The Supreme Court is looking for a way to bail out big oil companies, in Suncor v. Boulder

Inside Chief Justice John Roberts are two wolves.

The First Wolf is a staunch conservative who has spent much of his career defending corporate interests. This wolf looks at a series of climate change-related lawsuits that could potentially cost the oil industry billions of dollars or more, and recoils in horror.

The second wolf is a judge charged with upholding the law wherever it leads. And this wolf seemed disconcerted by the oil industry’s arguments in Suncor Energy v. Boulder County Commissionersa Supreme Court case in which two oil companies ask judges to end dozens of climate change-related lawsuits.

The Court’s decision in Suncor is likely to shape the future of climate litigation in the United States. If the oil industry prevails, it would likely end climate change-related lawsuits in state courts — and it might even stop them altogether, since it’s unclear whether federal law allows such lawsuits to be brought in federal court. On the other hand, if the oil industry loses, it could face dozens of lawsuits in state courts across the country, seeking billions of dollars or more.

And the result in Suncor is likely to depend on which wolf shows up at the judges’ conference on how to decide the case. Roberts, who asked the most ambiguous questions during Monday’s oral argument in Suncorclearly wants these lawsuits to disappear. But he also seems to doubt that the weak legal arguments of the oil companies will allow him to bring about this disappearance.

Notably, Justice Samuel Alito, who owns stock in oil and gas companies, is recused from hearing the case. So, in the likely event that the Court’s three Democrats stand together against the oil companies, Roberts would split the Court 4-4 if he decides to join them. That would leave the Court unable to make a decision, and a lower court’s opinion, which rejected the oil companies’ request for immunity, would remain in effect.

That said, at least two other justices asked questions suggesting their votes could potentially be at stake. Justice Clarence Thomas, who otherwise seemed sympathetic to the oil companies, repeatedly asked whether his Court had jurisdiction to hear Suncor in the first place. Meanwhile, even though most of Democratic Justice Elena Kagan’s questions seemed supportive of continuing climate change-related lawsuits, she asked a few questions at the end that indicated she was perhaps looking for a narrow reason to hand the oil companies victory.

Ultimately, it’s difficult to predict how this case will play out, because more than one justice has asked questions that suggest their vote is, at least, in play. But the outcome will likely depend on tensions within Roberts — who has both indicated he wants the oil companies to win, but who has also expressed deep skepticism about his main legal argument.

So what is it Suncor actually, about?

Suncor is one of several lawsuits filed by state or local governments (in this case, the plaintiff is Boulder, Colorado) that have sued oil companies claiming that those companies should be liable for damages caused by climate change in those governments’ jurisdictions. In this particular case, the defendants are Exxon Mobil and Suncor, a company that operates two oil refineries in Colorado.

The lawyer for these two companies, Kannon Shanmugam, told the judges that there are about 60 similar cases brought by municipal governments across the country. And, in one of his most pro-oil moments during Monday’s oral argument, Roberts predicted that if Boulder wins at the Supreme Court, many more copycat lawsuits would be filed by other municipalities.

The question in Suncor The question is whether state courts, including those in Colorado, are barred from hearing these types of climate change lawsuits.

As Roberts pointed out in one of his less pro-oil moments during Monday’s argument, “There are many familiar situations where conduct outside of one state has broad effects on other states…and yet we allow courts in a particular state to bring prosecutions.” » He cited “mass tort” suits and “complaints about the operation of the Internet” as two examples where state courts hear suits involving harms that occur across state lines.

The oil companies’ main argument is that lawsuits involving air and water pollution are special. But the evidence supporting this argument is confusing and difficult to analyze.

In short, the oil companies point to several cases, many of which were decided more than a century ago. These cases showed that before Congress passed the Clean Air Act in 1963, states could sometimes sue other states for transboundary pollution, even though no federal law prohibited such pollution. The Supreme Court created a “federal common law” authorizing these lawsuits, and the oil companies say this federal common law preempted any state lawsuits covering a similar subject.

This federal common law, they now argue, has itself been superseded by the Clear Air Act and its partner law, the Clean Water Act, but the principle that state lawsuits involving air and water pollution are preempted is still in effect. Although nothing in the text of the Constitution supports this argument by the oil companies, the oil companies claim that their argument is implicit in the “structure of the Constitution.”

The oil companies’ main legal argument is difficult to understand

If you’re confused by all the obscure history and logical leaps contained in the oil companies’ argument, don’t worry. Most judges too. Only Justice Brett Kavanaugh, who repeatedly said his Court’s precedents precluded the Boulder trial, seemed to wholeheartedly accept what the oil companies are saying. Most of the other justices expressed at least some reservations.

Justice Amy Coney Barrett, for example, argued that even under the old “federal common law” regime, states still retained some authority over environmental lawsuits, although she noted that the Court’s previous decisions did not really define the scope of that authority. Kagan pointed out that the many climate change lawsuits are similar to past litigation against tobacco and opioid manufacturers. But those lawsuits were heard in state courts.

In other words, it seems unlikely that there will be five votes in favor of the oil companies’ convoluted claim that the “structure of the Constitution” somehow prevents state courts from hearing climate change-related lawsuits. But several justices appeared troubled by what might happen if dozens of state courts reach conflicting rulings on who is responsible for climate change and who should receive compensation because of it. And some of these judges have advanced alternative theories on how to hand the oil companies a victory.

At one point, for example, Barrett raised the possibility that if the plaintiffs lose Suncorthey could bring a new action under the now-defunct federal common law that existed before the Clean Air Act. Kagan, meanwhile, suggested that the Clean Air Act could perhaps be interpreted to preempt such lawsuits as Suncor. According to Kagan, this law “puts in place an extremely complex system for how emissions regulations should work,” and allows states to hear lawsuits like these. Suncor “would hinder the way Congress has decided to regulate greenhouse gases.”

And Roberts didn’t so much present a legal argument in favor of the oil companies’ position as express disbelief about what would happen if those companies lost. “Presumably, if you win,” Roberts told Kevin Russell, the Boulder attorney, before the Supreme Court, “the next day a municipality in every state will file a lawsuit, copy your pleadings, and then there will be at least 50…how do you think that will work on the ground?”

This is all a long way of saying that the result of Suncor is uncertain. The oil companies moved forward with a weak legal argument, and only Kavanaugh seemed to fully buy into that argument. Many judges appear concerned about the existence of these lawsuits, but the most skeptical judges have failed to agree on a legal theory they could use to end them.

For what it’s worth, the oil companies are actually making a strong political argument that it’s a bad idea to allow state courts to do this. As they argue, climate change is a global problem caused by many polluters (and companies like Exxon that supply the oil burned by the polluters) around the world. It might be impossible to determine which specific companies are causing the specific problems caused by climate change in Boulder, Colorado. And even if that hurdle can be overcome, many thorny questions remain about which state law should apply when pollution from one state spreads to another, not to mention the difficult diplomatic issues that could arise if a state court orders a foreign company to pay a large sum of money.

But under our Constitution, the right solution if oil companies want federal law to preempt suits in state courts like Suncor is that they can lobby Congress, and Congress could then write a statute that balances the interest of these companies in avoiding many conflicting legal decisions with the interests of plaintiffs like Boulder who say they are suffering real harm from climate change. Congress has the power, for example, to consolidate all of these state lawsuits into one big federal trial, where a single proceeding could determine how to divide the costs of climate change among different energy companies, and how to divide what those companies are ordered to pay among different plaintiffs.

But this solution would undoubtedly require compromises that companies like Exxon would not appreciate. Instead, they have asked the Supreme Court to grant them the legal regime they want, despite the fact that they have been unable to articulate a compelling legal argument for that outcome. It remains to be seen whether this Court will ultimately win the case for the oil companies.