Big Oil has an audacious request for the Supreme Court

In a 2016 opinion, authored one year before he became a Supreme Court justice, then-Judge Neil Gorsuch warned against lawyers who tempt judges to reach conclusions that aren’t supported by the Constitution’s text. “Ours is the job of interpreting the Constitution,” the future justice wrote. “And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.”Gorsuch might have gazed into a crystal ball when he wrote this line, because it could have been written with a case that is now before Gorsuch’s new Court — Suncor Energy v. County Commissioners of Boulder County — in mind.SCOTUS, ExplainedGet the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.In Suncor, city and county officials in Boulder, Colorado sued the oil behemoth Exxon Mobil, along with a company named Suncor that operates two oil refineries in Colorado. They sued in Colorado state court, seeking, in their own words, to require the two companies “to share a portion of the costs [Boulder] taxpayers face in coping with a climate altered” by the oil industry.That alone makes Suncor, which the justices will hear on October 5, a hugely important case, because it could be the first of many lawsuits ordering oil companies to compensate the public for the costs of climate change. But the stakes in this case are even higher because of the audacity of the oil companies’ argument to the justices.Exxon and Suncor claim that their clients should be immune from this suit, not because any particular provision of the Constitution grants them immunity, but because state courts are forbidden from hearing climate change lawsuits under something called the “structure of the Constitution.” The oil companies claim that there’s a rule against many state environmental suits buried somewhere in this “structure,” even though it cannot be found in the Constitution’s text.This argument exists in an entirely different universe than the Supreme Court’s precedents governing environmental suits, which explicitly permit — and even sometimes require — state courts to hear lawsuits alleging that a company in another state or country caused pollution that migrated across state or international lines.But there’s a bigger issue at stake here, too. If you take seriously these justices’ pledged allegiance to textualism — and its close cousin, originalism, which, in Justice Amy Coney Barrett’s words, claims that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative” — then Suncor should be an easy case. The oil companies’ failure to even articulate an argument rooted in constitutional text should be disqualifying.But Exxon and Suncor clearly believe they can win the case while thumbing their nose at many of the justices’ purported allegiance to textualism and originalism. It’s not hard to guess why they would believe this. Increasingly, the same justices who evangelize for textualism and originalism ignore the Constitution’s text when necessary to achieve their political goals.There is no textual basis, for example, for the Republican justices’ claim that President Donald Trump may use the powers of the presidency to commit crimes. Similarly, the Court’s Republican majority recently invented something called the “major questions doctrine,” which allows the justices to veto federal regulations that they deem too ambitious, even though the full Court has never even attempted to justify this doctrine by citing the text of the Constitution or any federal statute.Now, Suncor will be a test of just how far they will go, with big ramifications not just for climate lawsuits, but potentially for any lawsuit that seeks to declare a state or federal law unconstitutional..What are the actual legal issues in Suncor?Many of Boulder’s claims against the oil companies arise out of a tort law theory known as “nuisance,” which often allows someone who uses their property in a way that harms someone else to be sued. If your neighbor lights a trash fire in their yard that fills your house with noxious fumes, they have created a nuisance and you may have a viable lawsuit against them.Often, these nuisance suits involve major environmental claims, and they also often involve claims that cross state lines or even international borders. In Ohio v. Wyandotte Chemicals (1971), for example, the state of Ohio sued chemical companies located in Michigan and Canada, claiming that they “each dumped mercury into streams whose courses ultimately reach Lake Erie,” thus poisoning Ohio’s waters. The US Supreme Court ruled that Ohio’s state courts should hear this lawsuit.In Suncor, however, the oil companies claim that lawsuits arising out of climate change are special, and may not be heard by any state’s courts. Broadly speaking, these oil companies raise two arguments, one of which is easily refuted by quoting a statute; the other is their cockamamie claim that the “structure of the Constitution” prevents state courts from hearing Boulder’s lawsuit.One of the oil companies’ claims is that Boulder’s lawsuit is “preempted” by the federal Clean Air Act. On the surface, this argument is at least plausible, as Congress does have the power to enact federal laws that effectively nullify a state law. The Constitution states that federal laws are “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”But the oil companies’ claim that the Clean Air Act preempts climate change lawsuits in state courts is weak. That law states that “air pollution control at its source is the primary responsibility of States and local governments.” And it states that, at least with respect to stationary polluters like factories, power plants, or Suncor’s refineries, “nothing in this chapter shall preclude or deny the right of” states to adopt or enforce air pollution standards or laws, unless the state’s rule is less stringent than what federal law requires. (The Clean Air Act does sometimes preempt state suits involving pollution caused by mobile sources, such as airplanes.)So it’s pretty clear that the Clean Air Act does not bar state nuisance suits such as Suncor.Which brings us to the oil companies’ claim that the Constitution’s “structure” somehow bars this suit. Their brief makes the extraordinary claim that “the Court has long held that interstate pollution is an inherently federal area in which state law cannot govern,” a claim that is easily repudiated by the Wyandotte Chemicals decision, among others.In the same brief, the oil companies claim that the structural principle that only federal courts can hear climate change lawsuits can somehow be derived from an unusual approach to environmental lawsuits that the Court invented more than 100 years ago, and that it abandoned many decades ago.In Missouri v. Illinois (1906), the Supreme Court heard a claim that Chicago, Illinois was dumping sewage in a river that eventually flowed into Missouri. Despite the fact that there was no federal law governing water pollution at the time, the Court apparently concluded that there should be some process that states can use to sue other states that do what Illinois was accused of doing.The Court’s opinion in Missouri weighed the evidence in the case before ruling in Illinois’s favor. So Missouri seemed to suggest that federal courts have some power to hear environmental suits even in the absence of an act of Congress permitting them to do so.Based on this and similar older cases that reached similar conclusions, the oil companies claim that Missouri created a “federal common law” that governed interstate environmental lawsuits in the absence of a federal statute. And they also argue that this judicially created “common law” preempted certain state environmental lawsuits. They also argue that this preemption remains in place even though federal laws such as the Clean Air Act and the Clean Water Act have now displaced this federal common law.Needless to say, that’s a lot of logical leaps. The oil companies’ argument is that an extra-statutory workaround that existed many decades ago still preempts state environmental lawsuits, even though that workaround no longer exists and has been replaced by an act of Congress. They also claim that this rule against state environmental suits can be found somewhere in the “structure” of the Constitution, despite the fact that it is nowhere in the Constitution’s text.Among other things, this confusing argument is inconsistent with a case the Supreme Court decided as recently as April. As the Court said in Hencely v. Fluor Corp. (2026), “there is no federal pre-emption in vacuo,” a Latin term meaning “in isolation,” “without a constitutional text or a federal statute to assert it.”So the oil companies’ claim that the “structure of the Constitution,” whatever the hell that means, somehow precludes climate change lawsuits in state courts should be easily dismissed. Further, as the Court said in Hencely, a litigant making a constitutional preemption claim must cite the text of the Constitution — and the oil companies have not done that here.The oil companies’ brief actually makes a pretty good policy argument for only allowing federal courts to hear climate change lawsuitsSetting aside the oil companies’ risible legal arguments, they actually make a decent argument that, as a matter of policy, it would be best if climate change cases were heard in one grand federal lawsuit rather than dozens of piecemeal suits brought in state courts.Many different fossil fuel companies in both the United States and abroad have contributed to climate change. It may be impossible to determine which company is specifically responsible for any climate change-related problems that arise in Boulder, Colorado. And, because some of the responsibility for climate change falls on foreign actors, allowing a state court to adjudicate climate change-related suits raises difficult questions of international diplomacy.Additionally, the fact that the Clean Air Act treats pollution from stationary and mobile sources differently complicates this case even further. How is a court supposed to determine to what extent climate change in Boulder was caused by pollution emitted from oil refineries or power plants, rather than cars or airplanes?But these are arguments that the oil companies should present to Congress, not the Supreme Court. It is Congress’s job to decide when to preempt state law. And there’s no question that Congress could pass a law shutting down lawsuits like Suncor, while simultaneously creating a federal process that will allow Americans who are injured by climate change to seek compensation in federal court.Passing a federal law, however, requires compromise. It requires lawmakers to weigh the concerns of voters who don’t want the same outcome that Exxon wants. And, especially given the likely outcome of the 2026 midterms, it would require the oil companies to work with Democrats to come up with a legal framework that would actually earn some bipartisan support.Instead, the oil companies want to bypass all that by getting a Republican Supreme Court to declare lawsuits like Suncor unconstitutional. And they are apparently so confident that they can convince these justices to do so that they barely even managed to articulate a legal argument for their position.