A big case that is almost certain to be on the Supreme Court’s docket next Term is Sunoco v. City of Honolulu. In this case, the city of Honolulu sued major oil companies over the harm that the city alleges that it has suffered as a result of greenhouse-gas emissions throughout the world that it contends the companies have caused. In the ruling below, the Hawaii supreme court held that the city may pursue its tort claims under Hawaii law against the companies irrespective where the emissions occurred.
As the oil companies point out in their certiorari petition, the Hawaii supreme court’s ruling “squarely conflicts” with the Second Circuit’s 2021 ruling in City of New York v. Chevron Corp., “which held that federal law precluded materially identical state-law claims.” In that case, the Second Circuit emphasized that plaintiff New York City “does not seek to hold the Producers liable for the effects of emissions released in New York, or even in New York’s neighboring states,” but instead “intends to hold the Producers liable, under New York law, for the effects of emissions made around the globe over the past several hundred years.”
The Second Circuit ruled, first, that, as a background constitutional principle of federalism, federal common law precludes a state from undertaking to regulate global emissions, and, second, that insofar as the Clean Air Act has displaced federal common law, it has not thereby authorized the type of state-law claims that federal common law disallowed. Rather, the Clean Air Act, under the Supreme Court’s 1987 ruling in International Paper Co. v. Ouellette, “has been interpreted to permit only state lawsuits brought under the law of the pollution’s source state.” (Emphasis in original; cleaned up.)
As the Second Circuit explained, it would be one thing for a New York resident to bring a nuisance suit against an emitter in Connecticut under Connecticut law. That is the sort of lawsuit that federal common law never precluded in the first place and that the Clean Air Act, as interpreted in Ouellette, preserves. But New York City wasn’t “seek[ing] to take advantage of this slim reservoir of state common law.” It was instead trying “to impose New York nuisance standards on emissions emanating simultaneously from all 50 states and the nations of the world.”
The Second Circuit also rejected New York City’s effort to cast its lawsuit in modest terms: “Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions.”
For purposes of granting certiorari, of course, the justices need not reach a firm determination that the Hawaii supreme court got this important matter wrong. The stark conflict with the Second Circuit ought to suffice for the justices to grant certiorari and give the matter the full consideration that it deserves. (Honolulu’s response to the certiorari petition is due on May 1.)