San Francisco Frontiers - US Supreme Court to hear high-stakes climate case

Here is what to know about Suncor v Boulder.

- Accountability or regulation? -

The city and county of Boulder, in the state of Colorado, sued ExxonMobil and Suncor Energy in 2018, claiming they "knowingly caused and contributed to the alteration of the climate" while "concealing and/or misrepresenting the dangers" associated with their products.

Suncor operates a refinery in Colorado, while ExxonMobil has deep ties to the Rocky Mountain state. The plaintiffs say they have suffered losses amounting to hundreds of millions of dollars from wildfires, flooding and other weather extremes and are seeking compensation.

It is one of around 40 similar lawsuits brought by cities, states, tribes and other local jurisdictions, modeled on successful litigation against tobacco and opioid producers.

The companies contend such suits aim to impose an enormous "carbon tax" that could "bankrupt" the energy industry -- and are essentially asking the court to make them all go away.

Corey Riday-White, managing attorney for the nonprofit Center for Climate Integrity, disputes that characterization. "Truly, this is a corporate accountability case," he told AFP, citing the recent example of Meta, which reached a major settlement over teen social media addiction.

- Reversals common at top court -

After failing to move the case to federal court, the companies lost bids to have it dismissed in state court and again at Colorado's Supreme Court.

President Donald Trump's administration filed a brief urging the US Supreme Court to take up the appeal, and the judges agreed.

Sam Sankar, senior vice president of programs for the legal nonprofit Earthjustice, which filed a brief in the case supporting Boulder, was not overly optimistic.

"If you won a decision and the Supreme Court takes your case, that's not a good day for you," he told AFP.

The court is being asked to decide whether federal law -- specifically the Clean Air Act -- bars Boulder's claims, whether the US Constitution itself prohibits this kind of lawsuit, and whether the court can review the case at this stage.

- The possibilities -

If the justices focus on the last question, "that essentially just kicks the can down the road" since the wider questions would likely be raised later, Katrina Kuh, a professor of environmental law at Pace University, told AFP.

A ruling on the federal law questions, however, would matter for many pending suits.

"It could extinguish them entirely," said Kuh. Or, the justices could narrow them -- allowing Colorado for example to apply its state law only to emissions within the state.

The questions also bear on so-called "climate superfunds" -- laws passed by New York and Vermont that would make polluters pay for climate resilience projects. New York's was struck down by a federal judge last month, and an adverse Supreme Court ruling could shut the door to it being revived on appeal.

- A wrinkle and a recusal -

The companies argue Congress gave the Environmental Protection Agency sole authority to regulate greenhouse gas emissions through the Clean Air Act.

But Trump's EPA in February overturned a scientific determination called the "Endangerment Finding" and said it had no such authority.

"It's certainly going to be tricky for the court to thread the needle," said Sankar, between upholding the administration's position and giving the oil companies what they seek.

Republicans in Congress are meanwhile attempting to pass an immunity shield that would also void such cases.

Ahead of the hearing, ultraconservative Justice Samuel Alito recused himself following calls from critics to step aside over his oil and gas stock holdings.

Conservatives still hold a 5-3 majority with Alito out, but a 4-4 split is now possible -- which would leave the Colorado ruling in place and let the case proceed towards trial.

V.Mitchell--SFF