The Supreme Court Building’s west pediment tympanum is a triangular recessed section filled with allegorical marble sculptures by artist Robert I. Aitken. The figures represent Liberty Enthroned flanked by Order and Authority, as well as prominent historical and legal figures. The architrave, the horizontal lintel directly beneath the sculpture, is carved with the motto: “Equal Justice Under Law.” (Image Courtesy of the Associated Press)
The U.S. Supreme Court opened its new term Monday by hearing arguments over whether the city and county of Boulder can sue oil companies ExxonMobil and Suncor Energy Inc. — which operate the only two oil refineries in Colorado — under state law. This suit aims to recover local costs incurred from interstate and international greenhouse gas emissions.
The session opened with a warning to the justices from Kannon Shanmugam, an attorney for Suncor Energy and ExxonMobil, asking the Court to reverse the Colorado Supreme Court’s judgment, which would end the case.
“If Boulder’s claims are allowed to go forward, some 90,000 municipalities across the country will have the ability to make national and international energy policy by asking juries to impose catastrophic damages on selected fossil-fuel producers,” Shanmugam said.
When Chief Justice John Roberts asked how this would play out if municipalities in every state filed copycat suits, Kevin Russell, an attorney for the city and county of Boulder, countered Shanmugam’s argument that large-scale lawsuits are not new. Russell cited one company’s asbestos that caused nationwide harm, where courts managed many small claims in a coordinated process.
“There are other examples where…a course of conduct causes mass liability across the nation,” Russell said. “On the ground…in other kinds of product liability suits and courts deal with them.”
The court’s eventual ruling could determine the fate of similar lawsuits filed by nearly 60 state and local governments across the country.
For Boulder, the U.S. Supreme Court hearing marks the pinnacle of a legal fight that began in 2018, when the city of Boulder and Boulder County filed a lawsuit against Suncor and ExxonMobil. Filed in a Colorado district court, the suit alleges the two energy companies misled the public for decades about fossil fuels’ effects on the climate. Boulder seeks monetary compensation to cover damages to its community that it attributes to climate change.
The Colorado Supreme Court in Denver ruled that the Clean Air Act does not block the city and county of Boulder’s ability to pursue their lawsuit against the oil companies. This would have allowed the case to move forward in Colorado. However, the oil companies appealed the case to the U.S. Supreme Court, looking for a ruling to permanently block the lawsuit.
The appeal sent Shanmugam, and Russell, to Washington, D.C. for oral arguments. Justice Samuel Alito recused himself, leaving the outcome resting with eight justices rather than nine.
At the center of the dispute is a question about which law governs climate change claims. Suncor Energy and ExxonMobil argue that the Constitution and the Clean Air Act bar “claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse gas emissions on the global climate.”
“This case involves an unprecedented effort to use state law to regulate global conduct,” Shanmugam said during oral arguments. “A state does not have the power to regulate out-of-state conduct based solely on attenuated effects on the state.”
Sarah Harris, principal solicitor general for the Department of Justice, though not a party to the lawsuit, presented arguments to help the court decide the case. Harris, arguing for the United States supporting the oil companies, told the justices interstate air pollution is an inherently federal matter, not a state matter. She argued that Boulder’s theory would allow Colorado to hold oil companies liable for their fossil fuel activities worldwide and Congress never authorized lawsuits like Boulder’s under the Clean Air Act.
“This suit egregiously exceeds constitutional limits on state authority,” Harris said.
Russell countered that Boulder did not sue for emissions, which the Clean Air Act regulates, but instead sued over the energy companies’ allegedly deceptive marketing and production, which that law does not regulate.
“This case is not about emissions. It is about deception and producers,” Russell said. “Since the founding, states have had the power to provide tort remedies for injuries occurring within their borders even when the conduct causing those injuries occurred elsewhere.”
Questioning the attorneys on both sides, the justices tested for weak points, thereby signaling different views. Together, the questions suggest the court is not settled on an outcome or on whether it has jurisdiction over this case.
Although the court agreed to hear the case, it could decide it lacks jurisdiction. Justice Clarence Thomas opened questioning by asking about jurisdiction and Sonia Sotomayor and Ketanji Brown Jackson pressed the issue, signaling doubt about whether the case is ready for a Supreme Court ruling.
The lawsuit has not gone to trial in Colorado, which raises the question of whether the Court is permitted to make a judicial review, and it must determine with certainty its authority to adjudicate. Before Shanmugam could address the merits of the case, Justice Thomas asked for clarification on why the Supreme Court has jurisdiction to make a ruling.
Pointing out that Colorado Supreme Court precedent confirms the justices can review the ruling, Shanmugam said “Our view is that the Court has both statutory and constitutional jurisdiction.”
Following two hours of questions from the bench, the court takes the case into private deliberations. This is the final step before the decision is made behind closed doors.
Preliminary votes will be held within days of the arguments. However, drafting the dissenting and majority opinions could take months. The decision is expected to come from the court by the end of its term in summer 2027.
A ruling for the oil companies could end Boulder’s lawsuit, while a ruling for Boulder or a finding that the court lacks jurisdiction would send the case back to a Colorado courtroom to proceed toward trial.
Contact CU Independent Staff Writer Melodie Miller at Melodie.Miller@colorado.edu.
