Boulder and Boulder County are asking the U.S. Supreme Court to let their lawsuit against ExxonMobil and Suncor proceed. They argue that taxpayers shouldn’t absorb millions of dollars in local costs linked to climate change. The court opens its new term Monday, Oct. 5, with a dispute over whether state and local governments can sue energy companies for alleged public deception.
“It's here. It's here to stay, and we need to do something about it,” said Marshall Fire survivor Maddison “Maddi” Schink. Schink and other Boulder-area residents filed a friend-of-the-court brief supporting the lawsuit. Her words describe the risk on the ground. Now the case sits with a court that can decide whether local communities may press claims against some of the world’s largest energy companies.
Who Pays for the Damage
Boulder and Boulder County say wildfires, severe storms, extreme heat and flooding have added costs to local government, and taxpayers shouldn’t be left with the bill. The county says ExxonMobil and Suncor rank among the world’s largest contributors to climate change and have worked closely together in Colorado. The companies deny the legal basis for the suits. They argue that a Colorado jury shouldn’t regulate the global atmosphere.
The Marshall Fire burned more than 1,100 homes and a hotel, killed two people and took multiple pets. Schink’s home just outside Boulder survived. She recalled her grandmother calling as hurricane-force winds drove the fire through their neighborhood and asking what to save. Her grandmother took a camera, a childhood blanket and a backpack covered in patches, then drove to safety.
Experts say climate change is drying areas that were once wetter and snowier, raising the risk that wind-driven embers from dry grass will reach suburbs and ignite fires. Schink pursued a graduate degree focused on international climate diplomacy because she feels necessary change must happen on a large scale. She’s also signed up for air-quality alerts from the Suncor refinery in Colorado. Earlier this year, after a small grass fire broke out near her home, she canceled plans and recorded a video of her belongings for insurance purposes.
Boulder says oil companies misled the public for decades about climate change and fossil fuels’ role in worsening its effects. The city cites a 1979 internal Exxon memo that listed possible effects of rising carbon dioxide levels, including hotter, drier southwestern states, a diminished Colorado River and a more acute water shortage in the Southwest. In a 2000 New York Times advertisement titled “Unsettled Science,” ExxonMobil said “fundamental gaps in knowledge leave scientists unable to make reliable predictions about future changes.”
The Courtroom Gatekeepers
Justice Samuel Alito recused himself, raising the possibility of a 4-4 split that would let the suit continue. The Supreme Court is considering whether federal law governs the dispute as an interstate pollution issue or whether it can proceed under state law as a case about corporate conduct. The justices are also deciding whether to intervene at this stage of the litigation. Dozens of similar suits have been filed around the country, with billions of dollars potentially at stake.
The Trump administration backs Exxon and Suncor’s appeal as it dismantles federal climate regulations, withdraws from international climate agreements and promotes fossil-fuel production. NPR reported that most court observers see the case as an uphill battle for environmentalists.
“This case is about the big oil companies’ deception,” said Corey Riday-White, legal director of the Center for Climate Integrity. Exxon and Suncor say they recognize greenhouse gas emissions contribute to climate change and support “balancing risk reduction with affordable energy.” Deepak Gupta, who teaches at Harvard Law School and practices law in Washington, D.C., said the companies “deceived the public for many years” and told people “the opposite of what the company's own scientists knew, and the local cost of that deception.”
In 2011, the court unanimously held that cities and states couldn’t force major electric utilities to reduce greenhouse gas emissions because that decision belonged to the federal government. State and local governments later changed their legal strategy, turning to consumer-protection laws and public-nuisance claims against the fossil-fuel industry, drawing on challenges to tobacco and opioid companies. Boulder’s attorneys argue states can bring deceptive-marketing claims even when federal law regulates a product.
A Wider Contest Over State Power
This term also brings disputes over who controls public funding, weapons, immigration enforcement and elections. In a Colorado case, St. Mary Catholic Parish in Littleton wants state funding under the universal pre-kindergarten law but doesn’t want to admit LGBTQ students or students with gay or trans parents. The state says funding the school would violate its anti-discrimination law. The parish says the admissions requirements violate its free-exercise rights.
In December, the court will hear whether state and local bans on semi-automatic weapons such as the AR-15 violate the Second Amendment. It will also consider whether the Department of Homeland Security may deport migrants to “third countries” when their countries of origin refuse to accept them, and whether undocumented immigrants can be detained without bond hearings regardless of how long they’ve been in the United States. NPR reported that the administration has deported thousands of people to third countries where they have no connections, may not speak the language, have often been jailed and allegedly faced torture.
Election disputes could reach the court, too. The Trump administration has sought to influence elections in numerous ways, while Democrats have lawyers prepared to address problems such as last-minute polling-place moves or federal agents stationed near polling places. The court’s emergency docket has also grown. NPR reported that emergency appeals have ballooned while fully briefed and argued cases have dropped sharply. Those decisions come quickly, with little briefing, no oral arguments and little or no explanation. The faster route lets the apparatus act with less of the public process that accompanies a full ruling.