The Supreme Court Is Poised to Strangle Climate Lawsuits in the Cradle

Jurisprudence By Enter your email to receive alerts for this author. Sign in or create an account to better manage your email preferences. Unsubscribe from email alerts Are you sure you want to unsubscribe from email alerts for Dahlia Lithwick? Sept 22, 20265:19 PM The Supreme Court has stepped in at an incredibly early stage in this litigation. Photo illustration by Slate. Photos by steheap/Adobe Stock, Mdlina/Adobe Stock, and Leonid/Adobe Stock. Sign up for Executive Dysfunction, a weekly newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. Who bears the costs of climate change? The answer is very simple: you, me, and most acutely of all, low-income households and marginalized people. This Supreme Court term will open in just over a week with a case that will help decide whether that is to remain the sole case, or if carbon polluters might actually bear some burden for the effects of human-caused climate change, for which they are largely responsible. The case, Suncor Energy v. County Commissioners of Boulder County, questions whether local and state governments can sue oil companies in state court and force them to pay some of the localized costs of climate change. On this week’s Amicus podcast, Dahlia Lithwick asked Sam Sankar, vice president of programs at Earthjustice, to lay out the stakes. Their conversation has been edited and condensed for clarity. Dahlia Lithwick: Before we turn to the precise contours of Suncor, I think it’s worth laying out how we can follow the trail of climate denialism and suspicion of regulatory agencies right to the doors of SCOTUS and a legal apparatus that gears up in order to serve a deregulatory agenda targeting environmental protections. Sam Sankar: Broadly speaking, the Supreme Court left alone environmental law in the early days, back in the 1970s. The D.C. Circuit was the one that was really making tons of law around these areas, tons of doctrines and administrative law to guide the agencies without blocking them. The first shot in that denialism and suspicion of regulatory agencies comes in early cases about standing, where Justice Antonin Scalia starts drawing lines and saying, You know, you can’t just sue about anything. You’ve really got to be personally injured in a very clear and concrete way. That kind of requirement itself makes it tricky to sue about everything from taxpayer issues to, as you know, Donald Trump blowing up the White House and rebuilding it in his image, or the environment. The next thing I think you start seeing is the court becoming interested in, despite its professed adherence to textualism, reading these statutes with an eyebrow raised. Could they really mean that? It seems like there’s a lot going on here. There might even be major questions about these regulations that are coming out. For those who aren’t aware, “major questions” is a doctrine the court announced a couple of years ago that seems tailor-made to restrict the ability of agencies to regulate. What we’re now seeing is a lot of these decisions around preemption. Because we know the federal government isn’t doing what needs to happen, many progressive states are trying to do things on their own. And the court is being asked to block state action, it’s being asked to say: Federal law, even if it’s not really being implemented, blocks all of that stuff. And that has happened in tandem with an extraordinarily conservative Supreme Court coming into being under the banner of ideas like textualism and originalism and supposedly neutral approaches to interpreting the law. And so this court is now really openly hostile to the idea of regulation and is reading statutes to limit regulatory power. If you look at the terms of these old statutes, for years the court was reading them literally and saying: You’ve got a lot of space here. Now, in cases like Sackett, about the Clean Water Act, they’re saying: We’re going to read it differently. I want to follow up on what you said about standing doctrine and the environmental cases. A couple of weeks ago, we had Erwin Chemerinsky, dean of Berkeley Law, on the show, and he was raising the alarm about the potential catastrophic effects of the White House ballroom case on environmental law. Dean Chemerinsky said that when the justices pooh-poohed and batted aside aesthetic injury claims, that really raised questions for standing in a massive amount of environmental lawsuits. Did it raise the same alarms for you? If you read the legal logic of that opinion, it’s absolutely—I won’t say terrifying—it’s of deep concern, really problematic, because a lot of environmental law is about protecting not just public health, but the environment for people—beautiful wild spaces, animals, rivers that are pleasant to recreate on, and even just the smog and haze that blanket a lot of cities. So even Justice Scalia, while he narrowed standing doctrine, left open very clearly the idea that people who had aesthetic injuries because they went to places regularly and because they were seeing them degraded, that was absolutely a reason why you could have standing. Now he didn’t make it easy to prove it, but absolutely, aesthetic injury was real. The ballroom case seems inconsistent with that. What I am hoping is that this was another one of those “Donald Trump is different” cases. I think that all of us are hopeful that that really is just good for the one case. Having said that, that’s not stopping anybody from citing that case in environmental law cases. You saw a flurry of Rule 28(j) letters—that’s the letter that you send out to alert a court you’re in about a decision from another court after briefs have been filed or before oral argument. Those letters went out like mad to all kinds of courts that were dealing with standing in environmental cases. OK, let’s talk about Suncor—which is not your case—but it is an incredibly significant case about an actual thing that we call climate change. It’s really important because it’s part of an array of dozens of cases filed over many years by state and local governments who are trying to rush into the void and hold the fossil fuel industry accountable for climate change. Before we talk about the complexity of it, I would love for you to just tell us the history of the case and what the issue is. This is one of a couple of dozen cases like this around the country. Boulder County’s claim follows a path similar to many of the other ones, although not identical. What Boulder County said was: No. 1, climate change is real and it has been real for decades, but through those decades the oil industry has been denying the risks of its products, denying climate change, denying a link between its products and climate change, and basically suppressing the public’s understanding of the risks of the product and suppressing any kind of action meant to regulate it or control it. That deception injured consumers. No. 2, the products themselves were injurious to consumers as well. This claim was brought by a municipality. The municipality wasn’t saying, “We want you to stop drilling for oil, or get rid of gas powered vehicles.” What it was saying was: We want damages for this because we’re spending a ton of money dealing with climate change. We’re having to reinforce roads to deal with extreme heat or extreme precipitation. We’ve got to rebuild infrastructure to deal with hundred-year floods that are happening every other year now. We’re dealing with heat stress and heat stroke and all the things that the people in our town are being affected by. We’ve never had wildfire seasons like this in the past. It’s very hard for us to deal with, and we’re spending a ton of money to upgrade systems, to fight the fires, or even to deal with the aftermath of these things. Boulder County estimated the money that it had shelled out for this to be around $100 million, but they haven’t been specific about the dollar amount they want, it’s just they’re saying they want to recover that from some of these folks. Now, this case isn’t over yet. Nowhere near over. What’s happened is Boulder has made allegations about the deception, it’s made allegations about the link between the products and climate change, and it’s made allegations about the responsibility the oil companies should bear as a result of that. These are questions that get resolved by juries every day. All Boulder County is looking for right now is the chance to prove these claims to a jury. What Suncor and Exxon are trying to do right now is stop the case from going forward. What they’re saying is that this kind of case shouldn’t even get off the ground. There shouldn’t be a trial, there shouldn’t be any kind of judgment. They should be let off the hook before the trial begins. The Supreme Court has stepped in at an incredibly early stage in this litigation. Nothing’s been decided yet. And this then suggests that this will become another hypertechnical doctrinal vehicle that’s going to be used not just to short-circuit this litigation, which, as we’ve both stipulated, has barely come off the blocks, but it could ensure that no one gets to the merits in any of the similar cases around the country. That has been the trick that the court has been using, right? Using in this case preemption, in others standing, using whatever it is that they can to make sure that the case never gets through the courthouse doors and never gets litigated on the merits. I just want you to amplify how important it is when you slam the courthouse doors, whether it’s preemption or standing, in environment-land, that’s it. There’s not another plaintiff that’s going to come around with a better injury, if the federal regulation in this case bigfoots all over state law such that nobody can ever bring a lawsuit. That’s the end. Well it’s worse even than you’re describing, for two reasons. First, yes, if the Supreme Court ruled that this case can’t go forward, there would be many cases that would be probably fatally injured. Now, Boulder County’s claims, which are primarily about risky products and deception, aren’t identical to all the cases. Michigan has a case, I believe, that has more to do with antitrust law. But it’s going to be awfully hard in those cases to dodge a broadly worded Supreme Court opinion that basically says climate change is not a local thing, only the federal government can do it, even if the federal government isn’t doing anything. The other problem is the Supreme Court thinks it knows the story right now. And that story goes something like: It wasn’t really a big-deal deception. Come on, the oil companies didn’t know everything, really, and who can blame them. During the early days of the tobacco lawsuits, the tobacco companies were declaring up, down, and sideways that they didn’t know any of this, that they were just doing the best they could. It took investigations, trials, discovery, all of the tools of modern litigation, to get documents, interview witnesses, to do the fact-building that exposed just how bad the industry had been behaving. There’s still a lot for us to learn about what the oil industry did and didn’t know, even though we have some pretty damning stuff already, and about what it did and didn’t do. It’s only fair to the plaintiffs to give them the chance to show the truth and then let the jury decide. And then whatever the jury decides, the Supreme Court can then review it on a full record—a full record being the transcript of the trial, all the evidence that comes in, all of that stuff, the Supreme Court then can review a package, a full picture. Rather than saying, as I suspect they are poised to do now, “We know the answer,” before you even get started. Climate Change Environment Jurisprudence Supreme Court Judiciary