Justices divided over climate change case and liability for oil producers
The Supreme Court appeared divided and searching for consensus Monday in a major case involving climate change that could determine whether local governments can sue producers of fossil fuels for potentially billions of dollars in damages over alleged marketing deception and the impacts of global warming.
Boulder, Colorado, which brought the case against Exxon Mobil and Suncor Energy, needs only four votes to win after Justice Samuel Alito recused himself from the case without explanation. A victory for the city would clear the way for its claims -- and dozens of similar cases elsewhere -- to move forward in state courts but would likely not be the final word in the dispute.
"This case involves an unprecedented effort to use state law to regulate global conduct," argued Kannon Shanmugam, an attorney for the energy companies. "If Boulder's claims are allowed to go forward, some 90,000 municipalities across the country will have the ability to make national and international energy policy by asking juries to impose catastrophic damages on selected fossil-fuel producers."
During nearly two hours of oral argument, Shanmugam argued that the Constitution, federal law and Supreme Court precedent make clear that matters of air and water pollution are subject to federal law (and the EPA) -- not state-by-state rules.
The city and county of Boulder counter that the pursuit of financial damages is not about "regulating" or shutting down the companies but instead about recouping costs from alleged harms inflicted by deceptive marketing and dangerous side-effects of fossil fuels.
"When somebody in New York defames a citizen of Boulder on national television or somebody in California releases a computer virus on the Internet or a biological virus into the world and it causes mass damage in Colorado, it has never been thought that only federal law can provide a remedy," the city's attorney Kevin Russell argued.
Both sides also tangled over whether the Supreme Court should even be reviewing the case at all, since it has not yet gone to trial in Colorado. If the court were to gridlock 4-4, the case would proceed in state court and potentially return to the justices again later.
The court could also choose to make clear that state-law damages claims could go forward, or that federal law preempts the claims altogether.
Most of the justices appeared torn over what kind of decision to write.
Justice Elena Kagan, appearing sympathetic to Boulder's argument, likened the lawsuit to major class-action cases against tobacco companies and opioid drug manufacturers in states hit hard by fallout from widespread use of those products.
"I'm waiting to see the distinction," said Kagan, "because this complaint talks a lot about misrepresentations that are made by [the energy companies]."
Justice Brett Kavanaugh appeared most inclined to side with Exxon and Suncor, citing what he called a "wall of precedent" that supports blocking state lawsuits against the companies because air and water transcend state boundaries.
"We don't have to reinvent the wheel," Kavanaugh said, "because we've said this multiple times, and Congress presumably, when doing the Clean Air Act and Clean Air Act amendments, has relied on this court's precedents establishing that this kind of pollution is a federal law matter unless Congress speaks otherwise."
Chief Justice John Roberts asked tough questions of both sides.
"You would concede that there are some situations in which an individual who engages in conduct in State B causes harm to somebody in State A can be sued under the law of State A, right?" Roberts asked Shanmugam, suggesting Boulder's suit could be rooted in longstanding tradition.
"We would concede that," he replied.
Later, however, Roberts also raised concerns about the nationwide implications of allowing Boulder's suit to proceed.
"Presumably, if you prevail," he said, "just the next day, a municipality in every single state will file a lawsuit, they'll probably copy your pleadings, and then there will be at least 50, you know, different cities ... causes of action filed."
"The mere fact that there's going to be a lot -- there could be a lot of litigation, I don't think there's anything in the Constitution that says" the federal government can short-circuit the states," Boulder attorney Kevin Russell replied.
A decision in the case -- Suncor v Boulder -- is expected by the end of June 2027.
