Energy companies begged the Supreme Court on Monday to shut down states’ attempts to hold them responsible for the impacts of climate change, telling the justices it’s a national issue to be handled by Congress, not settled by local lawsuits.
Roughly three dozen such lawsuits have been filed, and more are expected — particularly if Boulder, the Colorado community whose case was argued before the high court, prevails.
“We need an answer to this question sooner rather than later,” Kannon Shanmugam, the lawyer representing Suncor Energy and other energy firms, told the justices. “The time is really now for the court to resolve these issues.”
People were interested in these podcasts
The energy companies said the U.S. Constitution and the federal Clean Air Act prohibit states from regulating greenhouse gas emissions. That job is left to Congress, Mr. Shanmugam said.
But Boulder said its lawsuit, filed in state court, isn’t just about emissions but also the firms not being truthful with the public over the dangers and costs of climate change related to those emissions.
“This case is not about emissions, it’s about deception,” Kevin Russell, Boulder’s lawyer, told the court.
That argument seemed to connect with Justice Sonia Sotomayor, an Obama appointee, who said nuisance lawsuits from one state that target another state have long been permitted.
Justice Sotomayor pointed to the Clean Water Act as one area where the high court has allowed those lawsuits, and said it isn’t a big jump to think the Clean Air Act should also be read to allow them.
Justice Elena Kagan, another Obama appointee, said the climate lawsuits could be likened to previous blockbuster cases over asbestos or tobacco.
“This is the same kind of lawsuit against the same kind of actors for the same kind of harm,” Justice Kagan said.
Chief Justice John G. Roberts Jr., a George W. Bush appointee, seemed sympathetic to that notion, but also worried about the likelihood of a crush of litigation should the court allow Boulder to pursue its lawsuit in state court.
“Presumably if you prevail, the next day municipalities in every single state will file a lawsuit,” the chief justice told Mr. Russell. “How would you think that would work out on the ground?”
Justice Brett M. Kavanaugh said a “wall of precedent” — at least four Supreme Court cases dating back to the 1970s — seems to block Boulder’s attempt by finding air and water pollution are matters to be addressed at the federal level.
“We don’t have to reinvent the wheel because we’ve said this multiple times,” said Justice Kavanaugh, a Trump appointee.
But Mr. Russell said those other cases were about the pollution itself, not the kind of deceptive practices arguments Boulder is raising.
Chief Justice Roberts expressed skepticism.
“It’s an effort to reduce emissions,” he said of the lawsuit.
“It is not an effort to reduce emissions,” Mr. Russell replied.
Boulder argues that greenhouse gas emissions have spawned extreme summer heat, precipitation changes, wildfires, expanding threats from insect-borne diseases, reduced snowpack and drought.
The city says Colorado tort law applies, and it wants Suncor and other energy companies to pay for the alleged damage.
Colorado courts, including its highest court, ruled that Boulder’s lawsuit could proceed.
Justice Ketanji Brown Jackson said that’s all that the lower courts have settled, and it may be premature for the U.S. Supreme Court to hear the matter right now because Boulder hasn’t proved anything more at this point.
“Maybe they lose because they can’t trace this to any applicable source, maybe,” said Justice Jackson, a Biden appointee.
Justice Samuel A. Alito Jr., a George W. Bush appointee, recused himself from participating in the dispute without giving a reason.
That raises the possibility of a 4-4 tie, which would leave the Colorado Supreme Court’s ruling in place.
A decision is expected by the end of June.
Contact the author
Please read our comment policy before commenting.