A barnburner case next term at the Supreme Court is going to be Suncor v. Boulder County. It’s the first climate-lawfare case the Court will meet squarely, with Boulder trying to hold ExxonMobil accountable, through state tort law, for alleged contributions to global warming. The goal is to bankrupt the fossil fuel industry.
Amicus briefs in support of the petitioners were due yesterday, and there is a lot of lead being trained on target. Apart from the standard array of great work from trade associations and conservative organizations, the following briefs struck me as particularly noteworthy.
The case has a somewhat quirky procedural posture, stemming from an original supervisory action at the Colorado Supreme Court. Indeed the Court added a question presented on the jurisdictional question, which means one can expect Justice Kagan to argue that this jurisdictional indeterminacy presents a “vehicle problem” and thereby dodge the merits of the case. Enter Derek Muller, a law professor who teaches Federal Courts at Notre Dame, who makes short work of this by showing that there actually is a final judgment below that the Court has jurisdiction to consider. (The brief was authored by Jeff Beelaert, a longtime litigator of environmental appeals at DOJ.) A group of 24 former state supreme court justices filed a brief through Wisconsin appellate sage Ryan Walsh making similar points about the Court’s jurisdiction. Between two dozen justices who used to decide these cases, on one hand, and a highly respected Fed Courts casebook author on the other, this should be a nonissue.
Justice Barrett in her book observed that “amicus briefs are not universally useful” and that she routinely reads “some” such as “those filed by state governments.” Well, there were two here: One by 26 states led by Alabama and West Virginia, and one by Tennessee. The brief by the 26 states lays out how principles of federalism don’t allow for state-law claims based on interstate emissions. Tennessee, on the other hand, focused on the territorial sovereignty of states and how the litigation here interferes with that.
It was a similar argument to that made by my client in this case, the Coalition of Large Tribes (COLT), whom I represented alongside leading Indian-law practitioner, Jennifer Weddle. COLT argued that the case doesn’t just affect other states but also runs up against the sovereignty of the Indian tribes, with whose (copious) emissions-producing fossil-fuel activities states or localities cannot interfere. We argued, “Tribal mineral wealth is again under attack. But this time, the attack comes not from pillaging prospectors who want the tribes’ minerals for themselves. Rather, the threat today comes from hostile states and localities — like Respondents — whose aggressive use of state tort and consumer-protection law would severely restrict, if not forbid, tribes and their energy-industry partners from developing tribal fossil-fuel resources.” As COLT’s chairman, J. Garrett Renville, of the Sisseton Wahpeton Oyate Tribe, said about the case, “For many COLT tribes, fossil resources are a central tool in our ability to fund government services to citizens. Tribal governments make sovereign policy choices about whether and how to develop our mineral resources and we regulate those activities. COLT felt it was important to protect tribal resources from potential efforts by other governments to intrude upon tribal sovereignty, a risk we see in the Suncor case.”
Of course, the big dog of government support — the Solicitor General — filed a brief as well. DOJ appellate wizard, Deputy Solicitor General Sarah Harris, made a very strong showing that this case seeks to regulate international emissions, which is emphatically not within the power of a state.
This argument was also made strongly by Mike Pompeo, Jim Baker, Nikki Haley, and H. R. McMaster, represented by my law partners Bill Barr and Cody Reaves. Lest anyone on the Court think this is a newfound interest of the executive branch, these senior officials, whose service dates back to the Ford administration, demonstrate how suits like this will interfere with federal actions relating to energy development and international greenhouse gases because the power over foreign affairs rests entirely in the federal government.
Members of Congress had their say. Senators Ted Cruz, Chuck Grassley, Mike Lee, and Ted Budd filed a brief through the great Chuck Cooper and former Nevada Attorney General Adam Laxalt, showing why the case involves unlawful extraterritorial regulation. The assassins at the Boyden Gray firm, Jared Kelson and Michael Buschbacher, filed on behalf of 102 House members — led by majority leader Steve Scalise — showing how crossborder emissions are exclusively in the domain of federal law and not that of Boulder, Colo.
Boyden Gray’s Jennifer Hardy also filed a brief that’s both fascinating and important, this one on behalf of Sai Prakash of the University of Virginia. A leading scholar of federalism (who once did me a favor by testifying on behalf of then–Judge Barrett in her Supreme Court hearing), Professor Prakash makes an extremely forceful argument that the Constitution’s structure simply does not allow for suits like this. Prakash offers a thought experiment:
Imagine the withering American reaction had Imperial Britain adopted Boulder’s view of a sovereign’s regulatory reach. Suppose that in 1784, after the Treaty of Paris, the British Parliament passed liability rules to better govern our guns, militias, and army. Under Boulder’s theory, notwithstanding Britain’s recognition of our sovereignty and independence, Britain could have done this, because every sovereign could regulate any activity that affects it, despite the action occurring in another sovereign’s territory.
He correctly notes that “such assertions of legislative power would have been unimaginable to any of the Founders.”
Lastly, the centrist Breakthrough Institute filed a very helpful brief that simply demolishes the pseudoscientific theories of “attribution” that undergird all of these state-tort suits.
All told, 40 briefs were filed in support of petitioners, which is quite the flotilla. Taking a cue from Justice Barrett in the face of such voluminous advocacy, you’ll be in good shape if you start with those identified here.