The U.S. Supreme Court heard oral argument Monday in Suncor Energy Inc. v. County Commissioners of Boulder County, a potentially landmark moment for the nationally-coordinated climate litigation campaign that has sought for more than a decade to bankrupt the American energy industry.
Attorneys for the companies and the U.S. Department of Justice argued that Boulder is trying to accomplish through litigation what Colorado could not do directly through regulation: impose liability for conduct and emissions occurring far beyond the state’s borders.
Principal Deputy Solicitor General Sarah Harris, representing the Department of Justice, told the justices the suit “egregiously exceeds constitutional limits on state authority.”
According to Harris, Boulder’s theory would allow Colorado to impose liability for fossil-fuel activity “worldwide” based on alleged climate injuries inside the state. The result: anyone who does anything that emits greenhouse gases, like driving a car, flying in an airplane, or ranching, could be sued for their contribution to global climate change.
That is the problem Boulder could not make disappear simply by relabeling its case as “deception.” Its claims still try to impose liability based on the effects of energy production and use occurring far beyond Colorado.
As West Virginia Assistant Attorney General Michael Williams put it after arguments, “federal law forecloses these suits several times over.”
Justice Brett Kavanaugh summed up one of the biggest problems for Boulder: a “wall of precedent” holding that interstate air and water pollution is governed by federal law, not a patchwork of state tort claims.
Chief Justice John Roberts then put the issue more bluntly, asking Boulder attorney Kevin Russell:
“Isn’t your suit an attempt to evade those decisions? … It’s an effort to reduce emissions.”
Justice Elena Kagan also zeroed in on how central emissions are to Boulder’s claims, noting that the “entire causal chain” depends on the allegation that the companies caused global emissions to increase.
Boulder calls its case a consumer deception lawsuit, but the companies argue that the claims still depend on assigning liability for the effects of global greenhouse gas emissions – activity Colorado cannot directly regulate outside its borders.
The justices also pressed Boulder on what happens if thousands of other local governments decide to follow its lead.
Kannon Shanmugam, arguing for the energy companies, made the same point, calling Boulder’s case: “an unprecedented effort to use state law to regulate global conduct.” If Boulder prevails, he warned:
“Some 90,000 municipalities across the country will have the ability to make national and international energy policy by asking juries to impose catastrophic damages on selected fossil fuel producers.”
Chief Justice John Roberts followed up with the obvious question: what happens when every municipality around the country simply copies Boulder’s complaint and files their own lawsuit?
“Presumably if you prevail, the next day, a municipality in every single state will file a lawsuit that will probably copy your pleadings. How would you think that will work out on the ground?”
Boulder’s answer did little to resolve the concern. When pressed on whether Boulder’s theory would also allow suits against large energy retailers, like gas stations and fuel distributors, Russell conceded: “Nothing in our theory prevents that.”
That could open the door to an unlimited number of lawsuits targeting any number of entities, thus creating the very patchwork of legal decisions that the industry has warned about.
Meanwhile, the Rockefeller-funded activist group Center for Climate Integrity and Fossil Free Media hosted a lightly-attended rally on the steps of the Supreme Court.
Despite an August brief from Democratic members of Congress from around the country, none of them showed up to the rally in support of Boulder, perhaps realizing the entire litigation campaign conflicts with their energy affordability messaging.
Likewise, at a similar small, activist-led rally in Boulder, no state or federal elected officials in Colorado showed up to speak, yet again underscoring the lack of support for the case across the state.
Bottom Line: Boulder’s case is one piece of a nationally coordinated campaign seeking to bankrupt the American energy industry. It arrived at the Supreme Court insisting its lawsuit is merely a local deception case. But when the justices tested what it actually does, the distinction between tort litigation and energy regulation became much harder to maintain.
