The U.S. Supreme Court has asked the U.S. Solicitor General to file a brief expressing the United States’ views as to whether the Court should grant review of Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County.
As explained in a recent MAP Legal Backgrounder, the petition asks the Court to decide two critical questions implicated by state climate litigation against energy producers: 1) whether the claims are inherently federal law claims, and 2) where the cases should be heard—federal or state court.
Whether and how the Court answers these questions could impact U.S. legal and energy policy for decades, which is likely why the Supreme Court issued the call to the Solicitor General – a clear indication the Court is seriously considering granting review.
The last two administrations both filed briefs against similar climate lawsuits when those cases were before the Supreme Court.
First, in 2011, the Obama administration urged the Supreme Court to dismiss the climate-related claims in American Electric Power Co. v. Connecticut. The federal government explained that the energy policy issues that underlie this litigation require “political or regulatory — not judicial — resolution”:
“In the context of climate change, a regulatory solution will be far better suited to addressing the scope of the problem and to fashioning an appropriately tailored set of remedies than a potentially open-ended series of common-law suits in far-flung district courts.”
The Supreme Court then issued a unanimous ruling dismissing the case, finding that climate litigation raises emissions and energy policy matters that are federal and legislative in nature. The Tenth Circuit ruling that is at the heart of today’s petition for review seemingly conflicts with AEP.
Then in 2021, when the Supreme Court decided a question related to the scope of appellate review in the Baltimore climate lawsuit, Acting Solicitor General Jeffrey Wall intervened in support in broader review on the federal law issues the cases raise, which the Supreme Court ultimately adopted.
This will be the third presidential administration that will have weighed in on attempts to use tort law to regulate federal climate policy. There is no deadline for the Solicitor General’s brief, but it is expected to be filed in the next few months.