The Supreme Court is looking for a way to kill climate lawsuits
Vox · L · trust 62/100
They just can’t come up with a legal argument that would allow them to do so.
Gift Justice Neil Gorsuch and Chief Justice John Roberts. Win McNamee/Getty Images Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. Inside Chief Justice John Roberts are two wolves.
The first wolf is a staunch conservative who spent much of his career litigating on behalf of corporate interests. This wolf looks at a series of climate change lawsuits that could potentially cost the oil industry billions of dollars or more, and recoils in horror.
Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.
The second wolf is a judge tasked with following the law wherever it leads. And that wolf seemed baffled by the oil industry’s arguments in Suncor Energy v. County Commissioners of Boulder County , a Supreme Court case where two oil companies are asking the justices to shut down dozens of climate change lawsuits.
The Court’s decision in Suncor is likely to shape the future of climate litigation in the United States. If the oil industry prevails, that will probably shut down climate change-related suits in state courts — and it may shut them down entirely because it is unclear whether federal law allows these suits to proceed in federal court. If the oil industry loses, by contrast, it could face dozens of suits in state courts across the country seeking billions of dollars or more.
And the outcome in Suncor is likely to turn on which wolf shows up to the justices’ conference on how to decide the case. Roberts, who asked the most ambiguous questions at Monday’s oral argument in Suncor , clearly wants these lawsuits to disappear. But he also appeared doubtful that the oil companies’ weak legal arguments will allow him to make that disappearing act happen.
Notably, Justice Samuel Alito, who owns stock in oil and gas companies , is recused from hearing the case. So, in the likely event that all three of the Court’s Democrats hold together against the oil companies, Roberts would split the Court 4-4 if he decides to join them. That would leave the Court unable to render a decision, and a lower court opinion, which rejected the oil companies’ bid for lawsuit immunity, would remain in effect.
That said, at least two other justices asked questions suggesting that their votes may potentially be in play. Justice Clarence Thomas, who otherwise appeared sympathetic to the oil companies, repeatedly asked whether his Court has jurisdiction to hear Suncor in the first place. Meanwhile, while most of Democratic Justice Elena Kagan’s questions seemed to favor allowing the climate change lawsuits to proceed, she did ask some questions at the end that indicated that she may be looking for a narrow reason to hand the oil companies a win.
The bottom line is that it is difficult to predict how this case will turn out, as more than one justice asked questions that suggest that their vote is, at least, in play. But the outcome is likely to hinge upon the tension within Roberts — who both signaled that he wants the oil companies to win, but who also expressed deep skepticism of their primary legal argument.
Suncor is one of many lawsuits brought by state or local governments (in this case, the plaintiff is Boulder, Colorado) who’ve sued oil companies claiming that those companies should be liable for the harms caused by climate change within those governments’ jurisdictions. In this particular case, the defendants are Exxon Mobil and Suncor, a company that operates two oil refineries in Colorado.
The lawyer for these two companies, Kannon Shanmugam, told the justices that there are about 60 similar cases brought by municipal governments throughout the country. And, in one of his more pro-oil moments during Monday’s oral argument, Roberts predicted that if Boulder wins in the Supreme Court, there will be numerous other copycat lawsuits filed by other municipalities.
The question in Suncor is whether state courts, including Colorado’s own courts, are forbidden from hearing these sorts of climate change lawsuits.
As Roberts pointed out in one of his less pro-oil moments during Monday’s argument, “there are a lot of familiar situations where conduct outside of a state has broad effects on other states…and yet we allow the state courts in a particular state to bring litigation.” He pointed to “mass tort” suits and “complaints about operations of the internet” as two examples where state courts hear lawsuits involving harms that arise across state borders.
The oil companies’ primary argument is that suits involving air and water pollution are special. But their evidence supporting this argument is confusing and difficult to parse .
Briefly, the oil companies point to several cases, many of which were decided more than a century ago. These cases held that, before Congress enacted the Clean Air Act in 1963, states could sometimes sue other states for cross-border pollution, even though no federal law forbade such pollution. The Supreme Court created “federal common law” permitting these suits, and the oil companies claim that this federal common law preempted any state lawsuits that covered a similar subject matter.
This federal common law, they now argue, has itself been displaced by the Clear Air Act and its partner statute, the Clean Water Act, but the principle that state suits involving air and water pollution are preempted is somehow still in effect. Although there is no provision in the text of the Constitution that supports this argument by the oil companies, those companies claim that their argument is implicit in the “ structure of the Constitution .”
If you are confused by all the arcane history and logical leaps contained in the oil companies’ argument, don’t worry. So were most…
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