Supreme Court Grants Oil Companies’ Request To Intervene In Boulder Climate Case

The decision to take up the case could stall, and potentially block, efforts to hold the fossil fuel industry accountable for climate change harms.

The United States Supreme Court decided on Monday to take up a petition filed by oil companies ExxonMobil and Suncor in a climate deception case brought against the companies by Boulder, Colorado. In deciding to accept the industry defendants’ plea to intervene in this high-stakes litigation before the case has even gone to trial, the court could be positioning itself to shield the fossil fuel industry from all climate-related liability claims – a move that could have sweeping impacts at a time when the federal government is dismantling climate protections and attempting to revoke its own legal authority to rein in climate pollution.

In an order list released on February 23, the court granted certiorari – meaning it agreed to review – the oil companies’ petition, which was submitted in August last year after the Colorado Supreme Court ruled in May that Boulder’s case could move forward in state court towards trial. The petition argues that this ruling was wrong and asks the justices to decide the question of whether federal law broadly prohibits state law climate claims.

In their decision to take up the petition, the justices also ordered the parties to brief and argue the question of whether the court even has jurisdiction to hear the case.

Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School, said that this additional question suggests that there is a split among the justices in terms of whether they should be intervening at this early stage of the litigation.    

 “Ordinarily the Supreme Court doesn't hear cases until there has been a final judgment,” Gerrard said. “So here, at least four of the Supreme Court justices wanted to take the case. Several of them didn't; that's probably why it took the Court so long to decide whether to grant cert.”

Deciding that the court does not yet have jurisdiction, Gerrard added, would “allow the Court again to dodge deciding the merits,” as it did several years ago in a climate case brought against oil companies by the city of Baltimore, Maryland. The court took up that case on a narrow procedural issue. Since then, however, the court has rejected other petitions from oil companies to intervene in climate lawsuits before any have gone to trial – including declining a previous petition in Boulder’s case.

Boulder’s suit, filed in 2018, alleges that ExxonMobil and Suncor misrepresented the climate change risks of their products and that this deception helped to delay the transition to clean energy, which in turn contributed to worsening climate impacts such as extreme precipitation and flooding and disastrous wildfires. The case seeks to recover damages to help the municipality respond and adapt to climate change hazards. In bringing the legal action, Boulder argues that the defendants have violated state law, including public and private nuisance, trespass, unjust enrichment, and civil conspiracy.

It is among dozens of lawsuits brought by cities, counties, states, tribal communities, and individuals against the fossil fuel industry, aiming to hold companies like Exxon liable for alleged deception around the issue of climate change. The industry defendants have fought tooth-and-nail against these cases, initially attempting to get them removed to federal court, and when that effort failed, to have them dismissed in state court. Some cases have gotten dismissed, but others including Boulder’s suit have overcome the dismissal efforts and are moving forward towards trial in state courts.

A consumer protection lawsuit brought by the Massachusetts attorney general against Exxon is already deep into pre-trial discovery. And a climate damages case brought by Honolulu, Hawaii against a handful of major and gas companies is entering discovery after rulings by Hawaii state courts allowing the case to advance.

The companies had previously petitioned the US Supreme Court in an effort to thwart Honolulu’s case and other climate suits pending against the fossil fuel industry, arguing that federal law preempts state law climate claims. But in January 2025 the justices declined to take up the petition in Honolulu’s case. Justice Samuel Alito, who owns stock in several big oil companies, recused himself from consideration of the petition, which he did not do this time around in Boulder’s case.

The question presented in the Boulder case petition is nearly word-for-word identical to the one from the previous petition, in the Honolulu case, that the Court denied. The question as stated is: “Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.”

This time, however, the oil companies had even more support from its political allies, with amicus briefs filed by the US Department of Justice, 26 Republican state attorneys general, and over 100 Republican members of the US House of Representatives. In their petition in the Honolulu case, the industry had backing from 20 Republican-led states, but not the US government nor members of Congress.

The present petition (as in the previous one) calls on the justices to decide whether state law claims asserted by dozens of states and municipalities against the fossil fuel industry should even be allowed to proceed, and to make this decision before the industry “is threatened with potentially enormous judgments.”

“In these cases, state and local governments are attempting to assert control over the Nation’s energy policies by holding energy companies liable for worldwide conduct in ways that starkly conflict with our constitutional structure, as well as the policies and priorities of the federal government,” the companies argue in their petition. Exxon and Suncor further say in their petition that the “stakes in this case could not be higher,” noting that the litigation threatens the industry with “damages awards that could run into the billions of dollars.”

The decision by the justices to take up the petition comes amidst escalating efforts by the fossil fuel industry and its political allies to try to shut down climate liability initiatives. Rep. Harriet Hageman (R-Wyo.) said during a recent congressional hearing that she is working with her congressional colleagues on a bill that would shield fossil fuel companies from liability through state climate lawsuits and climate superfund laws. The American Petroleum Institute, which is a defendant in some of the lawsuits, has lobbied Congress on the issue of state efforts to impose liability on the oil and gas industry. And last year, following an executive order from President Trump directing the attorney general to go after state laws and lawsuits that target or otherwise burden the fossil fuel industry, the US Department of Justice brought lawsuits against four states seeking to block their climate superfund laws and anticipated lawsuits against oil companies.  

Exxon’s lawyer, meanwhile, has promised to “crush” these climate liability lawsuits targeting the company and the industry. “I didn’t just move my family to Texas from the East Coast to have a bunch of activists and ambitious politicians bankrupt the company,” Justin Anderson, Exxon’s assistant general counsel for litigation, said during a panel event hosted by the Federalist Society in November. “We are not going to lose this fight.” Anderson said defeating these lawsuits is a big priority, not just for Exxon but for the entire industry.

The move by the court to take up the petition also comes as the Environmental Protection Agency is rescinding its 2009 greenhouse gas endangerment finding and claiming that now lacks the authority under the Clean Air Act to do anything about greenhouse gas emissions. Some legal experts say that such a position, if it survives legal challenges, would open industrial polluters up to even greater liability risk, because the defense that climate-related tort claims are preempted by the Clean Air Act would no longer be viable.

“It’s particularly strange because it’s happening at the same time [the EPA] is repealing the endangerment finding,” Robert Percival, an environmental law professor at the University of Maryland, said of the court’s decision to review Boulder’s case. He said he would be curious to see what arguments the oil companies could plausibly make as to why there is federal preemption, given the EPA’s current position that it does not have Clean Air Act authority to address GHG emissions.  

“They don’t really have a legal leg to stand on now,” Percival said.

Still, if the court were to rule in favor of the oil companies on the question of whether federal law bars all state law climate claims, the consequences would be sweeping, according to James May, professor of law at Washburn University.

“The aim is to take the states out of asserting state-based climate claims or actions of any sort,” May explained. He warned it “could be the beginning of the end of state-based climate claims, potentially of any flavor, statutory, common law, or constitutional.”

“It potentially kills everything that the states can do” on climate, May said.

It will likely be at least a year before the Supreme Court issues any ruling in this case. In the meantime, fossil fuel defendants could move to stall other climate cases pending against them until the court issues its decision – further delaying, if not outright stopping, these accountability efforts.  

“I expect that in the many similar cases that are now pending, the defendant fossil fuel companies will ask the state courts to put the cases on hold,” Gerrard said. “It will be up to each state court to decide.”