Justice Samuel Alito has previously declined to step aside from cases when critics called for him to recuse, including as recently as May, when he rejected such demands. On Monday, however, he said he would recuse himself from a climate-change case being heard this Monday.
The Daily Caller published an interesting article that speculated about the outome of the Suncor v. Boulder County case now that Justice Samuel Alito will not participate in deliberations.
Justice Samuel Alito’s last-minute recusal has shaken up a blockbuster Supreme Court battle that stands to alter the future of climate litigation across the country.
The Supreme Court is scheduled to hear oral arguments Oct. 5 in Suncor Energy v. County Commissioners of Boulder County, a dispute over whether Colorado localities can use state tort law to seek damages from energy companies for alleged harms tied to global greenhouse gas emissions, according to the court’s docket. Alito recused himself Sept. 28, leaving eight justices to consider the dispute.
“The recusal raises the possibility that the Colorado Supreme Court decision might be affirmed without decision by an equally divided 4-4 U.S. Supreme Court,” Harold Hongju Koh, Sterling Professor of International Law at Yale Law School, told the DCNF. “But that still leaves open an important question for Monday’s oral argument: which Justice might provide a fourth vote for affirmance?”
Sterling Professor of International Law at Yale Law School Harold Hongju Koh says if the Supreme Court justices split 4-4, then the 2025 Colorado Supreme Court ruling siding with the plaintiffs prevails allowing lawsuits against fossil fuel companies to proceed. A tie, though, would not set a national precedent, so it would not automatically mean the Court’s decision covers similar cases filed in other counties or states.
The Daily Caller reports that in 2018, Boulder County and the City of Boulder sued Suncor and ExxonMobil, claiming their fossil-fuel operations contributed to local climate harms. The Colorado Supreme Court let the case go forward in 2025. The companies contend that claims tied to interstate and international emissions fall under federal law, while advocates of climate suits have outlined ways to pursue fossil-fuel companies under state law as the case heads toward the U.S. Supreme Court.
Similar state-law climate cases are moving ahead elsewhere too. However, the outcome of the case may not hinge only on whether the justices accept Suncor and ExxonMobil’s preemption argument.
The Daily Caller reveals when the Court took the case in February, it also asked whether it has jurisdiction to hear it at all. That question could stop the justices from ever reaching the preemption dispute. Because the case turns on the balance of state and federal power, it may not split along the usual ideological lines.
I don’t see which conservative justice they think is the weak link, but more on that may come out in the next few days. If the plaintiffs win in the Suncor case, it will trigger a wave of lawsuits against fossil-fuel companies that could bring the U.S. energy sector to a standstill.
PHOTO CREDIT: Interior of the United States Supreme Court By Phil Roeder – Flickr: Supreme Court of the United States, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=32650356
