Justices debate whether local governments can sue energy giants for harms linked to climate change
By James Romoser
WASHINGTON -- Oil companies seeking to avoid lawsuits over climate change faced skeptical questions Monday at the Supreme Court, with several justices expressing doubts about the industry's campaign to shut down dozens of cases brought by state and local governments.
On the first day of the court's new term, the justices debated whether communities can sue energy giants for billions of dollars to pay for local harms allegedly caused by extreme weather events that scientists say are tied to the worldwide burning of fossil fuels. Justices across the ideological spectrum noted that state-based lawsuits are routinely used to target activities with widespread effects, such as the marketing of tobacco, the manufacture of asbestos or the production of defective automobiles.
"There are a lot of familiar situations where conduct outside of the state has broad effects among other states," Chief Justice John Roberts said. "What makes this situation different from all those other ones?"
The high court is weighing a lawsuit by Boulder, Colo., against ExxonMobil and Suncor Energy. Boulder claims that the companies contributed to climate change and deceived consumers about the risks of greenhouse gases. Similar lawsuits are pending around the country and threaten the energy industry with massive financial liability.
Justice Samuel Alito, who owns stock in several energy companies, has recused himself, raising the possibility that the court could deadlock 4-4. That outcome would leave in place a lower-court decision that said Boulder's lawsuit should proceed toward trial.
Justice Neil Gorsuch, a conservative whose vote could be pivotal, seemed open to allowing at least some state-based claims for climate change damages to proceed.
Gorsuch questioned the oil companies' argument that the Constitution and federal law reserves climate policy for the U.S. government, noting that the Environmental Protection Agency has taken the position under President Trump that the Clean Air Act doesn't authorize many of the agency's prior rules to combat climate change.
"As I understand it, EPA has disclaimed the power to regulate greenhouse gases," Gorsuch said.
Still, several justices expressed concern about opening the floodgates to climate-based lawsuits, with numerous municipalities filing individual cases against any company that contributed to greenhouse gas emissions.
"If you prevail, is there a limiting principle as to whom you can sue?" Justice Clarence Thomas asked a lawyer representing Boulder.
Roberts also noted the practical complications of so much potential litigation.
Kevin Russell, a lawyer for Boulder, said that Congress could pass a law to limit such lawsuits and that the Constitution also contains procedural safeguards. But he acknowledged that, under his legal theory, many companies could be sued for contributing to climate change.
"When lots of people act together to cause widespread harm, it is not uncommon for multiple different defendants to be potentially liable," he said.
Kannon Shanmugam, representing the companies, said the debate over climate change -- and who should bear its costs -- should be resolved by Congress and the president, not by local judges and juries.
"This case and others like it reflect an all-too-regrettable trend of trying to resolve major political issues in court rather than leaving them to the political branches where they belong," Shanmugam said.
By the end of a lively argument session, only one member of the court -- Justice Brett Kavanaugh -- appeared clearly in the companies' camp. He said that prior Supreme Court cases have made clear that air and water pollution are exclusively federal, not state, issues.
And he raised the specter of ruinous financial liability across the fossil fuel industry if state and local lawsuits proliferate. "If there are enough of these, it's going to bankrupt these various defendants," Kavanaugh said.
The Trump administration argued in support of the industry's efforts to have the lawsuits dismissed.
The Supreme Court's three Democratic-appointed justices -- Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson -- all appeared inclined to allow the lawsuits. Kagan expressed surprise about the companies' argument that states should have virtually no role in climate policy.
"Where's the support for that?" Kagan asked. "Where's the precedent for that? Where's the anything for that?"
Kagan said that lawsuits aimed at damages from climate change are analogous to state lawsuits in the 1990s against tobacco companies and, more recently, state lawsuits alleging deceptive marketing of opioids.
A decision is expected in the coming months.