SCOTUS Presented With Best Opportunity To Weigh In On Climate Change Litigation

The United States Supreme Court is currently presented with what many believe is the best opportunity for the Court to provide sorely needed guidance in the vastly growing climate change docket—where energy companies are facing liability for injuries allegedly sustained due to greenhouse gas emissions. In Suncor Energy (U.S.A.) Inc., et al. v. County Commissioners of Boulder County, energy companies are asking the Supreme Court to decide whether federal law precludes state law nuisance claims targeting interstate and global emissions. The state trial court denied the defendants' motion to dismiss the suit brought by the City and county of Boulder, finding that federal law did not preempt the state law claims. The Colorado Supreme Court granted the energy companies' request to review the decision and affirmed, with two justices dissenting.

In urging the Supreme Court to take the case, the energy companies note that the decision of the Colorado Supreme Court, which paves the way for Boulder to proceed to trial on claims attacking global emissions, conflicts with a 2021 decision from the United States Second Circuit in City of New York v. Chevron Corp. In City of New York, the Second Circuit held that federal law preempts state law claims when those claims reach beyond the state's borders and attempt to target the defendants' nationwide and global operations. Notably, the United States filed an amicus brief in support of the energy companies in Suncor, asking the Supreme Court to take up the case which presents "a frequently occurring issue of exceptional importance." United States Amicusat 3.

For its part, Boulder argues, among other things, that this is not the "right case" or the "right time" for the Supreme Court to tackle the thorny climate change litigation. Boulder Response at 17. According to Boulder, the decision of the Colorado Supreme Court is only interlocutory and thus if the Court prematurely takes up the case at this time, it would be wading "into a thicket of preliminary questions that promise nothing but rabbit holes and dead ends." Boulder Opposition at 1. Last week, the energy companies replied strongly that "if not now, when?" Suncor Reply at 10. The companies made a compelling pitch that "[w]hile the defendants in these cases will theoretically be able to seek review after liability is imposed, that is cold comfort given the growing number of cases and the sheer magnitude of the potential liability." Suncor Reply at 10. To emphasize this point, the energy companies pointed to a statement describing the nationwide climate change litigation as a "carbon tax" aimed at crippling the entire industry. Suncor Reply at 2. Ultimately, the companies contend that the issue presented is paramount in our constitutional system: can state law tort suits effectively regulate interstate, and international, energy policies? This closely watched case is now poised for SCOTUS to decide whether it will grant the cert petition.

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