The Supreme Court appeared to be splintered over how to decide a major climate litigation case from Colorado at oral arguments on Monday. The eight justices who heard the case—the first of its new term—signaled no clear consensus on how they will resolve the case, though most of them were more skeptical of the fossil fuel companies that asked the court to intervene.
The case, Suncor Energy v. County Commissioners of Boulder, pits two fossil fuel companies against the town of Boulder, Colorado. The town sued Suncor and Exxon Mobil in state court in 2019 for damages over the harmful effects of climate change, arguing that their products contributed to a range of climate-related woes and that they knowingly lied about the harms they imposed on the community for decades. Boulder, like many Western communities, is wrestling with higher drought and wildfire risks, all of which it blames on oil and gas production.
The two companies have sought to squelch the litigation on multiple grounds. One is statutory: They argue that Congress preempted state and local governments from suing them for climate-related harms by enacting the Clean Air Act, which sets up a national regulatory scheme for air pollutants like carbon emissions. The other is constitutional. Boulder can’t sue them for alleged harms in one state caused by out-of-state oil and gas production on federalism grounds, the companies claimed.
Beyond the precise legal points, the companies have also leaned heavily on the near-existential consequences that they will face from litigation. “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,” Kannon Shanmugam, who argued for the companies, told the justices in his opening remarks.
At least one justice appeared to strongly sympathize with the companies’ stance. Justice Brett Kavanaugh told Shanmugam that he thought a raft of previous Supreme Court rulings “make crystal-clear that interstate air and water pollution are matters for federal law unless Congress specifically preserves state law.” That position would strongly favor the companies since Congress did not explicitly carve out this type of litigation for the states to pursue in state courts.
Justice Amy Coney Barrett also appeared to lean toward the companies’ position on preemption. Her apparent position was slightly more balanced than Kavanaugh’s, suggesting that Congress had not displaced the states altogether with the Clean Air Act. Barrett suggested, by way of a hypothetical, that “here was some room for some state law nuisance claims for pollution, but it was just much more circumscribed,” perhaps excluding the broad case that Boulder is pursuing here.
She also appeared sympathetic toward Suncor’s arguments on federalism and extraterritoriality issues with the Colorado lawsuit. “Everybody agrees that state tort law is a form of regulation,” she told Kevin Russell, who argued on behalf of the town. “But what if Colorado passed a law purporting to cap emissions in the other 49 states? Is there any principle that would prevent that?”
Russell argued that they were fundamentally different methods of approaching the same actions. A lawsuit like this one, he argued, “doesn’t prohibit them from engaging in the conduct. It requires them to internalize a portion of the cost of their activities by paying for some of the damage that those activities inflict.” Russell added that the companies “ultimately don’t disagree with that, they just say this case is social because it involves water and air.”
Boulder argued that their lawsuit, which is based on traditional nuisance claims, was hardly novel or ground-breaking. They rejected the companies’ allegations that the town was trying to enforce Colorado law in other states against their will, or that Congress had preempted such lawsuits altogether. “It has never been thought that only federal law can provide a remedy, simply because the tortious conduct and the injury occurred in different states, because the harm was widespread, the damages were large, or the defendants were part of an important industry,” Russell told the court in his own opening statements.
Other members of the court’s conservative majority appeared to lean toward that stance, as well. Chief Justice John Roberts sounded skeptical about the federalism argument in particular, quizzing Shanmugam on a hypothetical in which someone from one state throws a rock at someone in another state. “[The rock] wasn’t directed at State A,” he asked. “But, if you’re in B and you’re aiming at C, but you hit somebody in A, that doesn’t make a difference, does it?”
Shanmugam agreed in principle, but countered that it was too difficult to establish who threw the rock at all, so to speak, in this case. The companies have argued at every stage of litigation that Boulder can’t prove that their particular emissions caused the harms for which the city is suing. Shanmugam said that there was no support in precedent for creating such an exception to what he described as the “venerable prohibition against extraterritorial regulation.”
The chief justice also had pointed questions for Russell and Boulder. “Presumably if you prevail, the next day, a municipality in every single state will file a lawsuit [and] they’ll probably copy your pleadings,” Roberts asked him. “How would you think that will work out on the ground?” But this may have been a less hostile question than it sounds: It gave Russell the opportunity to point out past examples of major multistate litigation, such as asbestos litigation in the 1990s.
Justice Elena Kagan made a similar comparison in her own questions. “In multiple respects, this suit appears to be based on the old 1990s tobacco suits that were brought by states and local governments,” she told Shanmugam, where they alleged that tobacco companies had misled the public about the harm of their product. “I suppose the opioid litigation more recently follows the same model,” she added. “This is chapter 3.”
The court’s liberal justices, for their part, appeared skeptical of resolving anything at this stage—either by punting on procedural grounds or by remanding it to the Colorado Supreme Court for further clarification on certain aspects of the case. Justice Neil Gorsuch also did not seem to embrace the companies’ preemption argument. At one point, he implicitly compared the case to one where a car manufacturer’s negligence in one state caused harms in another state. “Is there anything anomalous, in your mind, to applying state law here to worldwide conduct?” he asked Russell, who replied no.
Finally, Justice Clarence Thomas’s questions were more Delphic than usual and largely focused on questions of jurisdiction. That aspect of the case could still be decisive to the outcome. One of the questions presented to the court is whether it has jurisdiction to decide the case at all. Suncor asked the justices to intervene after the Colorado Supreme Court rejected its motion to dismiss the case. Since the companies may yet prevail at trial or another later stage of the litigation, Boulder argued that it would be inappropriate and unlawful for the Supreme Court to intervene now.
The jurisdictional question could allow the justices to punt on this case without reaching the ultimate merits about preemption, federalism, or climate change harms. Another complicating factor is the last-minute recusal of Justice Samuel Alito, who announced last month that he would not be participating in the case. The court does not generally shirk cases because of recusals from one justice. At the same time, Alito’s absence could further complicate efforts to form a five-justice majority by making a 4–4 deadlock more likely.
Even a 4–4 split is hard to predict, however, because the justices appeared to be pulled in multiple directions on the case, and no clear consensus emerged from oral arguments. Sending it back to Colorado state courts might be the likeliest outcome by default. After all, if the court is unable to reach a decision in this particular climate litigation case, they will have no shortage of future ones to revisit the matter.
