Supreme Court Risks Deadlock In Blockbuster Climate Case

The Supreme Court appeared potentially at an impasse on Monday over whether federal law bars local governments from suing fossil fuel companies for climate damages.

If the court can’t form a majority, dozens of climate cases across the country would continue forward with looming question marks about their legality. At least four justices expressed skepticism about the oil industry’s argument that the Clean Air Act explicitly prevents such lawsuits against polluters.

The blockbuster case opening the court’s new term — Suncor v. Boulder, a lawsuit brought by several Colorado localities against Suncor and ExxonMobil — has significant stakes. The suit is just one of three dozen filed around the country that oil companies have argued could create “ruinous” liability for their industry.

The high court heard the appeal with just eight members after Justice Samuel Alito recused himself one week before arguments. If the remaining justices split 4-4, no nationwide precedent would be set, meaning some of the lawsuits would move toward trial while others could be struck down by state judges.

The court’s liberal wing was most vocally critical of arguments from the oil companies and the Trump administration that federal law preempts state laws and that Congress would have to explicitly authorize states to pursue state law claims like the ones at stake in the climate cases.

“It’s like, wow, like, where is the text for that? Where’s the support for that? Where’s the precedent for that? Where’s the anything for that?” said Justice Elena Kagan.

Kagan and others drew parallels between Boulder’s climate case and prior lawsuits against the tobacco and opioid industries in which states and localities won significant damages.

Chief Justice John Roberts also indicated some sympathy with Boulder’s suit, citing mass torts and internet-related litigation.

“There are a lot of familiar situations where conduct outside of a state has broad effects among other states and all that, and yet we allow state courts in a particular state to bring litigation that affects that,” Roberts said. “I guess I’m not quite sure what makes this situation different from all those other ones where we’ve allowed them to proceed in state court.”

Deputy Solicitor General Sarah Harris, arguing for the Trump administration in support of the oil companies, argued Boulder’s lawsuit “egregiously exceeds constitutional limits on state authority.”

However, Roberts later expressed concern there would be an explosion of cases if the local governments are allowed to sue.

“Presumably if you prevail the next day, a municipality in every single state will file a lawsuit,” Roberts told Kevin Russell, the attorney for the communities.

“I don’t think there’s anything in the Constitution that says preemption arises from whenever a state law, if copied in other states, could cause a lot of litigation,” Russell replied.

Kannon Shanmugam, an attorney representing the oil companies, argued there is no limit to who could be sued under Boulder’s theory.

“Boulder could tag me with personal jurisdiction when I am in Colorado in two weeks and sue me on a nuisance claim for refilling my car and thereby contributing to global climate change,” he said.

Justice Clarence Thomas questioned Russell as to whether there would be any limits to who could be sued, asking, “You could just as easily sue large retailers of these products?”

Potentially, Russell replied. “When lots of people act together to cause widespread harm, it is not uncommon for multiple different defendants to be potentially liable,” he said.

Aside from Roberts’ words of support for Boulder’s position, it was not clear whether any of the other conservative justices might side with Boulder over the oil companies.

Justice Brett Kavanaugh roundly rejected his colleagues’ assertions, saying the court has “consistently said that air and water pollution are different.” Kavanaugh cited four earlier Supreme Court decisions he said “make crystal clear that interstate air and water pollution are matters for federal law unless Congress specifically preserves state law.”

Still, Kavanagh noted “the wrinkle” for the companies — and a “little bit of a problem” for them — is that the court in 1987’s International Paper Co. v. Ouellette allowed Vermont landowners to sue a New York paper mill for its wastewater discharges under New York state law.

Justice Neil Gorsuch questioned the effect of EPA’s recent decision to “disclaim” the power to regulate greenhouse gases from motor vehicles, and more recently from stationary sources.

It was unclear if there were enough justices to vote to sideline the issue by deciding the Supreme Court does not yet have the authority to review the matter — a question the justices added to the case after granting Suncor’s appeal. Thomas did ask Shanmugam and the Trump administration for their take, but did not ask Boulder, which had argued that the case was not yet ripe.

Federal law generally allows the Supreme Court to hear only final rulings from the state supreme courts. The Colorado Supreme Court had ruled only that Boulder’s case could move to trial, making this appeal “interlocutory.”

The liberal justices appeared uncomfortable with accepting the case. Justice Sonia Sotomayor pressed Shanmugam on why they should not return the case to the Colorado courts for a decision on whether the oil companies can be held financially responsible for climate impacts.

“Here, the injury is not immediate to you,” she told him. “You still have appellate rights below that can protect any federal claims you have.”

Shanmugam interjected that the oil industry’s injury “is immediate,” but Sotomayor cut him off. “Because you’re spending money for litigation,” she said, “but I don’t know that we’ve ever talked of spending money on litigation as a constitutional injury.”

Justice Ketanji Brown Jackson raised a similar question.

“I wonder whether we should be considering matters like this essentially piecemeal,” said Jackson. “Why shouldn’t we wait and hear all of these claims once the state courts are done with their federal considerations?”

There’s too much at stake, replied Shanmugam. “I would submit that given the extraordinary magnitude of these cases, where in each of these cases plaintiffs are seeking billions of dollars of damages, that we need an answer to this question sooner rather than later.”

The court took a similar delay tack the last time it took up the question of oil companies’ liability for climate change. It stopped short of delivering a death blow to lawsuits like Boulder’s in 2021, but did give the industry another shot at killing the cases.

Supporters of the climate lawsuits rallied outside the courthouse after the arguments. Russell said it is “difficult and dangerous” to predict an outcome from Supreme Court arguments, but said Roberts “asked hard questions on both sides, and we’re hopeful that he will see things our way.”

He added if the court rules in Boulder’s favor, “other states and localities will have the opportunity to try to get the fossil fuel industry to bear their portion of the burden of climate change.” He said his clients “are determined to see this through.”

A ruling is expected by the end of June, but could come sooner.

Anthony Cruz contributed to this report.