Supreme Court’s new term kicks off with blockbuster climate change case : NPR

A new Supreme Court term begins Monday with arguments in a blockbuster case about the reach of state power.

Boulder, Colo., is suing two big energy companies, arguing they deceived people about the harms of fossil fuels and contributed to disasters that cost Boulder a lot of time and money.

The dispute could have ramifications far beyond the climate, to other areas where states are trying to hold companies accountable for their alleged harms to local communities.

In 2018, Boulder County slapped the giant energy companies Suncor Energy and Exxon Mobil with a lawsuit. Boulder argued the companies and a trade group knew decades ago that fossil fuels would hurt the environment, raising the risk of floods, extreme heat and wildfires.

Three years later, in late December 2021, the Marshall Fire swept across the county.

Daryl McCool left her home southeast of Boulder so fast she couldn’t remember whether she locked the front door.

As it turned out, that didn’t matter.

“There’s basically nothing left,” McCool said. “A 2,000-degree fire burns everything, like coins were melted, bicycles melted.”

The historic 1901 house where she raised her son had turned to ash. McCool spent years helping her neighbors file insurance papers and apply for grants to rebuild their homes. Now, she tries to educate people about the human costs of climate change.

Who has power to grapple with climate change

Corey Riday-White is legal director at the Center for Climate Integrity. It supports communities trying to hold oil companies responsible for environmental harms.

“This case represents whether or not we believe as a society that corporations should be held to the same standards that all of us are, right?” Riday-White said. “If you know you are going to cause harm, and you don’t tell someone, then you should help clean up that harm.”

Boulder’s lawsuit has not gone to trial; it’s still in the early stages in the Colorado court system. But the energy companies are asking the U.S. Supreme Court to throw out the case now. The companies say only the federal government has the power and expertise to grapple with something as big as climate change. To let Boulder’s case proceed, they say, would have huge implications.

Todd Zywicki is a professor at the Antonin Scalia Law School at George Mason University.

“This is about whether a bunch of rich hippies in Boulder County are allowed to dictate environment and energy policy to the entire rest of the world,” Zywicki said in a recent webinar about the case.

Exxon referred NPR to the company’s court filings. Suncor didn’t respond to an email requesting comment.

The Trump administration is siding with the energy companies, arguing global warming is a global issue.

“Essentially Boulder claims that Colorado can reach around the United States, the entirety of the United States, and to my mind, regulate production everywhere by attaching liability to it,” said Sai Prakash, a law professor at the University of Virginia who filed a friend of the court brief backing Suncor and Exxon.

“It Boulder can attach liability to these two companies … I think it can attach liability to thousands of others as well,” Prakash said.

Seeking to recover past and future costs

Boulder argues it’s not suing to regulate greenhouse gas emissions. Rather, it says, it wants to recover past and future costs of repairs, emergency services, and property damage.

Dozens of similar cases where states and municipalities are suing energy giants have been moving through the courts at early stages. Any Supreme Court ruling could have repercussions for many of them.

Jonathan Adler, a law professor at the College of William and Mary, points out in court papers that Congress has the authority to override state laws here, but federal lawmakers haven’t done anything.

Corey Riday-White, of the Center for Climate Integrity, said for the justices interested in ruling based on the text of the Constitution or federal statutes, there is not much to support Suncor and Exxon.

“They want the court to say, you can’t bring any of these cases in court because this is the purview of the federal government,” Riday-White said. “The problem is the big oil companies can’t point to any legal doctrine, any statute, any part of the Constitution that backs up that finding.”

How the court decides to draw the lines on state power could influence a lot more than climate litigation, according to Deepak Gupta, who regularly argues before the high court.

“Pollution by forever chemicals, nuisance suits over AI data centers, opioids litigation, all of these are about the local effects of conduct that runs across borders,” Gupta said at a recent briefing sponsored by Georgetown’s Supreme Court Institute.

The conservative supermajority on the Supreme Court may be uncomfortable letting state juries decide some of these pressing issues. But legal experts say they’re not sure quite how the justices might shape a decision in the Boulder case.

Louie Delaware, who lost his Boulder-area home in the Marshall fire, said he plans to be at the Supreme Court Monday as it hears arguments in the case. Delaware said he tried to fight off the fire with a garden hose, but he lacked the appropriate protective gear, so he realized that he needed to drive away quickly.

“You know it’s our responsibility to leave things better for the next generation,” Delaware said. “And the way we’re going right now is counter to what that’s been in the past.”

Last-minute Alito recusal

In a surprise move, the court notified lawyers in the case just one week before argument that Justice Samuel Alito had decided not to participate. The court clerk provided no explanation in his letter. But environmental organizations and watchdog groups had been calling for Alito’s recusal because of his investments in Phillips 66 and ConocoPhillips.

Justin Kloczko of the group Consumer Watchdog said the decision is “the right decision, and one he should have made from the start.”

“The public should not have to wonder whether a justice’s personal investments could benefit from a ruling that shields the fossil-fuel industry from liability,” Kloczko said in a written statement.

Alito’s decision to step aside means eight justices will hear the case. In the matter of a 4-4 tie, that means the decision of the Colorado Supreme Court—allowing Boulder’s lawsuit to proceed—will prevail.

But the high court may have left itself another option: among the questions the justices said they’ll consider is whether they have jurisdiction to hear the Suncor case now, because it’s still at an early stage in Colorado state courts.