This past summer, the United States endured a string of climate change-linked heat waves, contributing to an estimated 70 deaths and wrecking food production at farms and ranches across the country. Wildfires, many amplified by climate-driven changes in weather patterns, have already burned 8.4 million acres of land — an area larger than the state of Maryland — destroying homes and other property and subjecting tens of millions of Americans to hazardous air pollution.
With disasters like these, it is easy to see how various studies have pinned the average household cost of climate change at well over $1,000 per year. If the oil and gas industry has its way at the U.S. Supreme Court, those households — rather than Big Oil itself — will continue footing that bill.
Two oil and gas companies will be pressing this argument on October 5 in a case called Suncor v. Boulder County — the first to come before the Supreme Court in its new term. The case arises from a lawsuit brought in Colorado state court by local governments there, alleging that the companies contributed to the climate crisis by producing and deceptively marketing a product they knew was dangerous. Accordingly, they seek compensation for some of the climate-related harms their residents have experienced, including those caused by recent droughts and forest fires.
In response, the companies contend that the Supreme Court should halt the case on the grounds that federal law blocks — or preempts — state courts from addressing the issue of climate change at all.
The stakes of Suncor are high — and that’s precisely because there is no federal law addressing climate change, contrary to the industry’s claims. Congress’s inability to pass comprehensive legislation addressing the climate crisis is well recognized right now. And while the Obama and Biden administrations attempted to use the Clean Air Act to modestly clamp down on some greenhouse gas emissions, the Trump administration has formally disclaimed the law permitting such regulations at all.
In short, the oil and gas companies are asking the Supreme Court for almost complete immunity against accountability for any harms their unacceptably dangerous activities have caused. That means they can keep raking in record-level profits by carrying on business as usual. Meanwhile, the public would be forced to pay the escalating costs of adapting to climate change, including higher energy and food prices, hardening roads and other infrastructure to better withstand climate-amplified storms, and medical bills for such climate-induced maladies as heat stroke and tropical diseases.
While the case is technically about climate change and the role of the fossil fuel industry in causing it, a win for the oil and gas companies would likely reverberate to other industries. That’s because the novel theories undergirding their preemption arguments invite the justices to invent dubious readings of the Constitution and the Clean Air Act. The “logic” of those arguments would thus be readily transferrable to a wide variety of industries, including those for which no federal regulatory programs exist, such as AI and other advanced computing systems, prediction markets, and digital assets like cryptocurrency.
Individuals and communities harmed by the products or activities of these industries would be barred from entering state courts to hold them accountable and obtain justice for their injuries. And, free of any legal responsibilities, the individual firms comprising these industries would have few incentives to ensure that their products or activities are not unacceptably dangerous.
Yet, state courts have long played an invaluable and legitimate role under just these circumstances, particularly where prevailing political conditions have prevented the federal policymaking branches — namely, Congress and the president — from responding effectively to widespread policy challenges through legislation or regulation. And they have played this role to great effect in the past by, for example, helping states hold the tobacco industry accountable for the public health consequences of smoking and the pharmaceutical industry for its contributions to the opioid epidemic.
The Supreme Court memorably recognized the crucial backstop that state courts provide in the 1984 case Silkwood v. Kerr-McGee Corp. There, the Court held that a nuclear facility employee exposed to dangerous levels of radiation poisoning could sue the operator for punitive damages under state law, despite the existence of a comprehensive federal law governing the safety of such facilities. As the majority saw it, the function of federal preemption is to prevent counterproductive conflicts of federal and state laws, not create accountability vacuums. Therefore, they found it “difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.”
Let’s hope the Court embraces that principle again in Suncor, ensuring states can hold the oil and gas industry accountable for climate-related damages on behalf of their residents.
