Amy Coney Barrett calls oil companies’ arguments ‘slippery’ in climate change lawsuit case
Washington Examiner · RC · trust 54/100
Supreme Court Justice Amy Coney Barrett criticized fossil fuel companies as “a little slippery” in oral arguments over a lawsuit in which oil majors claim that federal law blocks states from suing them for climate change-related damages.
Her comment came in arguments Monday in the case Suncor Energy v. County Commissioners of Boulder County , which may determine if oil companies can be held accountable by state and local governments for their alleged role in global climate change.
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Suncor and Exxon Mobil claim that by attempting to collect damages from the oil and gas companies, Boulder County, Colorado, is influencing national energy policy and, as such, its claims are preempted by the Clean Air Act and other federal laws.
Suncor’s lawyer, Kannon Shanmugam, argued on Monday that the law made the Environmental Protection Agency the “primary regulator of stationary sources,” and gave only “secondary authority” to states.
Barrett pushed back, pointing out that the EPA itself has said it does not have that authority.
Shanmugam disregarded the recent EPA rulings, saying that “any decision the EPA makes has no bearing on our argument concerning constitutional structure. Our arguments concerning constitutional structure apply with full force, regardless of what EPA says.”
Barrett criticized the argument, telling Shanmugam, “Ok, well I think that’s a little slippery.”
Earlier this year, the administration rescinded the 2009 Endangerment Finding, which concluded that six greenhouse gases, including carbon dioxide and methane, pose a threat to public health and welfare. The administration claimed the Clean Air Act does not give the EPA authority to regulate greenhouse gas emissions. And as recently as mid-September, the agency said again that setting emission standards for power plants goes beyond its authority under the Clean Air Act.
The debate over the EPA’s authority under the Clean Air Act was continued later by Trump-appointed Justice Neil Gorsuch, who directed his questioning at Department of Justice attorney Sarah Harris.
Gorsuch asked about when a lawsuit would be permitted, if the EPA is correct in its lack of authority, and if Congress has made no action to approve additional authority to a state for emissions regulations.
“Because of the Clean Air Act and Congress not addressing this issue, nobody can sue at all?” Gorsuch asked.
Boulder County filed a lawsuit against oil major Exxon Mobil and Suncor Energy in 2018, accusing the companies of public and private nuisance, trespassing, unjust enrichment, and civil conspiracy related to their alleged contributions to climate change in the state.
Boulder County claimed the fossil fuel companies deceived the general public about the dangers of their oil and gas operations and the associated effects on climate change through their advertising and marketing. Using state tort laws, officials are seeking compensation for climate-related injuries caused by increased greenhouse gas emissions.
Last year, the Colorado Supreme Court allowed the lawsuit to continue in state court. The oil companies have asked the justices to overturn the ruling, claiming it could allow tens of thousands of municipalities to file similar lawsuits against oil and gas companies.
When the Supreme Court agreed to hear Suncor v. Boulder , the justices said they would also consider whether the high court had the right to hear arguments in the first place, as no final judgment had been made by the local courts.
It is not unprecedented for the Supreme Court to hear and rule on a case before final judgment, but it is rare. It is possible that the justices decide it is too early to issue a ruling and send the case back to the lower courts for trial.
The case also could end with a deadlocked decision, as Justice Samuel Alito recused himself last week. Alito, who was facing pressure from environmentalists over his financial investments in oil companies not named in the case, initially did not provide any explanation for his recusal.
He later told Bloomberg that he “thought recusal was the prudent step.”
A 4-4 deadlock would send the case back to the lower courts, as if the Supreme Court never took it up to begin with.
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