My second observation on the Suncor oral argument is about Justice Elena Kagan’s early questioning of the petitioner. She waived aside the constitutional arguments and asked how, in principle, this is any different from 1980s tobacco litigation. Really, aren’t the oil companies just trying to evade liability for harms they cause through their deception? The question echoed theories that are at the heart of the climate lawfare effort.
By the end of the argument, Justice Kagan seems to have abandoned the analogy. She observed that “everything depends” in the case on Suncor being “responsible for excessive emissions” and that the Clean Air Act “sets up a scheme for deciding what are excessive emissions and what are not.” This — echoing Justice Kavanaugh — is the “more natural and simpler rout toward [Suncor’s] view of what should happen here.”
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