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

Ask Donna

What actually matters in this document.

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 FOR AMICUS CURIAE

WHEN JUSTICE

IN SUPPORT OF RESPONDENTS

Sean M. Powers

BENCHLINE PLLC

3540 Wilkinson Lane

No.8

Lafayette, CA 94549

James K. Green

Counsel of Record

JAMES K. GREEN, P.A.

Flagler Center

501 South Flagler Drive,

Suite 306

West Palm Beach, FL 33401

(561) 659-2029

jkg@jameskgreenlaw.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

Cases .......................................................................... iii

Constitutional Provisions .......................................... vi

Other Authorities....................................................... vi

INTERESTS OF AMICUS CURIAE .......................... 1

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

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

I. There Are No Special Constitutional Rules for

Interstate Pollution Cases. ................................... 4

A. Neither the text nor structure of the

Constitution bars States from remedying

in-state harm caused by out-of-state

pollution.......................................................... 5

B. Unlike interstate sovereign immunity,

petitioners’ special rule for interstate

pollution has no historical pedigree. ............. 9

C. Federal common law gave States an

extraterritorial injunction they could not

obtain under their own laws; it did not strip

ordinary damages remedies available to

private parties. ............................................... 12

II. There Are No Judicially Manageable

Standards for Determining When One State’s

Tort

Remedies

Violate

Another’s

“Sovereignty.” ...................................................... 20

III.Eliminating All Compensatory Remedies in

Interstate

Pollution

Cases

Raises

Constitutional Questions Under the Takings

Clause. ................................................................. 25

CONCLUSION ......................................................... 31

iii

TABLE OF AUTHORITIES

Cases

Allstate Ins. Co. v. Hague,

449 U.S. 302 (1981) ............................................... 18

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011) ............................. 14, 17, 25 n.5

Baker v. General Motors Corp.,

522 U.S. 222 (1998) ................................... 15, 20 n.4

Bank of America Nat'l Trust & Sav. Ass'n v.

Parnell,

352 U.S. 29 (1956) ................................................. 17

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) .................................... 16, 23-24

Bruesewitz v. Wyeth LLC,

562 U.S. 223 (2011) ............................................... 31

Carroll v. Lanza,

349 U.S. 408 (1955) ............................................... 19

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ......................................... 14 n.3

Comptroller of Treasury of Md. v. Wynne,

575 U.S. 542 (2015) ............................................... 24

Dallas v. Whitney,

118 W. Va. 106, 188 S.E. 766 (1936) .............. 11, 18

Dobbs v. Jackson Women’s Health

Organization,

597 U.S. 215 (2022) ................................................. 5

Duke Power Co. v. Carolina Envtl. Study

Group,

438 U.S. 59 (1978) ................................. 3, 28, 29, 31

Eastern Enterprises v. Apfel,

524 U.S. 498 (1998) ............................................... 27

Erie R.R. v. Tompkins,

304 U.S. 64 (1938) ............................................. 7, 21

Ford Motor Co. v. Montana Eighth Judicial

District Court,

592 U.S. 351 (2021) ............................................... 18

Franchise Tax Bd. of California v. Hyatt,

587 U.S. 230 (2019) ........................... 5, 9, 10, 13, 16

Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000) ............................................... 21

Georgia v. Tennessee Copper Co.,

206 U.S. 230 (1907) ......................................... 13, 15

Hencely v. Fluor Corp.,

146 S. Ct. 1086 (2026) ............................... 16, 17, 20

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ........................................... 14 n.3

International Paper Co. v. Ouellette,

479 U.S. 481 (1987) ......................................... 30 n.7

J. McIntyre Mach., Ltd. v. Nicastro,

564 U.S. 873 (2011) ............................................... 12

Kelo v. City of New London,

545 U.S. 469 (2005) ............................................... 26

Louisiana v. Texas,

176 U.S. 1 (1900) ................................................... 14

Marbury v. Madison,

5 U.S. 137 (1803) ............................................... 6, 29

Middleton v. Texas Power & Light Co.,

249 U.S. 152 (1919) ............................................... 29

Middlesex Cty. Sewerage Auth. v. Nat’l Sea

Clammers Ass’n,

453 U.S. 1 (1981) .................................................. 17

Missouri v. Illinois,

200 U.S. 496 (1906) ............................................... 15

Monsanto Co. v. Durnell,

146 S. Ct. 2001 (2026) ........................................... 29

Mullane v. Central Hanover

Bank & Trust Co.,

339 U.S. 306 (1950) ............................................... 27

Murr v. Wisconsin,

582 U.S. 383 (2017) ............................................... 26

Nat’l Pork Producers Council v. Ross,

598 U.S. 356 (2023) ................................... 19, 20, 23

New York Central R.R. Co. v. White,

243 U.S. 188 (1917) ............................................... 29

Ohio v. Wyandotte Chemicals Corp.,

401 U.S. 493 (1971) ................................... 14 n.3, 15

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) ............................................... 27

Pruneyard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) .................................. 3, 25-26, 30

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) ............................................... 26

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984) ............................................... 18

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ............................................... 11

South Carolina v. North Carolina,

558 U.S. 256 (2010) ............................................... 13

Steele v. Bulova Watch Co.,

344 U.S. 280 (1952) ......................................... 20 n.4

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

451 U.S. 630 (1981) ............................................... 13

Truax v. Corrigan,

257 U.S. 312 (1921) ............................................... 29

United States Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ............................................. 5, 7

United States v. Morrison,

529 U.S. 598 (2000) ................................................. 7

United States v. Rahimi,

602 U.S. 680 (2024) ................................................. 5

Va. Uranium, Inc. v. Warren,

587 U.S. 761 (2019) ......................................... 20, 21

Wyeth v. Levine,

555 U.S. 555 (2009) ................................................. 9

Young v. Masci,

289 U.S. 253 (1933) .............................................. 1-2

Constitutional Provisions

U.S. Const. amend. V.......................................... 25, 26

U.S. Const. amend. X.................................................. 8

U.S. Const. art. I, § 10 ............................................ 7, 8

U.S. Const. art. I, § 8 .................................................. 7

U.S. Const. art. IV ...................................................... 7

U.S. Const. art. IV, § 1................................................ 8

U.S. Const. art. IV, § 2................................................ 8

U.S. Const. art. IV, § 3................................................ 8

U.S. Const. art. VI, cl. 2 .............................................. 7

vii

Other Authorities

Joseph H. Beale, A Treatise on the Conflict of

Laws § 377.1 (1935)............................................... 11

Anthony J. Bellia Jr. & Bradford R. Clark,

Constitutional Federalism and the Nature

of the Union, 66 Wm. & Mary L. Rev. 281

(2024) ....................................................................... 5

John C.P. Goldberg, The Constitutional

Status of Tort Law: Due Process and the

Right to a Law for the Redress of Wrong,

115 Yale L.J. 524 (2005) ......................................... 6

Thomas W. Merrill, The Landscape of

Constitutional Property, 86 Va. L. Rev. 885

(2000) ..................................................................... 27

Polly J. Price, Full Faith and Credit and the

Equity Conflict, 84 Va. L. Rev. 747 (1998) ........... 19

Arthur Conan Doyle, “The Adventure of

Silver Blaze” (1892) ................................................. 4

The Federalist No. 32 (Alexander Hamilton) . 5-6, 7, 9

Restatement (First) of Conflict of Laws (1934) ....... 11

Restatement (Second) of Conflict of Laws

(1971) ..................................................................... 12

INTERESTS OF AMICUS CURIAE 1

WHEN Justice is a 501(c)(3) nonprofit

organization dedicated to advancing transparency,

corporate accountability, and effective remedies for

conduct that harms human health and the

environment. WHEN Justice supports the use of

legal, regulatory, and market-based mechanisms to

ensure that entities responsible for environmental

and human-health harms bear the costs of those

harms rather than shifting them to individuals,

communities, and taxpayers. Its work is grounded in

the principle that economic prosperity, innovation,

environmental protection, and public well-being are

mutually reinforcing—not competing—objectives.

WHEN Justice has a particular interest in preserving

meaningful avenues of redress, including traditional

state-law remedies, where misconduct causes harm to

communities.

SUMMARY OF THE ARGUMENT

If Joe Smith hits a baseball in Missouri and

breaks a window in Kansas, Kansas cannot ban

baseball in Missouri, but it can surely make Mr.

Smith pay for the broken window. “The cases are

many in which a person acting outside the State may

be held responsible according to the law of the State

1 Amicus curiae states that no counsel for a party authored

this brief in whole or in part, and no person or entity other than

amicus curiae or its counsel made a monetary contribution

intended to fund its preparation or submission. Mr. Sean Powers

previously represented respondents in this matter; that

representation ended in October 2024, and counsel submits this

brief solely on behalf of amicus curiae.

for injurious consequences within it.” Young v. Masci,

289 U.S. 253, 258-59 (1933).

Petitioners now contend the Constitution

demands a different rule if instead of an errant

baseball, Mr. Smith’s pollution causes damage in

Kansas. 2 They are wrong. Neither the Constitution’s

text nor its structure support special treatment for

interstate pollution or give unique immunity to the

polluter. When the Framers limited the authority of

the sovereign States, they did so expressly and with

care. Here, the Constitution says nothing about the

resolution of interstate pollution disputes, and there

is no historical evidence that the Framers intended to

subvert the accepted rule—that States can apply

their own tort law to remedy damage within their

borders—for that class of cases.

Perhaps recognizing that the Framers expressed

no view on interstate pollution, petitioners argue

more broadly that a State may never remedy in-state

harm caused by outside acts because “each State

alone can determine what conduct to permit or punish

within its borders . . . and no State can impose its own

policy choices on other States.” Petrs. Br. at 24. Taken

at face value, this dooms all interstate tort law, which

is strong evidence that their logic is faulty. But to the

extent they are unwilling to throw out the whole

interstate tort regime, petitioners have created a

different constitutional problem for themselves. How

2 We address only petitioners’ argument that the Constitution

itself preempts these state-law remedies, though we note their

statutory preemption arguments largely depend on them being

right about the constitutional question.

does a judge decide that pollution (carried by a river)

is constitutionally different than a defective product

(travelling through streams of commerce)? Without

textual guidance, there are no judicially manageable

standards for drawing such lines, which makes these

political questions reserved to Congress.

The categorical nature of petitioners’ preemption

raises yet more constitutional concerns. Their implied

constitutional

preemption

regime

effectively

eliminates all compensatory remedies for those

injured by interstate pollution—nobody could bring a

trespass claim for polluted property; nobody could

bring a personal injury claim for disease or death.

Petitioners fail to recognize that such claims are

property interests protected by the Fifth Amendment.

And members of this Court have rightly recognized

that abolishing them “in some general way” would

raise “[q]uite serious constitutional questions” if a

legislature did so without providing “for a reasonable

alternative remedy.” Pruneyard Shopping Ctr. v.

Robins, 447 U.S. 74, 93-94 (1980) (Marshall, J.,

concurring). The Takings Clause provides the most

natural home for those concerns, but this Court has

not had to resolve those questions because Congress

rarely eliminates damages remedies under State law

in a comprehensive way; and where it has seen the

need, it has set up replacement compensation

schemes. E.g., Duke Power Co. v. Carolina Envtl.

Study Group, 438 U.S. 59, 87-88 (1978). The caution

of Congress in this sensitive area makes petitioners’

implied preemption arguments more troubling and

doubtful.

ARGUMENT

There Are No Special Constitutional

Rules for Interstate Pollution Cases.

Sherlock Holmes famously calls attention to the

dog that does not bark; the absence of a thing that

should be there is often the most probative piece of

evidence. Arthur Conan Doyle, “The Adventure of

Silver Blaze” (1892). Here, petitioners’ sweeping

constitutional argument is missing a single reference

to the text; and to the extent they argue constitutional

preemption is implicit in the “structure of the

constitution,” they fail to address its actual

architecture or the relevant history.

Without a viable argument about the

Constitution’s original meaning, petitioners primarily

invoke federal common law precedents, arguing that

federal law is needed to resolve all “disputes

concerning injuries allegedly caused by interstate air

and water pollution.” Petrs. Br. at 24. However, none

of those decisions did what petitioners are asking this

Court to do now: preempt state law’s ability to award

damages to private parties injured by pollution.

Instead, federal common law expanded the

remedies available to States injured by interstate

pollution, giving them extraterritorial injunctions

they could not obtain under their own law. But by

giving injured States an extraordinary remedy, the

Constitution did not take away the ordinary ones

available to private parties facing harm to their

person or property—a damages action under State

law.

A. Neither the text nor structure of the

Constitution bars States from remedying

in-state harm caused by out-of-state

pollution.

“Constitutional analysis must begin with the

language of the instrument.” Dobbs v. Jackson

Women’s Health Organization, 597 U.S. 215, 235

(2022) (cleaned up). The text matters foremost

because it was agreed to by the People and made “part

of our fundamental law.” United States v. Rahimi, 602

U.S. 680, 737 (2024) (Barrett, J., concurring).

1. A textual command is particularly important

for limits on the sovereign authority of the States.

“After independence, the States considered

themselves fully sovereign nations.” Franchise Tax

Bd. of California v. Hyatt, 587 U.S. 230, 237 (2019).

While the Constitution “split the atom of

sovereignty,” United States Term Limits v. Thornton,

514 U.S. 779, 838 (Kennedy, J., concurring), the

States’ “alienation of rights and powers was a

momentous act that interpreters were not to attribute

to vague or ambiguous provisions.” Anthony J. Bellia

Jr. & Bradford R. Clark, Constitutional Federalism

and the Nature of the Union, 66 Wm. & Mary L. Rev.

281, 300 (2024). Instead, “a legal instrument had to

do so in clear and express terms or by unavoidable

implication.” Id. This rule of constitutional

interpretation is “an essential part of the background

context that informs the original public meaning of

the Constitution.” Id. at 324.

Thus, under “the plan of the convention . . . the

State governments would clearly retain all the rights

of sovereignty which they before had,” and alienated

those rights only “in three cases.” The Federalist No.

32 (Alexander Hamilton). First, “where the

Constitution in express terms granted an exclusive

authority to the Union; [second,] where it granted in

one instance an authority to the Union, and in

another prohibited the States from exercising the like

authority; and [third] where it granted an authority

to the Union, to which a similar authority in the

States

would

absolutely

and

totally

CONTRADICTORY and REPUGNANT.” Id. The

Framers took “the most pointed care . . . to insert

negative clauses” where they felt it would be

“improper” for States to retain authority, and “the

whole tenor of the instrument” was to leave the States

with all authorities “not explicitly divested in favor of

the Union.” Id.

2. Providing redress for private wrongs is a

central aspect of sovereignty; certainly so for harm to

people and property found within a sovereign’s

borders. At the Founding “American jurists were [ ]

quite familiar with the principle that government

owes its citizens laws and institutions for declaring

and vindicating basic rights, including the right to a

law for the redress of wrong.” John C.P. Goldberg, The

Constitutional Status of Tort Law: Due Process and

the Right to a Law for the Redress of Wrong, 115 Yale

L.J. 524, 560 (2005) (emphasis added). As declared in

one of this Court’s earliest cases, “[t]he very essence

of civil liberty certainly consists in the right of every

individual to claim the protection of the laws,

whenever he receives an injury. One of the first duties

of government is to afford that protection.” Marbury

v. Madison, 5 U.S. 137, 163 (1803) (emphasis added).

This sovereign duty was generally reserved by the

Constitution to the States. Erie R.R. v. Tompkins, 304

U.S. 64, 78-80 (1938); accord United States v.

Morrison, 529 U.S. 598, 617 (2000) (“the Founders

denied the National Government and reposed in the

States” the police power). While federal law may

control some disputes between sovereigns, infra at 13,

state law governs private disputes for the redress of

private wrongs.

3. The question in this case is whether the

Constitution either “expressly or by necessary

implication” abrogates a State’s respective tort

authority in interstate pollution disputes because if

“the Constitution is silent about the exercise of a

particular power . . . the States enjoy it.” United

States Term Limits v. Thornton, 514 U.S. 779, 848

(1995) (Thomas, J., dissenting). Here, nothing in the

Constitution expressly limits State authority in any

transboundary case, much less interstate pollution

ones. Nor are those limits implied by the broader

structure.

The Constitution limited the authority of the

States in ways that the Confederation had not, but

again “the whole tenor of the instrument” was to leave

the States with all authorities “not explicitly divested

in favor of the Union.” The Federalist No. 32

(Alexander Hamilton). A careful structure was

erected: the federal government was given

enumerated powers and the supremacy clause (U.S.

Const. art. I, § 8, U.S. Const. art. VI, cl. 2); express

limits were placed on state authority (U.S. Const. art.

I, § 10; U.S. Const. art. IV); and there was a general

reservation of rights to the States (U.S. Const. amend.

X).

Under this structure, Congress is responsible for

identifying which issues require preemptive federal

law. Not only are the States represented in Congress,

but Congress can change its mind if facts change or

they got the balance wrong the first time.

Constitutional preemption is more permanent.

Thus when the Framers wanted to conclusively

eliminate State authority, they did so expressly. The

States lost many of the traditional powers of external

sovereignty, vis-à-vis foreign nations: they cannot

enter into treaties, U.S. Const. art. I, § 10, cl. 1, tax

imports or exports, art. I, § 10, cl. 2, or make war, art.

I, § 10, cl. 3. But the limits on their powers to respond

to circumstances and events within their own borders

are far more circumspect: the States cannot impair

contractual obligations, or pass bills of attainder or ex

post facto laws, art. I, § 10, cl. 1; they must give full

“credit . . . to the public Acts, Records, and judicial

Proceedings of every other State,” art. IV, § 1; and

they have to return criminal fugitives (and once had

to return fleeing slaves) regardless of their own laws,

art. IV, § 2, Cl. 2, 3.

While petitioners and their amici suggest the

Framers assumed that States could not regulate

something entirely outside their borders, Petrs. Br. at

23-24 & Br. of Amicus Curiae Prof. Saikrishna B.

Prakash Supporting Pet’rs, at 22, applying one’s law

to effects within one’s borders is not an

extraterritorial act.

Moreover, their atextual limit has a completely

different flavor than the narrower ones found in the

text, and limits State authority across a much wider

field. It effectively adds words to the Full Faith and

Credit Clause that say, “and States can also never

apply their own law to conduct in another State, even

if it causes harm within their borders.” Adding such a

capacious atextual limit undermines “the most

pointed care” the Framers took “to insert negative

clauses” when they saw the need. The Federalist No.

32 (Alexander Hamilton). Why go to the trouble of

negotiating and debating the express limits, if the

States had actually endorsed this type of blank check?

B. Unlike interstate sovereign immunity,

petitioners’ special rule for interstate

pollution has no historical pedigree.

While not every constitutional doctrine is “spelled

out in the Constitution,” Hyatt, 587 U.S. at 247,

judges do not have freewheeling authority to add or

subtract from the text. Cf. Wyeth v. Levine, 555 U.S.

555, 583 (2009) (Thomas, J., concurring) (“implied

pre-emption doctrines that wander far from the

statutory

text

are

inconsistent

with

the

Constitution”). If permitted, such atextual limits

must be clearly and specifically commanded by

history. Here, there were no settled rules governing

choice-of-law before the Founding, and certainly no

clear prohibition on States applying their own law in

transboundary disputes, much less a specific choiceof-law rule for pollution cases.

1. This Court’s decision in Hyatt demonstrates

how to properly find atextual but historically

commanded limits. The question there was whether

States enjoyed sovereign immunity in the courts of

sister States.

Immunity from private suit was a “fundamental

aspect of the States’ inviolable sovereignty . . . at the

founding” with a common law and law-of-nations

pedigree. Hyatt, 587 U.S. at 238-39 (cleaned up). After

independence, the States enjoyed immunity in sister

State’s courts, thus the Framers “took as given that

States could not be haled involuntarily before each

other’s courts.” Id. at 239-40.

Debates about the Constitution made clear that

the Framers did not intend to disturb this settled

principle. There were “spirited” debates over whether

States could be sued in the superior federal

sovereign’s “Article III courts” without their consent;

and the fervor of those debates would have made

“little sense” if the Framers intended to permit States

to be sued in the courts of co-equal State sovereigns.

Id. at 247. This conclusion was further confirmed by

the fact that the Constitution disabled the States’

ability to respond to sister States’ refusal to honor

their immunity. Id. at 245.

2. In Hyatt, there was thus a well-established preratification norm that commanded sovereign

immunity, and history surrounding the ratification

debates that strongly suggested the Framers would

have said something expressly if they intended the

Constitution to subvert it. Here, there is no evidence

of a settled historical norm prohibiting States from

applying their own law to out-of-state pollution when

it causes harm within their borders.

As noted above, while the historical record

suggests one sovereign should not legislate within

another’s borders, no sources say or suggest that a

sovereign regulates extraterritorially when it

compensates harm to people and property within its

borders. Instead, it is petitioners’ rule that

undermines the notion of territorial sovereignty that

was prized before the Founding, by stripping a State

of authority to address harm within its borders.

While choice-of-law rules were unsettled and

emerging at the Founding, lex loci delicti became the

dominant rule for torts in the early days of the

Republic. Resps. Br. at 36-37. Under that Rule, “the

law of the place of wrong determines whether a

person has sustained a legal injury,” Restatement

(First) of Conflict of Laws § 378 (1934), and “[t]he

place of wrong is in the state where the last event

necessary to make an actor liable for an alleged tort

takes place,” id. § 377. The theoretical underpinning

for that rule is that the right accrues where the injury

occurs; and thus, that moment in that place triggers

the sovereign lawmaking function. See Joseph H.

Beale, A Treatise on the Conflict of Laws § 377.1

(1935).

Not only is the State where the injury occurred

permitted to apply its own law, but because torts were

considered transitory, all other States—including

those where the conduct occurred—were expected to

apply that law as well. See Sosa v. Alvarez-Machain,

542 U.S. 692, 706-07 (2004) (collecting cases); Dallas

v. Whitney, 118 W. Va. 106, 108-09 (1936) (applying

Ohio law to blasting operations in West Virginia that

caused property damage in Ohio).

“Even as many jurisdictions have modified the

traditional rule of lex loci delicti, the location of injury

continues to hold sway in choice-of-law analysis in

tort cases.” J. McIntyre Mach., Ltd. v. Nicastro, 564

U.S. 873, 903 n.11 (2011) (Ginsburg, J., dissenting).

In such places, “when the tort rule is designed

primarily to compensate the victim for his injuries,

the state where the injury occurred” will often “have

the greater interest in the matter,” and thus will

provide the rule for decision. Restatement (Second) of

Conflict of Laws, § 145 cmt. c (1971). It would be

strange indeed if the vast majority of States that

followed lex loci delicti for a century, and those that

still do, were wrong about the Framers’ intent. Suffice

it to say, there is nothing approaching a clear

historical signal commanding the elimination of lex

loci delicti for interstate pollution cases.

C. Federal common law gave States an

extraterritorial injunction they could

not obtain under their own laws; it did

not strip ordinary damages remedies

available to private parties.

As respondents have ably briefed, States routinely

and constitutionally award damages to remedy instate harm caused by out-of-state acts. Resps. Br. at

34-37. Looking to reverse that norm, petitioners

principally rely on this Court’s recognition of federal

common law as the rule of decision for sovereign

interstate pollution disputes. Those precedents do not

support the preemptive rule they now seek.

Federal common law never operated as a looming

restraint on the ability of States to remedy private

harms within their borders. Instead, it was a rule of

necessity that grew out of the Constitution’s implicit

recognition that States needed a way to shut down

polluting activity outside their borders but lacked the

ability to do so under their own authority. Petitioners’

argument flips the interests underlying federal

common law on their head: where once it offered

special protection for the sovereign interests of States

injured by pollution; now it would undermine those

interests and give special immunity to out-of-state

polluters. This Court should not embrace that

transformation.

1. Let’s start with what federal common law is

for: resolving disputes between sovereigns, not

policing private lawsuits. “[T]he Constitution

affirmatively altered the relationships between the

States,” such that they could no longer resolve their

disputes through “pure political power.” Hyatt, 587

U.S. at 245-47. But because ours was meant to be “a

perpetual Union,” id. at 246, and the States did not

“agree to submit to whatever might be done,” Georgia

v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), the

Constitution gave the States new ways of resolving

their grievances. “[T]he alternative to force is a suit

in this court.” Id.

Out of this grant of jurisdiction, this Court

mediated cases involving “the conflicting rights of

States” under what is now recognized as “federal

common law.” Tex. Indus. v. Radcliff Materials, 451

U.S. 630, 641 & n.13 (1981). Like all areas of federal

common lawmaking, this one is narrow. Purely

private disputes are not meet for this type of federal

common lawmaking; instead, it is for disputes

previously “settled by treaty or force.” South Carolina

v. North Carolina, 558 U.S. 256, 267 (2010) (internal

quotations omitted); accord Louisiana v. Texas, 176

U.S. 1, 16 (1900) (“It must appear that the

controversy to be determined is a controversy arising

directly between [the States], and not a controversy in

the vindication of grievances of particular

individuals.”). Federal common law thus exists to

provide neutral principles for determining States’

respective rights where they are in sharp conflict—

border disputes are the quintessential example.

2. The very cases petitioners lean on hardest,

prove the opposite of what they need. While this Court

recognized States’ ability to invoke federal common

law to enjoin out-of-state pollution before the advent

of federal environmental statutes, Am. Elec. Power

Co. v. Connecticut, 564 U.S. 410, 421 (2011), 3 two

things stand out from these decisions, which

undermine petitioners’ reliance on them. First, this

Court was concerned with the rights of the State

injured by pollution; not the rights of the State where

pollution was occurring. Second, the need for federal

common law was intrinsically tied to the inadequacy

of damages and the injured State’s need for an

injunctive remedy.

3 While petitioners contend this tradition dates back more than

a century, this is an incomplete picture. Most decisions predated

Erie and did not address the source law for the rule of decision.

That question did not arise until Ohio v. Wyandotte Chemicals

Corp., 401 U.S. 493, 498 n. 3 (1971), which suggested state law

should apply. That ruling was reversed the next year when

Illinois v. City of Milwaukee held federal common law governed.

406 U.S. 91, 102-03 & n. 3 (1972). That federal common law,

however, was short-lived and held to be displaced a decade later.

See generally City of Milwaukee v. Illinois, 451 U.S 304 (1981).

In private disputes, damages are the default

rule and injunctions are extraordinary remedies. But

when the States joined the “union” and lost the ability

to “forcibl[y]” abate “outside nuisances,” they did not

“sink to the position” of a private party and could not

“be required to give up quasi-sovereign rights for

pay.” Tennessee Copper Co., 206 U.S. at 237-38. A

State injured by out-of-state pollution, therefore,

needed access to extraterritorial injunctive relief.

But there was a problem; the State could not rely

on its own laws to enforce the injunction because

“enforcement measures do not travel with the sister

state judgment as preclusive effects do” but “remain

subject to the even-handed control of forum law.”

Baker v. GMC, 522 U.S. 222, 235 (1998). The State

also could not be “compelled to resort to the tribunals

of other States for redress.” Wyandotte Chemicals

Corp., 401 U.S. at 500. Thus, without a federal forum

(and federal law), the injured State’s sovereign

interests were always subject to the control of the

polluting State: either the injured State would have

to press its claim in the polluting State’s courts, or it

would have to hope that the polluting State would

honor injunctive decrees issued by the injured State’s

courts.

Federal common law existed to solve this specific

problem by giving States a unique and extraordinary

federal remedy. See Missouri v. Illinois, 200 U.S. 496,

520–21 (1906); Tenn. Copper Co., 206 U.S. at 237–38.

3. Creating a remedy for a sovereign is one thing.

Taking away a remedy that already belongs to a

private party is another. The latter involves

preemption, which simply cannot exist “in vacuo,

without a constitutional text or a federal statute to

assert it.” Hencely v. Fluor Corp., 146 S. Ct. 1086,

1093 (2026) (cleaned up). Federal common law,

therefore, cannot give judges authority to preempt

state law beyond what the Constitution necessarily

demands.

We are aware of only two cases where this Court

has held that federal common law, or the structure of

the Constitution, eliminates a private party’s common

law claims under State law; both were narrow and

neither supports the sweeping preemption sought

here. The first is Hyatt, which as discussed above,

held that a private party could not sue one State in

another’s courts. Supra at 9-10. That rule has little

bearing on the issues at hand: sovereign immunity

implicates sovereign rights in a direct way; and

preventing a claim against one (sovereign) actor is

categorically different than eliminating them as to an

entire fleet of (private) actors.

The second case is Boyle v. United Techs. Corp.,

487 U.S. 500 (1988). This is the only case that we have

seen where federal common law has been used to

immunize a private defendant from liability for a

domestic injury. And what a narrow grant of

immunity that is: a tort plaintiff cannot recover

against a military contractor for a design the military

specifically required. Id. at 512–13. Petitioners

effectively ask this Court to turn Boyle’s pinhole into

a gate that lets a Mack truck through. Hencely

forecloses this effort: if South Carolina tort law can

constitutionally govern a suit brought by a U.S.

serviceman injured by a military contractor’s

negligence in Afghanistan, it is implausible that the

Framers intended to make States constitutionally

incapable of redressing entire categories of harm to

people and property within their borders. 146 S. Ct.

at 1097-99.

4. As discussed above, the federal common law of

interstate pollution was born of necessity to resolve

disputes where States are directly in conflict. This

Court never recognized that necessity where private

parties seek to recover damages based on interstate

pollution. See Middlesex Cty. Sewerage Auth. v. Nat’l

Sea Clammers Ass’n, 453 U.S. 1, 11 n.17 (1981) (“We

therefore need not discuss the question whether the

federal common law of nuisance could ever be the

basis of a suit for damages by a private party.”); AEP,

564 U.S. 410, 422 (2011) (“We have not yet decided

whether private citizens . . . may invoke the federal

common law of nuisance to abate out-of-state

pollution.”); accord Hencely, 146 S. Ct. at 1094

(federal common law is generally inappropriate

“when litigation is purely between private parties”

(quoting Bank of America Nat’l Trust & Sav. Ass’n v.

Parnell, 352 U.S. 29, 33 (1956)). While extraterritorial

injunctions might implicate constitutional concerns

involving the conflicting rights of States, a damages

remedy for private parties simply does not.

Practice tells us as much. There is no federal

common law of products liability or federal common

law for the internet. Interstate damages remedies

under State law are routine. But despite their

ubiquity—and with the exception of Boyle—this

Court has never found a compensatory remedy under

the law of the State of injury constitutionally barred.

Though a State might exceed its authority (and

impede on the authority of others) if it applied its law

to conduct with no connection to its territory, this

Court has repeatedly recognized that a State has a

paramount interest in applying its law to conduct that

causes injury within its borders. See Ford Motor Co.

v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 360

(2021); Allstate Ins. Co. v. Hague, 449 U.S. 302, 312–

13 (1981).

Damages remedies under one State’s law can

coexist with another State’s exclusive regulatory

authority in ways that an injunction likely could not.

Cf. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256

(1984) (permitting State law damages award even

where safety regulation “is the exclusive concern of

the federal law”). Damages liability under State A’s

law may impact the behavior or profits of the private

actor, but they do not eliminate State B’s regulatory

authority or prevent it from permitting necessary

operations.

This much is clear from cases applying lex loci

delicti. Take Dallas v. Whitney. There, the defendant

used explosives in connection with roadwork in West

Virginia, which broke “the plate glass of the plaintiff”

in Ohio; the West Virginia court applied Ohio law to

find a compensable trespass even though no

negligence was found and the road work could surely

not have been completed without the blasting. 118 W.

Va. at 108-09. Paying for damage in Ohio as a matter

of Ohio law did not undermine West Virginia’s control

of road development in West Virginia.

While this Court has found that damages can

change (dare say, regulate) private behavior, the fact

that the polluter might absorb, pass-on the cost, or

shut down cannot create a constitutional problem.

Nat’l Pork Producers Council v. Ross, 598 U.S. 356,

374 (2023) (“many (maybe most) state laws have the

‘practical effect of controlling’ extraterritorial

behavior”). A change in private behavior is not the

proper lodestar for the constitutional inquiry; the

question is whether that change in private behavior

directly interferes with another States’ sovereignty.

It does not. While States may not like that

businesses within their borders are on the hook for

damages they cause elsewhere, this Court has never

held that they have a sovereign interest in shielding

them from such liability. Moreover, a state’s interest

in limiting liability for conduct within its territory is

clearly not the only sovereign interest at play when

that conduct creates concrete harm in a sister State;

and the Constitution has never made the “State of the

injury” subservient. Carroll v. Lanza, 349 U.S. 408,

414 (1955).

5. This case does not involve an extraterritorial

injunction under state law, and this Court need not

resolve when they are constitutionally permissible.

See generally Polly J. Price, Full Faith and Credit and

the Equity Conflict, 84 Va. L. Rev. 747 (1998) (noting

that doctrine in this area is underdeveloped). We

mention them now only to demonstrate how

permitting a damages remedy under injured State

law reconciles all States’ interests, while the other

two approaches—allowing both injunctive and

damages remedies under injured State law or denying

both—may not.

A damages remedy is bound to a specific dispute

between specific parties—the defendant need only

pay for an identified loss. Injunctions clearly can

sweep more broadly. If State A shuts down a factory

permitted in State B, it has taken actual not merely

practical control and denied State B the benefits of

the factory. Cf. Pork Producers, 598 U.S. at 374. 4

Allowing damages but denying an injunction

reconciles both States’ interests: State A does not

suffer uncompensated harm; State B gets to keep the

benefits. Taking both remedies away, however, makes

State A subservient to Sister B: State A bears the cost;

State B keeps the benefits.

II.

There Are No Judicially Manageable

Standards for Determining When One

State’s Tort Remedies Violate Another’s

“Sovereignty.”

The question in this case is ultimately not

whether it would be good or bad for fossil fuel

companies to pay for climate change. The questions

are who decides and how? Because there is no clear

constitutional command, the decision to eliminate

State law is lawmaking that must belong to Congress.

Va. Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019)

(Gorsuch, J., lead opinion); accord Hencely, 146 S. Ct.

at 1093.

It will not always be the case that an extraterritorial

injunction overturns another State’s sovereign decision. See

Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952). And Baker

does a lot to address any concerns where it does.

As Part I shows, the Constitution does not take a

position on interstate pollution, nor whether it is

inappropriate to apply State law to that subset of

interstate disputes; it is silent. Knowing this,

petitioners press a much broader constitutional rule

that compensatory remedies under one State’s law

will always constitute impermissible extraterritorial

regulation. Petrs. Br. at 23-24. Because that would

throw out countless precedents from this Court, they

must really mean sometimes. This implied concession

makes their argument even more constitutionally

problematic because it forces judges to make the call

about which interstate disputes may proceed

constitutionally under state law and which cannot.

Petitioners have offered no clear test to guide

such a delicate line-drawing exercise; nor is it clear

what overarching constitutional value that linedrawing is meant to serve. Without a clear test to

ensure even-handed application, this endeavor

plainly creates an unacceptable risk of judges not

determining what the law is but enshrining in law

their own views about a particular dispute. But “a

judicial policy preference should never be enough to

win preemption of a state law.” Va. Uranium, 587

U.S. at 767 (Gorsuch, J., lead opinion); accord Erie,

304 U.S. at 78 (recognizing that federal common law

creates the risk of judges “brushing aside” laws that

they dislike); Geier v. Am. Honda Motor Co., 529 U.S.

861, 894 (2000) (Stevens, J., dissenting) (“the

Supremacy Clause does not give unelected federal

judges carte blanche to use federal law as a means of

imposing their own ideas of tort reform on the

States”). Indeed, this is precisely what textualism and

originalism were meant to prevent.

1. The thrust of petitioners’ argument is that

interstate air pollution is different than other

interstate torts because it involves conduct that is not

directed at one particular State, and multiple, mixed

and hard to separate sources; climate change, they

say, amplifies those concerns because of the scale.

Petrs. Br. at 27-28. But none of these concerns are

unique to pollution; and while climate change is

certainly a big issue, State law routinely deals with

the local impacts of big problems.

State law and state courts deal with multi-factor

and uncertain causation all the time: whether it is

tobacco, asbestos, opioids, PFAS, or social media

addiction, plaintiffs in such cases are injured by the

acts of numerous companies—which have typically

transgressed State or international borders and

combined in a fairly undifferentiated way to cause

them harm. While sometimes those defendants

singled out a specific State, that is not always true,

and it is hard to see how deceptive acts on the internet

or defective products that are dropped into streams of

commerce are somehow more targeted at particular

States than interstate pollution.

Even more importantly, these facts petitioners

identify do not suggest any test for the constitutional

line. And constitutional preemption needs a test:

without one, ad hoc rulings invite too much of a

judge’s preferences into the equation.

2. In Pork Producers, several members of this

Court recognized the inherent problem with leaving

constitutional line-drawing to judges without clear

standards. Similar to that case, the heart of

petitioners’ argument seems to be that it would be

problematic if oil companies had to pay for climate

change; but surely it is equally problematic if those

injured by climate change have to bear the costs? The

meaning of the Constitution cannot turn on how a

judge weighs which side of that coin is more

problematic. See Pork Producers, 598 U.S. 356, 38182 (2023) (Gorsuch, J., joined by Thomas and Barrett,

JJ.).

Instead, we have two default rules to answer such

questions: first, we inherited a common law tradition,

where courts and, more importantly, juries determine

where liability rests and who should bear the cost;

and “our federalism” means those courts

presumptively use state law. When to disrupt those

defaults is a policy choice that “usually belong[s] to

the people and their elected representatives” in

Congress. Id. at 382.

Federal common lawmaking does not open for

judges the same door that this Court shut in Pork

Producers. While this Court has emphasized the

narrowness of that doctrine—and need not

reformulate it here because, as explained above, it

does not support petitioners’ preemption—it contains

some of the same problems identified just above.

Presently, federal common law is preemptive where

there is a “significant conflict” between “an

identifiable federal policy or interest” and “the

operation of state law” in an area of “uniquely federal

interest.” Boyle, 487 U.S. at 507. While it is rarely

found—because private disputes are not subject to

it—those modifiers leave room for mischief. Which

federal interests are unique? The Constitution

supplies no obvious answer. When is a conflict

significant enough? Silence. And how are federal

interests even identified, if not codified in a statute—

are they the policy positions of whoever occupies the

White House at the time?

Finally, judicially created preemption is

problematic in any case and especially so where it is

a constitutional preemption rule. If this Court

improperly finds statutory obstacle preemption,

Congress can fix the mistake by amending the

statute. This corrective may not be available if the

Constitution forecloses remedies. Cf. Comptroller of

Treasury of Md. v. Wynne, 575 U.S. 542, 572 (2015)

(Scalia, J., dissenting) (“How could congressional

consent lift a constitutional prohibition?”). This Court

need not answer Justice Scalia’s question here, but it

is a good reason to reject petitioners’ constitutional

argument,

which

clearly

lacks

specific

constitutional command.

III.

Eliminating All Compensatory Remedies

in Interstate Pollution Cases Raises

Constitutional Questions Under the

Takings Clause.

Parts I and II show that petitioners’ rule cannot

be located in the Constitution’s text, structure, or

history, and that it offers no judicially manageable

standard for federal courts to apply. But petitioners’

theory also has a property-rights problem.

Under petitioners’ regime nobody can obtain

compensatory relief when they are injured by

interstate pollution because: the Constitution

implicitly eliminates personal injury and property

claims under state law; and Congress implicitly

eliminated any federal common law remedies that

presumably took their place. 5 There are doctrinal

flaws with both premises—and we have addressed the

first at length—but the consequences of this

argument are both staggering in their practical

impact (insofar as they put the burden of interstate

pollution

entirely

those

harmed)

and

constitutionally troubling.

Common law claims, such as trespass, are

intangible but ancient and constitutionally protected

property interests. Congress, of course, has broad

power to regulate commerce and to preempt state law.

But it is also restrained by the Constitution when it

exercises that power, including by the Takings Clause

of the Fifth Amendment. And as Justice Marshall

observed, eliminating core common law claims, such

as trespass, “in some general way” raises “serious

constitutional questions,” particularly where there is

5 As this dispute did not fall within the previously recognized

federal common law and because there is no constitutional basis

for creating new federal common law, see Part I, this Court need

not address displacement. But to the extent this Court disagrees,

and federal common law is constitutionally required in this case,

it should reserve the question. In AEP, federal common law was

displaced because Congress addressed both the conduct (source

pollution) and the remedy (emission caps) in the Clean Air Act;

there is no evidence that Congress has spoken “directly” to the

sale or marketing of fossil fuel or compensation for pollution. 564

U.S. at 424.

no “provision for a reasonable alternative remedy.”

Pruneyard, 447 U.S. at 93-94 (Marshall, J.,

concurring).

This Court need not decide, as an abstract

matter, whether the Constitution forbids Congress

from eliminating all compensatory remedies for

interstate pollution. It is simply another reason to

doubt petitioners’ preemptive rule that rests on two

implications, i.e., that the Framers intended to strip

States of their ability to provide compensatory

remedies and that Congress intended to displace any

federal common law remedies as well.

1. The Fifth Amendment provides that no

“private property shall be taken for public use,

without just compensation.” U.S. Const. amend. V.

The purpose of the amendment “is to prevent the

government from forcing some people alone to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole.” Murr v.

Wisconsin, 582 U.S. 383, 394 (2017) (cleaned up). As

Justice Thomas observed, the clause “embodied the

Framers’ understanding that property is a natural,

fundamental right, prohibiting the government from

taking property from A. and giving it to B.” Kelo v.

City of New London, 545 U.S. 469, 510-511 (2005)

(cleaned up).

The Takings Clause protects not only real property,

but also “intangible property” interests. See, e.g.,

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984).

Tort claims—certainly those protecting real property—are

intangible property, which this Court has repeatedly

afforded protection under the Fifth Amendment’s Due

Process Clause. See, e.g., Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306 (1950); Phillips Petroleum Co. v.

Shutts, 472 U.S. 797, 807 (1985) (“a chose in action is a

constitutionally recognized property interest possessed by

each of the plaintiffs”). And if a cause of action is

“property” for purposes of the Due Process Clause, it

is property for purposes of the adjacent Takings

Clause.

With respect to what government action

constitutes a taking, this Court has tried to separate

physical from regulatory takings, though pinning

down the difference in cases involving intangible

property can be difficult. See Eastern Enterprises v.

Apfel, 524 U.S. 498, 540 (1998) (Kennedy, J.,

concurring in the judgment and dissenting in part) (“a

strict line between a taking and a regulation is

difficult to discern or to maintain”); Thomas W.

Merrill, The Landscape of Constitutional Property, 86

Va. L. Rev. 885 (2000). Suffice it to say, a law that

eliminates an intangible property right entirely

would be problematic under either approach.

2. While we recognize that this Court has yet to

hold that any particular instance of preemption

violates the Takings Clause, Congress’ preemption

power cannot be free from this constitutional

limitation. Every day, pipelines and railroads that

need a right-of-way across private land obtain it

through eminent domain and by paying just

compensation. But if preemption was not limited by

the Takings Clause, there would be an obvious workaround: any legislature wishing to build a pipeline or

lay track across a landowner's property could skip

condemnation altogether and simply declare that no

trespass claim lies against pipelines or railroads. No

one has ever supposed that shortcut available—the

Constitution does not offer sovereigns a choice

between paying for what they take and legislating the

underlying property right out of existence. It requires

the former precisely because the latter is not a

permissible substitute.

These concerns have been raised before, and this

Court has been able to avoid answering them only

when it found that Congress had provided an

adequate alternative remedy for the tort claims it

eliminated.

In Duke Power v. Carolina Environmental Study

Group, 438 U.S. 59 (1978), there was a challenge to

the Price-Anderson Act, which replaced state law

recoveries for nuclear accidents with a no-fault

federally-administered $560 million fund. The

plaintiffs challenged the Act under both the Due

Process Clause and the Takings Clauses, principally

arguing that the Act’s statutory scheme was an

inadequate replacement for common law rights.

The Court rejected the constitutional challenges

because the Price-Anderson Act provided “a

reasonably just substitute for the common-law or

state tort law remedies it replaces,” id. at 88, which

involved “uncertain recovery of damages of this

magnitude from a [defendant], whose resources might

well be exhausted at an early stage.” Id. at 90-91; see

also id. at 93. 6 Duke Power thus suggests that the just

compensation for taking one’s common law claims

action is not some sum certain, but some means of

pursuing monetary recovery backed up by a claim

against the government.

3. We are not suggesting that every act of

preemption constitutes a taking. As this Court correctly

recognized, “a person has no property, no vested

interest, in any rule of the common law.” Duke Power,

438 U.S. at 88 n.32. But that principle safeguards

Congress’s power to alter or supersede a particular rule

within a common-law claim—not its power to eliminate

the claim itself for an entire category of injury. See

Marbury, 5 U.S. at 163 (“one of the first duties of

government is to” protect individuals from injury).

Congress can, for example, preempt a failure-towarn claim premised on a pesticide label that EPA has

specifically approved; the implication being that

Congress has made a substantive determination about

the adequacy of the label. See, e.g., Monsanto Co. v.

Durnell, 146 S. Ct. 2001 (2026). But as this Court’s

regulatory takings doctrine makes clear, when

regulation goes “too far” it becomes a taking. Thus, it

would be a different kettle of fish if Congress just

declared that nobody could sue a pesticide

manufacturer or for pesticide exposure at all.

6 Duke Power is consistent with Due Process cases where this

Court has looked to the existence of alternative remedy where a

legislature has eliminated common law recoveries. New York C.

R. Co. v. White, 243 U.S. 188 (1917); Middleton v. Texas Power,

249 U.S. 152 (1919); Truax v. Corrigan, 257 U.S. 312 (1921).

But that is how petitioners’ theory here operates:

it does not modify a rule within the tort theory or

foreclose one theory while leaving others open—it

would extinguish the claim itself, for an entire class

of injuries, leaving no rule and no remedy. 7

This is precisely the concern Justice Marshall

recognized in Pruneyard:

Quite serious constitutional questions might be

raised if a legislature attempted to abolish

certain categories of common-law rights in

some general way. Indeed, our cases

demonstrate that there are limits on

governmental authority to abolish "core"

common-law rights, including rights against

trespass, at least without a compelling showing

of necessity or a provision for a reasonable

alternative remedy.

Id. at 93-94 (footnote omitted).

As respondents explain, Resps. Br. at 28-31, petitioners’

constitutional argument suggesting no State law can provide

compensatory remedies in this case also makes little sense in

light of International Paper Co. v. Ouellette, 479 U.S. 481 (1987).

While this Court held that the Clean Water Act impliedly

preempted a damages action under an injured State’s law where

the out-of-state polluter was discharging under a federal permit,

it preserved compensatory remedies under the law of the source

State. Id. at 497-500. Here, petitioners’ constitutional argument

creates a perverse asymmetry: a defendant regulated under a

federal permit faces damages liability under Ouellette; a

defendant engaged in conduct that is not regulated by

Congress—like the fossil fuel sales and promotion in this case—

would face no liability at all.

Eliminating all compensatory relief for those

injured by interstate pollution is enormously

consequential. Congress infrequently preempts

common law claims, expressly. And we are aware of

no preemption regime enacted by Congress that

preempts as categorically (insofar as it immunizes all

acts regardless of their culpability) or as widely (as it

would impact all property and people across the

United States) without providing compensation. Cf.

Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) (addressing

vaccine compensation scheme); Duke Power, 438 U.S. at

90-93. Making an entire class of injuries irremediable

raises novel and difficult constitutional questions and

requires an unmistakable constitutional or

congressional command that is plainly missing here.

CONCLUSION

States have a sovereign interest in remedying

harm to people and property within their borders.

Big, complex problems do not negate that interest. A

company that moves defective products across

borders through streams of commerce can be held

liable under state law, and so too can internet

companies that operate in a digital world without

borders. The fact that climate change is an important

and politically divisive issue is not a reason to relax

the ordinary rules governing constitutional

interpretation; it is why they must hold.

Respectfully submitted,