From: Sent: To: Subject: Start: End: Show Time As: Recurrence: Required Attendees: Bogan, Shanedda L. (ENRD) ADMINISTRATIVE GROUP on behalf of Wood, Jeffrey (ENRD) 5/1/2018 4:43:20 PM Grant, Eric (ENRD) Heminger, Justin (ENRD) Smith, Justin (ENRD) Ennis, Christine (ENRD) Neumann, Jennifer Scheller (ENRD) JLipshutz@gibsondunn.com Public Nuisance Lawsuits Meeting 5/2/2018 2:00:00 PM 5/2/2018 2:30:00 PM Free (none) Grant, Eric Heminger, Justin Smith, Justin Ennis, Christine Neumann, Jennifer Scheller JLipshutz@gibsondunn.com Visitor?s entrance on Constitution Avenue, between 9th 10th From: Sent: To: Subject: Start: End: Show Time As: Recurrence: Required Attendees: Heminger, Justin (ENRD) ADMINISTRATIVE GROUP 4/24/2018 10:11 :20 AM Smith, Justin (ENRD) Ennis, Christine (ENRD) Grant, Eric (ENRD) Hughes, Jonathan W. Lipshutz, Joshua S. (JLipshutz@gibsondunn.oom) Shenkman, Ethan G. Neumann, Jennifer Scheller (ENRD) Public nuisance cases - Call 4/24/2018 11:00:00 AM 4/24/2018 11:30:00 AM Free (none) Smith, Justin Ennis, Christine Grant, Eric Hughes, Jonathan Lipshutz, Joshua S. Shenkman, Ethan Neumann, Jennifer Scheller (ENRD) Exemption 6 From: Grant, Eric (ENRD) ADMINISTRATIVE GROUP To: Fisher, Torn CC: Wood, Jeffrey (ENRD) Sent: 4/19/2018 10:25:03 PM Subject: RE: Amicus Brief (filed) - The People of the State of California v. BP P.L.C., et al., No. 3:17-cv- 6011-WHA (ND. Ca.) 1 second that, Tom. Eric From: Wood, Jeffrey (ENRD) Sent: Thursday, April 19, 2018 10:23 PM To: Fisher, Tom Cc: Grant, Eric (ENRD) Subject: Re: Amicus Brief (filed) - The People of the State of California v. BP P.L.C., et al., No. 3:17-cv- 6011-WHA Ca.) Tom, thank you. This looks to be an excellent brief. Best, Jeff Out: Inn lxmux :?umum (1}le IUI (211?!me From: Fisher, Torn To: Grant, Eric Wood, Jeffrey (ENRD) Sent: 4/19/2018 4:16:41 PM Subject: Amicus Brief (filed) - The People of the State of California v. BP P.L.C., et al., No. 3:17-cv? 6011-WHA (N.D. Ca.) Attachments: 224-1 - Exhibit Amicus Brief.pdf Eric and Jeff, Please see the attached Amicus Brief that Indiana filed today in The People of the State of California v. BP P.L.C., et al., No. (N.D. on behalf of itself and fourteen other States. Please let me know if you have any questions or would like to discuss. Thanks again for your earlier input on the case, and all the best as you come to a final decision on how to proceed on behalf of the United States. TM Thomas M. Fisher Solicitor General State of Indiana Office of Attorney General Curtis Hill Indiana Government Center South, Fifth Floor 302 West Washington Street Indianapolis, Indiana 46204 t: 317.232.6255 f: 317.232.7979 tom.fisher@atq.in.qov CONFIDENTIALITY NOTICE: This communication and any attachments are for the exclusive and con?dential use of the intended recipient and may contain privileged or other con?dential information. If you are not the intended recipient, please do not read, distribute or take action in reliance upon this message. If you have received this in error, please notify us immediately by return email and. delete this message and its attachments from your computer system. We do not waive attorney-client, work product or other applicable privilege by the transmission of this message. LIT-bulb) Case Document 224-1 Filed 04f19f18 Page 1 of 25 THOMAS M. GENERAL MATTHEW R. ELLIOTT DEPUTY ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL 302 W. Washington Street, IGCS Floor Indianapolis, IN 46204?2770 Telephone: (317) 232-6255 Email; Tom.Fisher@atg.in.gov Appearing pro hac vice JAMES R. ARNOLD (SEN 56262) JOHN A. BEARD (SBN 301405) THE ARNOLD LAW PRACTICE One Sansome Street, Suite 3500 San Francisco, CA 94104 Telephone: (925) 284-8887 arnold@ amol dl p. com Attorneys for Amid Curiae States of Indiana, Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, and Wyoming (Additional Counsel Listed at End) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, BP P.L.C., e! (1.3., Defendants. Nos. 17?06011 Case No. 17?06011 WHA Case No. 17-06012 WHA AMICUS BRIEF OF INDIANA AND FOURTEEN OTHER STATES IN SUP- PORT OF DISMISSAL Date: April 19, 2018 Time: 11:00 am. PT BRIEF OF INDIANA AND 0TH HR IN SUPPORT OF DISMISSAL I me Case Document 224-1 Filed 04f19l18 Page 2 of 25 TABLE OF CONTENTS TABLE OF CONTENTS 2 TABLE OF AUTHORITIES 3 INTEREST OF THE AMICI STATES 7 SIMMARY OF THE ARGUMENT 7 ARGUMENT . . . . 8 l. Plaintiffs? Claims Are Non-Justiciable 8 A, Plaintiffs? claims raise political questions and must fail 8 B. Plaintiffs? claims jeopardize our national system of cooperative federalism 1 1 II. Federal Statutes Have Displaced the Federal Common Law on Which Plaintiffs Have Based Their Claims 18 This Case Threatens Extraterritorial Regulation by Imposing Plaintiffs? Policy Choices on Other States and on Commercial Transactions Occurring Outside California . . . . . . 20 A. Plaintiffs? desired remedies are a form of regulatory enforcement 20 B. Plaintiffs? desired remedies are unconstitutional because of the extraterritorial effect on wholly out-of-state commercial activity 21 CONCLUSION . . . . . . 24 ADDITIONAL COUNSEL 25 NOS. 17?06011 Art-nous BRIEF INDIANA AND HR IN DISMISSAL 2 Link) Case Document 224-1 Filed 04t19718 Page 3 of 25 TABLE OF AUTHORITIES CASES American Eieetrte Power Co. v. Connecticut, 564 8,19 Antotok v. United States, 873 F.2d 369 (DC. Cir. 1939) '10 Baker v. Carr, 369 U.S. 186 (1962) 8, 10 BMW ofNortn America, Inc. v. Gore, 21,22 California Gen. Motors Corp, N1). (706-05755, 2007 WL 2726871 (ND. Cal. Sept. 17, 2007) 9 Carmichaei 1i. Keiiagg, Brown Root Serum, Inc. 572 F.3d 1271 (11th Cir. 2009) 9, 10 Chaser Shipping Corp. v. United States, 649 F. Supp. 736 (S.D.N.Y. 1986) 10 Comer Murphy NO. 05-436, 2007 WL 6942235 (SD. Miss. Aug. 30, 2007) (unpublished ruling), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010), mandamus denied, N0. Jan. 10,2011) 9 Crowley 1t. (.jiben?a?oaree Corp, 166 F. Supp. 2d 1263 (NI). Cal. 2001) 21 Edgar v. M1711. Corp, 457 U.S. 624, 643 (1932) 21 Heat}? v. Beer Inst, Ina, La. Pub. Sew. Comm ?n v. Tex. NOR. 284 U.S. 125 (1931) 20 Marbary v. Madixon, Mic?vest Titie Loans, Inc. v. Milk, 593 F-3d 660 (7th Cir. 2010) 22 NOS. 17?06011 WILKC 11060121771175; AMICUS BRIEF 014 INDIANA AND HR 1N (11" DISMISSAL 3 Link) Case Document 224-1 Filed 04i19i18 Page 4 of 25 CASES [coNT?u] Native v. Corp, 663 F. Supp 2d 863 (ND. Cal. 2009), aff?d, 696 F.3d 849 (9th Cir. 2012) 9, 10, 19, 20 North Dakota v. 825 F.3d 912 (8th Cir. 2016) 22 Occidental of Umm a! Qaywayn, Inc. v. A eriain Cargo of!) W011, 57'? F.2d1196(5th Cir. 1978) . ..9 FEDERAL STATUTES 42 U.S.C. 7401 eiseq 12 42 U.S.C. 7410(a) 12 42 U.S.C. 741612 42 U.S.C. 13401 20 STATE STATUTES Cal. Pub. Res. Code {$300417r Cal. Pub. Res. Code 3106(b) 18 Cal. Pub. Res. Code ?3106(d) 18 Tex. Nat. Res. Code 34.052 . 18 Tex. Nat. Res. Code 34.055 18 Tex. Nat. Res. Code? 131.0020) '18 OTHER AUTHORITIES Climate Change Programs, California Air Res. Ed, 14 Coastal Zone Management Act, 16 U.S.C. 14510) 20 Consolidated Appropriations Act, 2016, cmiffiedai 42 U.S.C. 6212a(b) 18 antral of Emissions from New Highway Vehicles and Engines, Notice of Denial ofPet. for Rulemaking, 68 Fed. Reg. 52922 (Sept. 8, 2003) 1 1 NOS. WILKC 17-06012WILA AMICIJS BRIEF 0H INDIANA AMI: HR 1N DISMISSAL ?4 Link) Case Document 224-1 Filed 04t19/18 Page 5 of 25 OTHER AUTHORITIES Copenhagen Accord, December 7-19, Decision 15th sess. (2010Holly Doremus W. Michael Hanemann, QfBabies andr Batinvater: the (Tean Air Act ?3 Cooperative Federalism Framework is Us?e?ti?Jr Addressing Global Warming, 50 Ariz. L. Rev. 799 (2008) 12 Energy Policy Act of2005, codifiedat 42 Energy Policy and Conservation Act of 1992, codi?edat 42 U.S.C. 1340120 FACT SHEET: US. Reports its 2025 Emissions Target to the dated March 31, 2015, of?cei201 5/038 . . .. . . . . . . .. . . . . .. . . . . .. . 1 7' Federal Lands Policy Management Act, 43 in?irmation Provided by Parties to the Convention Relating to the (TInJenhagen Accord, UN. Climate Change, and-resourcestint?ormation Kyoto Protocol to the 37 22 (1998), Dec. 10, 1997 15 Marrakesh Accords of 2005, October 29?November 10, Decision 7th sess. (2001) 15 Mining and Minerals Policy Act, 30 U.S.Org. for Econ. Co?Operation Dev, 2010f15 OECD Economic Surveys: United States 129 (Sept. 2010) 13 Paris Agreement, art. 2 (Dec. 12, 2015), 16 Paris Agreement, November 30?December 13, Decision 21 st sess. (2016) 16 Parts Agreement Status of Rati?cation, U. N. Climate Change, int! proce ss/th e?pari s-agreement/ status-of?rati?cati on 16 Pew Center on Global Climate Change, climate-policy! 13, I4 NOS. Art-nous BRIEF 0H AND HR 1N or 5 Link) Case Document 224-1 Filed 04t19/18 Page 6 of 25 OTHER AUTHORITIES Mike Porter, Governor Unveiis New Virginia Energy Pian during VCU Visit, VCU NEWS, Sept. 13, 2007, President Trump Announces U. S. Withdrawai?om the Paris Climate Accord (June 1, 2017), an nounees-u-s?withdrawal -pari s?elimate-aeeordt 16 Regionai Greenhouse Gas Initiative auction prices are the lowest since 20] 4, TO- DAY IN ENERGY, US. Energy Info. Admin. (May 31, 2017) l3 Elisabeth Rosenthal, Ottawa 15' Backing Raises Hopesfor Pact, NY. Times (Mar. 2009), Status ofRatification of the Convention, UNCC, conventioniwhat-i 14, 1 5 Status ofRatification of the Kyoto Protocol, UN. Climate Change, eati on 16 David G. Tuerek et at., the Economic Anaiysis of the Western Climate Initiative ?s Regional Cap-and-i?rade Program 1 (Mar. 2009), 13 May 9, 1992, 1771 U.N.T.S. 107; S. Treaty Doc No. 102?33 15 University of Nebraska Carbon Sequestration Program, http:iiesp.unl.eduipubliei 14 Phillip Weiser, towards a Constitutional Architecture for Cooperative ii'ederaiisni, 79 NC. L. Rev. 663 (2001) 1 1, 12 Michael Weisslitz, Rethinking the Equitabie Princrpie of Common but Differentiated De?erentiai Versus Absoiute Norms of Compliance and Contribution in the Giohai Citmate Change Contest, 13 Colo. J. 1an Envtl. L. Pol?y 473 (2002) . . . 16 What are United Nations Ciinrate Change Con?erences? United Nations Climate Change, mate-ehange-eonferenees 5 What is the Kyoto Protocol, UN. Climate Change, 5 David R. Wooley Elizabeth M. Morss, 59 10:30. Regionat greenhouse gas reduction initiatives, Clean Air Act Handbook (2017) 13 NOS. 17?06011 Art-nous BRIEF or 1NDIANA AND Four-tram HR 1N SUPPORT or Ulsu-Ilssm. ti 4:.th Case Document 224-1 Filed 04f19f18 Page 7 of 25 INTEREST OF THE AMICI STATES The justiciability of climate change lawsuits under federal common law is an issue of ex- traordinary importance to the Amici States. To permit federal adjudication of claims for abatement fund remedies would disrupt carefully calibrated state regulatory schemes devised by politically accountable of?cials. Federal courts should not use public nuisance theories to confound state and federal political branches? legislative and administrative processes by establishing emissions pol- icy (or, as is more likely, multiple con?icting emissions policies) on a piecemeal, ad hoc, case-by- case basis under the aegis of federal common law. States have an especially strong interest in this case because the list of potential defendants is limitless. Plaintiffs? theory of liability involves nothing more speci?c than promoting the use of fossil fuels. As utility owners, power plant operators, and generally signi?cant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions. SUMMARY OF THE ARGUMENT In the name of the State of California, the cities of San Francisco and Oakland seek to harness the power and prestige of federal courts to remedy global climate change. They assert that five fossil fuel corporations, by producing such fuels and promoting their use, have broken the law?but not law enacted by a legislature, promulgated by a government agency, or negotiated by a President. Rather, the law Plaintiffs invoke is common law. They say that Defendants? production of fossil fuels and the subsequent use of those fuels by third parties sufficiently contributes to global warming as to constitute a ?public nuisance? that the federal judiciary should enjoin. But the questions of global climate change and its effects?and the proper balance of reg- ulatory and commercial activity?are political questions not suited for resolution by any court. Indeed, such judicial resolution would trample Congress?s carefully-calibrated process of cooper- ative federalism where States work in tandem with EPA to administer the federal Clean Air Act. And even were that not so, the Supreme Court has already said that the Clean Air Act and related EPA regulations have displaced the federal common law on which Plaintiffs base their claim in this case: ?We hold that the Clean Air Act and the EPA actions it authorizes displace any Nos. 17?06011 BRIEF oH INDIANA AND HR IN Disk-risen]. 7 Case Document 224-1 Filed o4l19l18 Page 8 of 25 federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel ?red power plants.? American Electric Pot-ref Ca. V. (Traumatic-tin, 564 US. 410, 424 (201 l) (AEP). Plaintiffs seek to evadeAEP?s mandate by framing the ?nuisance? as ?producing? and ?promoting? the use of fossil fuels rather than ?emitting carbon dioxide,? but this tactic serves only to show that their claim is too attenuated. ECF No. 168, First Amended Comp]. at 10, 33, 117. Similarly, they request relief in the form of an ?abatement fund remedy? rather than outright abatement, but the Ninth Circuit has already said that the remedy requested is irrelevant to the displacement issue. Ultimately, neither stratagem changes the essential nature of Plaintiffs? claim or of the liability that they are asking the court to impose?liability that could serve as the predicate for myriad remedies in future cases or even in this one. Finally, Plaintiffs? claims, if successful, would have impermissible extraterritorial impact. Consider: Plaintiffs are asking the court to order Defendants to pay to build sea walls, raise the elevation of low-lying property and buildings, and construct other infrastructure projects necessary to combat the effects of global climate change for the major cities of Oakland and San Francisco. Such a remedy could cost several billion dollars and seriously impact Defendants? ability to pro- vide energy to the rest of the country. In effect, Plaintiffs would be imposing limitations on com- merce that takes place wholly outside California?s borders. Such limitations violate the dormant Commerce Clause just as surely as any statutory enactment, and the court should not permit them. ARGUMENT I. Plaintiffs? Claims Are Non-Justiciahle A. Plaintiffs? claims raise political questions and must fail Plaintiffs? objections to fossil fuel use are based in public policy, not law, and are thus not appropriate for judicial resolution. Longstanding Supreme Court precedent has established that a claim presents non- justiciable political questions if its adjudication would not be governed by ?judicially discoverable and manageable standards? or would require ?an initial policy determination of a kind clearly for non-judicial discretion.? Baker v. Carr, 369 US. 186, 217' (I962). The political question doctrine arises from the Constitution?s core structural values of judicial modesty and restraint. As early as Nos. 17?06011 17-06012WILA AMIc?us BRIEF OF INDIANA AND Foua'l'HHN HR IN or Ulsn-nssm. 8 4:.th consumer. Case Document 224-1 Filed O4i19i18 Page 9 of 25 v. Madison, Chief Justice Marshall stated that ?[q]uestions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.? US. (1 Cranch) 137, 170 (1803). These questions, Marshall wrote, ?respect the nation, not individual rights . . . id. at 166. There, in the very case that establishes the power of judicial review, the political question doctrine received its judicial imprimatur. Earlier attempts to litigate climate change public nuisance lawsuits have run headlong into the political question doctrine. Indeed, ibis Court previously dismissed two cases seeking relief from industry for harms allegedly caused by global climate change. In one case, it dismissed an Alaskan village?s claims seeking damages from dozens of energy companies for coastal erosion allegedly caused by global warming, observing that ?the allocation of fault?and cost?of global warming is a matter appropriately left for determination by the executive or legislative branch.? Naiive v. islrxonMobil Corp, 663 F. Supp 2d 363, 877 (ND. Cal. 2009), 696 F.3d 849 (9th Cir. 2012). In another, it dismissed public nuisance claims against automakers, recognizing ?the complexity of the initial global warming policy determinations that must be made by the elected branches prior to the proper adjudication of Plaintiff? 5 federal common law nuisance and the ?lack of judicially discoverable or manageable standards by which to properly adjudicate Plaintiffs federal common law global warning nuisance cl aim.? See v. Gait. Moiors Corp, No. cos-05755, 2007 WL 272637] at *16 (ND. Cal. Sept. 17, 2007) Similarly, a district court in Mississippi dismissed on political question grounds a lawsuit by Gulf of Mexico residents against oil and gas companies for damages from Hurricane Katrina, which plaintiffs alleged was strengthened by climate change. Comer v. Morphy OH 1, No. 05-436, 2007 WL 6942285 (SD. Miss. Aug. 30, 2007) (unpublished ruling), ripped! dismissed, 607 F.3d 1049 (5th Cir. 2010), mandamus denied, NO. 10?294 (US. Jan. 10, 2011). More broadly, several Circuits in addition to the Ninth Circuit and other federal courts have recognized that political questions may arise in cases that are nominally tort claims. See, cg, Oc- cideniai of Umm ai Inc. v. A Cerium Cargo ofPeirof., 577 F.2d 1196, 1203 (5th Cir. 1978) (concluding tortious conversion claims were barred by the political question doctrine); Car- michael v. Kellogg, Browr div Root Semis, Inc, 572 F.3d 1271 Cir. 2009) (finding tort claims Nos. 17?06011 Art-urns BRIEF oH INDIANA AND Four-Liam an 1N or Ulsa-Ilssm. 9 4:.th Goesaoxm Case Document 224-1 Filed O4i19l18 Page 10 of 25 arising from automobile accident were barred by the political question doctrine); magma v. [lofted Stores, 873 F.2d 369, 383 (DC. Cir. 1989) (noting that is the political nature of the [issue], not the tort nature of the individual claims, that bars our review and in which the Judiciary has no expertise?); Chaser Shipping Corp. v. (?irted Stores, 649 F. Supp. 736, 738 (S.D.N.Y. 1986) (?Even though awarding tort damages is a traditional function for the judiciary, it is apparent that there is a clear lack of judicially discoverable and manageable standards for arriving at such an award?). As the weight of authority demonstrates, Plaintiffs claims in this case may be styled as torts, but they are in substance political, and thus nonjusticiable. 2. Plaintiffs? claims plainly are not governed by ?judicially discoverable and man- ageable Baker, 369 US. at 217. They are instead governed by ?policy determina? tion[s] of a kind clearly for non-judicial discretion.? 1d, see also Kimmie, 663 F. Supp. 2d at 874? 77. There are no judicially enforceable common law ?nuisance? standards to apply, or any practical limitation on the judicial policymaking role as the court decides whether the prospect of global climate change makes it ?unreasonable" for energy companies to extract and produce fossil fuels. To determine liability, the court would need to determine that plaintiffs have a ?right? to the climate?in all of its infinite variations?as it stood at some unspecified time in the past, then ?nd not only that this idealized climate has changed, but that Defendants caused that change through ?unreasonable? action that deprived Plaintiffs of their right to the idealized climate. And, as a remedy, it. would need to impose a regulatory scheme on fossil fuel emissions already sub- jected to a comprehensive state-federal regulatory scheme by way of balancing the gravity of harm alleged by the Plaintiffs against the utility of each Defendant?s conduct. Such decisions have no principled or reasoned standards. Federal judges are not in a position to discern, as a matter of common law, the proper regulatory balance. There should be no doubt that adjudicating these claims would require a complex ?initial policy determination? that is more appropriately addressed by other branches of government. Baker, 369 US. at 217. EPA reaf?rmed this point long ago when it observed that issue of Nos. 17?06011 17-06012WILA ?ts-nous BRIEF or INDIANA ANI) Foua'rHHN 0TH HR. IN DIsMIssm. l? 4:.th Case Document 224-1 Filed O4i19l18 Page 11 of 25 global climate change . . . has been discussed extensively during the last three Presidential cam- paigns; it is the subject of debate and negotiation in several international bodies; and numerous bills have been introduced in Congress over the last 15 years to address the issue.? Control of Emissions?'om New Highway l?Ehicl?es orrdEngines, Notice of Denial of Pet. for Rulemakin g, 68 Fed. Reg. 52922, 52928 (Sept. 8, 2003). Furthermore, EPA observed, ?[u]navoidably, climate change raises important foreign policy issues, and it is the President's prerogative to address them.?1d. at 52931. For these reasons, ?[v]irtually every sector of the US. economy is either directly or indirectly a source of [greenhouse gas] emissions, and the countries of the world are involved in scienti?c, technical, and political?level discussions about climate change.? Id. at 52923. Federal courts should not set nationwide energy and environmental policy?or, more likely, competing policies?on an ad hoc, case?by?case basis under the aegis of federal common law. They face immutable practical limits in terms of gathering information about complex public policy issues and predicting long-term consequences that might ?ow from judicial decisions. And critically, federal courts lack political accountability for decisions based on something other than neutral principles. B. Plaintiffs? claims jeopardize our national system of cooperative federalism Plaintiffs? desired remedies are nothing more than a form of regulatory enforcement and creation of policy through the use of judicial remedies. Plaintiffs seek to inject their political and policy opinions into the national regulatory scheme of energy production, promotion, and use. Yet all States play a critical regulatory role wi thin their borders, and Congress has leveraged and aug- mented that authority by way of the Clean Air Act, a cooperative federalist program designed to permit each State to achieve its optimal balance of regulation and commercial activity. Cooperative federalism in the environmental and energy production policy arena underscores the political na? ture of this case. 1. Cooperative federalism?where the federal government creates federal standards and leaves the implementation to the States?allows states significant discretion and power and, as a consequence, encourages multiple levels of political debate and negotiation. See Phillip Nos. 17?06011 Ah-Ilt?lJS BRIEF OF INDIANA ANI) 0TH HR. IN or ll 4:.th scooqoxm Case Document 224-1 Filed O4i19l18 Page 12 of 25 Weiser, Towards a Architecture for Crmperottve Federalism, 79 NC. L. Rev. 663, 668?70, 671?73 (2001). [t proves to be especially bene?cial in areas of regulation where eco- nomic trade?offs and regional variation are important, such as the balance between energy produc? tion and environmental law. See generally, tag, Holly Doremus W. Michael Hanemann, Babies and Bothwater: Why the Clean Air Act is Cooperative [federalism Framework is lse?nlfor Addressing Global Warming, 50 Ariz. L. Rev. 7?99 (2008). As underscored by the Supreme Court?s decision in AEP, the Clean Air Act, 42 U.S.C. 7401 et seq, serves as the most signi?cant political instrument to address the consequences of air emissions and is a prime example of cooperative federalism in action. While the Clean Air Act requires the EPA to establish national health-based air quality standards to protect against common environmental pollutants, it also assigns States a significant role in enforcing these standards. It thereby illustrates the inherently political undertaking regulation of environmental standards weighed against energy production and emission-producing activities. For example, States adopt their own State Implementation Plans (SlPs) for compliance with National Ambient Air Quality Standards within three years of EPA promulgation. See 42 U.S.C. 7410(a). While such plans must meet basic requirements and are subject to EPA approval or disapproval, they must be adopted through a process involving public input, ensuring that the plans are adapted to the particular circumstances of each state. id. States are Free to choose how best to meet federal requirements within their borders and are expressly allowed to have more stringent requirements than the basic Federal mandate. See id. 7416. As a consequence, no two STPs are identical. And even the EPA STP approval process is subject to public notice and com- ment, which permits a wide range of participation by the public and helps ensure that EPA and the States make reasonable trade?offs in the course of implementing the Clean Air Act. 2. The political negotiations and compromises necessary for accountable regulatory action extend beyond the Clean Air Act to regional compacts, where groups of states, with the blessing of Congress, can add yet more greenhouse gas limits. These compacts differ greatly as they address a wide spectrum of issues related to global climate change. Some target emissions, and in so doing vary in reduction targets. Whereas the Regional Greenhouse Gas Initiative aims NOS. 17?06011 Arc-nous BRIEF or AND 0TH HR. IN SUPPORT or DISMISSAL 12 4:.me Case Document 224-1 Filed 04t19t18 Page 13 of 25 to reduce CO2 emissions from 2009 levels by 10% by the year 2018, the Midwestern Greenhouse Gas Reduction Accord seeks to reduce emissions by 20% from 2005 levels by the year 2020. Compare Regionai Greenhouse Gas Initiative auction prices are the for-vest since 201' 4 TODAY IN ENERGY, US. Energy Info. Admin. (May 31, 2017), with Org. for Econ. Co?Operation Dev, 2010/15 OECD Economic Surveys: United States 129 (Sept. 2010). Another compact, the Western Climate Initiative, has targeted a 15% reduction from 2005 levels by the year 2020. David G. 'l?uerck et at, The Economic Anabtsis of the Western Climate Initiative ?s Regional Cap-and? Trade Program 1 (Mar. 2009), These programs share a ?cap and trade" methodology, combined with technology invest- ments and offsets, in order to allow regional economic growth while pursuing environmental goals. Despite this similarity, each differs in its particular implementation based on the aggregate condi- tions?both economic and ecologic?of the region. What is more, while some place mandatory requirements on their member states, others urge voluntary compliance. .?onipare Regionoi Green- house Gas initiative auction prices are the lowest since 2014, TODAY TN ENERGY, U. S. Energy Info. Admin. (May 31, 2017), (describ- ing RGGI as ?the nation?s first mandatory cap-and-trade program for greenhouse gas emissions?), withr David R. Wooley Elizabeth M. Morse, :5 10:30. Regimenlr greenhouse gas reduction initia- tives, Clean Air Act Handbook (2017) (noting that ?an advisory panel [of the Midwestern Regional Greenhouse Gas Reduction Accord] released its final recommendations for a regional GHG cap- and-trade program? but ?the governors of the states who signed the Accord never adopted the rec- ommendations of the advisory These compacts?each the result of yet more politics? further demonstrate the unsuitability of a one?size??ts?all environmental and energy production regulatory regime as a matter of judicial review. This is not to say that such policies are implemented solely on federal and regional levels. At least 21 States have designed individual regulations addressing those sources of greenhouse gases of greatest local concern, in a way consistent with their local priorities. See Pew Center on Global Climate Change, (providing a dynamic Nos. 17?06011 17-06012WILA BRIEF or INIJIANA AND HR IN or DISMISSAL l3 4:.th Case Document 224-1 Filed O4t19l18 Page 14 of 25 maps of state and regional activities in the United States). California has its own cap and trade program, requires power companies to source 33% of their electricity from renewable sources, and requires greenhouse gas emission reporting, among other regulations. See (Winnie Change Pro- grams, California Air Res. Bd., In contrast, Nebraska invests in research on the effectiveness of using agricultural land for carbon sequestration. See, cg, Uni- versity of Nebraska Carbon Sequestration Program, Virginia has com- mitted to a 30% reduction in greenhouse gas emissions from 2007 levels by 2025, driven by energy conservation and renewable energy usage. Mike Porter, Governor Unveils New Virginia Energy Plan during Visit, VCU NEWS, Sept. 13, 2007, veils_new_V sit. Each State?s decision implicitly re?ects a balancing of the costs of climate change regulation weighed against the benefits likely to accrue from the regulation. Thus, through the cooperative federalism model, States use their political bodies to secure environmental bene?ts for their citizens without sacri?cing their livelihoods, and each does so in a different fashion?a natural result of the social, political, environmental, and economic diversity that exists among States. A plan to modify greenhouse gas emissions that is acceptable to Cali- fornia or Vermont may be unacceptable to Indiana, Georgia, or Texas, for example. 3. If these multi-level approaches are not enough to demonstrate the political nature of the claim Plaintiffs have brought to federal court, the very description of the problem this case seeks to address Surely resolves any remaining doubt. Plaintiffs are worried not about. national climate change, but about giobcn' climate change. And, indeed, the global nature of concerns over anthropogenic climate change has spawned a variety of treaties and other international initiatives aimed at addressing air emissions. This activity has been multifaceted, balancing a variety of eco- nomic, social, geographic, and political factors and emphasizing multiparty action rather than ar- bitrarily focusing on a single entity or small group of entities. The United Nations has responded to concerns about the possibility of climate change by creating the United Nations Framework Convention on Climate Change This treaty has been joined by 196 nations and 1 regional development group. See Stains of Nos. 17?06011 BRIEF or INDIANA ANI) 0TH HR. IN l4 .12.me Case Document 224-1 Filed 041191118 Page 15 of 25 the Convention, UN. Climate Change, (providing link to listing of 197 signatories to the The is mostly aspirational, with provisions suggesting that patties ?should? attempt to ?anticipate, prevent, or mitigate? climate change. See generally UN. Framework Con- vention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107; S. Treaty Doc No. 102-38 (entered into force March 21, 1994). A number of provisions also focus on technology transfers from developed to developing nations and economic sustainability of environmental policies. See id. Countries retain discretion to set their individual policies in pursuit of these goals on the basis of the speci?c conditions of each party. See id. art. 3, 113. These commitments implicate delicate matters of national and international policy, includ- ing the relationships between ?developing nations? and ?developed nations;? the transfer of tech- nology and skills between nations; education, methods of containing climate change, and the time- tables involved in doing so. See id. art. 4. Because of the complex nature of these commitments, the member countries of the and its different committees have met regularly since 1996 to discuss implementation. See What are Urnted Notions Change United Nations Climate Change, change-conferences. At these meetings, the nations involved discuss implementation of the aspi? rational commitments contained within the and recent scientific developments. See generally id. These meetings have spawned numerous ancillary agreements, including the Kyoto Proto- col to the 37 I.L.M. 22 (1998), Dec. 10, 1997; the Marrakesh Accords of 2005, UN- October 29?November 10, Decision 31th sess. (2001); the Copenhagen Accord, December 7?19, Decision 21CP.15, 15th sess. (2010), and the Paris Agreement, November 30?December 13, Decision 21st sess. (2016). These agreements, un? like the typically require binding commitments from members. See, tag, What is the Kyoto Protocol, U.N. Climate Change, kyoto-protocol (stating the Kyoto Protocol ?commits its Parties by setting internationally binding emission reduction targets?). NOS. 17?06011 An-Ilt?tis BRIEF OF INDIANA ANI) 0TH HR. IN Summer 0v DISMISSAL 15 4:.me Case Document 224-1 Filed 04i19t18 Page 16 of 25 Notably, President Clinton signed the Kyoto Protocol, which required reductions of ?de- veloped nations? but not ?developing nations,? but the United States did not ratify the treaty. See Status of Rati?cation of the Kyoto Protocol, UN. Climate Change, Explaining the United States? decision not to ratify the Pro- tocol, President Bush noted that it exempted from its limitations 80% of the world, including India and China, and that he believed it would harm the United States? economy. See, Michael Weisslitz, Rethinking the eqritabie Prinw'pie of Common inn Di?rentiated Responsibility: Dif- ferential Versus Ahsointe Norms (yr ('ompiiance and Contribution in the Giobai ('iimate Change Context, 13 Colo. J. lnt'l Envtl. L. Pol?y 473, 507?08 (2002). In contrast, President Obama placed the United States at the forefront of the negotiation of the Copenhagen Accord in 2009, with the hope that this new agreement would ameliorate the flaws of the Kyoto Protocol. See, Elisabeth Rosenthal, Obama is Backing Raises Hopesfor Climate Pact, NY. Times (Mar. 1, 2009), html. The United States has since agreed to be bound by it. See information Provided by Parties to the Convention Reiating to the (?inteithagen Accord, UN. Climate Change, the-copenhagen-accord. More recently, the United States entered into the Paris Agreement, which went in to force on November 4, 2016. See Paris Agreement Status of Ratification, U. N. Climate Change, The Paris Agreement?s cen- tral aim is address climate change by limiting global temperature increase to well below 2 degrees Celsius, and also pursuing efforts to further limit the increase to 1.5 degrees. Paris Agreement, art. 2, (Dec. 12, 2015), lish_pa1is_agreement.pdf. Parties to the Paris Agreement are also required to work to reduce its emissions by adopting a Nationally Determined Contributions (NDCs) including requirements that all Parties report their emissions and efforts to reduce such emissions. id. at art. 3. On March 2015, the United States ?led its Intended Nationally Determined Contribution (INDC), which Nos. 17?06011 Ah-Ilt?lJS BRIEF 4:.th ~0chan Case Document 224-1 Filed O4t19t18 Page 17 of 25 serves as a formal statement of the United States that it would work to reduce emissions by 26? 28% below 2005 levels by 2025, and to make best efforts to reduce by 28%. See ACT US. Reports its 2025 Emissions Target to the (Mar. 31, 2015), :iiobamawhitehouse. archives. gov/the-press-of? cei20 1 5t03 t3 1/ fact?sheet?us?repo rts-its- Yet, with the change in administrations, President Trump an- nounced he would withdraw the United States from the Paris Climate Change Agreement on June 1, 2017. See President Trump Announces (LS. Withdrawai?om the Paris Climate Accord (June I 2017), tehouse. gov/arti cl es/president-trum p-announ ces?u-s?wi thdrawal -paris- climate?accordi. The past two decades have thus seen four Presidenci es with widely divergent views of what the United States? foreign policy on climate change and greenhouse gas emissions should be. These shifts in direction further demonstrate the political nature of environmental and fossil fuel regulation and reaffirm the need for such decisions to be the subject of political debate and ac- countability. 4. Focusing on energy production rather than emissions does not make this case any less inherently political. If anything, it underscores the political nature of the global climate change problem by casting a spotlight on yet more political choices that bear on the issue. In some instances States themselves promote the very energy production and marketing targeted in this case. For example, the Califomia State Oil and Gas Supervisor is charged with ?enc0urag[ing] the wise development. of oil and gas resources" and ?permit[ing] the owners or operators of the wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground Cal. Pub. Res. Code 3004, 3106(b), Similarly, Texas permits the ?land subject to its control surveyed or subdivided into tracts, lots, or blocks which will, in its judgment, be most conducive and convenient to facilitate the advantageous sale of oil, gas, or mineral Tex. Nat. Res. Code 34.052, and allows the issuance of ?a permit for geological, geophysical, and other surveys and investigations on land . . . that will encourage the development of the land for oil, gas, or other minerals." id. 34055. More specifically addressing the extraction of such fossil fuels, the Texas legislature found that NOS. 17?06011 17-06012WILA Art-nous BRIEF or INDIANA ANI) Foux'rHHN 0TH HR. IN SUPPORT OF DIsMIssm. l? Case Document 224-1 Filed D4i19l18 Page 18 of 25 ?the extraction of minerals by surface mining operations is a basic and essential activity making an important contribution to the economic well-being of the state and Id. 13 1 002(1 And the federal government is no different; numerous federal statutes expressly state the govern? ment?s intention ?to promote the ef?cient exploration, production, storage, supply, marketing, pricing, and regulation of energy resources, including fossil fuels . . . Consolidated Appropria- tions Act, 2016, codi?ed at 42 U.S.C. 62l2a(b); see also Energy Policy Act of 2005, codi?edai 42 U.S.C. (?The purpose of this section is . . . to promote oil and natural gas pro- duction . . . Such promotion not only demonstrates the inherently political nature of this issue, but also suggests that States and the federal government themselves could be subject to liability if Plain- tiffs? claims are permitted to proceed. Indeed, in view not only of Plaintiffs? expansive theories of liability, but also their presumption of suing as relators on behalf of the State, this case might as well be styled California ('oli?wnia. Me: To weigh environmental policy against promotion of energy production in the context of a public nuisance lawsuit would render pointless the process of interpreting and applying the politi- cal resolution of such policy disputes. Ajudicial determination inserting the common law of public nuisance into the state, regional, national, and international debates on energy production and en- vironmental policy would be governmentally untenable. It would render the results of political debate up to this point moot and irrevocably define the terms of future debate. II. Federal Statutes Have Displaced the Federal Common Law on Which Plaintiffs Have Based Their Claims 1n the alternative, should the Court believe Plaintiffs? claims arejusticiable, Plaintiffs still cannot prevail, because federal statutes have displaced the common law upon which they rely in this case. The Supreme Court held more than seven years ago in AEP that Congress, by ?dele- gat[ing] to EPA the decision whether and how to regulate carbon-dioxide emissions,? had ?dis- place[d] federal common law.? 564 US. at 426. There is no relief available for Plaintiffs? common law tort claims because?like those in AEP?their theory relies on an alleged harm based on global Nos. 17?06011 17-06012WILA Arc-nous BRIEF or INDIANA ANI) 0TH HR. IN Suemtt'l' or DISMISSAL IS 4:.me Case Document 224-1 Filed omens Page 19 of 25 climate change. It does not matter that Plaintiffs here focus on production and promotion rather than emissions; ultimately the alleged harm still arises from emissions, which is exactly what Court deemed off limits to public nuisance claims in AEP. Plaintiffs claim that they are ?not seek[ing] to impose liability on Defendants for their di? rect emissions of greenhouse gases and do not seek to restrain Defendants from engaging in their business operations.? ECF No. 168, First Amended Compl. at 1] Yet in the very same breath, they request ?an order requiring Defendants to abate the global warming-induced sea level rise? which Plaintiffs attribute directly to carbon dioxide emissions: ?[p]ervasive fossil fuel combustion and greenhouse gas emissions to date will cause ongoing and future harms regardless of future fossil fuel combustion or future greenhouse gas emissions.? ECF No. 168, First Amended Compl. at 57. They also allege that ?[e]ach Defendant . . . continues to be aware. that the inevitable emissions of greenhouse gases from the fossil fuels it produces combines with the greenhouse gas emissions from fossil ?Jels . . . to result in dangerous levels of global warming with grave harms for coastal cities like San Francisco.? ECF No. 168, First Amended Compl. atil 58. In short, Plain- tiffs allege the harm is global climate change, which in their view is caused by carbon dioxide emissions. The AEP Court rejected the same theory of liability on grounds of displacement, and to conclude otherwise here would suggest that the transaction of a legally permissible commodity can be a public nuisance without any causal connection to any supposed harm to the Plaintiffs or public. The Ninth Circuit rejected similar arguments in Kim/mo when it concluded that allegations that energy companies ?conspir[ed] to mislead the public about the science of global warming? could only be successful if the underlying theory of injury based on emissions was successful. 696 F.3d at 854, 858. Moreover, as the Defendants thoroughly address, see Defendants? Motion to Dismiss, even if this Court considers the case exclusively about fossil fuel production and promotion rather than emissions, then other federal statutes still displace Plaintiffs? federal common law claims. Con- gressional enactments such as the Energy Policy and Conservation Act of codi?ed at 42 U.S.C. 1340]; the Energy Policy Act of 2005 codi fed at 42 U.S.C. the NOS. 17?06011 Al'vilK?US BRIEF or AND 0TH HR. IN DIsMIssm. l9 Case Document 224-1 Filed D4i19l18 Page 20 of 25 Mining and Minerals Policy Act, codi?ed at 30 U.S.C. 21a; the Coastal Zone Management Act, codified at 16 U.S.C. 145 10), and the Federal Lands Policy Management Act, codi?ed at 43 U.S.C. 1701(a)(12), all speak ?directly? to the reasonableness of the Defendants? conduct in pro? ducing and promoting such materials. EPCA, for example, provides that is the goal of the United States in carrying out energy supply and energy conservation research and development . . . to strengthen national energy security by reducing dependence on imported oil.? 42 U.S.C. 13401. As a result, there is no relief available for Plaintiffs? common law tort claims here be- cause?whether Plaintiffs? claims fall directly under AEP and Kiticriina or not?such claims are displaced by federal statutes. [ILThis Case Threatens Extraterritorial Regulation by Imposing Plainti?'s? Policy Choices on Other States and on Commercial Transactions Occurring Outside California A. Plaintiffs? desired remedies are a form of regulatory enforcement Plaintiffs seek ?an order of abatement requiring Defendants to fund a climate change ad- aptation program for San Francisco consisting of the building of sea walls, raising the elevation of low-lying property and buildings and building such other infrastructure as is necessary for San Francisco to adapt to climate change." ECF No. 168, First Amended Comp]. at 1] 148. Imposing such ?nancial consequences on business activity contravenes Congress?s exclusive power to reg- ulate interstate and foreign commerce. Lo. Pub. Serv. Comm ?n v. 1' 'ex. N. 0.18. (To, 284 U. S. 125, 130 (l93l One state should not (even through relators) have the power to seek a judicial remedy as means of implementing a national regulatory regime for environmental and energy production policy. Such a scheme is contrary to fundamental notions of horizontal federalism. California cannot evade the application of the Commerce Clause by using common law rather than state statutory law to regulate commerce occurring outside its borders. The constitu? tional restrictions on Califomia?s ability to regulate out-of?state commerce ?re?ect the Constitu- tion?s special concern both with the maintenance of a national economic union unfettered by state- imposed limitations on interstate commerce and with the autonomy of the individual States within Nos. 17?06011 17-06012WILA Arc-nous BRIEF or INDIANA ANI) Foua'rHHN 0TH HR. IN SUPPORT or DISMISSAL 20 Case Document 224-1 Filed D4t19t18 Page 21 of 25 their respective spheres.? Hetrly 12. Beer inst, inc, 491 US. 324, 335?36 (1939). Califomia?s at- tempt to restrict and punish out-of-state production of fossil fuels by suing producers with a com- mon tow cause of action implicates these constitutional concerns the same way a suit based on a state statutory cause of action would: as explained above. California is asking this Court to inter- pret its common law of public nuisance to impose limitations on out-of-state commerce that would interfere with other States? regulatory choices?as well as the federal government?s own regula- tory choices. For these reasons, the Supreme Court has repeatedly recognized that the constitutional principles sharply limiting States? ability to regulate extraterritorially apply to common law torts just as they apply to States? statutes.I It noted in Hearty that ?[t]he limits on a State?s power to enact substantive legislation are similar to the limits on ofstate courts. In either case, ?any attempt ?directly" to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State?s power.? id. at n.13 (emphasis added) (quoting Edgar v. MITE Corp, 457 US. 624, 643 (1982) (plurality opinion)). And in BMW North America. inc. v. Gore, it held that ?a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors? lawful conduct in other States,? observing that ?[s]tate power may be exercised as much by ajury?s application of a state rule of law in a civil lawsuit as by a statute." 517 US. 559, 572 n.l7 (1996). The rationale ofthe Supreme Court?s Dormant Commerce Clause doctrine and the language of its cases thus rule out any special exemp? ti on for extraterritorial applications of common law. B. Plaintiffs? desired remedies are unconstitutional because of the extraterritorial effect on wholly out-of-state commercial activity Plaintiffs seek to impose ?nancial consequences against oil companies to regulate produc? tion and promotion of fossil fuel that it deems a ?public nuisance? to California. ECF No. 168. While this Court previously held that dormant Commerce Clause doctrine does not apply to state common law claims. see (.?mwiey v. (hiber?ionrce 70110.. 166 F. Supp. 2d 1263. I272 (ND. Cal. 200]). that opinion is neither binding on this court nor does it prove particularly instructive here given that it did not analyze the foundational principles of extraterritoriality and the Supreme Courts precedent surrounding such principles. Nos. 17?06011 W1LA.C 17-06012WILA Arc-nous BRIEF or AND 0TH HR. IN DISMISSAL 2l 4:.th Case Document 224-1 Filed O4i19l18 Page 22 of 25 First Amended Compl. at1i 10. At the most basic level, such remedies represent an effort by one state to occupy the ?eld of environmental and energy production regulation across the nation, and to do so by superseding sound, reasonable, and longstanding standards adopted by other states in a system of cooperative federalism and by the federal government. Indeed, even if the Plaintiffs? desired remedies do not directly con?ict with other states? existing laws and regulatory framework, it nonetheless would ?arbitrarily . . . exalt the public policy of one state over that of another? in violation of the Commerce Clause. Mienvesr Title Loans, Inc. v. Miifs, 593 F.3d 660, 667?68 (7th Cir. 2010). For an example, in North Dakota v. Heydirrger, the court invalidated state regulations pro? hibiting the supply of electricity that had been generated by a ?new large energy facility.? 825 F.3d 912, 922 (8th Cir. 2016). Not only was the practical effect ?to control activities taking place whoh'y outside Minnesota,? id, but those activities had no impact on the quality of electricity being supplied. In light of Minnesota?s desire to phase out coal-?red power plants everywhere, what triggered the trade barrier were production conditions bearing on the world at large?La, produc- tion in a new coal-?red power plant?not conditions bearing only on the safety of Minnesota citi? zens. Accordingly, in determining whether a state regulation constitutes forbidden extraterrito? rial law is a function not merely of facial application, but of ?practical including ?the consequences of the statute itself. . . Heaiy v. Beerinst, Inc, 491 US. 324, 336 (1989). Here, Plaintiffs? desired remedies exemplify ?state-imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres.? Id. at 335?36. There is no doubt that, by attacking fossil fuel production and commerce (rather than emissions), Plaintiffss desired remedies would have an effect on commerce occurring wholly outside of California?s bor? der, similar to the Minnesota regulation invalidated in Indeed, Plaintiffs? own com- plaint alleges that ?Defendants are the ?ve largest investor?owned fossil fuel corporations in the worfd as measured by their historic production of fossil fuels.? Amended Complaint at 2. And the Complaint goes on to assert that ?Defendants continue to engage in massive fossil fuel production and execute long-term business plans to continue and even expand their fossil fuel production for NOS. 17?06011 Ate-nous BRIEF or AND Foua'rHHN 0TH HR. 1N Slinlxia'l' or 22 Link) Case Document 224-1 Filed Page 23 of 25 decades into the ?Jture.? ECF No. 168, First Amended Compl. at 1i 2. These allegations emphasize the impact such energy production has on our national and state economies. They also illustrate the extraterritorial signi?cance and impact of regulating such an industry through judicial common law remedies. By asking a single federal judge to impose energy production penalties on defendant com- panies, each of which is presumably compliant with the regulations of each state in which it oper- ates, Plaintiffs are attempting to export their preferred environmental policies and their correspond- ing economic effects to other states. Allowing them to do so would be detrimental to state inno- vation and regional approaches that have prevailed through the political branches of government to date. California?s attempt to regulate out?of?state production of fossil fuels and by suing pro? ducers with common law cause of action implicates the constitutional doctrine against extraterri- torial regulation. This is yet another reason to reject Plaintiffs? novel theory of liability. NOS. 17?06011 Art-nous BRIEF or INIJIANA ANI) HR. IN DISMISSAL 23 Link) Case Document 224-1 Filed 04119118 Page 24 of 25 CONCLUSION The amici States respectfully urge the Court to grant the Motion to Dismiss, Dated: April 19, 2013 NOS. 17?06011 Respectfully Submitted, By: is Thomas Fisher THOMAS M. FISHER SOLIC ITOR GENERAL MATTHEW R. ELLIOTT DEPUTY ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL 302 W. Washington Street, IGCS Floor Indianapolis, IN 46204-2770 Telephone: (317) 924-3005 Email: Tom.Fisher@atg.in.gov JAMES R. ARNOLD (SBN 56262) THE ARNOLD LAW PRACTICE One Sansome Street, Suite 3500 San Francisco, CA 94104 Telephone: (925) 284-8887 jarnold@arnoldlp.com Attorneys for Amr'cr' Carine States of Indiana, Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, and Wyoming Amn?us BRIEF OF INDIANA AND Foua'rHHN HR. IN SUPPORT OF 24 me Case Document 224-1 Filed 04119:!18 Page 25 of 25 ADDITIONAL COUNSEL CURTIS T. HILL, JR. INDIANA ATTORNEY GENERAL STEVE MARSHALL ALABAMA ATTORNEY GENERAL LESLIE RUTLEDGE ARKANSAS ATTORNEY GENERAL H. COFFMAN COLORADO ATTORNEY GENERAL CHRISTOPHER M. CARR GEORGIA ATTORNEY GENERAL DEREK SCHMIDT KANSAS ATTORNEY GENERAL JEFF LANDRY LOUISIANA ATTORNEY GENERAL DOUG PETERSON NEBRASKA ATTORNEY GENERAL NOS. 17?06011 MIKE HUNTER OKLAHOMA ATTORNEY GENERAL ALAN WILSON SOUTH CAROLINA ATTORNEY GENERAL KEN PAXTON TEXAS ATTORNEY GENERAL SEAN D. REYES UTAH ATTORNEY GENERAL PATRICK MORRISEY WEST VIRGINIA ATTORNEY GENERAL BRAD D. SCHIMEL WISCONSIN ATTORNEY GENERAL PETER K. MICHAEL WYOMING ATTORNEY GENERAL BRIEF OF INDIANA ANI) HR. IN DISMISSAL 25 From: Sent: To: Subject: Start: End: Show Time As: Recurrence: Required Attendees: Heminger, Justin (ENRD) ADMINISTRATIVE GROUP 4/19/201811:04:11 AM Smith, Justin (ENRD) Ennis, Christine (ENRD) Grant, Eric (ENRD) Hughes, Jonathan W. Lipshutz, Joshua S. (JLipshutz@gibsondunn.com) Shenkman, Ethan G. Neumann, Jennifer Scheller (ENRD) Public nuisance cases - Call 4/24/2018 11:00:00 AM 4/24/2018 12:00:00 PM Free (none) Smith, Justin Ennis, Christine Grant, Eric Hughes, Jonathan Lipshutz, Joshua S. Shenkman, Ethan Neumann, Jennifer Scheller (ENRD) ?1 From: Fisher, Torn To: Grant, Eric (ENRD) CC: Wood, Jeffrey (ENRD) Sent: 4/18/2018 9:35:35 AM Subject: RE: CA v. BP Thanks, Eric. We?ve been scrambling to pull something together, so we may just stick with the current deadline. TMF From: Grant, Eric (ENRD) Sent: Wednesday, April 18, 2018 8:48 AM To: Fisher, Tom Cc: Wood, Jeffrey (ENRD) Subject: RE: CA v. BP Tom, ljust realized I never responded to this message, for which I apologize. The United States intends, later today, to file the attached motion seeking until May 10 to file the invited amicus brief. You likely already know that the court entered the attached order regarding the deadlines for other amici to file briefs (though I would think that the court would entertain a similar motion from the States). Thanks, Eric From: Fisher, Tom Sent: Friday, April 6, 2018 1:51 PM To: Grant, Eric (ENRD) Subject: CA v. BP Eric, We were wondering if the attached has impacted your estimation for when the USA might file. Our instinct is to file seven days after the brief we are supporting (which would be April 26), but we want to avoid filing later than you. Thanks for any insight you can provide. TMF CONFIDENTIALITY NOTICE: This communication and any attachments are for the exclusive and con?dential use of the intended recipient and may contain privileged or other con?dential information. If you are not the intended recipient, please do not read, distribute or take action in reliance upon this message. If you have received this in error, please notify us immediately by return email and delete this message and its attachments from your computer system. We do not waive attorney-client, work product or other applicable privilege by the transmission of this message. United States District Court For the Northern District of California Case Document 209 Filed 04117118 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA THE PEOPLE OF THE STATE OF No. l7-0601'l WHA CALIFORNIA, No. 17-06012 WHA Plaintiff, V. NOTICE RE TIMELINE FOR AMICUS BRIEFS BP P.L.C., tarot, Defendants. Any amieus brief in support of dismissal must be filed on or before the April 19 deadline for defendants to file their motions to dismiss (so that plaintiffs have an opportunity to respond). Any amicus brief in support of plaintiffs must be ?led on or before the May 3 deadline for plaintiffs to ?le their oppositions to the motions to dismiss (so that defendants have an opportunity to respond). This order does not apply to any amicus brief submitted by the United States. IT IS SO ORDERED. Dated: April 17,20 8. ed ILL ALSUP UNITED STATES DISTRICT JUDGE JEFFREY H. WOOD Acting Assistant Attorney General ALEX G. TSE Acting United States Attorney ERIC GRANT (CA Bar No. 151064) Deputy Assistant Attorney General JUSTIN D. HEMINGER (DC. Bar No. 974809) JUSTIN S. SMITH (DC. Bar NO. 453119) CHRISTINE W. ENNIS (CA Bar No. 246101) Telephone: (202) 616-9473 E-mail: christine.ennis@usdoj. gov Attorneys US. Department of Justice Environment Natural Resources Division 950 Avenue, NW. Washington, DC. 20530 Counsel for the United States of America as Amicus Curiae THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION THE PEOPLE OF THE STATE OF First filed Case: No. CALIFORNIA, Related Case: No. Plaintiff, UNITED MOTION FOR v. EXTENSION OF TIME TO CONSIDER WHETHER TO PARTICIPATE AS AMIC US BP P.L.C., CHEVRON ORDER CORPORATION, CONOCOPHILLIPs COMPANY, EXXON MOBIL CORPORATION, ROYAL DUTCH SHELL PLC, Defendants. Pursuant to Federal Rule of Civil Procedure 6(b) and Civil L.R. 6-3, the United States requests that the Court grant a twenty-day extension of time, until May 10, 2018, to allow the United States to determine Whether to participate as amicus curiae in this proceeding and to prepare and submit any brief. The United States conferred with counsel for the Plaintiffs and counsel for Defendants and they do not oppose this motion. See accompanying Declaration of UNITED MOTION FOR NOS. 17 -CV-601 AND 17 -CV-60 12-WHA Christine Ennis (Ennis Dec.), 5. As support for this motion, the United States asserts the following: On March 1, 2018, the Court invited the United States to submit an amicus brief regarding ?whether (and the extent to which) federal common law should afford relief of the type requested by the complaints.? Order Setting Deadline for Motions to Dismiss and Inviting United States to File Amicus Brief at 1, 17-CV-6011, ECF No. 136 (Mar. 1, 2018); 17-CV-6012, ECF No. 118. As the Court?s invitation implicitly recognizes, the United States has strong interests in the development of federal common law and in the interpretation of the Clean Air Act and other federal statutes relating to energy production. Thus, the United States has proceeded diligently to consider the legal questions raised by these lawsuits and to determine whether to participate as an amicus curiae. The decision regarding whether to participate requires consultation and coordination with multiple components within the United States Department of Justice and with other federal agencies. See Ennis Dec. 11' 2. The Court originally requested the United States? brief by April 20, 2018, ten days after the close of briefing on the motions to dismiss. But on April 4, 2018, after Plaintiffs amended their complaints in this action, the Court set a new schedule for motions to dismiss. Order Setting Briefing Schedule for Motions to Dismiss Amended Complaint, 17-CV-6011, ECF No. 207 (Apr. 4, 2018); 17-CV-6012, ECF No. 176. The Court extended by approximately one month the deadlines for the parties to file their briefs, such that briefing on the motions to dismiss the amended complaints is now set to close on May 10, 2018. The Court also scheduled a hearing on the motions to dismiss for May 24, 2018 at 8:00 AM. The Court has provided notice that other potential amici should follow the briefing deadlines for the party they support, but noted that this timeline ?does not apply to any amicus brief submitted by the United States.? Notice Re Timeline For Amicus Briefs, 17-CV-6011, ECF No. 209 (Apr. 17, 2018), 17-CV- 6012, ECF No. 178. Based on the need for intragovemmental coordination, the United States believes it will require an additional twenty days to complete the evaluation process and to draft and file an 2 UNITED AMICUS CURIAE BRIEF 17-CV-6011-WHA AND 17-CV-6012-WHA amicus brief (if the United States decides to do so). See Ennis Dec. If 2. Thus, in accordance with the new schedule, the United States requests that the Court extend the deadline to file an amicus briefto May 10, 2018. A twenty-day extension is a little shorter than the extension the new schedule affords the parties. Consistent with Civil L.R. 7, the deadline that the United States now proposes is two full weeks before the May 24 motions hearing date, allowing the parties and the Court time to review the United States? brief before the hearing. What is more, a twenty-day extension will give the United States the benefit of reviewing defendants? motion to dismiss and plaintiffs? opposition brief, as envisioned by the Court?s original invitation to file an amicus brief. For these reasons, the United States respectfully requests the Court grant a twenty-day extension of time, until May 10, 2018, for the United States to determine whether to participate as amicus curiae and ?le any brief. If the United States determines not to participate as amicus curiae, it will notify the Court accordingly. Dated: April 18, 2018. Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General Environment Natural Resources Division Christine W. Ennis ERIC GRANT Deputy Assistant Attorney General JUSTIN D. HEMINGER JUSTIN S. SMITH CHRISTINE W. ENNIS Counsel for the United States of America 3 UNITED AMICUS CURIAE BRIEF 17-CV-6011-WHA AND 17-CV-6012-WHA ORDER IT IS HEREBY ORDERED THAT the April 20, 2018 deadline set for the United States in the Order Setting Deadline for Motions to Dismiss and Inviting United States to File Arnicus Brief is vacated. The United States? new deadline to file an amicus brief is May 10, 2018. IT IS SO ORDERED. Dated: WILLIAM ALSUP UNITED STATES DISTRICT JUDGE UNITED AMICUS CURIAE BRIEF 17-CV-6011-WHA AND 17-CV-6012-WHA United States District Court For the Northem District of California IxCase Document 176 Filed Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CITY AND COUNTY OF SAN No. 17-06012 WHA FRANCISCO, a Municipal Corporation, and THE PEOPLE OF THE STATE OF CALIFORNIA. acting by and through the ORDER SETTING BRIEFING San Francisco City Attorney DENNIS J. SCHEDULE FOR MOTIONS HERRERA, TO DISMISS AMENDED COMPLAINT Plaintiffs, V. BP P.L.C., slat, Defendants. Having reviewed the amended complaint, the Court feels the best way to proceed is for the pending motions to be deemed withdrawn and denied on that basis. New motions to dismiss, taking into account the amended pleading, shall be ?led in accordance with the following schedule: - Defendants shall ?le their motions to dismiss the amended complaint by APRIL 19 AT moon, Plaintiffs shall ?le their oppositions by MAY 3 AT - Defendants shall ?le any replies by MAY 10 AT and A hearing on the motions to dismiss will be held on MAY 24 AT 8:00 A.M. IT IS SO ORDERED. Dated: April 4, 2018. I WIELIAM ALSUP UNITED STATES DISTRICT JUDGE From: Grant, Eric (ENRD) ADMINISTRATIVE GROUP To: Jacob, Katherine Sent: 3/29/2018 2:19:56 PM Subject: RE: Call with Jeff Wood and Eric Grant re amicus brief in the climate change case Ms. Jacob, We?d be pleased to call you at noon Eastern time on Monday the 2nd at a number that you provide. Thanks, Eric Grant From: Jacob, Katherine Sent: Thursday, March 29, 2018 2:11 PM To: Grant, Eric (ENRD) Subject: Fwd: Call with Jeff Wood and Eric Grant re amicus brief in the climate change case Mr. Grant, Tom Fisher asked. me to help set up the call you requested. regarding the ?ling of the above amicus brief. He is available at noon on Monday. Would you like to call him, or have us initiate the call? Thank you, Kathy From: Grant, Eric (ENRD) ADMINISTRATIVE GROUP To: Tom.Fisher@atg.in.gov Sent: 3/29/2018 1:35:15 PM Subject: Call with Jeff Wood and Eric Grant Tom. My boss eff Wood told me that the two of you spoke about plans for ?ling an amicus brief in the climate change case before Judge Alsup in the Northern District of California. Jeff asked me to schedule a call next week so that we could discuss the matter further. Right now. Jeff and I are available from noon to 1:00 on Monday. 1:00 to 2:30 on Tuesday. and 1:00 to 3:00 on Wednesday. Does something in one of those ranges work for you? By the way. I've followed your career over the years since we slaved away together at Jones Day. You've been doing some cool stuff as SG of Indiana I'm envious. Thanks. Eric Grant Deputy Assistant Attorney General Environment and Natural Resources Division US. Department of Justice (202) 514-0943 (PS. I would call you. but I'm on vacation at the beach and can't find a good combination of acceptable cell service and relative quiet.) From: Heminger, Justin (ENRD) ADMINISTRATIVE GROUP To: Lipshutz, Joshua 8. Sent: 5/29/2018 3:55:45 PM Subject: Re: CVX's NYC filing Josh, Thanks for letting us know. Justin On May 29, 2018, at 3:43 PM, Lipshutz, Joshua S. wrote: Justin- FYI, Chevron filed the attached document in the New York climate change action today. Attached to this document was the US. amicus brief. Best, Josh This message may contain con?dential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message. <2018.05.29 [119] CVX's Notice of Amicus Brief of the US. as Supplemental Joshua S. Lipshutz Partner GIB SON DUNN Gibson, Dunn Crutcher LLP 1050 Connecticut Avenue, N.W., Washington, DC 2003 6-5306 Tel +1 202.955.8217 0 Fax +1202.530.9614 555 Mission Street, San Francisco, CA 94105-0921 Tel +1 415.393.8233 0 Fax +1415.374.8469 JLipshutz@ gibsondunncom - Case Document 119 Filed 05129:?18 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CITY OF NEW YORK, Plaintiff, V. Case No. 18 Civ. 132 (JFK) BP CHEVRON EXXON MOBIL and ROYAL DUTCH SHELL PLC, Defendants. CHEVRON NOTICE OF AMICUS BRIEF OF THE UNITED STATES AS SUPPLEMENTAL AUTHORITY Chevron Corporation respectfully submits as supplemental authority relating to Defendants? pending motions to dismiss an antic-us brief ?led on May 10, 2013, by the US. Department of Justice, re?ecting the views of the United States, in two related cases pending in the Northern District of California before the Honorable William Alsup. See (Thy and County of San l-?mncisco V. et (11., Case No. (N .D. Cal), Dkt. 205', see also ('in (J'Uakland v. BF et (.11., Case NO. (ND. Cal.) (together, the ?California Actions?), Dkt. 245. The brief is attached hereto as Exhibit A. This action involves claims substantially similar to the California Actions, in which the City and County of San Francisco, and the City of Oakland (each of which is also represented by Hagens Berman), assert claims for public nuisance against the same ?ve Defendants as in this case, alleging that Defendants? production and sale of fossil fuels has caused them to incur global wanning-related injuries, specifically, sea level rise. Case Document 119 Filed 05129118 Page 2 of 3 The US. Government submitted the brief in response to Judge Alsup?s request for ?an amicus bn'ef on the question of whether (and the extent to which) federal common law should afford relief of the type requested by the complaints.? See San Handset): Dkt. 1 18; Oakland, Dkt. 136. The United States also appeared and presented argument at the hearing on Defendants? motions to dismiss, which took place on May 24, 2018. Chevron Corporation notes that Your Honor may likewise request that the US. Government submit an amicus brief on the questions presented here andfor invite the US. Government to participate in the forthcoming oral argument on the Defendants? motions to dismiss, scheduled for June 13, 2018. Case Document 119 Filed 05729718 Page 3 of 3 Dated: May 29, 2013 New York, New York Herbert J. Stern (pro hac vice) Joel M. Silverstein STERN KILCULLEN, LLC 325 Columbia Turnpike, Suite 110 Florham Park, NJ 07932-0992 Telephone: 973.535.1900 Facsimile: 973.535.9664 E?mail: hstem@sgklaw.com E-mail: jsilverstein@sgklaw.com Neal S. Manne (pro hac vice) Johnny W. Carter (pro hac Wee) Erica Harris Steven Shepard Laranda Walker (pro hac vice) Kern per Di ehl Michael Adamson SUSMAN GODFREY LLP 1000 Louisiana, Suite 5100 Houston, TX 77002 Telephone: 713.651.9366 Facsimile: 713.654.6666 E-mail: nmanne@susmangodfrey.com E-mail: jcarter@susmangodfrey.com E-mail: eharris@susmangodfrey.com E-mail: sshepard@susmangodfrey.com Respectfully submitted. GIBSON, DUNN CRUTCHER LLP Anne (.Thampion Caitlin J. Halligan Andrea E. Neuman Anne Champion 200 Park Avenue New York, New York 10166 Telephone: 212.351.4000 Facsimile: 212.351.4035 E-mail: challigan@gibsondunn.com E-mail: aneuman@gibsondunn.com E-mail: achampion@gibsondunn.com Theodore J. Boutrous, Jr. (admission forthcoming) William E. Thomson (pro hoe vice) Joshua S. Lip shuta (pro not: vice) 333 South Grand Avenue Los Angeles. California 90071 Telephone: 213 229.7000 Facsimile: 213.229.7520 E-mail: tboutrous@gibsondunn.com E-mail: wthomson@gibsondunn.com E-mail: jlipshutz@gibsondunn.com Attorneysjor Defendant 7 JUN Joshua S. Lipshutz Partner GIBSON DU Gibson, Dunn Crutcher LLP 1950 Connecticut Avenue", Washington" DC 25656-u5506 Tel +1 2029558217 - Fax "Jr-l 202550296114 555 Misgiom Straw, 5am Eramismu CA 941165-0921 Tel +1 415.595.8255 0 Fax-+01 5Lipshutz@yibsomdiunn?om - W'Wwyibsomdunn?mm From: Heminger, Justin (ENRD) ADMINISTRATIVE GROUP To: Shenkman, Ethan Lipshutz, Joshua S. Sent: 5/1/2018 4:08:06 PM Subject: RE: call-in number for 11 am Ethan, Thanks for con?rming. l?m still waiting for word on moving our 2 pm meeting tomorrow, so let?s pencil in 1 pm, with the understanding that we may move it to 2 pm if our other meeting does move. i anticipate this will be a 30 minute meeting with ieff. Going into the meeting, ieff will be familiar with the general topic and the purpose of the meeting. if there is anyone else beside you and Josh who will be joining the meeting, either in person or on the phone, please let me know. Looking forward to see you tomorrow. Best regards, iustin From: Shenkman, Ethan G. Sent: Tuesday, May 1, 2018 3:14 PM To: Lipshutz, Joshua S. Heminger, Justin (ENRD) Subject: RE: call-in number for 11 am Justin this is to confirm that i am available tomorrow (Wednesday) between 1 and 3 pm to meet in person with Jeff and Eric. And beiieve Josh has already said this works for him, too. Please confirm what time is best for you and we?ll be there. Many thanks for helping to scheduie and this meeting. Best, Ethan Ethan Shenkman Panner Arnold Porter 6131 Massachusetts Ave, NW Washington District of Columbia 20001?3743 T: +1 202.942.5267 \ANi/warnoldportercom From: Shenkman, Ethan G. Sent: Tuesday, May 01, 2018 10:30 AM To: 'Lipshutz, Joshua 'Heminger, Justin Subject: caiI-in pumtJEr for 11 am caiI?in numberri: Exemptign 6 passcode: i-h-ermption 6 Ethan Shenkman Panner Arnold Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001?3743 T: +1 202.942.5267 \ANi/warnoldportercom This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: From: Shenkman, Ethan G. To: Lipshutz, Joshua Heminger, Justin (ENRD) Sent: 5/1/201811:04:13 AM Subject: WRONG CODE Re: call-in number for 11 am Please use this code instead. Codezl Exemption 6 In. . r-n-w- a - v-H Sent from my iPltone On May I. 3013, at H120 AM. Shenkman, Ethan (3, wrote: call-in passcode: Eligempfion Bj Ethan Shenkman Psdner Arnold Porter 601 Massachusetts Ave., NW Washington District of Columbia 20001-3743 T: +1 202.942.5267 This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: http://wwarnoldportercom From: Heminger, Justin (ENRD) ADMINISTRATIVE GROUP To: Shenkman, Ethan G. CC: Smith, Justin Ennis, Christine Hughes, Jonathan Lipshutz, Joshua S. (JLipshutz@gibsondunn.com) Sent: 4/24/2018 10:12:34 AM Subject: RE: Case The People of the State of California v. BP P.L.C. et al Thanks for sharing this, Etl?ran. We?re lookingr forward to our call as well. Eric will be joining us, but unfortunately, we will only have 30 minutes today. Best regards, From: Shenkman, Ethan G. Sent: Tuesday, April 24, 2018 9:22 AM To: Heminger, Justin (ENRD) Cc: Smith, Justin (ENRD) Ennis, Christine (ENRD) Kilbourne, Jim (ENRD) Hughes, Jonathan W. Lipshutz, Joshua S. (JLipshutz@gibsondunn.com) Subject: RE: Case The People of the State of California v. BP P. L.C. et al Justin, et al. -- we look forward to speaking at 11 am this morning. I wanted to bring to your attention the amicus brief filed by a number of states in Judge Alsup?s case (attached), in case you have not already seen it. I also wanted to provide citations to two cases that I mentioned briefly before, and will mention again today: North Carolina ex rel. Cooper Tennessee Valley Authority, 515 F.3d 344, 351-52 (4th Cir. 2008) (waiver of immunity in 42 USO. 7418(a)); California ex rel. Sacramento Metropolitan Air Quality Management District v. United States, 215 F.3d 1005, 1011?14 (9th Cir. 2000) (preclusion of removal under 42 USC. 7604(e)). Speak to you soon. Best, Ethan Ethan Shenkman Panner Arnold Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001-3743 T: +1 202.942.5267 \iwvwarnoldportercom From: Heminger, Justin (ENRD) Sent: Thursday, April 19, 2018 11:06 AM To: Shenkman, Ethan G. Cc: Smith, Justin Ennis, Christine Kilbourne, Jim Hughes, Jonathan Lipshutz, Joshua S. (JLipshutz@oibsondunn.com) Subject: RE: Case The People of the State of California v. BP P.L.C. et al Great just circulated an invite. FYI, Eric Grant may join us. Best regards, lustln From: Shenkman, Ethan G. Sent: Thursday, April 19,2018 11:04 AM To: Heminger, Justin (ENRD) Cc: Smith, Justin (ENRD) Ennis, Christine (ENRD) Kilbourne, Jim (ENRD) Hughes, Jonathan W. Lipshutz, Joshua S. (JLipshutz@qibsondunn.com) Subject: Re: Case The People of the State of California v. BP P.L.C. et al Yes, that should work. I can circulate a dial in number. Thanks very much, Ethan Sent from my iPhone On Apr 19, 2018, at 11 :02 AM, Heminger, Justin (ENRD) wrote: Ethan, Can we do 11 am. next: Tuesday? Thanks, Justin From: Shenkman, Ethan G. Sent: Wednesday, April 18, 2018 9:36 PM To: Heminger, Justin (ENRD) Smith, Justin (ENRD) Ennis, Christine (ENRD) Kilbourne, Jim (ENRD) Cc: Hughes, Jonathan W. Lipshutz, Joshua S. (JLipshutz@gibsondunn.com) Subject: Case The People of the State of California v. BP P.L.C. et al Justin, Justin, Christine -- as I mentioned to Justin H. today, we have been giving further thought to the questions you have posed to us. We were hoping that we could schedule a follow up call with you for Tuesday, April 24, any time between 11 am and 3pm Eastern. Could you please let us know if there is a window within that timeframe that works for you? Many thanks, Ethan Ethan Shenkman Panner Arnold 8 Porter 601lWassachuse?siAveq NVV VVashum?onl T: +1 202.942.5267 This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: From: Kilbourne, Jim (ENRD) ADMINISTRATIVE GROUP To: Shenkman, Ethan Heminger, Justin (ENRD) CC: Smith, Justin Ennis, Christine Hughes, Jonathan Lipshutz, Joshua S. (JLipshutz@gibsondunn.com) Sent: 4/24/2018 9:27:22 AM Subject: RE: Case The People of the State of California v. BP P.L.C. et al Ethan I learned last week that I needed to recuse myself from these cases because of one of the companies involved as a defendant in this lawsuit. Could you please not include me in any further emails involving this case. Thanks, Jim From: Shenkman, Ethan G. Sent: Tuesday, April 24, 2018 9:22 AM To: Heminger, Justin (ENRD) Cc: Smith, Justin (ENRD) Ennis, Christine (ENRD) Kilbourne, Jim (ENRD) Hughes, Jonathan W. Lipshutz, Joshua S. (J Lipshutz@gibsondunn.com) Subject: RE: Case The People of the State of California v. BP P.L.C. et al Justin, et al. -- we lookforward to speaking at 11 am this morning. I wanted to bring to your attention the amicus brief filed by a number of states in Judge Alsup?s case (attached), in case you have not already seen it. I also wanted to provide citations to two cases that i mentioned briefly before, and will mention again today: North Carolina ex rel. Cooper v. Tennessee Valley Authority, 515 F.3d 344, 351?52 (4th Cir. 2008) (waiver of immunity in 42 U.S.C. 7418(a)); California ex rel. Sacramento Metropolitan Air Quality Management District United States, 215 F.3d 1005, 1011-14 (9th Cir. 2000) (preclusion of removal under 42 U.S.C. 7804(e)). Speak to you soon. Best, Ethan Ethan Shenkmah Panner Arnold Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001?3743 T: +1 202.942.5267 Vianarnoldportercom From: Heminger, Justin (ENRD) Sent: Thursday, April 19, 2018 11:06 AM To: Shenkman, Ethan G. Cc: Smith, Justin Ennis, Christine Kilbourne, Jim Hughes, Jonathan Lipshutz, Joshua S. (JLipshutz@qibsondunn.com) Subject: RE: Case The People of the State of California v. BP P.L.C. et al Great i just circulated an invite. FYI, Eric Grant may join us. Best regards, lustiri From: Shenkman, Ethan G. Sent: Thursday, April 19, 2018 11:04 AM To: Heminger, Justin (ENRD) Cc: Smith, Justin (ENRD) Ennis, Christine (ENRD) Kilbourne, Jim (ENRD) Hughes, Jonathan W. Lipshutz, Joshua S. (J Lipshutz?qibsondunn.com) Lipshutz@qibsondunn.com> Subject: Re: Case The People of the State of California v. BP P.L.C. et al Yes, that should work. I can circulate a dial in number. Thanks very much, Ethan Sent from my iPhone On Apr 19, 2018, at 11:02 AM, Heminger, Justin (ENRD) wrote: Ethan, Can we do 11 am. next Tuesday? Thanks, lustin From: Shenkman, Ethan G. Sent: Wednesday, April 18, 2018 9:36 PM To: Heminger, Justin (ENRD) Smith, Justin (ENRD) Ennis, Christine (ENRD) Kilbourne, Jim (ENRD) Cc: Hughes, Jonathan W. Lipshutz, Joshua S. (JLipshutz@qibsondunn.com) Subject: Case The People of the State of California v. BP P.L.C. et al Justin, Justin, Christine -- as I mentioned to Justin H. today, we have been giving further thought to the questions you have posed to us. We were hoping that we could schedule a follow up call with you for Tuesday, April 24, any time between 11 am and 3pm Eastern. Could you please let us know if there is a window within that timeframe that works for you? Many thanks, Ethan Ethan Shenkman Padner Arnold Porter 601lWassachuse?s?Weq NVV Washington District of Columbia 20001-3743 T: +1 202.942.5267 This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: LIT-bulb) Case Document 224-1 Filed 04f19f18 Page 1 of 25 THOMAS M. GENERAL MATTHEW R. ELLIOTT DEPUTY ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL 302 W. Washington Street, IGCS Floor Indianapolis, IN 46204?2770 Telephone: (317) 232-6255 Email; Tom.Fisher@atg.in.gov Appearing pro hac vice JAMES R. ARNOLD (SEN 56262) JOHN A. BEARD (SBN 301405) THE ARNOLD LAW PRACTICE One Sansome Street, Suite 3500 San Francisco, CA 94104 Telephone: (925) 284-8887 arnold@ amol dl p. com Attorneys for Amid Curiae States of Indiana, Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, and Wyoming (Additional Counsel Listed at End) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, BP P.L.C., e! (1.3., Defendants. Nos. 17?06011 Case No. 17?06011 WHA Case No. 17-06012 WHA AMICUS BRIEF OF INDIANA AND FOURTEEN OTHER STATES IN SUP- PORT OF DISMISSAL Date: April 19, 2018 Time: 11:00 am. PT BRIEF OF INDIANA AND 0TH HR IN SUPPORT OF DISMISSAL I me Case Document 224-1 Filed 04f19l18 Page 2 of 25 TABLE OF CONTENTS TABLE OF CONTENTS 2 TABLE OF AUTHORITIES 3 INTEREST OF THE AMICI STATES 7 SIMMARY OF THE ARGUMENT 7 ARGUMENT . . . . 8 l. Plaintiffs? Claims Are Non-Justiciable 8 A, Plaintiffs? claims raise political questions and must fail 8 B. Plaintiffs? claims jeopardize our national system of cooperative federalism 1 1 II. Federal Statutes Have Displaced the Federal Common Law on Which Plaintiffs Have Based Their Claims 18 This Case Threatens Extraterritorial Regulation by Imposing Plaintiffs? Policy Choices on Other States and on Commercial Transactions Occurring Outside California . . . . . . 20 A. Plaintiffs? desired remedies are a form of regulatory enforcement 20 B. Plaintiffs? desired remedies are unconstitutional because of the extraterritorial effect on wholly out-of-state commercial activity 21 CONCLUSION . . . . . . 24 ADDITIONAL COUNSEL 25 NOS. 17?06011 Art-nous BRIEF INDIANA AND HR IN DISMISSAL 2 Link) Case Document 224-1 Filed 04t19718 Page 3 of 25 TABLE OF AUTHORITIES CASES American Eieetrte Power Co. v. Connecticut, 564 8,19 Antotok v. United States, 873 F.2d 369 (DC. Cir. 1939) '10 Baker v. Carr, 369 U.S. 186 (1962) 8, 10 BMW ofNortn America, Inc. v. Gore, 21,22 California Gen. Motors Corp, N1). (706-05755, 2007 WL 2726871 (ND. Cal. Sept. 17, 2007) 9 Carmichaei 1i. Keiiagg, Brown Root Serum, Inc. 572 F.3d 1271 (11th Cir. 2009) 9, 10 Chaser Shipping Corp. v. United States, 649 F. Supp. 736 (S.D.N.Y. 1986) 10 Comer Murphy NO. 05-436, 2007 WL 6942235 (SD. Miss. Aug. 30, 2007) (unpublished ruling), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010), mandamus denied, N0. Jan. 10,2011) 9 Crowley 1t. (.jiben?a?oaree Corp, 166 F. Supp. 2d 1263 (NI). Cal. 2001) 21 Edgar v. M1711. Corp, 457 U.S. 624, 643 (1932) 21 Heat}? v. Beer Inst, Ina, La. Pub. Sew. Comm ?n v. Tex. NOR. 284 U.S. 125 (1931) 20 Marbary v. Madixon, Mic?vest Titie Loans, Inc. v. Milk, 593 F-3d 660 (7th Cir. 2010) 22 NOS. 17?06011 WILKC 11060121771175; AMICUS BRIEF 014 INDIANA AND HR 1N (11" DISMISSAL 3 Link) Case Document 224-1 Filed 04i19i18 Page 4 of 25 CASES [coNT?u] Native v. Corp, 663 F. Supp 2d 863 (ND. Cal. 2009), aff?d, 696 F.3d 849 (9th Cir. 2012) 9, 10, 19, 20 North Dakota v. 825 F.3d 912 (8th Cir. 2016) 22 Occidental of Umm a! Qaywayn, Inc. v. A eriain Cargo of!) W011, 57'? F.2d1196(5th Cir. 1978) . ..9 FEDERAL STATUTES 42 U.S.C. 7401 eiseq 12 42 U.S.C. 7410(a) 12 42 U.S.C. 741612 42 U.S.C. 13401 20 STATE STATUTES Cal. Pub. Res. Code {$300417r Cal. Pub. Res. Code 3106(b) 18 Cal. Pub. Res. Code ?3106(d) 18 Tex. Nat. Res. Code 34.052 . 18 Tex. Nat. Res. Code 34.055 18 Tex. Nat. Res. Code? 131.0020) '18 OTHER AUTHORITIES Climate Change Programs, California Air Res. Ed, 14 Coastal Zone Management Act, 16 U.S.C. 14510) 20 Consolidated Appropriations Act, 2016, cmiffiedai 42 U.S.C. 6212a(b) 18 antral of Emissions from New Highway Vehicles and Engines, Notice of Denial ofPet. for Rulemaking, 68 Fed. Reg. 52922 (Sept. 8, 2003) 1 1 NOS. WILKC 17-06012WILA AMICIJS BRIEF 0H INDIANA AMI: HR 1N DISMISSAL ?4 Link) Case Document 224-1 Filed 04t19/18 Page 5 of 25 OTHER AUTHORITIES Copenhagen Accord, December 7-19, Decision 15th sess. (2010Holly Doremus W. Michael Hanemann, QfBabies andr Batinvater: the (Tean Air Act ?3 Cooperative Federalism Framework is Us?e?ti?Jr Addressing Global Warming, 50 Ariz. L. Rev. 799 (2008) 12 Energy Policy Act of2005, codifiedat 42 Energy Policy and Conservation Act of 1992, codi?edat 42 U.S.C. 1340120 FACT SHEET: US. Reports its 2025 Emissions Target to the dated March 31, 2015, of?cei201 5/038 . . .. . . . . . . .. . . . . .. . . . . .. . 1 7' Federal Lands Policy Management Act, 43 in?irmation Provided by Parties to the Convention Relating to the (TInJenhagen Accord, UN. Climate Change, and-resourcestint?ormation Kyoto Protocol to the 37 22 (1998), Dec. 10, 1997 15 Marrakesh Accords of 2005, October 29?November 10, Decision 7th sess. (2001) 15 Mining and Minerals Policy Act, 30 U.S.Org. for Econ. Co?Operation Dev, 2010f15 OECD Economic Surveys: United States 129 (Sept. 2010) 13 Paris Agreement, art. 2 (Dec. 12, 2015), 16 Paris Agreement, November 30?December 13, Decision 21 st sess. (2016) 16 Parts Agreement Status of Rati?cation, U. N. Climate Change, int! proce ss/th e?pari s-agreement/ status-of?rati?cati on 16 Pew Center on Global Climate Change, climate-policy! 13, I4 NOS. Art-nous BRIEF 0H AND HR 1N or 5 Link) Case Document 224-1 Filed 04t19/18 Page 6 of 25 OTHER AUTHORITIES Mike Porter, Governor Unveiis New Virginia Energy Pian during VCU Visit, VCU NEWS, Sept. 13, 2007, President Trump Announces U. S. Withdrawai?om the Paris Climate Accord (June 1, 2017), an nounees-u-s?withdrawal -pari s?elimate-aeeordt 16 Regionai Greenhouse Gas Initiative auction prices are the lowest since 20] 4, TO- DAY IN ENERGY, US. Energy Info. Admin. (May 31, 2017) l3 Elisabeth Rosenthal, Ottawa 15' Backing Raises Hopesfor Pact, NY. Times (Mar. 2009), Status ofRatification of the Convention, UNCC, conventioniwhat-i 14, 1 5 Status ofRatification of the Kyoto Protocol, UN. Climate Change, eati on 16 David G. Tuerek et at., the Economic Anaiysis of the Western Climate Initiative ?s Regional Cap-and-i?rade Program 1 (Mar. 2009), 13 May 9, 1992, 1771 U.N.T.S. 107; S. Treaty Doc No. 102?33 15 University of Nebraska Carbon Sequestration Program, http:iiesp.unl.eduipubliei 14 Phillip Weiser, towards a Constitutional Architecture for Cooperative ii'ederaiisni, 79 NC. L. Rev. 663 (2001) 1 1, 12 Michael Weisslitz, Rethinking the Equitabie Princrpie of Common but Differentiated De?erentiai Versus Absoiute Norms of Compliance and Contribution in the Giohai Citmate Change Contest, 13 Colo. J. 1an Envtl. L. Pol?y 473 (2002) . . . 16 What are United Nations Ciinrate Change Con?erences? United Nations Climate Change, mate-ehange-eonferenees 5 What is the Kyoto Protocol, UN. Climate Change, 5 David R. Wooley Elizabeth M. Morss, 59 10:30. Regionat greenhouse gas reduction initiatives, Clean Air Act Handbook (2017) 13 NOS. 17?06011 Art-nous BRIEF or 1NDIANA AND Four-tram HR 1N SUPPORT or Ulsu-Ilssm. ti 4:.th Case Document 224-1 Filed 04f19f18 Page 7 of 25 INTEREST OF THE AMICI STATES The justiciability of climate change lawsuits under federal common law is an issue of ex- traordinary importance to the Amici States. To permit federal adjudication of claims for abatement fund remedies would disrupt carefully calibrated state regulatory schemes devised by politically accountable of?cials. Federal courts should not use public nuisance theories to confound state and federal political branches? legislative and administrative processes by establishing emissions pol- icy (or, as is more likely, multiple con?icting emissions policies) on a piecemeal, ad hoc, case-by- case basis under the aegis of federal common law. States have an especially strong interest in this case because the list of potential defendants is limitless. Plaintiffs? theory of liability involves nothing more speci?c than promoting the use of fossil fuels. As utility owners, power plant operators, and generally signi?cant users of fossil fuels (through facilities, vehicle fleets and highway construction, among other functions), States and their political subdivisions themselves may be future defendants in similar actions. SUMMARY OF THE ARGUMENT In the name of the State of California, the cities of San Francisco and Oakland seek to harness the power and prestige of federal courts to remedy global climate change. They assert that five fossil fuel corporations, by producing such fuels and promoting their use, have broken the law?but not law enacted by a legislature, promulgated by a government agency, or negotiated by a President. Rather, the law Plaintiffs invoke is common law. They say that Defendants? production of fossil fuels and the subsequent use of those fuels by third parties sufficiently contributes to global warming as to constitute a ?public nuisance? that the federal judiciary should enjoin. But the questions of global climate change and its effects?and the proper balance of reg- ulatory and commercial activity?are political questions not suited for resolution by any court. Indeed, such judicial resolution would trample Congress?s carefully-calibrated process of cooper- ative federalism where States work in tandem with EPA to administer the federal Clean Air Act. And even were that not so, the Supreme Court has already said that the Clean Air Act and related EPA regulations have displaced the federal common law on which Plaintiffs base their claim in this case: ?We hold that the Clean Air Act and the EPA actions it authorizes displace any Nos. 17?06011 BRIEF oH INDIANA AND HR IN Disk-risen]. 7 Case Document 224-1 Filed o4l19l18 Page 8 of 25 federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel ?red power plants.? American Electric Pot-ref Ca. V. (Traumatic-tin, 564 US. 410, 424 (201 l) (AEP). Plaintiffs seek to evadeAEP?s mandate by framing the ?nuisance? as ?producing? and ?promoting? the use of fossil fuels rather than ?emitting carbon dioxide,? but this tactic serves only to show that their claim is too attenuated. ECF No. 168, First Amended Comp]. at 10, 33, 117. Similarly, they request relief in the form of an ?abatement fund remedy? rather than outright abatement, but the Ninth Circuit has already said that the remedy requested is irrelevant to the displacement issue. Ultimately, neither stratagem changes the essential nature of Plaintiffs? claim or of the liability that they are asking the court to impose?liability that could serve as the predicate for myriad remedies in future cases or even in this one. Finally, Plaintiffs? claims, if successful, would have impermissible extraterritorial impact. Consider: Plaintiffs are asking the court to order Defendants to pay to build sea walls, raise the elevation of low-lying property and buildings, and construct other infrastructure projects necessary to combat the effects of global climate change for the major cities of Oakland and San Francisco. Such a remedy could cost several billion dollars and seriously impact Defendants? ability to pro- vide energy to the rest of the country. In effect, Plaintiffs would be imposing limitations on com- merce that takes place wholly outside California?s borders. Such limitations violate the dormant Commerce Clause just as surely as any statutory enactment, and the court should not permit them. ARGUMENT I. Plaintiffs? Claims Are Non-Justiciahle A. Plaintiffs? claims raise political questions and must fail Plaintiffs? objections to fossil fuel use are based in public policy, not law, and are thus not appropriate for judicial resolution. Longstanding Supreme Court precedent has established that a claim presents non- justiciable political questions if its adjudication would not be governed by ?judicially discoverable and manageable standards? or would require ?an initial policy determination of a kind clearly for non-judicial discretion.? Baker v. Carr, 369 US. 186, 217' (I962). The political question doctrine arises from the Constitution?s core structural values of judicial modesty and restraint. As early as Nos. 17?06011 17-06012WILA AMIc?us BRIEF OF INDIANA AND Foua'l'HHN HR IN or Ulsn-nssm. 8 4:.th consumer. Case Document 224-1 Filed O4i19i18 Page 9 of 25 v. Madison, Chief Justice Marshall stated that ?[q]uestions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.? US. (1 Cranch) 137, 170 (1803). These questions, Marshall wrote, ?respect the nation, not individual rights . . . id. at 166. There, in the very case that establishes the power of judicial review, the political question doctrine received its judicial imprimatur. Earlier attempts to litigate climate change public nuisance lawsuits have run headlong into the political question doctrine. Indeed, ibis Court previously dismissed two cases seeking relief from industry for harms allegedly caused by global climate change. In one case, it dismissed an Alaskan village?s claims seeking damages from dozens of energy companies for coastal erosion allegedly caused by global warming, observing that ?the allocation of fault?and cost?of global warming is a matter appropriately left for determination by the executive or legislative branch.? Naiive v. islrxonMobil Corp, 663 F. Supp 2d 363, 877 (ND. Cal. 2009), 696 F.3d 849 (9th Cir. 2012). In another, it dismissed public nuisance claims against automakers, recognizing ?the complexity of the initial global warming policy determinations that must be made by the elected branches prior to the proper adjudication of Plaintiff? 5 federal common law nuisance and the ?lack of judicially discoverable or manageable standards by which to properly adjudicate Plaintiffs federal common law global warning nuisance cl aim.? See v. Gait. Moiors Corp, No. cos-05755, 2007 WL 272637] at *16 (ND. Cal. Sept. 17, 2007) Similarly, a district court in Mississippi dismissed on political question grounds a lawsuit by Gulf of Mexico residents against oil and gas companies for damages from Hurricane Katrina, which plaintiffs alleged was strengthened by climate change. Comer v. Morphy OH 1, No. 05-436, 2007 WL 6942285 (SD. Miss. Aug. 30, 2007) (unpublished ruling), ripped! dismissed, 607 F.3d 1049 (5th Cir. 2010), mandamus denied, NO. 10?294 (US. Jan. 10, 2011). More broadly, several Circuits in addition to the Ninth Circuit and other federal courts have recognized that political questions may arise in cases that are nominally tort claims. See, cg, Oc- cideniai of Umm ai Inc. v. A Cerium Cargo ofPeirof., 577 F.2d 1196, 1203 (5th Cir. 1978) (concluding tortious conversion claims were barred by the political question doctrine); Car- michael v. Kellogg, Browr div Root Semis, Inc, 572 F.3d 1271 Cir. 2009) (finding tort claims Nos. 17?06011 Art-urns BRIEF oH INDIANA AND Four-Liam an 1N or Ulsa-Ilssm. 9 4:.th Goesaoxm Case Document 224-1 Filed O4i19l18 Page 10 of 25 arising from automobile accident were barred by the political question doctrine); magma v. [lofted Stores, 873 F.2d 369, 383 (DC. Cir. 1989) (noting that is the political nature of the [issue], not the tort nature of the individual claims, that bars our review and in which the Judiciary has no expertise?); Chaser Shipping Corp. v. (?irted Stores, 649 F. Supp. 736, 738 (S.D.N.Y. 1986) (?Even though awarding tort damages is a traditional function for the judiciary, it is apparent that there is a clear lack of judicially discoverable and manageable standards for arriving at such an award?). As the weight of authority demonstrates, Plaintiffs claims in this case may be styled as torts, but they are in substance political, and thus nonjusticiable. 2. Plaintiffs? claims plainly are not governed by ?judicially discoverable and man- ageable Baker, 369 US. at 217. They are instead governed by ?policy determina? tion[s] of a kind clearly for non-judicial discretion.? 1d, see also Kimmie, 663 F. Supp. 2d at 874? 77. There are no judicially enforceable common law ?nuisance? standards to apply, or any practical limitation on the judicial policymaking role as the court decides whether the prospect of global climate change makes it ?unreasonable" for energy companies to extract and produce fossil fuels. To determine liability, the court would need to determine that plaintiffs have a ?right? to the climate?in all of its infinite variations?as it stood at some unspecified time in the past, then ?nd not only that this idealized climate has changed, but that Defendants caused that change through ?unreasonable? action that deprived Plaintiffs of their right to the idealized climate. And, as a remedy, it. would need to impose a regulatory scheme on fossil fuel emissions already sub- jected to a comprehensive state-federal regulatory scheme by way of balancing the gravity of harm alleged by the Plaintiffs against the utility of each Defendant?s conduct. Such decisions have no principled or reasoned standards. Federal judges are not in a position to discern, as a matter of common law, the proper regulatory balance. There should be no doubt that adjudicating these claims would require a complex ?initial policy determination? that is more appropriately addressed by other branches of government. Baker, 369 US. at 217. EPA reaf?rmed this point long ago when it observed that issue of Nos. 17?06011 17-06012WILA ?ts-nous BRIEF or INDIANA ANI) Foua'rHHN 0TH HR. IN DIsMIssm. l? 4:.th Case Document 224-1 Filed O4i19l18 Page 11 of 25 global climate change . . . has been discussed extensively during the last three Presidential cam- paigns; it is the subject of debate and negotiation in several international bodies; and numerous bills have been introduced in Congress over the last 15 years to address the issue.? Control of Emissions?'om New Highway l?Ehicl?es orrdEngines, Notice of Denial of Pet. for Rulemakin g, 68 Fed. Reg. 52922, 52928 (Sept. 8, 2003). Furthermore, EPA observed, ?[u]navoidably, climate change raises important foreign policy issues, and it is the President's prerogative to address them.?1d. at 52931. For these reasons, ?[v]irtually every sector of the US. economy is either directly or indirectly a source of [greenhouse gas] emissions, and the countries of the world are involved in scienti?c, technical, and political?level discussions about climate change.? Id. at 52923. Federal courts should not set nationwide energy and environmental policy?or, more likely, competing policies?on an ad hoc, case?by?case basis under the aegis of federal common law. They face immutable practical limits in terms of gathering information about complex public policy issues and predicting long-term consequences that might ?ow from judicial decisions. And critically, federal courts lack political accountability for decisions based on something other than neutral principles. B. Plaintiffs? claims jeopardize our national system of cooperative federalism Plaintiffs? desired remedies are nothing more than a form of regulatory enforcement and creation of policy through the use of judicial remedies. Plaintiffs seek to inject their political and policy opinions into the national regulatory scheme of energy production, promotion, and use. Yet all States play a critical regulatory role wi thin their borders, and Congress has leveraged and aug- mented that authority by way of the Clean Air Act, a cooperative federalist program designed to permit each State to achieve its optimal balance of regulation and commercial activity. Cooperative federalism in the environmental and energy production policy arena underscores the political na? ture of this case. 1. Cooperative federalism?where the federal government creates federal standards and leaves the implementation to the States?allows states significant discretion and power and, as a consequence, encourages multiple levels of political debate and negotiation. See Phillip Nos. 17?06011 Ah-Ilt?lJS BRIEF OF INDIANA ANI) 0TH HR. IN or ll 4:.th scooqoxm Case Document 224-1 Filed O4i19l18 Page 12 of 25 Weiser, Towards a Architecture for Crmperottve Federalism, 79 NC. L. Rev. 663, 668?70, 671?73 (2001). [t proves to be especially bene?cial in areas of regulation where eco- nomic trade?offs and regional variation are important, such as the balance between energy produc? tion and environmental law. See generally, tag, Holly Doremus W. Michael Hanemann, Babies and Bothwater: Why the Clean Air Act is Cooperative [federalism Framework is lse?nlfor Addressing Global Warming, 50 Ariz. L. Rev. 7?99 (2008). As underscored by the Supreme Court?s decision in AEP, the Clean Air Act, 42 U.S.C. 7401 et seq, serves as the most signi?cant political instrument to address the consequences of air emissions and is a prime example of cooperative federalism in action. While the Clean Air Act requires the EPA to establish national health-based air quality standards to protect against common environmental pollutants, it also assigns States a significant role in enforcing these standards. It thereby illustrates the inherently political undertaking regulation of environmental standards weighed against energy production and emission-producing activities. For example, States adopt their own State Implementation Plans (SlPs) for compliance with National Ambient Air Quality Standards within three years of EPA promulgation. See 42 U.S.C. 7410(a). While such plans must meet basic requirements and are subject to EPA approval or disapproval, they must be adopted through a process involving public input, ensuring that the plans are adapted to the particular circumstances of each state. id. States are Free to choose how best to meet federal requirements within their borders and are expressly allowed to have more stringent requirements than the basic Federal mandate. See id. 7416. As a consequence, no two STPs are identical. And even the EPA STP approval process is subject to public notice and com- ment, which permits a wide range of participation by the public and helps ensure that EPA and the States make reasonable trade?offs in the course of implementing the Clean Air Act. 2. The political negotiations and compromises necessary for accountable regulatory action extend beyond the Clean Air Act to regional compacts, where groups of states, with the blessing of Congress, can add yet more greenhouse gas limits. These compacts differ greatly as they address a wide spectrum of issues related to global climate change. Some target emissions, and in so doing vary in reduction targets. Whereas the Regional Greenhouse Gas Initiative aims NOS. 17?06011 Arc-nous BRIEF or AND 0TH HR. IN SUPPORT or DISMISSAL 12 4:.me Case Document 224-1 Filed 04t19t18 Page 13 of 25 to reduce CO2 emissions from 2009 levels by 10% by the year 2018, the Midwestern Greenhouse Gas Reduction Accord seeks to reduce emissions by 20% from 2005 levels by the year 2020. Compare Regionai Greenhouse Gas Initiative auction prices are the for-vest since 201' 4 TODAY IN ENERGY, US. Energy Info. Admin. (May 31, 2017), with Org. for Econ. Co?Operation Dev, 2010/15 OECD Economic Surveys: United States 129 (Sept. 2010). Another compact, the Western Climate Initiative, has targeted a 15% reduction from 2005 levels by the year 2020. David G. 'l?uerck et at, The Economic Anabtsis of the Western Climate Initiative ?s Regional Cap-and? Trade Program 1 (Mar. 2009), These programs share a ?cap and trade" methodology, combined with technology invest- ments and offsets, in order to allow regional economic growth while pursuing environmental goals. Despite this similarity, each differs in its particular implementation based on the aggregate condi- tions?both economic and ecologic?of the region. What is more, while some place mandatory requirements on their member states, others urge voluntary compliance. .?onipare Regionoi Green- house Gas initiative auction prices are the lowest since 2014, TODAY TN ENERGY, U. S. Energy Info. Admin. (May 31, 2017), (describ- ing RGGI as ?the nation?s first mandatory cap-and-trade program for greenhouse gas emissions?), withr David R. Wooley Elizabeth M. Morse, :5 10:30. Regimenlr greenhouse gas reduction initia- tives, Clean Air Act Handbook (2017) (noting that ?an advisory panel [of the Midwestern Regional Greenhouse Gas Reduction Accord] released its final recommendations for a regional GHG cap- and-trade program? but ?the governors of the states who signed the Accord never adopted the rec- ommendations of the advisory These compacts?each the result of yet more politics? further demonstrate the unsuitability of a one?size??ts?all environmental and energy production regulatory regime as a matter of judicial review. This is not to say that such policies are implemented solely on federal and regional levels. At least 21 States have designed individual regulations addressing those sources of greenhouse gases of greatest local concern, in a way consistent with their local priorities. See Pew Center on Global Climate Change, (providing a dynamic Nos. 17?06011 17-06012WILA BRIEF or INIJIANA AND HR IN or DISMISSAL l3 4:.th Case Document 224-1 Filed O4t19l18 Page 14 of 25 maps of state and regional activities in the United States). California has its own cap and trade program, requires power companies to source 33% of their electricity from renewable sources, and requires greenhouse gas emission reporting, among other regulations. See (Winnie Change Pro- grams, California Air Res. Bd., In contrast, Nebraska invests in research on the effectiveness of using agricultural land for carbon sequestration. See, cg, Uni- versity of Nebraska Carbon Sequestration Program, Virginia has com- mitted to a 30% reduction in greenhouse gas emissions from 2007 levels by 2025, driven by energy conservation and renewable energy usage. Mike Porter, Governor Unveils New Virginia Energy Plan during Visit, VCU NEWS, Sept. 13, 2007, veils_new_V sit. Each State?s decision implicitly re?ects a balancing of the costs of climate change regulation weighed against the benefits likely to accrue from the regulation. Thus, through the cooperative federalism model, States use their political bodies to secure environmental bene?ts for their citizens without sacri?cing their livelihoods, and each does so in a different fashion?a natural result of the social, political, environmental, and economic diversity that exists among States. A plan to modify greenhouse gas emissions that is acceptable to Cali- fornia or Vermont may be unacceptable to Indiana, Georgia, or Texas, for example. 3. If these multi-level approaches are not enough to demonstrate the political nature of the claim Plaintiffs have brought to federal court, the very description of the problem this case seeks to address Surely resolves any remaining doubt. Plaintiffs are worried not about. national climate change, but about giobcn' climate change. And, indeed, the global nature of concerns over anthropogenic climate change has spawned a variety of treaties and other international initiatives aimed at addressing air emissions. This activity has been multifaceted, balancing a variety of eco- nomic, social, geographic, and political factors and emphasizing multiparty action rather than ar- bitrarily focusing on a single entity or small group of entities. The United Nations has responded to concerns about the possibility of climate change by creating the United Nations Framework Convention on Climate Change This treaty has been joined by 196 nations and 1 regional development group. See Stains of Nos. 17?06011 BRIEF or INDIANA ANI) 0TH HR. IN l4 .12.me Case Document 224-1 Filed 041191118 Page 15 of 25 the Convention, UN. Climate Change, (providing link to listing of 197 signatories to the The is mostly aspirational, with provisions suggesting that patties ?should? attempt to ?anticipate, prevent, or mitigate? climate change. See generally UN. Framework Con- vention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107; S. Treaty Doc No. 102-38 (entered into force March 21, 1994). A number of provisions also focus on technology transfers from developed to developing nations and economic sustainability of environmental policies. See id. Countries retain discretion to set their individual policies in pursuit of these goals on the basis of the speci?c conditions of each party. See id. art. 3, 113. These commitments implicate delicate matters of national and international policy, includ- ing the relationships between ?developing nations? and ?developed nations;? the transfer of tech- nology and skills between nations; education, methods of containing climate change, and the time- tables involved in doing so. See id. art. 4. Because of the complex nature of these commitments, the member countries of the and its different committees have met regularly since 1996 to discuss implementation. See What are Urnted Notions Change United Nations Climate Change, change-conferences. At these meetings, the nations involved discuss implementation of the aspi? rational commitments contained within the and recent scientific developments. See generally id. These meetings have spawned numerous ancillary agreements, including the Kyoto Proto- col to the 37 I.L.M. 22 (1998), Dec. 10, 1997; the Marrakesh Accords of 2005, UN- October 29?November 10, Decision 31th sess. (2001); the Copenhagen Accord, December 7?19, Decision 21CP.15, 15th sess. (2010), and the Paris Agreement, November 30?December 13, Decision 21st sess. (2016). These agreements, un? like the typically require binding commitments from members. See, tag, What is the Kyoto Protocol, U.N. Climate Change, kyoto-protocol (stating the Kyoto Protocol ?commits its Parties by setting internationally binding emission reduction targets?). NOS. 17?06011 An-Ilt?tis BRIEF OF INDIANA ANI) 0TH HR. IN Summer 0v DISMISSAL 15 4:.me Case Document 224-1 Filed 04i19t18 Page 16 of 25 Notably, President Clinton signed the Kyoto Protocol, which required reductions of ?de- veloped nations? but not ?developing nations,? but the United States did not ratify the treaty. See Status of Rati?cation of the Kyoto Protocol, UN. Climate Change, Explaining the United States? decision not to ratify the Pro- tocol, President Bush noted that it exempted from its limitations 80% of the world, including India and China, and that he believed it would harm the United States? economy. See, Michael Weisslitz, Rethinking the eqritabie Prinw'pie of Common inn Di?rentiated Responsibility: Dif- ferential Versus Ahsointe Norms (yr ('ompiiance and Contribution in the Giobai ('iimate Change Context, 13 Colo. J. lnt'l Envtl. L. Pol?y 473, 507?08 (2002). In contrast, President Obama placed the United States at the forefront of the negotiation of the Copenhagen Accord in 2009, with the hope that this new agreement would ameliorate the flaws of the Kyoto Protocol. See, Elisabeth Rosenthal, Obama is Backing Raises Hopesfor Climate Pact, NY. Times (Mar. 1, 2009), html. The United States has since agreed to be bound by it. See information Provided by Parties to the Convention Reiating to the (?inteithagen Accord, UN. Climate Change, the-copenhagen-accord. More recently, the United States entered into the Paris Agreement, which went in to force on November 4, 2016. See Paris Agreement Status of Ratification, U. N. Climate Change, The Paris Agreement?s cen- tral aim is address climate change by limiting global temperature increase to well below 2 degrees Celsius, and also pursuing efforts to further limit the increase to 1.5 degrees. Paris Agreement, art. 2, (Dec. 12, 2015), lish_pa1is_agreement.pdf. Parties to the Paris Agreement are also required to work to reduce its emissions by adopting a Nationally Determined Contributions (NDCs) including requirements that all Parties report their emissions and efforts to reduce such emissions. id. at art. 3. On March 2015, the United States ?led its Intended Nationally Determined Contribution (INDC), which Nos. 17?06011 Ah-Ilt?lJS BRIEF 4:.th ~0chan Case Document 224-1 Filed O4t19t18 Page 17 of 25 serves as a formal statement of the United States that it would work to reduce emissions by 26? 28% below 2005 levels by 2025, and to make best efforts to reduce by 28%. See ACT US. Reports its 2025 Emissions Target to the (Mar. 31, 2015), :iiobamawhitehouse. archives. gov/the-press-of? cei20 1 5t03 t3 1/ fact?sheet?us?repo rts-its- Yet, with the change in administrations, President Trump an- nounced he would withdraw the United States from the Paris Climate Change Agreement on June 1, 2017. See President Trump Announces (LS. Withdrawai?om the Paris Climate Accord (June I 2017), tehouse. gov/arti cl es/president-trum p-announ ces?u-s?wi thdrawal -paris- climate?accordi. The past two decades have thus seen four Presidenci es with widely divergent views of what the United States? foreign policy on climate change and greenhouse gas emissions should be. These shifts in direction further demonstrate the political nature of environmental and fossil fuel regulation and reaffirm the need for such decisions to be the subject of political debate and ac- countability. 4. Focusing on energy production rather than emissions does not make this case any less inherently political. If anything, it underscores the political nature of the global climate change problem by casting a spotlight on yet more political choices that bear on the issue. In some instances States themselves promote the very energy production and marketing targeted in this case. For example, the Califomia State Oil and Gas Supervisor is charged with ?enc0urag[ing] the wise development. of oil and gas resources" and ?permit[ing] the owners or operators of the wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground Cal. Pub. Res. Code 3004, 3106(b), Similarly, Texas permits the ?land subject to its control surveyed or subdivided into tracts, lots, or blocks which will, in its judgment, be most conducive and convenient to facilitate the advantageous sale of oil, gas, or mineral Tex. Nat. Res. Code 34.052, and allows the issuance of ?a permit for geological, geophysical, and other surveys and investigations on land . . . that will encourage the development of the land for oil, gas, or other minerals." id. 34055. More specifically addressing the extraction of such fossil fuels, the Texas legislature found that NOS. 17?06011 17-06012WILA Art-nous BRIEF or INDIANA ANI) Foux'rHHN 0TH HR. IN SUPPORT OF DIsMIssm. l? Case Document 224-1 Filed D4i19l18 Page 18 of 25 ?the extraction of minerals by surface mining operations is a basic and essential activity making an important contribution to the economic well-being of the state and Id. 13 1 002(1 And the federal government is no different; numerous federal statutes expressly state the govern? ment?s intention ?to promote the ef?cient exploration, production, storage, supply, marketing, pricing, and regulation of energy resources, including fossil fuels . . . Consolidated Appropria- tions Act, 2016, codi?ed at 42 U.S.C. 62l2a(b); see also Energy Policy Act of 2005, codi?edai 42 U.S.C. (?The purpose of this section is . . . to promote oil and natural gas pro- duction . . . Such promotion not only demonstrates the inherently political nature of this issue, but also suggests that States and the federal government themselves could be subject to liability if Plain- tiffs? claims are permitted to proceed. Indeed, in view not only of Plaintiffs? expansive theories of liability, but also their presumption of suing as relators on behalf of the State, this case might as well be styled California ('oli?wnia. Me: To weigh environmental policy against promotion of energy production in the context of a public nuisance lawsuit would render pointless the process of interpreting and applying the politi- cal resolution of such policy disputes. Ajudicial determination inserting the common law of public nuisance into the state, regional, national, and international debates on energy production and en- vironmental policy would be governmentally untenable. It would render the results of political debate up to this point moot and irrevocably define the terms of future debate. II. Federal Statutes Have Displaced the Federal Common Law on Which Plaintiffs Have Based Their Claims 1n the alternative, should the Court believe Plaintiffs? claims arejusticiable, Plaintiffs still cannot prevail, because federal statutes have displaced the common law upon which they rely in this case. The Supreme Court held more than seven years ago in AEP that Congress, by ?dele- gat[ing] to EPA the decision whether and how to regulate carbon-dioxide emissions,? had ?dis- place[d] federal common law.? 564 US. at 426. There is no relief available for Plaintiffs? common law tort claims because?like those in AEP?their theory relies on an alleged harm based on global Nos. 17?06011 17-06012WILA Arc-nous BRIEF or INDIANA ANI) 0TH HR. IN Suemtt'l' or DISMISSAL IS 4:.me Case Document 224-1 Filed omens Page 19 of 25 climate change. It does not matter that Plaintiffs here focus on production and promotion rather than emissions; ultimately the alleged harm still arises from emissions, which is exactly what Court deemed off limits to public nuisance claims in AEP. Plaintiffs claim that they are ?not seek[ing] to impose liability on Defendants for their di? rect emissions of greenhouse gases and do not seek to restrain Defendants from engaging in their business operations.? ECF No. 168, First Amended Compl. at 1] Yet in the very same breath, they request ?an order requiring Defendants to abate the global warming-induced sea level rise? which Plaintiffs attribute directly to carbon dioxide emissions: ?[p]ervasive fossil fuel combustion and greenhouse gas emissions to date will cause ongoing and future harms regardless of future fossil fuel combustion or future greenhouse gas emissions.? ECF No. 168, First Amended Compl. at 57. They also allege that ?[e]ach Defendant . . . continues to be aware. that the inevitable emissions of greenhouse gases from the fossil fuels it produces combines with the greenhouse gas emissions from fossil ?Jels . . . to result in dangerous levels of global warming with grave harms for coastal cities like San Francisco.? ECF No. 168, First Amended Compl. atil 58. In short, Plain- tiffs allege the harm is global climate change, which in their view is caused by carbon dioxide emissions. The AEP Court rejected the same theory of liability on grounds of displacement, and to conclude otherwise here would suggest that the transaction of a legally permissible commodity can be a public nuisance without any causal connection to any supposed harm to the Plaintiffs or public. The Ninth Circuit rejected similar arguments in Kim/mo when it concluded that allegations that energy companies ?conspir[ed] to mislead the public about the science of global warming? could only be successful if the underlying theory of injury based on emissions was successful. 696 F.3d at 854, 858. Moreover, as the Defendants thoroughly address, see Defendants? Motion to Dismiss, even if this Court considers the case exclusively about fossil fuel production and promotion rather than emissions, then other federal statutes still displace Plaintiffs? federal common law claims. Con- gressional enactments such as the Energy Policy and Conservation Act of codi?ed at 42 U.S.C. 1340]; the Energy Policy Act of 2005 codi fed at 42 U.S.C. the NOS. 17?06011 Al'vilK?US BRIEF or AND 0TH HR. IN DIsMIssm. l9 Case Document 224-1 Filed D4i19l18 Page 20 of 25 Mining and Minerals Policy Act, codi?ed at 30 U.S.C. 21a; the Coastal Zone Management Act, codified at 16 U.S.C. 145 10), and the Federal Lands Policy Management Act, codi?ed at 43 U.S.C. 1701(a)(12), all speak ?directly? to the reasonableness of the Defendants? conduct in pro? ducing and promoting such materials. EPCA, for example, provides that is the goal of the United States in carrying out energy supply and energy conservation research and development . . . to strengthen national energy security by reducing dependence on imported oil.? 42 U.S.C. 13401. As a result, there is no relief available for Plaintiffs? common law tort claims here be- cause?whether Plaintiffs? claims fall directly under AEP and Kiticriina or not?such claims are displaced by federal statutes. [ILThis Case Threatens Extraterritorial Regulation by Imposing Plainti?'s? Policy Choices on Other States and on Commercial Transactions Occurring Outside California A. Plaintiffs? desired remedies are a form of regulatory enforcement Plaintiffs seek ?an order of abatement requiring Defendants to fund a climate change ad- aptation program for San Francisco consisting of the building of sea walls, raising the elevation of low-lying property and buildings and building such other infrastructure as is necessary for San Francisco to adapt to climate change." ECF No. 168, First Amended Comp]. at 1] 148. Imposing such ?nancial consequences on business activity contravenes Congress?s exclusive power to reg- ulate interstate and foreign commerce. Lo. Pub. Serv. Comm ?n v. 1' 'ex. N. 0.18. (To, 284 U. S. 125, 130 (l93l One state should not (even through relators) have the power to seek a judicial remedy as means of implementing a national regulatory regime for environmental and energy production policy. Such a scheme is contrary to fundamental notions of horizontal federalism. California cannot evade the application of the Commerce Clause by using common law rather than state statutory law to regulate commerce occurring outside its borders. The constitu? tional restrictions on Califomia?s ability to regulate out-of?state commerce ?re?ect the Constitu- tion?s special concern both with the maintenance of a national economic union unfettered by state- imposed limitations on interstate commerce and with the autonomy of the individual States within Nos. 17?06011 17-06012WILA Arc-nous BRIEF or INDIANA ANI) Foua'rHHN 0TH HR. IN SUPPORT or DISMISSAL 20 Case Document 224-1 Filed D4t19t18 Page 21 of 25 their respective spheres.? Hetrly 12. Beer inst, inc, 491 US. 324, 335?36 (1939). Califomia?s at- tempt to restrict and punish out-of-state production of fossil fuels by suing producers with a com- mon tow cause of action implicates these constitutional concerns the same way a suit based on a state statutory cause of action would: as explained above. California is asking this Court to inter- pret its common law of public nuisance to impose limitations on out-of-state commerce that would interfere with other States? regulatory choices?as well as the federal government?s own regula- tory choices. For these reasons, the Supreme Court has repeatedly recognized that the constitutional principles sharply limiting States? ability to regulate extraterritorially apply to common law torts just as they apply to States? statutes.I It noted in Hearty that ?[t]he limits on a State?s power to enact substantive legislation are similar to the limits on ofstate courts. In either case, ?any attempt ?directly" to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State?s power.? id. at n.13 (emphasis added) (quoting Edgar v. MITE Corp, 457 US. 624, 643 (1982) (plurality opinion)). And in BMW North America. inc. v. Gore, it held that ?a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors? lawful conduct in other States,? observing that ?[s]tate power may be exercised as much by ajury?s application of a state rule of law in a civil lawsuit as by a statute." 517 US. 559, 572 n.l7 (1996). The rationale ofthe Supreme Court?s Dormant Commerce Clause doctrine and the language of its cases thus rule out any special exemp? ti on for extraterritorial applications of common law. B. Plaintiffs? desired remedies are unconstitutional because of the extraterritorial effect on wholly out-of-state commercial activity Plaintiffs seek to impose ?nancial consequences against oil companies to regulate produc? tion and promotion of fossil fuel that it deems a ?public nuisance? to California. ECF No. 168. While this Court previously held that dormant Commerce Clause doctrine does not apply to state common law claims. see (.?mwiey v. (hiber?ionrce 70110.. 166 F. Supp. 2d 1263. I272 (ND. Cal. 200]). that opinion is neither binding on this court nor does it prove particularly instructive here given that it did not analyze the foundational principles of extraterritoriality and the Supreme Courts precedent surrounding such principles. Nos. 17?06011 W1LA.C 17-06012WILA Arc-nous BRIEF or AND 0TH HR. IN DISMISSAL 2l 4:.th Case Document 224-1 Filed O4i19l18 Page 22 of 25 First Amended Compl. at1i 10. At the most basic level, such remedies represent an effort by one state to occupy the ?eld of environmental and energy production regulation across the nation, and to do so by superseding sound, reasonable, and longstanding standards adopted by other states in a system of cooperative federalism and by the federal government. Indeed, even if the Plaintiffs? desired remedies do not directly con?ict with other states? existing laws and regulatory framework, it nonetheless would ?arbitrarily . . . exalt the public policy of one state over that of another? in violation of the Commerce Clause. Mienvesr Title Loans, Inc. v. Miifs, 593 F.3d 660, 667?68 (7th Cir. 2010). For an example, in North Dakota v. Heydirrger, the court invalidated state regulations pro? hibiting the supply of electricity that had been generated by a ?new large energy facility.? 825 F.3d 912, 922 (8th Cir. 2016). Not only was the practical effect ?to control activities taking place whoh'y outside Minnesota,? id, but those activities had no impact on the quality of electricity being supplied. In light of Minnesota?s desire to phase out coal-?red power plants everywhere, what triggered the trade barrier were production conditions bearing on the world at large?La, produc- tion in a new coal-?red power plant?not conditions bearing only on the safety of Minnesota citi? zens. Accordingly, in determining whether a state regulation constitutes forbidden extraterrito? rial law is a function not merely of facial application, but of ?practical including ?the consequences of the statute itself. . . Heaiy v. Beerinst, Inc, 491 US. 324, 336 (1989). Here, Plaintiffs? desired remedies exemplify ?state-imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres.? Id. at 335?36. There is no doubt that, by attacking fossil fuel production and commerce (rather than emissions), Plaintiffss desired remedies would have an effect on commerce occurring wholly outside of California?s bor? der, similar to the Minnesota regulation invalidated in Indeed, Plaintiffs? own com- plaint alleges that ?Defendants are the ?ve largest investor?owned fossil fuel corporations in the worfd as measured by their historic production of fossil fuels.? Amended Complaint at 2. And the Complaint goes on to assert that ?Defendants continue to engage in massive fossil fuel production and execute long-term business plans to continue and even expand their fossil fuel production for NOS. 17?06011 Ate-nous BRIEF or AND Foua'rHHN 0TH HR. 1N Slinlxia'l' or 22 Link) Case Document 224-1 Filed Page 23 of 25 decades into the ?Jture.? ECF No. 168, First Amended Compl. at 1i 2. These allegations emphasize the impact such energy production has on our national and state economies. They also illustrate the extraterritorial signi?cance and impact of regulating such an industry through judicial common law remedies. By asking a single federal judge to impose energy production penalties on defendant com- panies, each of which is presumably compliant with the regulations of each state in which it oper- ates, Plaintiffs are attempting to export their preferred environmental policies and their correspond- ing economic effects to other states. Allowing them to do so would be detrimental to state inno- vation and regional approaches that have prevailed through the political branches of government to date. California?s attempt to regulate out?of?state production of fossil fuels and by suing pro? ducers with common law cause of action implicates the constitutional doctrine against extraterri- torial regulation. This is yet another reason to reject Plaintiffs? novel theory of liability. NOS. 17?06011 Art-nous BRIEF or INIJIANA ANI) HR. IN DISMISSAL 23 Link) Case Document 224-1 Filed 04119118 Page 24 of 25 CONCLUSION The amici States respectfully urge the Court to grant the Motion to Dismiss, Dated: April 19, 2013 NOS. 17?06011 Respectfully Submitted, By: is Thomas Fisher THOMAS M. FISHER SOLIC ITOR GENERAL MATTHEW R. ELLIOTT DEPUTY ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL 302 W. Washington Street, IGCS Floor Indianapolis, IN 46204-2770 Telephone: (317) 924-3005 Email: Tom.Fisher@atg.in.gov JAMES R. ARNOLD (SBN 56262) THE ARNOLD LAW PRACTICE One Sansome Street, Suite 3500 San Francisco, CA 94104 Telephone: (925) 284-8887 jarnold@arnoldlp.com Attorneys for Amr'cr' Carine States of Indiana, Alabama, Arkansas, Colorado, Georgia, Kansas, Louisiana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin, and Wyoming Amn?us BRIEF OF INDIANA AND Foua'rHHN HR. IN SUPPORT OF 24 me Case Document 224-1 Filed 04119:!18 Page 25 of 25 ADDITIONAL COUNSEL CURTIS T. HILL, JR. INDIANA ATTORNEY GENERAL STEVE MARSHALL ALABAMA ATTORNEY GENERAL LESLIE RUTLEDGE ARKANSAS ATTORNEY GENERAL H. COFFMAN COLORADO ATTORNEY GENERAL CHRISTOPHER M. CARR GEORGIA ATTORNEY GENERAL DEREK SCHMIDT KANSAS ATTORNEY GENERAL JEFF LANDRY LOUISIANA ATTORNEY GENERAL DOUG PETERSON NEBRASKA ATTORNEY GENERAL NOS. 17?06011 MIKE HUNTER OKLAHOMA ATTORNEY GENERAL ALAN WILSON SOUTH CAROLINA ATTORNEY GENERAL KEN PAXTON TEXAS ATTORNEY GENERAL SEAN D. REYES UTAH ATTORNEY GENERAL PATRICK MORRISEY WEST VIRGINIA ATTORNEY GENERAL BRAD D. SCHIMEL WISCONSIN ATTORNEY GENERAL PETER K. MICHAEL WYOMING ATTORNEY GENERAL BRIEF OF INDIANA ANI) HR. IN DISMISSAL 25 From: Heminger, Justin (ENRD) ADMINISTRATIVE GROUP To: Shenkman, Ethan Lipshutz, Joshua S. (JLipshutz@gibsondunn.com) CC: Smith, Justin Ennis, Christine Hughes, Jonathan W. Sent: 4/17/2018 4:11 :58 PM Subject: RE: extension May 10 Thanks, Ethan. justin From: Shenkman, Ethan G. Sent: Tuesday, April 17, 2018 4:08 PM To: Heminger, Justin (ENRD) Lipshutz, Joshua S. (JLipshutz@gibsondunn.com) Cc: Smith, Justin (ENRD) Ennis, Christine (ENRD) Hughes, Jonathan W. Subject: RE: extension May 10 Confirmed, no opposition. Thanks, Ethan Ethan Shenkman Panner Arnold Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001-3743 T: +1 202.942.5267 From: Heminger, Justin (ENRD) Sent: Tuesday, April 17, 2018 4:03 PM To: Shenkman, Ethan Lipshutz, Joshua S. (JLipshutz@ciibsondunn.com) Cc: Smith, Justin Ennis, Christine Hughes, Jonathan W. Subject: RE: extension May 10 Ethan and josh, We?ve decided to go the motion route, rather than a stipulation. i have attached a draft motion, which is still under review here. Can you piease confirm the defendants do not oppose the motion? Best regards, justin From: Shenkman, Ethan G. Sent: Tuesday, April 17, 2018 2:48 PM To: Heminger, Justin (ENRD) Cc: Smith, Justin (ENRD) Ennis, Christine (ENRD) Hughes, Jonathan W. Lipshutz, Joshua S. Subject: RE: extension May 10 Justin Judge Aisup just issued an order on timing of amicus briefs, but notes that the order does not appiy to any brief filed by the US. --Ethan Ethan Shenkman Panner Arnold Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001-3743 T: +1 202.942.5267 Ethan.8henkman?arnoldportencom From: Heminger, Justin (ENRD) Sent: Tuesday, April 17, 2018 7:15 AM To: Shenkman, Ethan G. Cc: Smith, Justin Ennis, Christine Hughes, Jonathan Lipshutz, Joshua S. Subject: Re: extension May 10 Thanks, Ethan. We?re drafting up a stipulation and will circulate it today. Best regards, Jus?n On Apr 17, 2018, at 6:22 AM, Shenkman, Ethan G. wrote: Justin -- the defendants are perfectly fine with your proposal to file by May 10. Please send us any stipulation for review. Thanks, Ethan Ethan Shenkman Padner Arnold Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001?3743 '7 +1 202.942.5267 This communication may contain information that is legally privileged, confidential or exempt from disclosure. if you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: This communication may contain information that is legally privileged, confidential or exempt from disclosure. if you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: This communication may contain information that is legally privileged, confidential or exempt from disclosure. if you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: JEFFREY H. WOOD Acting Assistant Attorney General ALEX G. TSE Acting United States Attorney ERIC GRANT (CA Bar No. 151064) Deputy Assistant Attorney General JUSTIN D. HEMINGER (D.C. Bar No. 974809) JUSTIN S. SMITH (D.C. Bar NO. 453119) CHRISTINE W. ENNIS (CA Bar No. 246101) Telephone: (202) 616-9473 E-mail: christine.ennis@usdoj. gov Attorneys US. Department of Justice Environment Natural Resources Division 950 Avenue, NW. Washington, DC. 20530 Counsel for the United States of America as Amicus Curiae THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION THE CITIES OF THE STATE OF First filed Case: No. CALIFORNIA, Related Case: No. Plaintiff, UNITED MOTION FOR v. EXTENSION OF TIME TO CONSIDER WHETHER TO PARTICIPATE AS AMIC US BP P.L.C., CHEVRON URIAE CORPORATION, CONOCOPHILLIPs COMPANY, EXXON MOBIL CORPORATION, ROYAL DUTCH SHELL PLC, Defendants. Pursuant to Federal Rule of Civil Procedure 6(b) and Civil L.R. 6-3, the United States requests that the Court grant a twenty-day extension of time, until May 10, 2018, to allow the United States to determine Whether to participate as amicus curiae in this proceeding and to prepare and submit any brief. The United States conferred with counsel for the Plaintiffs and Defendants, and they See accompanying Declaration of Christine Ennis (Ennis Dec.), If 5. UNITED AMICUS CURJAE BRIEF 17-CV-6011-WHA AND 17-CV-6012-WHA support for this motion, the United States asserts the following: On March 1, 2018, the Court invited the United States to submit an amicus brief regarding ?whether (and the extent to which) federal common law should afford relief of the type requested by the complaints.? Order Setting Deadline for Motions to Dismiss and Inviting United States to File Amicus Brief at 1, No. 17-CV-6011, ECF No. 136 (Mar. 1, 2018); No. 17- CV-6012, ECF No. 118. As the Court?s invitation implicitly recognizes, the United States has strong interests in the development of federal common law and in the interpretation of the Clean Air Act and other federal statutes relating to energy production. Thus, the United States has proceeded diligently to consider the legal questions raised by these lawsuits and to determine whether to participate as an amicus curiae. The decision regarding whether to participate requires consultation and coordination with multiple components within the United States Department of Justice and with other federal agencies. See Ennis Dec. 11' 2. The Court originally requested the United States? brief by April 20, 2018, ten days after the close of briefing on the motions to dismiss. But on April 4, 2018, after Plaintiffs amended their complaints in this action, the Court set a new schedule for motions to dismiss. Order Setting Briefing Schedule for Motions to Dismiss Amended Complaint, No. 17-CV-6011, ECF No. 207 (Apr. 4, 2018); No. 17-CV-6012, ECF No. 176. The Court extended by approximately one month the deadlines for the parties to file their briefs, such that briefing on the motions to dismiss the amended complaints is now set to close on May 10, 2018. The Court also scheduled a hearing on the motions to dismiss for May 24, 2018 at 8:00 AM. The Court has provided notice that other potential amici should follow the briefing deadlines for the party they support but noted that this timeline ?does not apply to any amicus brief submitted by the United States.? Notice Re Timeline For Amicus Briefs, 17-CV-6011, ECF No. 209 (Apr. 17, 2018), 17-CV- 6012, ECF No. 178. Based on the need for intragovemmental coordination, the United States believes it will require an additional twenty days to complete the evaluation process and to draft and file an amicus brief (if the United States decides to do so). See Ennis Dec. If 2. Thus, in accordance 2 UNITED AMICUS CURIAE BRIEF 17-CV-6011-WHA AND 17-CV-6012-WHA with the new schedule, the United States requests that the Court extend the deadline to file an amicus brief to May 10, 2018. A twenty-day extension is a little shorter than the extension the new schedule affords the parties. Consistent with Local Civil Rule 7, the deadline that the United States now proposes is two full weeks before the May 24 motions hearing date, allowing the parties and the Court time to review the United States? brief before the hearing. What is more, a twenty-day extension will give the United States the benefit of reviewing defendants? motion to dismiss and plaintiffs? opposition brief, as envisioned by the Court?s original invitation to file an amicus brief. For these reasons, the United States respectfully requests the Court grant a twenty-day extension of time, until May 10, 2018, for the United States to determine whether to participate as amicus curiae and ?le any brief. If the United States determines not to participate as amicus curiae, it will notify the Court accordingly. Dated: April 2018. Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General Environment Natural Resources Division Christine W. Ennis ERIC GRANT Deputy Assistant Attorney General JUSTIN D. HEMINGER JUSTIN S. SMITH CHRISTINE W. ENNIS Counsel for the United States of America 3 UNITED AMICUS CURIAE BRIEF 17-CV-6011-WHA AND 17-CV-6012-WHA UNITED AMICUS CURIAE BRIEF 17-CV-6011-WHA AND 17-CV-6012-WHA From: Heminger, Justin (ENRD) ADMINISTRATIVE GROUP To: Shenkman, Ethan G. CC: Smith, Justin Ennis, Christine Hughes, Jonathan Lipshutz, Joshua S. Sent: 4/17/2018 2:49:58 PM Subject: RE: extension May 10 Ethan, Thanks for the update. justin From: Shenkman, Ethan G. Sent: Tuesday, April 17, 2018 2:48 PM To: Heminger, Justin (ENRD) Cc: Smith, Justin (ENRD) Ennis, Christine (ENRD) Hughes, Jonathan W. Lipshutz, Joshua S. Subject: RE: extension May 10 Justin Judge Aisup just issued an order on timing of amicus briefs, but notes that the order does not appiy to any brief filed by the US. ??Ethan Ethan Shenkman Panner Arnold 81 Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001-3743 T: +1 202.942.5267 \rwvwarnoldportercom From: Heminger, Justin (ENRD) Sent: Tuesday, April 17, 2018 7:15 AM To: Shenkman, Ethan G. Cc: Smith, Justin Ennis, Christine Hughes, Jonathan Lipshutz, Joshua S. Subject: Re: extension May 10 Thanks, Ethan. We?re drafting up a stipulation and will circulate it today. Best regards, Jus?n On Apr 17, 2018, at 6:22 AM, Shenkman, Ethan G. wrote: Justin -- the defendants are perfectly fine with your proposal to file by May 10. Please send us any stipulation for review. Thanks, Ethan Ethan Shenkman Panner Arnold Porter 601 Massachusetts Ave, NW Washington District of Coiumbia 20001-3743 T: +1 202.942.5267 Etnan.Shenkman?arnoldportercom This communication may contain information that is legally privileged, confidential or exempt from disclosure. if you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: This communication may contain information that is legally privileged, confidential or exempt from disclosure. if you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: United States District Court For the Northern District of California Case Document 209 Filed 04117118 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA THE PEOPLE OF THE STATE OF No. l7-0601'l WHA CALIFORNIA, No. 17-06012 WHA Plaintiff, V. NOTICE RE TIMELINE FOR AMICUS BRIEFS BP P.L.C., tarot, Defendants. Any amieus brief in support of dismissal must be filed on or before the April 19 deadline for defendants to file their motions to dismiss (so that plaintiffs have an opportunity to respond). Any amicus brief in support of plaintiffs must be ?led on or before the May 3 deadline for plaintiffs to ?le their oppositions to the motions to dismiss (so that defendants have an opportunity to respond). This order does not apply to any amicus brief submitted by the United States. IT IS SO ORDERED. Dated: April 17,20 8. ed ILL ALSUP UNITED STATES DISTRICT JUDGE From: Shenkman, Ethan G. To: Heminger, Justin (ENRD) CC: Lipshutz, Joshua Ennis, Christine Smith, Justin (ENRD) Sent: 4/12/2018 3:53:33 PM Subject: Re: Public nuisance suits Sounds good. Thanks. Sent from my iPhone On Apr 12, 2018, at 2:51 PM, Heminger, Justin (ENRD) ,aoy> wrote: How about 10:30 am tomorrow? I?ll circulate an invite. Jus?n From: Shenkman, Ethan G. Sent: Thursday, April 12,2018 1:53 PM To: Lipshutz, Joshua S. Heminger, Justin (ENRD) em i noer2 it ill) .. .. GOV Cc: Ennis, Christine (ENRD) Smith, Justin (ENRD) Subject: RE: Public nuisance suits I could do today at 5pm Eastern, or at any time convenient for you tomorrow (Friday). Ethan Shenkman Panner Arnold Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001-3743 T: +1 202.942.5267 From: Lipshutz, Joshua S. Sent: Thursday, April 12, 2018 1:23 PM To: Heminger, Justin (ENRD) Cc: Shenkman, Ethan Ennis, Christine Smith, Justin (ENRD) Subject: Re: Public nuisance suits Yes, any of those times today works for me. Thanks, Josh Joshua S. Lipshutz Partner GIBSON DUNN Gibson, Dunn Crutcher LLP 1050 Connecticut Avenue, NW, Washindton, IDES 20035-5305 Tel 202955821!? Fax t12025309814 555 Mission Street, San lli'rancisco, CA 94105-0921 Tel Faxt14153/18159 . On Apr 12, 2018, at 1:18 PM, Heminger, Justin (ENRD) wrote: Josh and Ethan, Would you or some combination of your colleagues be available for a short call, either this afternoon or tomorrow? We wanted to briefly discuss the defendants? position on a scheduling motion that we intend to file with Judge Alsup. Today, we?re free until 2 pm, then from 2:30-3:30, and after 5 pm. Tomorrow, we?re free except for 11-12 pm and 3-330. Best regards, Jus?n Justin D. Heminger Counsel and Special Assistant to the Assistant Attorney General Environment and Natural Resources Division US. Department of Justice 950 Avenue, NW, Room 2607 Washington, DC. 20530-0001 (202) 305-0312 iustin.flemiinder@usdoi.dov This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message. This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: From: Shenkman, Ethan G. To: Ennis, Christine (ENRD) CC: Heminger, Justin Kilbourne, Jim Lipshutz, Joshua Smith, Justin (ENRD) Sent: 4/10/2018 11:24:08 AM Subject: RE: 2018-03-27 Alsup order with questions for Attachments: 2018-04-09 Chhabria order granting stay. Christineupdate. udge Chhabria granted the motion to stay his remand. order pending appeal to the 9th Circuit. and certi?ed the issues in his order for appeal under 28 USC 1292(b). (See order attached). Ifyou have any questions. please let us know. Best. Ethan Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave, NW Washington 1 District of Columbia 20001-3743 T: +1 202.942.5267 Ethan. \Wm-iarnoldporter. com From: Ennis. Christine (ENRD) Sent: Thursday. April 2018 11:05 AM To: Shenkman Ethan G. Cc: Heminger. Justin Kilbourne. i111 Lipslintz. Joshua Smith. Justin (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for Ethan: Thank you?we did see that Judge Alsup had established a new brie?ng schedule. We are still on for 4 and Ibelieve Jennifer Neumann will also be joining us. Best. Christine From: Shenkman Ethan G. Sent: Thursday, April 5, 2018 9:31 AM To: Ennis? Christine (ENRD) Lipshutz. Joshua S. Smith. Justin (ENRD) OJ Cc: Heminger, Justin (ENRD) Kilbourne. Jim (ENRD) Kilbourne .USD OJ . Subject: RE: 2018-03-27 Alsup order with questions for Christine -- FYI, attached is the new scheduling order from udge Alsup. pushing back the brie?ng by one month. The order does not reference the USG amicus. Looking forward to our discussion today at 4 pm. Best. Ethan Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave, NW Washington 1 District of Columbia 20001-3743 T: +1 202.942.5267 Ethan. \nnyarnold porter. com From: Ennis. Christine (ENRD) Sent: Tuesday. April 03% 2018 1:19 PM To: Shenkman. Ethan Gr. Lipshutz, Joshua Smith Justin (ENRD) Cc: Heminger, Justin Kilbourne. Jim (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for Ethan, Thanks we look forward to speaking to you Thursday. Best. Christine From: Shenkman. Ethan G. Sent: Tuesday. April 3. 2018 11:55 AM To: Lipshutz. Joshua S. Ennis. Christine (ENRD) Smith. Justin 1: EN RD. CC: Heminger. Justin ENRDUSDOJ Killioume. Jim (EN Kilboume ii EN RD. USDOJ Suhje?: 13-37 Alsup order with questions for ?reman use the same dial-in number 4 pm. Look tbm'ard to speaking then. Exemptions Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave. NW Washington 1 District of Columbia 20001-3743 T: +1 202.942.5267 Etha n. Shenkinane?fi-?arnold porter corn \??Viarnold porter com From: Lipshutz. Joshua S. com] Sent: Tuesday; April 03. 2018 11:46 AM To: Shenkman. Ethan Ennis. Christine (ENRD): Smith Justin (ENRD) Cc: Heminger. Justin Kilbourne. Jim (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for MTD.pdf 4pm Thursday works for me. Thanks. Joshua S. Lipshutz Partner GIB SON DUNN Gibson- Dunn Crutcher LLP 1050 Connecticut AVenue. Washington, DC 20036-5306 Tel +1 202.955.8217 Fax +1 202.530.9614 555 Mission Street. San Francisco. CA 94105-0921 Tel +1 415.393.8233 - Fax+1 415.374.8469 Jl-ip shutzfti?gib sondunncom - wuw gibsondunneom From: Shenkman. Ethan G. Sent: Tuesday. April 3. 2018 11:40 AM To: Ennis. Christine (ENRD) Smith. Justin (ENRD) Ce: Lipshutz, Joshua S. Heminger. Justin (ENRD) Kilbourne. Jim (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for MTD.pdf Right now. 4 pm or later works for me. Waiting to hear from Josh. Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave. NW Washington 1 District of Columbia 20001-3743 T: +1 202.942.5267 Etha n. Shenkinanc?filarnold porter com ?nuiarnold porter com From: Ennis. Christine (ENRD) Sent: Tuesday; April 03. 2018 11:35 AM To: Shenkman. Ethan Smith, Justin (ENRD) Cc: Lipshutz. Joshua S.: Heminger. Justin Kilbourne. Jim (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for MTD.pdf Ethan. Would sometime after 1:30 PM on Thursday work for you Best. Christine From: Shenkman. Ethan G. [mailto:Etl1an. Sent: Tuesday, April 3, 2018 11:03 AM To: Smith. Justin (ENRD) Cc: Lipshutz. Joshua S. Heminger. Justin (ENRD) Ennis, Christine (ENRD) Kilboume. Jim (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for MTD.pdf Is tomorrow a possibility? Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave. NW Washington 1 District of Columbia 20001-3743 T: +1 202.942.5267 Ethan. Shenkmanc?d?rarnoldporter,com \nnyarnold porter: com From: Smith Justin (ENRD) [mailto?ustin Sent: Tuesday. April 2018 11:00 AM To: Shenkinan. Ethan G. Cc: Lipshutz Joshua S.: Heminger. Justin (ENRD): Ennis. Christine (ENRD):Ki1bourne. Jim (ENRD) Subject: Re: 2018-03-27 Alsup order with questions for I have a noon meetingI can't miss so if we need more time we may want to ?nd another time with a longer window. Sent from my iPhone On Apr 3. 2018. at 10:55 AM. Shenkman, Ethan G. wrote: Yes, Ican do 11:30 as well. Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave. NW Washington 1 District of Columbia 20001-3743 T: +1 202.942.5267 Ethan. Shenkmanr?ri?arnoldporter.com \nnyarnold porter com From: Lipshutz Joshua S. com] Sent: Tuesday. April 03. 2018 10:53 AM To: Heminger. Justin (ENRD): Shenkrnan Ethan G.: Ennis. Christine (ENRD): Smith. Justin (ENRD): Kilbourne, Jim (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for 11:30 works for me. Thanks. Justin. Josh Joshua S. Lipshutz Partner GIB SON DUNN Gibson. Dunn Crutcher LLP 1050 Connecticut Avenue. N.W.. Washington. DC 20036-5306 Tel +1 202.955.8217 - Fax +1 202.530.9614 555 Mission Street. San Francisco. CA 94105-0921 Tel +1 415.393.8233 Fax+14153748469 Jlip shutzt?ti?gib sondunncom - \nxw gibsondunncom From: Heminger, Justin (ENRD) gov] Sent: Tuesday. April 3. 2018 10:52 AM T0: Shenkman, Ethan G. Ennis, Christine (ENRD) SmitlL Justin (ENRD) : Kilbourne, Jim (ENRD) .goy> Cc: Lipshutz, Joshua S. Subject: RE: 2018-03-27 Alsup order with questions for MTD.pdf All, Apologies, but I now have a con?ict with our 11 am. The rest of the team can either proceed. as planned, or we can reschedule. I can probably do 11:30 am. if that works for others. Best regards, Justin From: Shenkman, Ethan G. Sent: Monday, April 2, 2018 11:53 AM To: Ennis, Christine (ENRD) Smith, Justin (ENRD) Heminger, Justin (ENRD) Kilbourne, Jim (ENRD) .USDOJ . Cc Lip shutzr?tr?- gibsondunn. com Subject: RE: 2018-03-27 Alsup order with questions for MTD.pdf Christine, et al. -- hope you had a nice holiday weekend. We look forward to speaking tomorrow. In the meantime, Iwanted to pass along this notice of plaintiffs? intent to amend their complaint, which as we can discuss will likely affect the brie?ng schedule on the motions to dismiss. Best, Ethan Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave. NW Washington 1 District of Columbia 20001-3743 T: +1 202.942.5267 Ethan. Shenkmanr?fr?arnoldporter.com com From: Shenkman Ethan G. Sent: Thursday, March 29, 2018 2:57 PM To: goyz Justin Smith; justinliemingerrd?usdoj .goy: Jim (ENRD) Kilbourne (ENRD) Cc: JLipshutz?fr?qibsondunucom Subject: Re: 2013-1134? Alsup m'der ilhquestions for Christine thanks very much For your response. We look Forward to speaking Tuesday at i am Eastern. We can use the Following dial-in number. Exemption? mBest, Ethan Sent from my iPhone On Mar 29, 2018, at 2:52 PM, Shenkman, Ethan G. wrote: Justin, Justin, Christine, et al. We look forward to the opportunity for a follow up call at a time convenient for you (we suggested Tuesday, but please let us know what works on your end). In the meantime, we wanted to make sure you saw Judge Alsup?s latest order, which is attached. Best, Ethan Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ayes NW Washingon District of Columbia 20001-3 743 T: +1 202.942.5267 <2018-03-27 Alsup order with questions for MTD.pdf> Sent from my iPhone This communica tion may contain information that is legally privileged con?dential or exempt from disclosure If you are not the intended recipient please note that any dissemination dhtribution or copying of this is strictly prolubited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer For more informa tion about Arnold Polter. click here: 1: arnold mrter com This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message. This communication may contain information that is legally privileged confidential or exempt from disclosure If you are not the intended recipient please note that any dissemination dhtribution or copying of this is strictly prolubited. Anyone who receives this message in error should notify the sender immedia tely by telephone or by return e-mail and delete it from his or her computer For more informa tion about Arnold Porter. click here: 1: arnold mrter com This communication may contain information that is legally privileged confidential or exempt from disclosure If you are not the intended recipient please note that any dissemination distribution or copying of this conununication is strictly prolubited Anyone who receives this message in error should notify the sender tely by telephone or by return e-mail and delete it from his or her computer For more informa tion about Arnold Porter. click here: 1 arnold Jorter. com This conununica tion may contain information that is legally privileged confidential or exempt from disclosure If you are not the intended recipient please note that any dissemination distribution or copying of this conununication is strictly prolubited, Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer For more information about Arnold Porter. click here: 1: arnold Miter com This communication may contain information that is legally privileged confidential or exempt from disclosure If you are not the intended recipient please note that any dissemination dhtribution or copying of this is strictly prolubited. Anyone who receives this message in error should notify the sender immedia tely by telephone or by return e-mail and delete it from his or her computer For more infonna tion about Amold Porter. click here: 1: arnold mrter com This tion may contain information that is legally privileged confidential or exempt from disclosure If you are not the intended recipient please note that any dissemination distribution or copying of this conununication is strictly prolubited, Anyone who receives this message in error should notify the sender tely by telephone or by return e-mail and delete it from his or her computer For more information about Arnold Porter. click here: 1 arnold Jorter. com This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: http://wwarnoldportercom Case 3:17-cv-04929-VC Document 240 Filed O4JOQI18 Page 1 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA COUNTY OF SAN MATEO: Case No. l7-cv-04929-VC Plaintiff, v. CHEVRON CORP, et al_, Re: Dkt. No. 234 Defendants, CITY OF IMPERIAL BEACH. Case No. l7?cv-04934?VC Plaintiff, Vt CHEVRON CORR, et Re: Dkt. No. 213 Defendants. COUNTY OF MARIN, Case No. l7?cv-O4935-VC Plaintiff, ORDER GRANTING MOTIONS T0 V: STAY CHEVRON CORR, et 3.1., Re: Dkt. No. 219 Defendants. The motions to stay the remand orders in these three cases pending appeal are granted. Additionally, in case it's necessary, the Court certi?es for interlocutory appeal all the issues addressed by the Court in its order namely, whether the defendants could remove these cases to federal court on the basis of any of the grounds asserted in their initial notices of removal. The Court ?nds that these are controlling questions of law as to which there is Case 3:17-cv-04929-VC Document 240 Filed O4JOQI18 Page 2 of 2 substantial ground for difference of opinion and that their resolution by the court of appeals will materially advance the litigation. 28 U.S.C. 1292(b). IT IS SO ORDERED. Dated: Aptil 9, 2018 VINCE CHHABRIA United States District Judge From: Shenkman, Ethan G. To: Ennis, Christine (ENRD) CC: Heminger, Justin Kilbourne, Jim Lipshutz, Joshua Smith, Justin (ENRD) Sent: 4/5/2018 11:09:49 AM Subject: RE: 2018-03-27 Alsup order with questions for V TD.pdf Attachments: 2018-04-04 Scheduling Order.pdf Thanks. (for the record. here is the correct order) Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave, NW Washington District ofColumbia 20001-3743 T: +1 202.942.5267 Ethan. \nnViar?noldportercom From: Einiis. Christine (ENRD) Sent: Thursday. April 05. 2018 11:05 AM To: Shenkman. Ethan G. Ce: Heminger. Justin Kilbourne. Jim Lipshutz. Joshua Smith Justin (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for MTD.pdf Ethan, Thank you?we did see that Judge Alsup had established a new brie?ng schedule. We are still on for 4 PM. and I believe Jennifer Neumann will also be joining us. Best. Christine From: Shenkman. Ethan G. Sent: Thursday. April 5, 2018 9:31 AM To: Ennis. Christine (ENRD) Lipshutz, Joshua S. Smith. Justin (ENRD) Cc: Heminger. Justin (ENRD) Kilbourne. Jim (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for MTD.pdf Right now, 4 pm or later works for me. Waiting to hear from Josh. Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave, NW Washington 1 District ofColumbia 20001-3743 T: +1 202.942.5267 \nnyarnoldportercom From: Ennis. Christine (ENRD) Sent: Tuesday, April 2018 11:35 AM To: Shenkman: Ethan G: Smith Justin (ENRD) Cc: Lipshutz: Joshua S.: Heminger, Justin Kilbourne. Jim (ENRD) Subject: RE: 2018-03-27 Alsup order with questions for MTD.pdf Ethan, Would sometime after 1:30 PM on Thursday work for you? Best. Christine From: Shenkman: Ethan G. Sent: Tuesday, April 3: 2018 11:03 AM To: Smith, Justin (ENRD) Cc: Lipshutz: Joshua S. Heminger, Justin (ENRD) Sent from my iPhone This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: United States District Court For the Northern District of California IxCase Document 192 Filed 03i2?l18 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA THE PEOPLE OF THE STATE OF No. l7-0601'I WHA No. 17-06012 WHA Plaintiff, v. NOTICE RE BRIEFING ON MOTION TO DISMISS BP P.L.C., clot, Defendants. In the remainder of the FRCP 12(b)(6) brie?ng, please address the following questions. The parties? page limits and brie?ng schedule remain the same. 1. Identify and describe all state and federal court decisions sustaining a nuisance theory of liability based on the otherwise lawful sale of a product where the seller ?nanced and/or sponsored research or advertising intended to cast doubt on studies showing that use of the product would harm public health or the environment at large. Also, identify and describe all decisions rejecting such a theory. 2. Identify and describe all state and federal court decisions that address a nuisance theory of liability in the context of global warming (123., the combustion of fossil fuels leads to carbon dioxide that leads to warming, polar melting, and coastal ?ooding). 3. Please address the extent to which the Noam-Pennington doctrine may apply to these actions. United States District Court For the Northem District of California Case Document 192 Filed 0327118 Page 2 of 2 4. 1f plaintiffs? theory is correct, why wouldn?t everyone involved in supplying carbon- based fuels (or in otherwise increasing carbon dioxide, 8.55., deforestation) be liable upon a showing that they questioned the science of global warming or sponsored research intending to question it? IT IS SO ORDERED. Dated: March 27,2018' 4A ALSUP UNITED STATES DISTRICT JUDGE From: Heminger, Justin (ENRD) ADMINISTRATIVE GROUP To: 'David Higbee' CC: Lipshutz, Joshua 8. Sent: 3/1/2018 8:35:08 PM Subject: RE: California v. BP, et al David, Thank you for forwarding this. Best regards, Jus?n From: David Higbee Sent: Thursday, March 1, 2018 8:12 PM To: Heminger, Justin (ENRD) Cc: Lipshutz, Joshua S. Subject: California v. BP, et al Justin, Attached please find an order from Judge Alsup setting deadlines for the filing of motions to dismiss and inviting the United States to file an amicus brief in the above?captioned case. Best regards, David A. Higbee Shearman Sterling LLP 401 9th Street, NW Washington, DC 20004-2128 T: +1.202.508.8071 david.hiqbee@shearman.com This communication and any attachments may be privileged or con?dential. If you are not the intended recipient. you have received this in error and any review, distribution or copying of this communication is strictly prohibited. In such an event, please notify us immediately by reply email or by phone (collect at 212?848?4000) and immediately delete this message and all attachments. United States District Court For the Northern District of California IxCase Document 136 Filed 03l01l18 Page 1 012 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA THE PEOPLE OF THE STATE OF No. 17?0601 I WHA CALIFORNIA, No. 17-06012 WHA Plaintiff, v. ORDER SETTING DEADLINE FOR MOTIONS TO DISMISS BP PLO, e! at, AND INVITING UNITED STATES TO FILE AMICUS Defendants. BRIEF Now that plaintiffs? motions to remand have been ruled upon and jurisdiction has been sustained, defendants shall ?le their motions to dismiss the complaints by MARCH 20. Plaintiffs shall file their oppositions by APRIL 3 and defendants shall file any reply by APRIL 10. A hearing date will be set by the Court. The United States is invited to read the complaints, motions to dismiss, and oppositions and to submit an amicus brief on the question of whether (and the extent to which) federal common law should afford relief of the type requested by the complaints. The Court would appreciate receiving the amicus brief by APRIL 20. If the United States can meet the April '20 deadline then the parties will be given an opportunity to respond to the amicus brief via supplemental brie?ng. United States District Court For the Northern District of California Case Document 136 Filed Page 2 of 2 The Deputy Clerk shall serve this order on Sara Winslow of the United States Attorney?s Of?ce. IT IS SO ORDERED. Dated: March 1,2018. 4d I 1AM ALSUP UNITED STATES DISTRICT JUDGE From: Heminger, Justin (ENRD) ADMINISTRATIVE GROUP To: Lipshutz, Joshua 8. Sent: 2/25/2018 3:20:07 PM Subject: Re: NY climate change case Josh, Thank you. for sharing this. Best regards, Justin On Feb 25. 2018, at 7:23 AM, Lipshutz, Joshua S. wrote: Jus?n, Attached is the as-filed motion to dismiss. Best, Josh Joshua S. Lipshutz Partner DUNN Gibson, Dunn Crutcher LLP 1050 Connecticut Avenue, N.W., Washington, DC 20036-5306 Tel +1 202.955.8217 Fax +1 202.530.9614 555 Mission Street, San Francisco, CA 94105-0921 Tel +1 415.393.8233 Fax +1 415.374.8469 JLipshutz@gibsondunn.com - This message may contain con?dential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message. <2018.02.23 Brief on Common Grounds. pdf> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CITY OF NEW YORK, Plaintiff, V. Case No. 18 Civ. 182 (JFK) BP CHEVRON EXXON MOBIL and ROYAL DUTCH SHELL PLC, Defendants. MEMORANDUM OF LAW OF CHEVRON CORPORATION, CONOCOPHILLIPS, AND EXXON MOBIL CORPORATION ADDRESSWG COMMON GROUNDS IN SUPPORT OF THEIR MOTIONS TO DISMISS GIBSON, DUNN CRUTCI-IER LLP 200 Park Avenue New York, New York 10166 Telephone: 212.351.4000 Facsimile: 212.351.4035 Attorneys for Defendant Chevron Corporation TABLE OF CONTENTS PRELIMINARY STATEMENT 1 I. FACTUAL BACKGROUND 3 A Global Warming Is a National and Global Issue 3 B. Plaintiff Seeks to Hold Five Energy Producers Solely Liable for Global Warming 5 Procedural Posture 6 II. LEGAL STANDARD 6 ARGUMENT 7 A. Plaintiff? Claims Arise Under Federal Common Law and Should Be Dismissed 7 1. Notwithstanding their state-law labels, Plaintiff? claims arise under federal common law 8 2. Congress has displaced federal common law governing global warming- based tort claims 12 3. Alternatively, Plaintiff has failed to plead a viable federal common law claim 15 B. Plaintiff? Claims Are Independently Barred by Numerous Federal Doctrines l6 1. Plaintiff? 3 claims infringe on the federal foreign affairs power 16 2. Plaintiff? 5 claims are barred by the Commerce Clause l9 3. Plaintiff? 3 claims are barred by the Due Process and Takings Clauses 21 4. Plaintiff? 5 claims are preempted by federal law 23 C. The Complaint Does Not Allege Viable State-Law Claims 25 1. Plaintiff? 5 claims have no basis in New York nuisance or trespass law 25 2. Plaintiff fails to plausibly demonstrate that Defendants proximately caused the alleged injuries 27 3. Plaintiff does not adequately plead lack of justification or permission 29 4. Plaintiff? 3 claims are barred by the in pan delicz?o doctrine 3O D. Plaintiff? Claims Are Not Justiciable 31 1. Plaintiff? novel claims do not present a justiciable case or controversy 31 2. Plaintiff? claims present non-justiciable political questions 32 3. Plaintiff lacks Article standing 34 CONCLUSION 35 ii TABLE OF AUTHORITIES Cases 767 771ird Avenue Assocs. v. Consulate Gen. of Socialist Fed Republic of Yugoslavia, 218 F.3d 152 (2d Cir. 2000) 7 Adelphia Recovery r. v. Bank of Am, NA, 2010 WL 2077214 (S.D.N.Y. May 14, 2010) 35 Aegis Ins. Servs., Inc. v. 7 World Trade Co., LP, 737 F.3d 166 (2d Cir. 2013) 29 In re Agent Orange Prod Liab. Litig. 517 F.3d 76 (2d Cir. 2008) 21 Al?ed Dunhill of London, Inc. v. Republic of Cuba, 425 US. 682 (1976) 18 Am. Elec. Power. Co. v. Connecticut, 564 US. 410 (2011) passim Am. Ins. Ass ?n v. Garamendi, 539 US. 396 (2003) passim Ashcroft v. Iqbal, 556 US. 662 (2009) 6 In re Assicurazioni Generali, SBA, 592 F.3d 113 (2d Cir. 2010) 16 Atl. Container Line AB v. ArefHassan Abul, Inc, 281 F. Supp. 2d 457 (N.D.N.Y. 2003) 29 Baker v. Carr, 369 US. 186 (1962) 32 Barclays Bank PLC v. Franchise Tax Bd. of Cal, 512 US. 298 (1994) 19 Beauchamp v. Excelsior Brick Co. ofHaverstraw, 127 N.Y.S. 686 (2d Dep?t 1911) 29 Bell Atl. Corp. v. Twombly, 550 US. 544 (2007) 7 In re Bernard L. Mado? Secs. LLC, 721 F.3d 54 (2d Cir. 2013) 30 BMW of Am. v. Gore, 19,20,21,22 Bordenkircher v. Hayes, 21 Boring v. Town of Babylon, 47 419 (2d Dep?t 2017) 29 Boyle v. United Techs. Corp., 487 US. 500 (1988) 21, 23 Buck/nan Co. v. Plaintiffs ?Legal Comm, 531 US. 341 (2001) 7, 23 California v. Gen. Motors Corp. 2007 WL 2726871 (ND. Cal. Sept. 17, 2007) passim Camden Cnty. Bd. of Chosen Freeholders v. Beretta, U.SA. Corp, 273 F.3d 536 (3d Cir. 2001) 28 City of Chicago v. Am. Cyanamid Co., 355 Ill. App. 3d 209 (2005) 28 City of Chicago v. Beretta USA. Corp, 821 1099 (111. 2004) 26 City ofMilwaukee v. Illinois, 8,9,12,14 City of New York v. A.E. Sales LLC, 2005 WL 3782442 (S.D.N.Y. Feb. 9, 2005) 26 Clapper v. Amnesty Int ?l USA, 568 US. 398 (2013) 34 Comer v. Murphy Oil USA, Inc, 839 F. Supp. 2d 849 (SD. Miss. 2012) 7, 14, 32, 33 Connecticut v. Am. Elec. Power Co., Inc, 582 F.3d 309 (2d Cir. 2009) passim North Carolina ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010) 24 iV Copart Indus, Inc. v. Consol. Edison Co. of N. Y., Inc, 41 564 (1977) 14 Crosby v. Nat 7 Foreign Trade Council, 530 US. 363 (2000) 18 Ctr. for Biological Diversity v. US. Dep ?t of Interior, 563 F.3d 466 (DC. Cir. 2009) 34, 35 Corp. v. Cuno, 547 US. 332 (2006) 31 De Jesus v. Sears, Roebuck Co., 87 F.3d 65 (2d Cir. 1996) 5 Diamond v. Chakrabarty, 447 US. 303 (1980State Police, 713 F.3d 745 (4th Cir. 2013) 35 Donovan v. Rothman, 756 514?15 (131 Dep?t 2003) 30 Eastern Enters. v. Apfel, 524 US. 498 (1998) 22 Erie R. Co. v. Tompkins, 304 US. 64 (1938) 8 Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters, 61 F. Supp. 2d 740 (SD. Ohio 1999) 22 Frederique v. County of Nassau, 168 F. Supp. 3d 455 (E.D.N.Y. 2016) 29 Ganim v. Smith Wesson Corp., 258 Conn. 313 (2001) 28 Geier v. Am. Honda Motor Co., 529 US. 861 (2000) 25 Hamilton v. Beretta USA. Corp, 96 222 (2001) 2, 25, 27 Healy v. Beer Inst. 491 US. 324 (1989) 19, 20, 21 Illinois v. City ofMilwaukee, 406 US. 91 (1972) 9,10,11,16 Int ?1 Paper Co. v. Ouellette, 479 US. 481 (1987) 9,11,12,20 Janki Bai Sahu v. Union Carbide Corp, 528 F. App?X 96 (2d Cir. 2013) 27 Japan Whaling Ass ?71 v. Am. Cetacean Soc 478 US. 221 (1986) 32 v. KPMG LLP, 15 446 (2010) 30 Korsinsky v. Rose, 993 92 (2d Dep?t 2014) 29 Kurns v. RR. Friction Prods. orp., 565 US. 625 (2012) 17 Laborers Local I 7 Health Bene?t Fund v. Philip Morris, Inc, 191 F.3d 229 (2d Cir. 1999) 15 Lead Indus. Ass Inc. v. EPA, 647 F.2d 1130 (DC. Cir. 1980) 24 Lujan v. Defenders of Wildlife, 504 US. 555 (1992) 34 Me. Yankee Atomic Power Co. v. United States, 44 Fed. C1. 372 (1999) 22 In re MF Global Holdings Ltd. Inv. Litig, 998 F. Supp. 2d 157 (S.D.N.Y. 2014) 30 Middlesex Cnty. Sewage Auth. v. Nat 7 Sea Clammers Ass 453 US. 1 (1981) 16 Murray v. Northrop Grumman Inf ech., Inc, 444 F.3d 169 (2d Cir. 2006) 21 Y. SMSA ?ship v. Town of Clarkstown, 612 F.3d 97 (2d Cir. 2010) 23 In re Nassau Cnty. Consol. MT BE Methyl Tertiary Butyl Ether) Prod. Liab. Litig, 918 399 (Sup. Ct. 2010) 26, 27 V1 Native Vill. of Kivalina v. ExxonMobil Corp, 663 F. Supp. 2d 863 (ND. Cal. 2009) 10, 33 Native Vill. of Kivalina v. ExxonMobil Corp, 696 F.3d 849 (9th Cir. 2012) passim New Jersey v. New York, 345 US. 369 (1953) 16 Nixon v. United States, 506 US. 224 (1993) 32 In re Oswego Barge Corp, 664 F.2d 327 (2d Cir. 1981) 12 Parker Madison Partners v. Airbnb, Inc., 2017 WL 4357952 (S.D.N.Y. Sept. 29, 2017) 34 In re Paulsboro Derailment Cases, 2013 WL 5530046 (D.N.J. Oct. 4, 2013) 26 Pegram v. Herdrich, 530 U.S.211 (2000) 31 Peterson v. Islamic Republic of Iran, 758 F.3d 185 (2d Cir. 2014) 22 Point Prods. AG. V. Sony Music Entm Inc, 215 F. Supp. 2d 336 (S.D.N.Y. 2002) 29 Rodriguez v. Budget Rent-A-Car Sys, Inc., 841 486 (lst Dep?t 2007) 29 S. -Cent. Timber Dev, Inc. v. Wunnicke, 467 US. 82 (1984) 20 Sahu v. Union Carbide Corp, 2014 WL 3765556 (S.D.N.Y. July 30, 2014) 26, 28 San Diego Bldg. Trades Council v. Garmon, 359 US. 236 (1959) 17,20 Simon v. E. Kentucky Welfare Rights Org, 426 US. 26 (1976) 35 Smith v. 2328 Univ. Ave. Corp, 859 71 (lst Dep?t 2008) 27 V11 Spectrum Stores, Inc. v. Citgo Petroleum Corp, 632 F.3d 938 (5th Cir. 2011) 18 Spitzer v. Sturm, Ruger Co., Inc, 761 N.Y.s.2d 192 (lst Dep?t 2003) 2, 26, 27, 29 State Farm Mut. Ins. Co. v. Campbell, 538 US. 408 (2003) 21 Sweet v. Sheahan, 235 F.3d 80 (2d Cir. 2000) 22 Tex. Indus. Inc. v. Radcli?Materials, Inc., 451 US. 630 (1981) 8 Town of Islip v. Datre, 245 F. Supp. 3d 397 (E.D.N.Y. 2017) 28 Town of Oyster Bay v. Lizza Indus, Inc, 22 1024 (2013) 20 United States v. Alcan Aluminum Corp, 315 F.3d 179 (2d Cir. 2003) 22 United States v. Pink, 315 US. 203 (1942) 32 United States v. Standard Oil Co. of Cal, 332 US. 301 (1947) 8 Verizon Comm ?cns Inc. v. Law O?ces of Curtis v. inko, LLP, 540 US. 398 (2004) 31 Vietli v. Jubelirer, 541 US. 267 (2004) 32 W. Creamery, Inc. v. Healy, 512 US. 186 (1994) 20 Wachovia Bank, NA. v. Burke, 414 F.3d 305 (2d Cir. 2005) 23 Wash. Envtl. Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013) 35 Weiler v. Chatham Forest Prods, Inc., 392 F.3d 532 (2d Cir. 2004) 13 Whitemcm v. Dorotheum Co. KG, 431 F.3d 57 (2d Cir. 2005) 32 Whitmore v. Arkansas, 495 US. 149 (1990) 34 Xerox Corp. v. Harris Cnly., Tex., 459 US. 145 (1982) 24 Statutes 10 U.S.C. 7422 25 15 U.S.C. ?2901 et seq 4 15 U.S.C. 2901 note 4 15 U.S.C. ?2921 4 15 U.S.C. 2933 4 15 U.S.C. ?2936 4 15 U.S.C. 2952 4 3O U.S.C. ?21a 25 30 U.S.C. 201 25 3O U.S.C. 1201 25 42 U.S.C. 5801 25 42 U.S.C. 6201 etseq 5 42 U.S.C. 7401 4 42 U.S.C. 7601 4 42 U.S.C. 13384 et seq 4 42 U.S.C. 13389 4, 25 42 U.S.C. 17001 et seq 4 43 U.S.C. 1802 24 NY. Envtl. Conserv. Law 23-03016 5 1X Pub. L. No. 105-276, 112 Stat. 2461 (1998) 5 Pub. L. No. 106-74, 113 Stat. 1047 (1999) 5 Pub. L. No. 106-377, 114 Stat. 1441 (2000) 5 Regulations 10 CPR. 626.6 5 30 C.F.R. 550.120 5, 25 30 CPR. 745.13 5 43 C.F.R. 3162.1 5, 25 CRR-NY 552.2 5 NYC. Admin. Code 24-1681 30 NYC. Admin. Code 24-169 30 Other Authorities Restatement (Second) of Torts 432 29 S. Rep. No. 109-78 25 S. Res. 98, 105th Cong. (1997) 4 PRELIMINARY STATEMENT Plaintiff seeks to hold five publicly traded energy companies liable for the impacts of global warming. Relying on state-law causes of action, Plaintiff alleges harms it claims are the result of worldwide fossil fuel production and global greenhouse gas emissions by countless nonparties, including the City of New York and its own citizens and businesses. Plaintiff? 5 claims are not limited to harms caused by fossil fuels extracted, sold, marketed, or used in New York. Instead, Plaintiff attempts to use state tort law to regulate the nationwide?indeed, worldwide?activity of companies that play a key role in virtually every sector of the global economy, supplying the fuels that enable production and innovation, literally keep the lights and heat on, power nearly every form of transportation, and form the basic materials from which innumerable consumer, technological, and medical devices are fashioned. The Complaint puts squarely at issue federal statutory, regulatory, and constitutional issues; aims to upset bedrock federal-state divisions of responsibility, and has profound implications for the global economy, international relations, and America?s national security. For these reasons and more, cases asserting nearly identical claims?including several filed by the same private lawyers representing Plaintiff here?have been universally rejected by US. courts. The result here should be the same. The Complaint?s con?ict with federal law and policy could not be starker. For nearly 50 years, the federal government has aimed to achieve energy independence by decreasing the Nation?s reliance on oil imports, including by opening federal lands and coastal areas to promote fossil fuel extraction, establishing strategic petroleum reserves, and contracting with fossil fuel companies to develop those resources. During this time, the US. has also enacted environmental statutes and regulations designed to strike an appropriate?and evolving?balance between protecting the environment and ensuring the energy supply for economic and national security. US. foreign policy has pursued these dual goals by negotiating with other countries to craft workable international frameworks to respond to global warming while evaluating how such regulation could affect the economy, national security, and foreign relations. This lawsuit takes issue with, and runs counter to, all of these decisions, threatening to upend the government?s longstanding energy and environmental policies and ?compromis[ing] the very capacity of the President to speak for the Nation with one voice in dealing with other governments? on global warming issues. Am. Ins. Ass ?11 v. Garamendt, 539 US. 396, 424 (2003). This case is about global production and global emissions, not a local nuisance. Plaintiff asks this Court to disregard the recognized boundaries of tort law and hold these select Defendants liable for the actions of literally billions of intervening third parties not just in New York, but around the world. After all, Plaintiff targets global warming, and the interstate and transnational conduct that term entails. These claims cannot be adjudicated without deciding whether the bene?ts of using fossil fuels are outweighed by the costs, not just in New York, but throughout the US. and worldwide. Under well-established principles of federal law, such claims cannot proceed. That is why earlier, similar lawsuits targeting this same issue were dismissed. See, e. g, Am. Elec. Power. Co. v. Connecticut, 564 US. 410, 421 (2011) Native Vill. of Kivalina v. ExxonMobl'l Corp, 696 F.3d 849, 855 (9th Cir. 2012). Moreover, New York courts are ?cautious in imposing novel theories of tort liability,? especially when the defendant?s alleged duties remain ?the focus of a national policy debate,? and they have already rejected Plaintiff? theory of causation. See Hamilton v. Beretta USA. Corp, 96 222, 239?40 (2001); Spitzer v. Sturm, Ruger Co, Inc, 761 192, 196?97, 202?03 (1st Dep?t 2003). This Complaint, which asserts already-rejected claims based on already-rejected theories, should be dismissed. I. FACTUAL BACKGROUND A. Global Warming Is a National and Global Issue Global warming is an important international issue that concerns every nation on Earth. Plaintiff does not contend that global warming is a localized issue, unique to the City of New York, but rather alleges that worldwide greenhouse gas emissions, which ?cannot be traced to their source,? have caused global temperatures to rise, and that this global warming is leading to effects all around the world. Compl. 37?3 8, 58. Indeed, Plaintiff admits that this case is about preventing global warming impacts ?both locally and globally.? Id. 11 39. As an issue of national and international signi?cance, addressing global warming has been the subject of decades of federal laws and regulations, collaborative research, political negotiations, and diplomatic engagement with other countries. International discussions, which began more than 30 years ago, led to the adoption of the United Nations Framework Convention on Climate Change which the US. signed and the Senate rati?ed in 1992. See Status of Ratification of the Convention, Noting that global warming was ?a common concern of humankind,? the ?[a]cknowledg[ed] that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response.? Recitals, Plaintiff itself recently recognized that it cannot address global warming ?on its own,? and that ?[c]ities, states, the federal government, and international partners must work together? on this important global issue. City of New York, 1.5 C, Aligning New York City with the Paris Climate Agreement, at 30 (Sept. 2017) (cited at Compl. 11 39 n.16). The United States has acted at the national level to address global warming while balancing important economic and social interests. As early as 1978, Congress established a ?national climate program? to improve the country? understanding of global warming through 3 enhanced research, information collection and dissemination, and international cooperation. See Nat?l Climate Program Act of 1978, 15 U.S.C. 2901 et seq. Following this, in the Global Climate Protection Act of 1987, Congress recognized the uniquely international character of global warming and directed the Secretary of State to coordinate U.S. negotiations on the issue. See 15 U.S.C. 2901 note, see also 15 U.S.C. In the Clean Air Act, Congress established a comprehensive scheme to promote and balance multiple objectives, deploying resources to ?protect and enhance the quality of the Nation?s air resources, so as to promote the public health and welfare and the productive capacity of its population.? 42 U.S.C. 7401(b)(l). Congress authorized the Environmental Protection Agency to regulate air pollutants like greenhouse gas emissions, and EPA has exercised this authority on its own and with other agencies.2 Id. 7601. Other laws, like the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007, sought further reductions of greenhouse gas emissions at the national level. See 42 U.S.C. 13389(c)(1); 42 U.S.C. 17001 et seq. Re?ecting the complex tradeoffs inherent in national energy and security policy, the political branches of the US. Government have always balanced environmental regulations with economic and social interests. For example, the US. Senate unanimously adopted a resolution urging the President not to sign the Kyoto Protocol if it would result in serious harm to the U. S. economy or did not do enough to regulate other countries? emissions. See S. Res. 98, 105th 1 Congress has revisited the issue of global warming several times. For example, the Global Change Research Act of 1990 established a research program for global climate issues, 15 U.S.C. 2921, directed the President to estab- lish a research program to ?improve understanding of global change,? id. 2933, and provided for regular scienti?c assessments that ?analyze[] current trends in global change,? id. 2936(3). Congress later directed the Secretary of Energy to conduct assessments related to greenhouse gases and report to Congress. Energy Policy Act of 1992, Pub. L. No. 102-486, 1604, 106 Stat. 2776, 3002 (codified at 42 U.S.C. 13384 et seq). 2 Indeed, a ?national program? addressing greenhouse gas emissions from vehicles ?was developed jointly by EPA and the National Highway Traffic Safety Administration.? See US. Env?tl Prot. Agency, Regulations for Green- house Gas Emissions from Passenger Cars and Trucks, http://bitly/2EchKK. 4 Cong. (1997).3 More recently, President Trump cited similar economic concerns when he announced his intent to withdraw the US. from the Paris Agreement, shortly after which he reaf?rmed the importance of fossil fuels to the American economy and the country?s dedication to encouraging fossil fuel production. See Michael D. Shear, Trump Will Withdraw US. From Paris Climate Agreement, NY. Times (June 1, 2017), Remarks by President Trump at the Unleashing American Energy Event (June 29, 2017), http://bitly/2El7yWU. And state governments?including New York?recognize the importance of fossil fuels to their citizens and economies, joining the federal government in authorizing and encouraging the production of those fuels within their jurisdictions. See, e. g, 43 C.F.R. 3162.1; 30 C.F.R. id. 550.120; 10 C.F.R. 626.6; 42 U.S.C. 6201 et seq; NY. Envtl. Conserv. Law 23-03016 it ?to be in the public interest . . . to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had); CRR-NY 552.2. B. Plaintiff Seeks to Hold Five Energy Producers Solely Liable for Global Warming According to Plaintiff, global greenhouse gas emissions ?since the dawn of the Industrial Revolution? have contributed to global warming in the form of increased ?global average temperature.? Compl. 1111 3, 35. Plaintiff proposes to remedy this worldwide problem by asserting state-law tort claims against a select group of fossil fuel companies. ld. Plaintiff claims Defendants are the ??ve largest, investor-owned producers of fossil fuels in the world,?4 and alleges that they ?are collectively responsible, through their production, marketing, and sale 3 Congress then enacted a series of laws effectively barring EPA from implementing the Protocol in the absence of Senate ratification. See Pub. L. No. 105-276, 112 Stat. 2461, 2496 (1998); Pub. L. No. 106-74, 113 Stat. 1047, 1080 (1999); Pub. L. No. 106-377, 114 Stat. 1441, 1441A-41 (2000). 4 Plaintiff ignores corporate separateness and improperly aggregates the activities of each Defendant?s subsidiaries and affiliates. See De Jesus v. Sears, Roebuck Ca, 87 F.3d 65, 69?70 (2d Cir. 1996). 5 of fossil fuels, for over 11% of all the carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the dawn of the Industrial Revolution.? Id. 11 3. Plaintiff further alleges that Defendants? ?marketing? and ?promotion? activities prevented effective regulation of emissions and contributed to third-party emissions, and asserts that Defendants ?misled the public??including the worldwide scientific community?by ?downplaying the harms and risks of climate change? with the goal of ?continu[ing] to produce fossil fuels and sell their products on a massive scale.? Id. 1111 60, 76?77. Plaintiff seeks to hold Defendants liable for lawful conduct occurring around the world, including lobbying and other First Amendment-protected activities, but relies solely on state-law claims?public and private nuisance and trespass?for harms that will manifest themselves ?in the future.? Id 13, 41. Plaintiff seeks compensatory damages or, alternatively, equitable relief to ?abate the nuisance,? attorneys? fees, and costs. Id., Relief Requested. C. Procedural Posture Plaintiff ?led the Complaint on January 9, 2018. Dkt. 1. Defendants were served with a copy of the Summons and Complaint on January 19, 2018. On February 6, 2018, this Court entered an Order setting February 23, 2018 as the deadline for the motions to dismiss of Defendants Chevron Corporation, ConocoPhillips, and Exxon Mobil Corporation. Dkt. 28. II. LEGAL STANDARD A complaint is required to ?contain suf?cient factual matter, accepted as true, to ?state a claim to relief that is plausible on its face.? Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (quoting Bell/1d. Corp. v. Twombbz, 550 US. 544, 570 (2007)). Although the Court must accept well-pleaded factual allegations as true, this tenet is ?inapplicable to legal conclusions.? Id. After stripping away the ?conclusory statements,? the Court must rely on its ?judicial experience and common sense,? id. at 678?79, and must dismiss if the remaining factual allegations fail to 6 ?raise a right to relief above the speculative level,? Twombly, 550 US. at 545. Dismissal is also appropriate if the plaintiff? claims are barred as a matter of law, such as where they are displaced or preempted by federal law, AEP, 564 US. at 423; Buckman Co. v. Plainti?s Legal Comm, 531 US. 341, 348 (2001), infringe on the foreign affairs power of the political branches, Garamendi, 539 US. at 429; violate the US. Constitution; or present non-justiciable issues, 767 Third Avenue Assocs. v. Consulate Gen. of Socialist Fed. Republic of Yugoslavia, 218 F.3d 152, 164 (2d Cir. 2000). ARGUMENT This is not the first time a plaintiff has tried to plead global-warming-related tort claims. Similar claims have been considered, and dismissed, by the Supreme Court, the Ninth Circuit, and various district courts around the country. See, e. g, AEP, 564 US. at 421 (holding global- warming nuisance claims were governed by federal common law, but that claims had been displaced by the Clean Air Act); Kivalina, 696 F.3d at 855 (same), Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 865 (SD. Miss. 2012) (dismissing putative state-law global-warming claims on multiple alternative grounds, including that the claims were preempted by the Clean Air Act; that proximate causation was lacking as a matter of law; that the plaintiffs lacked standing, and that the claims were nonjusticiable), a??d on other grounds, 718 F.3d 460 (5th Cir. 2013), California v. Gen. Motors Corp, 2007 WL 2726871, at 15 (ND. Cal. Sept. 17, 2007) (dismissing federal common law global-warming nuisance claims as nonjusticiable). Plaintiffs global-warming tort claims likewise suffer from multiple defects that require dismissal of the Complaint with prejudice. A. Plaintiff?s Claims Arise Under Federal Common Law and Should Be Dismissed Plaintiff? Complaint is premised on the theory that New York law should govern tort claims based on global warming caused by the worldwide accumulation of greenhouse gases 7 from billions of emitters over the last several hundred years. But as the Supreme Court, the Second Circuit, and the Ninth Circuit have squarely held, any such claims aimed at the interstate and international effects of greenhouse gas emissions necessarily arise under federal common law. Under federal common law standards, however, Plaintiff? Complaint fails to state a claim for relief for at least two separate reasons. First, the federal common law tort claims that Plaintiff asserts have been displaced by the Clean Air Act. Second, even if Congress had not displaced federal common law in this area, dismissal is appropriate because Plaintiff has not pled viable federal common law nuisance or trespass claims. 1. Notwithstanding their state-law labels, Plaintiff?s claims arise under federal common law Although ?[t]here is no federal general common law,? Erie R. Co. v. Tompkins, 304 US. 64, 78 (193 8), the Supreme Court has long recognized that there remain ?some limited areas? in which the governing legal rules will be supplied not by state law, but by ?what has come to be known as ?federal common law.?? Tex. Indus. Inc. v. Radclijijaterials, Inc., 451 US. 630, 640 (1981). Where ?the interstate or international nature of the controversy makes it inappropriate for state law to control,? ?our federal system does not permit the controversy to be resolved under state law.? Id. at 641; see also United States v. Standard Oil Co. of Cal, 332 US. 301, 305?06 (1947) (?liability is not a matter to be determined by state law? where ?the scope, nature, legal incidents and consequences? of the action ?are fundamentally derived from federal sources and governed by federal authority?). Because such controversies implicate ?uniquely federal interests,? Tex. Indus, 451 US. at 640, ?the basic scheme of the Constitution . . . demands? that federal common law apply, AEP, 564 US. at 421. Thus, ?if federal common law exists, it is because state law cannot be used.? City ofIl/Iilwaukee v. Illinois, 451 US. 304, 313 n.7 (1981) (?Milwaukee ?The control of interstate pollution? is an area in which federal common law has historically governed. 1111"] Paper Co. v. Ouellette, 479 US. 481, 492 (1987). For example, the Supreme Court has held that ?regulation of interstate water pollution is a matter of federal, not state, law,? and that nuisance claims involving interstate water and air pollution ?should be resolved by reference to federal common law.? Id. at 488, see also Illinois 12. City ofMilwaukee, 406 US. 91, 103 (1972) (?Milwaukee (?When we deal with air and water in their ambient or interstate aspects, there is a federal common law?). Courts ?develop[ed] federal common law? to resolve issues involving interstate pollution because in this area ?there exists a significant con?ict? between ?federal policy or interest and the use of state law.? ll/Iilwaukee 451 US. at 313; see also Milwaukee 1, 406 U. S. at 105 n.6 (applying federal common law to interstate pollution claim because of the ?overriding federal interest in the need for a uniform rule of decision? and because ?the controversy touche[d] basic interests of federalism?). The Court has thus repeatedly ?approved federal common-law suits brought by one State to abate pollution emanating from another State.? AEP, 564 US. at 421. ?[T]he implicit corollary? of these rulings was that, because the nature of the dispute required application of federal standards, ?state common law was preempted.? Ouelletz?e, 479 US. at 488. The Supreme Court has squarely held that, under this longstanding line of cases, claims asserting global-warming-related injuries from emissions of greenhouse gases?such as the claims asserted by Plaintiff here?are governed by federal common law. See AEP, 564 US. at 421?22. In AEP, eight States and various other plaintiffs (several of which were represented by some of the same private attorneys in this case) sued five electric utility companies, contending that ?the defendants? carbon-dioxide emissions? had substantially contributed to global warming, thereby ?creat[ing] a ?substantial and unreasonable interference with public rights,? in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law.? 564 US. at 418. Like Plaintiff here, the AEP plaintiffs ?alleged that public lands, infrastructure, and health were at risk from climate change.? Id. To redress their alleged injuries, the plaintiffs sought injunctive relief capping, and then reducing, the defendants? emissions. Id. at 419. In reviewing the Second Circuit?s decision allowing such claims to proceed, the Supreme Court, as a threshold matter, agreed with the plaintiffs and the Second Circuit that such claims were necessarily governed by federal common law. Id. at 421 (noting that global-warming tort claims involve ??air and water in their ambient and interstate aspects?? (quoting Il/Il'lwaukee I, 406 US. at 103)); see also Connecticut v. Am. Elec. Power Co, Inc, 582 F.3d 309, 392 (2d Cir. 2009) (?hold[ing] that the federal common law of nuisance applies? to global-warming-related tort claim (citing Il/Il'lwaukee II, 451 US. at 314 rev 564 US. 410. In reaching this conclusion, the Supreme Court emphasized that a uniform federal common law standard would have to apply to a global-warming tort claim because, on this subject, ?borrowing the law of a particular State would be inappropriate.? Id. at 422. In Kivalina, a case brought by some of the same private attorneys pleading nearly identical global-warming-related tort claims, the Ninth Circuit followed AEP and similarly held that federal common law governed such claims. 696 F.3d at 855?56. In Kivalina, as in this case, a local government entity (an Alaskan city) asserted a public nuisance claim for damages to city property and ?critical infrastructure? as a result of ?sea levels ris[ing]? and other climatic impacts allegedly resulting from the defendant oil, coal, and electric companies? ?emissions of large quantities of greenhouse gases.? Id. at 853?54. The city asserted this public nuisance claim under federal common law and, in the alternative, under state law. Native Vill. of Kivalina v. ExxonMobl'l Corp, 663 F. Supp. 2d 863, 869 (ND. Cal. 2009), 696 F.3d 849. The Ninth 10 Circuit, following AEP, began ?by addressing first? the parties? ?threshold? disagreement as to whether the plaintiff? 8 claims arose under federal common law. 696 F.3d at 855. The Court held that, under AEP, a global-warming tort suit like the plaintiff? was the sort of ?transboundary pollution suit[]? to which federal common law applied. Id. at 855?58.5 Under AEP, Plaintiff? claims (to the extent they exist at all) are plainly governed by federal common law. See AEP, 564 US. at 421?22; AEP, 582 F.3d at 855?56. Plaintiff?s claims are based on Defendants? alleged worldwide fossil fuel production and the worldwide emissions of countless nonparties, and not on any conduct occurring exclusively, or even primarily, in New York. See Compl. 1i 3. The sheer scope of these claims, and the conduct on which they are based, demonstrate the ?overriding federal interest in the need for a uniform rule of decision.? Milwaukee 1, 406 US. at 105 n.6, see also AEP, 564 US. at 422. Thus, notwithstanding the state-law label Plaintiff puts on its claims, they necessarily arise under federal common law. The inherently federal nature of Plaintiff global-warming tort claims is not altered by the fact that Congress, in enacting the Clean Act Act, displaced federal common law remedies in favor of a comprehensive federal regulatory scheme that provides a limited role for state-law tort remedies. See AEP, 564 US. at 429; Ouellette, 479 US. at 496?97 (addressing comparable effect of enactment of the Clean Water Act). Under the Clean Air Act, the range of tort claims that can be asserted under state law is quite narrow, and Plaintiff? claims do not fall within it. Within a scheme established by Congress to address sources of interstate pollution, state common law can be applied to further limit a defendant?s emissions only within that source state, 5 The plaintiffs in Kivalina and AEP had alternatively asserted state-law claims, but those alternative claims were not before the courts on appeal. See Kivalina, 696 F.3d at 855; AEP, 564 US. at 429. However, in view of those courts? holdings that federal common law governed the sort of inherently interstate and international tort claims as- sociated with global warming, and that application of a particular State?s law to such claims would be ?inappropri- ate,? AEP, 564 US. at 422, it is not surprising that, following the dismissal of their federal claims, the plaintiffs on remand in both cases did not attempt to pursue any such alternative theory that state law could be applied. ll if at all; the existence of the federal statute ?precludes a court from applying the law of an affected State against an out-of?state source.? Ouellette, 479 US. at 492?94. Because Plaintiffs claims rely on an analysis of global emissions for out-of-state sources in every State and country around the world, those claims cannot be governed by the law of New York. See id. at 496 (rejecting application of state law to out-of-state sources because it would result in ?a variety of 33) ??vague? and ?indeterminate state common law ?nuisance standards? application of numerous States? laws would only exacerbate the vagueness and resulting uncertainty?); AEP, 564 US. at 422 (application of a particular State?s law would be ?inappropriate?). To the extent that any such global-warming tort remedy exists, it must be grounded in federal law, as the Supreme Court, the Second Circuit, and the Ninth Circuit have all held. 2. Congress has displaced federal common law governing global warming- based tort claims Although Plaintiff? claims necessarily arise under federal common law, AEP and Kivalina both held that any such cause of action fails to state a claim because Congress has displaced those federal tort remedies by failing to include them in the regulatory scheme established in the Clean Air Act. AEP, 564 US. at 423?29; Kivalina, 696 F.3d at 856?58. Plaintiff? claims fail for the same reason. ?[T]he right to assert a federal common law public nuisance claim has limits.? Kivalina, 696 F.3d at 856, ?Federal common law is a necessary expedient, and when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears.? Milwaukee 11, 451 US. at 314; see also id. at 317 start with the assumption that it is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law?); In re Oswego Barge Corp, 664 F.2d 327, 335 (2d Cir. 1981) (recognizing ?presumption in favor of 12 preemption of federal common law whenever it can be said that Congress has legislated on the 73 CL subject?). Accordingly, ?federal common law does not provide a remedy when federal statutes directly answer the federal question.? Kivalina, 696 F.3d at 856. ?The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute speak[s] directly to [the] question at issue.? AEP, 564 US. at 424. In AEP, the Supreme Court recognized that Congress has spoken directly to greenhouse gas emissions because they ?qualify as air pollution subject to regulation under the [Clean Air] Act.? Id. (citing Massachusetts v. EPA, 549 US. 497, 528?29 (2007)). The Court thus held that ?the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emisions from fossil-fuel ?red power plants.? Id. at 424; see also Kivall'na, 696 F.3d at 857, Weiler v. Chat/1am Forest Prods, Inc, 392 F.3d 532, 534 (2d Cir. 2004) (recognizing that ?[t]he Clean Air Act created a complex and comprehensive legislative scheme? (citation omitted)). Here, Plaintiff? 3 claims have likewise been displaced. Indeed, counsel for Plaintiff, in a California case asserting nearly identical claims against the same Defendants sued here, admitted as much, conceding that federal common law claims based on alleged global-warming-related injuries have been displaced. See California v. BP P.L.C., er al., No. 17 ?cv?6012(ND. Cal. Nov. 20, 2017Clean Air Act displaces the federal common law of interstate pollution?). Attempting to distinguish its claims from those dismissed in AEP and Kivalina, Plaintiff disclaims any attempt ?to impose liability on Defendants for their direct emissions of greenhouse gases,? Compl. 11 14, and asserts that its nuisance and trespass claims are predicated solely on Defendants? extraction and marketing activities, id. 1111 116, 123, 131. But just as in AEP and 13 Kivalina, Plaintiff alleges injuries that it claims were caused by excessive worldwide emissions, and that is sufficient to warrant application of federal common law?which has then been displaced by the Clean Air Act. Id. 35, 37?38.6 The fact that Plaintiff? claims rest on a derivative theory of liability for causing other persons allegedly unreasonable and excessive emissions does not distinguish the analysis in AEP or Kivalina. Indeed, in Kivalina, the Ninth Circuit expressly held that the plaintiff? derivative theory of indirect liability?based on allegations that defendants had ?conspir[ed] to mislead the public about the science of global warming??was ?dependent upon the success? of the underlying public nuisance claim, and therefore both claims were equally governed by federal common law and were equally displaced. 696 F.3d at 854, 858. The incompatibility of Plaintiff? nuisance claim with the Clean Air Act is highlighted by the fact that Plaintiff would have to prove, inter alia, that the greenhouse gas emissions for which it seeks to hold Defendants responsible created an ?unreasonable interference with a right common to the general public.? Il/Iilwaukee II, 451 US. at 348 (emphasis added); Copart Indus, Inc. v. Consol. Edison Co. of N. Y., Inc, 41 564, 570 (1977) (plaintiff must prove that interference is ?unreasonable in character?). ?[A]djudication of Plaintiff? claim? would thus ?require the Court to balance the competing interests of reducing global warming emissions and the interests of advancing and preserving economic and industrial development? dependent on fossil fuels. Gen. Motors, 2007 WL 2726871, at 15. But that determination ?ha[s] been entrusted by Congress to the Comer, 839 F. Supp. 2d at 865 (citing AEP, 564 US. at 6 See also Compl. ll 37 (discussing temperature increases from ?emissions scenarios?); id. 11 51 (discussing ?global warming-induced sea level rise caused by past fossil fuel consumption,? ?[t]emperature increases from GHG emis- sions,? and the ?impacts? of ?past and continuing GHG pollution?); id 52 (?the burning of fossil fuels? is ?caus- ing . . . changes to the climate?); id. 11 53 (?fossil fuel combustion is the primaly driver of climate change?; ?the cur- rent increase in carbon dioxide in the atmosphere is caused by fossil fuel pollution?); id. '1 55 (quoting study con- cluding ?that carbon dioxide levels were increasing . . . as a result of fossil fuel use?). 14 428). Accordingly, ?[t]he judgments the [Plaintiff] would commit? to this court ?cannot be reconciled with the decisionmaking scheme Congress enacted.? AEP, 564 US. at 429. Because Congress has ?designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions,? AEP, 564 US. at 428, Plaintiff? concerns ?must rest in the hands of the legislative and executive branches of our government, not the federal common law,? Kivalina, 696 F.3d at 858. Thus, the Complaint should be dismissed because Congress has displaced the federal common law that governs Plaintiff? claims. 3. Alternatively, Plaintiff has failed to plead a viable federal common law claim Alternatively, even if Congress had not displaced the relevant federal common law, Plaintiff has failed to state a claim that complies with federal common law standards. Federal common law has never been extended to the sort of expansive derivative theory of liability asserted by Plaintiff here. There is no precedent for applying tort liability against producers of lawful products at lawful levels merely because consumers happen to create pollution while using those products. See AEP, 564 US. at 422 (?Nor have we ever held that a State may sue to abate any and all manner of pollution originating outside its borders?). Nor do federal proximate causation principles support the imposition of liability where, as here, the causal chain between lawful production and the alleged harm involves billions of intervening causes and complex ecological phenomena dating back to the ?Industrial Revolution.?7 See Laborers Local I7Health Bene?t Fund 12. Philip Morris, Inc, 191 F.3d 229, 23 5?36, 240 (2d Cir. 1999) (dismissing claims and noting that proximate cause requires ?chain of causation leading to damages [that] is not complicated by the intervening agency of third parties?). As Plaintiff? counsel recently admitted in parallel California proceedings, ?[a]pplying federal common law to 7 See in?a Sections for discussion of Plaintiff?s failure to adequately plead causation or injury-in- fact. 15 producer-based cases would extend the scope of federal nuisance law well beyond its original justi?cation.? California 12. BP P.L.C., et al., No. 17-cv-O6012 (ND. Cal), ECF No. 64 at 9. There is no justification for extending the federal common law of nuisance beyond the ?bounded pollution giving rise to past federal nuisance suits.? AEP, 564 US. at 422.8 B. Plaintiff?s Claims Are Independently Barred by Numerous Federal Doctrines Regardless whether Plaintiff? claims arise under federal or state law, dismissal is warranted because adjudication of these claims would interfere with the foreign affairs powers of the political branches, the relief Plaintiff seeks would violate the Commerce, Due Process, and Takings Clauses; and the claims are preempted by federal law. 1. Plaintiff?s claims infringe on the federal foreign affairs power The Supreme Court has held that ?state laws ?must give way if they impair the effective exercise of the Nation?s foreign policy.? Garamendl', 539 US. at 419 (citation omitted). In addition to invalidating state statutes, the foreign affairs doctrine bars state-law causes of action. See In re Assicurazioni Generali, S.P.A., 592 F.3d 113, 115, 119?20 (2d Cir. 2010). Plaintiff?s claims undermine the federal government?s foreign affairs powers because they would impair the government?s ability to negotiate and implement comprehensive international frameworks on global warming and would require judicial second-guessing of global warming policies adopted by the federal government in negotiating with foreign sovereigns. In addition to federal legislation and regulation, greenhouse gas emissions and responses to global warming are the subject of international agreements. See supra Section see also Gen. Motors, 2007 WL 2726871, at 14 political branches have . . . made foreign policy 8 While the Second Circuit held that non-state parties could bring federal common law nuisance claims, AEP, 582 F.3d at 359?66, the Supreme Court has indicated that they cannot. See Milwaukee 1, 406 US. at 105 n.6; New Jer- sey v. New York, 345 US. 369, 372?73 (1953). And in any event, federal common law does not create ?a cause of action . . . by a private plaintiff, seeking damages,? and so Plaintiff?s damages remedy is improper. Middlesex Cnly. Sewage Auth. v. Nat?l Sea ClammersAss?n, 453 US. 1, 21 (1981). 16 determinations regarding the United States? role in the international concern about global warming?). The United States has clearly stated its policy to seek multilateral reductions in worldwide carbon emissions, and has used domestic emissions reductions as a bargaining chip to extract similar commitments from other nations in negotiations. See supra Section 1A. Most recently, President Trump announced his intent to withdraw from the Paris Agreement for, among other reasons, what he determined to be its unfair impact on the American economy.9 See id. Plaintiff, apparently dissatisfied by these developments, is attempting to ?employ[] a different, state system of economic pressure? on the fossil fuel industry. Garamendi, 539 US. at 423 (citation omitted). But ?by seeking to impose damages for the [Defendants?] lawful worldwide [fossil fuel extraction], Plaintiff? nuisance claims sufficiently implicate the political branches? powers over . . . foreign policy.? Gen. Motors, 2007 WL 2726871, at *14. Although Plaintiff suggests it has no intention of ?restrain[ing] Defendants from engaging in their business operations,? Compl. 1] 14, it requests relief designed to pressure Defendants to curtail their business operations around the world.10 See Kurns v. RR. Friction Prods. Corp, 565 US. 625, 637 (2012) regulation can be . . . effectively exerted through an award of damages, and the obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy?); see also San Diego Bldg. Trades Council v. Garmon, 359 US. 236, 247 (1959). Plaintiff? claims, which are based on Defendants? worldwide activities, would thus ?undercut[] the President?s diplomatic discretion 9 Underscoring the need for a uniform approach, President Trump also noted the Paris Agreement continues to be evaluated, and that the government?s focus is on negotiating a ?good deal for the Graham Ruddick, Donald Trump says US could re-enier Paris climate deal, The Guardian (Jan. 28, 2018), SW. 10 Indeed, Mayor de Blasio publicly declared his intention to use this lawsuit and the City?s ?litigation power to go at these bad actors? by seeking ?billions? of dollars in damages, and that his intention was to ?help bring the death knell to this industry.? Transcript: Mayor de Blasio Appears Live On The Bernie Show With Senator Bernie Sand- ers (Jan. 25, 2018), 1k. 17 and the choice he has made exercising it.? Garamendi, 539 US. at 423?24. In Crosby v. National Foreign Trade Council, for example, Massachusetts passed a law barring state entities from transacting with companies doing business in Burma?an effort to spur that country to improve its human rights record. 530 US. 363, 366?70 (2000). But because the law ?undermine[d] the President?s capacity . . . for effective diplomacy? by ?compromis[ing] the very capacity of the President to speak for the Nation,? the Supreme Court struck it down. Id at 381. As the Court explained, ?the President?s maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.? Id In other words, ?the President?s effective voice? on matters of foreign affairs must not ?be obscured by state or local action.? Id Likewise, in Garamendi the Court invalidated Califomia?s effort to encourage Holocaust reparations by European insurance carriers based on ?the likelihood that state legislation will produce . . . more than incidental effect in con?ict with express foreign policy of the National Government.? 539 US. at 420. ?Quite simply,? the Court explained, ?if the California law is enforceable the President has less to offer and less economic and diplomatic leverage as a consequence.? Id at 424 (alterations omitted). Because recognizing a ?global warming nuisance tort would have an inextricable effect on . . . foreign policy? that con?icts with the federal government?s objectives, Plaintiff? claims should be dismissed. Geri. Motors, 2007 WL 2726871, at 11 Similarly, the act-of-state doctrine supports dismissal because the challenged conduct is often undertaken pursuant to acts of foreign governments g, granting extraction licenses and leasing state-owned land), and thus adjudicat- ing Plaintiff ?5 claims would ?embarrass the Executive Branch or our Government in the conduct of our foreign rela- tions.? Al?ed Dunhill of London, Inc. v. Republic of Cuba, 425 US. 682, 697 (1976); see also Spectrum Stores, Inc. v. Citgo Petroleum Corp, 632 F.3d 938, 955 (5th Cir. 2011). 18 2. Plaintiff?s claims are barred by the Commerce Clause Plaintiff 5 claims, which are based on production and promotion activities around the world, should be dismissed because they seek to regulate out-of-state commercial activities. ?The critical inquiry? in determining whether state regulation violates the Commerce Clause ?is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State.? Healy v. Beer Inst, 491 US. 324, 336 (1989). This requires courts to ?consider[] how [the regulation] may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation. . . . [T]he Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State.? Id. at 336?37. Nor may a state use its tort law ?impos[e] its regulatory policies on the entire nation,? because ?one State?s power to impose burdens on the interstate market? is ?constrained by the need to respect the interests of other States.? Am. v. Gore, 517 US. 559, 571, 585 (1996). Plaintiff requests, inter alia, an injunction to ?abate the nuisance? in New York that Defendants allegedly caused when they ?produced, marketed, and sold massive quantities of fossil fuels? around the world. Compl. 1111 1, 3, 13, 59. As such, Plaintiff? requested injunction would necessarily regulate Defendants? out-of?state conduct. Indeed, Plaintiff? allegations are expressly based on Defendants? out-of?state fossil fuel production, which only later is shipped to or through the ?New York Harbor area,? and on national promotion activities. See id. 11 26 (BP, production in TX), 11 27 (Chevron, production in MS), 11 28 (ConocoPhillips, production in ND), 11 29 (Exxon, production in LA, TX, and ND), 11 30 (Shell, production in TX and LA). Moreover, exercises of state power burdening foreign commerce?as Plaintiff? injunction here would?are held to an even stricter standard under the Commerce Clause than those burdening only interstate commerce. See, Barclays Bank PLC v. Franchise Tax Bd. of 19 Cal, 512 US. 298, 311 (1994) (?In the unique context of foreign commerce, a State?s power is further constrained because of the special need for federal uniformity.? (internal citations omitted)); S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 US. 82, 100 (1984) (?It is a well- accepted rule that state restrictions burdening foreign commerce are subjected to a more rigorous and searching scrutiny?). For this reason, too, the Complaint must be dismissed. Plaintiff? 5 request for monetary damages would have the same practical effect, singling out these ?ve investor-owned companies to their detriment in a global fossil fuel industry that is otherwise largely state-owned and thus less easily subject to suit. It is well-recognized that ?[t]he obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.? San Diego Bldg. Trades, 359 US. at 247, see also BMW(?State power may be exercised as much by a jury?s application of a state rule of law in a civil lawsuit as by a statute?). After all, if Defendants? lawful business models are deemed a nuisance, every day of continued existence would give rise to a new nuisance claim, and therefore perpetual liability, until the business model terminates. See Town of Oyster Bay v. Lizza Indus, Inc, 22 1024, 1031 (2013) (explaining continuing nuisance liability). The Supreme Court has recognized that common-law environmental tort claims in particular can force a defendant to ?change its methods of doing business and controlling pollution to avoid the threat of ongoing liability,? and that courts theoretically could ?require the source to cease operations by ordering immediate abatement.? Ouellerte, 479 US. at 495. In short, whether this Court were to impose an injunction or award damages, Plaintiff? requested relief would ?directly control? commerce occurring wholly outside New York in violation of the Commerce Clause. Healy, 491 US. at 336; see also W. Creamery, Inc. v. Healy, 512 US. 186, 201 (1994) (?Commerce Clause jurisprudence is not so rigid as to be controlled by the form 20 by which a State erects barriers to commerce?). Furthermore, courts must consider how one State?s regulations ?may interact with the legitimate regulatory regimes of other States,? Healy, 491 U.S. at 336, and imposing penalties ?based in large part on conduct that happened in other jurisdictions? would ?infring[e] on the policy choices of other States,? BMW, 517 U.S. at 572?73. Many states depend on the extraction of petroleum resources for energy and economic security,12 and New York may not ?impose its own policy choice on neighboring states,? let alone every state in the country. Id. at 571. 3. Plaintiff?s claims are barred by the Due Process and Takings Clauses Plaintiff does not allege that Defendants have violated any of the numerous federal and state laws regulating the extraction, production, promotion, or sale of fossil fuels. Yet it nevertheless seeks ?billions? of dollars in damages based on Defendants? lawful economic activity and constitutionally protected lobbying activities across the country over the course of several decades. See Compl. 1W 3, 11, 12, 67, 110 Relief Requested. Imposing this type of massive extraterritorial and retroactive liability would constitute ?a due process violation of the most basic sort.? Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).13 Due process forbids States from ?punish[ing] a defendant for conduct that may have been lawful where it occurred.? State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003) (collecting cases). Indeed, ?a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors? lawful conduct in other States.? BMWjust one example, Wyoming is considering policies to increase production within the State. Heather Richards, Lawmakers propose tax cut for oil and gas in Wyoming, Casper Star Tribune (Feb. 14, 2018), 13 Indeed, some Defendants undertook their production and promotion activities on behalf of the federal govem- ment, and so are protected by the government contractor defense. See In re A gent Orange Prod. Liab. Ling, 517 F.3d 76, 87?101 (2d Cir. 2008); see also Boyle v. United Techs. Corp, 487 U.S. 500, 504?05 (1988) (recognizing government contractor defense and ?uniquely federal interest[]? of ?getting the Government?s work done?); Murray v. Northrop Grumman Inf Tech, Inc, 444 F.3d 169, 174?76 (2d Cir. 2006) (holding that official immunity applies to discretionary actions taken ?within the scope of . . . obligations to? the government). 21 572?7 3 n. 19; see also id. at 573 (holding that state could not ?punish BMW for conduct that was lawful where it occurred? or ?impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions?). Similarly, due process prohibits states from imposing retroactive liability for lawful conduct. In Eastern Enterprises 12. Apfel, 524 US. 498 (1998), the Court invalidated a federal statute that made coal companies retroactively liable for the medical costs of former coal miners. Justice O?Connor, writing for a four-justice plurality, observed that the Coal Act was unconstitutional under the Takings Clause because it ?divest[ed] Eastern of property long after the company believed its liabilities . . . to have been settled[,] [a]nd the extent of Eastern?s retroactive liability is substantial and particularly far reaching.? Id. at 534. The plurality struck down the Act because it ?improperly place[d] a severe, disproportionate, and extremely retroactive burden on Eastern.? 1d. at 538; see also id. at 539, 549 (Kennedy, ., concurring in the judgment and dissenting in part) (statute ?must be invalidated as contrary to essential due process principles? because it created ?liability for events which occurred 35 years ago? and had ?a retroactive effect of unprecedented These principles prohibit tort claims like the ones at issue here, which seek to impose massive extraterritorial and retroactive liability based on Defendants? lawful conduct over hundreds of years. See Compl. 11 59. 14 Courts have held that Eastern Enterprises ?stands for a clear principle: a liability that is severely retroactive, dis- ruptive of settled expectations and wholly divorced from a party?s experience may not constitutionally be imposed.? Me. Yankee Atomic Power Co. v. United States, 44 Fed. Cl. 372, 378 (1999); see also Franklin Cnly. Convention Facilities Auth. v. Am. Premier Underwriters, 61 F. Supp. 2d 740, 743 (SD. Ohio 1999). In United States v. Alcan Aluminum Corp, the Second Circuit observed that ?no ?common denominator? [could] be said to exist among the Court?s opinions.? 315 F.3d 179, 189 (2d Cir. 2003). But the constitutional principles underlying those decisions are binding, and other Second Circuit decisions have embraced them. See Peterson v. Islamic Republic of Iran, 758 F.3d 185, 192 (2d Cir. 2014) (asking whether a challenged statute ?impose[d] severe retroactive liability on a limited class of parties that could not have anticipated the liability?); Sweet v. Sheahan, 235 F.3d 80, 88?89 (2d Cir. 2000). 22 4. Plaintiff?s claims are preempted by federal law State-law tort claims are preempted when they con?ict with federal law or where Congress has occupied the ?eld through legislation. See Buckman, 531 US. at 348, N. Y. SMSA Ltd. ?Shl'p v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 2010) preemption [exists] where . . . the local law is an obstacle to the achievement of federal objectives?); Wachovia Bank, NA. v. Burke, 414 F.3d 305, 313?14 (2d Cir. 2005). In addition, state-law tort claims are preempted where they implicate uniquely federal interests that are ?committed by the Constitution and laws of the United States to federal control.? Boyle, 487 US. at 504 (citations omitted). Plaintiff? 5 claims here are preempted for all three reasons. First, as set forth above, supra Sections the claims run headlong into environmental, energy, national security, and foreign relations issues that are subject to federal control, and thus cannot proceed. See also Garamendi, 539 US. at 418?19. Second, by enacting the Clean Air Act, ?Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants,? thus occupying the ?eld. AEP, 564 US. at 426 (noting that 42 U.S.C. 741 directs EPA to establish emissions 5? CC standards for categories of stationary sources that, ?in [the Adminstrator?s] judgment, caus[e], or contribut[e] signi?cantly to, air pollution which may reasonably be anticipated to endanger public health or welfare?). This delegation was necessary because ?[t]he appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required.? AEP, 564 US. at 427. Third, any state-law damages award here would necessarily be premised on a ?nding that Defendants? production and promotion of energy resources led to an ?unreasonable? level of emissions, and that Defendants engaged in these activities without justi?cation or permission. 23 But ?Congress has entrusted the with the responsibility for making these scientific judgments, and [this Court] must respect both Congress? decision and the Agency?s ability to rely on the expertise that it develops.? Lead Indus. Ass ?11, Inc. 12. EPA, 647 F.2d 1130, 1146 (DC. Cir. 1980). A judicial determination of ?reasonableness? would directly con?ict with the regulatory decisions, and the Supreme Court has ?admonished against the ?tolerat[ion]? of ?common-law suits that have the potential to undermine [the federal] regulatory structure. North Carolina ex rel. Cooper v. Tenn. Valley Auth, 615 F.3d 291, 303 (4th Cir. 2010) (quoting Ouellerte, 479 US. at 497).15 Plaintiff? 3 proposed solution to the important issue of global warming?an avalanche of litigation based on overlapping application of every State?s common law?presents a significant obstacle to the federal regulation of air pollution because it would impose standards ?whose content must await the uncertain twists and turns of litigation,? which ?will leave whole states and industries at sea and potentially expose them to a welter of con?icting court orders across the country.? Id. at 301. Such a reality ?could well lead to increased air pollution,? and [i]t is unlikely?to say the least?that Congress intended to establish such a chaotic regulatory structure?? Id. at 302 (quoting Ouellerte, 479 US. at 497). Moreover, Plaintiff? claims, which target Defendants? production activities, are preempted by the numerous federal laws and regulations that authorize and af?rmatively promote fossil fuel production. See Xerox Corp. v. Harris Crazy, Tex., 459 US. 145, 151, 154 (1982) (holding that state taxes on goods stored in customs warehouses were preempted because statutory scheme sought ?to encourage merchants here and abroad to make use of American ports?). The US. has long sought to promote fossil fuel production on federal land. See, e. g, 43 15 As noted in Cooper, the Supreme Court has ?singled out nuisance standards in particular as ?vague? and ?indeter- minate,? and ?created the strongest cautionary presumption against them? due to the ?considerable potential mis- chief in those nuisance actions seeking to establish emissions standards different from federal and state regulatory Cooper, 615 F.3d at 303 (quoting Ouellette, 479 US. at 496). 24 U.S.C. 1802(1) (promoting the ?expedited exploration and development of the [Outer Continental Shelf] in order to achieve national economic and energy policy goals [and] assure national security?); 10 U.S.C. 7422(c)(1)(B); 30 U.S.C. Consistent with these statutory objectives, the Bureau of Land Management requires federal oil and gas lessees to drill ?in a manner which . . . results in maximum ultimate economic recovery of oil and gas.? 43 CPR. see also 30 CPR. 550.120 (similar for offshore oil and gas leases). Plaintiff? claims also second-guess the balance that many of these same federal statutes strike between promoting energy production and protecting the environment. See Geier 12. Am. Honda Motor Co, 529 US. 861, 881 (2000) (tort claims preempted where they ?would have presented an obstacle to the variety and mix of devices that the federal regulation sought?); see also S. Rep. No. 109-78 (promoting domestic energy production in ?an environmentally sound manner?); 42 U.S.C. l3389(c)(1) (incentivizing energy production along with development of a ?national strategy? to deploy ?greenhouse gas intensity reducing technologies and C. The Complaint Does Not Allege Viable State-Law Claims Plaintiff asks this Court to signi?cantly expand New York nuisance and trespass law, but New York courts have consistently refused to recognize claims as attenuated as these. 1. Plaintiff?s claims have no basis in New York nuisance or trespass law Plaintiff asks this Court to create a new, global tort for global-warming-related injuries. But New York courts are ?cautious in imposing novel theories of tort liability,? especially when those duties remain ?the focus of a national policy debate? and subject to comprehensive regulatory schemes. Hamilton, 96 at 239?40 (declining to create a general duty of care 16 A host of other statutes articulate similar policies. E. g, 42 U.S.C. 5801 (Congressional purpose to ?develop, and increase the efficiency and reliability of use of, all energy sources? while protecting ?environmental quality?); 30 U.S.C. 21a (Congressional purpose to encourage ?economic development of domestic mineral resources? bal- anced with ?environmental needs?); 30 U.S.C. 1201 (coal mining operations are ?essential to the national interest? but must be balanced by ?cooperative effort[s] . . . to prevent or mitigate adverse environmental effects?). 25 for handgun manufacturers because ?[f]ederal law already has implemented a statutory and regulatory scheme? to ensure buyer and seller responsibility).17 And they are particularly ?wary of expanding the breadth of public nuisance? or trespass liability, City of New York v. A.E. Sales LLC, 2005 WL 3782442, at *3 (S.D.N.Y. Feb. 9, 2005), because nuisance and ?trespass claims 73 (C for environmental pollution endeavor to torture old remedies to fit factual patterns not contemplated when those remedies were fashioned,? In re Paulsboro Derailment Cases, 2013 WL 5530046, at *8 (D.N.J. Oct. 4, 2013). New York courts have thus safeguarded the limits of public nuisance and other torts, lest they ?become a monster that would devour in one gulp the entire law of tort.? Sturm, Ruger, 761 at 196?97, 202?03. Plaintiff? 8 claims, which seek to punish Defendants? lawful, regulated commercial activity, disregard the boundaries New York courts have drawn for nuisance and trespass claims and would disrupt comprehensive state and federal regulatory schemes and generate an ?outpouring? and ?explosion of litigation.? Sturm, Ruger, 761 at 202?03; see also Sahu v. Union Carbide Corp, 2014 WL 3765556, at *6 (S.D.N.Y. July 30, 2014) (Keenan, J.) nuisance is an action pursued against the owner of land for some wrongful activity conducted thereon?); In re Nassau Cnty. Consol. MTBE Methyl Tertiary Butyl Ether) Prod. Liab. Ling, 918 399 (Sup. Ct. 2010) (trespass claim dismissed ?where it is only alleged that [defendants] committed a trespass by their participation in the chain of distribution?). New York law should not be expanded here. 17 Cf, Sturm, Roger, 761 at 230 (no liability where issues raised in complaint were ?subject of strict con- trol and regulation by the Executive and Legislative branches of both the United States and New York State?); City of Chicago v. Beretta USA. Corp, 821 1099, 1119?21 (111. 2004) (?there are strong public policy reasons to defer to the legislature in the matter of regulating the manufacture, distribution, and sale of firearms?). 26 2. Plaintiff fails to plausibly demonstrate that Defendants proximately caused the alleged injuries New York courts require spatial and temporal proximity between conduct and harm to ensure that a ?direct and immediate? connection exists between the defendant?s conduct and alleged harm. Sturm, Ruger, 761 at 197; Smith v. 2328 Univ. Ave. Corp, 859 71, 73?74 (lst Dep?t 2008) (rejecting product liability claim where product was not defective when sold, the alleged harm arose 50 years after sale, and there were numerous actors intervening) (citing Sturm, Ruger, 761 at 201). And courts have consistently refused to ?lay aside traditional notions of remoteness, proximate cause, and duty,? in particular with nuisance and trespass claims. See Janki Bai Sahu v. Union Carbide Corp, 528 F. App?x 96, 101 (2d Cir. 2013) (citing Sturm, Ruger, 761 at 199, 200?02), In re Nassau Cnty., 918 399 (proximate cause standard is the same for nuisance and trespass). For this reason, New York courts have dismissed claims like these, where the allegations involve spatial and temporal distance (not to mention intervening third parties) between Defendants? actions and the alleged harm. In Sturm, Ruger, for example, the New York Attorney General alleged that defendant handgun manufacturers were liable for a public nuisance through product promotion and sales, by which they ?knowingly place[d] a disproportionate number of handguns in the possession of people who use them unlawfully.? 761 at 194 (citing Hamilton, 96 222). The court rejected the Attorney General?s claims because the harm was ?far too remote from defendants? otherwise lawful commercial activity to fairly hold defendants accountable for common-law public nuisance,? and because the harm was attributable to ?the criminal activity of intervening third parties.? Id. at 201 (emphasis added). Thus, as a matter of law, the defendants? conduct could ?not be considered a proximate cause of such harm.? Id; see also In re Nassau Cnty., 918 399 (dismissing claims where 27 3? liability was alleged only on the basis of the defendants participation in the chain of distribution of MTBE-containing gasoline?); Town oflslip v. Daire, 245 F. Supp. 3d 397, 428? 29 (E.D.N.Y. 2017) (dismissing trespass claims against defendants who did not ?directly dispose[] of hazardous material,? but rather only ?acted as brokers? and ?facilitated the dumping? by other defendants). Similarly, this Court has rejected claims based on the production and distribution of a product on proximate cause grounds. See Union Carbide Corp, 2014 WL 3765556, at *11 is equally obvious that the process of manufacturing chemicals produces waste. But it does not necessarily follow that the production of chemicals itself constitutes legal causation of a tort.? (citing Siurm, Ruger, 761 at 202)).18 Here, too, Plaintiff? allegations on their face fail to satisfy New York?s causation requirements. Plaintiff acknowledges that ?the burning of fossil fuels is the dominant cause? of global warming, Compl. 11 35, but nonetheless seeks to hold Defendants liable based solely on their ?production, marketing, and sale of fossil fuels,? id. 11 3. Moreover, Plaintiff attempts to impose massive liability based on a theory of indirect liability for emissions from untold numbers of third parties, notwithstanding the fact that ?[g]reenhouse gas molecules cannot be traced to their source, and greenhouse gases quickly diffuse and commingle in the atmosphere.? Id. 11 58. And Plaintiff alleges that the greenhouse gas emissions indirectly attributable to Defendants? lawful conduct, along with the emissions from every other industrial and non- industrial source on Earth, combine in such a way as to cause ?dramatic impacts on New York 18 Other jurisdictions have also rejected public nuisance actions against product manufacturers, relying on the same remoteness analysis. Camden Cnly. Bd. of Chosen Freeholders v. Beretta, USA. Corp, 273 F.3d 536, 541 (3d Cir. 2001) (rejecting public nuisance claim against handgun manufacturers because the ?causal chain? from manu- facturers making ?lawful sales to federally licensed gun distributors, who in turn lawfully sell those handguns to fed- erally licensed dealers? is ?simply too attenuated? (quoting Hamilton, 96 at 234)); City of Chicago v. Am. Cyanamid Ca, 355 Ill. App. 3d 209, 225 (2005) (rejecting nuisance claim against lead pigment manufacturers); Ga- nim v. Smith Wesson Corp, 258 Conn. 313, 355 (2001) are numerous steps between the conduct of the various defendants and the harms suffered by the plaintiffs. That fact alone is strongly suggestive of remoteness?). 28 City in the future.? Id. 11 41. Such allegations, which depend on the use of lawful products by untold numbers of third parties?including Plaintiff itself?over several centuries, are far more remote and attenuated than allegations already rejected by New York courts. See Sturm, Ruger, 761 at 202. And even if Plaintiff? allegations were suf?cient to plead causation by the collective actions of all Defendants?and they are not?they are woefully insuf?cient to plead causation by each of the Defendants individually. See, Beauchamp v. Excelsior Brick Co. of Haversiraw, 127 N.Y.S. 686 (2d Dep?t 1911) (recognizing that it is ?necessary . . . to consider separately as to each defendant? their ?participation, if any? in the ?alleged causes? of a claimed nuisance); see also Mem. of Law in Support of ConocoPhillips? Motion to Dismiss.19 3. Plaintiff does not adequately plead lack of justification or permission Plaintiff? trespass claim also fails because it has not suf?ciently alleged that Defendants? conduct was ?without justi?cation or permission.? Korsinslg/ v. Rose, 993 92, 96 (2d Dep?t 2014) (af?rming dismissal of trespass claim); Boring v. Town of Babylon, 47 419, 421 (2d Dep?t 2017) (af?rming dismissal of trespass claim). Under New York law, a plain- tiff cannot adequately (or reasonably) plead that an alleged trespass was without justi?cation or permission when it consented to the alleged misconduct. See Frederique v. County of Nassau, 168 F. Supp. 3d 455, 489 (E.D.N.Y. 2016); A11. Container Line AB v. ArefHassan Abul, Inc, 281 F. Supp. 2d 457, 468 (N.D.N.Y. 2003). Plaintiff alleges that it did not consent to seawater entering its property, Compl. 111] 132, 19 Nor does Plaintiff allege facts going to the ?bedrock principle of tort law? that the ?defendant?s act was a cause- in-fact 0f [the] injuly.? Aegis Ins. Servs., Inc. v. 7 World Trade Co, LP, 737 F.3d 166, 179 (2d Cir. 2013). The defendant?s ?conduct is not a substantial factor in bringing about harm to another if it would have been sustained? absent the defendant?s behaviorindependently sufficient source of the plaintiff?s harms. Restate- ment (Second) of Torts 432; Point Prods. A. G. v. Sony Music Entm Inc. 215 F. Supp. 2d 336, 342-43 (S.D.N.Y. 2002); Rodriguez v. Budget Rent-A-Car Sys, Inc, 841 486, 490 (1st Dep?t 2007). Plaintiff does not, and cannot, allege that its harms would have been avoided had any one Defendant not engaged in the challenged produc- tion and promotion activities. Nor can Plaintiff allege that Defendants? conduct served as an independently suffi- cient source of its harms. 29 135, but it does not allege that Defendants produced, marketed, and sold fossil fuels without Plaintiff? consent?nor could it, given that Plaintiff itself regulates and consumes massive amounts of fossil fuel products.20 Having consented to (and benefited from, including finan- cially) Defendants? conduct for decades, Plaintiff? trespass claim must fail. 4. Plaintiff?s claims are barred by the in pari delicto doctrine Plaintiff? claims are also barred by the doctrine of in pari delicto. See v. KPMG LLP, 15 446, 464 (2010). ?The doctrine prohibits one party from suing another where the plaintiff was ?an active, voluntary participant in the unlawful activity that is the subject of the suit.?? In re MF Global Holdings Inv. Litig, 998 F. Supp. 2d 157, 189 (S.D.N.Y. 2014) (quoting Pinter v. Dahl, 486 US. 622, 636 (1988)). ?[T]he principle that a wrongdoer should not profit from his own misconduct is so strong in New York that we have said the 777 defense applies even in dif?cult cases and should not be ?weakened by exceptions. 15 at 464 (citing McConnell v. Commonwealth Pictures Corp, 7 465, 470 (1960)). Where warranted, ?in pari delicto may be resolved on the pleadings in an appropriate action.? 15 at 459 n.3, see also In re Bernard L. Mado? Secs. LLC, 721 F.3d 54, 65 (2d Cir. 2013); Donovan v. Rothman, 756 514?15 (lst Dep?t 2003). Plaintiff concedes that ?[t]he basic facts of the greenhouse effect have been known for a long time,? Compl. 1] 55, yet despite this knowledge, Plaintiff has for decades authorized the activities it now claims created the nuisance, encouraged its residents to use fossil fuels, and reaped economic benefits from this reliance, including as an investor in fossil fuel companies. 20 See, e. g, Inventory of New York City Greenhouse Gas Emissions in 2015 at 7, 35 (Apr. 2017), (New York City ?government uses large amounts of energy each year? and its ?buildings were responsible for 67 percent of citywide greenhouse gas (GHG) emissions?); N.Y.C. Admin. Code 24-1681, 24-169 (regulating the composition of heating oil and fuel oil); NYC Clean Fleet (2015), (?New York City government operates a ?eet consisting of 27 152 fuel-burning vehicles?). 30 Indeed, fossil fuels provide ?more than 98 percent of in-city electricity production by power plants,? and residents of New York City use millions of gallons of fossil fuels every day. See City of New York, Building a Stronger, More Resilient New York (2013), at 109, 133?34 (cited at Compl. j] 49 n25). Plaintiff has also actively participated in the promotion and transportation of fossil fuels, making ?[t]he New York metropolitan area the largest liquid fuels hub on the East Coast and one of the largest in the country.? Id. at 133. Rather than eschew the benefits of fossil fuels, Plaintiff has reaped huge rewards from them, financial and otherwise. D. Plaintiff?s Claims Are Not usticiable Alternatively, Plaintiff? 5 claims are non-justiciable because they extend far beyond ?the proper?and properly limited?role of the courts in a democratic society.? Corp. v. Cuno, 547 US. 332, 341 (2006). Although the Second Circuit found otherwise in AEP, the Supreme Court affirmed that portion of the decision by an equally divided court without analysis or discussion, and reversed the judgment on other grounds. See AEP, 582 F.3d at 321? 49, rev ?d on other grounds, 564 U. S. at 420. For that reason, and because the non-justiciability arguments are stronger here, this Court should dismiss on these grounds as well. 1. Plaintiff?s novel claims do not present a justiciable case or controversy (6 6 Before a grievance can be litigated, a plaintiff must show that it has presented a case? or ?controversy? that is, in James Madison?s words, ?of a Judicial Nature.?? 547 US. at 341. Courts are ?without competence? to address matters ?of high policy for resolution within the legislative process.? Diamond v. Chakrabarty, 447 US. 303, 317?18 (1980). Here, Plaintiff? 5 novel claims have no analogue to claims at common law that were considered appropriate for judicial resolution. Rather, Plaintiff asks this Court to make the type of ?debatable social judgment? that is ?not wisely required of courts.? See Pegram v. Herdrich, 530 US. 211, 221 (2000); see also Verizon Comm ?cns Inc. v. Law O?ices of Curtis v. Tinko, 31 LLP, 540 US. 398, 408 (2004) (rejecting suit that would have ?require[d] antitrust courts to act as central planners?). Adjudicating these claims would thus violate the separation of powers. 2. Plaintiff?s claims present non-justiciable political questions As several courts have previously recognized, the political question doctrine prevents adjudication of global-warming-related tort claims. See, e. g, Gen. Motors, 2007 WL 2726871, at Kivalina, 663 F. Supp. 2d at 876?77; Comer, 839 F. Supp. 2d at 865. That doctrine limits the judiciary?s authority to ?formulate national policies or develop standards for matters not legal in nature?, following this, ?controversies which revolve around? legislative or executive policy choices are inappropriate for judicial resolution. Japan Whaling Ass ?n v. Am. Cetacean Soc ?32, 478 US. 221, 230 (1986) (citation omitted). The Supreme Court has identi?ed six independent factors for determining when the political question doctrine applies, any one of which warrants dismissal. See Baker v. Carr, 369 US. 186, 271 (1962); see also Whiteman v. Dorotheum GmbH& Co. KG, 431 F.3d 57, 72 (2d Cir. 2005). Courts must ?infer the presence of a political question from the text and structure of the Constitution.? Nixon v. United States, 506 US. 224, 240 (1993) (White, ., concurring in the judgment). The issues raised by Plaintiff are matters of global concern that are ?committed by the Constitution to the political departments of the Federal Government.? United States v. Pink, 315 US. 203, 222?23 (1942), see also Baker, 369 US. at 211. Because ?the political branches have weighed in on the issue, and have made foreign policy determinations regarding the United States? role in the international concern about global warming,? this case involves issues that are committed to the political branches. Gen. Motors, 2007 WL 2726871, at 14. The second Baker factor re?ects the axiom that ?judicial action must be governed by standard, by rule. . . . [L]aw pronounced by the courts must be principled, rational, and based upon reasoned distinctions.? Vieth v. Jubelirer, 541 US. 267, 278 (2004) (plurality). As courts 32 have recognized, global-warming-related tort claims are ill-suited for judicial adjudication because the factfinder must balance the utility of using fossil fuels against the risks posed by emissions, and there are no judicial standards to make that assessment. See Ktvalina, 663 F. Supp. 2d at 874?75; Gen. Motors, 2007 WL 2726871, at Nor is there a ?manageable method of discerning the entities that are creating and contributing to the alleged nuisance? because ?there are multiple worldwide sources of atmospheric warming across myriad industries and multiple countries.? Gen. Motors, 2007 WL 2726871, at *15, see also Kivalirta, 663 F. Supp. 2d at 875?76. And on the question of remedies, there is no ?guidance? for ?determining who should bear the costs associated with the global climate change that admittedly result from multiple sources around the globe.? Gert. Motors, 2007 WL 2726871, at *15. The Court also lacks any legal method for allocating fault when Plaintiff? alleged injuries stem from hundreds of years of emissions, the vast majority of which are not attributable to these Defendants. Accordingly, ?the allocation of fault?and cost?of global warming is a matter appropriately left for determination by the executive or legislative branch.? Ktvaltna, 663 F. Supp. 2d at 877; see also Gen. Motors, 2007 WL 2726871, at *15. The third Baker factor also supports dismissal because addressing global warming involves complex policy judgments. See AEP, 564 US. at 427. Adjudicating Plaintiff? claims ?would require the Court to balance the competing interests of reducing global warming emissions and the interests of advancing and preserving economic and industrial development,? which is ?the type of initial policy determination to be made by the political branches.? Gert. Motors, 2007 WL 2726871, at see also Comer, 839 F. Supp. 2d at 864?65. Plaintiffs claims should be dismissed, lest this Court be dragged ?into precisely the geopolitical debate more properly assigned to the coordinate branches.? Gert. Motors, 2007 WL 2726871, at 10. 33 To be sure, the Second Circuit previously held that nuisance claims brought against select greenhouse gas emitters were not barred by the political question doctrine. AEP, 582 F.3d at 321?32. But in AEP the plaintiffs sought only ?to limit emissions from six domestic coal-?red electricity plants,? id. at 325, whereas here Plaintiff targets the worldwide fossil fuel production of ?ve large corporations, two of which are foreign-owned. Thus, unlike AEP, where the requested relief ?applie[d] in only the most tangential and attenuated way to the expansive domestic and foreign policy issues raised by Defendants,? 1d, the relief sought here directly interferes with national energy policy and the federal government?s role in international efforts to address global warming. Finally, the broader scope of Plaintiff? allegations here makes it difficult to discern a principled rule of decision. 3. Plaintiff lacks Article standing Plaintiff? claims should also be dismissed because Plaintiff has not sufficiently pleaded injury-in-fact, traceability, or redressability for purposes of Article standing. See Lujan v. Defenders of Wildlife, 504 US. 555, 560?61 (1992). An injury-in-fact must be ?actual or imminent, not conjectural or hypothetical.? Whitmore v. Arkansas, 495 US. 149, 158 (1990). But Plaintiff? broad allegations of injury are the types of ?conclusory statements and untethered assertions? that are insuf?cient. Parker Madison Partners v. Airbnb, Inc, 2017 WL 4357952, at *4 (S.D.N.Y. Sept. 29, 2017). Nor does Plaintiff explain how it has ?suffered its own individual harm apart from the general harm caused by climate change.? Ctr. for Biological Diversity v. US. Dep ?t of Interior, 563 F.3d 466, 477 (DC. Cir. 2009). And although Plaintiff alleges it has taken ?proactive steps? relating to global warming, Compl. 11 100, it ?cannot manufacture standing by incurring costs in anticipation of non-imminent harm,? Clapper v. Amnesty Int?l USA, 568 US. 398, 422 (2013). Moreover, Plaintiff? alleged future injuries are ?contingent upon . . . decision[s] to be made by third 34 part[ies] that ha[ve] not yet acted,? so they are ?not ripe as the subject of decision in a federal court.? Doe v. Va. Dep ?t ofState Police, 713 F.3d 745, 758 (4th Cir. 2013). Nor can Plaintiff? injuries ?fairly . . . be traced to the challenged action of the Simon v. E. Kentucky Welfare Rights Org, 426 U.S. 26, 41 (1976). Plaintiff? causation theory depends on a long chain of events, beginning with Defendants? production and eventually ending with the higher sea levels near New York City. In between are billions of consumers using fossil fuels around the world in any number of different ways and quantities, the accumulation of greenhouse gases from all sources on Earth, rising temperatures, and melting Arctic ice. The ?intervening,? ?independent actions of [these] third parties? defeats Plaintiff? standing. Adelphia Recovery Tr. v. Bank ofAm., NA, 2010 WL 2077214, at *7 (S.D.N.Y. May 14, 2010); Ctr. For Biological Diversity, 563 F.3d at 478?79. And Plaintiff? concession that ?[g]reenhouse gas molecules cannot be traced to their source,? Compl. 11 58, makes attribution and traceability impossible because ?a vast multitude of emitters worldwide? emit greenhouse gases that ?mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere.? Wash. Envtl. Council v. Bellon, 732 F.3d 113 1, 1143?44 (9th Cir. 2013), cf Gen. Motors, 2007 WL 2726871, at *15. This Court also cannot redress Plaintiff injuries through monetary or equitable relief. See Simon, 426 US. at 41?42. Even if Defendants were to cease their extraction activities, Plaintiffs alleged injuries would likely ?continue unabated? because greenhouse gas ?emissions [are] not a localized problem . . . but a global occurrence.? Bellon, 732 F.3d at 1147. CONCLUSION For the foregoing reasons, Plaintiff?s claims should be dismissed with prejudice. 35 Dated: February 23, 2018 New York, New York Herbert J. Stern (pro hac vice) Joel M. Silverstein STERN KILCULLEN, LLC 325 Columbia Turnpike, Suite 110 Florham Park, NJ 07932-0992 Telephone: 973.535.1900 Facsimile: 973.535.9664 Neal S. Manne (pro hac vice forthcoming) Johnny W. Carter (pro hac vice forthcoming) Erica Harris Steven Shepard Laranda Walker (pro hac vice forthcoming) Kemper Diehl Michael Adamson SUSMAN GODFREY LLP 1000 Louisiana, Suite 5100 Houston, TX 77002 Telephone: 713.651.9366 Facsimile: 713.654.6666 M. Randall Oppenheimer (pro hac vice forthcoming) roppenheimer@omm.com Dawn Sestito (pro hac vice forthcoming) dsestito@omm.com MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071-2899 (213) 430-6000 Fax: (213) 430-6407 Patrick J. Conlon patrick.j .conlon@exxonmobil.com EXXON MOBIL CORPORATION 1301 Fannin Street Houston, TX 77002-7014 (832) 624-6336 Fax: (262) 313-2402 36 Respectfully submitted, GIBSON, DUNN CRUTCHER LLP Anne Champion Caitlin J. Halligan Andrea E. Neuman Anne Champion 200 Park Avenue New York, New York 10166 Telephone: 212.351.4000 Facsimile: 212.351.4035 Theodore J. Boutrous, Jr. (admission forth- coming) William E. Thomson (pro hac vice) Joshua S. Lipshutz (pro hac vice) 333 South Grand Avenue Los Angeles, California 90071 Telephone: 213.229.7000 Facsimile: 213.229.7520 Attorneys for Defendant CHEVRON ORPORA I ON By: Theodore Wells, Jr. Theodore V. Wells, Jr. twells@paulweiss.com Daniel J. Toal dtoal@paulweiss.com aren anghorbani anghorbani@paulweiss.com PAUL, WEISS, RIFKIND, WHARTON GARRISON, LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373?3000 Fax: (212) 757-3990 Attorneys for Defendant EXXON MOBIL CORPORATION Tracie J. Renfroe (pro hac vice forthcoming) trenfroe@kslaw.con1 Carol M. Wood (pro hac vice forthcoming) cwood@kslaw.com KING SPALDING LLP 1100 Louisiana Street, Suite 4000 Houston, Texas 77002 Telephone: (713) 751-3200 Facsimile: (713) 751-3290 37 By: John F. Savarese John F. Savarese JF Savarese@wlrk.corn Jeffrey M. Wintner JMWintner@wlrk. corn Ben M. Gerrnana BMGerniana@wlrk.corn Jonathan Siegel JRSiegel@erk.con1 WACHTELL, LIPTON, RO SEN KATZ 51 West 52nd Street New York, New York 10019 Telephone: (212) 403-1000 Facsimile: (212) 403-2000 Attorneys for Defendant ON 0C OPHILLIPS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CITY or NEW YORK, Plaintiff, V. Case No. 18 Civ. 182 (JFK) BP CHEVRON EXXON MOBIL and ROYAL DUTCH SHELL PLC, Defendants. AFFIRMATION OF SERVICE 1, Richard Dudley, declare under penalty of perjury that I served a copy of Chevron Corporation?s Notice of Motion to Dismiss, dated February 23, 2018, and the Memorandum of Law of Chevron Corporation, ConocoPhillips, and Exxon Mobil Corporation Addressing Common Grounds in Support of their Motions to Dismiss, upon on the parties listed on Exhibit A by email on February 23, 2018. This service was made pursuant to the agreement reached with counsel for Plaintiff the City of New York to accept service by email. Dated: February 23, 2018 GIBSON, DUNN CRUTCHER LLP By: Richard Dudley Richard Dudley Gibson, Dunn Crutcher LLP 1050 Connecticut Ave NW Washington, DC. 20036 Telephone: (202) 955-8500 Facsimile: (202) 467-0539 Email: rdudley@gibsondun.com Attorneys for Chevron Corporation Susan E. Amron New York City Law Department Of?ce of the Corporation Counsel 100 Church Street New York, NY 10007 Telephone: 212-788-1578 Email: samron@law.nyc.gov Steve W. Berman Hagens Berman Sobol Shapiro LLP 1918 8th Avenue Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Email: Matthew F. Pawa Hagens Berman Sobol Shapiro LLP 1280 Centre Street, Suite 230 Newton Centre, Massachusetts 02459 Telephone: (617) 641-9550 Email: Christopher A. Seeger Seeger Weiss LLP 77 Water Street New York, New York 10005 Telephone: (212) 584-0799 Email: cseeger@seegerweiss.com Counsel for the City ofNew York Exhibit A aren an ghorb ani Paul, Weiss, Rifkind, Wharton Garrison LLP 1285 Avenue of the Americas New York, New York 10019 Telephone: (212) 373-3211 Email: anghorb ani@paulweiss. com Counsel for Exxon Mobil Corporation Philip H. Curtis Arnold Porter Kaye Scholer LLP 250 West 55th Street New York, New York 10019 Telephone: (212) 836-7199 Email: philip.curtis@arnoldporter.com Counsel for BP PL. C. Daniel P. Collins Munger, Tolles Olson LLP 350 South Grand Avenue Los Angeles, California 90071 Telephone: (213) 683-9125 Email: daniel.collins@mto.com Counsel for Royal Dutch Shell PLC John F. Savarese Wachtell, Lipton, Rosen Katz 51 West 52nd Street New York, New York 10019 Telephone: (212) 403-2000 Email: jfsavarese@wlrk.com Counsel for onocoPhillipS From: Shenkman, Ethan G. To: Heminger, Justin (ENRD) Sent: 5/2/2018 1:03:29 PM Subject: RE: Meeting today at 2 pm Thanks. Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave. NW Washington District of Columbia 20001-3 743 T: +1 202.942.5267 Original From: Hemingcr. Justin (ENRD) Sent: Wednesday. May 02. 2018 1:02 PM To: Shenkman, Ethan G. Subject: RE: Meeting today at 2 pm Ethan. Today's meeting will just be with ENRD. Sorry for any confusion. Justin Original From: Shenkman. Ethan G. Sent: Wednesday. May 2. 2018 12:25 PM To: l-leminger. Justin (ENRD) USDOJ Subject: Meeting today at 2 pin Justin ijust checking to see if you know yet whether offices other than ENRD will be attending. But am I correct in my understanding that today?s meeting is just with DOJ components and not other federal agencies? Thanks, Ethan . Exemption 6 2: Sent from my iPhone This communication may contain infonnatiou that IS legally prix iiugud. con?dential or exumpt from disclosure. lfyou an: not the intended recipient. please note that an} dissemination. distnbution. or copying oftlus conununication is strictly prohibited. Anyone who receives this message in error should. notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: This communication may contain information that. is legally privileged. confidential or exempt. from disclosure. If you are not the intended recipient, please note that an) dissemination.? distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: From: Shenkman, Ethan G. To: Heminger, Justin Lipshultz, Jon (ENRD) Sent: 5/1/2018 4:48:59 PM Subject: RE: Meeting tomorrow Got it, thanks. Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001?3743 T: 202.942.5267 i From: Heminger, Justin (ENRD) Sent: Tuesday, May 01, 2018 4:40 PM To: Shenkman, Ethan Lipshultz, Jon (ENRD) Subject: Meeting tomorrow be at 2 pm. You should receive an invite soon. Justin Justin D. Heminger Counsel and Special Assistant to the Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice 950 Avenue, N.W., Room 2607 Washington, DC. 20530-0001 (202) 305?0312 iustin.hemilnder@usdel.aev This communication may contain information that is legally privileged. confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter. click here: http:l/vararnoldportercom From: Shenkman, Ethan G. To: Heminger, Justin (ENRD) Sent: 4/30/2018 5:39:55 PM Subject: Re: Still in my meeting Okay we?ll call your of?ce then. Thanks. Sent from my iPhone On Apr 30. 2018, at 5:35 PM, Heminger, Justin (ENRD) wrote: a 2 Yes: that should work. .2 Justin Original Me From: Shenkman. Ethan G. Sent: Monday, April 30, 2018 5:35 PM To: Hemingcr, Justin (ENRD) Subject: Re: Still in my meeting Can we call you at 11? Sent from my iPhone On Apr 30, 2018. at 4:57 PM. Heminger. Justin (ENRD) .gov> wrote: I have another matter I have to handle tonight. Tomorrow I'm free except for 2-3. so let's catch up then. Justin Original Message From: Shenkman, Ethan G. Sent: Monday: April 30, 2018 4:41 PM To: Heminger, Justin (ENRD) Subject: RE: Still in my meeting No problem. Just let me know. Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave: NW Washington District of Columbia 2000 1-3 743 T: +1202.942.5267 Message From: Heminger, Justin (ENRD) .gov] Sent: Monday, April 30. 2018 4:34 PM To: Shenlgman, Ethan G. Subject: Still in my meeting This communication may contain information that is legally privileged. con?dential or exempt from disclosure. If you are not the intended recipient. please note that any dissemination. distribution, or copying of this communication is strictly prohibited Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter. click here: This communication may contain information that is legally privileged. confidential or exempt from disclosure. If you are not the intended recipient. please note that any dissemination. distribution, or copying of this communication is strictly prohibited Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold. Porter. click here: ?2 .amoldporte r. com This communication may contain information that is legally privileged. confidential or exempt from disclosure. lfyou are not the intended recipient. please note that any dissemination. distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: From: Shenkman, Ethan G. To: Heminger, Justin (ENRD) Sent: 4/30/2018 3:20:19 PM Subject: RE: Are we talking now? Sure, no problem. Thanks. Ethan Shenkman Partner Arnold 6 Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001?3743 T: 202.942.6267 i From: Heminger, Justin (ENRD) Sent: Monday, April 30, 2018 3:06 PM To: Shenkman, Ethan G. Subject: RE: Are we talking now? Yes, that should work, although there is a chance my 3:30 pm will go long. If it does, I can e?mail you when I?m available. From: Shenkman, Ethan G. Sent: Monday, April 30, 2018 3:05 PM To: Heminger, Justin (ENRD) Subject: RE: Are we talking now? Sorry, just got word that 4:30 pm would work for Josh, who?s in court today. Can we catl you then? Ethan Shenkman Partner Arnold Porter 601 Massachusetts Ave, NW Washington District of Columbia 20001-3743 T: +1 202.942.6267 EthanShenkman?arnoidportercom i From: Heminger, Justin (ENRD) Sent: Monday, April 30, 2018 3:03 PM To: Shenkman, Ethan G. Subject: Are we talking now? I just got back from a meeting and don?t think I?ve heard from you. I?m around until my next meeting at 3:30 pm. Justin Justin D. Heminger Counsel and Special Assistant to the Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice 950 Avenue, N.W., Room 2607 Washington, DC. 20530-0001 (202) 305-0312 This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold 6L Porter, click here: This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: http:INMN/arnoldportercom From: Shenkman, Ethan G. To: Heminger, Justin (ENRD) Sent: 4/27/2018 1:28:40 PM Subject: Re: Your vm Yes. I can call you. in about 30 minutes or so. Sent from my iPhone On Apr 27, 2018, at 10:31 AM, Heminger, Justin (ENRD) .ao?vl?) wrote: Ethan, Can you call me today on my cell? 202.598.5396. I?m out of the office but available before 3:30 pm. Best regards, Justin This communication may contain information that is legally privileged, confidential or exempt from disclosure. If you are not the intended recipient, please note that any dissemination, distribution, or copying of this communication is strictly prohibited. Anyone who receives this message in error should notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: http:Wmmarnoldportercom From: Shenkman, Ethan G. Sent: 4/12/2018 3:50:27 PM To: Heminger, Justin (ENRD) Subject: Accepted: Call Start: 4/13/2018 10:30:00 AM End: 4/13/2018 11:00:00 AM Show Time As: Free Recurrence: (none) Required Attendees: Heminger, Justin (ENRD) This communication may contain information that is legally privileged, con?dential or exempt from disclosure. If you. are not the intended recipient, please note that any dissemination, distribution: or copying of this communication is strictly prohibited. Anyone who receives this message in error should. notify the sender immediately by telephone or by return e-mail and delete it from his or her computer. For more information about Arnold Porter, click here: From: Shenkman, Ethan G. To: Ennis, Christine (ENRD) CC: Smith, Justin Kilbourne, Jim Heminger, Justin (ENRD) Sent: 3/29/2018 2:54:13 PM Subject: Re: People v. BP PLC (ND. Cal.) Our emails just crossed! Thanks so much for your response. Let?s go for 11 am on Tuesday. I will circulate a dial in. Best, Ethan Sent from my iPhone On Mar 29, 2018, at 2:45 PM, Ennis, Christine (ENRD) wrote: Ethan, Next week sounds good. We are all ayaiiable before noon on Tuesday. I am aiso correcting a smaii typo in Justin Heminger?s e?maii the correct address is iustin.heminderrdibusdoiaov. Best, Christine From: Shenkman, Ethan G. Sent: Wednesday, March 28, 2018 12:28 PM To: Ennis, Christine (ENRD) lustin.hennrniinder?usdoidov Cc: Smith, Justin (ENRD) Kilbourne, Jim (ENRD) lKi hourn e@ it . Ll SIDOJ . Subject: Re: People v. BP PLC (N.D. Cal.) Justin, Justin, Christine, et al. thanks again for the helpful discussion last week. We have give the issues some further thought. We were wondering if you would be available for a follow-up call early next week, perhaps Tuesday April 3. Please let us know if there are any times that might work for you. Best, Ethan Sent from my iPhone On Mar 22, 2018, at 1:13 PM, Ennis, Christine (ENRD) wrote: Ethan, That timeframe still works for us. Best of luck finding your way back! Just let us know when you've got a time that works on your end. Best, Christine From: Shenkman, Ethan G. Sent: Thursday, March 22, 2018 11:11 AM To: Ennis, Christine (ENRD) Cc: Smith, Justin (ENRD) Kilbourne, Jim (ENRD) ll