Inside Chief Justice John Roberts are two wolves.
The first wolf is a staunch conservative who spent much of his career litigating on behalf of corporate interests. This wolf looks at a series of climate change lawsuits that could potentially cost the oil industry billions of dollars or more, and recoils in horror.
The second wolf is a judge tasked with following the law wherever it leads. And that wolf seemed baffled by the oil industry’s arguments in Suncor Energy v. County Commissioners of Boulder County, a Supreme Court case where two oil companies are asking the justices to shut down dozens of climate change lawsuits.
The Court’s decision in Suncor is likely to shape the future of climate litigation in the United States. If the oil industry prevails, that will probably shut down climate change-related suits in state courts — and it may shut them down entirely because it is unclear whether federal law allows these suits to proceed in federal court. If the oil industry loses, by contrast, it could face dozens of suits in state courts across the country seeking billions of dollars or more.
And the outcome in Suncor is likely to turn on which wolf shows up to the justices’ conference on how to decide the case. Roberts, who asked the most ambiguous questions at Monday’s oral argument in Suncor, clearly wants these lawsuits to disappear. But he also appeared doubtful that the oil companies’ weak legal arguments will allow him to make that disappearing act happen.
Notably, Justice Samuel Alito, who owns stock in oil and gas companies, is recused from hearing the case. So, in the likely event that all three of the Court’s Democrats hold together against the oil companies, Roberts would split the Court 4-4 if he decides to join them. That would leave the Court unable to render a decision, and a lower court opinion, which rejected the oil companies’ bid for lawsuit immunity, would remain in effect.
That said, at least two other justices asked questions suggesting that their votes may potentially be in play. Justice Clarence Thomas, who otherwise appeared sympathetic to the oil companies, repeatedly asked whether his Court has jurisdiction to hear Suncor in the first place. Meanwhile, while most of Democratic Justice Elena Kagan’s questions seemed to favor allowing the climate change lawsuits to proceed, she did ask some questions at the end that indicated that she may be looking for a narrow reason to hand the oil companies a win.
The bottom line is that it is difficult to predict how this case will turn out, as more than one justice asked questions that suggest that their vote is, at least, in play. But the outcome is likely to hinge upon the tension within Roberts — who both signaled that he wants the oil companies to win, but who also expressed deep skepticism of their primary legal argument.
So what is Suncor actually about?
Suncor is one of many lawsuits brought by state or local governments (in this case, the plaintiff is Boulder, Colorado) who’ve sued oil companies claiming that those companies should be liable for the harms caused by climate change within those governments’ jurisdictions. In this particular case, the defendants are Exxon Mobil and Suncor, a company that operates two oil refineries in Colorado.
The lawyer for these two companies, Kannon Shanmugam, told the justices that there are about 60 similar cases brought by municipal governments throughout the country. And, in one of his more pro-oil moments during Monday’s oral argument, Roberts predicted that if Boulder wins in the Supreme Court, there will be numerous other copycat lawsuits filed by other municipalities.
The question in Suncor is whether state courts, including Colorado’s own courts, are forbidden from hearing these sorts of climate change lawsuits.
As Roberts pointed out in one of his less pro-oil moments during Monday’s argument, “there are a lot of familiar situations where conduct outside of a state has broad effects on other states…and yet we allow the state courts in a particular state to bring litigation.” He pointed to “mass tort” suits and “complaints about operations of the internet” as two examples where state courts hear lawsuits involving harms that arise across state borders.
The oil companies’ primary argument is that suits involving air and water pollution are special. But their evidence supporting this argument is confusing and difficult to parse.
Briefly, the oil companies point to several cases, many of which were decided more than a century ago. These cases held that, before Congress enacted the Clean Air Act in 1963, states could sometimes sue other states for cross-border pollution, even though no federal law forbade such pollution. The Supreme Court created “federal common law” permitting these suits, and the oil companies claim that this federal common law preempted any state lawsuits that covered a similar subject matter.
This federal common law, they now argue, has itself been displaced by the Clear Air Act and its partner statute, the Clean Water Act, but the principle that state suits involving air and water pollution are preempted is somehow still in effect. Although there is no provision in the text of the Constitution that supports this argument by the oil companies, those companies claim that their argument is implicit in the “structure of the Constitution.”
The oil companies’ primary legal argument is difficult to understand
If you are confused by all the arcane history and logical leaps contained in the oil companies’ argument, don’t worry. So were most of the justices. Only Justice Brett Kavanaugh, who repeatedly claimed that his Court’s precedents bar Boulder’s lawsuit, seemed to buy what the oil companies are saying without reservation. Most of the other justices expressed at least some reservations.
Justice Amy Coney Barrett, for example, argued that even under the older “federal common law” regime, states still retained some authority over environmental lawsuits, although she noted that the Court’s previous decisions do not really define the scope of that authority. Kagan pointed out that the many suits challenging climate change are similar to past litigation against tobacco and opioid manufacturers. But those suits were heard by state courts.
Many of the justices appear bothered that these lawsuits exist, but the most skeptical justices couldn’t agree on a legal theory they could use to shut them down.
It seems unlikely, in other words, that there are five votes for the oil companies’ convoluted claim that the “structure of the Constitution” somehow bars state courts from hearing climate change lawsuits. But several of the justices did appear troubled by what could happen if dozens of state courts reach conflicting judgments on who is responsible for climate change and who should receive compensation because of it. And some of these justices floated alternative theories for how to hand the oil companies a win.
At one point, for example, Barrett floated the possibility that, if the plaintiffs lose in Suncor, they might file a new suit under the now-defunct federal common law that existed prior to the Clean Air Act. Kagan, meanwhile, suggested that perhaps the Clean Air Act could be read to preempt these suits like Suncor. According to Kagan, that law “sets up an extremely complicated scheme about how regulations of emissions should operate,” and allowing states to hear lawsuits like Suncor would “get in the way of how Congress decided to regulate greenhouse gases.”
And Roberts didn’t so much offer a legal argument in favor of the oil companies’ position as express incredulity of what would happen if those companies lose. “Presumably if you prevail,” before the Supreme Court, Roberts told Kevin Russell, the lawyer for Boulder, “the next day a municipality in every single state will file a lawsuit, copy your pleadings, and then there will be at least 50…how do you think that will work out on the ground?”
All of which is a long way of saying that the outcome in Suncor is uncertain. The oil companies led with a weak legal argument, and only Kavanaugh seemed to fully embrace that argument. Many of the justices appear bothered that these lawsuits exist, but the most skeptical justices couldn’t agree on a legal theory they could use to shut them down.
For what it is worth, the oil companies actually do make a strong policy argument that it is a bad idea to allow state courts to do so. As they argue, climate change is a global problem caused by many polluters (and companies like Exxon that supply the oil burned by polluters) throughout the world. It could be impossible to determine which specific companies caused the specific problems caused by climate change in Boulder, Colorado. And even if this obstacle can be overcome, there are many thorny questions about which state’s law should apply when pollution from one state crosses over into another, not to mention the difficult diplomatic issues that could arise if a state court orders a foreign company to pay a large sum of money.
But under our Constitution, the proper solution if the oil companies want federal law to preempt state court suits like Suncor is that they can lobby Congress, and Congress could then draft a statute that balances these companies’ interest in avoiding many conflicting legal decisions with the interests of plaintiffs like Boulder who say they are experiencing real harms from climate change. Congress has the power, for example, to combine all of these state lawsuits into one grand federal lawsuit, where a single proceeding could determine how to portion out the costs of climate change to various energy companies, and how to divide whatever these companies are ordered to pay among the various plaintiffs.
But that solution would undoubtedly require compromises that companies like Exxon will not like. So, instead, they’ve asked the Supreme Court to give them the legal regime that they want, despite the fact that they could not articulate a persuasive legal argument for that outcome. It remains to be seen whether this Court will give the oil companies a win anyway.
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