Maybe the Justices Don’t Want to Rule on Climate Lawsuits?

This week, we learned from the Supreme Court that Justice Samuel Alito is recusing himself from the case of Suncor Energy v. Boulder County, with oral arguments set for next Monday. Alito offered no explanation for the decision, which was entirely his to make.

It’s a startling development, since you would think Justice Alito would be champing at the bit to vote in a case that could put an end to all state-level torts over interstate greenhouse-gas emissions for alleged climate damages, such as the lawsuit pursued by Boulder County in Colorado against the energy producers Suncor and ExxonMobil. Progressives have been calling for Alito to recuse himself, as they so often do, over Alito’s financial stake in a couple of oil companies and his relationship with a hedge-fund manager whose firm invests in Suncor. But Alito reports no stake in Suncor or Exxon, and he has waved off similar calls from the left to recuse himself from cases time and again. Also, why would he recuse himself only now, a mere week before oral arguments?

In the case at issue, the energy companies are asking the Court to rule that such torts are preempted either by federal statute — specifically the Clean Air Act, which the Court has previously held to give the EPA regulatory power over greenhouse gases — or, in a much more radical argument, by the Constitution’s very structure of state sovereignty. My suspicion is that the Court’s conservative justices are reluctant to rule on either question.

If the Court rules on the latter grounds, it would effectively create a new doctrine against extraterritorial regulation: that states can only govern conduct within their own borders, and cannot attempt to regulate activity that occurs in other states. Such a doctrine could sweep much more broadly than the dormant commerce clause — an implied prohibition in Article I’s commerce clause against state laws that “excessively burden” interstate commerce — because that doctrine requires courts to weigh the burden on commerce against a restriction’s legitimate ends. Under the balancing test established in the 1970 case Pike v. Bruce Church, a facially neutral law that nonetheless burdens interstate commerce must be upheld unless the law’s burdens are “clearly excessive in relation to the putative local benefits.”

A novel extraterritoriality doctrine rooted in federalism principles, by contrast, could extend as far as originalist jurist Michael McConnell has urged: “States have authority only to regulate activities within their own jurisdiction.” And, “States generally may not punish people for deeds done in other states.” And a state “cannot block interstate commerce for the purpose of coercing or influencing the way people behave in other states.” Ruling along these lines would give challengers a potent new weapon against state laws of all kinds that affect out-of-state behavior. It would create a new legal arena, with countless battles to follow.

Of course, it would be much easier for the Court to rule on statutory grounds that the Clean Air Act’s regulatory scheme preempts state-level regulation of greenhouse gases. But most of the current justices probably don’t believe that the Clean Air Act does any such thing, because it doesn’t regulate greenhouse gases. The notion that it does was enshrined as precedent in the 2007 case Massachusetts v. EPA, in which a 5–4 majority ruled that greenhouse gases counted as a potentially harmful “air pollutant.” Justices Roberts, Thomas, and Alito all joined Justice Scalia’s dissent that greenhouse gases might not be considered a pollutant at all. The emergence of the major questions doctrine under this conservative Court — the principle that, if the executive branch wants to regulate on an issue of vast economic and political significance (like climate change), it must have clear and explicit congressional authorization to do so rather than rely on ambiguous old statutes — has only strengthened the argument that the Clean Air Act doesn’t authorize the EPA to regulate greenhouse gases.

But Massachusetts v. EPA is still precedent, and conservative justices have made subsequent rulings based on its reasoning. In 2011, Justices Alito and Thomas concurred that the Clean Air Act displaced federal climate suits, pointedly accepting the assumption that Massachusetts was decided correctly “for the sake of argument because no party contends otherwise.” Perhaps they and their newer originalist colleagues could rule again on this assumption, even if they think it’s wrong . . .

 . . . Except the Trump administration has already rejected the Court’s conclusion in Massachusetts. When it rescinded the endangerment finding that enabled the EPA to regulate greenhouse gases, it explicitly argued that the Clean Air Act “does not authorize the Agency to prescribe emission standards in response to global climate change concerns.” In doing so, the administration all but invited the Supreme Court to reconsider its ruling in Massachusetts, and a lawsuit challenging the finding’s rescindment from two-dozen Democratic states provides the perfect vehicle to do so. That case could reach the nation’s highest court within the next two years.

So the justices are in the uncomfortable position of having one set of conservatives and originalists petitioning them to reaffirm Massachusetts v. EPA in Suncor this term, and another set of conservatives and originalists asking them to overturn Massachusetts immediately afterward. That may be why Justice Alito seized the opportunity to recuse himself, thus raising the specter of a 4–4 split that leaves the matter unresolved for now. It may also be why the Court peculiarly asked the parties in Suncor to argue on whether it even has the authority to hear the case before it reaches the legal merits. If the Court finds it lacks jurisdiction, it can bow out on a procedural point.

Otherwise, if the justices rule in favor of the energy companies and block state climate torts, their options are limited to accepting a statutory argument they will likely soon repudiate or slamming down a transformative constitutional doctrine. Taking a pass seems mighty appealing.

All this to say, as I wrote in my magazine piece on the case, more storms lie ahead for climate law — and maybe for an entire realm of interstate regulation.