Oil Giants Inch Closer to Discovery in State Climate Cases

Environmentalists breathed a sigh of relief yesterday when the US Supreme Court passed up the chance to review a local government’s climate change case against fossil fuel companies. With Justice Brett Kavanaugh dissenting (and Justice Samuel Alito not participating), the court denied the petition for certiorari in Boulder County, Colo.’s climate change case.

This is a huge victory not just for Boulder, but all state and local climate cases. After years of procedural fights, these change cases are finally one step closer to discovery.

Since 2018, more than 20 states and local government plaintiffs have filed climate change lawsuits against fossil fuel defendants. These cases allege the companies knew about climate change and affirmatively took steps to sow doubt, conceal evidence, and hinder government action. These cases, alleging nuisance or products liability claims, represent a significant threat to business as usual for fossil fuel companies.

Understandably, the state and local governments originally filed these cases in state courts—after all, nuisance and products liability are state law claims. And a state or local government would much rather hash out discovery and trial in front of a local judge and jury, respectively.

Just as fervently, the fossil fuel defendants have sought to have the cases heard in federal court where they are more likely to win a dismissal before trial. Since 2018, every fossil fuel defendant has banded together and sought removal to federal court.

In the intervening five years, the bulk of the litigation has sought to resolve this central question of forum: Do state courts or federal courts get to hear these cases?

Baltimore, Md.’s lawsuit has already gone to the US Supreme Court and back on a technical question of whether a federal court has jurisdiction to consider all grounds for removal or just one. In 2021, the Supreme Court, carefully noting that it was not considering the merits of the claims, narrowly held that a federal court could consider all the grounds for removal. It remanded the case back to the US Court of Appeals for the Fourth Circuit for further proceedings.

Because these 20-plus cases are substantively and procedurally similar, the Supreme Court’s 2021 Baltimore decision opened the floodgates for rulings around the country. Five circuit courts have since weighed in on removal in the state and local climate cases. Unanimously they have held that the claims sound in state law and thus do not belong in federal court.

Undeterred—or perhaps more than a little concerned about being an out of state defendant held to account in state courts across the country—the fossil fuel defendants have petitioned for certiorari to the US Supreme Court in each of these cases. Their arguments are nearly identical: climate change claims are necessarily and exclusively governed by federal law, although they involve state law tort claims.

For a while, these petitions seemed like long shots—there isn’t a clear circuit split and the Supreme Court has already weighed in once. But last October, with the petitions pending, the Supreme Court made a curious move in Boulder County’s lawsuit: It asked the solicitor general, who represents the US in the Supreme Court, to file a brief in the case expressing the views of the US.

Sometimes the court does this out of a sincere interest in the federal government’s position; sometimes the court does it because it knows it is going to grant certiorari. Either way, the stakes were high. And given that Baltimore—which did feature a solicitor general amicus brief—was briefed during the Trump administration, the Boulder County petition served as a chance to understand the Biden administration’s position on these state and local climate cases.

In a reversal of the Trump administration’s position during the Baltimore case, the Biden administration filed an amicus brief on March 16, siding with state and local climate plaintiffs. Acknowledging the change in administration as well as the five circuit courts that have reached the same conclusion, the solicitor general’s brief argued forcefully that the petition for certiorari should be denied.

That brief may have made the difference. By asking for the solicitor general’s view, the Supreme Court was clearly interested in these state and local climate cases. But by denying certiorari—almost unanimously—the court is signaling its acceptance of these cases playing out in state court. For environmentalists, this is a substantial victory.

To be sure, the cases are not over. They will almost certainly go through motions to dismiss. But those motions will be heard in front of state court judges. And when at least some of these cases survive dismissal, the fossil fuel defendants will face what they have sought to avoid all along: discovery.

Although we know some damning information about what fossil fuel companies knew about climate change, there is so much left to uncover about what they knew, when they knew it, and what they did in response. Thanks to the Supreme Court’s denial, these cases—finally—are poised to get answers.

The case is Suncor v. Board of County Commissioners of Boulder County, No. 21-1550.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Sean Lyness is a Visiting Assistant Professor at New England Law Boston where he teaches and researches in the areas of environmental law, property, and civil procedure.

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