How the chips could fall in the blockbuster SCOTUS climate case
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Sometimes the outcome of a Supreme Court case becomes pretty clear during oral argument. The blockbuster climate case the justices heard on Monday was not one of them.
Why it matters: The argument creates a cliffhanger over the fate of dozens of state-court lawsuits nationwide seeking climate damages from oil giants.
The big picture: Justices are weighing whether federal law blocks Boulder, Colorado's claims under state law.
- They're also mulling whether the Colorado Supreme Court decision to let Boulder proceed was a "self-contained" action that gives SCOTUS jurisdiction.
👟 Catch up quick: Samuel Alito's recusal means if all the liberal justices side with Boulder, one defection among the conservative majority creates deadlock.
- That would allow Boulder to proceed, but prevent a wider precedent on these kinds of cases under state law.
🏀 State of play: Good argument recap pieces are already out there, so let's jump to how legal analysts (and yours truly) are thinking about what went down.
- Justice Brett Kavanaugh seemed to clearly side with the oil companies that federal law preempts the 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 hard to read, multiple analysts noted.
📣 What they're saying: UCLA law professor Alejandro E. Camacho's insta-analysis breaks down like this:
- Justices Jackson and Sotomayor "firmly" with Boulder. Justice Amy Coney Barrett "leaning" toward the oil companies, but not on broad constitutional grounds they raised.
- Justices John Roberts, Neil Gorsuch, and Clarence Thomas' views are uncertain, though Thomas may be leaning toward the companies and Roberts was "harder on Boulder."
🔭 Zoom out: Camacho thinks the most likely outcome is the companies winning on narrow grounds.
- Of note: Camacho's on the board of the Center for Progressive Reform, an NGO that supports Boulder's position.
My thought bubble: A bright spot for the oil companies is that multiple justices seemed wary of a practical mess in the absence of federal preemption.
- "Presumably, if you prevail, the next day, a municipality in every single state will file a lawsuit," Roberts told Boulder's attorney.
🔍 What we're watching: There's potential for a mixed outcome that blocks these state claims about emissions but preserves the power to bring deceptive practices claims.
- "A narrow preemption ruling would do little to shield 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 all of the conservatives other than Kavanaugh are in play. Kagan may be as well," William & Mary environmental law scholar Jonathan Adler said via email.
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