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Arguments in the matter of Suncor v. Boulder

 


Continuing my train of thought from yesterday.  (Please look back at yesterday's post before telling me this one makes no sense.) 

So: Suncor wants the Supreme Court of The United States to find that climate change policy must be federal policy, so Boulder has no business bringing a state law based suit against Suncor or ExxonMobil. 

That understood: how did arguments go? 

Chief Justice Roberts expressed skepticism about the preemption argument. He said it is not uncommon to base state law litigation on actions taken in whole or part in other states. He wanted to know: what makes this case special?

Sarah Harris, the solicitor general for the US (here because the administration is taking Suncor's side) replied that if Boulder prevails it would ban the production of fossil fuels anywhere in the country.

Roberts appeared unpersuaded. "That's a question of relief" to be raised in the context of the lawsuit if the lawsuit is allowed to proceed, not an argument against doing do.

My guess is that without Roberts, Suncor cannot make the numbers work.  Petitioners need five. With Alito recused, that means they need every other Justice nominated by a Republican. But that means ... they need Roberts. And it does not appear that they have him. 

Indeed, the old American conservative insistence on states' sovereignty as a guiding principle, as a check on the presumably more dangerous machinations of the federal government, may well be at work in the minds of the Chief Justice here, and may allow for a defection on the part of Amy Coney Barrett as well.     

When Suncor's attorney, Kannon Shanmugam, said that a federal statute, the Clean Air Act, preserved only a narrow category of state lawsuits, Barrett objected, saying that to her it seemed Congress was working to preserve pre-existing state law rights. She actually said that Shanmugam was being "a little slippery" on this point. 

I'll say something more about this and, germane to the title of this humble blog, I will look at it through the lens of pragmatic philosophy, next week. 


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