A Supreme Court Ruling the Fossil-Fuel Industry Doesn’t Like

It was Representative Pat Schroeder, the twelve-term Colorado Democrat, who—while frying eggs one morning—coined the term “Teflon President” for Ronald Reagan. “He sees to it that nothing sticks to him,” she said later, in Congress. Schroeder, who died in March, was the first woman to represent Colorado in the House and an advocate for the environment—she introduced the legislation to establish the Rocky Mountain Arsenal National Wildlife Refuge—and she could have said the same about the fossil-fuel industry. Of all the powerful institutions that we’ve failed to hold to account, none is currently flying higher, despite the fact that the industry’s products have raised the temperature of the Earth to the point where scientists are in near-panic. ExxonMobil, coming off a year of record profits after Vladimir Putin invaded Ukraine, continued to show record earnings in the first quarter of 2023; Chevron, too, reported first-quarter profits that more than doubled its average over the past decade. Asset-management giants such as BlackRock have boosted their stakes in the oil giants, despite the investment firms’ protestations of concern about the climate crisis. ConocoPhillips just won approval from the Biden Administration for a vast new drilling complex in Alaska; Exxon said in late April that it was moving ahead with a giant project off the coast of Guyana. And Kevin McCarthy, the Speaker of the House, is threatening to wreck the world economy, by defaulting on America’s debt, unless, among other things, President Biden’s efforts to move us toward clean energy are repealed. The U.N. Secretary-General, António Guterres, told the industry, earlier this year, that “your core product is our core problem,” but his straight talk hasn’t accomplished much. For now, statements from men such as Exxon’s C.E.O., Darren Woods, hold sway. “We are growing value by increasing production from our advantaged assets to meet global demand,” Woods said, as the news of those robust profits was announced.

Yet last month saw an unexpected development, and it came in the Supreme Court: with only Brett Kavanaugh issuing a public dissent, the Justices declined to review a petition from Exxon and Suncor Energy to move a case from state to federal court. (Simultaneously, the Court denied the same appeal from other major oil companies in four more cases.) Three communities in Pat Schroeder’s state—the City of Boulder, Boulder County, and San Miguel County—had brought suit against the two corporations, seeking compensation for damage wrought there by a warming planet, which, the plaintiffs claim, was caused in part by the companies’ products. That procedural victory may not sound like much, but it could turn out to be a signal moment in the climate fight.

In September, 2015, the Pulitzer Prize-winning Web site Inside Climate News published the first installment of a nine-part series, “The Road Not Taken,” which drew on document archives and interviews with whistle-blowers to show that, as far back as the late nineteen-seventies, Exxon had known about what was then called the greenhouse effect. Company scientists had outfitted an oil tanker to study atmospheric carbon levels as it sailed the seas, and had used computer models to predict the effects of those levels. A corporate primer prepared in 1982—which, according to the contents, was “given wide circulation to Exxon management”—stated that heading off global warming “would require major reductions in fossil fuel combustion.” Without those reductions, “there are some potentially catastrophic events that must be considered,” the primer states, citing independent experts, and “once the effects are measurable, they might not be reversible.” But Exxon didn’t tell the public; instead, as Inside Climate News reported, after the NASA scientist James Hansen had testified before Congress about the dangers of climate change, in 1988—at a hearing called by Senator Timothy Wirth, of Colorado—and public concern began to rise,

Exxon helped to found and lead the Global Climate Coalition, an alliance of some of the world’s largest companies seeking to halt government efforts to curb fossil fuel emissions. Exxon used the American Petroleum Institute, right-wing think tanks, campaign contributions and its own lobbying to push a narrative that climate science was too uncertain to necessitate cuts in fossil fuel emissions.

Exxon, we now know, was far from alone—within the energy and utility industries there was widespread understanding that their products were doing damage. For instance, last month a Dutch climate activist released Shell records from the nineteen-seventies and eighties, including a 1989 document in which the company’s experts predicted that, if temperature increases went well beyond 1.5 degrees Celsius above pre-industrial levels (which is precisely the path on which we are currently travelling), the results would be dire:

Perhaps those in industrial countries could cope with a rise in sea level (the Dutch example) but for poor countries such defences are not possible. The potential refugee problem .&nbsp.&nbsp. could be unprecedented. Africans would push into Europe, Chinese into the Soviet Union, Latins into the United States, Indonesians into Australia. Boundaries would count for little—overwhelmed by the numbers. Conflicts would abound. Civilisation could prove a fragile thing.

(A Shell spokesperson told The New Yorker, in an e-mail, “The Shell Group did not have unique knowledge about climate change. The issue of climate change and how to tackle it has long been part of public discussion and scientific research that has evolved over many decades.” The spokesperson added, “We’ve been advocating for a CO2 trading system for 30 years and, in 1997, publicly supported the Kyoto Protocol.”)

But the impact of Inside Climate News’ 2015 reports and others can hardly be overstated. Worried that the evidence would just disappear into the news cycle, I went to a Mobil station in Burlington, the biggest city in Vermont, where I live, and sat in front of a pump with a sign alerting people to the stories; I blocked business for a few minutes, until I was arrested. A few months later, I paid a fine of a couple hundred dollars, which may have been the only legal repercussion so far of those revelations. After last month’s Supreme Court ruling, however, it likely won’t be the last.

With the new evidence in hand, cities and states around the country began filing lawsuits against oil companies. Some argued simply that the taxpayers in their constituencies should not have to solely bear the cost of damages caused by global warming; others argued that the companies were guilty of consumer fraud or false advertising for insisting that their products were safe; some combined those arguments. The plaintiffs in Colorado are asking that the companies be ordered to compensate them for some of the hundreds of millions of dollars that the communities have spent and will spend trying to mitigate the effects of climate change in the area: Exxon produces a lot of oil and natural gas from Colorado reserves; Suncor, which is headquartered in Canada, operates a large refinery in Commerce City, near Denver. Moreover, the original complaint states that the defendants should help pay because they “knowingly and substantially contributed to the climate crisis by producing, promoting and selling a substantial portion of the fossil fuels that are causing and exacerbating climate change, while concealing and misrepresenting the dangers associated with their intended use.” An Exxon spokesman told The New Yorker, “Those who talk about how ‘Exxon Knew’ are wrong in their conclusions,” and insisted that the corporation’s “understanding of climate science has developed along with that of the broader scientific community.” He added that fighting the state suits will be a “waste of time” and won’t “do anything to meaningfully address climate change.” The plaintiffs note that Suncor may also have conducted independent research but that, in any event, the potential perils of global warming had been known inside the industry for decades. (Suncor did not respond to a request for comment.)

The industry responded to the lawsuits by retaining lawyers who have spent the past half decade arguing that the cases should not be heard in state courts but, instead, should be consigned to the federal judiciary system. Marco Simons, the nonprofit EarthRights International’s general counsel, who is representing the three Colorado communities, said that the companies “argued that any case involving essentially interstate environmental harm or interstate pollution has to be decided under federal law, and that, because climate change is inherently an interstate issue, only federal law can apply. And then they argued that, while only federal law can apply, federal law provides no remedy. Because, they said, federal law in this area is entirely governed by the Clean Air Act, and the Clean Air Act does not directly provide a remedy.” For the industry, a federal process was clearly more attractive—instead of dozens of different venues, they’d have a more manageable process, under one set of rules, that would end in an appeal to the Supreme Court, which lately has been very corporate-friendly.

Six federal appeals courts across the country had heard those arguments over the years, and all six rejected them. (Each appeal required empanelling a three-judge review team, and because one circuit heard multiple appeals before two panels of judges, and because one judge died before he could offer his opinion, the industry lost 20–0 in these forums. One panel consisted of three judges all appointed by President Donald Trump.) But the industry persisted, appealing to the Supreme Court. Cities and states, for their part, argued before the Court that these claims were precisely the kind that state courts are used to adjudicating, and that there was no compelling reason to shift jurisdiction. In October, the Court asked the Biden Administration to weigh in, through its Solicitor General, Elizabeth Barchas Prelogar. Her office reversed the advice given by her predecessor in the previous Administration, and recommended that state courts be allowed to hear the cases. Finally, last month, the Supreme Court agreed. (Though only Justice Kavanaugh publicly dissented, Justice Samuel Alito recused himself; he gave no reason, but reportedly, according to a disclosure filing, either he or his wife has holdings in oil stocks.)

Simons said, “The reason we won in every court is that it was a straightforward application of extremely long-standing rules.” But, he added, “if you take into consideration the fact that it involves some of the most powerful economic actors on claims arising out of climate change, with many of the top corporate law firms begging the Supreme Court to weigh in, you could at least see why the defendants were hoping the Supreme Court would have taken the case. From a strict legal analysis, the decision was not surprising, but from a legal realist power analysis, there were a lot of people who were worried.” As Sam Sankar, the senior vice-president for programs at the nonprofit environmental law firm Earthjustice, told me, “I clerked at the Supreme Court twenty years ago, and it would have been a no-brainer to turn this case down back then. But with this Court you never really know—it does previously unthinkable things surprisingly often.”

So now the cases can proceed in state courts. In at least one instance, the defendants had already filed arguments to dismiss, which were left pending while the Supreme Court made up its mind. But, assuming that cases survive dismissal motions, two things are likely to happen. One is that many more suits may be filed. Lee Wasserman, the director of the Rockefeller Family Fund, which has helped coördinate advocacy groups to hold oil companies accountable (among other things, it has funded 350.org, where I volunteered for many years), said, “The major law firms may have stayed away from these cases to date because they’re so speculative, but one such firm has taken on a big Puerto Rican case, and I think that’s a tell-tale of what we can anticipate in the months ahead.” Sankar told me, “I think there are a lot of plaintiffs’ lawyers who will say, ‘Can’t win if you don’t play.’ They’ll be telling cities, ‘If you don’t bring a suit, you may be missing out on something.’ ” EarthRights International’s Simons added that “there’s no reason injured private parties couldn’t join in. There’s already one case from a Pacific Coast fishermen’s association, arguing that the shellfish harvest has been harmed.” The other thing that is likely to happen is that discovery will begin, in case after case, with lawyers deposing executives and combing through records. “You saw in the Fox case how important that can be,” Sankar said. And, if one team of lawyers finds a significant document, it will quickly become common knowledge: “If Baltimore finds a smoking gun,” he noted, “the information is going to move.”

None of this means that the cases will be simple to prove. For one thing, events that happen in nature have multiple causes. And even when experts can attribute damage to a changed climate—a scientific field that is maturing rapidly—apportioning the blame to particular companies can be difficult. “You can certainly make a determination of how much carbon these companies are responsible for, but in our view that doesn’t completely define their responsibility,” Simons said. “Take Exxon as an example. They’re a participant in the market in many ways—producer, refiner, marketer, and seller. But we also believe that Exxon’s campaign of concealment and deception contributed to the problem. That’s much harder to put a number on, but an essential part of their responsibility and fault.” He added, “We’re not saying they’re a hundred-per-cent responsible, we’re just saying they’re not zero-per-cent responsible. How much is for a jury to decide.”

That’s provided that a jury gets the case. Although the lawsuits in Colorado, and those from other jurisdictions, are now back in state court, this doesn’t mean that federal law doesn’t apply—just as you can use the First Amendment to protect speech in a state court, oil-company lawyers can argue, for example, that the Clean Air Act should take precedence, and someday those arguments may wind up back before the Supreme Court. “This is not a decision that these claims are meritorious or even valid,” Sankar said, of last month’s ruling. “It’s a refusal to say they have to be heard in federal court.”

But assume that such cases do play out. Polling shows that “make polluters pay” is a popular argument that crosses partisan boundaries. And as Wasserman, of the Rockefeller Family Fund, said, “If, as a corporation, you’re found to have deceived the public, there are consequences.” Those consequences could conceivably lead to some kind of general settlement, as happened when a wave of lawsuits forced the tobacco industry not only to pay hundreds of billions of dollars to fund related health-care costs that states had to bear but also to support anti-smoking education programs and even to wind down the corporations’ lobbying front groups. But, Wasserman said, before companies might face that kind of financial peril, they would likely ask Congress to intervene, arguing that “this is the end of being able to pump gas into your car, that Congress has to come up with some kind of release for the industry.” He added that there are models Congress might draw on to wind down the industry, if such negotiations were ever to begin: “In World War Two, the government controlled industries and what they produced. Or think about investor-owned utilities: in the past, the government used to say how much energy they can produce, what their profits will be, what their dividends should be. We can do this—it’s not that complicated.”

Yet, before any pressure like that can build in Congress (or in the stock market), plaintiffs will need to win some cases. “The courts have been the one place where those seeking to right important wrongs and grievances have an equal shot against the most powerful actors in society,” Wasserman said. For example, in the middle of the twentieth century, the civil-rights movement was slowly building a “societal recognition that we needed to change our laws and customs,” and, as it did so, Thurgood Marshall filed case after case, winning most but not all of them. “Then finally, in 1954, came Brown v. Board of Education, and the world was different going forward,” Wasserman said. “The climate movement has suffered from not having a deep and robust litigation strategy, and I think we’re finally overcoming that.”

It’s fitting that the Boulder area is represented in the case the Supreme Court refused to move to federal court. The city’s mayor, Aaron Brockett, told me that the community has worked hard to lower its carbon emissions. (I reached him as he was waiting for a bus to take him thirty miles home from a conference in Denver.) “We’re working on natural climate solutions, our nearby power plant no longer burns coal, our hundred-per-cent renewable-electricity goal by 2030 looks very doable,” he said. And Boulder is home to both the National Center for Atmospheric Research and the NOAA Earth System Research Laboratories—there are probably more top-level climate scientists per capita in the area than anywhere else in the world.

The Court’s ruling came almost five years to the day after the Colorado suit was filed. Brett Fleishman—a Boulder resident and longtime climate activist whom I’ve known and worked with for many years, and who now serves as the senior climate strategist for the county government—was at a 2018 rally announcing the suit, with his then three-year-old son, Sequoia, on his shoulders. The Times took a picture of them holding a sign that read “Exxon Suncor = Floods Fires less snow” (The lawsuit states that the E.P.A., among others, has noted that hotter temperatures and droughts, if not Exxon specifically, have increased the risk of forest fires.)

The three largest wildfires in the state’s history occurred in 2020. Then, on December 30, 2021—the day before the latest recorded date in the winter season that the Boulder County area had ever gone without significant snow—the Marshall wildfire, the most destructive fire ever recorded in the state, swept across the region, burning a thousand homes and leaving two people dead. (Different factors play into the spread of winter wildfires, but experts concur that climate change contributes to the conditions for them.) There is footage of people being told by the Boulder County sheriff’s office to immediately evacuate a Costco and “head east,” and video from a Chuck E. Cheese in which parents and kids struggle to open a door against a wind whipping flames across the parking lot. Paul Chinowsky, a professor emeritus at the College of Engineering and Applied Science at the University of Colorado Boulder, who served as a consultant for the scientific and economic rationale for the lawsuit, was at his home when the Marshall fire hit, and had just minutes to grab his research data and flee. In a video about that day’s events, he recalls sitting in a line of cars, trying to escape the blaze alongside thousands of other people. “I picked up my phone and called one of my research assistants,” he says, and told him, “Everything we thought about climate and fire risk is wrong. It has to be changed.” He adds, “Even with all the modelling we’ve ever done, that wasn’t supposed to happen.”

Susie Strife, the Boulder County director of climate action, sustainability, and resilience, told me that the region’s costs from climate change are clearly higher now than when the suit was filed—the Marshall fire did more than two billion dollars’ worth of property damage—and that, along with working on reducing carbon emissions, her team now spends much of its time trying to “get people rehomed, deal with insurance claims, all of that.” She added, “What often gets left out are the emotional and social costs—the long time it takes a family to secure new housing, or the time it takes kids to settle into a new school. These wounds are unquantifiable in today’s economic system—the fact that now we have real anxiety when the wind picks up. We’re Coloradans, we chose to live here because we love the outdoors. And that’s getting lost.”

The Colorado lawsuit, she says, is asking players like Exxon to pay their fair share. But it could come to more than that. “I think the outcome could be an awakening that there has been some serious bad acting going on, some misinformation and disinformation from these companies that have led us to chase our tails, to focus on our own carbon footprints, and not on the massive shift we need to see. This could be our moment of system change.” ♦