Supreme Court ruling could unleash lawsuits across 90,000 jurisdictions

Justices Ketanji Brown Jackson and Sonia Sotomayor pressed jurisdiction questions Monday as the Supreme Court heard Suncor v. Boulder, a climate case that could expose oil companies to lawsuits across the country. Conservative lawyers said the liberal justices were looking for a way out.

“The fact that they kept going back to trying to create a jurisdictional problem tells me they don’t feel confident that they have the votes in this space,” Carrie Severino, president of JCN, told Fox News Digital. “Jackson and Sotomayor were looking for an escape hatch.”

The court opened its new term with arguments on whether state tort law can be used to seek damages from oil companies for climate change, even when the alleged harms occur outside the state or the continent. The justices are also weighing whether they have jurisdiction to hear the case now, while it is still before the Colorado Supreme Court.

The posture is unusual. The court could resolve the case without reaching the larger fight over state versus federal power. That fight is whether Colorado can use its own laws to seek damages for alleged harms from emissions produced in other states, or whether the issue belongs to the federal government and Congress.

“The questions by Jackson and Sotomayor trying to say it would be premature for the court to issue an opinion are simply the liberal justices trying to find an off-ramp for the case because they are afraid they will be outvoted on the main issue: does federal law such as the Clean Air Act preempt all state claims like those asserted here,” Hans von Spakovsky, senior legal fellow with Advancing American Freedom, told Fox News Digital.

While questioning Suncor attorney Kannon Shanmugam, Jackson suggested the dispute may have reached the court too soon, calling it “premature from the standpoint of this court exercising its jurisdiction.” She said the court does not “have the whole set of facts” and does not “really know enough to be confident” that the theories apply.

“It feels to me like the defendants … are bringing it back to federal court before the state courts have really had a chance to sort out who is the source, what is their allegation with respect to how this causation is happening,” Jackson told Principal Deputy Solicitor General Sarah Harris, who argued in support of Suncor.

Sotomayor kept pressing jurisdiction and proposed sending the case back. “If we’re unsure of your characterization, because there’s certainly a number of amici brief who disagree with that characterization, shouldn’t we be certifying this question to the Colorado court instead of us deciding it? We have to be sure of our jurisdiction before we take it,” she said.

Alabama Attorney General Steve Marshall said the liberal justices were trying to cast doubt on jurisdiction. “Well, I think you saw both Justice Jackson and Justice Sotomayor try to find an out for this court, basically saying the court doesn’t have jurisdiction at this stage of the case to be able to make a final ruling,” he told Fox News Digital. “I think that you saw the advocates on behalf of Suncor be able to distinguish that.”

If the court declines to reach the federalism issue, the Colorado Supreme Court’s ruling allowing Boulder’s state-law claims to proceed would stand, leaving unresolved how far states can use tort law against energy companies. Chief Justice John Roberts pressed Boulder attorney Kevin Russell on whether a Boulder win could trigger similar lawsuits nationwide. Russell said there are legal limits, but acknowledged to Justice Clarence Thomas that Boulder’s theory could allow other fossil-fuel businesses to be sued.

“The chief justice and the court do not like issuing rulings with no limiting principles, rulings that could open up unlimited litigation and claims,” von Spakovsky said. Shanmugam, he added, pointed out that “there are not only 90,000 political jurisdictions that could sue, but individuals could also sue claiming damages from global warming,” and that Boulder is trying to settle a major policy question in court rather than in the legislature.

Marshall said the suits are meant to “create a carbon tax on both producers and emitters across the country,” including cattlemen and concrete makers. “They ultimately want to bankrupt that industry to have their preferred climate change policies be in play,” he said. Utah Attorney General Derek Brown said the plaintiffs “want to regulate not just what happens in Colorado, but what happens in my state of Utah or in Saudi Arabia,” and that energy policy belongs to Congress.

Boulder alleges ExxonMobil and Suncor knew for decades about climate risks from fossil fuels and misled the public. The communities estimate taxpayers could face more than $100 million in costs to adapt to wildfires, drought, and damage to roads and other infrastructure. Former Washington Gov. Jay Inslee said those costs are already being felt. “So many communities have essentially burned down, and they ought to be able to have a day in court to hear the evidence, to determine whether the lies of the oil and gas industry legitimately, they make it so that they’re held accountable,” he told Fox News Digital.