Alito reversal leaves climate case hinging on Thomas and Gorsuch

Fossil-fuel companies likely need full conservative bloc without Alito

WASHINGTON — Justice Samuel Alito reversed his earlier position Monday and will sit out a major climate-change case, a surprising about-face for the conservative justice after he resisted calls earlier this year to recuse himself over his energy-stock ownership.

Alito’s decision means only eight justices will hear a dispute over whether local governments can sue fossil-fuel companies over damages allegedly caused by climate change. The closely watched case will be argued on Oct. 5, the first day of the high court’s new term. His recusal was disclosed Monday in a one-sentence letter from the court’s clerk to the lawyers on both sides. Alito did not explain his reversal and did not respond to a request for comment.

The recusal reshapes the math for Suncor Energy and ExxonMobil, the two defendants. Alito had been considered a probable vote to shut down the climate lawsuits. Without him, the companies likely need all five of the court’s remaining conservative justices because a 4-4 tie would leave in place a lower-court ruling that allowed Boulder’s lawsuit to move forward.

Legal experts are watching two conservatives in particular — Justices Clarence Thomas and Neil Gorsuch — who are often hostile to environmental claims but have in the past expressed skepticism that federal law can implicitly override state law, which is what the oil companies are arguing.

The underlying case centers on Boulder officials’ suit against Suncor and ExxonMobil. The companies are seeking to halt that lawsuit and dozens of other similar claims filed by local governments around the country, arguing that the Constitution and federal law bar such suits.

Alito owns shares in several oil-and-gas companies, and he has recused himself from prior cases involving those companies. According to his financial-disclosure forms, Alito does not own shares in the two companies that are defendants in the climate-change case: Suncor Energy and ExxonMobil.

In May, after the court agreed to take up the Colorado case, environmental advocates and left-leaning groups called for Alito to step aside. They argued the court’s eventual ruling would affect similar lawsuits against companies in which Alito does hold stock, such as ConocoPhillips and Phillips 66. The Supreme Court’s legal counsel advised Alito at the time that he was not ethically required to recuse because he lacked a direct financial interest in the case.

Gabe Roth, the executive director of Fix the Court, which advocates for stricter judicial ethics rules, said Monday that Alito should explain why he decided to recuse himself after all.