Supreme Court offers few clues in major environmental case’s outcome

In this analysis, journalist Mark Sherman breaks down arguments in the first case of the Supreme Court’s current term. Sherman joins Constitution Daily as a regular contributor after covering the Court for the Associated Press.

In my 20 years covering the Supreme Court for the Associated Press, I tried very hard to predict how cases would come out based on the argument I had just watched, or more recently, listened to. I thought it was my duty as a reporter to tell my readers where the justices appeared to stand after questioning the lawyers. After all, the written briefs already provide extensive elaboration of each side’s arguments. The one new thing to be gleaned from an hour or two in the courtroom was what the justices thought.

Most of the time, that worked fine. Justices who appear to be on one side or another usually are, though I can recall a few cases where my predictions didn’t reflect the ultimate outcome. Then, too, sometimes I just couldn’t identify five votes for any particular outcome.

Alas, that was the situation in the first argument of the new term in a major environmental case. Clocking in at 1 hour and 47 minutes, the arguments just did not provide the clarity I look for.

In Suncor Energy (U.S.A.) Inc. v. Commissioners of Boulder County (25-170), the court is weighing whether local governments can pursue lawsuits against energy companies for harms associated with climate change. Potentially billions of dollars and dozens of lawsuits hang on the outcome.

Energy giants Suncor Energy, which operates the only two refineries in Colorado, and Exxon Mobil Corporation are appealing a divided ruling from the Colorado Supreme Court in favor of the City of Boulder and Boulder County, Colorado that has allowed the suit to go forward for now.

The state court rejected the companies’ claim that federal law prohibits Boulder’s suit. The energy industry is hoping that the high court will shut down the Boulder case as well as other lawsuits that have popped up around the country. The companies are facing around three dozen lawsuits brought by more than 60 municipalities, lawyer Kannon Shanmugam told the court.

Boulder argues that its lawsuit fits well within the tradition of state court claims that the court has allowed to proceed, including those involving tobacco and opioids.

The Arguments at the Court

Chief Justice John Roberts and Justice Elena Kagan suggested that there was nothing unusual about the Boulder lawsuit, in questions to Shanmugam and Deputy Solicitor General Sarah Harris.

“I guess I'm not quite sure what makes this situation different from those, all those other ones, where we've allowed them to proceed in state court,” Roberts said.

Kagan likened the Boulder case to the third chapter of a book, in which tobacco and opioid litigation were the first two chapters.

“Mr. Shanmugam, in multiple respects, this suit appears to be based on the old 1990s tobacco suits that were brought by states and local governments basically saying that big tobacco had made representations, misrepresentations, which had caused people to use the product in —to overuse the product, causing harm to those governments. I suppose the opioid litigation more recently follows the same model,” Kagan said.

Yet later in the argument, in questions to Kevin Russell, representing Boulder, Roberts and Kagan raised doubts about the viability of the lawsuit, referring to prior Supreme Court decisions that have precluded state action over interstate air and water pollution unless Congress says otherwise. “I'm sorry to interrupt but isn't your suit an attempt to evade those decisions?” Roberts said, “It's really—it's an effort to reduce emissions.”

Kagan said one way to resolve the case might be to say that the Clean Air Act sets up a complicated scheme to regulate greenhouse gas emissions that does not include the kind of suit at issue in the Supreme Court. “And so why not just say: This really does just get in the way of how the—of how Congress decided to regulate greenhouse gases or any other air quality standards?” Kagan said.

The toughest questions Russell faced came from Justice Brett Kavanaugh, who signaled support for the companies’ arguments. “It’s going to bankrupt—you know, if there are enough of these, bankrupt these—these various defendants and certainly other defendants out there,” Kavanaugh said.

There is a second question in the case that could be an off-ramp for the justices, whether the court should even be hearing the case now. But it appeared to interest just two of the court’s justices, Sonia Sotomayor and Ketanji Brown Jackson. Justice Clarence Thomas also asked about the court’s jurisdiction to hear the case, but his questions seemed intended to give lawyers for the companies and the Trump administration the chance to explain why the matter is properly before the court.

Only eight justices heard the case, after Justice Samuel Alito recently recused himself. Alito didn’t provide an explanation at the time, but he has since told multiple media outlets that he was influenced by the arguments made by the companies and their supporters that devastating consequences would follow a decision to allow the lawsuit to proceed. Alito and his wife own stock in energy companies, though not ones that are parties in this case.

Alito’s decision to step aside means that Boulder, which won in the Colorado state court, can prevail with just four votes. A 4-4 tie would affirm the Colorado high court ruling without setting a national precedent. From the Supreme Court’s perspective, it would be a huge waste of time, after having solicited and ingested dozens of briefs, and set aside precious time on its calendar only to fail to set the nationwide rule it presumably took the case to establish.

We’re not likely to know the outcome for several months.

Mark Sherman is a regular contributor to Constitution Daily. Sherman covered the Supreme Court for the Associated Press for 20 years, and he has previously written about the Justice Department, health care, and national politics.

Editor’s Note: Blog posts written by contributors reflect the analysis and opinions of the authors, and do not represent the opinions or positions of the National Constitution Center.