Supreme Court to hear case Monday on if localities can sue oil companies for climate damages

The Supreme Court will hear a major climate case Monday that could determine the future of state and local efforts to recover damages from fossil fuel companies over their role in global warming.

The case in question, Suncor v. Boulder, is an appeal of a Colorado Supreme Court decision that allowed claims of climate damages brought by Boulder city and county against oil companies to proceed.

Ultimately, the justices’ decision could lead to similar cases around the country being tossed.

“What’s at stake is the future of litigation seeking money damages from fossil fuel companies over climate change,” said Michael Gerrard, faculty director of Columbia Law School’s Sabin Center for Climate Change Law.

Gerrard said if that happens, localities will not be able to collect funds from these major climate change contributors and will have to find another way to pay for protections against rising sea levels, floods and wildfires.

He estimated there are about two dozen such lawsuits underway.

Meanwhile, Gerrard said if these climate lawsuits are ultimately successful in the underlying cases, that would mean “massive damages that would be very difficult for the companies to pay.”

Suncor and ExxonMobil have asked the Supreme Court to reverse the Colorado Supreme Court decision, arguing that federal law preempts state-level cases on the issue.

“In these cases, state and local governments are attempting to assert control over the Nation’s energy policies by holding energy companies liable for worldwide conduct in ways that starkly conflict with our constitutional structure, as well as the policies and priorities of the federal government,” they wrote in a brief asking the high court to take the case.

But Boulder argues that federal laws don’t preempt its state-level claims.

“There is no constitutional bar to states addressing in-state harms caused by out-of-state conduct, be it the negligent design of an automobile or sale of asbestos,” said a brief from the city and county.

The high court agreed to take up the case earlier this year. When it did so, the justices raised questions about their own authority to hear the case in the first place, saying they would also weigh that question.

Gerrard said if the court rules it does not have the authority to do so, that’s effectively a “punt” and the case could come back to the high court at a later date.

He said if this happens, “the Boulder case would go forward, so would several of the others, and this issue will probably come back before the Supreme Court, but probably not for quite a while.”

Since that announcement, Justice Samuel Alito has recused himself from the case, as his financial disclosures showed holdings in other oil companies.

The justice told Bloomberg he believed his recusal was “prudent” but not required. He also said his wife, Martha-Ann Alito, inherited the energy stocks, saying, “She wants to hold on to individual stock, and so we have stock holdings in some companies in the oil and gas field.”

The Trump administration has sided with the oil companies, writing that climate damage suits “severely interfere with the federal government’s constitutional and statutory responsibilities.”

Meanwhile, Erika Kranz, senior staff attorney at Harvard Law’s Environmental and Energy Law Program, said the federal government’s argument in this case is “in tension” with its moves to step away from regulating greenhouse gas emissions from cars and power plants.

“It’ll be interesting to see if the judges bring up this tension and how the government explains its position,” Kranz said.