Climate ‘Lawfare’ Supporters Lay Out Battle Plan As Supreme Court Showdown Looms

Climate litigation advocates laid out a legal strategy Thursday for states to pursue oil and gas companies over alleged climate deception even if the Supreme Court limits such lawsuits.

The Center for Progressive Reform, a left-leaning environmental advocacy group, hosted a webinar Thursday where panelists laid out a strategy beyond the Supreme Court itself, arguing states can use consumer protection and tort law to hold fossil fuel companies accountable.

“The case provides an important opportunity for the courts to provide a mechanism by which local governments forced to spend public money on climate adaptation measures will have the opportunity to hold companies that extract and market fossil fuels accountable for their contributions to the problem,” Robert Glicksman, a George Washington University Law School professor and one of the panelists at the Center for Progressive Reform webinar, told the Daily Caller News Foundation.

The Supreme Court is scheduled to hear oral arguments in Suncor Energy v. County Commissioners of Boulder County on Oct. 5, a landmark climate case examining whether federal law preempts state-law claims seeking damages over interstate and international greenhouse gas emissions. Boulder County, the city of Boulder and San Miguel County sued Suncor and ExxonMobil in 2018, alleging the companies knowingly promoted fossil fuels while concealing or misrepresenting their climate risks. The companies dispute the allegations arguing the claims are preempted by federal law.

Portraying Suncor as a consumer protection case gives Colorado a stronger claim to state authority than if the lawsuit were simply an attempt to regulate greenhouse gas emissions, Tulane University Law School professor Rebecca Bratspies said on the webinar.

“Boulder may now want to argue a consumer-fraud angle, but that isn’t the lawsuit it filed or pursued,” Amy Cooke, director of the Energy and Environmental Policy Center at the Independence Institute, told the DCNF. “Boulder brought a climate change lawsuit seeking damages from Suncor and Exxon for alleged local effects of global emissions, effectively using the courts to impose a carbon tax it couldn’t get legislatively.”

“If Boulder believes Colorado consumers were defrauded, bring that case. Identify the deception, the consumers harmed and the damages caused. But that’s a different lawsuit,” Cooke added.

That distinction fed into another part of the panelists’ strategy: challenging the argument that federal authority displaces Colorado’s ability to hear the case.

“In Suncor, the Court has a chance to end the activist lawfare campaign that seeks to use public nuisance climate cases to impose mandatory Progressive Lifestyle Choices on the American people and reshape the nation’s economy without a single vote in Congress,” O.H. Skinner, executive director of Alliance For Consumers, previously told the DCNF.