Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits

Justice Thomas dissents from the Court's continued unwillingness to hear bills of complaint filed under the Court's original jurisdiction.

This morning the Supreme Court denied a motion filed by several states to file a bill of complaint against other states for filing state-law-based lawsuits against fossil fuel energy companies. As has become tradition, Justice Thomas (joined by Justice Alito) dissented from the Court's refusal to grant the motion and consider the complaint on the merits.

In Alabama v. California, a red state coalition led by Alabama was seeking Supreme Court intervention to quash lawsuits filed by some blue state attorneys general against fossil fuel companies alleging their actions were actionable under state law. For reasons I've explained before (and address at the tail end of this draft symposium essay), the red state complaints are without merit, particularly in this posture. The idea that one state can sue another for merely filing a lawsuit in state court is quite outlandish. But it is nonetheless problematic that the Supreme Court is so dismissive of state filings seeking to invoke the Court's original jurisdiction. The better course would have been for the Court to grant the petition and then reject the claim on the merits.

Here is Justice Thomas's dissent.

The Court once again denies leave to file a complaint in a suit between States. Alabama and 18 other States moved for leave to file a complaint against California, Connecticut, Minnesota, New Jersey, and Rhode Island. The plaintiff States allege that the defendant States are attempting to "dictate interstate energy policy" through the aggressive use of state-law tort suits. Bill of Complaint 1–3. On the plaintiff States' account, these suits seek to "impos[e] ruinous liability and coercive remedies on energy companies . . . based on out-of-state conduct with out-of-state effects," for the purpose of placing a "global carbon tax on the traditional energy industry." Id., at 1–2. The plaintiff States contend that this practice violates the horizontal separation of powers, the Federal Government's exclusive authority over interstate emissions, and the Commerce Clause. I would grant the plaintiff States leave to proceed.

As I have previously explained, the Court's assumption that it has "discretion to decline review" in suits between States is "suspect" at best. Arizona v. California, 589 U. S. ___, ___ (2020) (opinion dissenting from denial of motion for leave to file complaint) (slip op., at 1); accord, Nebraska v. Colorado, 577 U. S. 1211, 1211–1213 (2016) (same). "The Constitution establishes our original jurisdiction in mandatory terms." Arizona, 589 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 1). Article III states that, "[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original jurisdiction." §2, cl. 2 (emphasis added). And, Congress has made our original jurisdiction "exclusive" in "all controversies between two or more States." 28 U. S. C. §1251(a). Given our "virtually unflagging obligation . . . to exercise the jurisdiction given" to us, our jurisdiction in thi context would seem to be compulsory. Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).

Yet, the Court routinely "decline[s] to exercise its exclusive original jurisdiction in state-versus-state cases." Texas v. California, 593 U. S. ___, ___ (ALITO, J., dissenting from denial of motion for leave to file complaint) (slip op., at 6) (collecting cases). It has done so as part of a broader policy of making only "sparing use" of our original jurisdiction, wherein we restrict our review to "appropriate" cases. Illinois v. Milwaukee, 406 U. S. 91, 93–94 (1972).

This discretionary approach is a modern invention that the Court has never persuasively justified. See Texas, 593 U. S., at ___–___ (opinion of ALITO, J.) (slip op., at 3–6) (chronicling history). For example, in Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493 (1971), the Court admitted that "it may initially have been contemplated that this Court would always exercise its original jurisdiction when properly called upon to do so." Id., at 497. But, the Court declared, "changes in the American legal system" and the "development of American society" had rendered the mandatory exercise of original jurisdiction "untenable, as a practical matter." Ibid. Wyandotte was a case falling under our nonexclusive original jurisdiction, but the Court has made the same judgment with respect to our exclusive original jurisdiction, including in cases between States: Limiting our exercise of original jurisdiction is necessary, the Court has claimed, "'so that our increasing duties with the appellate docket will not suffer.'" Arizona v. New Mexico, 425 U. S. 794, 797 (1976) (per curiam) (quoting Illinois, 406
U. S., at 93–94).

In my view, such prudential decisions are not ours to make. The Constitution and Congress have set the bounds of our original jurisdiction. Those parameters should be
conclusive: "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

The Court's reluctance to accept jurisdiction in cases between the States is also troubling because this Court is the only court that can hear such cases. "If this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief." Nebraska, 577 U. S., at 1212 (opinion of THOMAS, J.). Accordingly, the Court today leaves the 19
plaintiff States without any legal means of vindicating their claims against the 5 defendant States.

We should revisit this discretionary approach. Our exclusive original jurisdiction over suits between States reflects a determination by the Framers and by Congress about the need "to open and keep open the highest court of the nation" for such suits, in recognition of the "rank and dignity" of the States. Ames v. Kansas ex rel. Johnston, 111 U. S. 449, 464 (1884); see Texas, 593 U. S., at ___ (opinion of ALITO, J.) (slip op., at 7). Yet, this Court has—essentially for policy reasons—assumed a power to summarily turn away suits between States. The Court today exercises that power to reject a suit involving nearly half the States in the Nation, which alleges serious constitutional violations. Because I would at least allow the plaintiff States to file their
complaint, I respectfully dissent from the Court's denial of lleave to file.