Legal Analysts Say Climate Lawsuit Faces Uphill Battle at Supreme Court

Legal experts say climate litigation may face an uphill battle after observing Supreme Court justices’ reactions to oral arguments presented on Oct. 5 in a lawsuit being brought by Boulder, Colorado, against energy companies.

Boulder is arguing that CO2 emissions cause global warming, leading to an increase in extreme weather, including droughts and wildfires, that have proven costly to Colorado residents. Defendants in this case are Suncor, a Canadian company operating refineries in Colorado, and ExxonMobil, the largest U.S. energy company.

But several justices zeroed in on questions regarding whether municipal courts were the appropriate venue to decide on a global issue like climate change, as well as the impact on America’s energy industry if climate lawsuits are allowed to proliferate across the country.

“I think [Justice Brett] Kavanaugh’s line of questioning was incredibly straightforward,” Alabama Attorney General Steve Marshall told The Epoch Times. “The Supreme Court has made it abundantly clear that air and water is an area left specifically for federal law and that the folks in Colorado are attempting to circumvent that precedent.”

Hans Von Spakovsky, senior fellow at the Heritage Foundation, concurred.

“I think it was a good day for Suncor and Exxon,” he told The Epoch Times. “I thought the lawyer for Boulder had to admit that if they ruled in his favor there would be no limiting principle on what could happen” with other lawsuits.

Compensation or Regulation?

“Colorado is trying to morph their claims to avoid Supreme Court precedent, and multiple justices seemed to make it pretty clear that either [Boulder’s] arguments are foreclosed by preemption in the Clean Air Act, or they run into the structure of our Constitution because you can’t have one state governing in other states and regulating like that,” O.H. Skinner, executive director for the Alliance for Consumers, told The Epoch Times. “I saw a path to a five-vote victory for the defendants and it should be a huge win for consumers.”

Carrie Severino, president of Judicial Crisis Network, posted on X on Oct. 5 that “the Justices appeared skeptical of Boulder, Colorado’s bid to regulate worldwide energy production through state tort suits.”

Kavanaugh stated that it was “crystal clear” from court precedents that federal law governs issues such as interstate air and water disputes, Severino noted, and “Chief Justice [John] Roberts correctly observed that Boulder’s suit is ultimately ‘an effort to reduce emissions.’”

Questions Regarding Impact

According to Utah Attorney General Derek Brown, the justices also raised questions regarding the potential impact of dozens of other similar lawsuits across the country that would likely go forward if Boulder’s suit is allowed to proceed.

“The chief justice specifically asked a counsel for Boulder County: If they were to win, probably another 30 lawsuits will be filed the morning after, and what does that look like and are we prepared for that?” Brown told The Epoch Times. “And so it shows that not only are they looking at the law, but they’re looking at what does this look like from a practical standpoint.”

If Boulder’s lawsuit is allowed to proceed, critics say, there may be no limit on how many other lawsuits could be brought or how much compensation energy companies would have to pay. Although Boulder has not named a dollar figure in its lawsuit, one similar climate lawsuit in Multnomah County, Oregon, is claiming $50 billion from Exxon, Chevron, and other energy companies for damages and for an abatement fund against heat waves and wildfires.

Kannon Shanmugam, the attorney representing Suncor and Exxon, told justices that there are tens of thousands of other municipal jurisdictions in the United States, any of which could bring suits against companies for greenhouse gas emissions.

“I think [justices] clearly understood that that kind of an open field wouldn’t just affect energy companies; it would affect every single industry, manufacturer, or anyone who has any kind of discharge into the air, and I just don’t think they’re going to allow that to happen,” Von Spakovsky said. “I think even [Justice] Elena Kagan might go along with the majority in tossing out what the Colorado Supreme Court did.”

Returning the Case to Colorado

One issue that could favor Boulder, raised by liberal justices Sonia Sotomayor and Ketanji Brown Jackson, was whether it was premature for the Supreme Court to hear Boulder’s case, given that it hadn’t yet come to trial at the local level.

“I thought it was interesting that Justice Sotomayor and Justice Jackson both focused their questions around whether or not the court had jurisdiction to hear the case at this point,” Marshall said.

However, according to Skinner, a positive sign for energy companies is that, even though two justices appeared to consider sending the case back to Colorado, there was little commentary from any of the justices that appeared to support the lawsuit itself.

“This is either a win for the defendants or the court sends it back to come up later,” Skinner said. “There was no evidence that even the liberal justices really seemed to have a strong belief in what Colorado was doing.

“Most of the questions from Justice Sotomayor and Justice Jackson were about whether this case should go down and come back later, and Justice Kagan, if anything, seemed to be asking questions that implied that there had to be some sort of limit on these kinds of cases,” he said.

If the Supreme Court rules against Boulder in this case, the ruling would likely undermine, if not eliminate, numerous other municipal suits being brought against energy companies. However, because Justice Samuel Alito recused himself from the case, there remains the possibility of a four-four tie in the decision.

“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,” Severino stated.