Amicus Curiae Brief — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. County Commissioners of Boulder County, et al.
Supreme Court briefAug 3, 2026
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No. 25-170
In the Supreme Court of the United States
SUNCOR ENERGY (U.S.A.), INC. ET AL.,
Petitioners,
v.
COUNTY COMMISSIONERS OF BOULDER COUNTY, ET AL.,
Respondents.
On Writ of Certiorari to the
Supreme Court of Colorado
BRIEF OF SENATOR SHELDON WHITEHOUSE,
REPRESENTATIVE PRAMILA JAYAPAL, AND 88
ADDITIONAL MEMBERS OF CONGRESS AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS
ALEXANDRA L. ST. ROMAIN*
PATRICK R. JACOBI
PETER A. HEISLER
BENJAMIN W. DIAMOND
RIDGELINE CENTER FOR
LAW AND POLICY
712 H Street NE
Suite 90006
Washington, D.C. 20002
(202) 893-7170
alex.st.romain@ridgelinecenter.org
Counsel for Amici Curiae
August 3, 2026
* Counsel of Record
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................... ii
INTEREST OF AMICI CURIAE ........................ 1
SUMMARY OF ARGUMENT............................. 6
ARGUMENT ....................................................... 7
I.
II.
The Clean Air Act’s text, structure,
and purpose preserve respondents’
state common law tort claims. ............. 7
A.
The Clean Air Act does not
preempt respondents’ claims,
which target entirely different
conduct than the Act. .................... 8
B.
Even if respondents’ claims
could be interpreted as affecting
emissions, the Clean Air Act
expressly preserves state
authority to do so. ........................ 13
Petitioners’ arguments undermine
Congress’s authority to decide when
and to what extent to preempt state
tort law. ................................................... 18
III. No congressionally approved foreign
policy preempts respondents’
claims. .................................................... 25
CONCLUSION .................................................. 30
ii
TABLE OF AUTHORITIES
Cases
American Electric Power Co. v. Connecticut,
564 U.S. 410 (2011) .................................. 22
American Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003) .................................. 25
Askew v. American Waterways Operators,
Inc.,
411 U.S. 325 (1973) ............................ 20, 25
Barclays Bank PLC v. Franchise Tax Bd.,
512 U.S. 298 (1994) .................................. 28
Bates v. Dow Agrosciences LLC,
544 U.S. 431 (2005) ............................ 17, 23
Bell v. Cheswick Generating Station,
734 F.3d 188 (3d Cir. 2013), cert. denied sub
nom. GenOn Power Midwest, L.P. v. Bell,
572 U.S. 1149 (2014) ........................... 14-15
Buckman Co. v. Plaintiffs’ Legal Comm.,
531 U.S. 341 (2001) .................................. 20
Camps Newfound/Owatonna, Inc. v. Town of
Harrison,
520 U.S. 564 (1997) .................................. 17
Chamber of Commerce of United States of
America v. Whiting,
563 U.S. 582 (2011) .................................. 25
Cipollone v. Liggett Group, Inc.,
505 U.S. 504 (1992) ....................... 15, 23-24
iii
Cisco Sys., Inc. v. Doe I,
146 S. Ct. 1882, 225 L. Ed. 2d 460
(2026). ...................................................... 25
City of Gary v. Smith & Wesson,
801 N.E.2d 1222 (Ind. 2003) .................... 24
City of New York v. Chevron,
993 F.3d 81 (2d Cir. 2021) ....................... 15
City & Cnty. of San Francisco v. Purdue
Pharma L.P.,
491 F. Supp. 3d 610 (N.D. Cal. 2020)...... 23
Clark v. Citizens of Humanity, LLC,
97 F. Supp. 3d 1199 (S.D. Cal. 2015) ...... 22
Colon v. BIC USA, Inc.,
136 F. Supp. 2d 196 (S.D.N.Y. 2000) ...... 22
Cook v. Gralike,
531 U.S. 510 (2001) .................................. 13
Cook v. Rockwell Int’l Corp.,
790 F.3d 1088 (10th Cir. 2015)................ 21
Connecticut v. Exxon Mobil Corp.,
83 F.4th 122 (2d Cir. 2023)...................... 20
Counts v. General Motors LLC,
139 F.4th 576 (6th Cir. 2025) .................... 9
De Canas v. Bica,
424 U.S. 351 (1976) .................................. 12
Edenfield v. Fane,
507 U.S. 761 (1993) .................................. 20
iv
English v. General Electric Co.,
496 U.S. 72 (1990) .................................... 18
Fenner v. General Motors, LLC,
113 F.4th 585 (6th Cir. 2024) .................... 9
Florida Lime & Avocado Growers, Inc. v.
Paul,
373 U.S. 132 (1963) .................................. 20
Freeman v. Grain Processing Corp.,
848 N.W.2d 58 (Iowa 2014), cert. denied,
574 U.S. 1026 (2014) .................................. 9
Geier v. American Honda Motor Co.,
529 U.S. 861 (2000) .................................. 22
Hencely v. Fluor Corp.,
146 S. Ct. 1086 (2026)........................ 19, 27
Hillsborough Cnty. v. Automated Medical
Laboratories, Inc.,
471 U.S. 707 (1985) .................................. 19
Hines v. Davidowitz,
312 U.S. 52 (1941) .................................... 18
In re Chrysler-Dodge-Jeep Ecodiesel
Marketing, Sales Practices, & Prods. Liab.
Litig.,
295 F. Supp. 3d 927 (N.D. Cal. 2018)...... 10
In re Methyl Tertiary Butyl Ether (“MTBE”)
Prods. Liab. Litig.,
725 F.3d 65 (2d Cir. 2013), cert. denied sub
nom. Exxon Mobil Corp. v. City of New
York, 572 U.S. 1080 (2014) ..... 10-11, 20, 23
v
Int’l Paper Co. v. Ouellette,
479 U.S. 481 (1987) .................................. 16
Johnson v. 3M,
563 F. Supp. 3d 1253 (N.D. Ga. 2021) .... 24
Kansas v. Garcia,
589 U.S. 191 (2020) .................................. 17
Kurns v. Railroad Friction Prods. Corp.,
565 U.S. 625 (2012) .................................. 18
Lipschultz v. Charter Advanced Servs. (MN),
LLC,
589 U.S. 1038 (2019) ................................ 28
Mayor of Baltimore v. B.P. P.L.C.,
353 A.3d 1142 (Md. 2026) ........................ 10
Medellin v. Texas,
552 U.S. 491 (2008) ....................... 25-26, 28
Medtronic, Inc., v. Lohr,
518 U.S. 470 (1996) ............................. 18-19
Merrick v. Diageo Americas Supply, Inc.,
805 F.3d 685 (6th Cir. 2015).................... 14
Metropolitan Life Ins. Co. v. Massachusetts,
471 U.S. 724 (1985) .................................... 7
Moe v. MTD Prods.,
73 F.3d 179 (8th Cir. 1995)...................... 22
O’Melveny & Myers v. FDIC,
512 U.S. 79 (1994) .................................... 11
vi
Oklahoma v. Castro-Huerta,
597 U.S. 629 (2022) .................................. 25
Oklahoma v. EPA,
605 U.S. 609 (2025) .................................. 15
Northridge Co. v. W.R. Grace & Co.,
556 N.W.2d 345 (Wis. App. 1996) ........... 24
Parker Drilling Mgmt. Servs., Ltd. v. Newton,
587 U.S. 601 (2019) .................................. 20
People v. ConAgra Grocery Prods. Co.,
227 Cal. Rptr. 3d 499 (Cal. Ct. App.
2017) .................................................... 23-24
Puerto Rico Dep’t of Consumer Affairs v.
ISLA Petroleum Corp.,
485 U.S. 495 (1988) .................................. 19
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947) .................................. 18
Silkwood v. Kerr-McGee Corp.,
464 U.S. 238 (1984) ............................ 19, 21
Smith & Wesson Brands, Inc. v. Estados
Unidos Mexicanos,
605 U.S. 280 (2025) .................................. 21
Southland Corp. v. Keating,
465 U.S. 1 (1984) ...................................... 21
Union Electric Co. v. EPA,
427 U.S. 246 (1976) .................................. 15
vii
United States v. Locke,
529 U.S. 89 (2000) .................................... 20
Virginia Uranium, Inc. v. Warren,
587 U.S. 761 (2019) ............. 7, 11, 18-19, 25
West Virginia Univ. Hospitals v. Casey,
499 U.S. 83 (1991) .................................... 13
Wyeth v. Levine,
555 U.S. 555 (2009) ...................... 17, 19, 22
Zivotofsky v. Kerry,
576 U.S. 1 (2015) ...................................... 29
Constitutional Provisions
U.S. Const. Art I., § 1 ................................... 7
U.S. Const. Art. VI, Cl. 2 .............................. 7
U.S. Const. Amend. X ................................. 24
Statutes
Consumer Product Safety Act, 15 U.S.C.
§§ 2051 et seq.
15 U.S.C. § 2074(a) .................................. 22
15 U.S.C. § 2075....................................... 22
Protection of Lawful Commerce in Arms Act,
15 U.S.C. §§ 7901 et seq.
15 U.S.C. § 7902....................................... 21
15 U.S.C. § 7903(5)(A) ............................. 21
viii
15 U.S.C. § 7903(5)(A)(iii)........................ 21
Clean Air Act, 42 U.S.C. §§ 7401 et seq.
42 U.S.C. § 7401(a)(3) ................................ 8
42 U.S.C. § 7410......................................... 8
42 U.S.C. § 7410(a)(2)(D)(i) ..................... 15
42 U.S.C. § 7411......................................... 8
42 U.S.C. § 7411(d) .................................. 15
42 U.S.C. § 7412......................................... 8
42 U.S.C. § 7415....................................... 27
42 U.S.C. § 7415(b) .................................. 27
42 U.S.C. § 7416....................................... 14
42 U.S.C. § 7507....................................... 15
42 U.S.C. § 7521......................................... 8
42 U.S.C. § 7543(b) .................................. 15
42 U.S.C. § 7545(c)(4)(A) ......................... 15
42 U.S.C. § 7547......................................... 8
42 U.S.C. § 7571......................................... 8
42 U.S.C. § 7573....................................... 15
42 U.S.C. § 7602(k) .................................... 8
ix
42 U.S.C. § 7604(e) .................................. 14
American Innovation and Manufacturing Act
of 2020, 42 U.S.C. § 7675 ......................... 26
Global Climate Protection Act of 1987, Title
XI of Pub. L. No. 100-204, 101 Stat. 1331
(1987), note following 15 U.S.C. § 2901 .. 26
Other Materials
Exec. Order No. 14162, 90 Fed. Reg. 8455
(Jan. 30, 2025).......................................... 28
Findings of Fact and Conclusions of Law and
Order Denying Defendants’ Motion for
Summary Judgment Re: “Factual Issue #2,”
In re Opioid Litigation, No. 21-C-9000 (W.
Va. Kanawha Cnty. Cir. Ct. July 1, 2022),
https://tinyurl.com/5csw289w.................. 23
S. Rep. No. 91-1196 (1970) ......................... 16
S. Rep. No. 101-228 (1989) .................... 16-17
S. Treaty Doc. No. 102-38, 1771 U.N.T.S.
107 ............................................................ 26
S. Treaty Doc. No. 117-1, C.N. 730.2017 ... 26
Stop Climate Shakedowns Act of 2026, H.R.
8330, 119th Cong. (2026) ......................... 12
Stop Climate Shakedowns Act of 2026, S.
4340, 119th Cong. (2026) ......................... 12
1
INTEREST OF AMICI CURIAE 1
Amici curiae are 90 Members of Congress elected
by voters to represent their States and to enact federal law where appropriate. Many amici sit on committees with jurisdiction over the environment, energy, natural resources, and the judiciary. Amici
share an interest in maintaining an appropriate constitutional balance of power between the federal government and the States. Amici write to ensure that
federal statutes and federal authority are not improperly used as cudgels to preempt States’ police powers
to protect their citizens.
Amici have an interest in protecting Congress’s
power to prescribe the preemptive scope of federal
law. When Congress wants to preempt state power,
Congress knows how to do so. In the Clean Air Act,
Congress did not preempt state tort suits that, like
respondents’, are based on production and deceptive
marketing and sales of fossil fuels known to cause
harm. A conclusion that respondents’ claims are
preempted would replace explicit congressional intent
against preemption with an unprecedented presumption in favor of preemption that would eliminate a
wide range of traditional state authorities.
The following is a full list of amici:
1 No counsel for a party authored this brief in whole or in part,
and no counsel or party made a monetary contribution intended
to fund its preparation or submission. No person other than
amici or their counsel made a monetary contribution to the preparation or submission of this brief.
2
Senator
Sheldon Whitehouse
Representative
Mejia Analilia
Senator
Richard Blumenthal
Representative
Yassamin Ansari
Senator
Cory Booker
Representative
Becca Balint
Senator
Richard J. Durbin
Representative
Nanette Barragán
Senator
Mazie K. Hirono
Representative
Donald S. Beyer Jr.
Senator
Ben Ray Luján
Representative
Suzanne Bonamici
Senator
Edward Markey
Representative
Brendan Boyle
Senator
Jeffrey Merkley
Representative
Julia Brownley
Senator
Bernard Sanders
Representative
André Carson
Senator
Chris Van Hollen
Representative
Greg Casar
Senator
Peter Welch
Representative
Sean Casten
Senator
Ron Wyden
Representative
Joaquin Castro
Representative
Pramila Jayapal
Representative
Steve Cohen
Representative
Gabe Amo
Representative
Joe Courtney
3
Representative
Jasmine Crockett
Representative
Dan Goldman
Representative
Jason Crow
Representative
Adelita Grijalva
Representative
Danny K. Davis
Representative
Jahana Hayes
Representative
Madeleine Dean
Representative
Eleanor Holmes Norton
Representative
Diana DeGette
Representative
Jared Huffman
Representative
Mark DeSaulnier
Representative Henry
C. “Hank” Johnson, Jr.
Representative
Maxine Dexter
Representative
Sydney Kamlager-Dove
Representative
Lloyd Doggett
Representative
Ro Khanna
Representative
Adriano Espaillat
Representative
Raja Krishnamoorthi
Representative
Dwight Evans
Representative
Summer Lee
Representative
Bill Foster
Representative
Mike Levin
Representative
Valerie Foushee
Representative
Ted Lieu
Representative
Maxwell Frost
Representative
Stephen Lynch
Representative
Jesús “Chuy” García
Representative
Betty McCollum
4
Representative
James McGovern
Representative
Delia Ramirez
Representative
Christian Menefee
Representative
Emily Randall
Representative
Grace Meng
Representative
Jamie Raskin
Representative
Kweisi Mfume
Representative
Deborah Ross
Representative
Seth Moulton
Representative
Andrea Salinas
Representative
Jerrold Nadler
Representative
Jan Schakowsky
Representative
Joe Neguse
Representative
Bobby Scott
Representative
Representative
Alexandria Ocasio-Cortez Lateefah Simon
Representative
Ilhan Omar
Representative
Suhas Subramanyam
Representative
Brittany Pettersen
Representative
Mark Takano
Representative
Chellie Pingree
Representative
Shri Thanedar
Representative
Mark Pocan
Representative
Dina Titus
Representative
Ayanna Pressley
Representative
Rashida Tlaib
Representative
Mike Quigley
Representative
Paul Tonko
5
Representative
Juan Vargas
Representative
Maxine Waters
Representative
Nydia Velázquez
Representative Bonnie
Watson Coleman
Representative Debbie
Wasserman Schultz
Representative
Frederica Wilson
6
SUMMARY OF ARGUMENT
The County Commissioners of Boulder County
and the City of Boulder brought a state common law
tort action for damages against fossil fuel companies
to protect Boulder’s property and to care for residents’
safety. If the Court finds jurisdiction, the question
that should guide the Court’s merits analysis is
whether Congress preempted these state tort claims.
The answer to that question is plainly no, as evidenced by the Clean Air Act’s text, structure, and purpose.
In the Clean Air Act, Congress created a comprehensive and detailed system for reducing air pollution. It did not address deceptive marketing or sales
of fossil fuels at all. In an acknowledgment that Congress was entering into a space historically occupied
by States, the Act embodies cooperative federalism,
assigning primacy to States in many clean air programs. Congress expressly empowered state regulations beyond the federal standards and preserved
state authority to seek “any” relief under “any statute
or common law.” The few exceptions, where Congress
crafted explicit, narrow preemption clauses relating
to state regulation of pollution from vehicles, airplanes, and fuel additives, prove the rule.
Petitioners seek to eliminate the powerful state
role that Congress retained in the Clean Air Act. To
do so, petitioners mischaracterize respondents’ state
law claims as “inherently federal” and argue for
preemption based on vague constitutional theories.
Petitioners subvert bedrock constitutional principles
of federalism that preserve state power and ignore
Congress’s core role in dictating the scope of federal
7
legislation. Their argument would turn any regulatory regime for a national industry into a default liability shield for deceptive practices or other misconduct. That is not how Congress legislates—in the
Clean Air Act or otherwise. Nor has Congress endorsed any international policy that could remotely be
read to preempt respondents’ claims, which sound in
traditional state authority. A ruling allowing respondents to proceed with their claims in state court
would respect Congress’s prerogative to determine
when and how to preempt state actions and would
preserve long-settled expectations of citizens, legislators, and courts.
ARGUMENT
I.
The Clean Air Act’s Text, Structure, And
Purpose Preserve Respondents’ State
Common Law Tort Claims.
The Constitution gives Congress—and only Congress—the power to enact federal laws. U.S. Const.
Art I., § 1. Where appropriate, Congress preempts
state law. U.S. Const. Art. VI, Cl. 2; Virginia Uranium, Inc. v. Warren, 587 U.S. 761, 778 (2019) (opinion of Gorsuch, J.). “[I]n any pre-emption analysis,
the purpose of Congress is the ultimate touchstone.”
Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.
724, 747 (1985) (cleaned up). The Clean Air Act’s text,
structure, and purpose show that Congress has not
preempted respondents’ state tort claims. The Act is
intended to improve air quality primarily through
emission reductions and thus does not reach respondents’ claims that petitioners engaged in the tortious
conduct of deceptive marketing and sales of their
knowingly harmful products.
But, even if
8
respondents’ claims—or any as-yet-undetermined
remedies—could incidentally reduce air pollution or
be construed to directly regulate emissions from covered sources, the Clean Air Act still plainly permits
them.
A. The Clean Air Act Does Not Preempt
Respondents’ Claims, Which Target
Entirely Different Conduct Than The
Act.
Respondents seek to hold petitioners accountable
for the harm that their residents and property have
suffered due to petitioners’ tortious conduct. The
Clean Air Act does not regulate or address petitioners’
harmful upstream actions, including deceptive marketing and sales of fossil fuels. Petitioners’ argument
ignores the mismatch between the conduct at issue in
respondents’ claims and the conduct that Congress
sought to regulate in the Act. This fatal flaw should
end the Court’s inquiry.
In the Clean Air Act, Congress sought “air pollution prevention (that is, the reduction or elimination,
through any measures, of the amount of pollutants
produced or created at the source) and air pollution
control at its source.” 42 U.S.C. § 7401(a)(3). The
statutory architecture predominantly targets emissions of air pollution at the source, ranging from
standards for stationary sources, 42 U.S.C. §§ 7411,
7412, and mobile sources, 42 U.S.C. §§ 7521, 7547,
7571, to measures addressing ambient air quality, 42
U.S.C. § 7410, among others. See also 42 U.S.C.
§ 7602(k) (defining “emission limitation” as “any requirement related to the operation or maintenance of
a source”).
9
By contrast, respondents’ claims seek redress for
decades of production, marketing, and sales of a product known to be harmful (fossil fuel) that ultimately
injured—and continues to injure—respondents’ residents and property. J.A. 3 (Am. Compl. ¶ 5), J.A. 115
(Am. Compl. ¶ 452). Each claim is premised on petitioners’ negligent, reckless, or intentional conduct in
misleading consumers. See Pet. App. 1a-3a (listing
claims for public and private nuisance, unjust enrichment, trespass, and civil conspiracy, as well as underlying theories). Respondents “do not seek to enjoin
any oil and gas operations or sales in the State of Colorado, or elsewhere, or to enforce emissions controls
of any kind.” J.A. 139 (Am. Compl. ¶ 542) (emphasis
in original).
The Clean Air Act does not speak to tort claims
like respondents’ regarding production or deceptive
marketing and sales, and therefore does not preempt
them. See Freeman v. Grain Processing Corp., 848
N.W.2d 58, 69 (Iowa 2014) (explaining that the Clean
Air Act “deal[s] with general emissions standards to
prospectively protect the public, while common law
actions retrospectively focus on individual tort remedies . . . for actual harm”), cert. denied, 574 U.S. 1026
(2014). Lower courts have recognized as much. See
Fenner v. General Motors, LLC, 113 F.4th 585, 590,
596, 600-602 (6th Cir. 2024) (holding that state consumer protection claims based on automobile manufacturers’ misrepresentations to consumers regarding
emissions were not preempted by the Clean Air Act);
Counts v. General Motors LLC, 139 F.4th 576, 582
(6th Cir. 2025) (applying Fenner for the principle that
the plaintiffs’ claims involving consumers’ expectations and the manufacturer’s advertising about
10
vehicle emissions were not preempted unless remand
showed that they “implicate[d] or challenge[d]” federal regulatory actions (citation omitted)); In re
Chrysler-Dodge-Jeep Ecodiesel Marketing, Sales
Practices, & Prods. Liab. Litig., 295 F. Supp. 3d 927,
1003 (N.D. Cal. 2018) (concluding that the Clean Air
Act does not preempt claims based on deceptive marketing). Indeed, “[n]o federal court––not one––has
ever preempted a state law deceptive marketing or
consumer protection claim under the Clean Air Act.”
Mayor of Baltimore v. B.P. P.L.C., 353 A.3d 1142,
1219 (Md. 2026) (Killough, J., concurring in part and
dissenting in part).
Nor does the Act regulate, much less address, unjust enrichment from knowingly misleading the public about the foreseeable harms of fossil fuels. The
Second Circuit illustrated this principle when it rejected preemption of state tort claims with a much
closer nexus to the Clean Air Act’s purview. See In re
Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab.
Litig., 725 F.3d 65 (2d Cir. 2013), cert. denied sub
nom. Exxon Mobil Corp. v. City of New York, 572 U.S.
1080 (2014). There, the Second Circuit permitted
state law claims challenging the tortious use of a
chemical fuel additive known as MTBE even though
Congress had identified MTBE as one potential
method of compliance with the Act’s reformulated
gasoline requirements for motor vehicles. Id. at 78,
95-96.
In rejecting defendant Exxon’s conflict
preemption arguments, the Second Circuit relied on
the jury’s determination “not only that the company
used MTBE” to comply with the Act, but also “that
Exxon knew of the dangers of MTBE and failed to
take actions to mitigate MTBE contamination.” Id. at
11
96, 103-104, 121-123 & n.43. In other words, Clean
Air Act compliance could not shield tortious conduct
from state common law that lies beyond the Act’s requirements, even when the conduct was taken in part
to comply with the Act.
This Court declined to preempt Virginia’s ban on
uranium mining under analogous logic in Virginia
Uranium. As the Court explained, Virginia’s ban targets conduct removed in place, time, and regulatory
focus from the federal statute’s purview over the milling, transfer, use, and disposal of uranium, as well as
the construction and operation of nuclear power
plants. See 587 U.S. at 768 (opinion of Gorsuch, J.)
(“[T]he statute speaks very differently, expressly stating that the [Nuclear Regulatory Commission]’s regulatory powers arise only after uranium’s removal from
its place of deposit in nature.” (cleaned up)). Similarly, the Clean Air Act’s regulatory powers primarily
arise after fossil fuels are burned and emit pollutants
into the air—well after the actions targeted by respondents’ lawsuit. Petitioners’ upstream tortious
conduct—the production and deceptive marketing
and sales of fossil fuels that they knew would subsequently cause harm—falls outside of the Act’s purview of regulating the amount of air pollution that a
source may emit.
No matter how broadly one might define the
reach of the Clean Air Act’s emissions regulation, the
absence of any statutory language addressing deceptive marketing and sales of fossil fuels mandates the
conclusion that respondents’ claims are not statutorily preempted. See, e.g., O’Melveny & Myers v. FDIC,
512 U.S. 79, 85 (1994) (“Nor would we adopt a courtmade rule to supplement federal statutory regulation
12
that is comprehensive and detailed; matters left unaddressed in such a scheme are presumably left subject to the disposition provided by state law.”); De
Canas v. Bica, 424 U.S. 351, 358-359 (1976) (concluding that, despite the Immigration and Nationality
Act’s “comprehensive[] . . . scheme for regulation of
immigration and naturalization,” the absence of any
language in the Act regarding employment eligibility
dictated that the federal statute did not preempt a
state law prohibiting the employment of persons not
entitled to lawful residence in the United States).
Holding otherwise would conjure legislative intent
out of thin air.
Likely for this reason, some members of Congress
have effectively acknowledged that the Clean Air Act
does not preempt respondents’ claims. They have introduced bills that would prohibit any state or federal
suit “brought against any person engaged in the energy business . . . for alleged past or future harm resulting directly or indirectly from climate change, including because of marketing, alleged misrepresentation, alleged failure to warn, or any other speech.”
Stop Climate Shakedowns Act of 2026, S. 4340, 119th
Cong. § 3 (2026); Stop Climate Shakedowns Act of
2026, H.R. 8330, 119th Cong. § 3 (2026). Put simply,
the bills would immunize deep-pocketed and politically powerful coal, oil, and gas interests from accountability for harms their actions have caused to
Americans, including under the very same state tort
theories that respondents raise. 2 “The fact that the
2 The proposed bill and many of the amicus briefs filed in this
case
are
part
of
an
industry-driven
project
to
evade
13
proposal was made suggests that its proponents
thought it was necessary.” Cook v. Gralike, 531 U.S.
510, 521 (2001).
B. Even If Respondents’ Claims Could Be
Interpreted As Affecting Emissions, The
Clean Air Act Expressly Preserves State
Authority To Do So.
“The best evidence of [congressional] purpose is
the statutory text adopted by both Houses of Congress
and submitted to the President.” West Virginia Univ.
Hospitals v. Casey, 499 U.S. 83, 98 (1991). Even if
petitioners were correct that respondents’ claims
could incidentally reduce or even directly regulate
emissions (which they do not), the Clean Air Act’s
text, structure, and purpose permit that.
In the Act, Congress preserved state authority
through two broad saving clauses. The saving clauses
ensure that the Act sets a federal floor to prevent a
“race to the bottom” but otherwise largely leaves state
power intact, recognizing the enduring role of States
in pollution regulation. First, in the citizen-suit provision, Congress preserved the “right which any person (or class of persons) may have under any statute
accountability for all conduct related to their businesses. At
least 17 amici in support of petitioners have received financial
support from fossil fuel-linked donors. These amicus briefs present as an outpouring of support for a legal position, but publicly
available information shows them to be funded by a small and
powerful phalanx of self-interested entities. These industry
front groups and their funders are part of a tightly connected
web of organizations dedicated to protecting fossil fuel interests
in Congress, at executive agencies, and in the courts. We document some of the common financial supporters of these amici in
Appendix A.
14
or common law to seek enforcement of any emission
standard or limitation or to seek any other relief.” 42
U.S.C. § 7604(e) (emphasis added). Second, the Act
provides that “nothing in this chapter shall preclude
or deny the right of any State or political subdivision
thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any
requirement respecting control or abatement of air
pollution.” 42 U.S.C. § 7416. Through the saving
clauses, Congress expressly sanctioned more stringent state enforcement (indirect and direct) of the
same pollution from the same sources regulated by
the Clean Air Act.
Applying those saving clauses, courts have recognized that the Clean Air Act preserves state law nuisance claims addressing harmful air pollutant emissions, even when those emissions complied with Act’s
emissions limits. For example, in Merrick v. Diageo
Americas Supply, Inc., the Sixth Circuit concluded
that “[t]he states’ rights savings clause of the Clean
Air Act expressly preserve[d]” the plaintiffs’ “state
common law” suits for trespass and nuisance caused
by ethanol emissions—notwithstanding the Act’s regulation of such emissions. 805 F.3d 685, 687, 689-690
(2015). The Third Circuit similarly concluded that
the Act’s saving clauses preserved state nuisance,
negligence or recklessness, and trespass claims for
harms caused by regulated emissions from a coalfired power plant. Bell v. Cheswick Generating Station, 734 F.3d 188, 192, 195-197 (2013), cert. denied
15
sub nom. GenOn Power Midwest, L.P. v. Bell, 572 U.S.
1149 (2014). 3
Moreover, the Clean Air Act’s cooperative federalism structure maintains a substantial state role in
addressing air pollution. See Oklahoma v. EPA, 605
U.S. 609, 615 (2025) (“The [Clean Air Act] makes the
[state plan] process one of federal-state collaboration.”); Union Electric Co. v. EPA, 427 U.S. 246, 256257 (1976) (“The [Clean Air Act] place[s] the primary
responsibility for formulating pollution control strategies on the States[.]”). Congress empowered States,
primarily, to devise plans to help meet air quality
standards—including by controlling pollution that
travels across state boundaries—and to achieve emissions benchmarks for existing sources. 42 U.S.C.
§§ 7410(a)(2)(D)(i), 7411(d). Congress even narrowly
tailored preemption of state emissions standards for
aircraft and new motor vehicles, with carveouts for
California to set its own motor-vehicle emissions
standards and for other States to adopt California’s
standards. 42 U.S.C. §§ 7543(b), 7507, 7573; see also
42 U.S.C. § 7545(c)(4)(A) (narrowly limiting state regulation of fuel additives). “Congress’ enactment of a
provision defining the pre-emptive reach of a statute
implies that matters beyond that reach are not preempted.” Cipollone v. Liggett Group, Inc., 505 U.S.
504, 517 (1992) (plurality opinion).
The interstate nature of air pollution does not alter the state role that Congress prescribed. Contra
3 As respondents explain (Br. 43), the Second Circuit’s outlier
holding in City of New York v. Chevron, 993 F.3d 81 (2d Cir.
2021), that New York’s state law was preempted is inconsistent
with the Constitution and this Court’s precedents.
16
Petrs. Br. 33-34. In Int’l Paper Co. v. Ouellette, this
Court recognized that the analogous Clean Water Act
allows downstream States to use source state common
law to address harms from pollution originating in a
different State, relying on that Act’s similar saving
clauses. 479 U.S. 481, 497 (1987). Applying ordinary
preemption principles, the Court explained that “because the Act specifically allows source States to impose stricter standards,” such common law claims
“do[] not disrupt the [federal-State] regulatory partnership established by the permit system.” Id. at 491492, 499. Unlike the at-issue claims in Ouellette,
where the affected State’s law to may have disrupted
the source State’s established effluent limitation, tort
liability here would neither upset emissions standards carefully calibrated to meet statutory goals—
whether by EPA or the source State—nor cause confusion as to permitted sources’ obligations under the
Clean Air Act. Contra id. at 494-497. Regardless of
the outcome of respondents’ claims, Congress’s requirements for emissions standards in the Clean Air
Act will remain in place, and regulated parties must
meet only federal and source State requirements to
ensure compliance with the Act’s emissions limits.
The text, purpose, and structure of the Clean Air
Act are supported by legislative history demonstrating Congress’s intention to preserve state power to address harms from air pollution. Discussing the Act’s
citizen-suit provision, the Report of the Senate Committee on Public Works recognized the continued
availability of state tort suits: “Compliance with
standards under this Act would not be a defense to a
common law action for pollution damages.” S. Rep.
No. 91-1196, at 38 (1970); see also S. Rep. No. 101-
17
228, at 196, 249 (1989) (“To assure that such a[n unintended] preemption of State or local law, whether
statutory or common, does not occur, environmental
legislation enacted by the Congress has consistently
evidenced great care to preserve State and local authority and the consequent remedies available to citizens injured by the release of harmful substances into
the environment.”).
Tellingly, petitioners do not argue that the Clean
Air Act expressly preempts respondents’ claims.
Their silence reflects the lack of a colorable argument
on these grounds, because the Act contains no express
preemption of tort claims addressing production,
sales, marketing, deception, or a company’s duty to
communicate honestly about the consequences of its
products, much less preemption of state tort law generally. See Wyeth v. Levine, 555 U.S. 555, 574 (2009)
(“If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an
express pre-emption provision at some point during
the [statute’s] 70-year history.”).
Lacking statutory support, petitioners’ implied
preemption arguments “rest[] on judicial guesswork,”
which this Court disfavors. Kansas v. Garcia, 589
U.S. 191, 214 (2020) (Thomas, J., concurring) (quoting
Wyeth, 555 U.S. at 587); see also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 459 (2005) (Thomas, J.,
concurring in part and dissenting in part) (noting
“this Court’s increasing reluctance to expand federal
statutes beyond their terms through doctrines of implied pre-emption”); Camps Newfound/Owatonna,
Inc. v. Town of Harrison, 520 U.S. 564, 617 (1997)
(Thomas, J., dissenting) (“[O]ur recent cases have frequently rejected field pre-emption in the absence of
18
statutory language expressly requiring it.”); Kurns v.
Railroad Friction Prods. Corp., 565 U.S. 625, 640-641
(2012) (Sotomayor, J., concurring in part and dissenting in part) (quoting Justice Thomas’s language from
Camps Newfound/Owatonna).
In sum, the Clean Air Act provides no reasonable
basis to conclude that Congress sought to occupy the
field of air pollutant emissions “so pervasive[ly] as to
make reasonable the inference that Congress left no
room for States to supplement it,” or that the “federal
interest is so dominant that the federal system will be
assumed to preclude enforcement of state laws on the
same subject.” English v. General Electric Co., 496
U.S. 72, 79 (1990) (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)). Nor do respondents’
claims present “an impermissible ‘obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.’” Virginia Uranium, 587 U.S.
at 777 (opinion of Gorsuch, J.) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). The Act shows the
opposite.
II. Petitioners’ Arguments Undermine
Congress’s Authority To Decide When And
To What Extent To Preempt State Tort
Law.
Petitioners hardly disguise their intent to upend
decades of this Court’s jurisprudence respecting Congress’s legislative choices and state sovereignty in our
federal system. This Court has long viewed overly expansive preemption as “a serious intrusion into state
sovereignty,” Medtronic, Inc., v. Lohr, 518 U.S. 470,
488 (1996) (plurality opinion), that risks disturbing
the traditional “federal-state balance” of authority,
19
Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 717 (1985). Accordingly, “the
historic police powers of the States [are] not to be superseded . . . unless that was the clear and manifest
purpose of Congress.” Wyeth, 555 U.S. at 565 (quoting
Medtronic, Inc., 518 U.S. at 485). “Invoking some
brooding federal interest or appealing to a judicial
policy preference should never be enough to win
preemption of a state law; a litigant must point specifically to ‘a constitutional text or federal statute’
that does the displacing or conflicts with state law.”
Virginia Uranium, 587 U.S. at 767 (opinion of Gorsuch., J.) (quoting Puerto Rico Dep’t of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 503
(1988)). Just last term, the Court rejected an argument that “the Constitution’s structure implicitly
preempts” state law claims when the defendant could
cite “[n]o provision of the Constitution and no federal
statute” justifying preemption. Hencely v. Fluor
Corp., 146 S. Ct. 1086, 1097, 1099 (2026). 4
Ignoring this jurisprudence and Congress’s explicit legislative choices in the Clean Air Act, petitioners argue (Br. 30, 39) that respondents’ claims implicate “inherent federal authority” and are thus constitutionally preempted. Their vague theory flies in the
face of this Court’s preservation of similar claims regarding “States’ traditional authority to provide tort
remedies to their citizens.” Silkwood v. Kerr-McGee
Corp., 464 U.S. 238, 248 (1984). Through the imposition of tort liability, States exercise their “historic
4 What’s more, Hencely involved activities by federal contrac-
tors at a foreign U.S. military base, 146 S. Ct. at 1091-1092—
surely an “inherent federal” context if there ever was one.
20
powers to protect the health, safety, and property
rights of [their] citizens,” In re Methyl Tertiary Butyl
Ether (“MTBE”), 725 F.3d at 96, including “the protection of their people against fraud and deception,”
Florida Lime & Avocado Growers, Inc. v. Paul, 373
U.S. 132, 144 (1963) (cleaned up). See also Edenfield
v. Fane, 507 U.S. 761, 769 (1993) (“[A state’s] interest
in ensuring the accuracy of commercial information in
the market-place is substantial.”).
Far from being inherently federal, respondents’
state tort claims fall within an area of traditional
state authority that predates the Clean Air Act and
that Congress has declined to occupy. See Connecticut
v. Exxon Mobil Corp., 83 F.4th 122, 142 (2d Cir. 2023)
(explaining that consumer protection claims “have absolutely nothing to do with the federal common law of
transboundary pollution” (cleaned up)). Unlike the
cases petitioners cite (Br. 30), respondents’ claims
neither “exist solely by virtue” of federal statute,
Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S.
341, 348, 353 (2001), nor implicate a field that the federal government alone has long regulated, United
States v. Locke, 529 U.S. 89, 108 (2000); Parker Drilling Management Services, Ltd. v. Newton, 587 U.S.
601, 609 (2019). Their argument has no application
here.
Writ large, petitioners’ argument would “swallow
most of the police power of the States over” tort law.
Askew v. American Waterways Operators, Inc., 411
U.S. 325, 328 (1973). It would result in any federal
permitting or licensing regime for a national industry
(like the Clean Air Act) immunizing that industry
from all state tort liability by default, even for deceptive practices or other knowing and willful tortious
21
conduct. This is not how Congress legislates: Congress does not implicitly create liability shields for
tortious conduct whenever it regulates within a field.
See Silkwood, 464 U.S. at 263 (observing that “it is
inconceivable that Congress intended to leave victims
with no remedy at all”); Cook v. Rockwell Int’l Corp.,
790 F.3d 1088, 1098 (10th Cir. 2015) (Gorsuch, J.)
(“Often Congress entrusts before-the-fact regulation
to a federal agency while leaving at least some room
for after-the-fact state law tort suits.”).
Instead, even where Congress does preempt traditional state authority, it often carves out consumer
protection claims, recognizing the importance of
States’ ability to protect citizens from fraud-based
harm. See, e.g., 15 U.S.C. §§ 7902, 7903(5)(A) (barring civil actions against firearm manufacturers,
sellers, or trade associations for damages from the unlawful misuse of firearms, while permitting suits
where the manufacturer or seller themselves knowingly violated applicable sales and marketing laws
and such violation proximately caused the harm alleged); Smith & Wesson Brands, Inc. v. Estados
Unidos Mexicanos, 605 U.S. 280, 286 (2025) (quoting
15 U.S.C. § 7903(5)(A)(iii)).
Petitioners’ reliance on the Clean Air Act’s displacement of some federal common law falls well short
of justifying their extravagant, limitless preemption
theory. “[E]ven where a federal statute does displace
State authority, it rarely occupies a legal field completely, totally excluding all participation by the legal
systems of the states[.]” Southland Corp. v. Keating,
465 U.S. 1, 18 (1984) (Stevens, J., concurring in part
and dissenting in part) (quotation marks omitted).
For example, Congress’s inclusion of a preemption
22
clause and a saving clause in the Consumer Product
Safety Act (“CPSA”), 15 U.S.C. §§ 2074(a), 2075, has
resulted in courts concluding that state tort claims
are preserved unless they clearly conflict with CPSA
compliance, relying on this Court’s analogous determination in Geier v. American Honda Motor Co., 529
U.S. 861, 870 (2000). See, e.g., Colon v. BIC USA, Inc.,
136 F. Supp. 2d 196, 205 (S.D.N.Y. 2000) (“The analysis set forth in Geier makes clear that the presence
of the saving clause in the CPSA eliminates a broad
reading of the preemption provision to include common law claims.”); but see Moe v. MTD Prods., 73 F.3d
179, 182 (8th Cir. 1995) (decided before Geier). And
under the Federal Trade Commission Act state law is
preempted only if it conflicts with federal act compliance. See, e.g., Clark v. Citizens of Humanity, LLC,
97 F. Supp. 3d 1199, 1205-1206 (S.D. Cal. 2015).
Here, petitioners fail to identify any specific conflict
that might arise between the Clean Air Act and respondents’ requested relief. See American Electric
Power Co. v. Connecticut, 564 U.S. 410, 429 (2011)
(“In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of
a state lawsuit depends, inter alia, on the preemptive
effect of the federal Act.”). Their displacement theory
is wrong on all counts.
Likewise, where Congress creates a comprehensive federal regime to regulate the marketing and labeling of products, this Court has consistently preserved state consumer protection claims unless expressly preempted. See, e.g., Wyeth, 555 U.S. at 574
(rejecting argument that the Federal Food, Drug, and
Cosmetic Act preempts failure-to-warn claims for prescription drugs, pointing to an express preemption
23
provision for medical devices as evidence of congressional intent); Bates, 544 U.S. at 444, 446-447 (concluding that many state law actions are not
preempted by the Federal Insecticide, Fungicide, and
Rodenticide Act, including those outside of “labeling
or packaging” or that are similar to the federal statute’s requirements); Cipollone, 505 U.S. at 528 (plurality opinion) (preserving state law claims deemed
unrelated to the advertising or promotion of cigarettes, such as fraudulent misrepresentation claims
based on “a state-law duty to disclose such facts
through channels of communication other than advertising or promotion”). Pollution is inherently harmful, which is why it is regulated by Congress under
the Clean Air Act; lying about the harm, or illegally
misleading the public, is completely separate conduct
from that inflicted by the regulated emissions.
Accordingly, absent clear congressional intent to
the contrary, courts around the country have allowed
state tort claims like respondents’ for injuries caused
by (often knowing and willful) production and promotion of regulated products in the stream of interstate
commerce—including opioids, gasoline, lead paint, asbestos, chemicals, guns, and cigarettes. 5
5 See generally Findings of Fact and Conclusions of Law and
Order Denying Defendants’ Motion for Summary Judgment Re:
“Factual Issue #2,” In re Opioid Litigation, No. 21-C-9000 (W.
Va. Kanawha Cnty. Cir. Ct. July 1, 2022) (summarizing case law
permitting nuisance suits against opioid manufacturers),
https://tinyurl.com/5csw289w; City & Cnty. of San Francisco v.
Purdue Pharma L.P., 491 F. Supp. 3d 610 (N.D. Cal. 2020) (opioids); In re Methyl Tertiary Butyl Ether (“MTBE”), 725 F.3d 65
(gasoline); People v. ConAgra Grocery Prods. Co., 227 Cal. Rptr.
24
Like these actions, respondents’ claims present
no threat to any concrete federal interest or viable extraterritorial concern. Respondents seek damages for
only in-State harms that petitioners caused, and, regardless, state courts are more than capable of weighing well-established choice of law principles. Resps.
Br. 4, 25. Similarly, state courts can determine the
sufficiency of the causal chain between the alleged injuries and deceptive marketing acts. But whether respondents can prove causation is not a preemption
question, cf. Petrs. Br. 34-36; it is a question for summary judgment or trial.
Moreover, petitioners’ attempt to overwrite Congress’s legislative choices under a novel presumption
in favor of preemption (Br. 30-31, 44) would undermine longstanding congressional practice and constitutional principles. Congress and industry alike rely
on preemption guidelines preserving state law unless
in clear conflict with a federal statute. Against this
stable backdrop, Congress can reliably dictate, and
citizens can reliably predict, the preemptive scope of
federal laws. A presumption in favor of preemption
not only cuts against those reliance and certainty interests, but also undermines the bedrock constitutional principle reserving power to the States. U.S.
Const. Amend. X. Petitioners’ rule would diminish
Congress’s primary role dictating the scope of its own
legislation.
3d 499 (Cal. Ct. App. 2017) (lead paint); Northridge Co. v. W.R.
Grace & Co., 556 N.W.2d 345 (Wis. App. 1996) (asbestos); Johnson v. 3M, 563 F. Supp. 3d 1253 (N.D. Ga. 2021) (chemicals); City
of Gary v. Smith & Wesson, 801 N.E.2d 1222 (Ind. 2003) (guns);
Cipollone, 505 U.S. 504 (cigarettes).
25
The Court should reject petitioners’ arguments
and honor “not only what Congress wrote but, as importantly, what it didn’t write.” Virginia Uranium,
587 U.S. at 765 (opinion of Gorsuch, J.). After all, “it
is Congress rather than the courts that preempt law.”
Chamber of Commerce of United States of America v.
Whiting, 563 U.S. 582, 607 (2011) (principal opinion)
(cautioning against “freewheeling judicial inquiry
into whether a state statute is in tension with federal
objectives” (cleaned up)); see also Cisco Sys., Inc. v.
Doe I, 146 S. Ct. 1882, ____, 225 L. Ed. 2d 460, 472
(2026) (“Congress is better positioned than courts to
evaluate the policy tradeoffs of creating liability.”).
The Court should preserve Congress’s legislative powers. Claims that are “historically within the reach of
the police power of the States,” should not be “silently
taken away from the States by the [Clean Air Act],
which does not purport to supply the exclusive remedy.” Askew, 411 U.S. at 343; see also Oklahoma v.
Castro-Huerta, 597 U.S. 629, 653 (2022) (“States do
not need a permission slip from Congress to exercise
their sovereign authority.”).
III. No Congressionally Approved Foreign
Policy Preempts Respondents’ Claims.
Petitioners assert (Br. 42) that adjudication of respondents’ tort claims would “interfere with the
United States’ foreign policy on climate and energy issues.” But they fail to identify any foreign policy in
tension with respondents’ claims, much less the clear
and substantial conflict with federal foreign policy
typically required to preempt state laws operating in
a traditional area of state authority. See American
Ins. Ass’n v. Garamendi, 539 U.S. 396, 419-421 & n.11
(2003); see also Medellin v. Texas, 552 U.S. 491, 498-
26
499, 523-532 (2008) (concluding that a presidential
memorandum seeking to discharge the United States’
international obligations was not a “directly enforceable federal law” sufficient to preempt state habeas
rules).
Petitioners’ attempt to gin up a conflict between
federal foreign policy and respondents’ tort claims
falls short. They invoke (Br. 41) the Global Climate
Protection Act of 1987, which sets goals of developing
a research agenda and entering multilateral agreements on climate science and emissions reduction
technologies. Title XI of Pub. L. No. 100-204, §§ 1103,
1104, 101 Stat. 1331, 1407-1409 (1987), note following
15 U.S.C. § 2901. This largely hortatory act is not in
any tension with the availability of state tort lawsuits.
Petitioners also invoke (Br. 41) two treaties irrelevant to preemption analysis. The 1992 United Nations Framework Convention on Climate Change
(“UNFCCC”) merely creates aspirational goals for international efforts to reduce climate pollution
through the sharing of national emissions inventories, scientific and technological knowledge, and information about measures to reduce climate pollution. S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107,
art. 4. The 2016 Kigali Amendment to the Montreal
Protocol on Substances That Deplete the Ozone Layer
commits signatories to the phaseout of hydrofluorocarbon refrigerants (not fossil fuels), which are not at
issue in this case.
S. Treaty Doc. No. 117-1,
C.N. 730.2017. The statute carrying out efforts to
comply with the Kigali Amendment also does not address fossil fuels, see 42 U.S.C. § 7675, as is evident
27
from petitioners’ failure to mention it in their statutory preemption arguments.
Neither treaty concerns deceptive or otherwise
tortious production, promotion, refining, marketing,
or sales of fossil fuels; nor do the treaties establish an
appropriate level of greenhouse gas air pollution that
might preclude further state action to reduce emissions. There is no reasonable basis to conclude that
these treaties preempt any of respondents’ claims. Indeed, the Congresses that ratified these treaties
would be shocked to learn that, in doing so, they had
preempted state tort claims for deceptive marketing
and sales of fossil fuels.
Similarly, the Clean Air Act’s mechanism to address state impacts on international air pollution, 42
U.S.C. § 7415, has no bearing on liability for tortious
conduct based on deception and knowing infliction of
harm. Petitioners’ argument would fail even if respondents sought to regulate greenhouse gas emissions (which they do not). Far from preempting state
action to reduce air pollution, the provision requires
States to reduce air pollution once EPA finds that
cross-border pollution is endangering public health or
welfare in a foreign country. 42 U.S.C. § 7415(b). Petitioners thus have “not identified any provision of
law expressly preempting [respondents’] suit.”
Hencely, 146 S. Ct. at 1093.
The United States’ opposition to vague “liability
and compensation schemes,” U.S. Br. 27 (citation
omitted); Petrs. Br. 41 (citation omitted), concerns
country-to-country reparations for injuries from
greenhouse gas emissions, not damages owed by private companies to Boulder citizens or even American
28
consumers harmed by their fossil fuel products. And
“new frictions” in climate negotiations that tort
claims against fossil fuel companies could purportedly
cause, U.S. Br. 27 (citation omitted), are highly speculative and unlikely to materialize in the near future.
The Administration’s withdrawal from the Paris
Agreement (under the UNFCCC), Exec. Order No.
14162, 90 Fed. Reg. 8455, 8455 (Jan. 30, 2025), and
its absence at the recent Conference of the Parties to
the UNFCCC (“COP30”) merely reflect withdrawal
from the field of international climate negotiations—
and certainly not an established foreign policy against
liability for tortiously marketing and selling fossil
fuels.
The Administration’s broader economic policy
goals also cannot preempt respondents’ claims. Contra Petrs. Br. 41-42. To begin with, they are not enforceable federal law and lack sufficiently binding effect to satisfy the stringent requirements necessary to
preempt state law. Medellin, 552 U.S. at 498; see also
Lipschultz v. Charter Advanced Servs. (MN), LLC,
589 U.S. 1038, 1039-1040 (2019) (Thomas, J., joined
by Gorsuch, J., concurring in the denial of cert.) (expressing doubt that an executive agency’s policy could
serve as the basis for preemption of state law). Further, many of the attenuated economic concerns that
petitioners invoke fall within Congress’s constitutional prerogatives and cannot serve to preempt state
law without a congressionally approved policy. See
Barclays Bank PLC v. Franchise Tax Bd., 512 U.S.
298, 324, 330 (1994) (requiring “specific indications of
congressional intent” to determine whether a state
law touching on foreign commerce was preempted and
rejecting “merely precatory” Executive Branch
29
statements as unable to “render unconstitutional [an]
otherwise valid, congressionally condoned” state action). “[W]hether the realm is foreign or domestic, it
is still the Legislative Branch, not the Executive
Branch, that makes the law.” Zivotofsky v. Kerry, 576
U.S. 1, 21 (2015). Respondents’ claims are not
preempted by passing fancies of executive policymaking. Those are not law.
30
CONCLUSION
For the foregoing reasons, if this petition is not
dismissed for lack of jurisdiction, this Court should
affirm the judgment below.
Respectfully submitted,
ALEXANDRA L. ST. ROMAIN*
PATRICK R. JACOBI
PETER A. HEISLER
BENJAMIN W. DIAMOND
RIDGELINE CENTER
FOR LAW AND POLICY
712 H Street NE
Suite 90006
Washington, D.C. 20002
(202) 893-7170
alex.st.romain@ridgelinecenter.org
Counsel for Amici Curiae
August 3, 2026
* Counsel of Record
APPENDIX TABLE OF CONTENTS
Appendix A: Tables detailing Amici For
Petitioners Receiving Funding From
Fossil Fuel-Linked Donors. . . . . . . . . . . . . . . . . . . 1a
APPENDIX A
Amici For Petitioners Receiving Funding From Fossil Fuel-Linked Donors1
Donors Trust Leonard
Koch
Bradley
Oil Majors
5
/ Donors
Leo
Foundation Foundation
(Chevron,
Capital
Network3
/ Koch
ExxonMobil,
Fund2
Industries4
Shell, bp)
Advancing
American Freedom
X
X
American
Petroleum Institute
X
American Tort
Reform Association
X
Atlantic Legal
Foundation
X
X
1a
Center for
Individual Rights
X
X
Chamber of
Commerce
X
Consumers’
Research
X
Independence
Institute
X
Manhattan
Institute
X
X
X
X
X
National
Association of
Manufacturers
Pacific Legal
Foundation
X
X
X
2a
X
X
X
Save Our States
(project of People
for Opportunity)
X
X
The Breakthrough
Institute
The Buckeye
Institute
X
X
X
X
The Center for
Environmental
Accountability
X
The Pelican
Institute for Public
Policy
X
Washington Legal
Foundation
X
X
X
X
3a
1 Charts created by the Democratic staff of the Senate
Environment and Public Works Committee.
2 Donors Trust and Donors Capital Fund are affiliated
donor-advised funds that allow donors to make grants to nonprofit
organizations without publicly disclosing their identities. Donors
Trust and Donors Capital Fund contributed $181,493,387 to
organizations identified as promoting climate disinformation from
2020 to 2022, the third-highest total among donor-advised fund
sponsors. Chuck Collins, Bella DeVaan & Helen Flannery, Inside
the World of Fossil Fuel Philanthropy, Inst. for Pol’y Stud. (Oct. 2,
2024), https://perma.cc/ZYP4-8FJ7.
3 The “Leonard Leo Network” refers to a group of affiliated
nonprofits, including the 85 Fund and the Concord Fund, that
fund conservative legal and political advocacy. The network is
among the largest funders of climate disinformation in the
country and has coordinated a national effort to pass state
legislation shielding fossil fuel companies from climate-related
lawsuits. Abrahm Lustgarten, “Economic Civil War”: States Push
Laws to Shield Oil and Gas Companies From Accountability,
ProPublica (Apr. 7, 2026), https://perma.cc/2W5U-TPP9.
4 Koch Industries is a privately held company with substantial
interests in oil refining, pipelines, and chemical manufacturing.
Charitable and advocacy entities funded by the company and the
Koch family, including the Charles Koch Foundation and Stand
Together, have funded organizations opposing climate and
environmental regulation for decades. Robert J. Brulle, et al.,
Obstruction Action: Foundation Funding and US Climate Change
Counter-Movement Organizations, 166 Climatic Change 18 (2021).
5 The Lynde and Harry Bradley Foundation is a private
foundation that funds conservative policy research and advocacy
organizations nationally. From 2020 to 2022, the Bradley
Foundation contributed $21,811,200 to organizations promoting
climate disinformation—the third-highest total among private
foundations during that period. Collins, DeVaan & Flannery,
Inside the World of Fossil Fuel Philanthropy.
4a
Amicus Name
Sampling of Funders
Advancing American
Freedom
- Concord Fund (Leonard
Leo)6
- Donors Trust7
American Petroleum
Institute
- Oil-major trade
association—Shell,
ExxonMobil, Chevron, bp,
and ConocoPhillips are
members8
American Tort Reform - Koch Industries9
Association
- ExxonMobil10
Atlantic Legal
Foundation
- Chevron11
- ExxonMobil12
Center for Individual
Rights
- 85 Fund (Leonard Leo)13
- Donors Trust / Donors
Capital Fund14
Chamber of Commerce - ExxonMobil15
Consumers’ Research
- Donors Trust16
- Concord Fund (Leonard
Leo)17
Independence
Institute
- Donors Trust18
- Bradley Foundation19
5a
Manhattan Institute
- Donors Trust20
- 85 Fund (Leonard Leo)21
- Charles Koch Foundation
/ Stand Together (Koch)22
- ExxonMobil23
- Bradley Foundation24
National Association
of Manufacturers
- Oil-major trade
association members with
board seats currently held
by Shell, ExxonMobil, bp,
Conoco Phillips, and Koch
Government Affairs25
Pacific Legal
Foundation
- Donors Trust26
- Stand Together (Koch)27
Save Our States
(project of People
for Opportunity)
- Concord Fund (Leonard
Leo)28
- Bradley Foundation29
The Breakthrough
Institute
- Stand Together (Koch)30
The Buckeye Institute - Donors Trust31
- Charles Koch
Foundation32
- Bradley Foundation33
The Center for
Environmental
Accountability
- Institute for Energy
Research34
The Pelican Institute
for Public Policy
- Donors Trust35
- Stand Together (Koch)36
- Bradley Foundation37
6a
Washington Legal
Foundation
- ExxonMobil38
- Donors Capital Fund39
6 The Concord Fund listed grants to Advancing American
Freedom on its tax filings for 2020-2023. The Concord Fund, IRS
Form 990, at Sched. I, Part II, Line 3 (2020),
https://tinyurl.com/48wa562t (all links last visited July 28, 2026);
id. at Line 12 (2021), https://tinyurl.com/28v3vdjc; id. at Line 18
(2022), https://tinyurl.com/4we9x7jh; id. at Line 9 (2023),
https://tinyurl.com/7w9rvysf. Total contributions during that
period amounted to $3.25 million. Ibid. A $1.25 million donation
in tax year 2023 comprised 14% of the organization’s annual
revenue. See Advancing American Freedom Inc, ProPublica
Nonprofit Explorer, https://perma.cc/GYU5-W22S (listing $8.97
million of total revenue for tax year 2023).
7 Donors Trust listed a grant to Advancing American Freedom
Foundation on its 2024 tax filing. Donors Trust, Inc., IRS Form
990, at Sched . I , P a rt II, Line 575 (2024),
https://tinyurl.com/yd3xpv9b. Advancing American Freedom and
Advancing American Freedom Foundation are related tax-exempt
organizations. Advancing American Freedom, Inc., IRS Form 990,
at Sched. R, Part II (2024), https://tinyurl.com/2sv3p6ny. 2024 tax
filings are the most recent publicly available tax filings.
8 Members, Am. Petroleum Inst., https://perma.cc/D3UU-3EP2
(organization’s membership directory).
9 Though American Tort Reform Association no longer publicly
publishes a member list, Koch Industries was a member for many
years. See, e.g., 50 Representative Members, Am. Tort Reform
Ass’n (captured on Aug. 5, 2004), https://tinyurl.com/3tunfxe8;
Sample List of ATRA Members, Am. Tort Reform Ass’n (captured
on Feb. 4, 2012), https://tinyurl.com/mpm9624r.
10 ExxonMobil listed lobbying expenditures for the American
Tort Reform Association from 2021-2023. ExxonMobil Corp., 2021
Lobbying Report 26 (2021), https://perma.cc/LN2P-5UNL;
ExxonMobil Corp., 2022 Lobbying Report 18 (2022),
7a
https://perma.cc/A42Y-SCWN; ExxonMobil Corp., 2023 Advocacy
Report 48 (2023), https://perma.cc/3SYM-7LXN. The 2023
Advocacy Report is the most recent publicly available report on
Exxon’s lobbying expenditures. See ExxonMobil. Political Activity
Reports, ExxonMobil, https://perma.cc/NJ7T-EFH6.
11 The Atlantic Legal Foundation (“ALF”) listed Chevron as a
corporate supporter and as a platinum sponsor of its annual
dinner host committee in 2025. ALF, 2025 Annual Report 25, 40
(2025), https://perma.cc/38H6-4YU8.
12 ALF listed ExxonMobil as a corporate supporter and as a
platinum sponsor of its annual dinner host committee in 2025.
ALF, 2025 Annual Report 25, 40. In 2025, ALF also honored
ExxonMobil’s CEO as its annual awardee, id. at 23, elected
ExxonMobil’s Vice-President, General Counsel & Secretary to its
Board of Directors, id. at 34, and appointed Exxon’s Executive
Counsel, Legal Policy & Administration to its Advisory Council,
ibid.
13 The 85 Fund listed a grant to the Center for Individual Rights
for $350,000 on its 2024 tax filing. The 85 Fund, IRS Form 990,
at Sched. I, Part II, Line 13 (2024), https://tinyurl.com/yc6uhz83.
That donation accounted for 12% of the organization’s annual
revenue. See Center for Individual Rights, ProPublica Nonprofit
Explorer, https://perma.cc/KYK6-WGFR (listing $2.84 million of
total revenue for tax year 2024 (fiscal year ending Mar. 2025)).
14 Donors Capital Fund listed a grant to the Center for
Individual Rights on its 2020 tax filing. Donors Capital Fund,
Inc., IRS Form 990, at Sched. I, Part II, Line 10 (2020),
https://tinyurl.com/2j7pcxua. Donors Trust listed grants to the
Center for Individual Rights on its tax filings for 2021-2024.
Donors Trust, Inc., IRS Form 990, at Sched. I, Part II, Line 116
(2021), https://tinyurl.com/yjxkf4pb; id. at Line 128-129 (2022),
https://tinyurl.com/49bntzm2; id. at Line 396 (2023),
https://tinyurl.com/54xsuren; id. at Line 148 (2024),
https://tinyurl.com/yd3xpv9b.
8a
15 ExxonMobil listed lobbying expenditures for the U.S. Chamber
of Commerce in 2021-2023, including expenditures greater than
$1 million in 2021 and 2022 ExxonMobil Corp., 2021 Lobbying
Report 24; ExxonMobil Corp., 2022 Lobbying Report 17;
ExxonMobil Corp., 2023 Advocacy Report 47.
16
Donors Trust listed grants totaling $28.3 million to
Consumers’ Research on its tax filings for 2020-2024. Donors
Trust, Inc., IRS Form 990, at Sched. I, Part II, Line 190 (2020),
https://tinyurl.com/vkw9p277; id. at Line 167-168 (2021); id. at
Line 177 (2022); id. at Line 110 (2023); id. at Line 306-307 (2024).
Total contributions during that period comprised 77% of the
organization’s revenue. See Consumers Research Inc, ProPublica
Nonprofit Explorer, https://perma.cc/2ANN-S4WD (listing $36.8
million of total revenue for tax years 2020-2024); see also
Lustgarten, “Economic Civil War”: States Push Laws to Shield Oil
and Gas Companies From Accountability, (discussing Donors
Trust contributions to Consumers’ Research).
17 The Concord Fund listed grants totaling $940,000 to
Consumers’ Defense, the lobbying arm of Consumers’ Research,
on its tax filings for 2022-2023. The Concord Fund, IRS Form
990, at Sched. I, Part II, Line 25 (2022); id. at Line 19 (2023); see
Consumers’ Def., https://perma.cc/2BE4-ZDJB (identifying
Consumers’ Defense as the lobbying arm of Consumers’ Research).
Contributions from the Concord Fund accounted for all of
Consumers’ Defense’s revenue during that period. See Consumers
Defense,
ProPublica
Nonprofit
Explorer,
https://perma.cc/H8RP-3PT2 (listing $940,153 of total revenue for
tax years 2022-2024).
18 Donors Trust listed grants to Independence Institiute on its
tax filings for 2020-2024. Donors Trust, Inc., IRS Form 990, at
Sched. I, Part II, Line 31 (2020); id. at Line 317 (2021); id. at Line
349 (2022); id. at Line 621 (2023); id. at Line 72 (2024).
19 The Bradley Foundation listed grants to Independence
Institute on its tax filings for 2019-2024. The Lynde & Harry
Bradley Found., Inc., IRS Form 990-PF, at Part XV, Line 3a
(2019), https://tinyurl.com/5fj4sz7m; id. (2020),
9a
https://tinyurl.com/muuunz5y;
id.
(2021),
https://tinyurl.com/4ubtj3bm;
id.
(2022),
https://tinyurl.com/4ajp9jtb; id. (2023), https://
tinyurl.com/3bn57x3x; id. (2024), https://tinyurl.com/5n6ws8cz.
20 Donors Trust listed grants to the Manhattan Institute on its
tax filings for 2020-2024. Donors Trust, Inc., IRS Form 990, at
Sched. I, Part II, Line 45, 438-442 (2020); id. at Line 393-394
(2021); id. at Line 417-420 (2022); id. at Line 33-36 (2023); id. at
Line 102-103 (2024).
21 The 85 Fund listed grants to the Manhattan Institute on its
tax filings for 2022-2023. The 85 Fund, IRS Form 990, at Sched.
I, Part II, Line 8 (2022), https://tinyurl.com/2s44n9ay; id. at Line
16 (2023), https://tinyurl.com/4fbfh6p7.
22 The Charles Koch Foundation listed a grant to the Manhattan
Institute on its 2019 tax filing. Charles Koch Found., IRS Form
990-PF, at Part XV, Line 3a (2019), https://tinyurl.com/5b9m8a8p.
The Stand Together Fellowship listed a grant to the Manhattan
Institute on its 2020 tax filing. Charles Koch Inst., IRS Form 990,
at Schedule I, Part II, Line 42 (2020), https://tinyurl.com/3acc4zft.
23 From 1998-2019, ExxonMobil gave over $1.4 million to the
Manhattan Institute. Elliot Negin, ExxonMobil Claims Shift on
Climate But Continues to Fund Climate Science Deniers, The
Equation Blog, Union of Concerned Scientists (Oct. 22, 2020),
https://perma.cc/8VGA-CE59. This is the most recent data as
ExxonMobil no longer itemizes contributions under $100,000. See
Elliot Negin, Despite Cutbacks, ExxonMobil Continues to Fund
Climate Science Denial, The Equation Blog, Union of Concerned
Scientists (Oct. 26, 2021), https://perma.cc/APS6-J6DS.
24 The Bradley Foundation listed grants to the Manhattan
Institute on its tax filings for 2022-2024. The Lynde & Harry
Bradley Found., Inc., IRS Form 990-PF, at Part XV Line 3a
(2022); id. (2023); id. (2024).
25
NAM Board of Directors, Nat’l Ass’n of Mfrs.,
https://perma.cc/KUB5-6YWQ (organization’s Board includes
10a
officers from ExxonMobil, bp America, Shell plc, ConocoPhillips,
and Koch Government Affairs, LLC).
26 Donors Trust listed grants to the Pacific Legal Foundation
(PLF) on its tax filings for 2020-2024. Donors Trust, Inc., IRS
Form 990, at Sched. I, Part II, Line 60, 463 (2020); id. at Line 464
(2021); id. at Line 499-500 (2022); id. at Line 734-35 (2023); id. at
Line 125 (2024). In tax years 2023 and 2024, Donors Trust
donated a total of $5.7 million. Id. at Line 734-35 (2023); id. at
Line 125 (2024). Those contributions comprised 7% of PLF’s
revenue during that period. See Pacific Legal Foundation,
ProPublica Nonprofit Explorer, https://perma.cc/GF2S-YXGZ
(listing $79.5 million of total revenue for tax years 2023-2024
(fiscal years ending June 2024 and June 2025)).
27 Stand Together Fellowship listed grants totaling $2 million to
PLF on its tax filings for 2020-2021. Charles Koch Inst., IRS Form
990, at Sched. I, Part II, Line 75 (2020); id. at Line 37 (2021),
https://tinyurl.com/43fukrty.
28 The Concord Fund listed grants totaling $1.2 million to People
for Opportunity on its tax filings for 2022-24. The Concord Fund,
IRS Form 990, at Sched. I, Part II, Line 24 (2022); id. at Line 20
(2023); id. at Line 19 (2024), https://tinyurl.com/3xuanhrk. In tax
years 2022 and 2023, the Concord Fund donated $1 million. Id. at
Line 20 (2023); id. at Line 19 (2024). Those contributions
comprised 33% of the organization’s revenue during that period.
See People for Opportunity Inc, ProPublica Nonprofit Explorer,
https://perma.cc/N8HF-2XZM (listing $3.1 million of total revenue
for tax years 2022-2023).
29 The Bradley Foundation listed a $200,000 grant to the Judicial
Education Project (now the 85 Fund) on its 2023 tax filing with
the purpose of “support[ing] the Save our States initiative.” The
Lynde & Harry Bradley Found., Inc., IRS Form 990-PF, at Part
XV, Line 3a (2023). That donation accounted for nearly 20% of the
organization’s revenue in tax year 2023. See People for
Opportunity Inc, ProPublica Nonprofit Explorer (listing $1.1
million of total revenue for tax year 2023).
11a
30
Funders, The Breakthrough Inst., https://tinyurl.com
/3rxde5dk.
31 Donors Trust listed grants to The Buckeye Institute on its tax
filings for 2022-2024. Donors Trust, Inc., IRS Form 990, at Sched.
I, Part II, Line 94 (2022); id. at Line 218 (2023); id. at Line 28
(2024).
32 The Charles Koch Foundation listed grants to The Buckeye
Institute on its tax filings from 2018-2019. The Charles Koch
Found., IRS Form 990-PF, at Part XV, Line 3a (2018),
https://tinyurl.com/3zzywh5e; id. (2019).
33 The Bradley Foundation listed grants totaling $1.5 million to
The Buckeye Institute on its tax filings from 2020-2024. The
Lynde & Harry Bradley Found., Inc., IRS Form 990-PF, at Part
XV, Line 3a (2020); id. (2021); id. (2022); id. (2023); id. (2024).
Those contributions comprised 9% of the organization’s revenue
during that time period. See The Buckeye Institute, ProPublica
Nonprofit Explorer, https://perma.cc/7SMS-DCAJ (listing $17.3
million of total revenue for tax years 2020-2024).
34 The Institute for Energy Research (IER) is an advocacy group
that supports the expanded use of fossil fuels. IER’s President
was formerly a lobbyist for Koch Industries. Robin Bravender,
Trump’s Energy Team Overhauled, E&E News, Politico (Nov. 21,
2016), https://perma.cc/6C2T-66B2. IER listed a $175,000 grant
to Center for Environmental Accountability on its 2023 tax filing.
Inst. for Energy Rsch., IRS Form 990, at Sched. I, Part II, Line 1
(2023), https://tinyurl.com/bdcm4ccw. The grant was the only
funding IER provided to any organization that year and comprised
nearly 20% of Center for Environmental Accountability’s revenue.
Ibid.; see Center for Environmental Accountability, ProPublica
Nonprofit Explorer, https://perma.cc/KFF2-5VLF (listing $909,333
of total revenue in tax year 2023).
35 Donors Trust listed grants to The Pelican Institute on its tax
filings for 2020-2024. Donors Trust, Inc., IRS Form 990, at Sched.
I, Part II, Line 143 (2020); id. at Line 475 (2021); id. at Line 517
(2022); id. at Line 174 (2023); id. at Line 248 (2024).
12a
36 Stand Together Fellowship listed grants to The Pelican
Institute on its tax filings for 2020-2021. Charles Koch Inst., IRS
Form 990, at Sched. I, Part II, Line 71 (2020); id. at Line 8 (2021).
37 The Bradley Foundation listed grants to The Pelican Institute
on its tax filings from 2023-2024. The Lynde & Harry Bradley
Found., Inc., IRS Form 990-PF, at Part XV, Line 3a (2023); id.
(2024).
38 In 2019, ExxonMobil listed a $40,000 donation to the
Washington Legal Foundation.
ExxonMobil Corp., 2019
Worldwide Contributions and Community Investments 25
(captured on Oct. 23, 2020). From 1998-2019, ExxonMobil gave
$655,000 to the Washington Legal Foundation. Negin, ExxonMobil
Claims Shift on Climate But Continues to Fund Climate Science
Deniers, (linking to data embedded below “overview of
ExxonMobil’s grants from 1998 through 2019”).
39 Donors Capital Fund listed a grant to Washington Legal
Foundation on its 2020 tax filing. Donors Capital Fund, Inc. IRS
Form 990, at Sched. I, Part II, Line 24 (2020).
13a
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.