The Supreme Court should not block Boulder County's suit
By Adele Rutherford · Reporting from Atlanta ·
The Supreme Court began its term on October 5. It faces a case testing corporate accountability. Boulder County, Colorado, is suing Suncor Energy and Exxon Mobil. The county alleges these companies knew decades ago that fossil fuels would damage the environment. This knowledge, they argue, increased the risk of floods, extreme heat, and wildfires. The Court has agreed to consider "whether they have jurisdiction to hear the Suncor case now, because it's still at an early stage in Colorado state courts." Jurisdiction is the legal power of a court to hear a case. The Court is wrong to intervene. By stepping in before a trial, the justices provide a procedural shield for defendants.
A shortcut to avoid the facts
The energy companies argue that the federal government possesses the sole power to address climate change. This is a plea for federal preemption. Preemption is a legal doctrine where federal law overrides state law. The Trump administration has sided with the companies on this point. They want the Court to rule that climate change is a federal matter, which would extinguish local lawsuits.
This is a shortcut. We must test every shortcut against the day our opponents hold the tool. If the Court invents a federal preemption doctrine here without statutory backing, it creates a weapon that can be turned against any state-law claim. As Corey Riday-White of the Center for Climate Integrity noted to NPR, the companies cannot point to any statute or constitutional text that backs their finding. They are asking the Court to invent a rule to save them from a tort. A tort is a civil wrong that causes a claimant to suffer loss or harm.
The record of the harm is stark. The Marshall Fire occurred on December 30, 2021. It destroyed homes across the county. Daryl McCool described the aftermath to NPR, noting that the fire burns everything, including melted coins and bicycles. Boulder County seeks to recover the costs for these repairs and emergency services. To stop this suit now is to say that the scale of the disaster removes the right to a remedy.
The pattern of corporate concealment
The energy industry is seeking a "grand slam," according to Dennis Fan of Columbia Law School. The Guardian reports that the industry hopes this ruling will be a "death blow" to all future climate litigation. This strategy mirrors the Tobacco Master Settlement Agreement of 1998. That agreement was between the four largest U.S. tobacco companies and state attorneys general. It resolved state Medicaid lawsuits seeking recovery of tobacco-related health-care costs. The companies agreed to pay the states indefinitely, committing at least $206 billion.
The mechanism is the same. Both cases involve state-level efforts to recover public costs. When the state is the only entity capable of calculating local damages, the federal government should not be the only entity capable of granting them.
The cost of federal intimacy
The process in this case has already been strained. Justice Samuel Alito recused himself one week before arguments. He holds investments in Phillips 66 and ConocoPhillips. Justin Kloczko of Consumer Watchdog told NPR that the public should not wonder if a justice's investments benefit from a ruling shielding the industry.
The intimacy between the defendants and the federal government is not limited to the bench. Public records show that ExxonMobil holds deep financial ties to the government. The corporation received a $156.39 million Department of Defense contract. More recently, ExxonMobil Energy Partners LLC was awarded another defense contract.
The Trump administration argues that only the federal government has the expertise to handle climate change. In doing so, it speaks for a major customer of the defendants. This is why the Court must resist the urge to seize this case. Infobae reports that these claims involve billions of dollars in costs to public coffers. Those costs were not created by federal policy, but by local disasters.
The Court should not grant the writ of certiorari. A writ of certiorari is an order by which a higher court reviews a decision of a lower court. It should leave the Colorado Supreme Court's decision intact. Boulder County must still prove its case. Its claims of corporate deception and direct causation face a steep evidentiary hurdle under state law. State courts are fully capable of holding the county to its strict burden of proof. But to deny them the opportunity to try is to deny the process itself. If the energy companies have a defense based on the facts, they can present it at trial. To kill the case on a jurisdictional technicality is to admit that the process cannot handle the truth. The Court must let the state courts do their job.