduct—i.e., the ‘requirement’ or ‘prohibition’ that

would be imposed under state law. Put simply, if

‘whatever the source of the duty, [the claim] imposes

an obligation . . . because of the effect of smoking upon

health,’ it is pre-empted.” (quoting Cipollone, 505 U.S.

at 554) (emphasis added)).

Taken together, consistent (and recent) state court

decisions and such statements of federal principle

make clear that what matters is substantive

—20—

consistency between federal interests and state law

actions, not the mere form of state pleadings.

CONCLUSION

For the foregoing reasons, we respectfully urge the

Court to avoid opining on the specific merits of

climate-related UDAP claims or defenses to such

claims. In the alternative, the Court should hold that

any climate-related UDAP claims are precluded by

federal law for the same reasons as the Respondents’

tort theories of liability.

Respectfully submitted,

Kevin F. King

Counsel of Record

Paul J. Ray

Bradley K. Ervin

Logan Kirkpatrick

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

kking@cov.com

(202) 662-6000

May 21, 2026

Counsel for Amici Curiae