Monday’s oral arguments at the Supreme Court in Suncor v. Boulder County gave fossil fuel companies a chance to argue that the Constitution bars states and localities from holding them accountable for the climate damage their products cause. The argument was built on a single, revealing premise: that the most consequential industry in human history should be immune from the most consequential harm it has ever caused.
Boulder County sued oil companies in Colorado state court for the local climate damage traceable to their greenhouse gas emissions. The industry’s answer is that the Constitution gives them immunity because their conduct is global — that states are equal sovereigns and one sovereign’s courts may not reach conduct that is nationwide. That is a constitutional fiction invented for this case. There is no constitutional clause that exempts a company whose product causes climate damage from state-court tort liability simply because that product is sold nationally rather than locally. The Constitution does not contain a polluter-pass.
Kevin Russell, representing Boulder County, told the Court this is a run-of-the-mill tort, comparable to a product liability suit against an automaker for a defective car. Justice Neil Gorsuch asked whether anything seemed anomalous about applying state law to worldwide conduct. Mr. Russell said no, and he was correct. The industry’s rebuttal — that this comparison is odd because Boulder is not arguing oil is “defective” — misunderstands what defective means. A product is legally defective when its maker knew or should have known of dangers it failed to warn about, when those dangers materialize, and when they cause foreseeable harm. Internal industry documents show that major fossil fuel companies understood the climate consequences of their products decades before the public did, and chose to conceal what they knew. The product is defective. The product has always been defective. The communities absorbing the damage have the same right to seek redress that the victims of any other concealed hazard have always had.
Justice Clarence Thomas pressed Mr. Russell on whether there is a limiting principle as to whom he can sue. Mr. Russell replied that the question is not whether anything in the Constitution prohibits the lawsuit. He was right a second time. The Constitution does not prohibit accountability. The question is whether victims of climate damage can seek compensation from the corporations whose emissions caused that damage. The industry’s claim that there is no limiting principle is, in practice, an argument that there should be no remedy — that no community anywhere should be able to hold a fossil fuel company responsible for any climate cost imposed on its residents, its infrastructure, its farms, or its future. The industry’s claim that no distinctions among actors are possible is an admission that no accountability is possible under any theory it will accept.
And the real fear driving the industry is not the Constitution but the courtroom. Justice Kavanaugh’s own hypothetical about bankruptcy gives the game away. If the oil industry’s argument were about federalism, it would be a narrow question of which sovereign’s law applies. What it is actually about is whether the most profitable industry in human history can be made to answer in any courtroom at all for the most consequential product decision in human history. The parade of horribles counsel Kannon Shanmugam advanced for Suncor and Exxon Mobil — that “any individual who has suffered the effects of climate change could sue under Boulder’s theory” — was answered, in effect, by Justice Kavanaugh’s summary: “Anyone is a potential defendant for a suit like this.” Yes. Anyone whose product causes climate damage is a potential defendant. That is not a bug; it is the basic premise of liability law.
Justice Thomas then noted that one could “just as easily sue large retailers of these products.” Mr. Russell agreed. So should the Court. Gasoline retailers — a Costco that sold the fuel that, when burned, contributed to climate damage — face suit under proper causation standards. Petrochemical manufacturers face suit. Dairy farmers whose methane contributes to climate damage that hurts a particular plaintiff in a particular place face suit. The industry’s attempt to single out upstream producers as the only possible defendants is not a limiting principle; it is an attempt to make accountability impossible. The legal system is perfectly capable of distinguishing between actors based on their degree of contribution, their knowledge, and their capacity to mitigate. The sky does not fall because polluters are held to account under ordinary tort principles.
Vermont and New York have enacted laws requiring fossil fuel companies to pay for the damage their emissions impose. California has proposed letting those whose homes and livelihoods have been destroyed by climate-amplified fires sue the companies whose products made those fires possible. These are not radical measures. They are the minimum response of any functioning legal system to a documented, ongoing, and accelerating catastrophe. They are restitution — the standard remedy in tort law for a defendant whose conduct has caused foreseeable loss. And this is what responsive state-level democracy looks like in the absence of the federal climate legislation the industry itself has spent decades blocking. It is not creating a national climate policy through the back door; it is using the most basic tools of state-level accountability to address local harms caused by globally traded products.
Climate change is not somehow outside the law because its causes are distributed and its effects are global. The harm lands locally — on the counties, the cities, the farms, the coastlines, and the homes that absorb it. If Congress will not act, and if the executive branch will not act, then the states and localities that are acting should not be told by this Court that they lack the power to do so. Should the Justices overturn Boulder County’s lawsuit, they will not be returning the country to some constitutional ideal of state equality. They will be inventing a new doctrine of corporate immunity that lets the most profitable industry in human history escape the consequences of the most consequential product decision in human history. Boulder County should have its day in court.
