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`
`No. 19-1818
`
`United States Court of Appeals for the First Circuit
`____________________
`STATE OF RHODE ISLAND,
`
`
`
`
`
`Plaintiff-Appellee,
`
`v.
`SHELL OIL PRODUCTS COMPANY, LLC; CHEVRON CORP.; CHEVRON
`USA, INC.; EXXON MOBIL CORP.; BP, PLC; BP AMERICA, INC.; BP
`PRODUCTS NORTH AMERICA, INC.; ROYAL DUTCH SHELL PLC;
`MOTIVA ENTERPRISES, LLC; CITGO PETROLEUM CORP.;
`CONOCOPHILLIPS; CONOCOPHILLIPS COMPANY; PHILLIPS 66;
`MARATHON OIL COMPANY; MARATHON OIL CORPORATION;
`MARATHON PETROLEUM CORP.; MARATHON PETROLEUM COMPANY,
`LP; SPEEDWAY, LLC; HESS CORP.; LUKOIL PAN AMERICAS LLC;
`and DOES 1-100,
`
`
`
`
`
`
`Defendants-Appellants,
`GETTY PETROLEUM MARKETING, INC.,
`
`
`
`
`
`Defendant.
`
`____________________
`Appeal from the U.S. District Court
`for the District of Rhode Island, No. 1:18-cv-00395-WES-LDA
`(The Honorable William E. Smith)
`
`AMICI CURIAE BRIEF OF THE NATIONAL ASSOCIATION OF
`MANUFACTURERS, ENERGY MARKETERS OF AMERICA, AND
`NATIONAL ASSOCIATION OF CONVENIENCE STORES
`IN SUPPORT OF APPELLANTS AND REVERSAL
`____________________
`Philip S. Goldberg
` (Counsel of Record)
`Christopher E. Appel
`SHOOK HARDY & BACON L.L.P.
`1800 K Street, N.W., Suite 1000
`Washington, D.C. 20006
`(202) 783-8400
`pgoldberg@shb.com
`Attorneys for Amici Curiae
`
`Linda E. Kelly
`Patrick Hedren
`Erica Klenicki
`MANUFACTURERS’ CENTER
` FOR LEGAL ACTION
`733 10th Street, N.W., Suite 700
`Washington, D.C. 20001
`(202) 637-3000
`Of Counsel for the National
`Association of Manufacturers
`
`

`

`
`
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`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Rules 26.1 and 29(a)(4)(A) of the Federal Rules of Appellate
`
`Procedure, counsel for amici curiae hereby state that the National Association of
`
`Manufacturers, Energy Marketers of America, and National Association of
`
`Convenience Stores have no parent corporations and have issued no stock.
`
`
`
`Dated: August 4, 2021
`
`
`
`
`
`
`
`
`
`
`
` /s/ Philip S. Goldberg
`Philip S. Goldberg
`
`
`
`
`
`
`

`

`
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`TABLE OF CONTENTS
`
`
`TABLE OF AUTHORITIES .................................................................................... ii
`
`INTEREST OF AMICI CURIAE ............................................................................... 1
`
`INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1
`
`ARGUMENT ............................................................................................................. 3
`
`I.
`
`ADJUDICATING ALLEGATIONS OVER EFFECTS OF GLOBAL
`CLIMATE CHANGE REQUIRES FEDERAL JURISDICTION .................. 3
`
`THIS CASE IS PART OF A LITIGATION CAMPAIGN TO HAVE
`STATE COURTS UNDERMINE THE U.S. SUPREME COURT’S
`JURISPRUDENCE ON CLIMATE LAWSUITS .......................................... 6
`
`III. CLAIMS ALLEGING HARMS FROM CLIMATE CHANGE
`PRESENT UNIQUELY FEDERAL INTERESTS ......................................... 8
`
`IV. THE COURT SHOULD MAINTAIN THE INTEGRITY OF THE
`FEDERAL-STATE DUAL COURT SYSTEM ............................................ 11
`CONCLUSION ........................................................................................................ 12
`
`CERTIFICATE OF COMPLIANCE .................................................................. END
`
`CERTIFICATE OF SERVICE ........................................................................... END
`
`
`
`
`II.
`
`
`
`
`
`i
`
`

`

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`
`TABLE OF AUTHORITIES
`
`
`Cases
`
`Am. Elec. Power v. Connecticut, 564 U.S. 410 (2011) .....................................passim
`
`BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021) ............ 10
`
`City of Milwaukee v. Illinois, 451 U.S. 304 (1981) ................................................... 9
`
`City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021) ........................ 9, 12
`
`City of Oakland v. BP P.L.C., 325 F. Supp. 3d 1017 (N.D. Cal. 2018) .................. 10
`
`Comer v. Murphy Oil USA, Inc., 718 F.3d 460 (5th Cir. 2013) ................................ 5
`
`Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ..................................................... 3
`
`Native Village of Kivalina v. ExxonMobil Corp.,
`696 F.3d 849 (9th Cir. 2012) ........................................................................... 5
`
`North Carolina v. Tennessee Valley Auth., 615 F.3d 291 (4th Cir. 2010) .......... 9-10
`
`Rivet v. Regions Bank of Louisiana, 522 U.S. 470 (1998) ...................................... 11
`
`United States v. Standard Oil Co. of Cal., 332 U.S. 301 (1947) ............................... 4
`
`Watson v. Philip Morris Cos., 551 U.S. 142 (2007) .......................................... 10-11
`
`Other Authorities
`
`Amicus Brief of Indiana and Fourteen Other States in Support of
`Dismissal, City of Oakland v. BP, No. 18-1663 (9th Cir. filed
`Apr. 19, 2018) ................................................................................................ 12
`
`Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox
`of the Special Injury Rule, 28 Ecol. L.Q. 755 (2001) ...................................... 9
`
`Atmospheric Recovery Litigation: Making the Fossil Fuel Companies
`Pay for Cleaning up the Atmosphere, YouTube, May 23, 2018 ..................... 7
`
`
`
`ii
`
`

`

`
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`
`Beyond the Courtroom, Manufacturers’ Accountability Project, at
`https://mfgaccountabilityproject.org/beyond-the-courtroom .......................... 8
`
`Complaint, City of Charleston v. Brabham Oil Co., Inc., No. 2020-
`CP-10 (S.C. Ct. Comm. Pleas Sept. 9, 2020) .................................................. 7
`
`Brooks Dubose, Annapolis Sues 26 Oil and Gas Companies for
`their Role in Contributing to Climate Change, Cap. Gazette,
`Feb. 23, 2021 ................................................................................................. 11
`
`Editorial, Climate Lawsuits Take a Hit, Wall St. J., May 17, 2021 .......................... 6
`
`Entire January Meeting Agenda at Rockefeller Family Foundation,
`Wash. Free Beacon, Apr. 2016, available at
`https://freebeacon.com/wp-content/uploads/2016/04/Entire-
`January-meeting-agenda-at-RFF-1-1.pdf ........................................................ 7
`
`Establishing Accountability for Climate Damages: Lessons from
`Tobacco Control, Summary of the Workshop on Climate
`Accountability, Public Opinion, and Legal Strategies, Union
`of Concerned Scientists & Climate Accountability Institute
`(Oct. 2012), available at https://www.ucsusa.org/sites/default/
`files/attach/2016/04/establishing-accountability-climate-
`change-damages-lessons-tobacco-control.pdf ............................................. 6, 7
`
`Findings of Fact and Conclusions of Law, In re ExxonMobil Corp.,
`No. 096-297222-18 (Tex. Dist. Ct.–Tarrant Cty. Apr. 24, 2018) ................... 6
`
`Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort,
`71 U. Cin. L. Rev. 741 (2003) ....................................................................... 10
`
`Larry Neumeister, Judge Shows Skepticism to New York Climate
`Change Lawsuit, Assoc. Press, June 13, 2018, at
`https://apnews.com/dda1f33e613f450bae3b8802032bc449 ......................... 10
`
`Press Release, Rhode Island Attorney General Kilmartin Files Lawsuit
`Against Fossil Fuel Companies for Costs and Consequences of
`Climate Change, Office of the Attorney General, July 2, 2018,
`available at https://www.ri.gov/press/view/33626 ....................................... 11
`
`
`
`iii
`
`

`

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`
`Dawn Reeves, As Climate Suits Keeps Issue Alive, Nuisance Cases
`Reach Key Venue Rulings, Inside EPA, Jan. 6, 2020, at
`https://insideepa.com/outlook/climate-suits-keeps-issue-
`alive-nuisance-cases-reach-key-venue-rulings .............................................. 12
`
`
`
`
`
`
`
`
`
`iv
`
`

`

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`
`
`INTEREST OF AMICI CURIAE1
`
`Amici curiae are the National Association of Manufacturers (“NAM”),
`
`Energy Marketers of America (“EMA”), and National Association of Convenience
`
`Stores (“NACS”). Amici are dedicated to the manufacturing and sale of safe,
`
`innovative and sustainable products that provide consumer benefits while protecting
`
`human health and the environment, and fully support national efforts to address
`
`climate change. They have a substantial interest in attempts by state and local
`
`governments––here, Rhode Island––to subject their members to unprincipled state
`
`liability for harms associated with climate change. Climate change is one of the most
`
`important public policy issues of our time, and one, as the U.S. Supreme Court found
`
`in Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011), that plainly implicates
`
`federal questions and complex policymaking.
`
`INTRODUCTION AND SUMMARY OF THE ARGUMENT
`
`This case is part of a coordinated, national litigation campaign over global
`
`climate change and the debate as to how to mitigate impacts of modern energy use.
`
`Amici appreciate that developing new technologies to reduce greenhouse gas
`
`(“GHG”) emissions, make energy more efficient, and modify infrastructure to deal
`
`
`1
`The parties provided consent to the filing of amicus curiae briefs. No counsel
`for a party authored this brief in whole or in part; and no party, party’s counsel, or
`other person or entity—other than amicus curiae or its counsel—contributed money
`intended to fund preparing or submitting the brief.
`
`1
`
`

`

`
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`
`with the impacts of climate change has become an international imperative. State
`
`tort suits against the energy sector cannot achieve these objectives, and state courts
`
`are not the appropriate forums to decide these critical national issues.
`
` In Am. Elec. Power Co. v. Connecticut, the U.S. Supreme Court addressed
`
`the first wave of this litigation campaign. 564 U.S. 410 (2011) (hereafter “AEP”). It
`
`unanimously held claims alleging harm from the effects of global climate change
`
`sound in federal common law and Congress displaced such claims when it enacted
`
`the Clean Air Act. See id. at 424. Soon after, the strategists behind the litigation
`
`campaign began developing ideas for trying to circumvent AEP. They looked for
`
`legal theories that would achieve comparable national goals, but appear different.
`
`The focal point of this effort, as here, is re-casting federal public nuisance claims for
`
`injunctive relief against the utilities in AEP as state public nuisance lawsuits for
`
`damages against energy manufacturers.
`
`This case is one of two dozen nearly identical lawsuits filed since 2017 in
`
`carefully chosen states based on this same premise. Each complaint asserts that
`
`various defendants’ production, promotion, and sale of oil, gas or other carbon
`
`energy is a public nuisance under state common law or violates another state law.
`
`To adjudicate the claims, though, the state courts must create new rules and standards
`
`governing the international production, sale, promotion, and use of fossil fuels. But
`
`2
`
`

`

`
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`as this litigation campaign demonstrates, these lawsuits are not specific to any
`
`company or community. They are interstate and international in nature and scope.
`
`Amici request the Court to determine that putative state-law claims alleging
`
`harm from global climate change are removable because they arise under federal
`
`law. As the Supreme Court explained in AEP, the climate change issues in these
`
`cases are of major national significance. The climate litigation campaign undermines
`
`important national energy objectives, including federal efforts on the climate, along
`
`with energy independence, the stability of the electric grid, and energy affordability.
`
`The Constitution requires these interstate questions to be decided in a federal forum.
`
`ARGUMENT
`
`I.
`
`ADJUDICATING ALLEGATIONS OVER EFFECTS OF GLOBAL
`CLIMATE CHANGE REQUIRES FEDERAL JURISDICTION
`
`In AEP, the Supreme Court unequivocally stated that climate tort litigation
`
`raises issues of “special federal interest.” 564 U.S. at 424. Before the Supreme Court
`
`ruled the Clean Air Act displaced any federal common law claims with respect to
`
`carbon emissions from fossil fuels, it explained that federal common law addresses
`
`subjects “where the basic scheme of the Constitution so demands,” including “air
`
`and water in their ambient or interstate aspects.” Id. at 422 (quoting Illinois v. City
`
`of Milwaukee, 406 U.S. 91, 103 (1972)). This rule of law applies to the climate
`
`change claims here in equal force as it did in AEP.
`
`3
`
`

`

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`The factual predicate is the same here: global climate change is caused by
`
`GHGs that are “naturally present in the atmosphere and . . . also emitted by human
`
`activities,” including the use of fossil fuels. Id. at 416. These GHGs combined with
`
`other global GHG sources and have accumulated in the atmosphere for more than a
`
`century since the industrial revolution. “By contributing to global warming, the
`
`plaintiffs asserted, the defendants’ carbon-dioxide emissions created a ‘substantial
`
`and unreasonable interference with public rights,’ in violation of the federal common
`
`law or interstate nuisance, or in the alternative, of state tort law.” Id. at 418.
`
`In AEP, the Supreme Court followed the two-step analysis from United States
`
`v. Standard Oil Co. of Cal., 332 U.S. 301 (1947) in dismissing the claims. First, it
`
`determined the claims arose under federal common law and that “borrowing the law
`
`of a particular State would be inappropriate.” AEP, 564 U.S. at 422 (stating the
`
`claims are “meet for federal law governance”). There are certain claims that invoke
`
`the “interests, powers, and relations of the Federal Government as to require uniform
`
`national disposition rather than diversified state rulings.” Standard Oil, 332 U.S. at
`
`307. Determining rights and responsibilities for global climate change is one of
`
`them. Second, and only then, did the Supreme Court hold that Congress displaced
`
`remedies that might be granted under federal common law through the Clean Air
`
`Act. See AEP, 564 U.S. at 425. Only the initial inquiry—whether the subject requires
`
`a uniform federal rule—goes to jurisdiction and is before this Court at this time.
`
`4
`
`

`

`
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`When the Supreme Court decided AEP, two other climate tort cases were
`
`pending. An Alaskan village was suing many of the same energy producers as here
`
`under federal law for damages related to sea level rise. See Native Village of Kivalina
`
`v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012). In Mississippi, homeowners
`
`sued energy producers under state law for property damage from Hurricane Katrina.
`
`See Comer v. Murphy Oil USA, Inc., 718 F.3d 460 (5th Cir. 2013). The allegations
`
`were the defendants’ products caused climate change, which caused the hurricane to
`
`be more intense. See id. Thus, these cases have direct parallels to the case at bar.
`
`After AEP, both cases were dismissed. As the Ninth Circuit explained, even
`
`though the legal theories in Kivalina differed slightly from AEP, given the Supreme
`
`Court’s message, “it would be incongruous to allow [such litigation] to be revived
`
`in another form.” Kivalina, 696 F.3d at 857. Climate suits alleging harm from
`
`emissions across the globe are exactly the sort of “transboundary pollution” claims
`
`the Constitution exclusively committed to federal law. Id. at 855. For years the law
`
`has been clear: regardless of how the claims were packaged—whether over energy
`
`use or products, by public or private plaintiffs, under federal or state law, or for
`
`injunctive relief or damages—litigation alleging harms from effects of global
`
`climate change implicates uniquely federal interests.
`
`5
`
`

`

`
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`II. THIS CASE IS PART OF A LITIGATION CAMPAIGN TO HAVE
`STATE COURTS UNDERMINE THE U.S. SUPREME COURT’S
`JURISPRUDENCE ON CLIMATE LAWSUITS
`Strategists behind this litigation campaign were undeterred. They convened in
`
`California to brainstorm on how to re-package the litigation once again in hopes of
`
`achieving their own national priorities. See Findings of Fact and Conclusions of
`
`Law, In re ExxonMobil Corp., No. 096-297222-18 (Tex. Dist. Ct.–Tarrant Cty. Apr.
`
`24, 2018), at 3. They decided to file multiple lawsuits, try to “side-step federal courts
`
`and Supreme Court precedent,” and convince state courts to help them advance their
`
`national agenda. Editorial, Climate Lawsuits Take a Hit, Wall St. J., May 17, 2021.
`
`Organizers of the conference published their discussions. See Establishing
`
`Accountability for Climate Damages: Lessons from Tobacco Control, Summary of
`
`the Workshop on Climate Accountability, Public Opinion, and Legal Strategies,
`
`Union of Concerned Scientists & Climate Accountability Institute (Oct. 2012).
`
`Despite AEP, they said “the courts offer the best current hope” for imposing their
`
`national public policy agenda over fossil fuel emissions. Id. at 28. They discussed
`
`“the merits of legal strategies that target major carbon emitters, such as utilities [as
`
`in AEP], versus those that target carbon producers.” Id. at 12. And they talked
`
`through various causes of action, “with suggestions ranging from lawsuits brought
`
`under public nuisance laws,” such as the one here, “to libel claims.” Id. at 11.
`
`6
`
`

`

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`Given AEP, they emphasized making the lawsuits look like traditional
`
`damages claims rather than directly asking a court to regulate emissions or to put a
`
`price on carbon use. See id. at 13. As one participant said, “Even if your ultimate
`
`goal might be to shut down a company, you still might be wise to start out by asking
`
`for compensation for injured parties.” Id. They also decided to pursue claims under
`
`state law and discussed “the importance of framing a compelling public narrative,”
`
`including “naming [the] issue or campaign” to generate “outrage.” Id. at 21, 28.2 At
`
`a follow up session in 2016, they explained that “creating scandal” through lawsuits
`
`would also help “delegitimize” the companies politically. See Entire January
`
`Meeting Agenda at Rockefeller Family Foundation, Wash. Free Beacon, Apr. 2016.
`
`Lawsuits following these tenets were filed starting in 2017. As discussed
`
`above, they are meant to look different from AEP by targeting energy producers,
`
`invoking state laws, and seeking abatement and damages. To name the litigation
`
`crusade, supporters asserted some widespread “campaign of deception” involving
`
`the many, various companies named in the lawsuits. See, e.g., Complaint, City of
`
`Charleston v. Brabham Oil Co., Inc., No. 2020-CP-10 (S.C. Ct. Comm. Pleas Sept.
`
`9, 2020) (using the phrase 23 times). This lawsuit names nearly two dozen
`
`
`2 As one advocate said, “sea walls and repairing roads won’t do anything to fix our
`global climate system, but it will drain the profits of the fossil fuel companies.”
`Atmospheric Recovery Litigation: Making the Fossil Fuel Companies Pay for
`Cleaning up the Atmosphere, YouTube, May 23, 2018.
`
`7
`
`

`

`
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`companies, others name only one or two, whereas some name upwards of thirty,
`
`including local companies to try to keep cases in state court. This ever-changing list
`
`of companies alleged to have participated in this so-called “campaign of deception”
`
`highlights the specious nature of the narrative.
`
`Supporters of this litigation campaign have used political-style tactics, both to
`
`drive the litigation and to leverage the litigation to achieve their true, extrajudicial
`
`goals. They have taken out advertisements and billboards blaming energy companies
`
`for climate change and urging public officials to file lawsuits, as well as hosted
`
`symposiums and press conferences to generate media attention. See generally
`
`Beyond the Courtroom, Manufacturers’ Accountability Project3 (detailing this
`
`litigation campaign). Thus, unlike traditional state tort suits, success here includes
`
`merely filing and maintaining state suits they can use for national policy goals.
`
`III. CLAIMS ALLEGING HARMS FROM CLIMATE CHANGE
`PRESENT UNIQUELY FEDERAL INTERESTS
`The state law theories in this litigation are mere fig leaves. Unlike traditional
`
`local property damage cases, the theory of harm here is not moored to any plaintiff,
`
`defendant, location or jurisdiction. As the Second Circuit stated in response to a
`
`similar lawsuit by the City of New York, “we are told that this is merely a local spat
`
`about the City’s eroding shoreline, which will have no appreciable effect on national
`
`
`3 https://mfgaccountabilityproject.org/beyond-the-courtroom.
`
`8
`
`

`

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`energy or environmental policy. We disagree. Artful pleading cannot transform the
`
`City’s complaint into anything other than a suit over global greenhouse gas
`
`emissions.” City of New York v. Chevron Corp., 993 F.3d 81, 91 (2d Cir. 2021).
`
`As the Second Circuit explained, merely referencing state claims and asking
`
`for compensation does not make these federal matters suddenly suitable for state
`
`courts. This litigation, the court stated, seeks to subject energy manufacturers to state
`
`tort liability “for the effects of emissions made around the globe over the past several
`
`hundred years,” which includes “conduct occurring simultaneously across just about
`
`every jurisdiction on the planet.” Id. at 92. “Such a sprawling case is simply beyond
`
`the limits of state tort law.” Id. Thus, as the Second Circuit did, this Court should
`
`consider the substance of the claims, not merely the labels the complaint uses.
`
`Since AEP, state public nuisance has been the tort of choice for climate suits
`
`because its “vague” sounding terms are often misunderstood. City of Milwaukee v.
`
`Illinois, 451 U.S. 304, 317 (1981). Architects of this effort have bemoaned their
`
`fifty-year failure to transform public nuisance into a tool for industry liability. See
`
`Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the
`
`Special Injury Rule, 28 Ecol. L.Q. 755, 838 (2001). The allure of such a theory is
`
`understandable: the suits are funded by outside counsel, promise funding for local
`
`projects, and target particular products. But they are unfounded, and courts have
`
`been skeptical of them. See, e.g., North Carolina v. Tennessee Valley Auth., 615 F.3d
`
`9
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`

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`291 (4th Cir. 2010); see also Donald G. Gifford, Public Nuisance as a Mass Products
`
`Liability Tort, 71 U. Cin. L. Rev. 741 (2003) (discussing cases).
`
`In these cases, masking federal issues under state public nuisance law does
`
`not stand up to minimal scrutiny. The accumulation of GHGs in the atmosphere,
`
`global warming-induced sea level rise around the world, and the international
`
`promotion and sale of fossil fuels all exist far outside any local government’s
`
`authority. Also, as counsel acknowledged in a sister case, their “campaign of
`
`deception” narrative is only a “plus factor” and not required for their liability theory.
`
`City of Oakland v. BP P.L.C., 325 F. Supp. 3d 1017, 1022 (N.D. Cal. 2018).
`
`Federal judges have seen through these attempts to mischaracterize the federal
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`nature of this litigation. For example, Judge Keenan, who dismissed New York
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`City’s climate lawsuit, observed the City’s claims were “trying to dress a wolf up in
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`sheep’s clothing” by “hiding an emissions case.” Larry Neumeister, Judge Shows
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`Skepticism to New York Climate Change Lawsuit, Assoc. Press, June 13, 2018. This
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`is the context in which the Supreme Court, in BP P.L.C. v. Mayor & City Council of
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`Baltimore, 141 S. Ct. 1532 (2021), remanded these cases for further review.
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`Plaintiffs should not be able to avoid federal scrutiny by painting federal
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`claims with a state law brush. The Supreme Court has appreciated that state court
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`proceedings “may reflect ‘local prejudice’ against unpopular federal laws” or
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`defendants. Watson v. Philip Morris Cos., 551 U.S. 142, 150 (2007). Indeed,
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`Annapolis officials in announcing their climate suit expressed unusual confidence
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`“the Maryland courts will get us there.” Brooks Dubose, Annapolis Sues 26 Oil and
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`Gas Companies for their Role in Contributing to Climate Change, Cap. Gazette,
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`Feb. 23, 2021. Hometown recoveries would be highly inappropriate here. State
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`courts are not positioned to decide who, if anyone, is to be legally accountable for
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`climate change, how energy policies should change to address it, and how local
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`mitigation projects should be funded.
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`IV. THE COURT SHOULD MAINTAIN THE INTEGRITY OF THE
`FEDERAL-STATE DUAL COURT SYSTEM
`This Court should not permit Rhode Island to mask its attempt to regulate
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`national GHG emissions and the worldwide production of fossil fuels by “artfully”
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`pleading claims under state tort law. Rivet v. Regions Bank of Louisiana, 522 U.S.
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`470, 475 (1998). Outside of court, the State has already admitted the true goal of this
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`litigation is to impose its own energy policies on the rest of the country. In the press
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`release announcing the suit, the Governor said the litigation is about “standing up
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`together against the Trump Administration’s actions.” Press Release, Rhode Island
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`Attorney General Kilmartin Files Lawsuit Against Fossil Fuel Companies for Costs
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`and Consequences of Climate Change, Office of the Attorney General, July 2, 2018.
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`A reporter following the litigation has observed this incongruity nationally,
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`writing: the governments say “the cases are not about controlling GHG
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`emissions . . . But they also privately acknowledge that the suits are a tactic to
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`pressure the industry.” Dawn Reeves, As Climate Suits Keeps Issue Alive, Nuisance
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`Cases Reach Key Venue Rulings, Inside EPA, Jan. 6, 2020. However, such legal
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`strong-arming could undermine federal efforts to reach America’s climate goals by
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`tying the hands of federal leaders. They also could hurt efforts by other states. More
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`than fifteen state attorneys general have objected to this litigation because Rhode
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`Island and other governments are using it to “export their preferred environmental
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`policies and their corresponding economic effects to other states.” Amicus Brief of
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`Indiana and Fourteen Other States in Support of Dismissal, City of Oakland v. BP,
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`No. 18-1663 (9th Cir. filed Apr. 19, 2018).
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`What these attorneys general understand is that despite Rhode Island’s
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`rhetoric, when courts impose liability the impact is to regulate conduct. As the
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`Second Circuit observed: “If the Producers want to avoid all liability, then their only
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`solution would be to cease global production altogether.” City of New York, 993 F.3d
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`at 93. However, a state court, wielding state common law, cannot decide whether to
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`stop the sale of fossil fuels across the nation. Lawsuits alleging that energy
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`manufacturers can be subject to untold liability for local harms caused by global
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`climate change should not be the result of state-by-state ad hoc rulings. Only uniform
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`federal law can supply the uniform governing standards that can be applied here.
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`CONCLUSION
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`For these reasons, the Court should reverse the district court’s remand order.
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`Respectfully submitted,
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`
`
`
` /s/ Philip S. Goldberg
`Philip S. Goldberg (Counsel of Record)
`Christopher E. Appel
`SHOOK HARDY & BACON L.L.P.
`1800 K Street NW, Suite 1000
`Washington, D.C. 20006
`Telephone: (202) 783-8400
`Fax: (202) 783-4211
`pgoldberg@shb.com
`
`Linda E. Kelly
`Patrick Hedren
`Erica Klenicki
`MANUFACTURERS’ CENTER
` FOR LEGAL ACTION
`733 10th Street, N.W., Suite 700
`Washington, D.C. 20001
`(202) 637-3000
`Of Counsel for the National
`Association of Manufacturers
`
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`13
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`Dated: August 4, 2021
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`CERTIFICATE OF COMPLIANCE
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`This brief complies with the type-volume limit of Fed. R. App. P. 29(a)(5)
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`and Fed. R. App. P. 32(a)(7), excluding parts exempted by Fed. R. App. P. 32(f)
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`because it contains 2,910 words.
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`This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
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`and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has
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`been prepared in a proportionally-spaced typeface using Microsoft Word 2016 in 14
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`point Times New Roman font for text and footnotes.
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`Dated: August 4, 2021
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`
` /s/ Philip S. Goldberg
`Philip S. Goldberg
`
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 4, 2021, I electronically filed the foregoing
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`with the Clerk of the Court for the United States Court of Appeals for the First
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`Circuit using the Court’s CM/ECF system.
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`All participants in this case are registered CM