Case 1:25-cv-00496-JMB-SJB ECF No. 19, PageID.

178 Filed 09/29/25 Page 1 of 43

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

_____________________________________
)
)
UNITED STATES OF AMERICA )
)
) Case No. 1:25-cv-496-JMB-SJB
)
Plaintiff, ) Hon. Jane M. Beckering
)
v. )
)
STATE OF MICHIGAN; )
GRETCHEN WHITMER, in her official )
Capacity as Governor of Michigan; and ) ORAL ARGUMENT REQUESTED
DANA NESSEL, in her official capacity )
As Michigan Attorney General )
)
Defendants. )
)
)

THE UNITED STATES’ MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION TO DISMISS
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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................... 1

BACKGROUND ............................................................................................................. 3

I. Federal Law Governs Greenhouse Gases and Interstate Pollution,

Balancing Environmental Protection with Other National Interests .............. 3

II. States and Municipalities, Including Those Represented by Michigan’s

Counsel, Bring Dozens of “Climate Change” Lawsuits ..................................... 6

III. Although Michigan Has Minimal Fossil Fuel Production, It Hires

Experienced Counsel to Bring “Climate Change Litigation” Against the
“Fossil Fuel Industry” for Alleged Global Climate Harms ................................ 8

IV. The United States Sues and, Forfeiting All Other Arguments, Michigan
Moves To Dismiss on the Sole Ground That This Suit Is Unripe ................... 10

STANDARD OF REVIEW ........................................................................................... 12

ARGUMENT ................................................................................................................ 14

I. Michigan’s Threatened Climate Suit Arises in a Decade-Long “Concrete

Factual Context,” and the Dispute Over the State-Law Claims Is “Likely
To Come to Pass” ............................................................................................... 14

II. The United States’ Purely Legal Claims are Fit for Judicial Review and
Deferring Review Now Would Impose Significant Hardship .......................... 25

CONCLUSION............................................................................................................. 32

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TABLE OF AUTHORITIES

CASES

Abbott v. Perez,
585 U.S. 579 (2018) .................................................................................................. 31

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,

458 U.S. 592 (1982) .................................................................................................. 27

Am. Elec. Power Co. (AEP) v. Connecticut,

564 U.S. 410 (2011) ............................................................................................ 3, 4, 5

Ameron, Inc. v. United States Army Corps of Eng’rs,

809 F.2d 979 (3d Cir. 1986)...................................................................................... 28

Anne Arundel County v. BP plc, et al.,

No. C-02-CV-21-000565 (Md. Cir. Ct. Jan. 23, 2025) ......................................... 6, 16

Airline Pros. Ass'n of Int'l Bhd. of Teamsters, Loc. Union No. 1224,
AFL-CIO v. Airborne, Inc., 332 F.3d 983 (6th Cir. 2003) ....................................... 28

Baaghil v. Miller,
1 F.4th 427 (6th Cir. 2021)....................................................................................... 24

Bailey v. City of Ann Arbor,

860 F.3d 382 (6th Cir. 2017) ...................................................................................... 8

Banks v. Alexander,
294 Fed. App'x 221 (6th Cir. 2008) .......................................................................... 16

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .................................................................................................. 13

Berry v. Schmitt,
688 F.3d 290 (6th Cir. 2012) .................................................................................... 20

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) .................................................................................................. 15

Buck v. Gorden,
429 F. Supp. 3d 447 (W.D. Mich. 2019) ................................................................... 12

iii
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Buckley v. Valeo,
424 U.S. 1 (1976) ...................................................................................................... 28

Bucks County v. BP P.L.C., No. 2024-1836,

2025 WL 1484203 (Pa. Com. Pl. May 16, 2025) .............................................. passim

Carman v. Yellen,
112 F.4th 386 (6th Cir. 2024)............................................................................. 26, 28

Christian Healthcare Centers, Inc. v. Nessel,

117 F.4th 826 (6th Cir. 2024)........................................................................... passim

City & Cnty. of Honolulu v. Sunoco LP,

No. 1CCV-20-380 (Haw. Cir. Ct.) .............................................................................. 6

City of Annapolis v. BP plc, et al.,

No. C-02-CV-000250 (Md. Cir. Ct. Jan. 23, 2025) .............................................. 6, 16

City of Charleston v. Brabham Oil Co., No. 2020-CP-10-03975,

2025 WL 2269770 (S.C. Ct. Com. Pl. Aug. 6, 2025)...................................... 7, 16, 27

City of Chicago v. BP p.l.c.,

No. 2024CH1024 (Ill. Cir. Ct.)................................................................................... 6

City of Hoboken v. Exxon Mobil Corp.,

No. HUD-L-3179-20 (N.J. Super. Ct.) ....................................................................... 6

City of Oakland v. BP plc, et al.,

325 F. Supp. 3d 1017 (N.D. Cal. 2018) .................................................................... 16

City of New York v. BP p.l.c.,

No. 18-cv-182 (S.D.N.Y.) ............................................................................................ 6

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021)................................................................................ passim

City of New York v. Exxon Mobil Corp.,

et al., 2025 WL 209843 (N.Y. Sup. Ct. Jan. 14, 2025) ............................................ 16

Cnty. of Maui v. Sunoco LP,

No. 2CCV-20-283 (Haw. Cir. Ct.) .............................................................................. 6

Cnty. of Multnomah v. Exxon Mobil Corp.,

No. 23-cv-25164 (Or. Cir. Ct.).................................................................................... 7

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Commonwealth of Massachusetts v. Exxon Mobil Corp.,

No. 1984-cv-033333 (Suffolk Sup. Ct. Mass.) ........................................................... 7

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .................................................................................................. 31

Delaware v. BP Am. Inc.,

No. N20C-09-097-EMD-CCLD (Del. Super. Ct.) .................................................. 7, 8

Doe v. Univ. of Mich.,

78 F.4th 929 (6th Cir. 2023) .................................................................................... 24

Ex Parte Young,
209 U.S. 123 (1908) .................................................................................................. 22

Fed. Election Comm’n v. Cruz,

596 U.S. 289 (2022) ........................................................................................ 2, 13, 14

Fischer v. Thomas,
52 F.4th 303 (6th Cir. 2022)..................................................................................... 29

Forestry Ass’n, Inc. v. Sierra Club,

523 U.S. 726 (1998) .................................................................................................. 31

Google, Inc. v. Hood,

822 F.3d 212 (5th Cir. 2016) .................................................................................... 31

Hawaii v. BP p.l.c.,
No. 1CCV-25-717 (Haw. Cir. Ct.) .......................................................................... 7, 8

Hill v Snyder,
878 F.3d 193 (6th Cir. 2017) .................................................................................... 26

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ...................................................................................................... 4

In re Fuel Indus. Climate Cases,

No. S288664 (Cal.) ..................................................................................................... 6

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ........................................................................................ 4, 15, 21

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Jones v. Coleman,
848 F.3d 744 (6th Cir. 2017).................................................................................... 30

King County v. BP p.l.c.,

No. 18-2-11859-0 (Wash. Super. Ct.) .................................................................... 6, 7

Kiser v. Reitz,
765 F.3d 601 (6th Cir. 2014) .................................................................................... 25

Kurns v. R.R. Friction Prods. Corp.,

565 U.S. 625 (2012) .................................................................................................. 15

Logsdon v. Hains,
492 F.3d 334 (6th Cir. 2007) .................................................................................... 13

Lujan v. Defenders of Wildlife,

504 US 555 (1992) .............................................................................................. 13, 31

Maine v. BP p.l.c.,
No. PORSC-CV24-442 (Me. Super. Ct.) ................................................................ 7, 8

Maryland Casualty v. Pac. Coal & Oil Co.,

312 U.S. 270 (1941) .................................................................................................. 17

Mayor and City Council of Baltimore v. BP plc, et al.,

No. 24-C-18-004219 (Md. Cir. Ct. July 10, 2024) ................................................ 6, 16

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) .................................................................................................. 17

Midwest Title Loans, Inc. v. Ripley, 616 F. Supp. 2d 897 (S.D. Ind. 2009),
aff'd sub nom. Midwest Title Loans, Inc. v. Mills, 593 F.3d 660 (7th Cir. 2010) . 28

Miller v. City of Wickliffe,

852 F.3d 497 (6th Cir. 2017) .................................................................................... 13

Minnesota v. Am. Petroleum Inst.,

No. 62-CV-20-3837 (Minn. Dist. Ct.) ......................................................................... 7

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) .................................................................................................. 19

Mun. of Bayamón v. Exxon Mobil Corp.,

No. 22-cv-1550 (D.P.R.) ............................................................................................. 7

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Mun. of San Juan v. Exxon Mobil Corp.,

No. 23-cv-1608 (D.P.R.). ............................................................................................. 7

Nat’l Park Hosp. Ass’n v. Dep’t of Interior,

538 U.S. 803 (2023) .................................................................................................. 31

Nebraska Pub. Power Dist. v. MidAmerican Energy Co.,

234 F.3d 1032 (8th Cir. 2000) .................................................................................. 29

New Heights Farm I, LLC v. Great Am. Ins.,

119 F.4th 455 (6th Cir. 2024)............................................................................. 13, 17

Ohio Adult Video Ass’n v. U.S. Dep’t of Just.,

71 F.3d 563 (6th Cir. 1995) ...................................................................................... 31

Overdrive Inc. v. Open E-Book Forum,

986 F.3d 954, 958 (6th Cir. 2021) ...................................................................... 24, 25

Pac. Capital Bank, N.A. v. Connecticut,

542 F.3d 341 (2d Cir. 2008)...................................................................................... 32

Pacific Gas and Elec. Co. v. State Energy Resources Conserv. & Dev. Com'n,
461 U.S. 190 (1983) .................................................................................................. 29

Philip Morris Inc. v. Harshbarger,

946 F. Supp. 1067 (D. Mass. 1996) .......................................................................... 22

Platkin v. Exxon Mobil Corp.,

No. MER-L-1797-22 (N.J. Super. Ct. Law. Div., Mercer Cnty.) .......................... 6, 7

R.R. Comm’n of Tex. v. Pullman Co.,

312 U.S. 496 (1941) ............................................................................................ 12, 30

Rhode Island v. Shell Oil Prods. Co.,

No. PC-2018-4716 (R.I. Super. Ct.) ........................................................................... 7

Saginaw County v. STAT Emergency Med. Servs.,

946 F.3d 951 (6th Cir. 2020) .............................................................................. 23, 24

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983) .................................................................................................... 22

Sherwin-Williams Company v. County of Delaware,

968 F.3d 264 (3d. Cir. 2020)......................................................................... 22, 23, 31

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State ex rel. Jennings v. BP Am. Inc.,

et al., 2024 WL 98888 (Del. Super. Ct. Jan. 9, 2024) .............................................. 16

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) .......................................................................................... passim

Sys. Application & Techs., Inc. v. United States,

691 F.3d 1374 (Fed. Cir. 2012) ................................................................................ 28

Tanner-Brown v. Haaland,
105 F.4th 437 (D.C. Cir. 2024) ..................................................................... 13, 14, 22

Tex. Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) .............................................................................................. 3, 29

Town of Carrboro v. Duke Energy Corp.,

No. 24CV3385- 670 (N.C. Super. Ct.)........................................................................ 6

Travelers Ins. v. Obusek,

72 F.3d 1148 (3d Cir. 1995)...................................................................................... 18

U.S. ex rel. Dingle v. BioPort Corp.,

270 F. Supp. 2d 968 (W.D. Mich. 2003) ..................................................................... 8

United States Dep’t of Treasury v. Nat’l Treasury Emps. Union,

783 F. Supp. 3d 991 (E.D. Ky. May 20, 2025) ......................................................... 24

United States v. Michigan,

635 F. Supp. 944 (W.D. Mich. 1985), aff'd, 851 F.2d 803 (6th Cir. 1988) .......... 3, 30

United States v. New York et al.,

2025 WL 2208941 (S.D.N.Y. Aug. 4, 2025) ............................................................. 26

United States v. Supreme Court of New Mexico,

839 F.3d 888 (10th Cir. 2016) .................................................................................. 17

United States v. Texas,

719 F. Supp. 3d 640 (W.D. Tex. 2024) ......................................................... 23, 28, 30

United States v. West Virginia,

295 U.S. 463 (1935) .................................................................................................. 24

United States v. Vermont,

No. 2:25-cv-00463 (D. Vt. June 30, 2025) (ECF 23)................................................ 26

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Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .................................................................................................... 4

Vermont Agency of Natural Resources v. United States ex rel. Stevens,

529 U.S. 765 (2000) .................................................................................................. 14

Virginia v. Am. Booksellers Ass’n, Inc.,

484 U.S. 383 (1988) .................................................................................................. 18

Warth v. Seldin,
422 U.S. 490 (1975) .................................................................................................. 14

STATUTES

42 U.S.C. § 7401 et seq. ............................................................................................ 4, 11

42 U.S.C. § 7411(a)(1) .................................................................................................... 5

Pub. L. No. 100-204,

101 Stat. 1331 (1987) (reprinted at 15 U.S.C. § 2901 note) ..................................... 6

RULE

Federal Rule of Civil Procedure 12(b)(1) ...................................................... 1, 8, 11, 12

OTHER AUTHORITIES

13B Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,

Federal Practice and Procedure § 3532.3 (3d ed.)....................................................... 13

Protecting American Energy From State Overreach,

Exec. Order No. 14260, 90 Fed. Reg. 15,513 (Apr. 8, 2025) ......................... 5, 30, 32

Senate-ratified United Nations Framework Convention on Climate Change,

May 9, 1992, S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107 ............................. 6, 29

S. Res. 98, 105th Cong., 1st Sess. (July 25, 1997) ........................................................ 6

Framework Convention, Kyoto Protocol (Dec. 10, 1997)37 I.L.M. 22 (1998) .............. 6

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INTRODUCTION

Defendants (collectively, Michigan) move to dismiss this lawsuit under Federal

Rule of Civil Procedure 12(b)(1) on “only one” issue: ripeness. ECF 11, Michigan’s

Memorandum (“Mem.”) PageID.142. To assess ripeness here, the Court asks whether

the United States has plausibly alleged “a credible threat” that Michigan’s state-law

claims against energy producers for alleged harms due to global greenhouse gas emis-

sions are likely to come to pass. Christian Healthcare Centers, Inc. v. Nessel, 117 F.4th

826, 841 n.2 (6th Cir. 2024). Michigan contends that the United States has not met

this standard even though Michigan’s Attorney General, Dana Nessel:

• Publicly announced her intent to “pursue litigation related to the climate

change impacts caused by the fossil fuel industry,” ECF 8, Amended Complaint
(“AC”) Ex. 1, PageID.94;

• Requested proposals from law firms “to pursue litigation related to the climate
change impacts caused by the fossil fuel industry,” id. Ex. 2, PageID.99;

• Issued a detailed statement of work targeting energy producers operating “in

and outside of Michigan” and seeking to remedy alleged harms caused by “the
global climate crisis,” including injuries to “[t]he environment in and around
Michigan,” id. Ex. 3, PageID.103–04;

• Hired three experienced climate change law firms to “vigorously pursue[] and
prepare[] for filing” climate change claims, id. Ex. 4 § 5.4, PageID.112; and

• Refused to disavow her intent to bring state-law claims in state court for global
greenhouse gas emissions, even when given an opportunity to “end this law-
suit” in exchange for such a disavowal, id. ¶ 30 n.2, PageID.73.

Indeed, far from disavowing Michigan’s plans, Attorney General Nessel pro-

claimed in response to the United States’ complaint: “I remain undeterred in my in-

tention to file this [climate change] lawsuit the president and his big oil donors so

fear.” Justice department sues Michigan and Hawaii over climate suits against big

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oil, The Guardian (May 1, 2025), https://perma.cc/VVV9-ZHS4; see also AC Ex. 6,

PageID.128 (similar).

According to Michigan, the United States is powerless to vindicate its sover-

eign, parens patriae, and proprietary interests until Michigan files its climate change

lawsuit. But the filing of an “actual . . . enforcement action is not a prerequisite to

challenging” an unlawful lawsuit. Susan B. Anthony List v. Driehaus, 573 U.S. 149,

158 (2014). What is required is a “credible threat of enforcement.” Id. at 159. Consid-

ering the surrounding factual circumstances of climate change litigation and Michi-

gan’s conduct here, the United States comfortably satisfies that standard.

Michigan invites this Court to make believe that its threatened suit might not

raise the sorts of claims that the United States argues are preempted: state-law

claims for damages related to global climate change, whether sounding in nuisance,

consumer protection, or some other state law. But Michigan offers no reason to expect

that theoretical possibility, and there is none. Cf. Mem. PageID.156 (acknowledging

allegation that Michigan will sue “in state court based on state law claims . . . may or

[may] not prove accurate”). “Artful pleading” of state-law claims cannot transform

Michigan’s coming “complaint into anything other than a suit over global greenhouse

gas emissions.” City of New York v. Chevron Corp., 993 F.3d 81, 91 (2d Cir. 2021). It

thus does not matter what specific state-law claims Michigan will assert in its climate

change litigation. All of those claims would be preempted under the United States’

theory of the case, see id., which this Court must “accept as valid” for purposes of

Michigan’s motion to dismiss. Fed. Election Comm’n v. Cruz, 596 U.S. 289, 298 (2022).

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Deferring judicial review of the purely legal questions here would impose con-

tinuing hardship on the United States. The federal government sued in federal court

to vindicate its federal interests in the supremacy of federal law. “The United States'

right to bring such [an] action[] in the district court[] as sovereign to protect its inter-

ests and policies is well established.” United States v. Michigan, 635 F. Supp. 944,

946 (W.D. Mich. 1985), aff'd, 851 F.2d 803 (6th Cir. 1988). Michigan thus fails to

persuade by twice suggesting that Michigan “state courts [should] have the oppor-

tunity” to adjudicate its forthcoming climate change litigation. Mem. PageID.140 n.1,

PageID.157. And Michigan’s threatened suit even now undermines the federal gov-

ernment’s ability to speak with “one voice” in its commercial and political relations

with foreign governments on climate, energy, and related issues. AC ¶ 86, PageID.88.

For these and other reasons articulated below, the United States’ claims are

ripe, and the Court should deny Michigan’s motion to dismiss.

BACKGROUND

I. Federal Law Governs Greenhouse Gases and Interstate Pollution, Bal-

ancing Environmental Protection with Other National Interests

A. The Supreme Court has long recognized that “our federal system does not

permit [certain] controvers[ies] to be resolved under state law.” Tex. Indus., Inc. v.

Radcliff Materials, Inc., 451 U.S. 630, 641 (1981). This includes areas in which “the

interstate or international nature of the controversy makes it inappropriate for state

law to control.” Id. For these subjects, the “basic scheme of the Constitution . . . de-

mands” a federal rule of decision. Am. Elec. Power Co. (AEP) v. Connecticut, 564 U.S.

410, 421 (2011).

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This is why, since the Founding, federal law exclusively has applied to disputes

involving cross-boundary pollution, which implicate “uniquely federal interests,” in-

cluding “the conflicting rights of states and our relations with foreign nations.” City

of New York, 993 F.3d at 90–92. There is no history or tradition of States regulating

interstate, much less global, pollution or “climate change.” And for good reason: If

each State could apply its own law in this area, the result would be “an irrational

system of regulation” that “lead[s] to chaotic confrontation between sovereign states”

and “uncertainty” over the governing legal standard, as persons would have to comply

with the laws “of all states potentially affected by” an otherwise “lawful discharge.”

Int’l Paper Co. v. Ouellette, 479 U.S. 481, 496–97 (1987) (quotation marks omitted).

Because the structure of our Constitution requires “a uniform rule of decision” for

“controvers[ies]” involving interstate pollution, it “demands . . . applying federal law

. . . and not the varying . . . law of the individual States.” Illinois v. City of Milwaukee,

406 U.S. 91, 105 n.6, 107 n.9 (1972). Until Congress acted, interstate pollution was

governed by federal common law. See id. at 103, 105 n.6; AEP, 564 U.S. at 421. That

changed in 1963 when Congress enacted (and later amended) the Clean Air Act. See

42 U.S.C. § 7401 et seq.

The Clean Air Act creates a comprehensive national program for regulating

“pollution-generating emissions from both stationary sources, such as factories and

powerplants, and moving sources, such as cars, trucks, and aircraft,” subject to vari-

ous statutory standards for regulation that apply to each type of source. Util. Air

Regul. Grp. v. EPA, 573 U.S. 302, 308 (2014). Beginning in 1970, Congress vested

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authority to implement the Clean Air Act in the Environmental Protection Agency

(“EPA”). City of New York, 993 F.3d at 87.

In determining whether and how to regulate interstate air pollution, EPA must

balance other national interests. See id. at 93 (recognizing the “careful balance” that

must be struck between environmental protection, on the one hand, and “energy pro-

duction, economic growth, foreign policy, and national security, on the other”). Chief

among these interests is ensuring that the Nation maintains a reliable energy sup-

ply—an objective that Congress, the Supreme Court, and the President have all em-

phasized. See 42 U.S.C. § 7411(a)(1) (requiring stationary source emission standards

to reflect “the cost of achieving such [emissions] reduction and any nonair quality

health and environmental impact and energy requirements”); AEP, 564 U.S. at 427

(explaining that “the environmental benefit potentially achievable” through regula-

tion must be weighed against “our Nation’s energy needs and the possibility of eco-

nomic disruption”); Protecting American Energy From State Overreach, Exec. Order

No. 14260, § 1, 90 Fed. Reg. 15,513 (Apr. 8, 2025) (explaining that “[a]n affordable

and reliable domestic energy supply” is “essential to the national and economic secu-

rity of the United States, as well as our foreign policy”).

B. Because climate change “is a global problem that the United States cannot

confront alone,” the federal government “has worked cooperatively with foreign gov-

ernments through diplomatic channels” to address the issue. City of New York, 993

F.3d at 88. Congress directed the executive branch to develop a “coordinated national

policy on global climate change” through the Global Climate Protection Act, Pub. L.

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No. 100-204, Title XI, § 1103, 101 Stat. 1331, 1407–09 (1987) (reprinted at 15 U.S.C.

§ 2901 note), and the federal government has been carefully coordinating and refining

that policy for decades. Since 1992, for example, the United States has been party to

the Senate-ratified United Nations Framework Convention on Climate Change, S.

Treaty Doc. No. 102-38, 1771 U.N.T.S. 107, which creates a framework for interna-

tional cooperation to address greenhouse gas emissions.

At the same time, the United States has rejected more restrictive measures,

recognizing that regulation does not always serve national interests. The United

States is not, for example, party to the Kyoto Protocol of 1997, see Framework Con-

vention, Kyoto Protocol (Dec. 10, 1997), 37 I.L.M. 22 (1998), which sets binding green-

house gas emission reduction targets on certain Framework Convention parties, S.

Res. 98, 105th Cong., 1st Sess. (July 25, 1997); see also AC ¶¶ 89–104, PageID.89–91

(describing foreign affairs).

II. States and Municipalities, Including Those Represented by Michigan’s

Counsel, Bring Dozens of “Climate Change” Lawsuits

For nearly a decade, States and municipalities have brought dozens of cases

that seek to use state law to remedy the allegedly adverse effects of global greenhouse

gases emissions from energy producers. 1 The plaintiffs in these cases bring materially

1 See, e.g., In re Fuel Indus. Climate Cases, No. S288664 (Cal.); City & Cnty. of Honolulu
v. Sunoco LP, No. 1CCV-20-380 (Haw. Cir. Ct.); Cnty. of Maui v. Sunoco LP, No. 2CCV-20-
283 (Haw. Cir. Ct.); City of Chicago v. BP p.l.c., No. 2024CH1024 (Ill. Cir. Ct.); Mayor & City
Council of Baltimore v. BP p.l.c., No. 24-C-18-4219 (Md. Cir. Ct.); Anne Arundel County v. BP
p.l.c., No. 02-CV-21-565 (Md. Cir. Ct.); City of Annapolis v. BP p.l.c., No. 02-CV-21-250 (Md.
Cir. Ct.); Platkin v. Exxon Mobil Corp., No. MER-L-1797-22 (N.J. Super. Ct.); City of Hoboken
v. Exxon Mobil Corp., No. HUD-L-3179-20 (N.J. Super. Ct.); City of New York v. BP p.l.c., No.
18-cv-182 (S.D.N.Y.); Town of Carrboro v. Duke Energy Corp., No. 24CV3385- 670 (N.C.

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identical allegations that the worldwide production, sale, or promotion of fossil fuels

led to the emission of greenhouse gases and thereby contributed to global climate

change. The lawsuits share a common feature: plaintiffs use state statutes and state

common law to bring claims against global energy producers rather than using fed-

eral law. By framing their lawsuits under state consumer protection statutes or state

common law claims, plaintiffs attempt to sidestep federal preemption arguments.

A repeat player in this litigation is the law firm Sher Edling LLP. This firm

“represents states, tribes, and local governments in lawsuits to hold fossil fuel indus-

try defendants accountable” for their alleged “deception about the science of climate

change and the role their products play in causing it.” AC ¶ 22, PageID.70 (citing

Sher Edling LLP, Climate Damage and Deception, https://perma.cc/MA84-TNVZ).

The firm has filed the same type of materially identical lawsuit dozens of times, in-

cluding for Massachusetts, Delaware, Hawaii, Maine, Minnesota, Rhode Island, New

Jersey, and more. See id. 2 Its complaints for the States—all of which are filed against

major energy producers (e.g., Exxon Mobil Corporation)—allege materially similar

state-law claims. See, e.g., Delaware, No. N20C-09-97, Compl. ¶ 21h (alleging that

Super. Ct.); Cnty. of Multnomah v. Exxon Mobil Corp., No. 23-cv-25164 (Or. Cir. Ct.); Bucks
County v. BP p.l.c., No. 2024-1836 (Pa. C.P.); City of Charleston v. Brabham Oil Co., No. 2020-
CP-10-3975 (S.C.C.P.); King County v. BP p.l.c., No. 18-2-11859-0 (Wash. Super. Ct.); Mun.
of Bayamón v. Exxon Mobil Corp., No. 22-cv-1550 (D.P.R.); Mun. of San Juan v. Exxon Mobil
Corp., No. 23-cv-1608 (D.P.R.).
2 See, e.g., Commonwealth of Massachusetts v. Exxon Mobil Corp., No. 1984-cv-033333
(Suffolk Sup. Ct. Mass.); Delaware v. BP Am. Inc., No. N20C-09-097-EMD-CCLD (Del. Super.
Ct.); Hawaii v. BP p.l.c., No. 1CCV-25-717 (Haw. Cir. Ct.); Maine v. BP p.l.c., No. PORSC-
CV24-442 (Me. Super. Ct.); Minnesota v. Am. Petroleum Inst., No. 62-CV-20-3837 (Minn. Dist.
Ct.); Rhode Island v. Shell Oil Prods. Co., No. PC-2018-4716 (R.I. Super. Ct.); Platkin, et al.
v. Exxon Mobil Corp., No. MER-L-001797-22 (Sup. Ct. NJ Law Div., Mercer Cnty.).

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producers’ advertisements “contained false or misleading statements”); Hawaii, No.

1CCV-25-717, Compl. ¶ 37i (same); Maine, No. PORSC-CV24-442, Compl. ¶ 33k

(same). The firm has also asserted state-law claims for negligence, trespass, nuisance,

products liability, and public trust. See AC ¶ 22, PageID.70 (hyperlinking cases).

III. Although Michigan Has Minimal Fossil Fuel Production, It Hires Experi-
enced Counsel to Bring “Climate Change Litigation” Against the “Fossil
Fuel Industry” for Alleged Global Climate Harms

A. “Michigan’s crude oil reserves and production are modest.” U.S. Energy In-

formation Administration, U.S. Dep’t of Energy, Michigan (Oct. 17, 2024),

https://perma.cc/PH8E-JX2Y. 3 Its “crude oil reserves and production each account for

0.1% of the nation’s total.” Id. Oil production from the State peaked in 1979 but, since

then, “Michigan’s crude oil output has generally declined and was about 4.8 million

barrels in 2023.” Id. It now has only one crude oil refinery located near Detroit. Id.

As for other fossil fuels, Michigan has “no active coal mines” and “holds about 0.2%

of U.S. total proved [natural gas] reserves.” Id. Its natural gas production, mean-

while, makes up merely “0.2% of total U.S. production.” Id. All told, Michigan has

minimal fossil fuel production and minimal greenhouse gas emissions. See id.

3 “The U.S. Energy Information Administration (EIA) is the statistical and analytical
agency within the U.S. Department of Energy. EIA collects, analyzes, and disseminates in-
dependent and impartial energy information to promote sound policymaking, efficient mar-
kets, and public understanding of energy and its interaction with the economy and the envi-
ronment.” U.S. Energy Info. Admin., About EIA, Mission and Overview,
https://perma.cc/WM39-5E4W. EIA’s “data, analyses, and forecasts are independent of ap-
proval by any other officer or employee of the U.S. government.” Id. “[P]ublic records and
government documents available from reliable sources on the Internet” are judicially notice-
able, U.S. ex rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003), and
are properly considered in response to a Rule 12(b)(1) motion, see Bailey v. City of Ann Arbor,
860 F.3d 382, 386 (6th Cir. 2017).

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B. In May 2024, Michigan issued a request for proposal for law firms “to pursue

litigation related to the climate change impacts caused by the fossil fuel industry.”

AC ¶ 15, PageID.68. Consistent with the climate change cases described above, the

request requires “attorneys and law firms with experience and interest in pursuing

constitutional, statutory, tort and other applicable common law claims against the

fossil fuel industry.” Id. Ex. 1, PageID.94; see also id. Ex. 2, PageID.99 (same).

Michigan’s statement of work expands on the planned lawsuit. In it, Michigan

requires counsel to bring “claims against the fossil fuel industry for knowingly caus-

ing adverse impacts on climate, for deceiving the public about the climate changes

that they knew their products would cause, and for the costs” Michigan has spent or

will “spend to address and recover from the impacts of climate change.” Id. Ex. 3 § 1,

PageID.103.

The concerns Michigan identifies go well beyond alleged in-state “impacts.” Id.

Michigan asserts that “[t]he impacts of climate change” include “catastrophic and

[potentially] irreversible consequences” ranging from “atmospheric and ocean warm-

ing” to “melting polar ice caps and glaciers” as well as “sea level rise” and “extreme

and volatile weather.” Id. § 2, PageID.103–04. Michigan lays blame for these negative

effects not on any entity in the State but on “the fossil fuel industry.” Id. The state-

ment of work contemplates that climate change counsel will “examine, investigate,

recommend, and litigate” claims “against fossil fuel industry defendants including

but not limited to extractors, producers, transporters, refiners, manufacturers, dis-

tributors, promoters, marketers, and/or sellers of fossil fuel products.” Id. § 3,

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PageID.104 (emphasis added); see also id. § 2, PageID.104 (requiring counsel to “de-

termin[e] what claims will be brought, draft[] the complaints (as appropriate), con-

duct[] affirmative and defensive discovery, tak[e] and defend[] depositions, [under-

take] motion practice, and prepar[e] for and conduct[] any trials”).

After receiving proposals, in September 2024, Michigan hired three law firms

to bring “climate change litigation” against the fossil fuel industry. Id. Ex. 4,

PageID.107. One of the firms Michigan hired is Sher Edling LLP—the firm that has

already filed the same materially identical lawsuit dozens of times, including on be-

half of seven other States. The contract between Michigan and the law firms requires

counsel to “vigorously pursue[] and prepare[] for filing” “[a]ll claims.” Id. § 5.4,

PageID.112. And Michigan contemplates that its climate change lawsuit could exceed

$150 million dollars in recoveries. Id. Ex. 5, PageID.122.

IV. The United States Sues and, Forfeiting All Other Arguments, Michigan
Moves To Dismiss on the Sole Ground That This Suit Is Unripe

A. In April 2025, the United States filed a complaint against Michigan for de-

claratory and injunctive relief to prevent it from using state-law claims to regulate

out-of-state greenhouse gas emissions. See ECF 1 at PageID.22. The United States

alleged that Michigan’s impending “state law claims are preempted” by federal law

because they would “impermissibly regulate out-of-state greenhouse gas emissions”

and obstruct federal law. Id. ¶ 31. Further, “Michigan’s state law claims violate the

Constitution’s structure and principles of due process by seeking to impose economic

sanctions on fossil fuel businesses for economic activities that occurred primarily in

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other States and around the world.” Id. ¶ 50. The United States asserted that any

state-law claims seeking damages from the fossil-fuel industry for climate change are

preempted by or violate the Clean Air Act, 42 U.S.C. § 7401, et seq. (Count I), the

constitutional bar on extraterritorial regulation (Count II), the Interstate Commerce

Clause (Count III), the Foreign Commerce Clause (Count IV), and the Foreign Affairs

Doctrine (Count V). The United States’ suit does not seek to bar Michigan from as-

serting federal claims related to its alleged harms.

In June 2025, Michigan moved to dismiss the complaint under Rule 12(b)(1),

contending that the United States’ claims are unripe because it had not yet filed its

lawsuit. See ECF 6 & 7. That same day, Attorney General Nessel called the United

States’ lawsuit an “attempt to intimidate [her] office and deter [Michigan] from hold-

ing Big Oil accountable.” AC Ex. 6, PageID.128. She also declared: “I remain unde-

terred in my intent to pursue justice on behalf of Michigan residents.” Id.; see also

supra The Guardian (“I remain undeterred in my intention to file this lawsuit.”).

Because Attorney General Nessel remained “undeterred” in her intent to file a

climate change lawsuit, the United States amended its complaint. The United States

asserted the same claims as before and requested a declaration that Michigan cannot

use state-law claims to regulate out-of-state greenhouse gas emissions. AC at

PageID.92. The United States also requested a permanent injunction to enjoin such

state-law claims. Id. The Amended Complaint added more allegations about Michi-

gan’s imminent climate change litigation. See id. ¶¶ 14–30, PageID.68–73. Finally,

the United States offered to “end this lawsuit” if Michigan agreed to “disavow[] any

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intent to bring state-law claims against fossil fuel companies for alleged harms from

greenhouse-gas emissions and terminat[e] its Climate Change litigation efforts.” Id.

PageID.73 n.2. 4

B. Michigan declined the offer. It instead moved to dismiss the Amended Com-

plaint on “only one” issue: “subject-matter jurisdiction under Rule 12(b)(1) because,”

in its view, “this case remains unripe for adjudication.” Mem. PageID.142.

In support of its motion, Michigan does not deny that it will sue global energy

producers under state law for alleged harm related to global climate change. To the

contrary, Michigan over and over hints that it will file “suit in state court seeking

relief under state law.” Mem. PageID.140 n.1 (referencing R.R. Comm’n of Tex. v.

Pullman Co., 312 U.S. 496 (1941)); id. at PageID.156-157. 5

STANDARD OF REVIEW

“The doctrines of standing and ripeness ‘originate’ from the same Article III

limitation.” Driehaus, 573 U.S. at 157 n.5. A case is ripe if it (1) “arise[s] in a concrete

4 The Amended Complaint contains a description of Buck v. Gorden, 429 F. Supp. 3d 447
(W.D. Mich. 2019) (Jonker, J.), which Michigan calls an “ad hominem attack on Attorney
General Nessel.” Mem. PageID.143 (citing AC ¶¶ 24–25, PageID.71). But the United States
does not construe Judge Jonker’s opinion as leveling a personal attack against her. That
opinion and her campaign statements show that she follows through on her public statements
with action in court. And here there is no reason to think—and Michigan does not dispute—
that she will not follow through on her avowed intent to sue the “fossil fuel industry.”

5 See also id. at PageID.152 (“Even if Michigan were to model its case after prior cases
brought by Sher Edling[]”); id. (“The State may decide to pursue similar climate change-re-
lated claims or the State might pursue new legal theories.”); id. at PageID.154 (arguing no
hardship to the United States “until the State of Michigan files any climate claims against
private defendants”); id. (admitting “the possibility that Michigan may file a lawsuit”); id.
(feigning “‘uncertainty’ over Michigan’s anticipated lawsuit”); id. at PageID.156 (“The United
States is convinced that Michigan will file suit in state courts based on state law claims,
which may or [may] not prove accurate.”).

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factual context and concern[s] a dispute that is likely to come to pass,” and (2) if de-

ferring review would “impose ‘hardship’ on the participants in the lawsuit[.]” New

Heights Farm I, LLC v. Great Am. Ins., 119 F.4th 455, 460 (6th Cir. 2024).

In the pre-enforcement context, “‘the line between Article III standing and

ripeness has evaporated’ because the doctrines both pose largely ‘the same question:

have plaintiffs established a credible threat of enforcement?’” Nessel, 117 F.4th at 841

n.2 (quoting Miller v. City of Wickliffe, 852 F.3d 497, 506 (6th Cir. 2017)). 6

At the motion to dismiss stage, a plaintiff need only allege facts “plausibly”

showing that the dispute is ripe. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);

see also Lujan v. Defenders of Wildlife, 504 US 555, 561 (1992) (standing “must be

supported in the same way as any other matter on which the plaintiff bears the bur-

den of proof”). The court must “construe the plaintiff’s complaint liberally, in plain-

tiff’s favor, accepting all factual allegations as true and drawing all reasonable infer-

ences in favor of the plaintiff.” Logsdon v. Hains, 492 F.3d 334, 340 (6th Cir. 2007).

“[W]hen considering whether a plaintiff has Article III standing, a federal court

must assume arguendo the merits of his or her legal claim.” Tanner-Brown v. Haa-

land, 105 F.4th 437, 445 (D.C. Cir. 2024) (collecting cases). Put differently, courts

“must consider standing separately from the merits by assuming that the plaintiff

will ultimately prevail on [its] legal theory.” Id.; accord Cruz, 596 U.S. 298 (“For

6 Michigan is wrong to suggest that ripeness has unique rules in only the “First Amend-
ment context.” Mem. PageID.156 n.5; see, e.g., Kentucky v. Yellen, 54 F.4th 325, 336 (6th Cir.
2022) (applying “credible threat” standard in non-First Amendment case); see generally 13B
Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure
§ 3532.3 (3d ed.) (“First Amendment rights need not be the only rights accorded special ripe-
ness treatment.”).

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standing purposes, we accept as valid the merits of [the plaintiff’s] legal claims . . . .”);

Warth v. Seldin, 422 U.S. 490, 502 (1975) (assuming legal theory of complaint).

ARGUMENT

“It is beyond doubt” that a complaint “asserts an injury to the United States”

if it alleges an “injury to [the United States’] sovereignty arising from violation of its

laws.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S.

765, 771 (2000). Regulation of interstate pollution is a subject reserved exclusively to

federal law, see supra Background I, and Michigan injures the United States by

threatening to usurp the United States’ exclusive federal authority. This case is ripe.

I. Michigan’s Threatened Climate Suit Arises in a Decade-Long “Concrete

Factual Context,” and the Dispute Over the State-Law Claims Is “Likely
To Come to Pass”

A. Michigan argues that this case is unripe because it supposedly rests on “hy-

pothetical and conjectural” events. The State’s main argument is that “there are no

specific claims” before this Court “to determine whether they are preempted or un-

constitutional.” Mem. PageID.140. But this case does not “hinge on what ‘exact theo-

ries of liability’ Michigan may bring.” Id. PageID.149. Rather, the United States’

legal theory is that any state-law claim that Michigan may assert based on global

greenhouse gas emissions would be preempted by federal law, which theory this

Court must “accept as valid.” Cruz, 596 U.S. at 298; Tanner-Brown, 105 F.4th at 445

(“assuming that the plaintiff will ultimately prevail on her legal theory”). 7

7To the extent Michigan implies that its forthcoming state-law claims are not
preempted, see Mem. PageID.152 & n.4 (noting that some claims “have survived

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The United States maintains that States lack power, both as a constitutional

and statutory matter, to use state law to obtain damages for alleged harms from

global greenhouse gas emissions or otherwise regulate such emissions. See AC

PageID.78–85 (Counts I & II). That theory encompasses all state-law claims that

would effectively regulate greenhouse gas emissions. See City of New York, 993 F.3d

at 91–92 (explaining that “regulation can be effectively exerted through an award of

damages” requested in a lawsuit) (quoting Kurns v. R.R. Friction Prods. Corp., 565

U.S. 625 (2012)); accord BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 573 n. 17 (1996)

(“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.”). Such state-law claims injure the United States by

usurping its exclusive sovereign authority to regulate global greenhouse gas emis-

sions. See AC ¶ 7, PageID.66. State-law claims seeking to regulate global greenhouse

gas emissions also injure the United States by interfering with its proprietary and

parens patriae interests. Id.

Michigan cannot artfully plead around the exclusivity of federal law because

regulation of global greenhouse gas emissions is “a matter of federal, not state, law.”

Ouellette, 479 U.S. at 488. And “[a]rtful pleading” of state-law claims here cannot

transform Michigan’s imminent “complaint into anything other than a suit over

global greenhouse gas emissions.” City of New York, 993 F.3d at 91. “It is precisely

because fossil fuels emit greenhouse gases,” id., that Michigan seeks to recover over

constitutional and preemption arguments, while others have not”), that argument must wait
for the merits and is not appropriate to Michigan’s ripeness defense.

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$150 million in damages against the entire fossil fuel industry. The fact that Michi-

gan is seeking to recover for global greenhouse gas emissions is further evident from

its statement of work—which specifies that the “purpose” of its climate change litiga-

tion is to redress “the global climate crisis.” AC Ex. 3 § 2, PageID. 103.

It thus does not matter what specific state-law claims Michigan will plead

against energy producers for allegedly “deceiving the public about the climate

changes” or for other harms related to greenhouse gases. Id. Michigan cannot use any

state-law claim to regulate global greenhouse gas emissions, whether under trespass,

nuisance, negligence, consumer protection, product liability, public trust, or some

other state law theory. They all would be preempted. See Banks v. Alexander, 294

Fed. App’x 221, 225 (6th Cir. 2008) (“artful pleading cannot defeat preemption”); City

of New York, 993 F.3d at 91 (same). “[O]ur federal structure” simply “does not allow

[Michigan] law, or any State’s law, to address” claims for global greenhouse gas emis-

sions. Bucks County v. BP P.L.C., 2025 WL 1484203, at *8 (Pa. Com. Pl. May 16,

2025). A “growing chorus” of state and federal courts have joined this holding. 8

B. Michigan argues that this case is unripe because it is “riddled with contin-

gencies and speculation that impede judicial review,” but none of the five

8 City of Charleston v. Brabham Oil Co., 2025 WL 2269770, at *2 (S.C. Ct. Com. Pl. Aug.
6, 2025) (quoting Bucks, 2025 WL 1484203, and noting that the “ranks of this chorus are
swelling for sound public policy reasons”); accord Bucks, 2025 WL 1484203, at *6 (citing City
of New York, 993 F.3d 81; City of Oakland v. BP plc, et al., 325 F. Supp. 3d 1017 (N.D. Cal.
2018); State ex rel. Jennings v. BP Am. Inc. et al., 2024 WL 98888 (Del. Super. Ct. Jan. 9,
2024); Mayor and City Council of Baltimore v. BP plc, et al., No. 24-C-18-004219 (Md. Cir.
Ct. July 10, 2024); City of Annapolis v. BP plc, et al., No. C-02-CV-000250 (Md. Cir. Ct. Jan.
23, 2025); Anne Arundel County v. BP plc, et al., No. C-02-CV-21-000565 (Md. Cir. Ct. Jan.
23, 2025); City of New York v. Exxon Mobil Corp., et al., 2025 WL 209843 (N.Y. Sup. Ct. Jan.
14, 2025)).

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contingencies Michigan identifies prevents this suit from proceeding. Mem.

PageID.147–48, 53.

At the outset, the mere presence of contingent events is not the test for deter-

mining whether a case presents a justiciable controversy. See, e.g., United States v.

Supreme Court of New Mexico, 839 F.3d 888, 902–04 (10th Cir. 2016) (rejecting as-

serted “contingencies” to challenge ripeness). The correct standard is “whether the

facts alleged, under all the circumstances, show that there is a substantial contro-

versy, between parties having adverse legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 127 (2007). This standard applies even where a dispute

hinges on actual contingencies. See, e.g., Maryland Casualty v. Pac. Coal & Oil Co.,

312 U.S. 270, 272–73 (1941) (holding claim justiciable because of the possibility that

a party could prevail in his separate state court lawsuit and then sue the insurer

later). The mere existence of contingencies is thus no bar to federal jurisdiction.

In any case, none of the five contingencies that Michigan raises alters the fact

that this case presents a ripe controversy. See Mem. PageID.147–48.

First, this case is ripe now because Michigan’s actions make clear that its cli-

mate change lawsuit is “likely to come to pass.” New Heights, 119 F.4th at 460; see

Mem. PageID.147 (arguing that ripeness turns on whether Michigan “choos[es] to

proceed and fil[e] a climate lawsuit”). In arguing that this case is unripe because it

has not yet filed its climate change lawsuit, Michigan fails to grapple with binding

pre-enforcement case law. The Supreme Court is “not troubled by the pre-

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enforcement nature of [a] suit” that challenges something “before” it becomes “effec-

tive”—in this case, the filing of Michigan’s complaint. Virginia v. Am. Booksellers

Ass’n, Inc., 484 U.S. 383, 392–93 (1988); see also Travelers Ins. v. Obusek, 72 F.3d

1148, 1154 (3d Cir. 1995) (noting no need for “mathematical certainty” as “such bar-

riers would eviscerate the Declaratory Judgment Act and render” its relief “illusory”).

All that is necessary to present a justiciable controversy in a pre-enforcement

challenge are plausible allegations of a “credible threat” of action. Driehaus, 573 U.S.

at 159; accord Nessel, 117 F.4th at 841 n.2 (same). The Sixth Circuit applied the

“credible threat” standard in Nessel where it weighed several factors to determine

whether the plaintiff presented a justiciable controversy: (1) writings regarding the

“specific conduct” at issue, (2) “history,” (3) the ease of or likelihood of bringing the

challenged action, and (4) the “defendant’s refusal to disavow” the challenged con-

duct. Id. at 848. “At bottom,” the court summarized, the “inquiry distills to whether

‘surrounding factual circumstances’ plausibly suggest a credible” threat that the chal-

lenged conduct will likely come to pass. Id.

The United States’ allegations satisfy each of the four pre-enforcement factors

to establish a “credible threat” that Michigan will file a climate change lawsuit con-

taining state-law claims for global greenhouse gas emissions. Id.

To begin, Michigan’s own conduct exposes its imminent intent to file “litigation

related to the climate change impacts caused by the fossil fuel industry.” AC ¶ 15,

PageID.68. Michigan, for example, issued a request for proposal for law firms—“with

experience and interest in pursuing . . . claims against the fossil fuel industry”—to

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bring “Climate Change Litigation.” AC Ex. 1, PageID.94; id. Ex. 2, PageID.99. And

Michigan executed a contract for attorneys to “vigorously pursue[] and prepare[] for

filing” such “claims.” Id. Ex. 4 § 5.4, PageID.112; see Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 381 (1992) (concluding that “injunctive relief was available” when

state attorneys general “had made clear” their intention to act).

Michigan’s planned lawsuit is also consistent with a nearly ten-year history of

climate change litigation and Michigan’s own conduct to prepare its lawsuit. This

history includes dozens of materially identical cases alleging—under the law of the

forum state—that the worldwide production, sale, or promotion of fossil fuels led to

the emission of harmful greenhouse gases. See supra Background II. Michigan re-

tained three “experienced” law firms to bring “Climate Change Litigation.” See id.

supra II–III. One of those firms has a history of filing materially identical lawsuits

dozens of times, including on behalf of seven States, making similar state-law claims

seeking to hold energy producers liable for out-of-state greenhouse gas emissions. Id.;

see also AC ¶ 22, PageID.70 (hyperlinking lawsuits); Mem. PageID.152 n.4 (listing

only state-law claims filed by its counsel). This context “is good evidence that the

threat of” Michigan filing a complaint with state-law claims for global greenhouse gas

emissions “is not ‘chimerical.’” Driehaus, 573 U.S. at 164.

The “credibility of [the] threat” to file suit is further “bolstered by the fact that

authority to file a complaint” is completely within Michigan’s control. Id. The United

States has plausibly alleged that Michigan will go forward with its lawsuit. See, e.g.,

AC ¶¶ 14–30, PageID.68–73.

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And Michigan has refused to “disavow” its intent to bring a lawsuit alleging

state-law claims in state court for global greenhouse gas emissions. Nessel, 117 F.4th

at 850–51. Just the opposite: Michigan “reaffirmed the threat of [a] future” climate

change lawsuit in response to “the complaint.” Berry v. Schmitt, 688 F.3d 290, 296–

98 (6th Cir. 2012) (finding a challenge to a rule ripe given that “after-the-fact assur-

ances did not diminish the threat of enforcement”). Attorney General Nessel stated

in response to the United States’ complaint that she remains “undeterred” in her in-

tention to sue “Big Oil.” AC Ex. 6, PageID.128. The United States then offered to

dismiss its case in exchange for a disavowal of Michigan’s intent “to bring state-law

claims” for “alleged harms from greenhouse-gas emissions.” Id. ¶ 30 n.2 PageID.73.

Michigan has declined. The State will have another opportunity to disavow state-law

claims for global greenhouse gas emissions in its reply brief. Michigan’s actions and

statements to date make that unlikely.

Second, Michigan argues that its lawsuit would need to contain “claims based

on greenhouse gas emissions in other states” for this case to be ripe. Mem.

PageID.147. Its lawsuit inevitably will. The fundamental premise of the lawsuit

Michigan intends to file against “the fossil fuel industry” is that “global” greenhouse

gas emissions cause in-state harm. AC Ex. 3, PageID.103 (emphasis added). Michi-

gan’s threatened suit thus necessarily will involve emissions and conduct in other

States. According to her statement of work, for example, the “Attorney General of the

State of Michigan seeks to hold fossil fuel companies [liable] . . . that profited from

their actions for the damage they have caused and are causing” to the climate. Id. Ex.

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3 § 1, PageID.103. Those “actions” are obviously not confined to Michigan—as further

shown by judicially noticeable data proving “modest” petroleum activities there. See

supra Background III.A. In fact, Michigan’s statement of work makes clear that the

injuries for which it will seek compensation extend far beyond its borders. See, e.g.,

id. Ex. 3 § 2, PageID.103 (alleging that the “fossil fuel industry . . . hid information

and deceived the public and consumers, both in and outside of Michigan, about the

role of their products causing the global climate crisis”) (emphases added); id.

PageID.104 (stating that the “environment in and around Michigan . . . is changing

as a result of fossil fuel product use and emissions”) (emphasis added).

Third, Michigan contends that for the United States’ injury to ripen, it must

“not bring[] claims within the purview that the United States concedes would be

proper for a State to bring.” Mem. PageID.148–49 (citing AC ¶¶ 52–53, PageID.80).

The United States acknowledges that a “slim reservoir” of State authority exists for

“state lawsuits brought under ‘the law of the pollution’s source state.’” City of New

York, 993 F.3d at 100 (citing Ouellette, 479 U.S. at 497) (cleaned up). Consider, as an

example, a Grand Rapids factory emitting heavy metal pollutants that settle around

Kalamazoo. Because those emissions originate only within Michigan, the State could

use its own authority to regulate them.

But that is not the case Michigan has promised to bring, because there is no

way around the fact that Michigan’s coming complaint will target greenhouse gases

“emanat[ing] simultaneously from all 50 states and the nations of the world,” id., and

energy producers operating “in and outside of Michigan,” AC Ex. 3 § 2, PageID.103.

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Failing to appreciate the distinction between emissions (and conduct) originating

within the State’s borders and those emanating from beyond, Michigan falls short in

suggesting that the United States pleaded inconsistent theories of liability when de-

lineating permissible and impermissible state-law claims for air pollutants. See Mem.

PageID.149–50. Michigan cannot impose its own standards on global greenhouse

gases. And the United States seeks relief against only “state law claims” seeking to

regulate interstate and global greenhouse gas emissions. AC PageID.92.

Fourth and fifth, Michigan argues that a court would need to rule on the

merits of its state-law claims before this case ripens. See Mem. PageID.148. That has

it backwards. The whole point of the United States’ lawsuit is that Michigan’s claims

are already preempted by federal law and therefore should not be filed. At this stage,

this Court must assume “the merits of [the United States’] legal claim.” Tanner-

Brown, 105 F.4th at 445. Further, the United States filed this lawsuit to vindicate its

sovereign interests in the face of Michigan’s threats, and it is “beyond dispute that

federal courts have jurisdiction over suits to enjoin state officials from interfering

with federal rights.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (citing

Ex parte Young, 209 U.S. 123, 160–62 (1908)). Courts have thus rejected Michigan’s

wait-and-see argument, concluding that its approach would also “prevent most cases

brought under Ex parte Young from being heard in time to give the relief that the

Young doctrine sanctions.” Philip Morris Inc. v. Harshbarger, 946 F. Supp. 1067, 1076

(D. Mass. 1996)

C. Michigan’s cases do not support dismissing this lawsuit. In Sherwin-

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Williams Company v. County of Delaware, 968 F.3d 264, 266 (3d. Cir. 2020), the court

affirmed lack of Article III standing when the plaintiff sued several “counties to fore-

stall lead-paint litigation those counties seemed poised to file.” The court reasoned

that, because the plaintiff’s “constitutional claims . . . rest on what it anticipates the

[c]ounty might allege in a hypothetical lawsuit” containing an “(unarticulated) public

nuisance theory” of liability, such “speculation cannot satisfy Article III’s standing

requirements.” Id. at 267, 270.

In contrast here, the United States’ case does not rest on any one state-law

claim Michigan might allege (e.g., public nuisance), as Michigan cannot use any state-

law claim to regulate greenhouse gas emissions. Because Michigan cannot artfully

plead around the exclusive province of federal law, this case is distinguishable from

Sherwin-Williams. Moreover, unlike the Sherwin-Williams plaintiff, who could pro-

tect its interests by raising affirmative defenses, the United States’ interests here are

as the federal sovereign and not as a potential defendant. These sovereign interests—

which when encroached inflict “per se irreparable harm” to the United States, United

States v. Texas, 719 F. Supp. 3d 640, 695 (W.D. Tex. 2024)—further distinguish this

case from Sherwin-Williams, in which the plaintiff couldn’t establish a “concrete in-

jury to its constitutional rights.” 968 F.3d at 270. Finally, the lawsuit in Sherwin

Williams was merely “hypothetical,” while Michigan has taken concrete steps to pre-

pare for a lawsuit that is imminent.

Though Michigan also relies on Saginaw County v. STAT Emergency Med.

Servs., 946 F.3d 951 (6th Cir. 2020), the reasoning of that case supports the United

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States. There, an ambulance service provider was operating in contravention of a lo-

cal ordinance that permitted the operation of just one such service. Id. at 953. The

county could have simply sought to enforce that ordinance against the rogue service

provider, but it instead chose to seek a declaratory judgment that its single-service

restriction complied with state and federal law. Id. In other words, the county sought

a declaratory judgment that its own regulation was valid. Because the county itself

was the one “in the driver’s seat” on the decision whether to enforce its own law, the

Sixth Circuit found it could not plausibly allege harm. Id. at 955. Rather, the pur-

ported controversy was based on a “speculative fear” that the jilted service provider

might challenge the ordinance based on objections it had made six years before. Id. at

953, 955. That is a far cry from this case where, in direct response to this lawsuit,

Michigan renewed its promise to bring climate change litigation.

Saginaw County also recognized that a judiciable controversy can be found in

circumstances where the government shows “the actual or threatened invasion of its

sovereign right to enforce the law.” Id. at 957 (citing United States v. West Virginia,

295 U.S. 463 (1935)) (emphasis added). The need to protect such sovereign interests

from a “threatened invasion” is exactly what the United States alleged here. 9

9 The other cases Michigan cites (Mem. PageID.148–49) are inapposite, because, unlike
here, they involved speculative claims with no imminent injury. See Doe v. Univ. of Mich., 78
F.4th 929, 950 (6th Cir. 2023) (plaintiff failed to “plead facts establishing that the harm he
anticipated was at all ‘likely to come to pass’”) (emphasis added); Baaghil v. Miller, 1 F.4th
427, 435 (6th Cir. 2021) (challenge unripe because neither the plaintiff nor the court could
“have any idea” when the government might act) (emphasis added); Overdrive, 986 F.3d at
958 (no showing that infringement would likely occur); United States Dep’t of Treasury v.
Nat’l Treasury Emps. Union, 783 F. Supp. 3d 991, 1010–11 (E.D. Ky. May 20, 2025) (noting
similarities with Saginaw County in which future harm was “too speculative” and contingent
upon plaintiff’s own enforcement decisions and hypothetical reactions thereto).

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D. Finally, Michigan implies at various points that it could legally follow

through with its promise to sue the “fossil fuel industry” for climate change by bring-

ing only “federal law” claims or claims under the law of the source state. See Mem.

PageID.140, PageID.150; see also City of New York, 993 F.3d at 100 (explaining “slim

reservoir of state common law” for suits brought under the source state). But Michi-

gan does not identify any federal or source-state claims. The United States does not

argue that such claims would be preempted and does not seek to enjoin them. See AC

¶ 22, PageID.70 & PageID.92 (seeking relief only as to “state law” claims based on

out-of-state emissions or conduct). All that is required here is a plausible allegation

of a “credible threat” that Michigan will bring at least one claim under Michigan law

for out-of-state emissions or conduct. Driehaus, 573 U.S. at 159. The United States

clears that hurdle based on the cottage industry and nationwide pattern and practice

of asserting state-law claims for climate-change harms, among other reasons.

II. The United States’ Purely Legal Claims are Fit for Judicial Review and
Deferring Review Now Would Impose Significant Hardship

Courts have cast “some doubt” on the “continuing vitality” of the “prudential

aspects of the ripeness doctrine.” Kiser v. Reitz, 765 F.3d 601, 606–07 (6th Cir. 2014).

While it “seems doubtful” that federal courts may “refuse to resolve a claim presented

in a current and ‘concrete factual context’ on the ground that the parties would not

be hurt by a delayed resolution,” for now courts continue to assess prudential con-

cerns. OverDrive Inc. v. Open E-Book Forum, 986 F.3d 954, 958 (6th Cir. 2021). As-

suming the vitality of the prudential aspects of ripeness, this case is still ripe because

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the United States presents purely legal claims fit for judicial review and deferring

review would inflict hardship on the United States.

A. This case raises pure questions of law that this Court should resolve now.

The Supreme Court “has instructed that claims are fit for review if they present

‘purely legal’ issues that ‘will not be clarified by further factual development.’” Hill v

Snyder, 878 F.3d 193, 213–14 (6th Cir. 2017). The Sixth Circuit has thus found cer-

tain cases ripe where they are based on “theories that require no further factual de-

velopment and that appear to raise only legal issues.” Carman v. Yellen, 112 F.4th

386, 407 (6th Cir. 2024).

Here, the Amended Complaint asserts preemption and constitutional claims

that can be fully resolved without factual development. See Arizona v. United States,

567 U.S. 387 (2012) (preemption questions decided on the pleadings). Courts have

resolved similar climate change lawsuits on the pleadings. See, e.g., City of New York,

993 F.3d at 88–89; Bucks, 2025 WL 1484203, at *6 (collecting cases). And because no

factual development is needed, other federal district courts are presently adjudicating

the same preemption and constitutional claims brought by the United States against

other States without discovery. See United States v. New York et al., 2025 WL

2208941, at *4 (S.D.N.Y. Aug. 4, 2025) (setting pre-discovery summary judgment

briefing schedule because the United States “made a plausible showing that the mo-

tion may be decided on facts that are either indisputable or facts of which the Court

may take judicial notice”); United States v. Vermont, No. 2:25-cv-00463, ECF 23 (D.

Vt. June 30, 2025) (setting a scheduling order without discovery). Just like these

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courts, this Court should resolve this case on summary judgment because no factual

development is needed.

Michigan suggests that the “barren factual record” here counsels against adju-

dicating this case. Mem. PageID.153. But Michigan does not explain what specific

facts would be needed to ripen this case. It points to only one “core undisputed fact”

that “Michigan has not sued anyone,” Mem. PageID.142, but “action is not a prereq-

uisite to challenging the law,” Driehaus, 573 U.S. at 159.

Moreover, as evident by Michigan declining to challenge the merits of the

United States’ claims, the “legal issues” here are not “complex.” Mem. PageID.153.

On the contrary, a “growing chorus of state and federal courts” agree with the United

States that state-law claims seeking to regulate global greenhouse gases are

preempted. City of Charleston, 2025 WL 2269770, at *2 (quoting Bucks, 2025 WL

1484203, at *6) (citing cases).

B. Deferring review now imposes significant hardship on the United States.

The hardship here flows from the nature of the alleged harm: Michigan’s threatened

interference with the United States’ sovereignty. “Federalism, central to the consti-

tutional design, adopts the principle that both the National and State Governments

have elements of sovereignty the other is bound to respect.” Arizona, 567 U.S. at 398;

see also Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601

(1982) (recognizing cognizable “sovereign interests” when governments “demand []

recognition from other sovereigns”). Because the United States has established Arti-

cle III injury by alleging a threat to its sovereign authority, which strikes at the heart

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of how our nation functions, it comfortably clears the low hurdle of suffering hardship

if a decision is delayed. See Airline Pros. Ass'n of Int'l Bhd. of Teamsters, Loc. Union

No. 1224, AFL-CIO v. Airborne, Inc., 332 F.3d 983, 988 n.4 (6th Cir. 2003) (noting

that “the size of the harm matters tremendously in determining whether a claim is

ripe”); see also Yellen, 112 F.4th at 404–07 (analyzing ripeness of enumerated-powers

and Fourth Amendment claims alongside First Amendment claim); Ameron, Inc. v.

United States Army Corps of Eng’rs, 809 F.2d 979, 987 (3d Cir. 1986) (noting that “the

Supreme Court has adopted a uniquely flexible approach to ripeness in the separation

of powers context” similar to the “First Amendment”) (citing Buckley v. Valeo, 424

U.S. 1, 113–18 (1976)).

Indeed, interfering with federal authority here not only injures the United

States but it inflicts a “per se irreparable harm.” Texas, 719 F. Supp. 3d at 695; see

also United States v. Arizona, 641 F.3d 339, 366 (9th Cir. 2011), rev’d on other grounds

by 567 U.S. 387 (2012) (finding irreparable harm to the United States if Arizona en-

forced its preempted laws); see also Midwest Title Loans, Inc. v. Ripley, 616 F. Supp.

2d 897, 908 (S.D. Ind. 2009) (finding a violation of a structural right, there Dormant

Commerce Clause, an “irreparable injury for the purposes of considering an injunc-

tion”) (collecting cases), aff'd sub nom. Midwest Title Loans, Inc. v. Mills, 593 F.3d

660 (7th Cir. 2010). And “the standard for ripeness requires a lesser showing of hard-

ship” than the “irreparable harm” “standard for obtaining injunctive relief[.]” Sys.

Application & Techs., Inc. v. United States, 691 F.3d 1374, 1385 (Fed. Cir. 2012).

The hardship to the United States in deferring adjudication is particularly

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severe in the foreign affairs context, where the United States must speak with “one

voice.” AC ¶ 100, PageID.90. Greenhouse gas emissions pose a “uniquely interna-

tional problem.” City of New York, 993 F.3d at 85, 92 (quoting Texas Inds., Inc. v.

Radcliff Materials, Inc., 451 U.S. 630, 641 (1981)) (cleaned up). Such concerns in-

clude, for example, formulating and implementing foreign policy for the “stabilization

of greenhouse gas concentrations in the atmosphere at a level that would prevent

dangerous anthropogenic interference with the climate system.” AC ¶ 99, PageID.90

(quoting United Nations Framework Convention on Climate Change, May 9, 1992, S.

Treaty Doc. No. 102-38, 1771 U.N.T.S.). Michigan’s “efforts to impose state law lia-

bility” on global energy producers “complicate” these relations. Id. ¶ 100, PageID.90.

Forcing the United States to stand by and wait to defend its sovereign interest in

controlling foreign affairs would impose a clear hardship on its diplomatic efforts. See

Fischer v. Thomas, 52 F.4th 303, 309 (6th Cir. 2022) (finding additional harm for

ripeness purposes where an “ongoing investigation” that could lead to a future en-

forcement action had a present impact on the affairs of affected parties).

The hardship analysis must account for “heightened uncertainty” from delayed

resolution of purely legal issues. Nebraska Pub. Power Dist. v. MidAmerican Energy

Co., 234 F.3d 1032, 1038 (8th Cir. 2000). Courts have thus found sufficient hardship

for purposes of prudential ripeness when delay would lead to legal uncertainty. See

id. (collecting cases); see also Pacific Gas and Elec. Co. v. State Energy Resources Con-

serv. & Dev. Com'n, 461 U.S. 190, 201–02 (1983) (acknowledging hardship due to

uncertain state of law). Such is the case here where the United States is entitled to

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know now whether federal law preempts Michigan from pursuing crippling damages

against an industry that is critical to our nation. See Exec. Order No. 14260, § 1, 90

Fed. Reg. 15,513 § 1 (Apr. 8, 2025) (explaining that energy is critical “to the national

and economic security of the United States, as well as our foreign policy”).

Michigan is misguided in its analysis of hardship to the United States “from

deferring judicial review until” after it files its climate change lawsuit. Mem.

PageID.154 (emphasis added). According to the State, “[i]n the event Michigan files

suit in state court seeking relief under state law,” this Court would then need to de-

termine whether to abstain under Pullman, 312 U.S. 496. Mem. PageID.140 n.1,

PageID.157 (previewing arguments under Pullman abstention that applies primarily

where “state-law questions” should be “decided by state courts,” Jones v. Coleman,

848 F.3d 744, 750 (6th Cir. 2017)). But the federal government sued in federal court

to vindicate its federal interests in the supremacy of federal law. The United States

plainly suffers hardship if it cannot vindicate those interests before this Court. See

Michigan, 635 F. Supp. at 946 (“The United States' right to bring such actions in the

district courts as sovereign to protect its interests and policies is well established.”).

Michigan also argues no hardship because “the United States is not altering

its daily affairs or refraining from doing anything because of the possibility that Mich-

igan could someday file” its lawsuit. Mem. PageID.154. That is the wrong standard

to assess hardship to the federal sovereign. Interfering with the United States’ exclu-

sive authority, as explained, inflicts not only hardship on the United States but ir-

reparable injury. See Texas, 719 F. Supp. at 695. Michigan thus misses the mark by

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relying on cases (Mem. PageID.154–55) where private parties claimed hardship. 10 Cf.

Abbott v. Perez, 585 U.S. 579, 602 n.17 (2018) (noting that, unlike a private party, the

government suffers an “irreparable harm” when it cannot carry out the orders of its

elected representatives). In all events, the United States presents “general factual

allegations” that Michigan interferes with its day-to-day foreign affairs. Lujan, 504

U.S. at 561; see AC ¶¶ 100–02, PageID 90–91 (alleging interference to ability to speak

with “one voice”).

C. Michigan’s other prudential counterarguments fail. Michigan contends that

“all the challenges [the United States] raises now could be raised by the actual de-

fendants (if and when they are named).” Mem. PageID.155. But the United States is

uniquely positioned to protect its distinct federal interests and vindicate the suprem-

acy of federal law. No private party can vindicate these interests.

Michigan downplays the United States’ interests in regulating global green-

house gas emissions by mischaracterizing this lawsuit as one proceeding “in parens

patriae to protect the fossil fuel industry” only. Mem. PageID.155; id. at PageID.156

(similar). That is short-sighted. The United States seeks to protect the well-being of

its citizens, AC ¶ 7, PageID.66, and it is “common sense and basic economics” that

lawsuits like Michigan’s make energy development more costly, City of New York, 993

F.3d at 93 (noting that the “increased cost of conduct will make that conduct less

10See Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 805, 810 (2023) (nonprofit
trade association); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013) (“United States
persons”); Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998) (nonprofit); Ohio Adult
Video Ass’n v. U.S. Dep’t of Just., 71 F.3d 563, 568 (6th Cir. 1995) (business trade association);
Google, Inc. v. Hood, 822 F.3d 212, 225–26 (5th Cir. 2016) (private business); Sherwin-Wil-
liams, 968 F.3d at 270 (private business).

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common”) (cleaned up). These basic economics apply to energy that the United States

has an interest in making “affordable and reliable.” Exec. Order No. 14260, § 1, 90

Fed. Reg. 15,513 § 1 (Apr. 8, 2025).

Lastly, Michigan does not contend with pre-enforcement case law beyond a few

fleeting references. See, e.g., Mem. PageID.156 n.5. Michigan states that it is “not

aware of any cases allowing pre-enforcement challenges except by potential defend-

ants[],” but it is simply wrong to suggest that only those directly subject to enforce-

ment can establish standing for a pre-enforcement challenge. See, e.g., Pac. Capital

Bank, N.A. v. Connecticut, 542 F.3d 341, 350–51 (2d Cir. 2008) (plaintiff could estab-

lish standing for pre-enforcement challenge alleging preemption even if plaintiff was

not subject to enforcement proceedings because “the existence of an intermediate link

between” the conduct and the injury is sufficient).

CONCLUSION

After States and municipalities have filed dozens of materially identical com-

plaints around the country, after nearly ten years of climate change litigation, after

almost one year since retaining experienced climate change counsel to “vigorously

pursue[]” climate change claims, and after refusing to disavow its intent to bring

state-law claims for alleged harms from global greenhouse gas emissions, Michigan

feigns ignorance about the claims its threatened lawsuit will raise. But the United

States has plausibly alleged that Michigan’s statements and actions and the “sur-

rounding factual circumstances” present a “credible threat” that Michigan will file a

climate change lawsuit to regulate global greenhouse gases under state law. Nessel,

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117 F.4th at 848. That is enough for this case to proceed to the merits. Accordingly,

this Court should deny Michigan’s motion and allow the United States to seek to pro-

tect its sovereign interests from unlawful state interference.

Dated: September 29, 2025 Respectfully submitted,

ADAM R.F. GUSTAFSON

Acting Assistant Attorney General

ROBERT N. STANDER
Deputy Assistant Attorney General

JUSTIN D. HEMINGER
Acting Deputy Assistant Attorney General

/s/ John K. Adams

JOHN K. ADAMS
Chief of Staff and Senior Counsel
Environment and Natural Resources Div.
U.S. Department of Justice Post Office Box
7415 Washington, D.C. 20044
(202) 353-5905
John.Adams3@usdoj.gov

Counsel to the United States

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CERTIFICATE OF COMPLIANCE

This opposition complies with the word limit of W.D. Mich. LCivR 7.2(b)(i) be-

cause, excluding the parts exempted by W.D. Mich. LCivR 7.2(b)(i), it contains 9,448

words. The word count was generated using Microsoft Word.

/s/ John K. Adams

JOHN K. ADAMS
Chief of Staff and Senior Counsel
Environment and Natural Resources Div.
U.S. Department of Justice Post Office Box
7415 Washington, D.C. 20044
(202) 353-5905
John.Adams3@usdoj.gov

Counsel to the United States

34