Supreme Court hears Boulder climate suit as justices question both sides
In short
The Supreme Court heard nearly two hours of arguments Monday on whether the city and county of Boulder, Colorado, can sue Exxon Mobil and Suncor Energy in state court to recover costs tied to climate change. Conservative justices questioned the sweep of such litigation, while The Hill reported several justices were skeptical of the oil companies’ bid to block the suit and raised questions about whether the court can take up the case now. Eight of the nine justices heard the case; Justice Samuel Alito recused himself, leaving open the possibility of a 4-4 split.
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The Supreme Court heard arguments Monday on whether the city and county of Boulder, Colorado, can sue Exxon Mobil and Suncor Energy in state court over the costs of climate change. CBS News reported eight of the nine justices heard nearly two hours of oral arguments. Justice Samuel Alito recused himself from the case, Axios and CNN reported, leaving the possibility of a 4-4 split that would by default uphold a Colorado court decision that sided with Boulder but set no precedent, according to CNN. [ 1 , 5 , 7 , 9 , 13 ]
The court’s conservative wing questioned the reach of the case. CNN reported Justice Brett Kavanaugh said “It’s going to bankrupt — if there are enough of these — bankrupt these various defendants and certainly other defendants out there,” adding “Anyone is a potential defendant for a suit like this.” Chief Justice John Roberts said “at least 50” more cities might file follow-on suits if Boulder wins and asked “How do you think that will work out on the ground?”, at one point suggesting Boulder’s approach was an attempt to “evade” prior Supreme Court decisions, CNN reported. AP reported that key justices appeared wary about the potential sweep of litigation but were torn over the complex questions of federal and state law. [ 7 , 14 ]
The companies also faced difficult questions, especially from the court’s three liberal justices and Roberts, CNN reported. The Hill reported several justices appeared skeptical of the oil companies’ bid to preemptively block the suit, with many raising questions about the court’s ability to take up the case at this time. The Los Angeles Times reported the court sounded wary of state-based climate change suits against oil producers, while The Wall Street Journal reported the justices questioned the oil companies’ bid to shut the lawsuits down. [ 7 , 11 , 12 , 16 ]
Boulder filed the suit in 2018, alleging that Exxon and Suncor’s conduct caused or contributed to climate change and forced the city and county to confront extreme heat, larger and more frequent wildfires and ecosystem damage, CBS News reported. CBS News said Boulder raised five claims under state law, including that the companies’ production and allegedly deceptive marketing of fossil fuels led to “unchecked” use of their products. The suit targets Exxon Mobil, the nation’s largest energy company, and Suncor Energy, which operates two oil refineries in Colorado, according to CBS News. [ 3 , 5 ]
Last year the Colorado Supreme Court ruled 5-2 that the suit could proceed as claims of public nuisance, unjust enrichment or civil conspiracy — “common law” claims that do not rely on a measure approved by the Legislature, the Los Angeles Times reported. The Colorado judges said the claims were not preempted by federal anti-pollution laws because a suit for damages did not regulate greenhouse gas emissions. Dissenters said the state court was giving Boulder a “green light to act as its own republic,” and the oil companies told the Supreme Court that “Boulder, Colorado cannot make energy policy for the entire country,” the newspaper reported. [ 3 ]
Dozens of similar suits by states and local governments are pending, with billions of dollars in potential liability for the industry, according to Axios and The New York Times. The Los Angeles Times reported that California joined more than two dozen blue states and municipalities in 2023 in suing the five largest oil companies, with Attorney General Rob Bonta saying they had “privately known the truth for decades but have fed us lies and mistruths to further their record-breaking profits at the expense of our environment.” The Washington Post reported Boulder hopes its case will be the environmental equivalent of litigation that produced billions in damages against Big Tobacco and opioid makers. [ 1 , 3 , 4 , 6 ]
Oil-company lawyer Kannon Shanmugam told the justices the case “involves an unprecedented effort to use state law to regulate global conduct,” the New York Post reported. CBS News quoted Jonathan Adler, a William & Mary law professor who filed a friend-of-the-court brief supporting Boulder, saying: “This is not a judgment about whether these cases will succeed. It’s a judgment about whether folks get to make their case,” and that the scope of what Boulder could pursue might be narrowed significantly. [ 5 , 10 ]
Why it matters
The outcome could shape whether state and local governments can pursue damages from oil and gas producers over climate impacts, with billions of dollars at stake across dozens of pending cases, according to Axios and The New York Times. CNN and CBS News reported that the ruling would not settle whether such suits succeed, only whether Boulder’s case may proceed, and Axios reported a ruling for the oil companies could also jeopardize separate state climate policies.
Key facts
- The Supreme Court heard nearly two hours of oral arguments Monday in Boulder’s lawsuit against Exxon Mobil and Suncor Energy [ 7 , 9 , 13 ]
- Eight of the nine justices heard the case after Justice Samuel Alito recused himself [ 1 , 7 , 13 ]
- Conservative justices questioned the implications of allowing local governments to bring such suits, with Justice Brett Kavanaugh saying a wave of them could “bankrupt these various defendants” [ 7 , 14 ]
- The Hill reported several justices appeared skeptical of the oil companies’ bid to block the suit and raised questions about whether the court can take up the case at this time [ 12 ]
- Boulder filed the suit in 2018 against Exxon Mobil and Suncor, which operates two oil refineries in Colorado [ 3 , 5 , 6 , 7 ]
- Dozens of similar climate damages suits filed by states and local governments are pending [ 1 , 5 , 6 , 7 ]
- Billions of dollars in potential liability for the oil industry are at stake [ 1 , 6 ]
Confirmed by several sources
- The Supreme Court heard arguments Monday in Boulder’s effort to sue Exxon Mobil and Suncor Energy over climate change costs [ 7 , 9 , 13 , 14 , 16 ]
- Eight of the nine justices heard nearly two hours of arguments after Justice Samuel Alito recused himself from the case [ 1 , 7 , 13 ]
- Boulder filed its lawsuit in 2018, alleging harms including extreme heat, larger and more frequent wildfires and ecosystem damage [ 3 , 5 ]
- The question before the justices is whether the suit may proceed in state court or is barred by federal law, not whether Boulder ultimately wins [ 1 , 5 ]
- Dozens of states and local governments have filed similar climate damages suits in state courts [ 1 , 5 , 6 , 7 ]
- The oil industry could face billions of dollars in liability depending on the outcome [ 1 , 6 ]
Still unclear
- Whether the justices will decide the federal preemption question or dispose of the case on procedural grounds The Hill reported that many justices raised questions about the court’s ability to take up the case at this time, and Axios reported before the arguments that the court might not decide the question; no document states what the court will do
- How the court will ultimately rule CNN reported the questioning of both sides made the outcome difficult to predict and that Alito’s recusal opened the possibility of a 4-4 split; no document gives a result
- The exact amount of money at stake in the litigation Axios referred to “billions and billions of dollars” and The New York Times to billions in liability, but no document gives a figure
- How to characterise the justices’ posture at the argument The Los Angeles Times headlined that the court sounded wary of state-based climate suits, while The Hill and The Wall Street Journal framed the questioning as scepticism toward the oil companies’ bid to shut the suits down; the documents differ in emphasis
- What a ruling in Boulder’s favour would mean for the scope of its claims CBS News quoted a law professor saying the scope could be narrowed significantly; that is a single-source assessment of an outcome that has not happened
What local media are saying
Timeline, local time
- Axios previews the case, reporting the court may not decide federal preemption, that Justice Samuel Alito recused himself, and that a ruling for the oil companies could affect separate state climate policies (Oct. 2) [ 1 ]
- The Wall Street Journal publishes an opinion piece arguing Boulder’s lawsuit would return the U.S. to the era of the Articles of Confederation (Oct. 2) [ 2 ]
- The Los Angeles Times reports the Colorado Supreme Court’s 5-2 ruling allowing the suit to proceed and California’s 2023 suit against the five largest oil companies; The Washington Post compares the case to litigation against Big Tobacco and opioid makers (Oct. 4) [ 3 , 4 ]
- CBS News reports the suit targets Exxon Mobil and Suncor, which operates two oil refineries in Colorado, and quotes law professor Jonathan Adler saying the ruling is about whether the case can be made, not whether it succeeds (Oct. 4) [ 5 ]
- The New York Times reports the justices are about to hear a lawsuit that could determine whether the oil industry faces billions of dollars in liability (Oct. 4) [ 6 ]
- CNN reports conservative justices asked sharp questions, quoting Justice Brett Kavanaugh and Chief Justice John Roberts, and notes a possible 4-4 split after Alito’s recusal (Oct. 5) [ 7 ]
- NBC News runs live coverage of the Supreme Court arguments (Oct. 5) [ 9 ]
- The New York Post reports lawyer Kannon Shanmugam telling the justices the case involves “an unprecedented effort to use state law to regulate global conduct” (Oct. 5) [ 10 ]
- The Los Angeles Times reports the court sounded wary of state-based climate suits against oil producers (Oct. 5) [ 11 ]
- The Hill reports several justices appeared skeptical of the oil companies’ bid to quash the climate suits and questioned the court’s ability to take up the case now (Oct. 5) [ 12 ]
- CBS News reports eight of the nine justices heard nearly two hours of oral arguments (Oct. 5) [ 13 ]
- AP reports the court grappled with the issue, that key justices were wary of the potential sweep of litigation and torn over federal and state law questions (Oct. 5) [ 14 ]
- The Wall Street Journal reports the justices questioned the oil companies’ bid to shut down the climate lawsuits (Oct. 5) [ 16 ]