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. 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.
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. 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. 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.
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