The present case is nothing like the tobacco cases.
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.”
Good. The analogy is ridiculous. Tobacco claims rest on the premise that the cigarette companies sold a dangerous recreational product they knew to be especially dangerous and then deceived consumers into consuming them.
Every aspect of the claim with regard to fossil fuels is different.
With cigarettes, you smoke and you might get cancer. With oil, there is no such clear causal relationship between gassing up your car and having a wildfire, absent significant and vexing attenuation.
Cigarettes are a product manufactured in Winston Salem that potentially causes health problems. With fossil fuels, the problematic emissions are everywhere. Even limiting them to oil production doesn’t work under Boulder’s theory. Justice Thomas asked, “So you could just as easily sue large retailers of these products?” To which Boulder responded, “I think nothing under the Constitution would prevent that.” Why stop at retailers? The production of anything involves carbon emissions. Is everyone liable?
Cigarettes are a recreational product you use or you don’t, and warnings affect that binary choice. Fossil fuels are the lifeblood of industry and daily life; the most “fair warning” would do is potentially decrease daily use by an indeterminate, marginal amount.
In other words cigarettes are discrete products with discrete harms brought about by specific deceptions. With fossil fuels it’s a widely diffused product with attenuated harms that have no actual relationship to deception.
This shows how Justice Kagan was eventually correct: The case is not really about deception; it’s about emissions. And that makes it about the Clean Air Act. It’s nothing like the tobacco cases.