The climate litigation campaign faces a pivotal moment this Friday when the U.S. Supreme Court will discuss whether it will review a key jurisdictional question that has defined the cases for years, with an announcement on their decision expected as soon as Monday.

As reported by E&E News, this is “a venue dispute with huge consequences” as it will determine whether certain climate lawsuits should be heard in federal or state court. There are currently more than two dozen cases at different stages in various courts across the country, many of which would be affected by a SCOTUS decision should the court take up the case.

Notably, this would not be the first time the Supreme Court weighs in on the suite of climate cases facing energy producers. Two years ago, the high court accepted a petition to review a Fourth Circuit ruling in Baltimore’s case, which resulted in a win for energy companies on a technical issue related to the scope of appellate review.

The Jurisdictional Question

Specifically at issue this time around is whether the climate lawsuit brought by the City and County of Boulder and the County of San Miguel against two energy companies – and, in effect, all climate lawsuits introduced under public nuisance and consumer protection claims – should be heard in federal or state court.

After the Tenth Circuit Court of Appeals affirmed a district court’s order remanding the Colorado municipalities’ lawsuit to state court, the energy companies named in the suit filed a petition last June asking the Supreme Court to review and overturn the ruling.

The petition was distributed for conference in late September, and court watchers who expected a decision on cert in the following days were thrown a curve ball when SCOTUS instead requested that the Biden administration share its views on the petition. In a deviation from the positions of previous administrations, the Solicitor General supported state court authority and effectively argued that claims seeking remedy for international emissions are not inherently federal issues.

As pointed out by the defendants, however, the Justice Department’s radical shift appears to be based on political pressures, not the law. The Solicitor General even seemingly acknowledged this when stating that the “change in administration” was a reason for “reexamining its position.” The mismatch in opinions on a pivotal legal manner and the political nature of the cases provide all the more reason for the Supreme Court to grant review and lay out comprehensive guidance.

Federal Policy Questions Shouldn’t Be Decided In Courts, Let Alone State Courts

Struggling to gain support for action from local lawmakers, the Boulder case, along with the others, is an attempt by activists to legislate through the judicial branch and subvert democratic processes. Boulder and San Miguel have struggled to gain support within the state as Gov. Jared Polis and Attorney General Phil Weiser – both Democrats – have declined to endorse the case, as has Conservation Colorado, one of the state’s biggest environmental groups, and the Denver Post editorial board has spoken up in opposition.

A multitude of voices – spanning the fields of law, national security, energy policy and more – have noted that federal courts should have exclusive jurisdiction over the effects of interstate – and international – greenhouse gas emissions, thus avoiding a patchwork of state rulings.

Sixteen states, led by Indiana, filed an amicus brief in support of the petition last summer, arguing Supreme Court guidance is needed to “make clear that federal — not state — law necessarily and exclusively governs nuisance claims concerning global emissions and global climate change”:

“State-court public-nuisance lawsuits seeking to ‘redress’ global climate change are a menace to coherent law, politically accountable government, and federalism. To be sure, state courts are critical for remedying local injuries arising from local conduct. But their capacities to evaluate the costs and benefits of local economic activity makes them ill-suited to impose standards for greenhouse gases emitted elsewhere…” (emphasis added)

And an Eighth Circuit appellate judge recently pointed out the undemocratic nature of these cases, calling Minnesota’s lawsuit an attempt to “set national energy policy through […] consumer protection laws,” rather than legislation passed by Congress.

Nonetheless, the states, municipalities and their allied activist groups bringing these lawsuits are pushing for state jurisdiction as they feel it is a more favorable venue. But on the merits of these cases, the plaintiffs have only met defeat.

Bottom line: The U.S. Supreme Court may announce whether it will take up this key federal or state jurisdictional question in the coming days (or weeks, if the justices decide further discussion on the topic is warranted). It has become clear that justices and politicians alike have been able to interpret the law surrounding these issues in different ways, a clear signal that guidance is needed to resolve these issues in a legal, apolitical and comprehensive manner. The Supreme Court can fill this void by taking up the case and providing clarity on the jurisdictional issue that has characterized these cases for years.