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This Lawsuit Could Make Big Oil Pay for the Harm It’s Caused

The question is whether the Supreme Court will let it.

Demonstrators rally outside the Supreme Court against oil corporations involved in Suncor Energy Inc. v. County Commissioners of Boulder County.

The Supreme Court began its new term on Monday by hearing oral arguments in Suncor Energy Inc. v. County Commissioners of Boulder County. The case involves a potentially landmark environmental lawsuit filed by the city of Boulder, Colorado against two major fossil fuel industry polluters. The suit is modeled after old lawsuits against the tobacco industry: Boulder alleges that Suncor and ExxonMobil used deceptive marketing practices to sell products that have caused climate change and harmed the city, and it is now seeking damages for those harms. 

Monday’s hearing wasn’t actually about those harms but whether the lawsuit should survive a motion to dismiss. If it does, it could allow local governments and maybe even individual citizens to sue energy companies for the effects of climate change. People might be able to sue for everything from adverse health outcomes to lost property. It could fundamentally change the way oil and gas companies operate across the country and, most likely, across the entire world. 

But the lawsuit is not going to be successful. Unlike the tobacco industry—or the asbestos industry or opioid manufacturers or any other industry at the center of groundbreaking mass tort litigation—this is Big Oil we’re talking about, an industry with a market valuation upwards of $4 trillion. It’s like Spider-Man going from fighting the guys who stuck up a 7-11 to fighting an intergalactic alien invasion in one movie. There is no way this court is going to let local tort litigation regulate the global production and consumption of energy and its effects on the 8.2 billion people living on this planet.

The challenge is that while many of the justices don’t want Boulder to win as a practical matter, most of them are not quite sure when and how Boulder should lose as a legal matter. Monday’s Supreme Court arguments were messy because there are many competing ideas about whether the Supreme Court should kill the case now, kill it later, or wait and hope it dies on its own. 

The case arrived in front of the Supreme Court on appeal from the Colorado State Supreme Court, which ruled that the lawsuit could survive a motion to dismiss by the fossil fuel companies and head to trial in Colorado. That presents the first problem for the Supreme Court, because it’s unclear if the court should have jurisdiction to hear this appeal at all, or if it should wait for the Colorado courts to do their work and then review their decision. 

Justice Clarence Thomas questioned the lawyer for the energy companies, Kannon Shanmugam, and the Deputy Solicitor General Sarah Harris (the Trump administration is on the side of the fossil fuel industry, which should surprise no one) about this very point. Two of the liberal justices, Elena Kagan and Ketanji Brown Jackson, suggested that the Supreme Court should wait until the Colorado........

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