San Francisco Frontiers - US Supreme Court considers bid to shut the door on climate suits

The outcome of Suncor v. Boulder has the power to end dozens of similar lawsuits brought by jurisdictions nationwide, seeking damages from fossil fuel companies for their role in global warming and for allegedly carrying out deception campaigns to conceal their products' harms.

Outside the court, activists waved placards and decried the rising costs of climate catastrophes, calling on "Big Oil" to be held accountable for their "climate lies."

The city and county of Boulder, Colorado, sued ExxonMobil and Suncor Energy in 2018 for damages, claiming they "knowingly caused and contributed to the alteration of the climate" while "concealing and/or misrepresenting the dangers" of oil and gas.

They contend they have suffered hundreds of millions of dollars in losses from wildfires, flooding and other weather extremes stemming from climate change.

But Kannon Shanmugam, representing the oil giants, told justices the case "involves an unprecedented effort to use state law to regulate global conduct." Under Boulder's theory, he argued, they could "sue me on a nuisance claim for refilling my car and thereby contributing to global climate change."

Liberal Justice Elena Kagan pushed back, describing the case as "chapter three" in the story of corporate accountability lawsuits, where earlier chapters were litigation against the tobacco industry and against pharmaceutical companies that pushed opioids.

- Three scenarios -

The companies lost bids to have the case dismissed in state court and at Colorado's Supreme Court.

President Donald Trump's climate skeptical administration filed a brief urging the US Supreme Court to take up the case, and the justices agreed.

The court is considering whether federal law preempts Boulder's claims, whether the Constitution itself bars such suits, and whether it can review the case before a trial has taken place -- a question notably raised by conservative Justice Clarence Thomas in court Monday.

Judges may also have to weigh the Trump administration's recent decision to overturn the landmark "Endangerment Finding," with the executive now arguing Congress did not give it the power to regulate greenhouse emissions under the Clean Air Act.

Questioning Department of Justice attorney Sarah Harris, Chief Justice John Roberts showed some skepticism towards the government's position, saying "there are a lot of familiar situations where conduct outside of a state has broad effects among other states" and state litigation is permitted.

But Roberts also pressed Kevin Russell, the attorney for Boulder, telling him the suit "is an effort to reduce emissions."

"No, it is not an effort to reduce emissions," replied Russell, arguing that under Boulder's deception theory the companies "can continue to produce as much fossil fuels as they like" so long as consumers are properly informed.

Michael Gerrard, a professor of environmental law at Columbia University, told AFP there were three possibilities. First, the court could decide the case is too premature and sends it back down. Second, it could block the damages claims but leave the deception claims alone, and the third is it blocks the case entirely. "That basically wipes out all of the similar cases that are out there," he said. A decision is expected by next June.

- 4-4 split possible -

The questions also bear on so-called "climate superfunds" -- laws 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.

Ahead of the hearing, ultraconservative Justice Samuel Alito recused himself after critics called on him to step aside over his oil and gas stock holdings, reducing the number of judges down to eight and leaving a 4-4 split possible -- which would leave the Colorado ruling in place and let the case proceed to trial.

Congress could also render the case moot. Republican lawmakers are attempting to pass an immunity shield that would void all such lawsuits.

P.Adams--SFF