The Trump administration’s decision to repeal a linchpin of climate policy could throw a wrench into an upcoming Supreme Court showdown over the oil and gas industry’s bid to quash climate lawsuits filed by local governments from coast to coast.
At the heart of the fossil fuel industry’s argument is the idea that climate change is a federal issue and that local governments therefore cannot sue in state court to force companies like Suncor and Exxon Mobil to foot the bill for the effects of a warming planet. At the same time, however, EPA has walked back a decades-old scientific conclusion, known as the endangerment finding, that served as the foundation for federal climate regulations.
“It’s sort of a very big question,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, which tracks climate lawsuits. “To what extent does the revocation of the endangerment finding weaken [the oil industry’s] preemption argument?”
He added, “We will see a lot of paper on it in both directions.”
The Supreme Court’s order granting oil companies’ bid to quash climate liability lawsuits against them came one week after EPA’s endangerment finding repeal, a rollback the fossil fuel industry has generally supported. The timing of the grant from the court — which is not required to hear every case that comes its way — is “interesting,” Jonathan Adler, a conservative legal scholar and professor at William & Mary Law School, wrote in a Monday blog post following the order.
“[T]he arguments for federal preemption of state-law-based climate tort claims will be unquestionably weaker if, as the administration is arguing [in the endangerment finding repeal], the Clean Air Act provides no meaningful basis upon which to regulate greenhouse gases,” Adler wrote.
Adler said in an interview with POLITICO’s E&E News that he expects EPA’s rollback will be brought to the Supreme Court’s attention, but he noted the repeal is also subject to litigation. Environmental and public health groups last week filed lawsuits against EPA.
Some legal observers see the endangerment repeal as an invitation for the Supreme Court to revisit its 2007 decision in Massachusetts v. EPA, which found that the agency has authority to regulate planet-warming emissions as air pollutants under the Clean Air Act. The ruling prompted EPA to codify the endangerment finding in 2009, determining that greenhouse gases are a threat to public health.
“Insofar as that could be implicated by the endangerment finding litigation,” Adler said, “I would think the respondents want the court to be aware of that.”
Donald Kochan, a law professor at George Mason University, said he doesn’t think debate over federal and state climate authority will be a factor in the Supreme Court’s consideration of the lawsuits over the oil industry’s liability. Federal preemption is a question of fixed statutory interpretation, not “ever-shifting” decisions by various executive branches, he said.
“Consequently, the purely executive acts surrounding the endangerment finding or its repeal will not matter in the Suncor case,” Kochan said in email. He said repeal of the endangerment finding “plays better, if at all, in the court of public opinion than it does in an actual court.”
The case before the Supreme Court stems from a lawsuit the city and county of Boulder, Colorado, filed against Exxon and Suncor in 2018. The lawsuit — and dozens like it across the U.S. — accuses oil companies of deceiving the public about the dangers of burning fossil fuels and seeks compensation for the costs of rising temperatures and intensifying storms.
If successful, the oil and gas industry could be on the hook for billions of dollars.
In the short run, the Supreme Court’s decision to hear the Boulder case could lock up all pending action on similar suits in state courts, Gerrard said.
Though a handful of the climate liability cases are heading to trial and discovery, a majority are still wending their way through motions to dismiss or pending before appeals courts, ClearView Energy Partners, a research firm, said in a note to clients.
The Supreme Court on Monday added its own question to those posed by the parties in the lawsuit, asking each side to file briefs on whether the justices have the authority to hear the Boulder case, which has not yet reached a final resolution in the Colorado courts.
ClearView said the question could hint that the justices will focus more on jurisdictional issues to resolve the case, “rather than on the merits of the energy companies’ federal preemption claims.”
The court could hear the case during its next term, which begins in October. A decision is expected no later than the first half of 2027.
The Supreme Court’s decision to take up the case comes as the Trump administration and a coalition of attorneys general from Republican-led states urged the justices for relief from the liability lawsuits.
Deputy Solicitor General Sarah Harris told the court in a friend of the court brief in September that the Colorado Supreme Court last year got it “manifestly wrong on a question of vast nationwide significance” when it allowed Boulder’s lawsuit to advance. If the U.S. Supreme Court does not overturn that ruling, Harris said, “then every locality in the country could sue essentially anyone in the world for contributing to global climate change.”
The Trump administration has targeted similar climate lawsuits across the country, with the Justice Department last May going to court against Hawaii and Michigan in an effort to block the states from pursuing climate lawsuits against the industry.
Lawmakers at the state and federal level have sought legislation that would provide legal immunity to the oil industry.
Conservative groups, including the Washington Legal Foundation, which joined the Atlantic Legal Foundation in a friend of the court brief asking the justices to take up the case, declared the Supreme Court’s Monday order a victory. The groups had argued that climate lawsuits involve federal interests and require uniform federal response, rather than various state rulings.
“Allowing state courts to regulate global climate change through tort suits threatens national economic stability and federal authority,” said Cory Andrews, the Washington Legal Foundation’s general counsel and vice president of litigation.
Exxon said in a statement that the company’s court filings “make clear, climate policy shouldn’t be set through fragmented state-court actions, and we look forward to making that case before the court.”
But Richard Herz — chief litigation attorney for EarthRights International, which is representing the Colorado communities along with several other law firms — said the case is about “remedying harm to local Coloradans.”
Herz added that Exxon’s argument that state law cannot provide damages for in-state harms “has no basis in the Constitution. The Supreme Court has rejected similar arguments and should reject this one.”
