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17 Jun 2022

Lesley Clark, E&E News

USA: Exxon & Suncor ask Supreme Court to review Colorado climate change lawsuit; argue federal courts' jurisdiction

"Oil Companies Tee Up the Next Supreme Court Climate Showdown", 9 Jun 2022

Climate liability lawsuits from state and local governments against fossil fuel companies could be headed to the Supreme Court for a second time.

Suncor Energy Inc. and Exxon Mobil Corp. yesterday petitioned the justices to review a lower court decision that delivered a procedural victory to Colorado governments suing fossil fuel companies for climate damages...

The February finding by the 10th U.S. Circuit Court of Appeals that the case should be heard by a state judge — rather than a federal bench, as industry wants — was the first in a string of legal losses for oil and gas companies after the Supreme Court said last year that appellate judges could consider a larger set of arguments in favor of federal jurisdiction.

In Suncor v. Board of County Commissioners of Boulder County, the companies argued yesterday that the Supreme Court must step in once again.

“Given the stakes in the climate-change litigation, the questions presented here are some of the most consequential jurisdictional questions currently pending in the federal courts,” the companies’ petition states, noting that as of now, 23 similar cases are active nationwide.

Attorneys for the companies told the Supreme Court that given “the significant stakes for the parties, the questions presented here will continue to bedevil the lower courts until this court intervenes.”...

The suits were filed in state courts, but industry has sought to move them to federal benches, where a judge could find that the municipalities’ claims are preempted by the Clean Air Act.

The Supreme Court has already engaged in the debate once, with a decision last May that sent a host of cases back to federal appeals courts, instructing judges to consider a broader range of factors when deciding whether the liability lawsuits should be heard in state or federal court.

The 10th Circuit was the first appeals court to decide that the cases still belonged before state judges. Other federal appeals courts have since followed suit...

Exxon and Suncor said in their Supreme Court petition that the 10th Circuit should have found that the Colorado communities’ claims related to greenhouse gas emissions and climate change are a matter for the federal courts.

“The questions presented squarely implicate the longstanding principle that federal law alone necessarily governs disputes related to interstate pollution,” the companies said.

And they warned that deciding otherwise “opens the door to countless potentially conflicting state-court lawsuits applying state nuisance law to claims seeking redress for the global phenomenon of climate change.”

States and cities suing industry have maintained that their complaints do not take into account global climate change but are based on state laws that prevent consumers from being misled about products.