US supreme court hears big oil’s bid to block climate damage lawsuits

The US supreme court begins its new nine-month term hearing arguments Monday in a high-stakes case in which big oil companies are attempting to strike a fatal blow against lawsuits that seek to hold them accountable for the climate crisis.

In Suncor Energy versus the County Commissioners of Boulder County, local officials in Boulder are suing Suncor Energy and ExxonMobil in state court to force the companies to share a portion of the costs that climate change has imposed on local taxpayers. However, Exxon and Canada-based Suncor are arguing that federal law prevents state courts from hearing Boulder’s climate change lawsuit.

If the supreme court justices side with Boulder or decide that the case is not in their jurisdiction, then it would continue in state court. But if the fossil fuel industry convinces the justices, the decision could apply not only to the Boulder case, but also to dozens of other climate cases brought by state and local governments around the US.

“The hope of the industry side is that this is going to be the death blow,” said Dennis Fan, the founder and director of the Appellate Litigation Clinic at Columbia Law School who wrote an amicus brief in the case. “The industry is going for the home run, they’re going for the grand slam. They’re thinking, ‘if we win this argument, there will never, ever be climate change litigation again.’”

Boulder officials filed a lawsuit in Colorado court in 2018 arguing that Exxon and Suncor concealed and misrepresented to the public what they knew about the damage that burning fossil fuels would do to the climate, and that they should pay for the resulting costs of disasters. Initially, the firms sought to have the case moved to federal court. Then when the Colorado supreme court allowed Boulder’s case to make its way toward trial in state court, Exxon and Suncor appealed that ruling up to the supreme court arguing it should be dismissed on grounds of federal preemption..

Typically, cases must be decided by lower courts before reaching the supreme court, but the justices agreed to hear this case while the state case is ongoing. “That’s an incredibly weird thing to have happen,” Fan said.

The supreme court will consider whether it has proper jurisdiction to hear Boulder’s case right now, and whether federal law preempts Boulder’s case from being heard in state court.

Congress has the power to pass federal laws that invalidate state laws, but the question is whether there are any federal laws that invalidate state climate cases. “They’ve had a little bit of difficulty identifying exactly what that source of federal law is,” Fan said. For instance, the fossil fuel companies claim that the federal Clean Air Act pre-empts Boulder’s case from state court, even though the law specifies that “air pollution control at its source is the primary responsibility of states and local governments”.

So the fossil fuel companies in their brief claimed that supreme court decisions from a century ago suggested that federal courts have power to hear environmental cases, even without federal laws on the books, and that these decisions created a “federal common law” governing environmental lawsuits across state lines. They asserted that this federal common law is still in effect and exists in the “structure of the Constitution” even though the federal Clean Air Act has since declared states have primary jurisdiction over local air pollution.

The supreme court has not historically agreed with the argument the oil companies are making, Fan said. He pointed to the tobacco and opioid companies that previously faced state public nuisance cases. “For decades, the tobacco industry tried to get the supreme court and other courts to stop state court litigation from happening against the tobacco industry, and they failed every single time,” he said.

As recently as April, the supreme court decided in Hencely v Fluor Corp that “there is no federal pre-emption [in isolation] without a constitutional text or a federal statute to assert it”.

Climate advocates and wildfire survivors were planning a rally Monday morning outside the supreme court in Washington DC.

Daryl McCool, an artist who lost her home when the 2021 Marshall fire destroyed her neighborhood in Boulder county, Colorado, is not involved in the case but planned to attend the rally. The fire was fueled by record warmth and extreme drought that scientists found were intensified by climate change. The fire caused damage estimated at more than $2bn, and a recent report estimated that climate change could cost Colorado up to $37bn by 2050.

“The case itself is meaningful because it affects every single human, every single creature, it affects everyone that is on this earth,” McCool said. “At this point in time, we’re seeing [these companies] … they’re not willing to change, and so they need to be held accountable.”

She hopes Boulder has its day in court so a wider audience can learn how the fossil fuel industry deceived the public. “We’re not going to hear [a decision] for a while, but I do hope that the supreme court says that this case can move forward on the state level,” she said.

The supreme court has six conservative justices and three liberal justices, however one conservative justice, Samuel Alito, has recused himself from the case. Alito did not give a reason, but his decision came after calls for him to step aside due to stock holdings in fossil fuel companies. He doesn’t own stock in Suncor Energy or ExxonMobil, but does hold stock in ConocoPhillips and Phillips 66, which critics say could indirectly benefit if the court rules in favor of the fossil fuel industry.

The Trump administration has sided with the oil companies and asked for 10 minutes of argument time, which Fan said is typical for supreme court cases that involve federal amicus briefs.

A ruling is expected next summer.

The Guardian wp:paragraph