Alito steps aside from Supreme Court climate lawsuit

Justice Samuel Alito will not participate in a Supreme Court case that could shape whether cities and states can seek damages from fossil-fuel companies in state courts over climate change. His decision comes after calls for him to step aside because he owns stock in energy companies.

“Justice Alito has determined that he will not continue to participate in this case,” Supreme Court Clerk Scott Harris wrote in a letter sent Monday to lawyers in the dispute. The letter gave no reason for the decision.

The case stems from a lawsuit the city and county of Boulder, Colorado, filed in state court in 2018 against Exxon Mobil and Suncor Energy. Boulder says the companies’ production and sale of fossil fuels, along with their alleged concealment or misrepresentation of the risks, contributed to climate change. It is seeking billions of dollars for property damage and costs including repairs, emergency services and public-health measures, according to CBS News.

The companies tried unsuccessfully to move the case to federal court, then sought its dismissal. They argue that the Clean Air Act and the Constitution bar Boulder’s claims under state law. The Colorado Supreme Court allowed the lawsuit to proceed. The U.S. Supreme Court is set to consider whether the case can move forward in state court and whether the justices have jurisdiction to review the Colorado court’s decision, CBS News reported. Arguments are scheduled for next week.

The outcome could affect similar lawsuits brought by states and local governments against fossil-fuel producers. The oil and gas industry hopes for a broad ruling that would keep such cases out of state courts, potentially avoiding billions of dollars in damages, according to NBC News.

Alito does not own stock in Exxon or Suncor, but his financial disclosures list holdings in ConocoPhillips and Phillips 66. NBC News reported that he also holds stock in five other firms involved in the energy sector. Groups calling for his recusal argued that companies in which he invests could benefit from a ruling for Exxon and Suncor because they face similar litigation.

Alito previously sat out an earlier stage of the Boulder case in 2023, when the Supreme Court turned away an appeal by Exxon and Suncor. He also did not participate when the court rejected appeals in similar cases involving other companies, including ConocoPhillips and Phillips 66. In May, a court spokeswoman told NBC News that Alito had “inadvertently recused” from the earlier Boulder proceeding. She said he had no financial interest in any party in that case and had been advised by the court’s legal counsel that recusal was not required.

Consumer Watchdog, an advocacy group that pressed for Alito to step aside, pointed this month to shareholder disclosures in which ConocoPhillips and Phillips 66 warned about risks from climate lawsuits, NBC News reported. “Justice Alito’s recusal… is the right decision, and one he should have made from the start,” said Alexandra Nagy, the group’s organizing director.

The court has a 6-3 conservative majority. Without Alito, the justices could split 4-4, leaving the major legal questions unresolved. Separately, NBC News reported that some conservatives have urged Justice Elena Kagan to recuse herself over a climate-change chapter that was included in, then removed from, a reference manual for judges. Kagan wrote a brief foreword to the manual and has told lawmakers she never read the chapter.