This Lawsuit Could Make Big Oil Pay for the Harm It’s Caused
Por Elie Mystal — The Nation » Article
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 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 proceedings have finished, though Kagan gave pretty strong indications that Boulder should lose in state court.
The energy companies, of course, do not want to be dragged through state court. Shanmugam argued that if the Supreme Court allows the Boulder litigation to go forward, the very next day his energy clients will be sued by a veritable horde of municipalities and states. The cost of litigation is not normally something the Supreme Court should consider, but Shanmugam argued that his clients needed an answer to whether these suits should be allowed now, not years from now when the companies have been sued by every local district attorney looking for a good headline.
Instead, Shanmugam argued that Boulder’s lawsuit should be preempted by federal law: Preemption is the general principle that state law cannot be applied to an area where federal law has already spoken. The energy companies say that the Clean Air Act and the “structure of the Constitution” prevents states from regulating air pollution. They argue that since air pollution somewhat obviously and easily crosses state lines, and since climate change literally affects everybody, only federal law applies to climate change.
It’d be a cool argument… if it were supported by a shred of textual evidence. But there’s nothing in the Constitution that makes air pollution an exception to state law (not that the authors of the Constitution had a good understanding of air pollution, which is yet another reason that going back to the original text and intent of the framers is facially stupid, but I digress).
The Clean Air Act seems more directly on point to the issue of air pollution, but Boulder’s lawsuit has a very neat way around that law. Boulder is not suing the energy companies for pollution (which is clearly regulated by the Clean Air Act); it’s suing them for marketing (which is clearly not). It is the marketing of fossil fuels that has abetted climate change and caused damage to Boulder, the city argues, not the production of the fuels themselves.
Kevin Russell, arguing on behalf of Boulder, illustrated this point brilliantly at oral arguments. He said that the companies “can continue to produce as much fossil fuels as they like and contribute to as much air pollution and greenhouse-gas emissions as the market will bear, when consumers are properly informed about the consequences of that decision.”
I clapped when Russell said this. I love this argument. But, if we can just speak as adults here, it’s also bullshit. Boulder is absolutely trying to backdoor-regulate greenhouse-gas emissions and the legal sleight of hand here is just that: a magic trick that can’t really obscure what’s going on.
Both Chief Justice Roberts and Kagan were unimpressed with the argument in real time. Kagan immediately followed up Russell’s marketing argument by asking what, if any, limits there would still be on the states to regulate the national and global environment should Boulder prevail.
But making the straight-up preemption argument puts the conservative justices, especially Justice Neil Gorsuch, in a bind. Conservatives generally don’t like federal preemption arguments. That’s because a broad and robust view of federal law that trumps state action can usually be used to put a stop to whatever latest torture Texas or Florida comes up with.
In this case, the only way for the Republican justices to make the energy companies win, now, in the way they want to win, is to take an expansive view of federal preemption and read it into the Constitution or the Clean Air Act where it does not explicitly exist.
June Loper and Harrison Stetler
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Some of the GOP justices are cool with that. Alleged attempted rapist Brett Kavanaugh was clear that he thought states have no right to regulate “air and water.” He said there is a “wall of precedents” supporting the idea that only the federal government can act on this issue. Justice Amy Coney Barrett was less strident than Kavanaugh, but she seemed to largely agree with him.
The last interesting wrinkle in the case comes from the fact that the Supreme Court was down a man while debating it. Justice Samuel Alito recused himself from this case, most likely because his wife is thought to own stocks in some of the companies being sued. As a reminder, the state supreme court said that the lawsuit could go forward, so if the Supreme Court justices split, 4–4, the lower court ruling stands and the lawsuit survives.
But I don’t think it will. Federal preemption may be a hard pill for some of the justices to swallow ideologically, but they will take their medicine to prevent Boulder from fighting climate change all by itself. Justices Sonia Sotomayor and Ketanji Brown Jackson really want the lawsuit to go back to state court (Jackson, to my ears, is the only justice who thinks the lawsuit has a chance of succeeding on the merits), but I think the others will find some way to say federal law doesn’t allow Boulder to do what it’s trying to do. I think Boulder loses at least 6–2, and possibly 8–0 if the liberal justices can join by narrowing the opinion and limiting the damage to environmental rights.
I want Boulder to win precisely because I think Shanmugam is right. I think his Big Oil clients would be eaten alive by state lawsuit after state lawsuit. I think a win here for Boulder could wreck the fossil fuel industry and perhaps force Suncor and ExxonMobil into some kind of settlement or consent decree long before we actually get to the merits of any particular claim for damages.
Which is why the Supreme Court won’t let that happen. It’d be chaos—glorious, righteous chaos. The Republicans on the Supreme Court pretend to not care about the practical effects of their decisions when they make rulings that practically allow children to be shot at school and women to die on gurneys waiting for the lawyers to determine whether they can get an abortion. But they’ll damn sure care about the practical effects of this case.
What’s sad is that the court will care more about the practical effect of climate change lawsuits than the practical effects of climate change.
Elie Mystal is The Nation’s justice correspondent and a columnist. He is also an Alfred Knobler Fellow at the Type Media Center. He is the author of two books: the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution and Bad Law: Ten Popular Laws That Are Ruining America, both published by The New Press. You can subscribe to his Nation newsletter Elie v. U.S. here.
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Fonte: The Nation » Article
