The Supreme Court appeared split over whether to allow Boulder County, Colorado’s climate-change damages lawsuit against oil companies to proceed, with the justices appearing to have reservations about both sides’ sweeping arguments during Monday’s hearing.
The high court heard oral arguments in Suncor Energy v. County Commissioners of Boulder County on whether a lawsuit brought by Boulder County, which seeks to hold oil companies accountable for their alleged role in global climate change, can proceed. The case is expected to have sweeping ramifications for similar lawsuits that climate activists and Democrat-led jurisdictions have attempted to bring against oil companies, either broadly allowing them to continue or shutting them down as barred by federal law.
Suncor lawyer Kannon Shanmugam argued to the justices that Boulder’s lawsuit should be dismissed both because the Clean Air Act gives the federal government jurisdiction over the regulation of greenhouse gas emissions and air pollution, and because the Constitution does not allow states to regulate matters beyond their borders. Shanmugam emphasized the constitutional argument, leading to pushback from some of the justices.
Chief Justice John Roberts and Justice Elena Kagan both questioned whether there are situations in which pollution caused in one state could be subject to a different state’s laws if it is directly harming the other state. Several of the justices questioned why Shanmugam was not just making the argument that the Clean Air Act forecloses the lawsuit, which they noted would be easier under the high court’s precedents.
Principal Deputy Solicitor General Sarah Harris argued in support of Suncor for the Department of Justice and similarly faced sharp questions about whether the Constitution forecloses the lawsuit. Justice Brett Kavanaugh asked Harris why the high court’s previous rulings on the Clean Air Act, which assert that air pollution is a federal matter, are not enough to form the basis of her argument on why the Boulder lawsuit should be tossed. Harris claimed that both arguments, regarding the constitutionality of the law and the Clean Air Act, would individually be enough for Suncor to win.
Several justices expressed concern over the scope of Boulder’s arguments to keep its lawsuit alive, specifically over how broad the ensuing lawsuits could be. Kevin Russell, the lawyer arguing for Boulder, was immediately questioned by Justice Clarence Thomas over what the limiting principle for lawsuits over climate change damages would be.
Roberts expressed concern about allowing the lawsuit to proceed, asking what would prevent other cities and states from emulating Boulder’s lawsuit and piling up challenges against these companies over global climate change without any limits.
“There’s always going to be greenhouse gas emissions affecting every state. So it’s not as if anything other than your litigation is going to address it. So as a practical matter, what should happen?” Roberts asked.
Monday’s oral arguments only featured an eight-justice bench, after Justice Samuel Alito recused himself from the case last week. Alito did not explain his rationale, but he has previously recused himself from climate change cases over his financial interests in oil companies. The eight-person bench leaves open the chance of a rare 4-4 deadlock, which would leave the issues in the case unresolved, as if the Supreme Court had never taken it up.
SUPREME COURT KICKS OFF NEW TERM WITH MAJOR CLIMATE CASE
The eight-justice panel on Monday did not appear clearly convinced by arguments from Suncor and the DOJ that Boulder’s lawsuit is constitutionally foreclosed, but a majority appeared open to shutting down the county’s lawsuit on the grounds that the Clean Air Act preempts Colorado state law.
The Suncor case was the first the Supreme Court heard in its new term, and the justices are expected to issue a ruling as soon as early 2027.