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Solicitor General’s Input Sought on Climate Suits Against Energy Companies

October 3, 2022 by Dan McCue
Elizabeth Prelogar, solicitor general of the United States.

WASHINGTON —The Supreme Court on Monday asked the solicitor general’s office to weigh in on a dispute over which courts — state or federal — can hear climate litigation against fossil fuel companies.

The request comes as the justices consider whether to review a 10th U.S. Circuit Court of Appeals ruling from last winter that said a lawsuit filed by local lawmakers in Colorado against ExxonMobil and Suncor Energy belongs in state court.

The underlying 2018 case, Board of County Commissioners of Boulder County, et al. v. Suncor Energy (U.S.A.), Inc., et al., is one of about two dozen lawsuits filed by state attorneys general and municipalities seeking billions of dollars in damages.

What they have in common is that they all principally allege that the energy companies misled the public about the impact unrestrained fossil fuel use was having on climate change.

In addition, they all ask that the companies be held accountable by having to pay for the public health costs, remedial infrastructure needs and other issues stemming from their alleged actions.

As recounted in the 10th Circuit’s February ruling in this specific case, the City of Boulder, and the county commissioners in Boulder and San Miguel counties, banded together four years ago  to file a claim in state court saying they have and will continue to experience harm because of climate change caused by fossil-fuel consumption. 

They allege that as a result, they have spent and will continue spending millions of dollars to mitigate this harm.

The municipalities further claim the energy companies concealed and/or misrepresented the dangers associated with the burning of fossil fuels despite having been aware of those dangers for decades. 

They seek compensatory damages, remediation and/or abatement, as determined by the court, and pointedly do not ask the court “to stop or regulate” fossil-fuel production or emissions “in Colorado or elsewhere,” according to U.S. Circuit Judge Carolyn McHugh, who wrote the opinion for the appeals court.

The energy companies responded by filing a motion to move the case to federal court. In doing so, and later on appeal, they argued the federal courts have jurisdiction over such claims in part because the Clean Air Act completely preempts the state-law claims; the claims implicated disputed and substantial “federal issues”; and finally, because the companies lease property on the outer continental shelf from the federal government to drill for oil and gas.

A federal district court rejected all of the asserted grounds for removal and remanded the case to the state court.

On appeal, the energy companies argued the federal officer removal statute gave the 10th Circuit jurisdiction to consider all the grounds for removal asserted, not just federal officer removal. 

“We disagreed and held that our jurisdiction was limited to the federal officer removal question,” McHugh wrote. “Concluding that the requirements for federal officer removal had not been satisfied, we affirmed the district court’s remand order without considering the other grounds for removal.”

Since then, with its ruling in BP v. Mayor & City Council of Balt., the Supreme Court has clarified that in circumstances such as the present, where federal officer removal is one of multiple grounds for removal, the entire order of remand is reviewable on appeal. 

In May, the Supreme Court vacated the 10th Circuit’s earlier ruling and remanded the case for reconsideration in light of the high court’s latest decision.

Both sides restated their earlier arguments, and the 10th Circuit once again affirmed the lower court’s ruling.

On June 8, the energy companies filed a petition for a writ of certiorari asking the Supreme Court to review the 10th Circuit’s decision and resolve a circuit court split on the issues raised by the case.

Dan can be reached at dan@thewellnews.com and at https://twitter.com/DanMcCue.

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