The big picture: Justices question whether federal law blocks Boulder, Colorado’s claims under state law.
- They also question whether the Colorado Supreme Court’s decision to let Boulder proceed was a “standalone” action that gives SCOTUS jurisdiction.
👟 Catch up quickly: Samuel Alito’s recusal means if All the liberal judges are on Boulder’s side, a defection among the conservative majority creates an impasse.
- That would allow Boulder to sue, but would prevent broader precedent in these types of cases under state law.
🏀 State of play: Good argument summaries already exist, so let’s move on to how legal analysts (and yours truly) think about what happened.
- Justice Brett Kavanaugh appeared to clearly side with the oil companies that federal law trumps state claims, citing a “wall of precedent.”
- Justices Ketanji Brown Jackson and Sonia Sotomayor seemed likely to side with Boulder, while Elena Kagan was somewhat difficult to read, several analysts noted.
📣 What they say: UCLA law professor Alejandro E. Camacho’s snapshot analysis breaks down like this:
- Justices Jackson and Sotomayor “firmly” with Boulder. Judge Amy Coney Barrett “leans” in favor of the oil companies, but not on the broad constitutional arguments they have made.
- The opinions of Justices John Roberts, Neil Gorsuch and Clarence Thomas are uncertain, although Thomas may lean pro-business and Roberts was “tougher on Boulder.”
🔭 Zoom out: Camacho thinks the most likely outcome is that companies win on narrow grounds.
- Note: Camacho is a member of the board of directors of the Center for Progressive Reform, an NGO that supports Boulder’s position.
My thought bubble: One bright spot for the oil companies is that several judges seemed wary of the practical mess in the absence of federal preemption.
- “Presumably, if you win, the next day a municipality in every state will file a lawsuit,” Roberts told the Boulder lawyer.
🔍 What we’re looking at: There is potential for a mixed result that blocks state emissions claims but preserves power to assert claims of deceptive practices.
- “A narrow preemption ruling would do little to protect fossil fuel producers from state and local liability,” write Shuting Pomerleau and Misha Mazalevskyi of the American Action Forum, a center-right think tank.
The bottom line: “I think every conservative other than Kavanaugh is in play. Kagan could be too,” Jonathan Adler, an environmental law specialist at William & Mary, said by email.
Sign up for Axios’ Future of Energy newsletter here.
Gn headline
