The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Climate Change

Climate Change Goes Back to the Supreme Court -- Colorado Edition

The Supreme Court granted certiorari in Suncor Energy v. County Commissioners of Boulder County

|The Volokh Conspiracy |


On today's order list there is only one grant of certiorari, but it is a big one: Suncor Energy (U.S.A.) v. County Commissioners of Boulder County. This is one of the climate change tort suits filed by state and local governments against fossil fuel companies under state law, and it will unquestionably be one of the biggest cases of the term (almost certainly next term given the Court's calendar).

In granting certiorari the Court expanded on the questions presented by the petition for certiorari. The QP offered by Suncor was as follows:

Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.

In granting the petition, the Court added a second question:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether this Court has statutory and Article III jurisdiction to hear this case.

Where did this come from? When Suncor initially petitioned for certiorari, Boulder waived its right to file a brief in opposition. Some number of justices wanted to know what Boulder really thought, however, and the court requested that Boulder file a brief explaining why, in their view, the case was not cert worthy. In its filed response, Boulder offered four QPs, both to raise the jurisdiction question, as well as to note potential distinctions buried within Suncor's suggested QP:

  1. Whether this Court has statutory jurisdiction to review the interlocutory decision of the Colorado Supreme Court.
  2. Whether this Court has Article III jurisdiction to review the interlocutory decision of the Colorado Supreme Court.
  3. Whether the Clean Air Act impliedly preempts the state law tort claims advanced in this case.
  4. Whether the structure of the Constitution impliedly preempts the state law tort claims advanced in this case without regard to whether Congress intended to preempt those claims.

The first two of these suggested QPs were almost certainly the basis for the Court's added question, but the Court folded them into a single question, just as it accepted Suncor's QP formulation folding together statutory and constitutional arguments for preemption.

As longtime readers know, I believe the arguments for statutory preemption have no legal basis, while the structural arguments are a form of preemption through penumbra. That said, I believe there are serious questions about the scope of the defendants' conduct and potential relief that can be properly offered by a state court--questions that have been complicated by recent Supreme Court decisions in related areas such as National Pork Producers and Mallory. Greater clarity and consistency on this score would be welcome.

The timing of this grant is also interesting in that the arguments for federal preemption of state-law-based climate tory claims will be unquestionably weaker if, as the administration is arguing, the Clean Air Act provides no meaningful basis upon which to regulate greenhouse gases--let alone if Massachusetts v. EPA is overruled.

For those interested, here are my prior posts on this subject:

Jonathan H. Adler (@jadler1969) is the Tazewell Taylor Professor of Law at the William & Mary Law School and a senior fellow at the Property and Environment Research Center.