Supreme Court Split On Making Oil Companies Pay For Climate Change, Oral Arguments Suggest

Supreme Court justices appeared divided Monday over whether a Colorado county can make oil companies pay for climate change damages under state law.

With Justice Samuel Alito recused, Justice Amy Coney Barrett, a potential deciding vote, questioned a central part of the oil companies’ argument, while Justice Brett Kavanaugh said decades of the court’s precedents treat interstate pollution as a federal matter.

In the case, Suncor Energy v. County Commissioners of Boulder County, ExxonMobil and Suncor told the justices that nearly 60 state and local governments have filed similar suits, according to a Bloomberg report.

Kannon Shanmugam, arguing for Suncor and ExxonMobil, told the justices the case “involves an unprecedented effort to use state law to regulate global conduct.”

“If Boulder’s claims are allowed to go forward, some 90,000 municipalities across the country will have the ability to make national and international energy policy by asking juries to impose catastrophic damages on selected fossil fuel producers,” Shanmugam said during the oral arguments.

Justice Elena Kagan compared Boulder’s suit to the lawsuits state and local governments brought against tobacco companies in the 1990s and the more recent opioid litigation, which she said accused companies of misrepresentations that led people to overuse their products.

“This is Chapter Three. So, if this is Chapter Three, were Chapters One and Two also preempted?” Kagan asked.

Kagan also questioned the companies’ argument that states gave up the power to regulate interstate pollution when they joined the Union unless Congress says otherwise.

“Where is the text for that? Where’s the support for that? Where’s the precedent for that? Where’s the anything for that?” she asked.