Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County

On April 24, 2023, the U.S. Supreme Court denied fossil fuel industry defendants’ petitions for writ of certiorari seeking review of decisions affirming remand orders that sent climate change cases brought by state and local governments back to state courts. The fossil fuel companies had asked the Court to consider whether there was federal jurisdiction over state-law claims seeking redress for injuries allegedly caused by the effects of interstate or transboundary greenhouse gas emissions on the global climate because federal common law necessarily governs such claims. Justice Alito did not participate in the consideration of or decision on the petitions. In the case brought by Colorado local governments, the order list noted that Justice Kavanaugh would have granted the petition. The April 24 denials of certiorari involved decisions by four circuit courts of appeals (First, Fourth, Ninth, and Tenth) and 11 cases.

On March 16, 2023, the Solicitor General filed a brief expressing the United States’ view that the Supreme Court should deny fossil fuel companies’ petition for writ of certiorari seeking review of the affirmance of a remand order in a climate change case brought by three local governments in Colorado. The brief argued that the Tenth Circuit Court of Appeals “correctly declined to recharacterize [the local governments’] state-law claims” as arising under federal common law because the Clean Air Act had displaced any relevant federal common law and no exception to the well-pleaded complaint rule applied. The brief asserted that the Grable test for when a state-law claim necessarily raises an actually disputed and substantial federal issue was not satisfied because “no federal issue is ‘embedded’ within respondents’ own articulation of their claims.” The Solicitor General’s brief also argued that “artful pleading” and complete preemption exceptions to the well-pleaded complaint rule did not apply. The brief contended that the Tenth Circuit’s affirmance of the remand order did not conflict with decisions in other courts of appeals, including the Second Circuit’s affirmance of the dismissal of <a href="https://climatecasechart.com/case/city-new-york-v-bp-plc/">New York City’s state-law claims</a> against fossil fuel companies.

On October 3, 2022, the U.S. Supreme Court invited the Solicitor General to file a brief expressing the views of the United States on the petition for writ of certiorari filed by fossil fuel companies seeking review of the Tenth Circuit’s opinion upholding the remand order in the climate change case brought by Boulder and San Miguel Counties and the City of Boulder.

On June 8, 2022, fossil fuel companies filed a petition for writ of certiorari seeking the U.S. Supreme Court’s review of the Tenth Circuit’s decision affirming the remand to state court of climate change cases brought against the companies by Colorado local governments. The petition presented two questions: (1) Whether federal common law necessarily and exclusively governs claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate; and (2) Whether a federal district court has jurisdiction under 28 U.S.C. 1331 over claims necessarily and exclusively governed by federal common law but labeled as arising under state law. The response to the petition is due on August 10.