The U.S. Supreme Court kicks off its new term on Monday by hearing oral arguments on one of the highest-profile climate cases in history, with lawyers set to fight over the future of dozens of lawsuits filed by state and local governments across the country.
The stakes are huge in Suncor v. Boulder, where the high court will consider whether the Colorado community’s climate deception case filed against oil companies Suncor and ExxonMobil is preempted by federal law.
Billions of dollars are on the line, even if those damages will not be decided by the high court directly this term. If the court determines Boulder’s case — filed in state court alleging violations of state common laws — is preempted by federal law, the lawsuit and dozens of similar cases are likely to be tossed.
The oral arguments are expected to attract demonstrations outside the high court’s building in Washington, D.C., bringing scientists, as well as wildfire survivors from Colorado and California to the courthouse steps. They have thrown their weight behind the litigation as a key way to hold the fossil fuel industry accountable for decades of alleged climate deception and the ensuing severe weather that a warming planet has caused.
“It would cause tremendous damage if suddenly we woke up one day and some of the biggest, most harmful corporations on earth were above the law,” Mike Meno, the communications director for the Center for Climate Integrity, told Landmark.
Meno noted that there are ongoing efforts in Congress to shield oil and gas companies from climate liability lawsuits as well, and several states including Louisiana have moved on their own to ban civil lawsuits against the companies.
Boulder’s lawsuit is one of dozens of cases that broadly claim the oil and gas industry intentionally misled the public about the risks associated with using its products. Boulder specifically alleges that the deception is to blame for causing a public nuisance, which is the same legal theory that has been used against the opioid and tobacco industries for massive societal harms.
The fossil fuel industry has argued that Boulder and other communities are trying to levy an enormous “carbon tax” that could “bankrupt” the energy industry. They have argued the claims are preempted by federal law, including the Clean Air Act, and have also sought to move the cases to federal court.
Numerous courts have affirmed that the cases are best suited for state courts, including the Colorado Supreme Court, which ruled last year that Boulder’s claims are not preempted.
While some legal experts who spoke to Landmark said that they will be watching conservative Justices Neil Gorsuch and Clarence Thomas, since they ruled against preemption in last term’s case Hencely v. Fluor, Bracewell attorney Peter Siegal warned that it can often be difficult to predict outcomes given how nuanced the cases can be.
“You can’t necessarily accurately predict how a justice is going to vote by just knowing that a case is a preemption case,” Siegal said. ”So, the question becomes: What prism is any given justice looking at the case through?”
Michael Gerrard, a legal scholar at Columbia Law School, said he will be watching the oral arguments in part to see whether the justices even get past a potentially key jurisdictional question. The court has asked whether it has jurisdiction to hear the dispute, since the Colorado Supreme Court’s decision is an interim decision before a potential final verdict.
The “threshold question is whether they deal with the merits at all, or decide that it’s too early,” Gerrard said. “That’s one thing I’ll definitely be looking for.”
He said he will also be watching to see if the justices draw distinctions between the various claims made by Boulder, which also include civil conspiracy and unjust enrichment claims.
Oh boy…..😕