The Supreme Court opened its fall term yesterday with oral arguments in Boulder’s climate lawsuit, marking a key milestone in the decade-long litigation campaign.
One of the biggest problems with Boulder’s case came quickly into focus: where does it stop? If one Colorado municipality can use state law to impose liability on lawful energy production far beyond its borders, what prevents every city and town across the country from doing the same?
That is exactly what critics of the climate litigation campaign have warned for years: Boulder’s lawsuit is an attempt to use state courts to set national energy policy, opening the door to a patchwork of lawsuits and conflicting state rules over an inherently interstate and global issue.
Here’s what they are saying:
Where Does It Stop?
Derek Brown, Attorney General of Utah:
“It’s an energy tax dressed up in a fraud lawsuit. That’s ultimately what this is, because the reality is, they’re trying to regulate action that takes place, not just in their own state, but anywhere across the country.”
“A lot of people think that this is a case about climate change and whether it’s happening and what should be done. It isn’t. This is really a question about who gets to decide. Does Congress get to decide through passing a law? . . . Or does one state get to impose through litigation their policies on 49 other states? And that’s what today was about — whether Colorado could do it to a state like Utah, which is why I care about it, which is why I came all the way here for this issue.”
Jeff Overly, Editor-in-Chief at Law360:
“The chief justice, despite drawing parallels between climate torts and landmark product liability litigation, also drew distinctions after Russell mentioned asbestos suits. Those distinctions — direct harms of products that can later be avoided, compared to indirect harms of atmospheric emissions that are omnipresent — are a crucial part of the industry’s defense.”
“This #SupremeCourt is very often deferential to state-court actions. Witness the decisions last Term in Hain Celestial and Montgomery v. Caribe. So perhaps it’s no surprise that several justices appear primed to defer to the state-court action. That said, during this morning’s Suncor Energy v. Boulder Country oral argument, Boulder never offered a satisfying answer to the objection raised by both Justices Barrett and Kavanaugh: why is regulating greenhouse gases outside Boulder, Colorado via a state-court action substantively different from doing so via a municipal or state statute, which all agree would conflict with the #Constitution.”
“Suncor Attorney Kannon Shanmugam is right: Boulder’s argument provides NO meaningful limit to the scope of lawsuits against energy companies. If Boulder gets its way, climate activist lawfare will have free rein to destroy American energy.”
Kenneth Gillingham, Professor of Economics at Yale University School of the Environment:
“There is clearly a tension here between opening the Pandora’s box of a plethora of lawsuits against fossil fuel companies versus deeply cutting into states’ rights.”
Who Gets To Decide?
Derek Brown, Attorney General of Utah:
“It’s an energy tax dressed up in a fraud lawsuit. That’s ultimately what this is, because the reality is, they’re trying to regulate action that takes place, not just in their own state, but anywhere across the country.”
Steve Marshall, Attorney General of Alabama:
“One city in Colorado is asking the courts to let it set energy policy for the entire country. Boulder has no authority over the global atmosphere, but they and a growing list of other jurisdictions want the energy industry to pay billions for climate claims they have no business bringing. Those costs would land on the families who fill up their tanks and pay their utility bills. Twenty-six states understand that this case is about who governs, and that is why we stood together.”
Michael Williams, Solicitor General of West Virginia:
“The arguments today confirmed what we’ve said all along: federal law forecloses these suits several times over . . . Whichever path the Court takes, we’re confident they all lead to the same conclusion — Boulder can’t proceed. As Justice Kavanaugh suggested, we think it’s ‘crystal clear’ that interstate issues like these must be governed by federal law, not by varying state law in dozens of state courts.”
Carrie Campbell Severino, President of JCN:
“In today’s oral argument in Suncor, the Justices appeared skeptical of Boulder, Colorado’s bid to regulate worldwide energy production through state tort suits. Justice Kavanaugh noted that it’s ‘crystal clear’ under the Court’s precedents that interstate air and water disputes are matters for federal law. Those precedents, rooted in the states’ equal sovereignty, are fatal to Boulder’s claims. Boulder can’t evade those limits by suing over energy production, rather than emissions.”
“Chief Justice Roberts correctly observed that Boulder’s suit is ultimately ‘an effort to reduce emissions.’ A ruling from the Court reaffirming that interstate air and water disputes must be governed by a federal rule of decision would deal a crucial blow to the Left’s climate lawfare and would reaffirm fundamental structural principles enshrined in our Constitution.”
Sai Prakash, Professor of Law at the University of Virginia:
“Essentially Boulder claims that Colorado can reach around the United States, the entirety of the United States, and to my mind, regulate production everywhere by attaching liability to it. If Boulder can attach liability to these two companies … I think it can attach liability to thousands of others as well.”
“Wall of Precedent”
Jeff Overly, Editor-in-Chief at Law360:
“Perhaps more than any other member of the high court, Justice Brett Kavanaugh on Monday seemed to see the dispute as simple. He placed tobacco and opioid matters in a category separate from climate cases, at one point asserting that ‘our precedent says air and water pollution are different.’”
Carrie Campbell Severino, President of JCN:
“Boulder’s attorney, Kevin Russell, drew stern questions from Chief Justice Roberts, who characterized the suit as “an attempt to evade” the Court’s precedents on interstate air pollution.”
“According to Justice Kavanaugh, ‘a wall of precedent’ stands in Boulder’s way. As he stated during the argument, it is ‘crystal-clear’ under prior rulings ‘that interstate air and water pollution are matters for federal law unless Congress specifically preserves state law.’ Those precedents are fatal to Boulder’s claims.”
