This week, the Supreme Court began its new term by hearing arguments in Suncor v. Boulder County, a climate lawsuit. This is not the first state-level climate lawsuit to reach the Supreme Court, but it may be significant because it focuses on a procedural question: whether federal law preempts state-level climate lawsuits. Suncor argues that climate change regulation is inherently federal and that state-level regulation-by-litigation efforts are preempted, while Boulder County contends that state tort cases for alleged injuries should be allowed to proceed. A ruling for Suncor could substantially limit the avenues for the types of vexatious climate lawsuits that activists have been pursuing.
This case began in 2018 as part of the wave of state and municipal lawsuits against various oil companies. Environmental groups and attorneys have led a coordinated national campaign. These climate activists believe Congress and the federal government should work to eliminate the use of oil and natural gas. Legislation moving in that direction has consistently failed to pass Congress, so these activists have gone to court to pursue policy goals they cannot achieve through the political process.
Boulder County sued Suncor (the operator of a refinery in Colorado) and ExxonMobil seeking damages for the supposed effects of climate change in the county. The county faces a major causation problem in trying to prove such harms and trace them to Suncor and ExxonMobil, given that climate change is a global phenomenon with diverse causes, diffuse and hard-to-measure effects, and both positive and negative impacts. But the court has not yet reached the merits of the case. The oil companies initially sought to move the litigation to federal court and now seek federal preemption to halt the case in state court.
The procedural issue raises a fundamental question: which issues are inherently national questions, and which remain subject to state regulation and control. Regulating air crossing state borders is certainly an area the federal government should cover. However, individuals harmed by actions in another state have long been able to seek remedies in their own state courts. In Monday’s arguments, the Supreme Court showed no clear majority for any position.
A ruling fully supportive of Suncor would narrow climate activists’ ability to pursue these types of cases; however, a narrow ruling could force them to sue in federal court under federal law. A ruling supporting Boulder County would let the case proceed in state court, with another round of appeals to federal courts likely after any judgment at the state level.
While this case will not end climate litigation, limiting its scope matters for financial and economic reasons. These state lawsuits will not solve climate change. They primarily aim to impose costs on oil companies, either the cost of defending the lawsuits or the costs of money paid out in state-level judgments. The goal is to make oil and natural gas more expensive (because these energy companies ultimately pass their cost of doing business on to customers). So the purpose and effect of this litigation is to raise energy costs. For the average American already grappling with higher energy costs, that is the last thing they need.
