The U.S. Supreme Court began its new term on Monday by hearing oral arguments on whether Boulder County, Colorado, can sue fossil fuel companies under state law for climate change damages. The high-stakes case could impact dozens of similar lawsuits nationwide, while a recusal leaves the court short-handed.
Supreme Court Hears Arguments on Boulder Climate Lawsuit
The U.S. Supreme Court kicked off a new term Monday with oral arguments in a major case concerning whether communities like Boulder can sue fossil fuel companies for contributing to climate change. The dispute centers on a lawsuit brought by the city and county of Boulder, Colorado, against energy giants Exxon Mobil and Suncor Energy.
Boulder officials argue that taxpayers should not have to bear the costs local governments incur from wildfires, severe storms, extreme heat, and flooding. The lawsuit alleges that the companies deceived consumers about the environmental impacts of greenhouse gases produced by their products. Energy companies deny the claims and maintain that global climate change is an inherently national and international issue that cannot be litigated in state courts.
Dozens of similar lawsuits have been filed across the country, putting billions of dollars at stake. During Monday’s arguments, the justices questioned lawyers from both sides on broad legal questions regarding federal power versus state authority over environmental policy. Suncor and Exxon contend that such legal actions are impermissible because a jury in Colorado lacks the authority to police the worldwide climate.
Marshall Fire Survivors and Legal Experts Press for Accountability
The Marshall Fire swept across Boulder County on Dec. 30, 2021, destroying more than 1,100 homes and a hotel while killing two people. Daryl McCool, another local resident whose home was destroyed in the blaze, emphasized the human cost of climate-related disasters. McCool noted that the intense heat melted bicycles and coins, leaving behind virtually nothing.
“This case represents whether or not we believe as a society that corporations should be held to the same standards that all of us are, right? If you know you are going to cause harm, and you don’t tell someone, then you should help clean up that harm.”
Corey Riday-White, of the Center for Climate Integrity, via Wskg
Justices Question State Authority and the Threat of Nationwide Litigation
Members of the high court expressed mixed views on whether federal law blocks Boulder County from bringing state-law claims. Chief Justice John Roberts raised practical concerns about the volume of future litigation if Boulder is permitted to proceed, asking the city’s lawyer if a municipality in every state would file suit the following day.
Justice Sonia Sotomayor pointed to past precedent, noting that the high court permitted similar suits to proceed in state courts under a 1987 decision involving the Clean Water Act. Conversely, Justice Brett Kavanaugh observed that a wall of precedent establishes interstate pollution disputes as matters of federal law.
At one point, Justice Elena Kagan, a liberal member of the bench, drew a parallel between climate lawsuits and the permitted waves of litigation directed at opioid manufacturers and tobacco companies. Responding to these analogies, the energy firms argued that opioid and tobacco cases featured a much more direct link between the items sold and the injuries suffered by consumers.
Kannon Shanmugam, the attorney representing Suncor and Exxon Mobil, argued that the sheer magnitude of roughly three-dozen similar lawsuits nationwide makes a definitive high-court ruling necessary now. Meanwhile, Boulder’s legal team and several justices, including Ketanji Brown Jackson, noted that the case arrived at the Supreme Court before lower courts in Colorado fully litigated the energy companies’ federal defenses.
Justice Alito Recuses Himself as Potential Split Threatens Legal Limbo
Justice Samuel Alito has recused himself from participating in the case.
Alito’s absence leaves an eight-member bench, creating the possibility of a 4-4 tie vote. A deadlocked ruling would leave the underlying legal issues unresolved while affirming the Colorado Supreme Court ruling that allowed Boulder’s lawsuit to move forward, keeping both energy companies and local governments in legal limbo without establishing nationwide precedent.
Todd Zywicki is a professor at the Antonin Scalia Law School at George Mason University.