On October 5, eight Justices of the U.S. Supreme Court heard oral arguments in a case that could determine whether a single county can hold energy companies liable for global climate impacts. The case, Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, questions whether state and local governments can impose liability on American companies for carbon dioxide emissions and their effects on worldwide climate. Justice Samuel Alito recused himself just one week before arguments, and if the remaining eight Justices split evenly, Colorado's decision would stand and the case would proceed to trial in state court.
After nearly two hours of oral arguments, the Justices sent mixed signals on whether climate lawsuits should move forward in state courts. Boulder County claims it's not trying to regulate greenhouse gas emissions, but rather seeking compensation for harms in Colorado caused by Suncor and ExxonMobil's production and marketing of fossil fuels while knowing and misrepresenting the risks. Dozens of other jurisdictions have filed similar suits in state courts. Justice Alito disclosed after the arguments that he and his wife own individual stock in oil companies ConocoPhillips and Phillips 66, neither of which is named in the Suncor case.
Several Justices expressed skepticism about Boulder's approach. Justice Neil Gorsuch asked whether it was "anomalous" to apply state law to worldwide conduct, while Justice Brett Kavanaugh said the Court's precedents make it "crystal clear" that issues involving interstate air and water pollution are subject to federal preemption. Boulder's attorney compared the county's claims to a product liability lawsuit against an automaker for a defective car, but the report notes this analogy is odd since the county isn't arguing oil is defective—oil remains vital to the economy and everyday living, and Boulder County hasn't sought to ban it. Justice Elena Kagan seemed more receptive, arguing the approach "appears to be based on the old 1990s tobacco suits" which had been allowed to proceed, though even she pointed out that "everything depends on this idea that the defendants are responsible for excessive emissions."
The energy companies argue that one state can't regulate inherently interstate matters and that federal law has traditionally overseen interstate air and water pollution. Their lawyer described Boulder's claims as an "unprecedented effort to use state law to regulate global conduct." Chief Justice John Roberts raised the practical question of how it would work to manage approximately 50 similar or identical lawsuits following Suncor's outcome. Boulder County's lawyer admitted to Justice Clarence Thomas that under their arguments, nothing would stop suits against large retailers, which could extend to gasoline stations, petrochemical manufacturers, and even dairy farmers, since cows emit methane. The Independence Institute joined two amicus briefs urging the court to take the case and again on the merits, arguing that one state cannot make national energy policy and companies cannot be beholden to hundreds or thousands of separate environmental agencies.
A ruling is expected before the term ends next summer. If the Court ties at 4-4, Colorado's decision stands and cases stayed in other states can resume. Boulder's attorney told Justice Amy Coney Barrett that the suit would make companies "internalize a portion of the cost of their activities," but the report concludes that cost will ultimately land not just on Colorado consumers, but on national and international customers.