The U.S. Supreme Court opens its new term on Monday, Oct. 5, with a case that could decide whether state and local governments can take climate claims against energy companies to court. The fight tests where authority lies: with local and state courts handling claims of corporate deception, or with the federal government regulating an issue the companies say concerns the global atmosphere.
Boulder and Boulder County argue taxpayers shouldn’t have to shoulder millions of dollars in extra local-government costs tied to wildfires, severe storms, extreme heat and flooding. They say ExxonMobil and Suncor helped drive climate change and misled the public about fossil fuels’ role. The companies reject the lawsuits’ legal basis.
Who Decides
The justices are weighing whether the dispute concerns interstate pollution, which federal law governs, or corporate conduct that can proceed under state law. They’re also deciding whether to step in at this stage of the litigation. Courts elsewhere have reached different conclusions.
Exxon and Suncor say in court filings that they recognize greenhouse gas emissions contribute to climate change. They argue the right policy approach is “balancing risk reduction with affordable energy,” and that the lawsuits can’t proceed because a Colorado jury shouldn’t regulate the global atmosphere.
Boulder’s attorneys say states can bring deceptive-marketing claims even when federal law regulates a product. They point to lawsuits claiming tobacco companies misled consumers about “light” cigarettes. Todd Zywicki, a professor at George Mason University Antonin Scalia Law School who filed a brief backing the companies, said the comparison doesn’t work: people might have quit smoking if they knew the risks, while people won’t stop using fossil fuels.
“The theory is that the energy company defendants deceived the public for many years,” said Deepak Gupta, who teaches at Harvard Law School and practices law in Washington, D.C. He said companies told the public “the opposite of what the company's own scientists knew, and the local cost of that deception.” NPR said most court observers see the case as an uphill battle for environmentalists.
Local Costs and Corporate Claims
Boulder points to, among other evidence, an internal 1979 Exxon memo that listed possible effects of rising carbon dioxide levels: hotter, drier southwestern states, a diminished Colorado River and a sharper 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 county says ExxonMobil and Suncor rank among the world’s largest contributors to climate change and have worked closely together in Colorado. Corey Riday-White, legal director of the Center for Climate Integrity, said, “This case is about the big oil companies’ deception.” He said the companies should answer for harms they knew their products would cause.
Boulder-area residents, including Marshall Fire survivor Maddison “Maddi” Schink, filed a friend-of-the-court brief backing the lawsuit. The Dec. 30, 2021, fire burned more than 1,100 homes and a hotel and killed two people, along with multiple pets. Schink’s home just outside Boulder escaped damage.
Schink, now a 26-year-old graduate student at the University of Denver, said the fire “really just brought climate change home.” Her grandmother called as hurricane-force winds drove the fire through their neighborhood, asking what to save. She grabbed a camera, a childhood blanket and a backpack covered in patches, then drove to safety.
Federal Power and the Court’s Wider Docket
The Trump administration supports Exxon and Suncor’s appeal even as it dismantles federal climate regulations, withdraws from international climate agreements and promotes fossil-fuel production. In 2011, the Supreme Court unanimously ruled that cities and states couldn’t force major electric utilities to cut greenhouse gas emissions because the federal government had that authority. State and local governments later turned to consumer-protection laws and public-nuisance claims against the fossil-fuel industry.
Fordham Law School Professor Adam Orford said letting the lawsuit move forward wouldn’t necessarily mean the companies would pay damages. A court could decide residents’ driving and other activities contributed so much to climate change that no one was responsible. But blocking Boulder’s lawsuit would change the usual operation of the law, he said. “If someone hurts you, you should be able to bring them into court and at least ask them to compensate you for the harm,” Orford said.
The term also features cases on religion, semi-automatic weapons and immigration. In December, the court will hear whether state and local bans on semi-automatic weapons such as the AR-15 violate the Second Amendment, and whether the Department of Homeland Security may deport migrants to “third countries” when their countries of origin refuse to accept them. Justice Samuel Alito recused himself from the climate case, leaving open the possibility of a 4-4 split that would let the suit continue.