SUNCOR Gets Complicated

Sarah Isgur (0:01)

You ready?

I was born ready.

Welcome to Advisory Opinions, I'm Sarah Isgur, that's David French. We have got a pod for you today, our first oral argument of OT 2026 It's the Suncor Climate Change Case. And that got complicated. We'll get the bottom line up front on who we think is coming out ahead in this case, but we've also got more Alito book tour stuff. Turns out he's used AI, zombie originalism, zombie slayer, the headlines this week in Law World were very zombie focused. And then we've got Circuit Cases 7 Circuit, 9th Circuit, First Amendment abounds. We've got child sexual abuse material protected by the First Amendment. We've got vaccine exemption, dissent about the First Amendment, actually Title 7, and a racial harassment case under the Equal Protection Clause coming out of the 9th. All this and more on Advisory Opinions.

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Sarah Isgur (2:12)

David, let's start out the Let's start. the podcast with our first oral argument of the year, OT 2026 This was the Suncor case. I have said that I think this is the biggest case of the year for me. This is Boulder, Colorado suing some energy companies. We have cases like this around the country, depends exactly what you count, but we're at several dozen now, whatever the number may be. Boulder's theory is state tort, nuisance, misleading advertisements, state law harm done by these producer companies. They're not emitters, they're producers. They're getting the fossil fuels out of the ground, and they're saying that that has led to, through a chain of events, global climate change and that global climate change has caused injury to people who live in Boulder, Colorado just like any other tort, they can sue for that. Just disclosure real quick for those tuning in to this podcast for the first time or not since recently, my husband now works for Chevron. Chevron is not a party to this case, but obviously that is also an energy producer and like Justice Alito who recused himself because his wife owned stock in different energy companies, same thing applies here because this will have effects on other producer companies. But unlike Justice Alito, I'm not recusing myself, but I did want to mention that potential problem. So David, I think we went into this oral argument. Like all Supreme Court cases, Boulder had won at the Colorado Supreme Court.

Therefore they have about a 70% chance of losing at the US Supreme Court just based on the numbers of how these things go. So you walk into this case, Suncor has the ball, so to speak. They are ahead by, I don't know, a field goal probably.

Here's my bottom line.

The oral argument changed nothing. Suncor leaves about a field goal up still. What do you think?

David French (4:18)

I'll say it changed a little for me. And here's the way I look at it. Suncor is lining up for the 55-yard field goal to win.

So it's tied, but you'd rather be in Suncor's position. Like imagine it's one second to go in overtime, and who would you rather be on the receiving end, defending the 55-yard field goal or kicking it? You'd rather be kicking it, because you've got a better chance of winning than losing at that point. But I will say the oral, two things changed my assessment of the case. Just both a little bit on the merits, but more on the outcome. One is the recusal of Alito, which all of a sudden, like I could not, it was hard for me to see how, before Alito recuse, it was very hard for me to see how Boulder could count to five. How are you counting to five with Alito?

Sarah Isgur (5:10)

And just to be clear, if it does tie 4-4, whatever happened at the lower court stays in effect. So it reverses all the math basically. You know, if you win at the lower court, you're likely to lose at the Supreme Court. But if something ties 4-4, you definitely want to win at the lower court because that's just what stands. So Boulder doesn't even have to win now. They just have to get four votes.