Brief of Conflict of Laws and Foreign Relations Law Scholars as Amici Curiae in Support of Plaintiff-Appellants, Oakland v. B.P. p.l.c.

Abstract

This Amicus Brief of Conflict of Laws and Foreign Relations Law Scholars was filed with the Ninth Circuit in Oakland v. B.P. p.l.c. Oakland and San Francisco brought a public nuisance suit against major oil companies under California law alleging that the companies had promoted the sale of fossil fuels while concealing their dangers to the climate. The district court dismissed based in part on the presumption against extraterritoriality and on a principle of “judicial caution” drawn from the Supreme Court’s Alien Tort Statute (ATS) cases.

The brief argues that the district court erred in applying the federal presumption against extraterritoriality for several reasons. First, the federal presumption against extraterritoriality does not apply to state-law claims. The geographic scope of state law is a question of state law, and under California’s conflict-of-laws rules, the law of the place of the injury applies. Second, the federal presumption against extraterritoriality also does not apply to claims under federal common law. The presumption is a canon of statutory interpretation aimed at ascertaining legislative intent. As such, it does not apply to judge-made common law. Third, even if the federal presumption against extraterritoriality applied, the Cities seek only a domestic application of law.

The brief also argues that the concept of “judicial caution” provides no basis for limiting the geographic scope of California law. The Supreme Court’s ATS jurisprudence is inapplicable here because the Cities’ suit concerns domestic torts that do not raise the same foreign policy stakes as ATS suits and do not seek the creation or expansion of a federal cause of action. Federal courts have no authority to modify or limit state-law causes of action in the name of “judicial caution.”
Finally, foreign affairs preemption does not apply in this case. These causes of action fall within an area of “traditional state responsibility” and may be preempted only by federal law that has been adopted by the political branches of the federal government.