There is long-standing controversy surrounding titans of the oil and energy industries and the negative impact their practices have on the climate, even finding its way up to the Supreme Court. This controversy over the effects of energy harvesting on the climate is a popular argument amongst the public. This exact controversy was highlighted in Taylor Sheridan’s 2024 hit television drama Landman when the protagonist (a crisis manager of an oil company) goes on an “epic rant” about wind energy being no cleaner than oil, and the scene received significant backlash. However, the issue the Supreme Court faces is something much different–an issue of federal preemption: whether state attorney generals have standing to bring state-law-based tort claims against these “big oil” companies without being displaced by federal common law.

Currently before the Supreme Court, Alabama v. California is a collective suit of nineteen Republican-led states against five Democrat-led states. The five Democrat-led states first brought climate change lawsuits against the likes of Exxon, ConocoPhillips, Shell, and BP. The claims at the root of this litigation allege these companies were aware of their products’ contribution to climate change but misled the public for decades regarding the cause of climate change and the great risks of fossil fuels. In response, Alabama and the other states urged the Court to confer original jurisdiction on the grounds that these suits expand beyond the States’ powers. The red states argue this violates the horizontal separation of powers, which prevents states from regulating activity beyond their borders, and suits regarding interstate effects of pollution are exclusively governed by Federal Law. However, the petitioners have a mountain to climb to prevail on a federal preemption argument for a number of reasons.

Most significantly, the Supreme Court previously denied certiorari in January 2025 to oil companies seeking the same intervention in two state-law-based climate change suits out of Hawai‘i: Sunoco LP v. Honolulu and Shell PLC v. Honolulu. Facing the very issue raised by Alabama v. California, the Court declined to hear the oil companies’ challenge that these suits are preempted by federal law, including a mix of federal common law and federal statutes such as the Clean Air Act. It will be interesting to see how the petitioning states in Alabama v. California differentiate their case from those rejected by the Supreme Court earlier this year. 

The petitioners may find that the most effective argument at their disposal is not that federal law preempts such claims, but that such claims do not belong in court at all. Looking back to 2021, the Second Circuit Court of Appeals raised a similar question when dismissing a lawsuit filed by the City of New York against Chevron, Exxon, ConocoPhillips, Shell, and BP. When suits rooted in the harmful effects of climate change arise, the controversy that all courts face is whether the law is tailored to address them. Undoubtedly an issue, the political question doctrine arising out of AEP v. Connecticut (2011) asks whether this issue belongs in the court system (i.e., has legal justiciability), or if it is a policy decision that is more suited to the other branches of government. Notably, the denial of certiorari in the Honolulu cases likely forecasts that this argument is insufficient to persuade the Supreme Court to grant cert. In her argument before the Court, former U.S. Solicitor General Elizabeth Prelogar successfully distinguished the Honolulu cases from the Second Circuit’s 2021 decision in City of New York v. Chevron and the Supreme Court’s prior holding in AEP v. Connecticut, convincing the Court to deny certiorari. 

The Supreme Court requested Solicitor General Prelogar’s legal opinion regarding the petitioners’ arguments in Alabama v. California, which petitioners clearly viewed as “an encouraging sign.” Respondents found Prelogar’s participation weighs in their favor, bolstering their argument by listing the Supreme Court’s previous rejections of bids by oil companies to move several similar lawsuits to federal court, in which Prelogar urged the justices to reject the writs of certiorari. Prelogar’s amicus curiae brief echoes much of the Solicitor General’s corresponding Honolulu brief, and the brief of the respondent states.

However, a new issue may arise as a result of the transition of power from President Biden’s Democratic administration to President Trump’s Republican administration. While former Solicitor General Prelogar timely filed her brief on behalf of the United States Department of Justice and the Biden Administration well before January 20th, the Trump Administration and newly-acting Solicitor General Sarah Harris may seek to “renew” the U.S. Department of Justice’s stance on the matter as they already have with other cases already. It is a longstanding tradition following a transfer of power for the federal government to maintain the same legal position in cases already before the court on the merits. However, recent solicitor generals in both the first Trump administration and the Biden administration willingly departed from that transition tradition. It would not be surprising to see Solicitor General Harris issue an amicus curiae brief of her own, reflecting views opposite those of the previous Justice Department. 

As it stands, the Supreme Court is saddled with a cutting-edge controversy that could set an entirely new course for how climate change litigation is (or is not) handled by the courts. Furthermore, the Court’s upcoming decision will determine whether it is willing to depart from its own precedent and reshape its view on federal preemption of state-law-based climate change suits to be consistent with the new administration's views.

Sam Ferrara is a second-year law student at Wake Forest University School of Law. He holds a B.A. in Political Science and a B.A. in Psychology from Boston College.

Reach Sam here: 

Email: [email protected]

LinkedIn: https://www.linkedin.com/in/sam-ferrara-293a03217/