The Supreme Court may be getting ready to take up a county’s lawsuit alleging oil companies are responsible for environmental damages caused by climate change, the latest development in a campaign by local left-wing officials to influence national climate policy.
The case, brought by Boulder County, Colorado against Suncor Energy and Exxon Mobil, seeks monetary relief for the companies’ decision to burn fossil fuels and allegedly “conceal” the associated dangers, which the county argues “caused, accelerated, an[d] exacerbated the impacts of climate change.” While the companies have appealed the case to the Supreme Court, it still has to decide on the question of jurisdiction, and whether or not the case should be heard in state or federal court.
Boulder isn’t the only local government suing oil companies: local-level climate lawsuits have been occurring for years, and there are similar pending cases in cities across the country, from California to Rhode Island.
These climate lawsuits often cite public nuisance laws — which have historically been used for small-scale land issues, like blocking a public road — as their justification. But, as the Second Circuit recognized when it dismissed New York City’s climate damages lawsuit against Chevron in 2021, the global issue of climate change presents a “uniquely international problem” that is “not well-suited to the application of state law.”
“The goal of a lot of these cases is to actually fundamentally change what companies are doing to accomplish left-wing priorities without passing any laws,” O.H. Skinner, Executive Director of Alliance For Consumers, a nonprofit that defends consumer interests, told the DCNF. With big enough penalties, cities can force companies to capitulate and simply “stop selling gas in certain states, stop pumping oil, stop selling products,” he said.
At the invitation of the Supreme Court, the Biden administration weighed in on the jurisdiction question last week, advising the Court to leave the matter in state courts.
Energy companies prefer the matter be resolved in federal court, in part because of the luck they’ve had there in previous rulings, Skinner told the DCNF. Cities and the Biden administration, however, prefer the matter to play out in state courts, where judges appointed by Democratic governors are friendlier to their cause.
“Cities and trial lawyers have read the room,” Skinner told the DCNF, seeking out states where judges will “want to solve those problems in the courtroom.” Trial lawyers, he noted, are also some of the biggest donors to judicial election campaigns in left-wing states.
One pending climate case was brought by Honolulu, Hawaii. There, hearing the case at the state level would mean putting it before a Hawaii Supreme Court that ruled just last week that its citizens have a right to a “life-sustaining” climate.
John Masslon, Senior Litigation Counsel for Washington Legal Foundation, told the DCNF that the Biden administration’s brief “nominally benefits Boulder County” but was “widely expected and probably will not play a big role in the Court’s decision.”
If the Court does take up the Boulder case, it would be a “big moment,” Skinner told the DCNF— one that could put a stop to climate damages lawsuits all together.
“That takes things off the market that consumers would like to buy,” Skinner said.
Hearing the matter in state courts could also allow localities to dictate policy for the country by pressuring companies with penalties, Skinner pointed out. Court rulings could force, for example, people in Arizona to go without products deemed problematic by Berkeley, California.
Lawyers and public officials backing the Boulder case expressed approval of the Biden administration’s recommendation.
“The Boulder community is already feeling the effects of the climate crisis,” City of Boulder Mayor Aaron Brockett said in a statement. “Fires, floods, and extreme weather not only pose threats to our community, but they are also very costly to taxpayers. The companies responsible for these costs must pay.”
EarthRights General Counsel Marco Simons said in a statement they are “encouraged” by the government’s advice to deny certiorari and hope the Supreme Court will follow it.
The Boulder case, like many other similar ones, is backed by left-wing legal advocacy groups. EarthRights International and the Hannon Law Firm, along with the Niskanen Center, filed the lawsuit against Suncor Energy and Exxon Mobil on behalf of Boulder.
Moreover, even when a public nuisance case is legally weak, companies sometimes settle with cities because it is cheaper than continuing the litigation process, according to a report by the Alliance for Consumers, which also notes that local governments with budget issues are active in filing public nuisance lawsuits.
“The lawsuits filed by localities over climate change are nothing more than attempts at extorting money from energy companies,” Masslon told the DCNF. “This attempted [extortion] will lead to increased energy prices that will make it tougher for Americans to make ends meet. The only group that will benefit is the plaintiffs’ bar.”
Boulder County and Exxon Mobil did not immediately respond to a request for comment. Suncor Energy declined to comment.
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