The Court heard one of the term’s blockbuster cases in the first round of argument. Boulder sued Suncor, a Canadian oil company with operations in Colorado, under state law, seeking to recover costs associated with climate change mitigation. Suncor argued in the Colorado Supreme Court that the state law claims were pre-empted by federal law. The state Supreme Court said they were not and let the matter proceed. On appeal, the U.S. Supreme Court must now decide whether this type of action is blocked through preemption.
The case involves interesting questions about the scope of federal preemption, and methodologically how to delineate that scope. Do states retain power to regulate activity that harms them, if the harm is caused by world-wide use of fossil fuels? How specific must any federal effort be to preempt state efforts in the space? What should be made of the EPA’s recent retreat from its historical view that that the Clean Air Act gave it the authority to regulate greenhouse gases?
The case is also of enormous practical significance. If the door to suits like Boulder’s closes through preemption, that shuts down an important channel for the U.S. response to climate change. Our federal government has not exactly been nimble in this space. If the door remains open, then the set of possibilities for addressing climate change become considerably larger.
The model predicts the Court will reverse the Colorado Supreme Court (~62 percent), by a vote of 5-3 (Alito recused). This is expected to break along conventional ideological lines.
vote predictions
