Supreme Court declines to hear Republicans’ ‘Hail Mary’ effort to block climate lawsuits todayheadline

The U.S. Supreme Court said on Monday that it would not hear a case seeking to stop climate lawsuits in five Democratic-led states, which are seeking financial damages from oil and gas companies for having obscured the connection between their products and global warming.

The rejected complaint, filed directly to the Supreme Court by a coalition of 19 red-state attorneys general, had argued that the climate lawsuits in California, Connecticut, Minnesota, New Jersey, and Rhode Island represented an illegal attempt to regulate the national energy system, something only the federal government can do. 

Forcing companies like Exxon Mobil and Chevron to pay for damages from wildfires, flooding, hurricanes, and other climate-fueled disasters would affect people outside the blue states’ borders, the 19 attorneys general maintained. They said it would raise energy prices and “threaten not only our system of federalism and equal sovereignty among states, but our basic way of life.”

Legal experts said they were unsurprised that the Supreme Court did not take up the case. “It was a political stunt,” said Pat Parenteau, an emeritus law professor at the Vermont Law and Graduate School. “There was never any legal basis for the court to grant this petition.”

Although the Supreme Court is the only court with jurisdiction to hear lawsuits between states, it typically hears only one or two such cases each year — and the ones it takes up usually relate to instances of interstate pollution or shared resources, such as water from rivers. This case was “brought on the legal theory that somehow anything that might adversely affect the fossil fuel industry harms red states,” as Robert Percival, director of the environmental law program at the University of Maryland Francis King Carey School of Law, put it. 

When the complaint was announced last fall, law professors described it as a “Hail Mary pass,” an effort to take advantage of the Supreme Court’s 6-3 conservative supermajority and its willingness to take on cases that Percival described to E&E News as “wackier and wackier.” 

Percival compared it to an unsuccessful attempt led by Texas after the 2020 presidential election to stop blue states from certifying Joe Biden’s victory. In that case and in the more recent climate one, the Republican-led states lacked standing, meaning they couldn’t prove they’d been harmed by the policies in question. “It was clear they didn’t have a leg to stand on,” Percival told Grist. 

Seven of the court’s nine justices agreed not to hear the case. Clarence Thomas, one of the court’s most conservative justices and the subject of multiple corruption scandals, wrote a dissent arguing that the red states’ lawsuit “alleges serious constitutional violations.” Justice Samuel Alito, whose recent financial disclosures show that he or his wife own stock in the oil and gas companies ConocoPhillips and Phillips 66 — both named in the Democrat-led states’ climate lawsuits — joined Thomas in the dissent.

The Supreme Court decision means the blue state lawsuits can proceed in their own courts — a narrow victory for climate advocates in what has become a divisive jurisdictional battle. Fossil fuel companies have repeatedly argued that state-level climate lawsuits should be preempted by federal law and therefore transferred to federal courts, which are considered less likely to rule against the industry. The companies’ efforts have stymied lawsuits in Maryland, Delaware, New Jersey, and New York; they have been unsuccessful in California, Connecticut, Minnesota, and Rhode Island.

“This is a dynamic area of the law right now with lots of unpredictability,” Parenteau said. 

For now, the Supreme Court seems unwilling to make a general determination on the issue. In addition to the complaint from the 19 attorneys general, it also has previously declined to review pending climate litigation in a number of states including Colorado, Maryland, California, Hawaiʻi, and Rhode Island. This week’s news suggests that the Supreme Court “doesn’t want to take any of these lawsuits against the fossil fuel companies, at least until one of them has a trial and goes through the state appellate process,” said Michael Gerrard, faculty director of the Sabin Center for Climate Change Law at Columbia Law School. 

Parenteau said the case that’s closest to trial is one in Massachusetts claiming that fossil fuel companies violated consumer protection laws by lying to the public about their products’ contribution to climate change. Next is a lawsuit brought by Honolulu against fossil fuel companies, which in January survived a request from 15 energy companies to be removed from the jurisdiction of the Hawaiʻi Supreme Court.

Most of these lawsuits cite evidence, including internal industry documents, showing that fossil fuel companies have known for decades that their products would cause climate change and its attendant harms to society. Concealing this information from the public, the suits argue, violated state-level consumer protection and public nuisance laws. Fossil fuel companies have maintained their innocence.

A ruling against the fossil fuel industry would almost certainly be appealed to the Supreme Court, Parenteau said, at which point “we’re in uncharted territory.” He said the court’s three liberal justices would likely side with the states, while Alito, Thomas, and Brett Kavanaugh would probably side with the oil companies. The three others — John Roberts, Amy Coney Barrett, and Neil Gorsuch — could go either way.

The blue state attorneys general who are leading the lawsuits against fossil fuel companies said they were pleased with the Supreme Court’s dismissal of the complaint. William Tong, Connecticut’s attorney general, said the complaint had been “a total loser from the start.” Minnesota Attorney General Keith Ellison said in a statement that the complaint was “never anything more than an attempt to run interference, help the defendants in our cases avoid accountability, and play politics with the Constitution.”