Suncor Energy v. Commissioners of Boulder County is an ongoing climate tort case. It stands to either open the floodgates of climate tort litigation or seriously curtail access to the justice system. The case has risen to the Supreme Court, with oral arguments being heard earlier this month. Based on the Justices’ reactions, the court seems split on how to approach the case. A recent blog from the Stanford Law School Environmental and Natural Resources Law & Policy Program discusses the Justices’ positions:
“Boulder and other climate litigation proponents liken these cases to the 1990s lawsuits on the harmful effects of tobacco and the more recent opioid litigation… Justice Kagan told the lawyer for the energy companies during oral argument. ‘This is the same kind of lawsuit, against the same kind of actor for the same kind of harm.’
Justice Kagan did, however, seem to engage with fossil-fuel petitioners’ arguments that the EPA’s Clean Air Act authority to regulate greenhouse gas pollution at the federal level preempts Boulder’s state-law claims for damages… An interesting wrinkle here, of course, is that the EPA has recently disclaimed the power to regulate greenhouse gases, leading Justice Gorsuch to ask whether ‘nobody can sue at all?’
Other justices, namely Justice Kavanaugh, latched onto ExxonMobil and Suncor’s constitutional structural argument that the regulation of carbon emissions is inherently a federal issue, since pollution can waft across state and international borders.
It’s possible, however, that the Court will not have to grapple with any of these substantive arguments: Both Thomas and Jackson suggested in their questioning that the case, which is still in the early stages, is not yet ripe for Supreme Court review. This would offer a procedural escape valve for the Court.”
The blog notes that Justice Alito recused himself, providing a potential path to a 4-4 split. Under this outcome, the Colorado Supreme Court’s previous ruling would control, allowing the case to move forward. The conservative Justices are likely aware that a narrow ruling in favor of Suncor will be difficult. If the Supreme Court agrees that all federally regulated industries are immune from private tort litigation, it could upend the entire litigation ecosystem in the U.S. This makes the most likely outcome either a 4-4 split or a procedural punt. However, this Court has taken some big swings in the past, so a massive upheaval for tort litigation isn’t out of the question.
Our members can learn more about climate tort cases here.
