The Supreme Court heard oral arguments Monday in Suncor Energy v. County Commissioners of Boulder County, a case that will determine whether Boulder's lawsuit against oil companies for climate damages can proceed.
Justice Elena Kagan pressed Suncor's lawyer, Kannon Shanmugam, on what legally distinguishes the climate case from earlier lawsuits against Big Tobacco in the 1990s and opioid makers in recent years.
"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 overuse the product, causing harm to those governments," Kagan said.
She then extended the comparison: "I suppose the opioid litigation more recently follows the same model. This is Chapter 3. So, if this is Chapter 3, were Chapters 1 and 2 also preempted?"
Shanmugam rejected the parallel, calling Boulder's climate case a "different book" rather than a continuation of the same legal strategy. But Kagan pushed back, saying she was "waiting to see the distinction." She noted that Boulder's complaint "talks a lot about misrepresentations" by oil companies, mirroring claims in the tobacco and opioid suits.
Justice Brett Kavanaugh questioned Shanmugam's legal strategy, asking why the lawyer was not primarily relying on the Clean Air Act to block the lawsuit rather than emphasizing constitutional arguments. "I thought the answer was that this Court has consistently said that air and water pollution are different in our federal enclaves," Kavanaugh said. "Why are you resisting that?"
Shanmugam argued the lawsuit should be dismissed on two grounds: that the Clean Air Act gives the federal government exclusive jurisdiction over greenhouse gas emissions, and that the Constitution prohibits states from regulating matters beyond their borders. He stressed the constitutional argument despite signals from justices that the Clean Air Act rationale appeared stronger.
The Court's ruling will determine whether climate lawsuits filed by cities and counties against oil companies nationwide can survive. Hundreds of similar cases are pending across the country.
