WASHINGTON — Supreme Court justices wrestled Monday with the first case of their new term, a complex dispute over whether local governments can hold oil companies responsible for the damages of climate change — with billions of dollars potentially hanging in the balance.
Officials in Boulder sued two oil companies, Exxon Mobil and Suncor Energy, claiming that they should be liable for the costs of a changing climate, like droughts, fires and floods.
Depending on its scope, a decision for the oil companies could doom dozens of other similar lawsuits by states, cities and tribes percolating in courts throughout the country.
Most of the arguments Monday were highly technical, focusing on whether federal law blocked these types of lawsuits, and whether the case had reached a point at which the Supreme Court had the power to hear it at all.
But justices across the ideological spectrum, including some conservatives, posed skeptical questions to the oil companies.
With one conservative missing — Justice Samuel Alito recused himself from the case days before the argument — there was the possibility that Boulder would pick up the single vote from the courtap remaining five conservatives it would need to prevail. A 4-4 tie in the case would leave in place a Colorado Supreme Court ruling against the oil companies.
Still, some of the conservative justices appeared concerned about whether a ruling for Boulder would flood the courts with climate change lawsuits.
“Presumably if you prevail, the next day, a municipality in every single state will file a lawsuit that will probably copy your pleadings,” said Chief Justice John Roberts. “How would you think that will work out on the ground?”
Justice Brett Kavanaugh likewise raised concerns that the lawsuit and others like it could bankrupt energy companies.
The courtap three liberal justices seemed more sympathetic to Boulder’s arguments that the lawsuit should be allowed to at least move ahead in state courts.
Justice Elena Kagan analogized the case to landmark efforts to sue tobacco and opioid companies, calling those cases Chapters 1 and 2, and climate case Chapter 3, in efforts to hold companies responsible for broad societal harms.
Kannon Shanmugam, the lawyer for the oil companies, pushed back, arguing that the harms of climate change are a global problem that should be handled at the national level -- not in piecemeal legal cases in state courts.
The Trump administration had flipped the governmentap position in the case, reversing the Biden administration’s view that would have had it supporting Boulder, expressed in a recent similar case from Hawaii. Sarah M. Harris, a principal deputy solicitor general, told the justices that “interstate air pollution is an inherently federal area.”
A decision is not expected immediately. The justices announce their decisions by the end of June or early July, and they typically release their most consequential, closest opinions later in the term.
Alito’s decision to recuse came after months of pressure from environmental and court watchdog groups to step aside. Although he gave no formal reason in his announcement, Alito has recused in previous cases about oil companies because of stock he owns. The justice has publicly reported owning stock in the companies ConocoPhillips and Phillips 66.
Neither is directly involved in the Boulder case, but legal experts have said that oil companies could take broad financial hits from a decision allowing such state and local cases to move forward. He had also gone on a luxury fishing trip with an investor in a company involved in the dispute.
In an interview after his announcement, Alito told Bloomberg that he had taken “into account the particular arguments that were made on both sides here” and decided that recusal was “the prudent step.”
Under the courtap ethics code, justices can recuse at their own discretion. They typically step aside if their impartiality could be questioned, including because of a financial tie to a party or a close friend or family member who is involved.
If the justices were to split 4-4 in Alito’s absence, a lower court decision to allow the Boulder suit to move ahead would stand. Such deadlocked decisions set no binding national precedent.
The legal fight began in April 2018, when the city and county of Boulder sued Exxon and Suncor, asserting that the companies should be required to share in the costs of climate change, including damages from more heat waves, wildfires, droughts and floods.
Boulder argued that local governments and taxpayers “cannot pay the full costs of all that is needed, nor should they.” The suit contended that the companies “knowingly and substantially” fueled the climate crisis by “producing, promoting and selling a substantial portion of the fossil fuels that are causing and exacerbating climate change.” It also claimed that the companies concealed and misrepresented the dangers of their products.
After a decision by the Colorado Supreme Court to allow the case to continue in state court, the oil companies asked the justices to intervene. The Trump administration joined them, a reversal of the Biden administration’s stance on the climate lawsuits.
The oil companies argued that the case should be heard in federal court, not state. Federal courts are often thought to be a more business-friendly venue.
The companies claim that federal laws regulating the environment preempt Boulder’s lawsuit and that because climate change is a global problem, it cannot be handled in state courts.
This article originally appeared in .
