The US Supreme Court's justices appeared split Monday during oral arguments over the fate of dozens of pending lawsuits seeking billions of dollars in damages from oil companies for allegedly contributing to climate-related damages.
The case will decide if Boulder, Colorado, and other cities can continue pursuing lawsuits in state court against oil companies for wildfires, drought and other climate-related effects they attribute to the sale of gasoline and other fossil fuels. Canadian oil company Suncor, ExxonMobil and other oil companies named as defendants in Boulder's lawsuit say the passage of the Clean Air Act effectively preempted state lawsuits related to interstate air pollution.
"If Boulder's claims are allowed to go forward, some 90,000 municipalities across the country will have the ability to make national and international energy policy by asking juries to impose catastrophic damages on selected fossil fuel producers," Suncor's attorney Kannon Shanmugam told the court on Monday.
In 2011, the Supreme Court already ruled unanimously that fossil fuel companies could not be sued in federal court for climate damages because the Clean Air Act had already given the US Environmental Protection Agency (EPA) the complex "balancing act" of regulating air pollution. But President Donald Trump's decision to disclaim authority over greenhouse gases under that law — an action being challenged in a separate lawsuit — has injected further uncertainty into the case.
"It is difficult to decide whether the Clean Air Act preempts these claims when we don't know whether the Clean Air Act applies to greenhouse gas emissions," Boulder's attorney Kevin Russell said.
The court's liberal justices appeared unconvinced that the state-level lawsuits could not move forward. The Supreme Court already allows nuisance claims in state court under the Clean Water Act, so "I don't see why we wouldn't permit it under the Clean Air Act either," justice Sonia Sotomayor said.
Supreme Court justice Brett Kavanaugh, a conservative, said the court did not have to "reinvent the wheel" to decide the case because it already said multiple times that air pollution is a federal issue, not a state issue, unless Congress provides an exception. But other conservative justices wondered if that logic still applied. Justice Neil Gorsuch questioned how "nobody can sue at all" when the Trump administration has "disclaimed the power to regulate" greenhouse gases.
Another conservative justice, Amy Coney Barrett, appeared skeptical of a claim by Shanmugam, on behalf of Suncor, that "regardless of what EPA says" about its greenhouse gas authority under the Clean Air Act, state courts would be unable to address interstate air pollution under the structure of the US Constitution.
"I think that's a little slippery," Barrett responded.
Supreme Court justice Samuel Alito recused himself from the case, meaning one conservative justice would need to join the court's three liberals justices to create a 4-4 split. If that occurs, a lower court ruling allowing the Boulder case to move forward would remain intact, while other court rulings blocking state-level damages lawsuits against oil companies would remain in place. Colorado's courts have yet to decide on the merits of the Boulder lawsuit.
