Last week, the National Association of Manufacturers filed an amicus brief authored by MAP Special Counsel Phil Goldberg in the U.S. Supreme Court, urging the Court to review Honolulu’s climate lawsuit. The 24-page brief supports two petitions for certiorari filed earlier this year seeking review of the Hawaii Supreme Court’s October 2023 decision allowing the case to proceed under state law.

The core issue is whether Hawaii state law can be applied to greenhouse gas emissions and conduct occurring both inside Hawaii and outside of the state—including in other countries. As the amicus brief explains, addressing interstate and international greenhouse gas emissions is beyond the role of state liability law and must be governed by uniform federal law, both as a matter of constitutional federalism and under the Clean Air Act. The problem, the amicus brief states, is that under the Hawaii ruling, any state could impose its own, separate liability law “over acts leading to GHG emissions occurring in other states and countries,” and those laws may differ and lead to self-interested outcomes.

Highlights from the NAM’s amicus brief include:

Climate Change Involves Federal, Not State Laws

• “Strategists behind this litigation campaign developed the state law theories in this lawsuit in an effort to deliberately circumvent this Court’s ruling in AEP. … However, the state law packaging for these claims is solely a veneer; the allegations they raise sound in federal, not state law. For example, the lawsuits invoke state public nuisance theory and consumer protection acts, but the vast majority of conditions, actions and statements they claim violate their state’s law exist or occurred outside of their borders.”

• “The Second Circuit in response to New York City’s climate lawsuit saw through this veneer: ‘we are told that this is merely a local spat about the City’s eroding shoreline, which will have no appreciable effect on national 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.’ The same is true here; referencing state claims and asking for compensation and state law penalties does not make federal matters related to interstate GHG emissions and global climate change suddenly suitable for state courts.”

• “Each local and state government bringing a climate lawsuit is seeking to independently dictate consumer protection liability for communications companies had with consumers, lawmakers and others entirely outside of their borders—even in each other’s jurisdictions—regardless of whether those states would find the communications fully lawful. Under the American system of constitutional federalism, as well as the Clean Air Act, these states and localities are not allowed to impose their state’s law on activities that took place entirely in other jurisdictions.”

Courts Are Not A Proper Venue To Address The Threat Of Climate Change

• “At the heart of these claims is the notion that America should increase the price and reduce the production of fossil fuels because of the impact these fuels are having on the climate. Some may consider this to be a sensible solution to climate change, but it is not the role of state courts to impose these changes.”

• “There are less harmful ways to address impacts of climate change that do not have the downsides associated with this litigation. Federal and state programs have already made funds available that can provide local relief now.”

• “[T]he best way to address the impact that energy use is having on the climate is for Congress, federal agencies, and local governments to work with manufacturers and other businesses on developing public policies and technologies that can reduce emissions and mitigate damages…”

Numerous other parties filed amicus briefs, including twenty state attorneys general, signaling the major importance of the issues in this case.