Suncor Is Justices' Chance To Rule On Climate Nuisance Suits

The U.S. Supreme Court is currently presented with what many believe is its best opportunity to provide sorely needed guidance in the growing climate change docket — where energy companies are facing liability for injuries allegedly sustained due to greenhouse gas emissions.

The last time the court considered an issue related to the merits of climate change litigation was in 2011, in American Electric Power v. Connecticut.

In a 7-0 decision written by former Justice Ruth Bader Ginsburg, the court held that federal law — namely, the Clean Air Act — displaced federal common-law nuisance claims brought against electric power companies identified as being among the largest sources of greenhouse gases and carbon dioxide emissions.

Following American Electric Power, plaintiffs pursuing climate change cases shifted away from asserting claims based on federal common law, focusing instead on state law nuisance actions.

The Supreme Court has yet to decide whether the conclusion reached in American Electric Power — that federal law displaces federal common-law nuisance claims complaining about greenhouse gas emissions — applies equally to state law nuisance claims.

The court has the opportunity to answer that question in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, Colorado, where energy companies are asking the high court to decide whether federal law precludes state law nuisance claims targeting interstate and global emissions.

In Suncor, the Boulder County District Court denied the defendants' motion to dismiss the suit brought by the city and county of Boulder, finding that federal law did not preempt the state law claims. The Colorado Supreme Court granted the energy companies' request to review the decision and affirmed, with two justices dissenting.

In urging the U.S. Supreme Court to take the case, the energy companies note that the Colorado Supreme Court's decision, which paves the way for Boulder to proceed to trial on claims attacking global emissions, conflicts with a 2021 decision from the U.S. Court of Appeals for the Second Circuit in City of New York v. Chevron Corp.

In City of New York, the Second Circuit held that federal law preempts state law claims when those claims reach beyond the state's borders and attempt to target the defendants' nationwide and global operations. Notably, the U.S. filed an amicus brief in support of the energy companies in Suncor, asking the Supreme Court to take up the case, which it says presents "a frequently occurring issue of exceptional importance."[1]

For its part, Boulder argues, among other things, that this is not the right case or the right time for the Supreme Court to tackle thorny climate change litigation.[2]

According to Boulder, the Colorado Supreme Court's decision is only interlocutory, and thus, if the U.S. Supreme Court prematurely takes up the case at this time, it would be wading "into a thicket of preliminary questions that promise nothing but rabbit holes and dead ends."[3]

The energy companies countered, asking, "If not now, when?" They asserted that "[w]hile the defendants in these cases will theoretically be able to seek review after liability is imposed, that is cold comfort given the growing number of cases and the sheer magnitude of the potential liability."

To emphasize this point, the energy companies pointed to a statement describing the nationwide climate change litigation as a "carbon tax" aimed at crippling the entire industry.[4] Ultimately, the companies contend that the issue presented is paramount in our constitutional system: Can state law tort suits effectively regulate interstate, and international, energy policies?

Climate change litigation has proliferated in the last decade. Many of the most high-profile cases involve claims, like those against Suncor, brought by cities, municipalities and local governments.

But the expanse of climate change litigation also includes cases involving a plethora of claims brought by individuals asserting a vast array of damages, such as injuries related to heat strokes allegedly caused by the rise in global temperatures and injuries sustained by rising homeowners insurance premiums as a result of weather-related damage attributed to climate change.

The majority of these claims complain about companies' interstate and global emissions, not just the emissions within the forum state of the plaintiffs. These state law claims thus seek to regulate conduct outside the state's borders.

Several states have tried to push back against the rise of state tort litigation to regulate conduct outside the state's borders.

Last year, 18 states petitioned the U.S. Supreme Court for leave to file a lawsuit against California, Connecticut, Minnesota, New Jersey and Rhode Island on the basis that the defendant states were abusing state tort lawsuits involving climate change to target and punish energy companies' out-of-state operations.

According to the 18 plaintiff states, use of state tort lawsuits to address climate change violates the horizontal separation of powers and the power of the federal government to regulate interstate commerce under the commerce clause.

By a 5-2 vote, the court denied the plaintiff states' request for leave to file the petition. Justices Clarence Thomas and Samuel Alito dissented, stating that "[t]he Court's reluctance to accept jurisdiction in cases between the States is also troubling because this Court is the only court that can hear such cases. ... Accordingly, the Court today leaves the 19 plaintiff States without any legal means of vindicating their claims against the 5 defendant States."

If the Supreme Court decides to take up the cert petition in Suncor, its decision could have wide-ranging implications for many cases based on allegations of activities causing climate change. Specifically, if the court holds that federal law displaces state law nuisance claims attacking interstate or global emissions, many of the current legal theories in cases involving climate change would likely fail.

Several amicus briefs have been filed in Suncor, advocating for the Supreme Court to weigh in on this important issue. One of the amicus briefs was filed by 103 members of Congress "to defend their role in setting energy policy for the United States — including regulation of interstate and international emissions — and to prevent state and local governments from undermining the comprehensive statutory schemes that Congress enacted."[5]

This closely watched case is now poised for the Supreme Court to decide whether it will grant the cert petition. Stay tuned.

[1] U.S. Amicus at 3.

[2] Boulder Response at 17.

[3] Boulder Opposition at 1.

[4] Suncor Reply at 2.

[5] Amicus of Steve Scalise and 102 Other Members of Congress at 1.

This article was originally published by Law360. Read the original article here.