Climate Lawfare: Experts say Supreme Court’s Suncor case may stop blue states regulating red states
Can one state govern another?
The Washington Times’ “Climate Lawfare” event, hosted by Alex Swoyer, brings together West Virginia Solicitor General Michael Williams, Article III Project’s Josh Hammer and Alliance for Consumers’ O.H. Skinner to preview the Supreme Court’s Suncor case.
[SWOYER] For anyone that’s come in a little after we already started the introduction with the Suncor case: essentially what you’re seeing is many blue localities, Colorado, Boulder County, the commissioners of Boulder County, Hawaii, we’ve seen Maryland, a number of states — I’m sure you guys can fill in the blanks here — come after fossil fuel companies. And so on Monday, the Supreme Court will kick off its first term, or first arguments of the term. And the focus here is this climate lawfare that’s going on, trying to basically drag these fossil fuel companies into court to get access to their documents and, of course, their pockets. What do we expect the Supreme Court squarely to address here? What issues are they going to answer? [WILLIAMS] So there’s a threshold issue, and then there’s sort of the substantive merits issue. There’s an initial thing about whether they can even properly hear this case because it comes from a Colorado Supreme Court decision that arguably isn’t final, and that means that the Supreme Court wouldn’t actually have jurisdiction. If they decide that the decision wasn’t final, then that’s the end. We don’t actually get to the fun stuff. Assuming that they decide that Colorado decision is final, though, we then get to evaluate whether these tort lawsuits against America’s traditional energy providers and supposed emitters can go forward in state courts. And so there are a series of questions about whether our Constitution, the structural constitutionalism, is going to displace the ability to bring these state suits, whether federal statutes like the Clean Air Act preempt their ability to bring these suits, and then even whether federal common law, so we’re talking about cases from 150, 200 years ago, whether those cases also kind of effectively preempt or displace the ability to bring state torts. So at the end of the day, this really is another opportunity for the Supreme Court to figure out who decides these important federal, national-level issues. [SWOYER] Josh, you mentioned that you had some thoughts on the standing issue. We’ve seen the court, the justices kind of like to get rid of things on that. Can you give us some insight on what you’re reading in that? [HAMMER] Sure. So I think that the biggest question is this preemption question, and I anticipate that will take up the bulk of the oral argument time if I had to guess at the Supreme Court on Monday. But me personally, I’m always thinking about standing. I mean, I think a lot about Massachusetts versus EPA, that infamous 2007 case where the court held 5-4, with Anthony Kennedy joining the liberals at the time, that Massachusetts, the Commonwealth, had standing to sue to stop the erosion of the oceans. And I think, as the John Roberts and Anthony Scully dissents, I think persuasively argued, that this is a fairly ludicrous doctrine of standing. So to kind of go back to some con law and fed courts 101, there’s a case from 1992 called Luhans, which is kind of oftentimes cited and viewed as the golden rule of standing doctrine. You essentially need three things in order to get your day in federal court in Article III, case of controversy. The first is that you need to have an injury in fact, a concrete injury that you can clearly demonstrate. Two is that injury must be fairly traceable, in a causal connection, to the defendant’s conduct. And three, then the defendant, there has to be a way for the court to redress the grievance in a way that the courts are typically equipped with Article III tools of law and equity to do. So me personally, kind of thinking about Massachusetts versus EPA, I’m almost thinking bigger picture, Alex. I would love nothing more than for the court to kind of dive in on this and potentially to just formally overturn the disaster that was Massachusetts versus EPA. I’m not saying that they necessarily will or that they even have to. They could easily dispel this case on preemption grounds. So there’s lots of options on the table here, but that’s just one thing that I’m always thinking about. I’ve been a standing hawk, so to speak, ever since my law school days, and this case kind of just leaps off the page of me. Again, assuming, as Michael said, that they actually decide that the Colorado Supreme Court case was even final, that there’s no more procedural up and down in the state courts, which could be another way to dispel this, at least for the time being. Personally, I would hope for a firmer ruling than that, but I guess we’ll see. [SWOYER] And, O.H., I know the Trump administration has filed on this case, and they have taken the Suncor side. If you want to expand on that, but also I want to specifically ask you, what’s at stake for consumers with this? I mean, it’s such a big precedent-setting dispute. [SKINNER] I think everybody should care about this case, and I actually think it would be great if preemption were almost not a focus of this case because the lead argument that the energy companies brought and the lead argument that the United States brought, Sarah Harris, who is principal deputy SG and is going to argue the case, is all about this concept of horizontal federalism and how the states interact with each other. I think this case matters because irrespective of the fact that the left thinks climate change is everything and everything is climate change, the exact arguments that are being pressed here are what they will use to go after utility energy production, your actual utilities that are producing energy for your house, or plastic straws, or guns, or cars. This will be a tool that the left will use to push out of blue jurisdictions to control your life in red places.
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Watch the video for the full conversation.
Read more: Supreme Court to weigh climate lawfare dispute Monday