Nearly a decade ago, the outdoorsy, liberal enclave of Boulder, Colo., sued two oil companies over their role in climate change. Now, the Supreme Court will consider whether the groundbreaking lawsuit can ever go to trial.
Its decision will resonate far beyond the Rockies.
A win for Boulder would likely clear the way for dozens of similar lawsuits nationwide aiming to extract billions of dollars from the fossil fuel industry to fight global warming. But if the court kills Boulder’s case, that could doom the others, handing a major victory to oil companiesBoulder’s lawsuit says the two oil companies, Exxon Mobil and Suncor Energy, should help pay for the damage to the state of Colorado — such as worsening heat waves and wildfires — caused by climate change, which is driven by the burning of fossil fuels. The companies say Boulder’s lawsuit should be thrown out because it was filed under state law, when federal law should have precedence.
“This is very much the case to watch because it’s at the Supreme Court,” said Michael Pappas, a professor at the University of Colorado Law School. “Is this something that state law can answer, or does federal law foreclose the opportunity?”
A small army of business groups, conservative legal theorists, Republican lawmakers and others have lined up to support Exxon and Suncor, and the Trump administration is also expected to argue before the court in support of the companies.
Among their arguments: Letting the case proceed under state law would unleash legal chaos by opening the door to countless similar suits. “Every locality in the country could sue essentially anyone in the world for contributing to global climate change,” according to a brief supporting the energy industry filed by lawyers for the Trump administration. The Justice Department declined to comment for this article.
About three dozen similar cases have already been filed by state and local governments to date. None has yet gone to trial, and some have been dismissed, but about two dozen remain active.
“The U.S. Supreme Court must allow our case to continue, not bail out the oil companies before hearing the facts,” said Ashley Stolzmann, county commissioner for Boulder, in a statement.
Boulder’s lawsuit argues that the defendants caused physical harm to Colorado by selling fossil fuels, and covered up what they knew about the dangers of climate change in order to continue those sales. The lawsuit also alleges that the companies paid for campaigns to undermine the scientific consensus about the existence and causes of climate change.
Boulder says that the companies, not taxpayers, should bear the costs of mitigating the harm caused by climate change. Those costs could be significant. A report released this year by the Colorado Fiscal Institute, which tracks budget issues in the state, found that climate change could impose up to $37 billion in additional costs on the state over the next 25 years.
The companies and their supporters argue that lawsuits like Boulder’s are an attempt to regulate the fossil fuel industry via litigation instead of through laws passed by Congress. As Todd J. Zywicki, a professor at George Mason University Antonin Scalia Law School, put it in a recent webinar: “What this case is about is a bunch of one-percenter hippies in Boulder County who want to tell the rest of us how we have to live.”
Suncor did not respond to requests for comment.
“The stakes in this case couldn’t be higher, as a single county in Colorado wants to dictate energy policy for the entire country.” said Elise Otten, a spokeswoman for Exxon. “We firmly believe climate change is a real and pressing issue, and that’s why we need sound policy at the federal level to reduce emissions and keep affordability top of mind.”
The lawsuit’s origins
Boulder is a picturesque university town at the base of the Rocky Mountains with a history of policies addressing climate change.
Two decades ago, it adopted a “carbon tax” — a fee tacked on to electricity bills based on how much of the power was generated by fossil fuels — to help fund local efforts to lessen the effects of global warming. It is home to a concentration of science and environmental experts and research centers, including the National Center for Atmospheric Research, which the Trump administration has announced plans to break up.
In an interview, Gov. Jared Polis noted that two of Colorado’s largest industries are climate-dependent: agriculture and tourism, particularly skiing. “Climate issues are very much bread-and-butter issues for our residents,” he said. Mr. Polis declined to comment directly on the lawsuit.
There are no public opinion polls about the case, but some residents who were interviewed have expressed support.
Among them are Tawnya and Kahlil Somauroo, who lost their home in the Marshall Fire of Dec. 30, 2021, after evacuating with their twin daughters, then 3. The fire “was so far out of the scope of what people thought could happen that, when it was happening, we were like fighting the disbelief,” said Ms. Somauroo, a patent attorney.
The Marshall Fire struck well after the end of the traditional summer fire season. The wind that day gusted to 100 miles per hour, fanning flames that raced across a landscape turned to tinder by a fall that set records for heat and dryness. As they rebuilt, they were frustrated by the local government’s focus on limiting greenhouse gas emissions rather than on reducing immediate fire risk.
The couple said they both are eager to see the case proceed. “This is the only place where this conversation I want to happen is apparently going to happen,” Ms. Somauroo said.
Four possible outcomes
Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia, recently laid out four possible outcomes.
The first three possibilities — that the justices allow the case to continue, knock out some of Boulder’s claims, or decide that it’s too early to decide — would allow the case (and at least some of the other lawsuits) to continue.
A fourth outcome would be a decision that definitively knocks out all of Boulder’s claims, a finding, for example, that they are all pre-empted by the federal Clean Air Act or that they are international issues that cannot be decided by state courts.
“If that’s what happens, all these other cases will go away,” Mr. Gerrard wrote.
It came as a surprise that the Supreme Court decided to hear the case. It typically takes only a small fraction of those that are sent for possible review each year, and the justices had previously declined to review a similar case in Hawaii.
Rachel Heron, senior counsel for litigation strategy at the Natural Resources Defense Council, pointed out a factor that might have swayed the court. The Justice Department under the Trump administration has reversed its Biden-era stance on Boulder’s case, supporting the industry.
Another factor might be the small number of defendants. Many other similar cases include long lists of defendants, but Boulder has only two, Exxon and Suncor. The energy companies have argued to the Supreme Court that this makes the case simpler and therefore an “ideal vehicle” for the justices to weigh in on.
Their main argument was that the shorter list of defendants meant the case was less likely to present “recusal issues” for Supreme Court justices. That was widely understood as a reference to Justice Samuel A. Alito Jr., who in fact recused himself from the case on Sept. 28, just a week before the arguments, without explanation. Many observers had expected Justice Alito to side with the companies, dealing them a potential blow.
Justice Alito holds investments in ConocoPhillips and Phillips 66, both oil companies, according to his financial disclosures, and had recused himself from other cases because of those holdings. . Justice Alito’s critics have also pointed to a fishing trip he took nearly 20 years ago with Paul Singer, whose hedge fund, Elliott Investment Management, has holdings in Suncor.
The Supreme Court ethics policy leaves decisions about when to recuse to the justices, and they are not required to give a reason when they do so, although some explain their choice. Typically, justices recuse in cases where their impartiality could be questioned, such as if a close friend or family member is involved in a dispute or if they have a financial tie to a party.
A representative of Elliott declined to comment. Justice Alito did not respond to a request for comment.
If a deadlock were to occur, where the justices split 4 to 4, the lower court decision would stand. In this case, that would mean Boulder’s case could continue in the lower courts. Deadlocked decisions set no legal precedent, leaving the broader legal questions for another day.
When the justices in February agreed to hear the petition, they also asked both sides for their view on whether the Supreme Court had jurisdiction to consider the case. The issue is whether it’s too early for the nation’s highest court to weigh in on a lawsuit that’s still in a preliminary stage, given that no jury has yet heard arguments or rendered a verdict.
Ms. Heron took that as a signal that at least some of the justices “have some pretty serious misgivings” about the court’s authority to take the case at all.
Tobacco similarities?
Supporters of the Boulder litigation draw an analogy to cases brought against the tobacco industry in the 1990s. Those cases led to a $206 billion settlement with nearly all American states, one of the biggest liability settlements in history.
In the tobacco cases, documents that the industry was required to provide for the litigation ultimately proved crucial for the plaintiffs. In today’s climate lawsuits, the plaintiffs hope a similar process might unfold as they obtain oil company records during the process of discovery, when files like these must be handed over. So far, only a handful of the cases have gotten to the discovery phase.
Gale Norton, who helped negotiate the tobacco settlement and who was Colorado’s attorney general in the 1990s, opposes the climate litigation and argues that the tobacco analogy misses the mark. One major difference is the number of parties who could be held responsible, Ms. Norton said in an interview.
The tobacco companies were a relatively finite pool. But the climate cases could potentially extend to public utilities, mining companies, carmakers and other categories. “So many industries and companies that could be affected by creative use of climate change litigation,” she said.
Another is the role that tobacco and fossil fuels play in daily life. “The societal benefit of tobacco is nil, whereas the societal benefit of using fossil fuels has been hugely beneficial in so many ways,” she said. “There are so many ways in which human lives are vastly benefited by fossil fuels.”
A crucial paradox
Environmental lawyers will also be watching to see if the “endangerment finding” comes up during arguments. It is a scientific finding by the Environmental Protection Agency that greenhouse gases pose a risk to public health and thus should be regulated under the federal Clean Air Act.
The Trump administration revoked the endangerment finding this year.
Critics say that’s a paradox: The federal government is trying to get out of the business of regulating greenhouse gases, while also saying it has sole authority to regulate greenhouse gases. But industry supporters say the Constitution still prevents any single state from exercising such a power, regardless of what action the federal government does (or doesn’t) take.
Abbie VanSickle contributed reporting from Washington.
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