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199 (1796)25 Warth v. Seldin,

422 U.S.

490 (1975)19,

21 Whiteman v. Dorotheum GmbH &

Co. KG,

431 F.3d

57 (2d Cir. 2005)28 Statutes

33 U.S.C. § 1365.13 Clean Air Act,

42 U.S.C. §§

7401 et seq.9 Federal Water Pollution Control Act ( Clean Water Act ), Pub. L. No. 80-845,

62 Stat.

1155 (1948) (codified as amended at

33 U.S.C. §§ 1251C1376)4 viii Other Authorities RESTATEMENT (SECOND) OF TORTS (1979)30

1 INTEREST OF AMICI CURIAE1 Amici Chevron U.S.A., Inc., Shell Oil Company, and ConocoPhillips are leaders in the energy industry. These companies (or their affiliates) are engaged in every aspect of the oil and natural gas industry, including exploration and production;

refining, marketing, and transportation;

and chemicals manufacturing and sales. Amicus E.I. du Pont de Nemours and Company is a science company, operating in approximately

80 countries. DuPont offers a wide range of products and services for markets including agriculture, nutrition, electronics, communications, safety and protection, home and construction, transportation, and apparel. Amicus Edison International is the parent of Southern California Edison Company, which is one of the Nation'

s largest electric utilities. Edison International is also the parent of Edison Mission Group, which, through various subsidiaries and affiliates, owns or operates independent generating facilities in Illinois, Pennsylvania, California, and several other States. Amici have a particular interest in this case because they have witnessed first hand the aggressive misuse of Massachusetts v. EPA,

549 U.S.

497 (2007), by enterprising lawyers, state attorneys

1 The parties have consented to the filing of this brief in letters on file in the Clerk'

s office. Pursuant to S. Ct. R. 37.6, amici state that no counsel for any party authored this brief in whole or in part, and no person or entity, other than amici and its counsel, made a monetary contribution intended to fund the preparation or submission of this brief.

2 general, and environmental groups seeking to recover massive damage awards and to enmesh the courts in disputes that raise political questions. In particular, amici have been singled out as defendants in one or more other actions―including Native Village of Kivalina v. ExxonMobil Corp.,

663 F. Supp. 2d 863,

879 (N.D. Cal. 2009), and Comer v. Murphy Oil USA, Inc., No. 1:05-CV-436-LG-RHW,

2007 WL

6942285 (S.D. Miss. Aug. 30, 2007), appeal dismissed,

607 F.3d

1049 (5th Cir. 2010), mandamus petition denied sub. nom. In re Comer, No. 10-294 (U.S. Jan. 10, 2011)―merely because they are alleged to have contributed to the global phenomenon of climate change. The same allegation, of course, could be made against any other company―or person―in the world. In the particular case before the Court, as in all of these related cases, the identity of the defendants is largely a matter of the plaintiffs'

caprice in formulating the caption of their complaint. Amici thus have a strong interest in having the Court resolve this case on a ground that goes to the fundamental defects with the broader litigation of which this case is a piece, and not on any narrow or case-specific ground that can be easily circumvented. In particular, although the Second Circuit'

s decision below could be reversed on any of several gr........