Could climate change litigation be headed back to the U.S. Supreme Court? That prospect seems more likely after the Supreme Court issued an order on October 3, 2022, inviting the Solicitor General to file a brief expressing the views of the United States on whether to grant certiorari in Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County.

In Suncor, a group of energy companies have asked the Supreme Court to review the Tenth Circuit's decision holding that federal courts lack jurisdiction over climate-related tort claims brought by the city and county of Boulder, Colorado. The Supreme Court's October 3 order suggests it has a significant interest in the Suncor petition: Where the Supreme Court calls for the views of the Solicitor General, empirical research shows that certiorari "is over 46 times more likely to be granted."

The Suncor case is one of roughly two dozen similar lawsuits playing out in courts across the nation. Since 2017, a number of state and local governments have sought to hold oil and gas companies liable for billions of dollars in infrastructure damages they have allegedly suffered or expect to suffer because of climate change. To date, these lawsuits have centered on purely jurisdictional disputes: Whereas plaintiffs have sought to litigate these actions in state forums, defendants have removed them to federal court, arguing that climate change is a global issue improper for state court adjudication.

The petitioners in Suncor argue that climate claims brought pursuant to state law are "necessarily and exclusively governed by federal common law" thereby rendering them removable to federal court. The petitioners have likewise argued that the Tenth Circuit's rejection of federal jurisdiction conflicts with other federal decisions, namely that of the Second Circuit, which found that New York City's similar state-law climate claims implicated federal common law. For their part, the city and county of Boulder argue that federal jurisdiction is lacking because their claims allegedly sound exclusively in state law.

If certiorari is granted, Suncor would mark the second time the Supreme Court has grappled with climate change litigation. In BP p.l.c. v. Mayor and City Council of Baltimore, the Supreme Court vacated the Fourth Circuit's remand of the City of Baltimore's climate change lawsuit to Maryland state court. The Supreme Court, however, limited itself to resolving a narrow question regarding the scope of appellate review applicable to the district court's remand order; it declined to opine on the broader jurisdictional questions underlying climate change litigation writ large. (A separate certiorari petition is currently pending in the Baltimore case seeking review of the Fourth Circuit's subsequent decision to affirm the remand order.) Now, the Suncor petition squarely presents the all-important jurisdictional questions for Supreme Court resolution.

Whatever its outcome, the Suncor petition has potential for an immense impact on the future of climate change litigation in the United States. There is no filing deadline for the Solicitor General's brief, but past practice suggests the brief could arrive as early as December, with the Supreme Court's certiorari decision coming before the end of the Term.