The Supreme Court grappled Monday over the future of state lawsuits seeking to hold fossil fuel companies accountable for the costs of climate change.
In nearly two hours of oral arguments in the case, Suncor vs. Boulder, the justices focused on a procedural question over whether fossil fuel companies must face lawsuits over climate damages in state court, or if federal law precludes them.
Climate change itself was not front and center, but the case could be one of the biggest of the new term.
The city and county of Boulder filed a state lawsuit in 2018, aiming to hold Suncor Energy and Exxon Mobil responsible for costs associated with climate disasters, such as fires and floods, arguing that those companies deceived the public about the dangers of their products.
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The state lawsuits are one of the few ways forward for states and local governments seeking to address global warming and its effects, but an attorney for the fossil fuel companies told the justices that billions of dollars are at stake in similar lawsuits whose futures could be determined by the court’s ruling.
The justices did little to clarify Monday if they would allow the claim to move forward. The justices across the bench agreed the case was “complicated.”
Justice Brett Kavanaugh indicated his concern about the potential economic fallout of state climate lawsuits, saying a lawyer representing the city and county of Boulder was being cavalier about the issues that could arise.
“It’s going to bankrupt, you know, if there are enough of these, bankrupt these various defendants and certainly other defendants out there,” he said.
But other Republican-appointed justices seemed more ambiguous in their thinking on the case.
Chief Justice John Roberts noted that there are situations where issues that happen outside of a particular state are allowed to be litigated in that state, comparing it to litigation over the internet.
“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,” Roberts said.
At the same time, Roberts characterized Boulder’s lawsuit as an “effort to reduce emissions,” a point lawyers for the fossil fuel companies have argued.
Justice Samuel Alito, who owns stock in fossil fuel companies that could be affected by the decision, recused himself from the case last week and did not participate in the oral arguments.
That means only one Republican-appointed justice will need to vote with the three Democrat-appointed justices, who are likely to take Boulder’s side, in order for the case to be allowed to move forward in state court.
Justices Sonia Sotomayor and Ketanji Brown Jackson, both on the liberal wing of the court, signaled they wanted to see the case move forward in state court and questioned whether asking for a Supreme Court ruling was premature.
The Boulder case has not yet gone to trial and there hasn’t been a ruling on the underlying case. Jackson asked why the court shouldn’t wait to hear the case once the state court was finished with its considerations.
“When we think about the court’s determinations about which cases it should hear, I wonder whether we should be considering matters like this essentially piecemeal,” Jackson said.
Kannon Shanmugam, an attorney representing Suncor Energy, argued that the case “involves an unprecedented effort to use state law to regulate global conduct.”
Municipalities, he said, would have the ability to “make national and international energy policy” if cases like Boulder’s were allowed to move forward.
Shanmugam said fossil fuel companies are now facing roughly three dozen lawsuits with more being filed “by the week,” and argued that the amount of money at stake for the companies adds urgency to the Supreme Court’s decision.
“We need an answer to this question sooner rather than later,” he said.
Kevin Russell, the attorney representing the city and county of Boulder, argued that states have always had the power to address injuries that happen within their borders, even if the root of those injuries exist out of state.
There’s nothing in the Constitution, Russell argued, that prevents lawsuits at the state level even if the harm was widespread, the damages could be large, or the defendants are part of an important industry.
And, he contended, Boulder’s lawsuit was not aiming to prohibit fossil fuel companies from doing business. “It requires them to internalize a portion of the cost of their activities by paying for some of the damage that those activities inflict,” he said.
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