Justice Elena Kagan likened Boulder, Colorado’s lawsuits against oil companies for alleged climate change damages to the litany of lawsuits filed against “big tobacco” in the 1990s, as the Supreme Court considered Monday whether to allow Boulder’s landmark lawsuit to proceed.
The Supreme Court heard oral arguments in Suncor Energy v. County Commissioners of Boulder County over whether the lawsuit is preempted by federal law or not permissible under the Constitution, or if it can proceed to trial in state court. The case is expected to have sweeping ramifications for similar lawsuits that climate activists and Democrat-led jurisdictions have attempted to bring against oil companies, either broadly allowing them to continue or barring them as a matter of federal law.
During Monday’s oral arguments, Kagan questioned Suncor’s lawyer, Kannon Shanmugam, over what prevents Boulder’s lawsuit from going forward, whereas major lawsuits against “big tobacco” and opioid makers were allowed to proceed on what she said were seemingly similar claims.
“In multiple respects, this suit appears to be based on the old 1990s tobacco suits that were brought by states and local governments, basically saying that big tobacco had made representations, misrepresentations, which had caused people to to overuse the product, causing harm to those governments,” Kagan said.
“I suppose the opioid litigation more recently follows the same model. This is Chapter 3. So, if this is Chapter 3, were Chapters 1 and 2 also preempted?” Kagan added in her question to Shanmugam.
Shanmugam rejected that Boulder’s lawsuit was similar to big tobacco lawsuits, saying it is not a new chapter but rather a “different book.” The lawyer for Suncor highlighted differences between the two lawsuits, to which Kagan responded by claiming that she was “waiting to see the distinction,” noting that “this complaint talks a lot about misrepresentations” made by the oil companies.
Justice Brett Kavanaugh later followed up on Kagan’s question, asking why Shanmugam did not just assert that the Clean Air Act prevents states and counties from bringing forward lawsuits about air pollution, rather than attempting to make an additional constitutional argument.
“I thought the answer was that this Court has consistently said that air and water pollution are different in our federal enclaves,” Kavanaugh said. “Why are you resisting that?”
Shanmugam had argued throughout the hearing that Boulder’s lawsuit should be dismissed both because the Clean Air Act gives the federal government jurisdiction over the regulation of greenhouse gas emissions and air pollution, and because the Constitution does not allow states to regulate matters beyond their borders. Shanmugam heavily emphasized the constitutional argument, leading to pushback from the justices who believed the Clean Air Act was likely the stronger argument.
“We don’t have to reinvent the wheel because we’ve said this multiple times, and Congress presumably, when doing the Clean Air Act and doing Clean Air Act amendments, has relied on this Court’s precedents establishing that this kind of pollution is a federal law matter unless Congress speaks otherwise,” Kavanaugh said.
SUPREME COURT APPEARS SPLIT ON ALLOWING BOULDER’S COSTLY CLIMATE CHANGE LAWSUIT TO PROCEED
The high court appeared split on whether to allow Boulder’s lawsuit to move forward, but a majority appeared open to striking down the lawsuit as preempted by the Clean Air Act. Because Justice Samuel Alito recused himself from the case, an eight-person bench will decide the case for the Supreme Court, leaving open the possibility of a rare 4-4 deadlock.
The Suncor case was the first the Supreme Court heard in its new term, and the justices are expected to issue a ruling as soon as early 2027.
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[ H/T Washington Examiner ]
