In SCOTUS Global Warming Argument, Conservative Justices are Receptive to "Dormant Nothing Clause" Argument

In an ideal world, the Earth would not be facing the climate crisis it now faces. In an imperfect but still much better world than the one we inhabit, the United States would be leading or at least participating in global efforts to greatly reduce greenhouse gases. We were heading towards such a world when Congress enacted the misleadingly named Inflation Reduction Act, which would have done a lot of work towards reducing U.S. emissions. However, we are now living under a presidential administration intent on promoting the burning of fossil fuels and discouraging the use of renewable energy. The reversals of federal climate policy under the Trump administration include rescission of the endangerment finding earlier this year and its abandonment of carbon emission regulation of stationary sources under the Clean Air Act just in the last few weeks. There is now effectively no federal regulation of global-warming-causing greenhouse gases. Can state and local governments fill at least some of the resulting void?

So thought Boulder County, City of Boulder, and San Miguel County government officials in 2018, when they sued fossil fuel companies using a legal theory modeled on successful state-court litigation against tobacco companies and opioid makers. The lawsuit charges that the fuel producers long knew of the harms their products would cause via global warming but made them anyway without disclosing what they knew to the public, with harm resulting worldwide, including in the plaintiff jurisdictions. The Colorado Supreme Court allowed the case to go forward. Then SCOTUS stepped in.

As a matter of constitutional law, Congress could choose the suicidal policy of burn-baby-burn at the federal level and preemption of all state-level efforts to combat global warming. But Congress has not made any such choice. And yet, in yesterday's oral argument in Suncor Energy v. County Commissioners of Boulder County, the lawyer for the fossil fuel producers and the lawyer for the Trump administration told the Supreme Court that, actually, it doesn't matter that Congress did not enact legislation preempting state-level lawsuits. Although they tepidly suggested that the Clean Air Act (the same one that the Trump administration now says doesn't authorize greenhouse gas regulation at all) preempts state regulation of fossil fuel production, their primary argument was constitutional. They said that the Constitution makes regulation of interstate air and water pollution an exclusively federal responsibility, absent an Act of Congress specifically authorizing state regulation.

If you're having difficulty recalling what provision of the Constitution gives Congress exclusive authority for regulating interstate air and water pollution, that's because there is none. Rather, under the legal theory offered by the fuel producers and the Trump administration, the principle derives from two other invisible constitutional provisions: equal sovereignty of the states and the prohibition of extraterritorial legislation.

To put that point differently, the constitutional rule advanced by the fuel producers and the Trump administration rests on what we might call "an unmistakable inference from constitutional structure." I put those words in quotation marks to give credit to Justice Alito, who wrote an opinion piece in the Wall Street Journal this past Saturday using exactly that phrase to describe "the presidential immunity [the Court] recognized in Trump v. U.S. (2024)."

Justice Alito is recused in Suncor, so he did not offer any views during the oral argument about whether the constitutional principle that states can't regulate interstate air and water is as unmistakable an inference from the constitutional structure as the principle that a former president can't be prosecuted for ordering the assassination of his political enemies so long as he gives the order to members of the military or federal law enforcement (and thus exercises his core executive powers). But we did hear plenty from other Justices, and it was mostly discouraging.

Chief Justice Roberts offered Earthlings interested in averting the climate apocalypse some reasons for hope by suggesting that the efforts to use Colorado tort law were no more extraterritorial in nature than any other in-state liability for harm caused out of state. But he dashed those hopes by pressing the respondents' counsel on the risk of a flood of litigation should the Court permit the case to go forward.

Justice Thomas started off his questioning of both the fuel companies' lawyer and the Trump administration lawyer by asking whether the Court has jurisdiction. There are reasons to think it doesn't because the Colorado Supreme Court decision is interlocutory and, subject to exceptions that are not obviously applicable here, SCOTUS reviews only final decisions. Perhaps Justice Thomas will vote against the petitioners on this jurisdictional ground, but I wouldn't bet on it.

If Justice Thomas does reach the merits, he, as well as Justice Gorsuch, will have to do some fancy footwork. Both have expressed skepticism about the legitimacy of the Court's so-called dormant Commerce Clause doctrine, which limits states' regulatory power even absent congressional legislation on the theory that Congress can be presumed to disfavor interstate protectionism. They (rightly) point out that the Commerce Clause of Art. I, Sec. 8, is by its terms a grant of power to Congress and not a limit on states absent federal legislation. But that point is even stronger here. At least there is a Commerce Clause in the Constitution. By contrast, the theory advanced by the fuel companies and the Trump administration rests on no constitutional text at all. It invokes what we might call a "dormant Nothing Clause."

Nonetheless, petitioners and their amici are correct that some of the Court's prior cases already recognize the principle they're promoting. Whether they do so as a mater of constitutional law is not entirely clear. Justice Barrett seemed to suggest that the notion of federal exclusivity with regard to interstate air and water pollution might simply be a matter of federal common law. The petitioners' argument is that it's the Constitution that makes such issues a matter of federal common law, subject to modification by Congress. Somewhat to my surprise, attorney Kannon Shanmugam, arguing for the companies, was reluctant to accept Justice Barrett's formulation, which struck me as an alternative way for his client to win. Nothing in this case turns on whether federal exclusivity arises out of federal common law by itself or a constitutional default principle pointing to federal common law.

At the same time, however, various conservative Justices cannot escape charges of hypocrisy by claiming that they're recognizing an unenumerated principle of presumptive federal exclusivity by shifting to pure federal common law as the source. That's because they've also criticized such federal common law in other contexts--not least in cutting back to almost nothing the Bivens line of cases allowing lawsuits against federal officials for civil rights violations. If the Court rules against the plaintiffs in Suncor based on federal common law, the ruling will join the infamous 1988 ruling in Boyle v. United Technologies Corp. (with a majority opinion by otherwise-federal-common-law-resistant Justice Scalia). Together, the cases would stand for the proposition that, with the exception of non-ideological disputes between states over boundaries and the like, conservative Justices are against federal common law, except when it enables fossil fuel companies (Suncor) or defense contractors (Boyle) to evade responsibility for the harms their products cause.

The one conservative Justice to whom I'll give some props in Suncor is Justice Kavanaugh. He repeatedly said, correctly, that the Court's cases already recognize a principle of presumptive federal exclusivity with respect to interstate air and water pollution. Now, one could say, so what? Don't the Justices overrule their decisions with some frequency? Didn't Justice Kavanaugh himself include a list of important cases that overruled precedent in his concurrence in Ramos v. Louisiana? And if all of that is true (which it is), then why am I giving props to Justice Kavanaugh?

The short answer is that he offered a special reason to adhere to stare decisis in Suncor that is consistent with one of his recent votes for a non-conservative outcome. He said during the Suncor oral argument that the burden should be on Congress to authorize state regulation of greenhouse gases, not on Congress to forbid such regulation, given that this is the burden the Court has previously announced and on which Congress was entitled to rely. That is closely related to the reason he gave for voting to invalidate Trump's Birthright Citizenship executive order on statutory but not constitutional grounds in his Trump v. Barbara concurrence: congressional reliance on the Court's pronouncements.

In saying that Justice Kavanaugh's willingness to invoke stare decisis here is legitimate in light of his Barbara concurrence, I'm not saying it's correct. The respondents argue that the principle of federal exclusivity with respect to interstate air and water pollution doesn't apply at all to a regulation on the production of fossil fuels. They also have a decent argument that when Congress enacted the Clean Air Act, it superseded the implicit federal common law displacement (based on the dormant Nothing Clause) of state law. If so, the question is simply one of preemption--and the Clean Air Act doesn't by its terms preempt all state law that have an impact on air quality. So, even adherence to the precedents Justice Kavanaugh cites is consistent with allowing the case to go forward. And it's worth noting that nobody else joined Justice Kavanaugh's Barbara concurrence, so it doesn't do anything for any other Justice who votes to disallow the lawsuit.

I'll end where I began. The lawsuit at issue in Suncor is not a first, second, or even third choice option as a policy matter. It would be much better if we had a federal government that treated the climate crisis with something like the urgency it deserves. Even a Democratic sweep in the midterms won't result in such a government, so we will need to wait until at least 2029. In the meantime, the planet heats. The probable victory of Bolsanaro Jr. in round 2 of the Brazilian election will make matters worse. The likely result is a flood: not a flood of litigation, as the Chief Justice fears, but literal floods whose likelihood and severity are increased by global warming. Allowing the Suncor litigation to go forward would not do much to slow global warming, but that's no excuse for blocking it. The dormant Nothing Clause doesn't justify the do-nothing approach to the climate catastrophe.

-- Michael C. Dorf