Cert Grant in Climate Case

The Supreme Court has added a climate case to its docket. In Suncor Energy Inc. v. County Commissioners of Boulder County, local governments sued fossil fuel companies in Colorado state court to recover for damages they sustained as a result of climate change. The complaint includes claims for public and private nuisance, civil conspiracy, unjust enrichment, and trespass. The factual bases for those claims include defendants’ production and marketing of fossil fuels, and advertising which purportedly misled the public about the impacts of climate change.

The defendants argue that the claims are preempted by federal environmental laws and by the controversial and mostly moribund constitutional doctrine of “foreign affairs” preemption. Perhaps of particular interest to TLB readers, the cert petition and the U.S. Government try to enlist Fuld v. PLO in support of that second form of preemption. That is a real stretch, because Fuld did not involve preemption and it did involve a narrowly tailored statute, so it thus provides little support for a form of preemption that is not based upon a statute.  More generally, the briefs raise a wide range of interesting questions about state power to regulate extraterritorial conduct.

The Colorado state courts rejected all the defendants’ preemption arguments.

The question presented in the cert petition is:

Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.

In addition, the Supreme Court directed the parties to brief and argue “[w]hether this Court has statutory and Article III jurisdiction to hear this case.”