Coming off a U.S. Supreme Court win last year, energy companies have once again petitioned the high court to resolve a key jurisdictional issue in the climate litigation campaign, this time citing the lawsuit filed by the City and County of Boulder and the County of San Miguel, which has struggled to build local support in the four years since it was filed.

In a petition filed last week, Suncor and ExxonMobil are asking SCOTUS to overturn a decision from the U.S. Court of Appeals for the Tenth Circuit that would remand the case back to state court, arguing that federal courts are the proper venue to hear such litigation as climate change is a global phenomena that transcends state borders.

ExxonMobil and Suncor’s petition is the first to be submitted to resolve a growing circuit split in the matter of jurisdiction of climate cases.

Uphill Skiing for Boulder

Beyond the jurisdictional questions, it’s notable that the companies choose to petition SCOTUS on the case filed by Boulder and San Miguel. The municipalities have been unable to secure key endorsements from state elected officials, leading environmental groups, and other key voices as EID Climate has previously noted. During their 2018 campaigns, both Gov. Jared Polis and Attorney General Phil Weiser declined to support the case, with Weiser stating:

“This is what happens when you do your homework. You ask a basic question like, let me get this straight, our carbon footprint has been reduced by substituting natural gas for coal. How do you sue Exxon for causing climate change?. That is a very hard question. I’ve asked it, I haven’t gotten an answer. … And so, I’m uncomfortable with that litigation because the case for it hasn’t been made.” (emphasis added)

It’s also been revealed the case didn’t originate organically from Boulder and San Miguel leaders, but rather they were recruited by out-of-state forces like so many other climate lawsuits around the country. The plaintiff are getting legal support from EarthRights International (ERI) which is funded by a number of wealthy benefactors opposed to oil and natural gas development including the Rockefeller Family Fund and the Rockefeller Brothers Fund, which have conspired with public officials to demonize the industry and “creat[e] scandal,” and from the Niskanen Center – another law firm financially supported by the Rockefeller Brothers Fund.

Key officials and attorneys with the plaintiffs have also admitted the lawsuit’s key goal isn’t about receiving monetary compensation to deal with climate change as the claims state, but rather it’s about politics that drive “system-level change” and “raise the price” of energy.

A Circuit Court Split

In May 2021, SCOTUS ruled in a 7-1 decision that the U.S. Fourth Circuit Court of Appeals should have considered all grounds for removal before affirming a lower court’s decision that sent the City of Baltimore’s case back to state court. Several other circuit courts reconsidered previous remand decision in light of SCOTUS’s new guidance.

The Tenth Circuit was the first to affirm the remand of a lawsuit following the Supreme Court decision in Baltimore. Since then, the Fourth, Ninth and First Circuits have followed suit.

However, as outlined in the Colorado petition, those rulings clearly conflict with the Second Circuit Court of Appeals’ decision to uphold the dismissal of New York City’s (first) climate lawsuit last year:

“The question before the Second Circuit was ‘whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions.’ 993 F.3d at 85. The Second Circuit unanimously held that ‘the answer is “no.”’” (Emphasis added)

That split may soon deepen: During review of Minnesota’s climate case in March, Eighth Circuit Court judges focused on “the true source of injury in Minnesota’s climate case,” aiming to determine whether global emissions or misinformation were the main crux of the state’s arguments.

And although the Eighth Circuit has yet to issue a ruling in the Minnesota case, an attorney representing one of the companies believes, “quite frankly, there’s a very high likelihood that sooner or later these issues will end up at the Supreme Court” to resolve the matter of jurisdiction.

Questions at Hand

The petition before the Supreme Court argues that the Tenth Circuit erred by not recognizing that claims related to greenhouse gas emission and climate change fall squarely in federal court jurisdiction:

“Such outcomes cannot be squared with this court’s decisions holding that claims seeking redress for interstate air and water pollution arise under federal law alone and thus are properly heard in federal court. The decision below also opens the door to countless potentially conflicting state-court lawsuits applying state nuisance law to claims seeking redress for the global phenomenon of climate change.” (Emphasis added)

It also directly asks the court to go beyond its earlier decision in BP v. Baltimore to mandate all circuit courts review all grounds for removal and resolve the question of “whether a federal district court has jurisdiction under 28 U.S.C. 1331 over claims necessarily and exclusively governed by federal common law but labeled as arising under state law.” (Emphasis added)

National Impact

There are currently more than two dozen cases percolating at different stages across the country, and the jurisdictional dispute has become a tale as old as time. As the petitioners explain, these questions “will continue to bedevil the lower courts” until the Supreme Court weighs in:

“Given the stakes in the climate-change litigation, the questions presented here are some of the most consequential jurisdictional questions currently pending in the federal courts. The time to resolve those questions is now.”

Whether or not the Supreme Court will take up this petition is to be determined; as POLITICO’s Alex Guillen speculated, that decision “will not come until this fall at the earliest.”