The Supreme Court will hear arguments on Monday in what may be its biggest climate case in nearly two decades, a dispute over whether Boulder, Colorado, can sue Exxon and the Canadian energy company Suncor for damages the city ties to global warming.
The stakes reach far past one city. Dozens of local governments have filed similar lawsuits against energy companies, and the court’s answer could shape the whole wave of them. The city and county of Boulder seek billions of dollars in damages for fires and floods they say rising temperatures caused, and they accuse the companies of misleading the public about their role in climate change.
President Trump’s administration is siding with the oil companies. “The intended effect of these lawsuits is to impose an enormous ‘carbon tax,’ in the form of billions of dollars of damages, that could ‘bankrupt’ the energy industry,” Exxon and Suncor told the justices. The companies argue that regulating emissions is inherently federal, in part because pollution crosses state lines, and that letting every city in the country sue would produce a chaotic patchwork of rules.
Boulder’s answer is aimed squarely at two of the court’s most conservative members. Lawyers fighting Exxon quoted Justice Clarence Thomas and Justice Neil Gorsuch six times in written arguments filed over the summer, betting that both will follow a position they have taken repeatedly: that federal law cannot displace state law without a clear statement from Congress. Boulder counters in its brief: “This litigation is not an attempt to solve climate change; it merely asks that petitioners bear their fair share of local costs incurred in part because of their tortious conduct.”
“The justices to watch here are very much Justice Gorsuch and Justice Thomas,” Deepak Gupta, an appellate attorney, said at an event hosted by the Supreme Court Institute at Georgetown Law Center. “I think they will find the lack of any textual hook for these arguments troubling.”
Justice Thomas, nominated by President George H.W. Bush in 1991 and now the court’s longest-serving member, has a long record against environmentalists. He opposed federal regulation of wetlands, resisted efforts to cut power plant emissions and signed on to a decision letting San Francisco pump more sewage into the Pacific Ocean. But this case turns on which law governs, state or federal, and on preemption questions both he and Justice Gorsuch have often ruled against Washington.
“Justices Thomas and Gorsuch have both written opinions that firmly reject the idea that federal law can shove state law out of the way based on hazy arguments about a law’s intentions or policy consequences,” said Kirti Datla, director of strategic legal advocacy at Earthjustice, an environmental group that filed a brief opposing Suncor and Exxon. “That’s what Suncor’s arguments boil down to in this case, so they should reject this move again here.”
The cities’ lawyers point to an April decision in which Justice Thomas, writing for a 6-to-3 majority, rejected a military contractor’s argument that a state tort claim from a soldier gravely wounded by a suicide bomber at Bagram Air Base was preempted because war is an inherently federal matter. “There is no federal preemption in vacuo, without a constitutional text or a federal statute to assert it,” he wrote. Boulder cites that case four times in its latest brief, including in the second paragraph.
Then there is the 2019 Virginia uranium case, decided against mining companies that argued federal law overrode the state’s ban. “Invoking some brooding federal interest or appealing to a judicial policy preference should never be enough to win preemption of a state law,” Justice Gorsuch wrote. Justice Thomas joined.
John Yoo, a law professor at the University of California, Berkeley, and a former Thomas clerk who co-wrote a brief for Exxon’s side, said the pair’s past opinions describe “standard preemption doctrine,” not a promise to rule against the companies. He predicted that if they back Suncor, it will turn on the Clean Air Act and on the energy industry’s weight in national security and foreign policy, a domain where federal control has traditionally been understood.
Every question put to the lawyers on Monday will draw scrutiny for another reason: Justice Samuel Alito has recused himself. He told Bloomberg News it seemed “prudent,” given his holdings in energy stocks — companies not named in the suit — though not required. An eight-member court could split 4 to 4, an outcome that would leave in place the Colorado Supreme Court’s decision letting Boulder’s lawsuit go forward, without setting precedent. The justices could also decide the case is not ready for review and send it back to the state courts, which would likely return it to Washington within a few years.