Liberal justices look for 'escape hatch' as high-stakes climate case lands at Supreme Court, experts say

Justices Ketanji Brown Jackson and Sonia Sotomayor's repeated questions concerning whether the Supreme Court has jurisdiction to hear a high-profile climate case that could expose oil companies to lawsuits across the country steered conservative lawyers to believe that the liberal justices are seeking an "off-ramp."

"The fact that they kept going back to trying to create a jurisdictional problem tells me they don't feel confident that they have the votes in this space," Carrie Severino, president of JCN, a conservative judicial group, told Fox News Digital. "Jackson and Sotomayor were looking for an escape hatch."

The Supreme Court began its new term Monday, hearing its first oral arguments for Suncor v. Boulder, in which they will rule on whether state tort laws can be used to seek damages from oil companies for climate change, even when the alleged harms are occurring outside the state or continent. The justices will also rule on whether the Supreme Court has jurisdiction to hear this case now, as the case is still before the Colorado Supreme Court.

The case before the high court is in an unusual procedural posture, meaning the justices could resolve it without ever reaching the blockbuster state-versus-federal power fight at its center. That dispute centers on whether Colorado can use its own laws to seek damages for alleged harms caused by emissions from other states or whether it's an issue for the federal government and Congress to regulate.

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"The questions by Jackson and Sotomayor trying to say it would be premature for the court to issue an opinion are simply the liberal justices trying to find an off-ramp for the case because they are afraid they will be outvoted on the main issue: does federal law such as the Clean Air Act preempt all state claims like those asserted here," Hans von Spakovsky, senior legal fellow with Advancing American Freedom, told Fox News Digital.

While questioning Suncor attorney Kannon Shanmugam, Jackson suggested the dispute may have reached the Supreme Court too soon, calling it "premature from the standpoint of this court exercising its jurisdiction."

She also repeatedly questioned why the court couldn't wait to hear the case, saying the court doesn't "have the whole set of facts" and that the court doesn't "really know enough to be confident" that the theories posed are applicable.

"It feels to me like the defendants ... are bringing it back to federal court before the state courts have really had a chance to sort out who is the source, what is their allegation with respect to how this causation is happening," Jackson told Principal Deputy Solicitor General Sarah Harris, who argued in support of Suncor.

Meanwhile, Sotomayor refused to drop her line of questioning on jurisdiction with Shanmugam, proposing that the Supreme Court send the case back to the Colorado Supreme Court.

"If we're unsure of your characterization, because there's certainly a number of amici brief who disagree with that characterization, shouldn't we be certifying this question to the Colorado court instead of us deciding it? We have to be sure of our jurisdiction before we take it," Sotomayor said.

Republican Alabama Attorney General Steve Marshall told Fox News Digital it was clear that the liberal justices were trying to cast doubt on whether they have jurisdiction.

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"Well, I think you saw both Justice Jackson and Justice Sotomayor try to find an out for this court, basically saying the court doesn't have jurisdiction at this stage of the case to be able to make a final ruling. I think that you saw the advocates on behalf of Suncor be able to distinguish that."

If the Supreme Court declines to reach the federalism issue, the Colorado Supreme Court's ruling allowing Boulder's state-law claims to proceed would remain in place, leaving the broader question of how far states can use tort law to pursue climate claims against energy companies unresolved.

Chief Justice John Roberts pressed Boulder attorney Kevin Russell on whether a Boulder win could trigger similar lawsuits nationwide. Russell said there are legal limits, but acknowledged to Justice Clarence Thomas that Boulder's theory could allow other fossil-fuel businesses to be sued.

"The chief justice and the court do not like issuing rulings with no limiting principles, rulings that could open up unlimited litigation and claims. Kannon Shanmugam, the lawyer for Suncor, emphasized this again at the very end of the oral argument when he pointed out that there are not only 90,000 political jurisdictions that could sue, but individuals could also sue claiming damages from global warming," von Spakovsky said.

"And he also pointed out something the conservative majority frowns upon: that Boulder is trying to resolve a major policy issue in the courts instead of in the legislative branches," von Spakovsky continued.

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Supporters of Suncor say the lawsuits could "bankrupt" oil companies and cause the price for consumers to go up.

"It's to basically create a carbon tax on both producers and emitters across the country, which would include, by the way, my cattlemen in Alabama producing beef for our country, those that are creating concrete to be able to build structures and be able to grow our economy," Marshall told Fox News. "They ultimately want to bankrupt that industry to have their preferred climate change policies be in play."

"They're literally addressing behavior that takes place all over the world," Utah Attorney General Derek Brown told Fox News Digital. "They want to regulate not just what happens in Colorado, but what happens in my state of Utah or in Saudi Arabia. That's not the way the system works. So, really, this case comes down to one main issue and that is who gets to decide things like energy policy. And ultimately, under our system, it should be Congress."

Meanwhile, Boulder alleged ExxonMobil and Suncor knew for decades about the climate risks associated with fossil fuels but misled the public about those risks. The communities estimate that taxpayers could face more than $100 million in costs to adapt to climate-related impacts, including wildfires, drought and damage to roads and other infrastructure.

Former Washington Gov. Jay Inslee, a Democrat and longtime advocate for aggressive action on climate change, argued those costs are already being felt by communities across the country.

"As governor, I've worked with so many families who've lost their homes," Inslee told Fox News Digital. "So many communities have essentially burned down, and they ought to be able to have a day in court to hear the evidence, to determine whether the lies of the oil and gas industry legitimately, they make it so that they're held accountable."

The complaint pointed to a 1977 internal memo from ExxonMobil that circulated among the company's highest-level managers. The memo reported that "current scientific opinion overwhelmingly favors" that fossil fuels contribute to the rise in CO2 emissions.

"Their own scientists knew that their product was dangerous, that it was going to cause more fires. And they knew this for decades, 1967, their own scientists told them it could be catastrophic, so they knew about it, they lied about it," Inslee said. "Now it's an American right to be in court. Nobody should bar an American from their day in court."