By Jamie Court & Will Pletcher, DAILY JOURNAL
When eight justices take the bench on Oct. 5 to hear the climate deception case Suncor v. Boulder, they will first have to decide whether fossil fuel companies can obtain Supreme Court review before the state courts have finished the case. The Court added that question itself when it agreed to hear the case. Supreme Court review of state court decisions must ordinarily await a final judgment. The answer will reach cases far beyond climate litigation. More immediately, at stake here are both communities' ability to seek accountability for climate deception and a long-standing limit on federal judicial power.
Justice Samuel Alito recused himself on Sept. 28 after Consumer Watchdog and others called attention to his investments in oil companies facing similar climate lawsuits. To win reversal, Exxon and Suncor now need five of the eight participating justices. A 4-4 split would leave the Colorado Supreme Court's ruling intact and allow the case to proceed in state court. It would also leave dozens of similar suits, including cases brought in Hawaii, California and Minnesota, to work their way through their own state courts without a Supreme Court ruling to cut them off.
In the underlying lawsuit, the city and county of Boulder, Colorado, argue that ExxonMobil and Suncor intentionally misled the public about climate change and fossil fuels, and knowingly contributed to climate change by selling and marketing their products. The companies want the Supreme Court to decide whether federal law precludes those claims.
But before the Supreme Court can reach that question, it must establish its jurisdiction. Under 28 U.S.C. § 1257(a), the Court ordinarily reviews only final judgments from the highest state court in which a decision could be had. That requirement protects state court autonomy and prevents federal intervention each time a litigant loses an intermediate ruling.
In Boulder, there has been no trial, no finding of liability, and no award of damages. The Colorado Supreme Court simply rejected the companies' argument that federal law barred the state tort claims from proceeding.
The Supreme Court recognizes limited exceptions to the final-judgment requirement. But deciding a federal defense should not, by itself, make an unfinished state lawsuit ready for Supreme Court review. Relying on Atlantic Richfield Co. v. Christian, the companies argue that their trip to the Colorado Supreme Court was a separate case that has now ended. Alternatively, they invoke one of the exceptions recognized in Cox Broadcasting Corp. v. Cohn. But they asked that court to review a trial judge's ruling in a lawsuit that is still pending. Neither argument should override the ordinary rule that state litigation reach its conclusion.
State tort law has long been used to hold national and international companies accountable for harming state citizens, in cases ranging from pharmaceuticals to tobacco. Conduct that reaches beyond a state's borders does not, for that reason alone, escape state law. Nor are the companies' arguments that the Constitution and the Clean Air Act bar Boulder's claims compelling. As the city and county explain, their claims concern production, promotion and deceptive marketing of fossil fuels, not the setting of emissions standards.
Exxon and Suncor also say that losing their federal defense, and having to keep paying lawyers, is injury enough to satisfy Article III. But defendants routinely keep paying lawyers after losing an ordinary preemption defense, and, as Boulder points out, the Court has refused to treat the cost of a lawsuit as the kind of injury that opens its doors. If litigation expense were enough, the companies' theory would give defendants a premature exit route to the Supreme Court whenever a state court rejected a federal defense. For Exxon and Suncor, the point of early review is to end the case before a Colorado jury ever hears what the companies knew and when.
Judicial restraint and respect for state court autonomy should guide the Court's decision. If Exxon and Suncor ultimately suffer an adverse final judgment, they can seek Supreme Court review then. The Court should dismiss the case and let Colorado finish it.
