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

No. 25-170

In the Supreme Court of the United States

SUNCOR ENERGY (U.S.A.) INC., ET AL.,

v.

Petitioners,

COUNTY COMMISSIONERS OF BOULDER COUNTY,

ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF COLORADO

BRIEF FOR THE CITY OF NEW YORK AS

AMICUS CURIAE SUPPORTING RESPONDENTS

STEVEN BANKS

Corporation Counsel of

the City of New York

RICHARD DEARING*

CLAUDE S. PLATTON

JONATHAN SCHOEPP-WONG

*Counsel of Record

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT .................................. 3

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

A.

Nuisance, trespass, and unjust-enrichment

claims against fossil-fuel producers, sellers,

and marketers do not regulate greenhouse

gases. .............................................................. 5

B.

Requiring defendants to bear the costs of

their activities is a well-established function

of state tort law. ........................................... 15

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

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Baldwin v. McClendon,

288 So.2d 761 (Ala. 1974) .................................. 10

Boomer v. Atlantic Cement Co.,

26 N.Y.2d 219 (1970) ..................................... 9, 10

City & Cnty. of Honolulu v. Sunoco LP,

537 P.3d 1173 (Haw. 2023) ............................... 17

City of Harrisonville v. W. S. Dickey Clay

Manufacturing Co.,

289 U.S. 334 (1933) ........................................... 10

City of L.A. v. San Pedro Boat Works,

635 F.3d 440 (9th Cir. 2011) ............................... 6

City of Monticello v. Rankin,

521 S.W.2d 79 (Ky. 1975) .................................. 10

City of N.Y. v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) ................................... 2

City of Phoenix v. Johnson,

75 P.2d 30 (Ariz. 1938) ...................................... 10

Copart Indus., Inc. v. Consol. Edison Co. of

N.Y.,

41 N.Y.2d 564 (1977) ........................................... 6

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Cox v. City of Dallas,

256 F.3d 281 (5th Cir. 2001) ........................... 6, 7

Crosstex N. Texas Pipeline, L.P. v. Gardiner,

505 S.W.3d 580 (Tex. 2016)................................. 8

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) ........................................... 18

Furrer v. Talent Irrigation Dist.,

466 P.2d 605 (Or. 1970) ..................................... 10

Galipeau v. Bixby ex rel. Tr. of Fong,

476 P.3d 1129 (Alaska 2020)............................. 10

Gerrity Oil & Gas Corp. v. Magness,

946 P.2d 913 (Colo. 1997) .................................. 11

Harris Group, Inc. v. Robinson,

209 P.3d 1188 (Colo. App. 2009) ....................... 13

Haynes v. Haas,

463 P.3d 1109 (Haw. 2020) ............................... 10

Hobbs v. Smith,

493 P.2d 1352 (Colo. 1972) .................................. 9

Hoery v. United States,

64 P.3d 214 (Colo. 2003) .......................... 6, 11, 12

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ........................................... 17

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Jost v. Dairyland Power Coop.,

172 N.W.2d 647 (Wis. 1969) .............................. 10

Kurns v. Railroad Friction Products Corp.,

565 U.S. 625 (2012) ..................................... 16, 17

Lewis v. Lewis,

189 P.3d 1134 (Colo. 2008) ................................ 13

Mayes v. Tabor,

334 S.E.2d 489 (N.C. Ct. App. 1985)................. 10

In re Methyl Tertiary Butyl Ether (MTBE)

Products Liab. Litig.,

725 F.3d 65 (2d Cir 2013) ............................ 12, 15

Owen v. Phillips,

73 Ind. 284 (1881) .............................................. 10

Pestey v. Cushman,

788 A.2d 496 (Conn. 2002) .................................. 7

Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41 (1987) ............................................. 17

Pub. Serv. Co. of Colo. v. Van Wyk,

27 P.3d 377 (Colo. 2001) .................................... 12

Riter v. Keokuk Electro-Metals Co.,

82 N.W.2d 151 (Iowa 1957) ............................... 10

v

TABLE OF AUTHORITIES—Continued

Page(s)

Robinson Brick Co. v. Luthi,

169 P.2d 171 (Colo. 1946) .................................... 9

Robinson v. Colo. State Lottery Div.,

179 P.3d 998 (Colo. 2008) ....................................... 13

Simonds v. Simonds,

45 N.Y.2d 233 (1978) ......................................... 13

State v. Lloyd A. Fry Roofing Co.,

246 N.W.2d 692 (Minn. 1976) ............................. 7

Wood v. Picillo,

443 A.2d 1244 (R.I. 1982) .................................... 8

OTHER AUTHORITIES

66 Am. Jur. 2d Restitution and Implied

Contracts § 11 .................................................... 13

75 Am. Jur. 2d Trespass § 9 ................................... 11

C.H.S. Fifoot, History and Sources of the

Common Law: Tort and Contract (1970) ............ 3

City of New York, PlaNYC: Getting

Sustainability Done (2023), available at

https://perma.cc/2AHK-EWNJ ............................ 1

Dan B. Dobbs et al., The Law of Torts (2026) .. 12, 18

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Douglas A. Kysar, The Public Life of Private

Law: Tort Law as a Risk Regulation

Mechanism, 9 Eur. J. Risk Reg. 48 (2018) ....... 16

George E. Woodbine, The Origins of the

Action of Trespass, 33 Yale L.J. 799

(1924) ................................................................... 3

John P. Dawson, Unjust Enrichment: A

Comparative Analysis (1951) .............................. 3

Leslie Kendrick, The Perils and Promise of

Public Nuisance, 132 Yale L.J. 702 (2023) ... 8, 19

Mark A. Geistfeld, The Coherence of

Compensation-Deterrence Theory in Tort

Law, 61 DePaul L. Rev. 383 (2012) ................. 15

104 N.Y. Jur. 2d Trespass § 8 ................................ 11

Rebuild by Design, The Scale of New York’s

Adaptation Costs (2026), available at

https://perma.cc/C4M4-PWHD............................ 2

Restatement (Second) of Torts ....................... passim

Restatement (Third) of Restitution and

Unjust Enrichment............................................ 13

William L. Prosser & W. Page Keeton, The

Law of Torts (5th ed. 1984 & Supp. 1988) ........ 14

1

INTERESTS OF AMICUS CURIAE

Local governments have a responsibility to address

the acute, localized harms wrought by climate change.

Amicus curiae the City of New York packs over 8.5 million people into just over 300 square miles situated primarily on islands, with over 500 miles of coastline. The

City and its residents are thus particularly vulnerable

to the ongoing environmental crisis of climate change.

From the increasing frequency of extreme weather

events, severe heat waves, catastrophic flooding,

shoreline erosion, and accelerating sea-level rises in

the City that already exceed the global rate, climatechange impacts have been enormously damaging to

New Yorkers. These worrying trends are projected to

continue with increased severity into the future.

The present and future harms from climate change

have forced the City to spend billions of dollars to protect itself and its residents. In recent decades, the City

has undertaken tremendous efforts to enhance climate

resiliency, including building sea walls and other

coastal armament, implementing extensive publichealth programs, and taking other measures to address the worsening environmental landscape. See

generally City of New York, PlaNYC: Getting Sustainability

Done

(2023),

available

at

https://perma.cc/2AHK-EWNJ. Studies have placed

the total cost of climate-related infrastructure projects

2

for the City alone at $387 billion. See Rebuild by Design, The Scale of New York’s Adaptation Costs (2026),

available at https://perma.cc/C4M4-PWHD.

In light of these extraordinary costs to keep New

Yorkers healthy and safe and to protect city assets, the

City has a strong interest in the proper resolution of

this appeal to ensure that state tort law remains available to address these harms and prevent taxpayers

from footing the bill. In 2018, the City attempted to

serve those ends by bringing damages claims under

state tort law against several fossil-fuel producers, but

the Second Circuit held that federal common law

preempted those claims. See City of N.Y. v. Chevron

Corp., 993 F.3d 81, 85–95 (2d Cir. 2021). The City continues to believe the Second Circuit was mistaken.

Respondents have now brought their own state tort

claims based on traditional common-law principles

that would require petitioners to pay for the localized

injuries they have inflicted. As respondents have

shown, the Court lacks jurisdiction to review the decision below allowing their claims to proceed. They have

also demonstrated that none of their claims are

preempted in any event. The City joins respondents’

arguments in full.

In this brief, the City writes to highlight petitioners’ misconceptions about the state tort claims at issue. None of those claims would regulate greenhousegas emissions, as petitioners’ preemption theories

3

assume. Instead, each of the claims seeks only to ensure that petitioners, as fossil-fuel producers, sellers,

and marketers, bear their fair share of the expense to

address the localized injuries to which their actions

contribute. To be sure, those injuries flow from emissions. But, as we explain, the tort claims at issue here

in no way seek to control those emissions or set emissions standards, belying a fundamental premise of petitioners’ argument.

SUMMARY OF ARGUMENT

Respondents’ common-law tort claims rank among

the oldest in Anglo-American jurisprudence, as shifting the costs of remediating injuries to those responsible for them is a primary purpose of tort law. See

C.H.S. Fifoot, History and Sources of the Common

Law: Tort and Contract 3–5 (1970); John P. Dawson,

Unjust Enrichment: A Comparative Analysis (1951);

George E. Woodbine, The Origins of the Action of Trespass, 33 Yale L.J. 799, 806–07 (1924). Yet according to

petitioners, because the means through which they inflicted harm involved altering the climate, respondents’ claims would “regulate the inherently interstate

and international issue of global climate change,” and

any attempt to prove tort liability is barred (Brief for

the Petitioners (“Pet. Br.”) 2).

4

That view arises from petitioners’ contention that

constitutional structure prohibits states from “regulat[ing] air and water in their ambient aspects,” leaving states with “no power to regulate interstate emissions” (id. at 21, 31). Likewise, petitioners assert, respondents’ claims represent an effort “to set and enforce [their] own emissions standards against anyone

emitting or causing another to emit greenhouse gases,”

which purportedly conflicts with the Clean Air Act’s

regulatory scheme directing EPA to set such standards

(id. at 44–46).

But these core pillars of petitioners’ preemption arguments are mistaken, as establishing liability on respondents’ nuisance, trespass, and unjust enrichment

claims doesn’t require regulating climate change, controlling interstate emissions, or setting an emissions

standard. Under prevailing tort principles, nuisance

claims permit damages for harms for which it would

be unreasonable not to require compensation, without

regard to the propriety of the defendant’s conduct in

relation to a standard of care. Similarly, trespass

claims require proof that the defendant caused a

harmful invasion of land—again without requiring

value judgments one way or the other about the social

utility of doing so. And unjust-enrichment claims permit liability regardless of whether the defendant engaged in wrongdoing. Thus, for all of these claims, respondents may establish liability by showing that petitioners knowingly caused injuries, without a judicial

5

determination of whether they did so by causing violation of any emissions standard. These claims therefore

neither set any emissions standard nor try to force defendants to hew their conduct to such a standard.

By shifting costs to the responsible parties, respondents’ claims would fulfill tort law’s traditional

purpose of providing compensation for injuries that a

party causes. Such liability may affect petitioners’ behavior in some ways, but it doesn’t amount to a regulation of emissions. What’s more, state courts are well

versed in answering the questions that such suits may

raise, including establishing causation and apportioning damages among parties according to their degree

of responsibility. By providing redress for local, individualized injuries through the types of claims in this

case, state courts can fulfill a well-established tort

function without implicating the preemption concerns

that petitioners invoke.

ARGUMENT

A. Nuisance,

trespass,

and

unjustenrichment claims against fossil-fuel

producers, sellers, and marketers do

not regulate greenhouse gases.

An analysis of the common-law basis for respondents’ claims demonstrates that they do not regulate

greenhouse-gas emissions or require establishing the

6

appropriate standard for such emissions. Instead,

these claims permit liability upon a showing of knowing or intentional infliction of harm, without regard to

whether petitioners’ activity was otherwise wrongful.

1. For nuisance claims, the prevailing view is found

in the Restatement (Second) of Torts. See, e.g., Cox v.

City of Dallas, 256 F.3d 281, 290 (5th Cir. 2001) (nuisance principles described in Restatement formed

“core doctrinal foundation” for modern environmental

laws); City of L.A. v. San Pedro Boat Works, 635 F.3d

440, 452 (9th Cir. 2011) (observing that California follows Restatement); Hoery v. United States, 64 P.3d

214, 218 & n.5 (Colo. 2003) (following Restatement);

Copart Indus., Inc. v. Consol. Edison Co. of N.Y., 41

N.Y.2d 564, 568 (1977) (same). Under this standard, a

private nuisance includes “intentional and unreasonable” invasions of another’s interest in land. Restatement (Second) of Torts § 822. Liability for public nuisance is similar, except the interference impacts “a

right common to the general public” instead of private

land. See id. § 821B & cmt.h.

While both types of nuisance claims thus require

showing unreasonableness, that inquiry differs based

on the relief sought. For an injunction, “the question is

whether the activity itself is so unreasonable that it

must be stopped.” Id. § 821B cmt.i. But respondents

expressly disclaimed any effort to seek an injunction

that would halt “any oil and gas operations or sales,”

or “to enforce emissions controls of any kind” (Joint

7

Appendix 139), and so the standard for injunctions

based on nuisance is inapplicable here.

By contrast, nuisance claims seeking damages—

like those respondents have brought—require showing

that “it is unreasonable to engage in the conduct without paying for the harm done,” not that the underlying

activity itself is unreasonable or lacks social utility.

Restatement (Second) of Torts § 821B cmt.i; see id.

§ 822 cmt.d (differentiating between claims requiring

payment of damages and abatement). That is because

a damages action “does not seek to stop the activity,”

and instead seeks only “to place on the activity the cost

of compensating for the harm it causes.” Id. § 826

cmt.f.

Liability for damages on a nuisance claim thus does

not turn on a violation of a particular standard of

care—such as contributing to a particular level of

greenhouse-gas emissions. See, e.g., Cox, 256 F.3d at

290 & nn.16–17 (plaintiffs need not show negligence or

fault); Pestey v. Cushman, 788 A.2d 496, 506–07

(Conn. 2002) (nuisance available although defendant’s

conduct was “reasonable”); State v. Lloyd A. Fry Roofing Co., 246 N.W.2d 692, 695 (Minn. 1976) (defendant’s “failure to act reasonably … is simply not relevant” to nuisance claim). Instead, the prevailing factor

in determining liability is “[t]he financial burden” that

a defendant’s conduct imposes on others. Restatement

8

(Second) of Torts § 826 cmt.f. In other words, “the focus

is on the noisome condition, not on the actions or intentions of the defendant.” Leslie Kendrick, The Perils

and Promise of Public Nuisance, 132 Yale L.J. 702, 758

(2023); see also, e.g., Crosstex N. Texas Pipeline, L.P. v.

Gardiner, 505 S.W.3d 580, 597–98 (Tex. 2016) (canvassing nuisance jurisprudence and holding that nuisance does not require that “defendant’s conduct or

land use was unreasonable”); Wood v. Picillo, 443 A.2d

1244, 1247 (R.I. 1982) (“[P]laintiffs may recover in nuisance despite the otherwise nontortious nature of the

conduct which creates the injury.”).

For damages claims on a nuisance theory, the unreasonableness inquiry also does not require the court

to assess whether the injury outweighs the usefulness

of the harmful activity, further belying petitioners’

claim that a policy judgment about levels of greenhouse-gas emissions is required. The law differentiates between claims for injunctions and damages on

this score too, with injunctions generally available

only when the harms imposed are greater than the social value of the challenged conduct. Restatement (Second) of Torts § 826 cmt.f.

But for damages claims, “[i]t may be reasonable to

continue an important activity if payment is made for

the harm it is causing but unreasonable to initiate or

continue it without paying.” Id. § 822 cmt.d. That is so

even for activities that have “great utility” and comparatively smaller harms. Id. § 821B cmt.i; see id.

9

§ 822 cmt.d (invasion may be unreasonable although

“utility of the conduct is great and the amount of harm

is relatively small”). Unlike for injunctions, comparing

general utility with the harm suffered is “incomplete

and therefore inappropriate” for assessing damages.

Id. § 826 cmt.f. For that reason too, damages on a nuisance theory do not require establishing an appropriate “baseline” level for greenhouse-gas emissions (Pet.

Br. 36) given that activity that is socially useful and

reasonable may still require compensation.

Many jurisdictions have applied this approach to

nuisance claims, focusing on the harm caused by a defendant’s conduct and whether compensation is required as opposed to the reasonableness or value of the

defendant’s conduct on its own. For example, under

Colorado law, courts may award damages on a nuisance claim although equity does not support an injunction, which may include circumstances where the

underlying conduct is legislatively authorized. See

Hobbs v. Smith, 493 P.2d 1352, 302–04 (Colo. 1972)

(citing Robinson Brick Co. v. Luthi, 169 P.2d 171 (Colo.

1946)). And in the well-known case of Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 222, 225–26 (1970),

New York’s highest court held that while a defendant’s

cement plant was too valuable for its operations to be

enjoined, damages were still appropriate to shift the

environmental costs of the plant’s operation onto those

causing the injury. As Boomer recognized,

10

apportioning such costs merely settled the rights of the

parties before it and was not a means to achieve “broad

public objectives” or implement a pollution-control policy. Id. at 222–23.

Many other courts, including this one, have applied

similar principles when plaintiffs seek compensation

for a defendant’s harmful conduct on a nuisance theory. For example, in City of Harrisonville v. W. S.

Dickey Clay Manufacturing Co., 289 U.S. 334, 336–39

(1933), the Court applied Missouri law in determining

that damages should be awarded for the “discharge of

the effluent into [a] creek,” even though an injunction

shutting down the defendant city’s sewage system

would be “grossly disproportionate.” Awarding such

damages did not require assessing whether the city’s

conduct was reasonable, and the Court instead focused

on the plaintiff’s monetary loss. Id. 1

Similarly, respondents’ claims here do not require

determining whether petitioners’ conduct contributes

1 Other jurisdictions apply similar principles for damages claims

on a nuisance theory. See Galipeau v. Bixby ex rel. Tr. of Fong,

476 P.3d 1129, 1137 (Alaska 2020); Haynes v. Haas, 463 P.3d

1109, 1118 (Haw. 2020); City of Monticello v. Rankin, 521 S.W.2d

79, 81 (Ky. 1975); Baldwin v. McClendon, 288 So.2d 761, 766–67

(Ala. 1974); Furrer v. Talent Irrigation Dist., 466 P.2d 605, 613

(Or. 1970); Jost v. Dairyland Power Coop., 172 N.W.2d 647, 653–

654 (Wis. 1969); Riter v. Keokuk Electro-Metals Co., 82 N.W.2d

151, 159 (Iowa 1957); City of Phoenix v. Johnson, 75 P.2d 30, 36–

37 (Ariz. 1938); Owen v. Phillips, 73 Ind. 284, 287 (1881); Mayes

v. Tabor, 334 S.E.2d 489, 490–91 (N.C. Ct. App. 1985).

11

to a reasonable level of greenhouse gases. The claims

therefore do not seek to force—or even incentivize—

petitioners to conform their conduct to any state-law

emissions standard or other standard of care. Instead,

damages liability would rest on the finding that petitioners’ conduct has caused injury that respondents

should not have to bear.

2. Nor would respondents’ trespass claims require

setting an emissions standard. For example, the prevailing view is that “liability for trespass exists

whether or not the trespass was done in good faith and

with reasonable care.” 75 Am. Jur. 2d Trespass § 9; see,

e.g., 104 N.Y. Jur. 2d Trespass § 8 (“[T]respass is actionable notwithstanding that the trespassing conduct

was not unlawful.”); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 933 (Colo. 1997) (trespass “does not

require a plaintiff to prove the existence of a legal duty

and present evidence of an applicable standard of

care”). This claim instead would require respondents

to establish only that petitioners acted intentionally or

with knowledge that the conduct would, with “substantial certainty,” result in intrusion. Restatement

(Second) of Torts § 158 cmt.i; see Hoery, 64 P.3d at 217

(defendant liable in trespass for “set[ting] in motion a

force which, in the usual course of events, will damage

property of another”). But that has nothing to do with

establishing an appropriate level of emissions, and

such a claim is viable regardless of any judgment

12

about what those levels should be. See Dan B. Dobbs

et al., The Law of Torts § 50 (2026) (acting with

knowledge that intrusion is “substantially” certain to

result is sufficient for trespass).

To be sure, respondents would have to prove a

chain of causation linking petitioners’ fossil-fuel production, sale, or marketing to the intrusion. See Restatement (Second) of Torts § 158 (no trespass liability

where intrusion was “not caused by any act of [defendant’s]”); Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d

377, 390 (Colo. 2001) (“intangible intrusion” supports

trespass claim if plaintiff can prove causation). But so

long as petitioners’ conduct was intentional—i.e.,

“done with knowledge that it will to a substantial certainty result in the entry of the foreign matter”—the

claim would not purport to assess whether petitioners’

actions were otherwise unlawful or unreasonable. Hoery, 64 P.3d at 218 (quoting Restatement (Second) of

Torts § 158(a) cmt.i); see In re Methyl Tertiary Butyl

Ether (MTBE) Products Liab. Litig., 725 F.3d 65, 119

(2d Cir 2013) (trespasser liable if he “intend[s] the act

which amounts to or produces the unlawful invasion,”

even if “damaging consequence[s]” were unexpected).

In other words, like a nuisance claim, it is the intentional act resulting in an invasion that determines liability, not the violation of a particular standard of care,

regarding emissions or otherwise.

3. Adjudicating respondents’ unjust-enrichment

claim also would not require courts to weigh in on the

13

acceptable level of emissions. Such claims generally

require showing that a defendant received a benefit at

a plaintiff’s expense under circumstances where the

enrichment was “unjust.” 66 Am. Jur. 2d Restitution

and Implied Contracts § 11; see, e.g., Restatement

(Third) of Restitution and Unjust Enrichment § 1 (enrichment is unjust to the extent it lacks “adequate legal basis”); Robinson v. Colo. State Lottery Div., 179

P.3d 998, 1007 (Colo. 2008) (claim established upon

showing that it would be “unjust” for defendant to retain benefit without paying). While determining

whether injustice exists may vary from case to case,

such a claim typically does not require showing “malfeasance.” Lewis v. Lewis, 189 P.3d 1134, 1142 (Colo.

2008); see 66 Am. Jur. 2d Restitution and Implied Contracts § 11 (unjust enrichment does not require showing “a wrongful or unlawful act”); Simonds v. Simonds,

45 N.Y.2d 233, 242 (1978) (unjust enrichment “does

not require the performance of any wrongful act by the

one enriched,” and liability possible even against

“[i]nnocent parties”). Such claims can also be premised

upon “common-law tort[s],” like trespass, which as

noted do not require establishing a violation of a particular standard of care. Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1205 (Colo. App. 2009).

Accordingly, none of respondents’ claims require

showing that petitioners’ conduct caused emissions deviating from a particular standard of care or emissions

14

standard. Perforce, the claims would not seek to compel or influence petitioners to hew to any emissions

standard.

4. In arguing otherwise, petitioners ignore the requirements of these common-law claims. They point to

the requirement for nuisance claims to assess reasonableness (Pet. Br. 36), but they look past the hornbook

law that reasonableness for respondents’ nuisance

claims focuses on the reasonableness of compensation

(or lack thereof), not of petitioners’ conduct. See William L. Prosser & W. Page Keeton, The Law of Torts

§ 88 (5th ed. 1984 & Supp. 1988) (“[I]nterference with

the plaintiff’s use of his property can be unreasonable

even when the defendant’s conduct is reasonable.”).

Petitioners further observe that trespass requires a

“physical intrusion,” but they cite nothing for the proposition that demonstrating such an intrusion would require a judgment on “the appropriate level of greenhouse-gas emissions” (Pet. Br. 36). And while they also

argue that unjust enrichment requires demonstrating

circumstances that are “unjust” (id.), there too they ignore that satisfying this element does not require

demonstrating that their conduct deviated from some

standard of care. Because petitioners cannot establish

that respondents’ claims regulate greenhouse gases in

a way that conflicts with federal law, their preemption

theories fall short.

15

B. Requiring defendants to bear the costs

of their activities is a well-established

function of state tort law.

Compensating local governments for the costs of

addressing climate change would advance the primary

purpose of state tort law. As Justice Holmes described

it, “[t]he general purpose of the law of torts is to secure

a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors, not because they are wrong, but because they are

harms.” Mark A. Geistfeld, The Coherence of Compensation-Deterrence Theory in Tort Law, 61 DePaul L.

Rev. 383, 395 (2012) (quoting Oliver Wendell Holmes,

The Common Law 115 (Mark DeWolfe Howe ed. Harvard Univ. Press 1963) (1881)). And so, it is hornbook

law that damages in tort are meant “to give compensation, indemnity or restitution for harms.” Restatement (Second) of Torts § 901; see, e.g., MTBE, 725 F.3d

at 126 (purpose of compensatory damages is “to compensate the victim for injuries actually suffered or expected to be suffered”). That is precisely what is accomplished by shifting liability to petitioners for the consequences of their actions, without regard to levels of

greenhouse-gas emissions.

Contrary to petitioners’ contentions (Pet. Br. 38–

39), requiring them to pay the costs to remediate

harms from their conduct is not equivalent to a

16

“general purpose regulatory device” governing greenhouse-gas emissions. See Douglas A. Kysar, The Public

Life of Private Law: Tort Law as a Risk Regulation

Mechanism, 9 Eur. J. Risk Reg. 48, 57 (2018) (analyzing tort suits over climate alteration). Claims like respondents’ merely seek to hold petitioners accountable

for their injury-causing conduct according to statecommon-law principles. State courts have resolved

these types of inter-party disputes for centuries, and

adjudicating “traditional issues of right and responsibility that are raised by climate change tort suits as

tort suits” does not transform them into “regulatory actions that demand judicial forbearance.” Id. at 65.

Petitioners argue that preemption is necessary because otherwise a plaintiff “will be able to set and enforce its own emissions standards” (Pet. Br. 46). As we

have shown, they are mistaken as to the common-law

claims at issue here. Their point is also inapt for a second reason: because respondents’ claims do not target

defendants as emitters, but as fossil-fuel producers,

sellers, and marketers. This Court has never suggested that tort liability operates as regulation of an

activity downstream from the conduct that the suit addresses. Petitioners cite Kurns v. Railroad Friction

Products Corp., 565 U.S. 625 (2012) (Pet. Br. 38–39),

but the preempted state-law claims there sought liability for conduct that was directly regulated by federal

law. See Kurns, 565 U.S. at 632–34 (statute directed at

17

“equipment of locomotives” preempted claims against

manufacturer of locomotive parts).

As respondents have also shown (id. at 49–50), the

fact that petitioners may choose to modify their conduct in response to tort liability in ways that may bear

on emissions doesn’t mean that such liability would

regulate emissions. See Int’l Paper Co. v. Ouellette, 479

U.S. 481, 497 (1987) (Clean Water Act precludes only

state suits that require incompatible “standards of effluent control” and not other claims). Petitioners can

decide for themselves how to allocate any increased

costs imposed upon them, including by accepting reduced profits, increasing prices, or making productionside changes. Even if some of those modifications could

theoretically impact greenhouse-gas emissions, leaving that decision in petitioners’ hands cannot be construed as a regulation of downstream emissions subject to preemption. See Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41, 50 (1987) (regulations are those laws “specifically directed” at industry, not merely those with

an “impact”); City & Cnty. of Honolulu v. Sunoco LP,

537 P.3d 1173, 1202 (Haw. 2023) (same). 2

2 This point applies only more plainly to deception-based claims.

As respondents demonstrated, liability for deception has nothing

to do with the regulation of emissions, and petitioners could avoid

liability merely by “telling the truth” (Resp. Br. 47).

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Nor would such suits amount to regulation of

greenhouse-gas emissions if, as petitioners assume,

successful tort claims lead to significant financial liability (Pet. Br. 3, 37–38). While tort liability would

shift the costs of petitioners’ conduct back to them,

that is true of any damages claim and is not grounds

for preempting tort’s traditional function of adjudicating parties’ individual rights, including determining

who should bear the costs of injuries. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 489 & n.7 (2008) (damages claim did not call for new environmental standards or threaten “federal regulatory goals”). And, if

necessary, state law is also capable of calibrating damages awards to avoid stifling useful activity, including

by considering the burdens that compensation may impose. See Restatement (Second) of Torts § 826 cmt.f.

Respondents’ state tort claims also don’t amount to

a regulation of greenhouse gases merely because those

claims may “implicate” emissions that are not attributable to petitioners’ products (Pet. Br. 35–36). Respondents seek to hold petitioners responsible only for their

own conduct, not global emissions worldwide. And as

noted, while establishing the causal chain linking petitioners to respondents’ injuries may prove to be complex, state courts are well versed in considering issues

of causation. See Dobbs, supra, § 26 (observing that

states have “plenary power except as limited by the

Constitution” while federal courts have “almost no admitted common law work to do”). That includes

19

apportioning damages attributable to a particular defendant’s conduct, particularly where respondents, as

here, do not seek an injunction ending the harmful

conduct entirely. See Kendrick, supra, at 766 (assessing degree of responsibility among multiple actors

“much simpler” for damages than injunctions).

Respondents’ claims thus fall well within the

standard bounds of state tort law assigning the cost of

injuries to those properly responsible for shouldering

them. Allowing those claims to proceed does not introduce competing regulations of emissions that are

preempted by structural constitutional principles or

the Clean Air Act, as petitioners argue.

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CONCLUSION

The petition should be dismissed for lack of jurisdiction. In the alternative, the judgment should be affirmed.

Respectfully submitted,

RICHARD DEARING*

CLAUDE S. PLATTON

JONATHAN SCHOEPP-WONG

*Counsel of Record

STEVEN BANKS

Corporation Counsel of

the City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

Counsel for Amicus

Curiae