Exxon’s Clean Air Act defense in Boulder’s Supreme Court climate case collides with Trump’s EPA

The Supreme Court opened its new term Monday with Exxon Mobil and Suncor Energy asking it to throw out a climate lawsuit brought by the city and county of Boulder, Colorado, and the justices sounded split on how to decide it, NBC News reports. The answer could reach more than two dozen similar suits that cities and counties have filed around the country. Justice Samuel Alito sat the case out, which leaves eight justices and the possibility of a 4-4 tie that would settle nothing and let Boulder’s case keep going.

Boulder sued in 2018 under Colorado state law, ABC News reported ahead of the argument. The city and county want damages for local costs they tie to climate change, from wildfire risk to a mountain pine beetle outbreak that officials say has hit more than 700,000 acres of Colorado forest. The complaint says Exxon and Suncor misled consumers about what the greenhouse gases from their products would do to the climate.

The companies deny it. They warn that if suits like this reach trial, energy companies could face damages in the billions, and they argue climate change is too national and international a problem for state courts. Twenty-six states back them, and so does the Trump administration, which filed a brief on their side.

Their lawyer, Kannon Shanmugam, pushed the broad version of that defense: a ruling that the Constitution bars state lawsuits like this one. The narrower version got the friendlier hearing. The Clean Air Act, which Congress passed to regulate air emissions nationwide, could preempt, or override, state claims about those emissions. Justice Elena Kagan said that could be “the more natural and simpler route” if the court sides with the companies. Justice Brett Kavanaugh said the court’s precedents were “crystal clear” that air pollution belongs to federal law. “We don’t have to reinvent the wheel,” he said.

In 2011, in American Electric Power v. Connecticut, the court shut the door on certain climate claims against energy companies in federal court because the Clean Air Act displaced them.

Trump’s EPA no longer agrees the law covers those emissions. The agency is trying to eliminate greenhouse gas regulations under the Clean Air Act, a fight now in litigation that could reach the justices in a later case. Boulder’s lawyer, Kevin Russell, put the bind to the bench: “I think it is difficult to decide whether the Clean Air Act pre-empts these claims when we don’t know whether the Clean Air Act applies to greenhouse gas emissions when the EPA is saying it lacks the statutory authority to do that.”

So the administration is backing the oil companies’ best argument in court while its environmental agency argues the premise out from under it. A preemption ruling now would say a federal law blocks state climate claims over emissions the agency running that law says it has no authority to regulate. If the EPA wins its own case, the simple route gets harder to take, and the companies are left leaning on Shanmugam’s broader constitutional argument.

Justice Sonia Sotomayor noted that even if the Clean Air Act stops states from capping emissions, Boulder’s suit doesn’t try to. “The Clean Air Act does not regulate marketing or advertising of fuel, correct?” she asked. Kagan compared the case to the tobacco and opioid suits that were allowed to proceed, which the companies say had a much more direct line from product to harm.

“Presumably, if you prevail, the next day a municipality in every single state will file a lawsuit,” Chief Justice John Roberts told Russell. Roberts seemed skeptical the suit was anything other than “an effort to reduce emissions,” and he also said state-court suits against out-of-state companies over a harmful product are commonplace.

Exxon and Suncor need five of the eight justices who heard the case, and the shortest path to five runs through a statute their own federal ally is arguing doesn’t reach greenhouse gases.

Sources

• NBC News: New Supreme Court term begins with justices stumped by climate change case
• ABC News: Killer beetles, tinderbox forests: Climate change takes center stage in SCOTUS battle over oil companies