Whitehouse and Jayapal Lead 90 Colleagues in Brief Supporting the Ability of States and Localities to Hold Big Oil and Gas Companies Accountable for Climate-Related Harms

"[P]etitioners' attempt to overwrite Congress's legislative choices under a novel presumption in favor of preemption would undermine longstanding congressional practice and constitutional principles."

Washington, D.C. - U.S. Senator Sheldon Whitehouse (D-RI), Ranking Member of the Senate Committee on Environment and Public Works (EPW), and Representative Pramila Jayapal (D-WA-07) today led 90 members of Congress in submitting an amicus brief to the Supreme Court in the case of Suncor Energy Inc. v. County Commissioners of Boulder County. The brief explains that the Clean Air Act, the Constitution, and federal foreign policy do not prevent states and localities from holding oil and gas companies accountable for climate-related harms stemming from deceptive marketing and sales of their knowingly harmful products.

As climate change intensifies natural disasters, states and local governments face billions of dollars in climate change-driven damages. The County and the City of Boulder (respondents) sued fossil fuel companies (petitioners) under state tort law in Colorado court to "protect Boulder's property and to care for residents' safety," alleging that the fossil fuel companies knew their products were harmful but deliberately concealed that information from consumers. Before the Supreme Court, the fossil fuel companies incorrectly argue that the Clean Air Act, the Constitution, and federal foreign policy preempt Boulder's claims. The lawmakers filed a brief to ensure that federal statutes and federal authority are not improperly used as cudgels to preempt states' powers to protect their citizens.

The lawmakers' brief explains that the Clean Air Act does not preempt state tort suits seeking to address harms caused by the deceptive marketing and sales of fossil fuels. While Congress knows how to preempt state laws when it chooses, "the Clean Air Act's text, structure, and purpose show that Congress has not preempted respondents' state tort claims. The Act is intended to improve air quality primarily through emission reductions and thus does not reach respondents' claims that petitioners engaged in the tortious conduct of deceptive marketing and sales of their knowingly harmful products. . . . Petitioners' argument ignores the mismatch between the conduct at issue in respondents' claims and the conduct that Congress sought to regulate in the Act. This fatal flaw should end the Court's inquiry."

Further, "even if petitioners were correct that respondents' claims could incidentally reduce or even directly regulate emissions (which they do not), the Clean Air Act's text, structure, and purpose permit that." In the Act, "Congress expressly empowered state regulations beyond the federal standards and preserved state authority to seek 'any' relief under 'any statute or common law.'" Congress thus "ensure[d] that the Act sets a federal floor to prevent a 'race to the bottom' but otherwise largely leaves state power intact, recognizing the enduring role of States in pollution regulation." The oil companies' novel presumption in favor of preemption would invert traditional principles of federalism and undermine Congress's authority to choose when and how federal law displaces state law.

"Petitioners hardly disguise their intent to upend decades of this Court's jurisprudence respecting Congress's legislative choices and state sovereignty in our federal system," the lawmakers write. The petitioners' argument "would turn any regulatory regime for a national industry into a default liability shield for deceptive practices or other misconduct." The members added, "This is not how Congress legislates: Congress does not implicitly create liability shields for tortious conduct whenever it regulates within a field… Instead, even where Congress does preempt traditional state authority, it often carves out consumer protection claims, recognizing the importance of States' ability to protect citizens from fraud-based harm."

The lawmakers also refute the petitioners' assertion that Congressionally approved foreign policy preempts respondents' claims. Petitioners "fail to identify any foreign policy in tension with respondents' claims, much less the clear and substantial conflict with federal foreign policy typically required to preempt state laws operating in a traditional area of state authority… Petitioners' attempt to gin up a conflict between federal foreign policy and respondents' tort claims falls short."

Joining Whitehouse and Jayapal in signing the amicus brief were Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ), Dick Durbin (D-IL), Mazie Hirono (D-HI), Ben Ray Luján (D-NM), Ed Markey (D-MA), Jeff Merkley (D-OR), Bernie Sanders (I-VT), Chirs Van Hollen (D-MD), Peter Welch (D-VT), Ron Wyden (D-OR), along with 77 members of the House.

Full text of the brief is available here.