Leadership1 publisher3 min readPublished
Exxon and Suncor stake their Boulder defense on the Constitution's structure
Exxon Mobil and Suncor argue that the Constitution's structure bars Boulder's climate-cost suit from state court, in a case the Supreme Court hears October 5. Vox reports they cite no clause of the text, so the case tests the justices' textualism as much as Boulder's claim.
The Board Room · Leadership desk
What happened
- City and county officials in Boulder, Colorado, filed the suit against Exxon Mobil and Suncor in Colorado state court.
- Boulder wants the two companies to share a portion of the costs its taxpayers face in coping with a climate the oil industry altered.
- Many of Boulder's claims rest on nuisance, the tort theory that lets someone be sued for using their property in a way that harms others.
- Vox reports that the Court's environmental precedents permit, and sometimes require, state courts to hear suits over pollution that crossed state or national lines.
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Why it matters
- exposure If state courts stay open to these claims, oil companies face nuisance suits from local governments in state forums, and Vox expects Boulder's to be the first of many seeking climate compensation.
- precedent A win built on constitutional structure alone would give the Court a method that, by Vox's account, could reach any suit seeking to declare a state or federal law unconstitutional.
- decision Justices who profess textualism have to choose between that method and the companies' result, because the companies offer no provision for them to apply.
The board-deck version of Suncor Energy v. County Commissioners of Boulder County asks whether oil companies owe Boulder for climate costs [1]. That version is incomplete. The question Exxon Mobil and Suncor have put to the justices is where such a claim may be heard, and their answer is that no state court may hear it [5]. They rest that on what they call the "structure of the Constitution," and not on any particular provision [5]. According to Vox, which is critical of the companies' position, the rule they describe cannot be found in the Constitution's text [6].
Stated plainly, the companies' case is that the Constitution's design can close state courts to climate suits even though no clause says so [5][6]. The weak point is the Court's own case law on pollution that crosses borders. Vox's example is Ohio v. Wyandotte Chemicals (1971), in which the state of Ohio sued chemical companies located in Michigan [8]. Vox writes that the companies' argument exists "in an entirely different universe" from the precedents governing environmental suits [7].
The harder problem for the companies is the justices' own stated method. "Ours is the job of interpreting the Constitution," then-Judge Neil Gorsuch wrote in 2016, a year before he joined the Court. "And that document isn't some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning." [11] His warning named tort law. In Suncor the tort claim is Boulder's nuisance suit, and the rule missing from the text is the one the defendants want [6][9]. Justice Amy Coney Barrett has described originalism as the view that "constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative" [12]. On those terms, Vox argues, the companies' failure even to articulate an argument rooted in the text should be disqualifying [15].
Vox's explanation for why the companies argue this anyway is the Court's recent record. It points to the major questions doctrine, which it says the Court's Republican majority created and which the full Court has never tried to justify by citing the Constitution or any federal statute [14].
The decision this term settles the forum, and the damages question waits on it. We do not know yet which way the justices will go. A ruling for Boulder would not find Exxon or Suncor liable. It would leave the nuisance claims with a Colorado court, in the state where Suncor operates two refineries, and the merits would still have to be proved [2][3][9]. A ruling for the companies on structural grounds would end this suit in state court and, on their theory, climate suits like it [5].
What to watch
- Whether Gorsuch or Barrett presses the companies' counsel on October 5 to say where in the text the claimed bar on state climate suits sits.
- Whether a ruling for the companies is written narrowly for climate claims or as a general structural rule that reaches other state-court suits.
- Whether other local governments bring climate-cost suits in state courts, or hold off, once the decision is out.