In June, the Supreme Court invited the Solicitor General to file a brief “expressing the views of the United States” on the certiorari petition filed by major oil companies in Sunoco v. City of Honolulu. That certiorari petition (which I discussed more fully in this post in April) presents this question:
Whether federal law precludes state-law claims seeking redress for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.
The Solicitor General filed her brief on Tuesday, a full six months after the Court’s invitation. The SG’s brief repeatedly contends that Honolulu’s lawsuit against the oil companies is about “deceptive marketing,” not the release of greenhouse-gas emissions. But in making that contention, the SG fails even to acknowledge, much less engage, the oil companies’ argument that the distinction collapses.
In their reply brief, the oil companies explained that Honolulu’s “theory of causation is that, absent the allegedly deceptive marketing, greenhouse-gas emissions would have been lower, thereby alleviating the alleged climate-change injuries” and that Honolulu is “thus seeking to impose liability for transboundary emissions under state tort law.” They also pointed out that the Second Circuit ruling, City of New York v. Chevron Corp. (2021), that conflicts with the Hawaii supreme court’s ruling in this case “considered and rejected the same theory of liability for deceptive marketing as alleged here”: it “declined to hold—as the Hawaii Supreme Court held here—that state law could apply merely because the claims focus on an earlier point in the causal chain than the injury-causing emissions.”
Indeed, the Second Circuit declared:
Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions. It is precisely because fossil fuels emit greenhouse gases – which collectively “exacerbate global warming” – that the City is seeking damages. [Emphasis in original.]
Likewise, it is precisely because fossil fuels emit greenhouse gases that Honolulu and plaintiffs in other cases are seeking billions of dollars of damages from the oil companies. Such emissions throughout the world are an essential link in the causal chain by which Honolulu claims to have been harmed by the oil companies’ allegedly deceptive marketing. So the oil companies are correct that the Second Circuit’s ruling in City of New York conflicts with the Hawaii supreme court’s ruling on whether federalism principles allow a lawsuit like Honolulu’s.
Why would the Solicitor General and the other highly talented lawyers who assisted her on the brief fail to engage the actual arguments made by the oil companies? Well, it’s interesting to see that the Solicitor General’s brief doesn’t dispute that the oil companies are right on their constitutional-structure arguments. Indeed, it states that the oil companies’ “constitutional arguments may ultimately be held to foreclose [Honolulu’s] state-law claims to the extent they are based on emissions or other conduct outside Hawaii.” (The “extent” of that foreclosure would be complete given that Honolulu’s complaint alleges that it is impossible to trace emissions to in-state sources.) So the Solicitor General may find herself in a political box: It would be politically unpalatable for the Biden administration to agree with the oil companies’ constitutional arguments, but it would be directly contrary to the interests of the United States to disagree with them (as that would enable the fifty states to impose their own contradictory and varying laws on the same emissions emanating from sources around the nation and the world). All of which might suggest that the SG’s brief is much more a political than a legal exercise.
(I’m also unpersuaded by the SG’s arguments (pp. 7-14) that the Court lacks jurisdiction to grant the certiorari petition and, alternatively, that the “existence of pending constitutional issues counsels against review at this time.” But I’m sure that the oil companies will get into the weeds of those issues in their response to the SG’s brief, so I’ll pass over them here.)