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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Text

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 JENNIFER HERNANDEZ

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Rafe Petersen

Counsel of Record

Holland & Knight LLP

800 17th Street, NW

Suite 1100

Washington, DC 20006

(202) 491-8839

Rafe.Petersen@hklaw.com

Counsel for Amicus Curiae

May 21, 2026

TABLE OF CONTENTS

Page

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

SUMMARY OF ARGUMENT............................. 2

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

STATE-LAW CLIMATE TORT LITIGATION

THREATENS TO REPLICATE THE

DISPARATE RACIAL AND ECONOMIC

HARMS OF STATE CLIMATE

REGULATORY REGIMES .......................... 5

California’s Climate Policies

Demonstrate How State-Level

Climate Mandates Create a “Green

Jim Crow” That Devastates

Communities of Color......................... 6

Climate Housing Mandates Replicate

Historic Patterns of Racist Redlining

and Destroy the Primary Pathway to

Wealth for Minority Households ....... 9

VMT Reduction Mandates Impose

Hidden Taxes on Homeownership that

Fall Hardest on Families of Color ... 14

II. UNREGULATED STATE CLIMATE

LITIGATION THREATENS THE ENERGY

SECTOR JOBS AND AFFORDABLE

ENERGY ON WHICH COMMUNITIES OF

COLOR DISPROPORTIONATELY

DEPEND ..................................................... 17

III. FEDERAL PREEMPTION PROVIDES A

NECESSARY SAFEGUARD AGAINST THE

DISPARATE RACIAL AND ECONOMIC

HARMS OF A PATCHWORK OF STATE

CLIMATE TORT REGIMES ...................... 20

IV. ENVIRONMENTAL REGULATION THAT

HARMS RATHER THAN HELPS

DISADVANTAGED COMMUNITIES

BETRAYS THE LESSONS OF THE

NATION’S MOST SUCCESSFUL

ENVIRONMENTAL ACHIEVEMENTS ... 22

CONCLUSION .................................................. 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

LA All. for Hum. Rts. v. City of Los

Angeles,

2021 WL 1546235 (C.D. Cal. Apr.

20, 2021), vacated and remanded

sub nom. LA All. for Hum. Rts. v.

Cnty. of Los Angeles, 14 F.4th 947

(9th Cir. 2021) .....................................................11

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986)..............................................22

Statutes, Regulations, and Constitutional Provisions

Assembly Bill 130 (Cal. 2025)...................................14

Cal. Code Regs. tit. 14, § 15064.3(b)(1) ....................16

California Environmental Quality Act

(CEQA), Cal. Pub. Res. Code §§

21000-21177 ...................................................14, 15

California Environmental Quality Act

(CEQA), Cal. Pub. Res. Code §

21080.44(b)(1)(A) .................................................14

Clean Air Act, 42 U.S.C. §§ 7401-7671q...............4, 22

U.S. Const. art. VI, cl. 2 ............................................22

Other Authorities

Cal. Air Res. Bd., 2022 Scoping Plan for

Achieving Carbon Neutrality (2022) ....... 12, 13, 14

Coal. for Affordable, Reliable, &

Equitable Hous., Broad Coalition of

over 100 Social Justice, Housing and

Business Leaders Urge Legislature

to Repeal New VMT Housing Tax

(Aug. 26, 2025) .....................................................15

David Friedman & Jennifer Hernandez,

Ctr. for Demographics & Pol'y,

Chapman Univ., California,

Greenhouse Gas Regulation and

Climate Change (Joel Kotkin ed.,

2015) .......................................................................6

David Friedman & Jennifer Hernandez,

Ctr. for Demographics & Pol’y,

Chapman Univ., California,

Greenhouse Gas Regulation and

Climate Change (Joel Kotkin ed.,

2018) .......................................................................6

Glenn Kessler, Kerry's Misleading

Framing of Potential Solar and

Wind Jobs, Wash. Post (Jan. 29,

2021) .....................................................................18

Jennifer Hernandez, Abundance for

Whom?, Breakthrough Inst. (Apr.

2025) .......................................................................7

Jennifer Hernandez, California

Environmental Quality Act

Lawsuits and California's Housing

Crisis, 24 Hastings Env't L.J. 21

(2018) ................................................................6, 16

Jennifer Hernandez, California's

Administrative Power Grab Hurts

Californians, Does Nothing for

Climate, Breakthrough Inst. (Aug.

2022) .......................................................................7

Jennifer Hernandez, Ctr. for

Demographics & Pol'y, Chapman

Univ., California Getting in Its Own

Way: In 2018, Housing Was

Targeted in 60% of CEQA Lawsuits

Against Construction Projects (Joel

Kotkin ed., 2019) ....................................................3

Jennifer Hernandez, David Friedman &

Stephanie DeHerrera, In the Name

of the Environment, Holland &

Knight (Aug. 1, 2015) ............................................6

Jennifer Hernandez, Green Jim Crow:

How California's Climate Policies

Undermine Civil Rights and Racial

Equity, Breakthrough J., Summer

2021 .................................... 4, 6,7,9,10,17,18,21,23

Jennifer Hernandez, In the Name of the

Environment Part III: CEQA,

Housing, and the Rule of Law, 26

Chap. L. Rev. (2022) ..............................................7

Jennifer Hernandez & Lauren Teixeira,

Time to Reset California's Climate

Leadership, Breakthrough Inst.

(Jan. 6, 2025)......................................................3, 7

Jennifer Hernandez, This California

Law Will Make Housing More

Expensive: A Hidden Climate Fee

Punishes Families for Needing a

Car, City J. (Apr. 2026) ...................................7, 16

Stephen Menendian & Samir Gambhir,

UC Berkeley Othering & Belonging

Inst., Racial Segregation in the San

Francisco Bay Area (2018) ............................10, 21

INTEREST OF THE AMICUS CURIAE 1

Jennifer Hernandez is a California attorney who

has practiced environmental, land use, and civil

rights law for over four decades. She is a Senior

Fellow at the Breakthrough Institute, a non-partisan

environmental research center, and serves as a

member of the Breakthrough Institute’s Board of

Directors. Ms. Hernandez has also served as an

Adjunct Professor of Law at the University of

Southern California Gould School of Law, teaching

Environmental Justice. She has also served as a

fellow of the Center for Demographics & Policy

Research at Chapman University, for which she

authored three research briefs regarding California

climate policy and civil rights, and has taught

environmental law and land use classes at Stanford

and Hastings law schools. She has served on nonprofit boards dedicated to environmental and civil

rights advocacy, including serving for twenty-three

years on the board of the California League of

Conservation Voters, where she was a persistent

voice calling attention to the disparate racial and

economic impacts of many of California’s

environmental and climate policy choices on

communities of color.

Ms. Hernandez has received numerous civil

rights

awards

for

her

work

overcoming

environmentalist opposition to housing and other

1 Counsel for amicus curiae timely provided notice to all parties

of intent to file this brief. No party’s counsel authored this brief

in whole or in part, and no person or entity other than amica or

counsel made a monetary contribution intended to fund its

preparation or submission.

projects needed and supported by minority

communities. She is the daughter and granddaughter

of steelworkers from Pittsburg, California, an

industrial community on the San Francisco Bay Area

with a significant Latino and Black workforce, and

her personal and professional experience has given

her a unique vantage point on the intersection of

environmental regulation and racial equity.

Ms. Hernandez files this brief to bring to the

Court’s attention the grave civil rights and economic

justice consequences that flow from unchecked statelaw climate litigation. Her extensive published

research demonstrates that climate policies pursued

without federal oversight or uniformity inflict

disproportionate harm on Black, Latino, and lowerincome communities — the very populations that

proponents of such policies claim to protect. This

Court’s resolution of the federal preemption question

presented in this case has profound implications for

racial equity, housing affordability, energy costs, and

economic opportunity for millions of Americans of

color.

SUMMARY OF ARGUMENT

This case presents the question whether federal

law precludes state-law claims seeking relief for

injuries allegedly caused by the effects of interstate

and international greenhouse-gas emissions on the

global climate. Amicus respectfully urges this Court

to hold that it does. While the legal arguments for

federal preemption are thoroughly briefed by

Petitioners, amicus writes to illuminate a dimension

of this case that has received insufficient attention:

the devastating civil rights and economic justice

consequences that would follow from permitting a

patchwork of state-law climate tort regimes to

regulate, through litigation, the nation’s energy

economy.

Amica has spent over four decades documenting

how state-level climate policies — even those adopted

with

avowedly

progressive

intentions

—

systematically harm Black, Latino, and lower-income

communities. In California, climate mandates have

funneled new housing into the most expensive urban

locations, replicating historical patterns of racist

redlining and pricing communities of color out of

homeownership — the single most important

pathway to middle-class wealth in America. Vehicle

miles traveled (“VMT”) reduction mandates demand

that Californians drive far fewer miles than during

the COVID-19 lockdown 2 Yet even as vehicular

emissions continue to decrease and essential workers

must be physically present to do their jobs (and be

paid), these mandates have added tens of thousands

of dollars to the cost of new homes, while existing,

wealthier, and whiter homeowners living in far more

expensive neighborhoods closer to jobs (or not needing

to physically be present at work at all as members of

the “keyboard economy”) receive a climate

pass. 3Black and Latino households already pay

Jennifer Hernandez & Lauren Teixeira, Time to Reset

California’s Climate Leadership, Breakthrough Inst. (Jan. 6,

2025),

https://thebreakthrough.org/journal/no-20-spring2024/time-to-reset-californias-climate-leadership.

3 See Jennifer Hernandez, Ctr. for Demographics & Pol’y,

Chapman Univ., California Getting in Its Own Way: In 2018,

Housing Was Targeted in 60% of CEQA Lawsuits Against

twenty to forty-three percent more of their household

incomes on energy than white households, and over

four million California households — thirty percent of

the total — now experience energy poverty. 4

Hundreds of thousands of well-paying, often

unionized energy sector jobs that disproportionately

employ workers of color have been slated for

elimination, with no credible plan to replace them. 5

Amica describes this regime as “Green Jim Crow”

— a set of policies championed by progressive

advocates that, despite good intentions, enriches the

privileged while devastating Black, Latino, and

lower-income households. Allowing state-law climate

tort litigation to proceed unchecked by federal

preemption would deepen and extend these harms

nationwide. Massive tort judgments or settlements

against energy producers based on global emissions

would raise energy costs, destroy jobs, and impose

economic burdens that fall hardest on the

communities least able to bear them — all without

producing any measurable climate benefit.

The nation’s most successful environmental

achievement — the ninety-nine percent reduction in

new vehicle smog emissions under the Clean Air Act

Construction

Projects

(Joel

Kotkin

ed.,

2019),

https://www.newgeography.com/files/ca-getting-in-its-ownway%20-%20Kotkin%20and%20Hernandez,%2012-19.pdf;

Jennifer Hernandez, Green Jim Crow: How California’s Climate

Policies Undermine Civil Rights and Racial Equity,

Breakthrough J., Summer 2021, at 1, 6–7, https://s3.us-east2.amazonaws.com/uploads.thebreakthrough.org/JournalSummer-Issue-14_2021_Green-Jim-Crow.pdf.

4 Hernandez, Green Jim Crow, supra, at 10.

5 Id. at 9–10.

— was accomplished not through litigation-driven

mandates or apocalyptic modeling, but through

methodical, transparent, and technology-neutral

federal regulation grounded in verifiable results and

balanced against social and economic tradeoffs. That

model, not a patchwork of state tort suits, should

govern the nation’s response to climate change.

ARGUMENT

I. STATE-LAW CLIMATE TORT LITIGATION

THREATENS

REPLICATE

THE

DISPARATE

RACIAL

AND

ECONOMIC

HARMS OF STATE CLIMATE REGULATORY

REGIMES

The question before this Court is a legal one:

whether federal law precludes the state-law tort

claims asserted by Respondents. But the practical

consequences of permitting such claims to proceed

underscore the legal analysis, because they bear

directly on the structural and constitutional concerns

that animate federal preemption doctrine. Amica

respectfully submits that this Court should consider

the real-world impact of state-law climate litigation

on the nation's most vulnerable communities, and the

devastating cost of allowing a single state or locality

to project its detrimental policies beyond its borders.

State-law climate tort suits do not operate in a

vacuum. They are the litigation counterpart to state

regulatory climate mandates. Both seek to use state

law to impose costs on the production and use of fossil

fuels. Both claim environmental justification. And

both, as Amica’s extensive published research

demonstrates, inflict disproportionate economic harm

on communities of color.

A. California’s Climate Policies Demonstrate

How State-Level Climate Mandates Create a

“Green Jim Crow” That Devastates Communities of Color

California provides the most compelling — and

cautionary — example of what happens when statelevel climate policy is pursued without adequate

regard for its civil rights and economic justice

consequences. As Amica has documented in extensive

published research, California’s climate agenda has

created what she calls a new “Green Jim Crow” era —

a regime in which the state’s overwhelmingly white

climate activists, underwritten by its overwhelmingly

white billionaires, have demanded unprecedented

action to remake the state’s economy and its

communities in response to an asserted existential

threat, one that they explicitly assert trumps all other

concerns. 6 They do so, outrageously, in the name of

6 See, e.g., Hernandez, Green Jim Crow, supra; David Friedman

& Jennifer Hernandez, Ctr. for Demographics & Pol’y, Chapman

Univ., California, Greenhouse Gas Regulation and Climate

Kotkin

ed.,

2015),

Change (Joel

https://www.newgeography.com/files/California%20GHG%20Re

gulation%20Final.pdf; David Friedman & Jennifer Hernandez,

Ctr. for Demographics & Pol’y, Chapman Univ., California,

Greenhouse Gas Regulation and Climate Change (Joel Kotkin

ed.,

2018),

https://www.newgeography.com/files/California%20GHG%20Re

gulation%20Final.pdf; Jennifer Hernandez, David Friedman &

Stephanie DeHerrera, In the Name of the Environment, Holland

Knight

(Aug.

2015),

https://issuu.com/hollandknight/docs/ceqa_litigation_abuseissu

u/1; Jennifer Hernandez, California Environmental Quality Act

protecting so-called “frontline communities” —

meaning low-income communities of color — even

though the primary factor that makes those

communities vulnerable is their poverty, and even as

those ostensibly advocating for actions to address the

problem also push for climate mandates that are

demonstrably making those communities poorer and

more vulnerable.

The results are stark. In 2019, nearly sixty

percent of California households earning over

$150,000 per year were white; only eighteen percent

were Latino or Black. About forty-four percent of all

Black and Latino households earned less than

$35,000 per year, near or below poverty levels in highcost California. 7 And of the roughly fifty-four percent

Lawsuits and California’s Housing Crisis, 24 Hastings Env’t L.J.

(2018),

https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1032

&context=hastings_environmental_law_journal;

Jennifer

Hernandez, In the Name of the Environment Part III: CEQA,

Housing, and the Rule of Law, 26 Chap. L. Rev. 57 (2022),

https://www.chapmanlawreview.com/wpcontent/uploads/2023/05/clr_26-1-57-hernandez.pdf;

Jennifer

Hernandez, California’s Administrative Power Grab Hurts

Californians, Does Nothing for Climate, Breakthrough Inst.

(Aug. 2022), https://thebreakthrough.org/journal/no-17-summer2022/californias-administrative-power-grab-hurts-californiansdoes-nothing-for-climate; Hernandez & Teixeira, Time to

Reset, supra; Jennifer Hernandez, Abundance for Whom?,

Breakthrough

Inst.

(Apr.

2025),

https://thebreakthrough.org/issues/energy/abundance-for-who;

Jennifer Hernandez, This California Law Will Make Housing

More Expensive: A Hidden Climate Fee Punishes Families for

Needing a Car, City J. (Apr. 2026), https://www.cityjournal.org/article/california-climate-change-fee-housing-cars.

7 Hernandez, Green Jim Crow, supra, at 4.

of all California renters paying housing costs

exceeding thirty percent of household income, the

traditional definition of housing unaffordability,

nearly seventy percent of them are people of color.8

Wealth disparities by race are even larger than

income disparities. The U.S. Census Bureau has

found that homeowners have 88.6 times the median

net wealth of renting households — a median net

wealth of $269,100 compared with just $3,036 for

renters. 9 In 2019, sixty-three percent of all white

California households were homeowners, but just

forty-four percent of Latino and thirty-six percent of

Black California households owned homes. 10 Housing

equity makes up nearly sixty percent of the total net

worth of minority homeowners compared with fortythree percent of white homeowner wealth. Black,

Latino, and other historically disadvantaged groups

rely on mortgage payments to build wealth through

homeownership; there is little to no excess cash

available to buy stocks, bonds, and other assets. 11

California’s climate agenda, Amica has shown,

was constructed by white climate activists and

donors, implemented by white governors and

technocrats, in response to a crisis constructed by

white scientists. 12 The state’s exclusively white,

wealthy, climate-centric governors — and the

leadership of the California Air Resources Board

(CARB) — have designed the state’s climate agenda

Id.

10 Id.

11 Id.

12 Id. at 13.

to a historically unmatched extent through executive

fiat in lieu of democratic legislation. 13 State-law

climate tort litigation would replicate this dynamic on

a national scale, empowering state attorneys general

and private plaintiffs to reshape the nation’s energy

economy through courtroom proceedings rather than

the transparent, democratically accountable federal

regulatory process.

B. Climate Housing Mandates Replicate Historic

Patterns of Racist Redlining and Destroy the

Primary Pathway to Wealth for Minority

Households

Among the most devastating consequences of

state climate policy is its impact on housing.

California’s climate mandates have funneled new

housing construction into the most expensive urban

infill locations, replicating historical patterns of racist

redlining and pricing communities of color out of

homeownership. As explained in Green Jim Crow,

this climate-induced infill- and transit-served

housing policy requires high density rental

apartments into the same neighborhoods that were

“redlined” – mortgages were unavailable – during the

Jim Crow era, while imposing new obstacles and costs

to building homes in leafier, less dense, whiter and

wealthier neighborhoods. 14 The predictable result is

displacement of less wealthy and disproportionately

minority families from newly-desirable urban

neighborhoods. The resulting patterns of segregation

by race and income in bastions of activism, like the

Id.

Id. at 7.

San Francisco Bay Area, are worse than those in the

1960s, as documented by UC Berkeley’s Othering and

Belonging Institute in a series of reports beginning in

2018. 15

In January 2021, the median California home cost

nearly $700,000, up twenty-one percent from the

prior year, and required an annual income of

$122,800 to qualify for a mortgage. Based on that

measure, only twenty percent of Latino and Black

California households — half the national rate —

could qualify to buy a house in the state, compared

with forty percent of white households. 16 In the jobsrich western Bay Area counties, median homes cost

$1.3 to $1.65 million, and homes are unaffordable for

ninety-two percent of Black, eighty-five percent of

Latino, and seventy-eight percent of Asian

households compared with thirty-five percent of white

households. 17

Climate-driven housing policy concentrates new

housing in low-income communities of color near

transit, where older buildings are razed and replaced

by higher-cost units, further decreasing the

availability of affordable living and driving

gentrification. 18 San Francisco, Oakland, and Los

Angeles — all epicenters of California’s progressive

See Stephen Menendian & Samir Gambhir, UC Berkeley

Othering & Belonging Inst., Racial Segregation in the San

(2018),

Francisco

Bay

Area

https://belonging.berkeley.edu/racial-segregation-san-franciscobay-area-part-1.

16 Hernandez, Green Jim Crow, supra, at 5.

Id.

Order of Federal District Judge David Carter, quoted

in Hernandez, Green Jim Crow, supra, at 6.

elites — boast shiny new residential towers alongside

soaring homelessness rates and declining minority

populations. 19 Because high-density urban housing

units are so expensive to build, rents for even the

smallest new studio apartment are often more than

median monthly mortgage costs, and the few

households of color that can pay such rents build no

equity over time. Most are displaced to increasingly

concentrated pockets of poverty in urban locations or

to outer suburbs from which they must commute for

hours each day. 20

As a federal district judge observed in ordering

Los Angeles to house tens of thousands of unhoused

residents, nearly half of newly constructed housing

units in Los Angeles between 2012 and 2019 were in

lower-income communities, yet ninety percent of the

new construction during that period was unaffordable

to working-class tenants. 21

These consequences are not incidental to

California’s climate policy; they are its direct product.

If state-law climate tort litigation — such as the case

before this Court, along with the scores of similar

lawsuits across the country brought by other states

Id. at 5.

Id.

21 See LA All. for Hum. Rts. v. City of Los Angeles, 2021 WL

1546235, at *18 (C.D. Cal. Apr. 20, 2021), vacated and remanded

sub nom. LA All. for Hum. Rts. v. Cnty. of Los Angeles, 14 F.4th

947 (9th Cir. 2021) (“A report by a coalition of housing, social

justice, and environmental groups found that nearly half of

newly constructed units in Los Angeles between 2012 to 2019

were in lower-income communities. Yet 90% of the new

construction during that period is unaffordable to working-class

tenants in Los Angeles.”).

and localities in and outside California — proceeds

and results in massive judgments against energy

companies based on their global operations and the

energy sources our country and residents depend on

to fuel the vast majority of manufacturing, defense,

transportation, heating, cooling, and electricity

production (every night and for every still or cloudy

day), California will have effectively forced its

massively costly climate regime onto the rest of the

country. And those costs will inevitably be passed

through to consumers and workers everywhere,

exacerbating the housing crisis, and deepening the

racial wealth gap and housing segregation.

California’s climate leaders openly acknowledge

the racially discriminatory impacts of their plans.

California’s blueprint of climate change mandates is

the “Scoping Plan for Achieving Carbon Neutrality,”

which was unanimously approved by CARB in 2022.

The Scoping Plan itself expressly acknowledges:

“Total income for households that make less than

$100,000 per year are estimated to decline by $5.3

billion dollars, while the total income for households

that make more than $100,000 per year will increase

by $5.3 billion under the Scoping Plan Scenario.”22 In

the paragraph that immediately follows, CARB

admits to the racist effect of its intentional climate

policy choices:

In addition to income level, there is likely to

be an impact to California personal income

Cal. Air Res. Bd., 2022 Scoping Plan for Achieving Carbon

(2022),

https://ww2.arb.ca.gov/sites/default/files/2023-04/2022-sp.pdf.

Neutrality 125

that varies based on race/ethnicity. . . . As

shown in Table 3-2, households in lower

income groups are anticipated to see negative

impacts, while households in higher income

groups are anticipated to see positive impacts

from the Scoping Plan Scenario in both 2035

and 2045. Because more than 60% of

households in the race/ethnicity categories of

Hispanic, Black alone, Native Hawaiian (HI)

or Pacific Islander, American Indian or

Alaskan Native, Other, and Two or More

make less than $100,000 per year, these

populations generally are likely to experience

reduced income. White and Asian households

will generally experience both increased and

decreased income because [they] are

distributed more evenly across income

groups. 23

Knowingly adopting a climate regulatory regime

that expressly, and thus intentionally, causes

disparate economic harm to racial minorities is

unlawful. The Scoping Plan also includes an antidriving mandate, discussed in subpart C below, which

CARB’s appointed transportation expert deemed

“fairyland territory,” even though essential workers

and those who drive longer distances because they

cannot afford to live in CARB-prescribed high cost

“infill” rental apartments, further intentionally

harms racial minorities.

Notwithstanding these

disproportionately burden

Id. at 126.

intentional acts to

Black and Latino

Californians, the CARB voted to approve the Scoping

Plan just a few months later.

C. VMT Reduction Mandates Impose Hidden

Taxes on Homeownership that Fall Hardest

on Families of Color

The connection between climate policy and

housing unaffordability is further demonstrated by

the anti-car, anti-driving VMT reduction regime that

California has imposed on new housing construction.

Under the California Environmental Quality Act

(CEQA), as amended by Assembly Bill 130 in 2025,

state and local agencies are authorized to impose

“mitigation” costs and obligations on new home

constructions to “mitigate” the future estimated miles

driven by unknown future residents, visitors and

vendors. 24 This VMT “mitigation” mandate,

effectively another climate cost mandate on cars and

pickup trucks regardless of fuel type or emissions

(and applicable even to electric vehicles), again

disproportionately burdens lower and middle income

residents. These are the same residents who are

already staggering from living with the nation’s

highest housing prices, highest gasoline prices, and

highest (tied with one other state) poverty rate in the

nation.

Notwithstanding the fact that new houses don’t

drive, and people drive because that is the only

practical transportation mode available for the vast

majority of residents, California’s climate zealots

24 Cal. Pub. Res. Code § 21080.44(b)(1)(A).

wantonly impose costly new mandates. They do so

even though California contributes less than one

percent of global greenhouse gas emissions, and only

one year of catastrophically mismanaged forests

results in more greenhouse gas emissions than 18

years of mandated greenhouse gas reductions from

regulatory mandates. According to the Coalition for

Affordable, Reliable, and Equitable Housing, VMT

mitigation fees could reach a twenty-year total of

$324,000 per home or apartment — roughly $16,000

per year, or $1,350 per month. 25

The burdens of this climate policy regime that tort

plaintiffs seek to impose do not just ape California’s

racially discriminatory climate policy choices, they

expand them by placing the cost burdens

disproportionately on middle-income households

seeking market-rate housing. California climate laws

and CEQA automatically treat housing restricted to

low-income residents as generating lower per-capita

VMT. This means that median-income households

pursuing homeownership must pay substantial VMT

mitigation fees that subsidize affordable apartments

elsewhere. The law also exempts from VMT

mitigation fees any housing built within half a mile of

high-frequency transit stops, most of which run

through the state’s most expensive urban areas,

where even midrise apartment projects often require

Coal. for Affordable, Reliable, & Equitable Hous., Broad

Coalition of over 100 Social Justice, Housing and Business

Leaders Urge Legislature to Repeal New VMT Housing Tax

(Aug. 26, 2025), https://careabouthousing.org/broad-coalition-ofover-100-social-justice-housing-and-business-leaders-urgelegislature-to-repeal-new-vmt-housing-tax/.

rents well above $3,000 per month. 26 The result is a

policy framework that favors costly urban rental

housing

while

penalizing

attainable

homeownership housing built in the communities

where most Californians actually live and work.

This VMT policy will not meaningfully affect the

global climate, and neither will these haphazard tort

lawsuits. Again, California produces less than one

percent of global greenhouse gas emissions, and some

recent wildfire seasons have each wiped out the

equivalent of nearly two decades of emission

reductions achieved in the state through costly

regulations. 27 Meanwhile, California’s own climate

agencies fail to acknowledge that migration out of the

state — often driven by housing costs — pushes

households into regions with much higher per-capita

greenhouse gas emissions. 28 Under the state’s climate

accounting rules, those departures count as climate

“successes” because the emissions occur beyond

California’s borders, although that conveniently

doesn’t stop the state from suing over them later.

The VMT regime illustrates a pattern that would

be replicated and projected by state-law climate tort

litigation: the imposition of climate-related costs

through state mechanisms that disproportionately

burden lower-income and minority households while

providing no measurable climate benefit.

See Cal. Code Regs. tit. 14, § 15064.3(b)(1).

Hernandez, This California Law Will Make Housing More

Expensive, supra.

28 Hernandez, California Environmental Quality Act Lawsuits

and California's Housing Crisis, supra, at 55, 57.

This Court has never countenanced the

intentional infliction of racially disparate cost

burdens of this magnitude. It should not further

empower these same actors with unfettered access to

unlimited state tort lawsuits seeking to impose cost

and liability burdens on essential products that will

knowingly and intentionally create higher and far

less affordable cost burdens on racial minorities.

II. UNREGULATED

STATE

CLIMATE

LITIGATION THREATENS THE ENERGY

SECTOR JOBS AND AFFORDABLE ENERGY

ON WHICH COMMUNITIES OF COLOR

DISPROPORTIONATELY DEPEND

State-law climate tort suits, if permitted to

proceed, also seek to impose potentially ruinous

liability on energy producers. The economic

consequences would be borne not by the affluent

white climate activists and plaintiffs’ attorneys who

drive such litigation, but by the workers and

consumers who depend on affordable energy — which

are again, as demonstrated in California,

disproportionately and intentionally inflicted on

communities of color.

The energy sector provides over 152,100 direct

and 213,860 indirect and induced jobs in California

that pay higher wages and benefits for individuals

with lower levels of education. 29 This workforce is

ethnically and racially diverse, and about sixty-three

percent of all employees have less than a bachelor's

degree. 30 Another 3.9 million California jobs — 16.5

Hernandez, Green Jim Crow, supra, at 10.

Id.

percent of total state employment — rely on

purchases from or use products sold by energy

producers within California, including chemical,

machinery, and metal products manufacturing,

wholesale trade, utilities, and transportation, as well

as professional, scientific, and technical services. 31

Most of these sectors also provide higher-paying jobs

for workers of color, often in more affordable areas of

the state. These jobs are also at risk from the forced

elimination of the in-state energy sector. 32

California climate advocates have utterly failed to

provide a convincing explanation for how workers of

color employed in existing energy and energydependent sectors will support their families once

these industries are gone. Suggestions that “green

employment” will replace job losses in the fossil fuel

sector are not credible. Even the Washington Post has

conceded that rapid growth in the wind and solar

industries over the next decade could plausibly

replace at most twenty percent of the workforce of the

coal industry alone. 33 And leading unions now agree.

“[C]areer opportunities for renewables are nowhere

near what they are in gas and oil,” North America’s

Building Trades Unions concluded after conducting

two studies of the industry. 34.

Id.

33 See Glenn Kessler, Kerry's Misleading Framing of Potential

Solar and Wind Jobs, Wash. Post (Jan. 29, 2021),

https://www.washingtonpost.com/politics/2021/01/29/kerrysmisleading-framing-potential-solar-wind-jobs/.

34 Hernandez, Green Jim Crow, supra, at 10.

The energy cost dimension is equally alarming.

Black and Latino households are already forced to pay

from twenty to forty-three percent more of their

household incomes on energy than white households.

A household energy cost of more than six percent of

total income is considered the measure of energy

poverty. In 2020, over four million households in

California — thirty percent of the total — experienced

energy poverty, and over two million households were

forced to pay ten to twenty-seven percent of their total

income for home energy. 35 Between 2011 and 2020,

the state’s home energy affordability gap rose by

sixty-six percent, while falling by ten percent in the

rest of the nation. California has the highest

electricity and highest gasoline costs in the nation,

with electricity prices fifty percent higher than the

national average. 36.

Massive tort liability imposed on energy

companies through state-law climate litigation would

further drive up these costs. Every dollar extracted

from energy producers through climate tort

judgments is a dollar that will ultimately be borne by

consumers through higher energy prices, by workers

through lost jobs, or by communities through reduced

economic activity. Epidemiological studies show that

poverty and unemployment increase the risk of major

illness and premature mortality at substantially

higher rates than the environmental harms that

climate litigants claim to address. The result would

be a regime that elevates the litigation priorities of

Id.

affluent communities above the survival needs of

society’s most vulnerable.

III. FEDERAL

PREEMPTION

PROVIDES

NECESSARY SAFEGUARD AGAINST THE

DISPARATE

RACIAL

AND

ECONOMIC

HARMS OF A PATCHWORK OF STATE

CLIMATE TORT REGIMES

The civil rights and economic justice

consequences documented above provide powerful

pragmatic support for the legal conclusion that

federal law precludes state-law climate tort claims. A

patchwork of state tort regimes — each imposing its

own vision of climate liability on energy producers

whose operations and products cross every state and

national boundary — would create precisely the kind

of regulatory chaos and territorial overreach that

federal preemption doctrine is designed to prevent.

Climate change is, by definition, a global

phenomenon driven by worldwide emissions that

have accumulated over more than a century. No

single state, no single tort suit, and no single

judgment can meaningfully alter global atmospheric

greenhouse gas concentrations. But such suits can —

and would — impose staggering costs on energy

producers, costs that would cascade through the

economy in the form of higher energy prices, reduced

employment, and diminished economic opportunity

for the communities that can least afford it.

As Amica has documented, California’s

experience shows that even well-intentioned state

climate policies produce deeply regressive outcomes

when pursued without adequate regard for their civil

rights and economic consequences. 37 The state’s

climate agenda has produced record levels of

inequality, and housing segregation has returned to a

degree not seen since – and worse than what existed

- in the early 1960s. 38. Climate-friendly San Francisco

leaders were themselves stunned when regional

planning agencies proposed “smart growth” plans

that forced hundreds of thousands of high-cost, highdensity housing units into the region’s few remaining

legacy minority communities. “It’s Black and brown

families that get displaced” by bunching dense new

apartments near transit to cut greenhouse gas

emissions, one San Francisco County supervisor told

the San Francisco Chronicle. “We have seen this show

before.” 39

State-law climate tort litigation would replicate

and export these dynamics in a more dangerous form.

Unlike regulatory mandates, which at least go

through some form of rulemaking or legislative

process, tort judgments are imposed by individual

courts applying an individual state’s laws to the

operations of national and multinational energy

companies. There is no mechanism in state tort law

for assessing the disparate racial and economic

impact of climate-motivated judgments. There is no

requirement that plaintiffs demonstrate their claims

will produce measurable climate benefits. And there

is no safeguard against the cascading economic harms

See generally Hernandez, Green Jim Crow, supra.

Hernandez, Green Jim Crow, supra, at 4; Menendian &

Gambhir, supra.

39 Hernandez, Green Jim Crow, supra, at 9.

that would fall on communities of color who depend

on affordable energy and energy-sector employment.

Federal preemption provides that safeguard. It

prevents one locality from imposing its harmful

policies on the rest of the country and the world, and

ensures that the nation’s response to climate change

is channeled through federal institutions with the

authority, the expertise, and the democratic

accountability to balance environmental goals against

the equally compelling imperatives of racial equity,

economic justice, and affordable energy. 40

IV. ENVIRONMENTAL

REGULATION

THAT

HARMS

RATHER

THAN

HELPS

DISADVANTAGED COMMUNITIES BETRAYS

THE LESSONS OF THE NATION’S MOST

SUCCESSFUL

ENVIRONMENTAL

ACHIEVEMENTS

The irony of state-law climate tort litigation is

that it betrays the very model of environmental

regulation that produced America’s greatest

environmental success. The Clean Air Act’s war on

smog stands as proof that environmental protection

and economic opportunity for communities of color

need not be in conflict. Between 1970 and 2017,

40 Federal preemption of state law is commonplace. Preemption

is a product of the Supremacy Clause of the United States

Constitution, which provides that the Constitution, federal laws,

and treaties “shall be the supreme Law of the Land . . . any thing

in the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. From this

constitutional command flows the principle that state laws that

interfere with or are contrary to federal law must yield. See, e.g.,

La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368 (1986).

according to the U.S. Environmental Protection

Agency, aggregate national emissions of the six

common pollutants dropped an average of seventythree percent while gross domestic product grew by

324 percent. New cars, SUVs, and pickup trucks

became ninety-nine percent cleaner than they were in

1970. 41

California

achieved

these

remarkable

environmental accomplishments even as it grew to

become the sixth-largest economy in the world. The

state did this by developing affordable and effective

strategies to combat smog, where regulators

continually experimented with and evaluated realworld outcomes and competing approaches for

cleaning the air through technological innovations

and practices, balanced with the need for continued

economic growth. 42 Importantly, smog programs were

altered when they were credibly linked with

disproportionate burdens on communities of color. 43

This model — methodical, transparent,

technology-neutral, grounded in verifiable results,

and respectful of civil rights — is the antithesis of

state-law climate tort litigation. Tort suits are

adversarial, not collaborative. They produce

judgments, not technological solutions. They impose

costs without regard to who bears them. They proceed

without the systematic assessment of racial and

economic equity that federal regulation can and

should provide.

41 Hernandez,

Id.

43 Id.

Green Jim Crow, supra, at 15.

Before imposing costly mandates on the energy

sector — whether through regulation or litigation —

policymakers and courts must be required to

demonstrate, with verifiable outcome data, that

proposed rules or judgments will produce measurable

health or environmental benefits, and that those

benefits justify the financial burdens they impose on

lower-income households. We cannot continue to

allow the abstract environmental priorities of a

privileged few to dominate policy in ways that

knowingly harm our poorest and most historically

disadvantaged communities.

CONCLUSION

For the foregoing reasons, this Court should

hold that federal law precludes the state-law

climate claims asserted by Respondents.

Respectfully submitted,

Rafe Petersen

Counsel of Record

Holland & Knight LLP

800 17th Street, NW

Suite 1100

Washington, DC 20006

(202) 491-8839

Rafe.Petersen@hklaw.com

Counsel for Amicus Curiae

Jennifer Hernandez

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.