Photograph by Htet Gyaw / Kintzing
words by miranda green
For years, environmentalists and public advocates have tried creative legal techniques to force governing bodies and corporations to take responsibility for the impacts of climate change.
Children have sued their home states for failing to keep them safe; employees have charged the EPA with cutting their funding; and, more notably, states have brought lawsuits against fossil fuel giants for directly contributing to climate change. There have been at least 29 cases brought by states, counties, cities, and tribal governments against oil and gas companies, according to tracking provided by the Center for Climate Integrity.
These lawsuits carry more weight since the White House’s recent move to no longer regulate climate pollution. The administration stunted the EPA’s ability to regulate CO2 emissions for health purposes; stopped the collection of pollution data from power plants and refineries; and weakened federal regulations of mercury (which is emitted through burning coal).
Some active litigation goes after polluters for their emissions. Other lawsuits focus on fraud or deception, arguing that the fossil fuel industry misled the public by failing to divulge the negative health impacts of burning their fuels (similar to suits being brought by states against plastic polluters).
At least four cases involve racketeering charges; another is an antitrust lawsuit brought by Michigan this January against BP, ExxonMobil, Chevron, Shell, and the American Petroleum Institute. The latter case argues that Big Oil conspired to drive up costs for consumers by limiting options, essentially functioning as a “fossil fuel cartel.” Many of the lawsuits seek financial compensation to support climate mitigation or, in some cases, to set up a climate “superfund.”
Environmentalists and legal experts have paid particular attention to three lawsuits brought by Boulder, Colorado, Honolulu, Hawai’i, and Massachusetts; all suing oil and gas companies that include Sunoco, ExxonMobil, and BP. The plaintiffs charge that the fossil fuel companies knew their businesses intensified the climate crisis, and seek damages that would pay to mitigate it. All three cases were cleared to move forward to trial.
But a decision by the Supreme Court last week stopped those cases in their tracks—and could soon delegitimize them entirely.
Last week, the Supreme Court agreed to hear an appeal brought by Suncor Energy and ExxonMobil challenging Boulder’s right to bring a lawsuit against them in Colorado. A ruling in support of the oil and gas companies could create a chilling effect across all climate cases being pursued by local governments against the fossil fuel industry.
“It takes four justices to agree to take a case, and five justices to rule to make a decision,” said Michael Gerrard, founder of Columbia University’s Sabin Center for Climate Change Law. “So I think clearly there were at least four justices who wanted to take the case, and probably wanted to reverse the Colorado Supreme Court. As a statistical matter, when the Supreme Court takes a case, it usually reverses it … it’s never a good sign that the Supreme Court takes the case you’ve won.”
The Colorado Supreme Court in May ruled that Boulder had the legal authority to bring the case against the polluters and that the suit could proceed. At the time, the decision was considered a major victory. Environmentalists got another big win in January, when the Supreme Court denied oil companies’ requests for an appeal in Honolulu’s similar climate lawsuit.
The court’s decision last week to take up Boulder’s case sent shock waves through the environmental community and is seen as a bad omen. That’s because SCOTUS has historically overturned roughly 70% of the cases it’s taken up. The highest court is expected to hear oral arguments for the case in October and could rule before the end of the year. Other pending climate cases—including Honolulu’s and Massachusetts’—will likely be put on pause pending the Supreme Court’s decision.
Further in contention is Justice Samuel Alito’s decision not to recuse himself from ruling on the case. He has recused himself in the past on cases related to fossil fuels, and for good reason: His personal finances are heavily invested in oil and gas. Heated’s Emily Atkin has a good write-up about the controversy on this.
Companies have quietly been sowing the argument that states should not be allowed to penalize the fossil fuel industry, lobbying state legislatures to pass bills that would bar climate lawsuits against them. Meanwhile, the Trump administration has intervened in states, including New York, to try to kill state climate laws.
Sixteen state attorneys general wrote a letter last June to Attorney General Pamela Bondi, warning that “some state and local governments continue to undermine American energy production and use” and “have effectively declared an all-out war on traditional American energy.”
They said the lawsuits have “increased at an alarming rate” and suggested that the federal government could restrict funding for states pushing those laws, or create a “liability shield.” Those efforts may be unnecessary if the court rules in the industry’s favor.
Fossil fuel companies in their lawsuits argue that states don’t have the authority to regulate their industry, and that penalties can only be imposed by the federal government.
“The main argument that the defendants are making is that climate change is a global problem, and if any court is going to act on it, it has to be federal, and really Congress should act,” Gerrard said. “But unless Congress acts, the state courts shouldn’t be taking actions that fundamentally set national policy.”
If a state court like Colorado’s were to find ExxonMobil liable and order the company to pay millions of dollars in damages, the argument goes, that would functionally set a national climate policy. And according to Gerrard, polluters once had a strong argument that the federal government regulates emissions, so states shouldn’t.
But that argument recently became a lot weaker.
After, the White House and federal agencies largely abdicated their authority to regulate climate emissions with last month’s decision to eliminate the endangerment finding, states might have more of a leg to stand on in asserting their right to regulate emissions.
Nevertheless, experts say a ruling that reverses Colorado’s case would essentially cut off similar lawsuits at the knees. It also depends on which part of the suit the court rules cannot be adjudicated by states: emissions impacts, arguments about deceptive language and marketing, or both.
“The Supreme Court could foreclose both kinds,” Gerrard said. “Or, maybe it’ll say the common law nuisance cases are no good, but in the deception cases, maybe they can go forward. That’s another possibility.”
While the legal experts I spoke to had a hard time spinning the Supreme Court’s involvement as positive, there remains active litigation—some of which was filed as recently as two weeks ago—against the government for failing to regulate emissions. Then there’s the handful of past wins, including two children’s lawsuits in Montana and Hawaii that upheld each state’s responsibility to protect all residents from the health impacts of greenhouse gases.
“Despite there being a lot of really terrible things happening, there’s still a lot to be hopeful for,” said Mat dos Santos, co-executive director and general counsel of Our Children’s Trust, the advocacy group that spearheaded state litigation on behalf of young residents.
Dos Santos points to Hawai’i’s 2024 legal settlement following a 2022 case brought by young people aged 9 through 18 against the state for operating a polluting transportation system.
“Hawai’i is one of my highlights for optimism, because you see what happens when a state is willing to step aside and say, ‘You know what, you were right. We need to do better,’” dos Santos said.
Since the settlement, dos Santos said Hawai’i has moved to create youth advisory councils and change the way it makes decisions related to climate, from decisions on individual cars to prioritizing renewable infrastructure and giving children free access to public transportation.
There’s hope other states could follow suit.
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The Supreme Court Case That Could End Local Climate Suits
