In a brief filed today with the U.S. Supreme Court, the defendants argued the Court should end Boulder’s climate lawsuit once and for all to avoid a “chaos” of a patchwork of state court rulings governing energy policy.
In February, after eight years of Boulder wasting taxpayer money its climate lawsuit against Exxon and Suncor, SCOTUS agreed to review the companies’ petition on whether state and local governments can use tort law to regulate global greenhouse gas emissions. The Court will hear oral arguments in the case during its fall term this year.
The Court now has the opportunity to deliver a major blow to the national climate litigation campaign and its attempt push public policy through the courts.
Policymaking in the Courts
In their brief, the defendants make a clear and simple argument that state judges across the country have overwhelmingly agreed with:
“The question presented in this case is whether state law is competent within our federal system to impose potentially crushing monetary liability on a subset of energy producers for localized harms allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate. The answer to that question is no.”
Other state and local courts have already accepted that argument and thrown out similar cases. As the companies argue, it would be “chaos” if each state, municipality, or individual could set national and global energy policies via state tort law:
“And if the rule in that decision were adopted on a national scale, it would authorize all fifty States, the tens of thousands of municipalities, and even the hundreds of millions of individuals in our country to ask local courts to establish countless, conflicting climate policies for the Nation. Giving even a single jury the power to impose ruinous liability on selected members of the energy industry is a recipe for chaos. Unleashing juries nationwide is a recipe for disaster.”
Why Boulder’s State-Law Claims Fall Short
The defendants further argue that the Colorado Supreme Court came to the wrong decision in refusing to dismiss Boulder’s case because Boulder’s state-law claims are preempted by federal law, undermine U.S. foreign policy, and continue to be preempted by the Clean Air Act.
Longstanding precedent says that federal law, not state law, governs international greenhouse gas emissions, as the companies argue:
“Regardless of the choice of defendant, the gravamen of respondents’ claims is that some marginal increase in global greenhouse-gas emissions attributable to petitioners’ conduct caused them harm. Those claims thus fall squarely within the inherently federal area of interstate-pollution disputes and are presumptively foreclosed by federal law.”
In the landmark AEP v. Connecticut opinion in 2011, former Justice Ruth Bader Ginsburg wrote for a unanimous Supreme Court that greenhouse gas emissions are governed by federal law and that “borrowing the law of a particular State would be inappropriate.”
Even with the EPA’s recent ruling on the endangerment finding, the agency has maintained that the Clean Air Act (CAA) will continue to preempt state law claims regarding the regulation of out-of-state emissions. As the defendants further explain in the brief:
“Respondents concededly seek relief for injuries allegedly caused by interstate greenhouse-gas emissions. […] States have no residual or inherent power under our Constitution to regulate in this area, and no federal law authorizes state common-law claims for harms caused by diffuse interstate and international emissions. For those reasons, respondents’ claims fail.” (emphasis added)
In addition to federal law and CAA preemption, the defendants also argue that by bringing these claims, Boulder is undermining the federal government’s primary authority over foreign affairs:
“Claims seeking relief from the effects of international greenhouse-gas emissions interfere with the federal government’s extensive diplomatic efforts, which balance the need to address climate change on the international level with other competing foreign and domestic interests. Under the Constitution, the federal government is the Nation’s exclusive voice in foreign affairs. State tort law cannot stand in its way.”
The True Motive Behind the Cases
As Energy in Depth has analyzed, Boulder’s climate lawsuit has always been about attacking oil and gas companies and seeking large payouts.
Boulder’s own attorneys have acknowledged ulterior motives, with David Bookbinder, who served for years as part of the legal team representing the counties, calling climate litigation “an indirect carbon tax.” The companies’ brief explains why imposing such a “tax” via litigation would be catastrophic:
“As a member of respondents’ legal team openly avowed, this coordinated nationwide litigation aims to impose an enormous ‘carbon tax’ that could ‘bankrupt[]’ the energy industry. The requested damages in any one case could reach into the billions. And if claims such as Boulder’s are allowed to proceed, every political jurisdiction in the Nation could bring a similar suit against any subset of the world’s fossil-fuel producers.”
Bottom Line: The defendants’ brief makes clear that Boulder’s lawsuit is not simply about local climate damages. Instead, it is part of a coordinated effort to use state courts to impose what one of Boulder’s own attorneys described as an “indirect carbon tax” on energy producers, risking a nationwide patchwork of climate policy by litigation that the Supreme Court now has an opportunity to stop.
