The US supreme court began its new nine-month term hearing arguments on Monday in a major case in which big oil companies attempted to strike a fatal blow against lawsuits that seek to hold them accountable for the climate crisis.
After the almost two hour hearing, while it was not yet clear which way the justices were leaning, experts said the court may find it challenging to write a majority decision siding with industry.
In Suncor Energy Inc v County Commissioners of Boulder County, local officials in Boulder are suing Suncor Energy and ExxonMobil in state court to force the companies to share a portion of the costs that the climate crisis has imposed on local taxpayers. However, Exxon and Canada-based Suncor are arguing that federal law prevents state courts from hearing Boulder’s climate change lawsuit.
If the supreme court justices side with Boulder or decide that the case is not in their jurisdiction, then it would continue in state court. But if the fossil fuel industry convinces the justices, the decision could apply not only to the Boulder case, but also to dozens of other climate cases brought by state and local governments around the US.
As a result of Justice Samuel Alito’s recusal from the case, there are only five conservative justices weighing in, so Boulder county must potentially only convince one conservative justice to win, assuming the three liberal justices back Boulder. Some noted that the justices focused their questions primarily on the merits of the case rather than askingif the court had jurisdiction to hear it, suggesting they will make a decision on the question of whether federal law pre-empts Boulder’s state climate case.
Kannon Shanmugam, a lawyer for the fossil fuel companies, told the justices that climate change was a pressing issue, but state cases such as the one filed by Boulder were the wrong way to resolve it, and the issue should be left to lawmakers. He argued that if the cases were heard in state courts, it would allow a high number of lawsuits to be filed. “The breadth of Boulder’s argument is astonishing,” he said.
Shanmugam argued that climate change is different from other interstate pollution cases “because the claim runs through global climate change” and involves anyone who uses fossil fuels worldwide.
Kirti Datla, the director of Earthjustice’s strategic legal advisory program, said the industry lawyer needed five justices to agree with him. “Some of the justices seemed to be persuaded by the idea that climate change is different, or the sheer number of these suits creates a problem of a different kind,” Datla said. But she added that the justices were struggling to come up with reasons based in law that would support the industry arguments. “It’s always been Suncor’s task to provide them with clear answers to those questions, and I didn’t hear clear answers to those questions in argument.”
Dennis Fan, the founder and director of the Appellate Litigation Clinic at Columbia Law School who wrote an amicus brief in the case, said it was too close to call, but he was concerned for the future of the climate cases. “They focused more on the merits,” he said. “That had me much more worried for Boulder.”
Fan said the industry hope this case is going to be the “death blow” to this type of lawsuit.“The industry is going for the home run … They’re thinking, ‘If we win this argument, there will never, ever be climate change litigation again.’”
Boulder officials filed a lawsuit in Colorado court in 2018 arguing that Exxon and Suncor concealed and misrepresented to the public what they knew about the damage that burning fossil fuels would do to the climate, and that they should pay for the resulting costs of disasters. Initially, the firms sought to have the case moved to federal court. Then when the Colorado supreme court allowed Boulder’s case to make its way toward trial in state court, Exxon and Suncor appealed that ruling up to the supreme court arguing it should be dismissed on grounds of federal pre-emption.
Typically, cases must be decided by lower courts before reaching the supreme court, but the justices agreed to hear this case while the state case is ongoing. “That’s an incredibly weird thing to have happen,” Fan said.
The supreme court considered whether it had proper jurisdiction to hear Boulder’s case right now, and whether federal law pre-empted Boulder’s case from being heard in state court.
Congress has the power to pass federal laws that invalidate state laws, but the question is whether there are any federal laws that invalidate state climate cases. “They’ve had a little bit of difficulty identifying exactly what that source of federal law is,” Fan said. For instance, the fossil fuel companies claim that the federal Clean Air Act pre-empts Boulder’s case from state court, even though the law specifies that “air pollution control at its source is the primary responsibility of states and local governments”.
So the fossil fuel companies in their brief claimed that supreme court decisions from a century ago suggested that federal courts have power to hear environmental cases, even without federal laws on the books, and that these decisions created a “federal common law” governing environmental lawsuits across state lines. They asserted that this federal common law was still in effect and existed in the “structure of the Constitution” even though the federal Clean Air Act has since declared states have primary jurisdiction over local air pollution.
Shanmugam presented the constitutional theory to the justices on Monday, but Kevin Russell, Boulder’s attorney, repeatedly drew their attention back to the constitution. Russell argued that the industry attorney was asking them to “jump through a number of hoops” to answer a complicated question. “Instead, I would suggest that the court can and should directly answer the question: what in the constitution implicitly prohibits Colorado or any other state’s law from applying to these claims?”
Datla of Earthjustice said some conservative justices appeared to agree with Boulder on this point. “Chief Justice [John Roberts] and Justice [Neil] Gorsuch seemed to ask questions that indicated that they thought that broad constitutional rule was complicated at a minimum,” she said.
Datla said the reaction of the conservative justices suggested they would find it difficult to write a decision supporting Suncor. “The fact that there wasn’t a clear position that the conservative justices seems to coalesce around as to which one of Suncor’s arguments was right is, I think, telling that maybe they don’t all think this is a foregone conclusion.”
The supreme court has not historically agreed with the argument the oil companies are making, Fan said. He pointed to the tobacco and opioid companies that previously faced state public nuisance cases. “For decades, the tobacco industry tried to get the supreme court and other courts to stop state court litigation from happening against the tobacco industry, and they failed every single time,” he said.
Climate advocates and wildfire survivors rallied on Monday morning outside the supreme court in Washington DC.
Daryl McCool, an artist who lost her home when the 2021 Marshall fire destroyed her neighborhood in Boulder county, Colorado, is not involved in the case but planned to attend the rally. The fire caused damage estimated at more than $2bn, and a recent report estimated that the climate crisis could cost Colorado up to $37bn by 2050. “The case itself is meaningful because it affects every single human, every single creature, it affects everyone that is on this earth,” McCool said.
The Trump administration has sided with the oil companies and has carried out a series of pollution regulations, including revoking the 2009 bedrock scientific determination that gives the government the ability to regulate climate-heating pollution. .
A ruling is expected next summer.
