This is an excerpt of a post published by Legal Planet.
The U.S. Supreme Court heard oral arguments on October 5 in Suncor Energy v. County Commissioners of Boulder County. At issue is whether the city and county of Boulder, Colorado, can move forward with their state court case against defendants Exxon Mobil Corporation and Suncor Energy for allegedly deceiving the public about their products’ role in climate change.
Some three dozen local governments and states throughout the United States have filed similar lawsuits in state court against fossil fuel companies over their alleged deception and false advertising. Although none of these cases have yet gone to trial, the Supreme Court decided to review Boulder’s case at the request of the oil company petitioners.
There is much to unpack about the arguments and how the justices received them. But I first want to highlight an argument that went largely unmade, one that may matter as the justices decide the case. (You can read or hear the arguments on the Court’s website.)
Several justices pressed the idea that a tort suit is regulation by another name. Justice Barrett put it most directly: “Everybody agrees that state tort law is a form of regulation.” Justice Kavanaugh warned that suits like Boulder’s could “bankrupt” defendants. Chief Justice Roberts asked whether the suit was “an attempt to evade” the Court’s precedents on emissions. Boulder’s counsel answered that a damages award doesn’t prohibit anything; it just requires defendants “to internalize a portion of the cost of their activities.” That is true. But it invites a response the Court has given before: damages regulate conduct, too.
There’s another answer: The Supreme Court has always recognized that tort verdicts influence behavior, and it has never treated that as a reason to wipe out state remedies Congress chose to preserve. That’s why, as I told Mother Jones in a preview article, it’s useful to see Suncor as a tort case rather than as a climate lawsuit. From nuclear power to tobacco to pesticides, the Court has held that federal regulation and state compensation can coexist.
Head over to Legal Planet for the full analysis, including a justice-by-justice breakdown of the arguments.
