Alito is recused as the Supreme Court hears Boulder's suit against Suncor and ExxonMobil

The US Supreme Court opened its term on Monday by hearing Suncor Energy Inc. v. County Commissioners of Boulder County. After nearly two hours, SCOTUSblog's Amy Howe wrote that it was not clear a majority agreed with the energy companies that federal law bars the suit. Justice Samuel Alito is recused. A 4-4 tie would leave in place the Colorado Supreme Court ruling that lets Boulder's case go forward.

Boulder and Boulder County filed in Colorado state court eight years ago. The defendants are Suncor, which runs the only two oil refineries in Colorado and is a subsidiary of a large Canadian energy firm, and ExxonMobil, the largest energy company in the United States. The city and county want money for costs they say come from climate change, including work to protect public property and residents' property. They say both companies deceived the public about the effects of climate change and about the role of fossil-fuel products, and that producing, refining and marketing those fuels contributed to the harm.

Why the case is in Washington at all

The companies want the dispute treated as federal, and closed. Their argument, as Howe summarised it, is that federal law prohibits this kind of state-tort claim. Boulder wants the case kept in Colorado, under state law, where the Colorado Supreme Court has already allowed it to proceed. Monday's hearing was about that gate, not about whether the Front Range is warmer, or about a damages number.

Alito's recusal sets the arithmetic. Eight justices heard the case. Four votes to reverse and four to affirm produce no opinion of the Court. The lower court's judgment stands. In this file, that judgment is Colorado's, and it lets the suit move. A tie is not a national rule. It is a result for this case. Other cities with similar suits would still need their own path, unless a later full bench writes a holding.

What Boulder is asking to prove

The complaint has two layers. One is production: the companies refined and sold fuels whose combustion added greenhouse gases. The other is speech: the companies, Boulder says, misled the public about what those fuels would do. The second layer is the one written to look like a consumer or fraud claim under state law. The first is the one the companies say only federal law can govern, because emissions cross state lines and the Clean Air Act already occupies the field.

Suncor's local fact is concrete. It operates the only two refineries in Colorado. A judgment against Suncor would land on plants inside the state whose products are sold there. ExxonMobil is in the case as a producer and marketer whose operations are mostly elsewhere. The two defendants give the court a local refiner and a national major in the same caption.

The signal Howe recorded

Howe wrote that the justices sent mixed signals. That is a report on the argument, not a vote. Questions from the bench are not holdings. The usable institutional fact is the recusal and the tie rule. If the eight who sat split evenly, Boulder returns to Colorado trial court. If five vote to reverse, the suit stops, and the reason will be written for every city considering the same filing.

The term opened on this case. No opinion was issued on Monday. The next public step is a decision, on a date the Court has not set, from a bench of eight.