Why SCOTUS Should Grant Review of Suncor Energy v. Boulder County

The US Supreme Court may soon address crucial litigation that threatens to undermine constructive debates on climate change policies.

In 2018, Colorado municipalities—the City and County of Boulder and San Miguel County—filed a public nuisance lawsuit against ExxonMobil and Suncor, seeking damages for costs associated with climate change. But the case, one of nearly two-dozen coordinated lawsuits nationwide—has a more ambitious objective to engineer shifts in transportation and power generation via the courts to reach climate goals. In 2021, City of Boulder staff said their lawsuit is “pushing for larger systems-level change.”

Now, the Supreme Court is weighing if it will take up the case and provide guidance about the right judicial setting for these cases—federal court or state court. The legal issues of state versus federal court jurisdiction may seem arcane, but would immediately impact policies nationwide.

Multiple-Court Approach Ineffective

If the growing number of climate lawsuits around the country are each decided in various state courts, a string of fragmented and contradictory rulings will result, which would hamper the ability of elected leaders and federal agencies to craft coherent policies. This litigation, if decided in favor of the municipalities, would produce chaos, not good policy.

Several considerations are important in evaluating climate litigation. The first is how policy-driving lawsuits fits within our American process for democratic decision-making on key issues. Federal courts have already grappled with this question.

A decade ago, the Supreme Court unanimously ruled that the Environmental Protection Agency, not judges, should address climate change remedies. Two years ago, the Second Circuit dismissed New York City’s climate case, finding that allowing “this suit to proceed under state law would … risk upsetting the careful balance that has been struck between the prevention of global warming … and energy production, economic growth, foreign policy and national security.”

Because of this federal court reluctance to substitute judicial determinations for the democratic process, climate activist attorneys decided state court litigation offered more likelihood for success. They filed a series of suits representing local and state governments against greenhouse gas-producing industries such as coal, utilities, and oil and gas companies.

In general, the suits seek billions of dollars to compensate for localized impacts of global climate change, from sea level rise to floods to forest fires. If the cases were carried through to final judgment, local judges and juries would determine massive and complex issues with far-ranging economic impacts, and the number of lawsuits would multiply.

Time For Constitutional Review

The Supreme Court now potentially faces the question of whether this end run into state courts is appropriate, and whether it infringes on areas of federal policy that our constitutional system entrusts to Congress.

Significantly, restoring the proper constitutional separation of powers has been an important theme in the Supreme Court’s recent decisions. In West Virginia v. EPA, the court reined in administrative agency actions that exceeded congressional grants of authority. It enunciated the “major questions” doctrine: when federal agencies issue regulations with sweeping economic and political consequences, they must have clear statutory direction from Congress. “A decision of such magnitude and consequence rests with Congress itself,” the court ruled.

That same concern for proper constitutional roles is implicated in the state-court climate liability suits. By establishing liability rules that punish oil and gas companies, such cases can tilt the direction of energy development. While this direction may or may not be desirable, it is the type of fundamental policy that should be determined by elected officials, not by insular state court judges. Open-ended carbon liability bounded only by the creativity of plaintiffs’ lawyers would substitute state courts’ unaccountable judgment for the federal democratic process.

There are strong reasons why the court should limit state court litigation of national policy matters. As we have seen from national and international debates, climate change is a global challenge that doesn’t respect national borders, let alone state borders. Technological changes have rapidly altered the cost/benefit analysis for transportation, energy production, and electricity generation.

Although these innovations provide a glimpse of promising opportunities, they are bounded by increasing needs for lithium, critical minerals, copper, and other essential resources. Implementation is seldom as fast or smooth as anticipated.

Legislative and executive officials may not know all the answers or be able to agree on a path forward, but one certainty is that the optimum answers will be dynamic. Solutions will change and evolve as technology advances, the geopolitical environment evolves, and consumer needs change. Political consensus can shift accordingly, as we saw from high energy costs resulting from the Ukraine war.

Lawsuits, on the other hand, are static and backward-looking. They capture yesterday’s pictures through today’s lens, focusing on who should have done what decades ago if they had understood 2023 sensibilities. Multiply that frozen picture by disparate state court decisions across the country. It’s hardly a recipe for wise national policy.

A patchwork of litigation by municipalities should not determine America’s path forward on energy and climate. The Supreme Court should grant review of this petition so we can ensure that liability battles don’t threaten democratically determined energy policies.

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

Gale Norton is president of Norton Regulatory Strategies. She was Colorado Attorney General 1991-1999 and Secretary of the Department of the Interior 2001-2006.

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