Last month, the Supreme Court declined to take up a pair of climate cases asking the justices to decide whether deceptive marketing claims brought against fossil fuel producers in state tort law are preempted by federal environmental law.

On January 13, the Court denied writs of certiorari in Sunoco LP v. Honolulu and Shell v. Honolulu.[1] In both cases, the defendant fossil fuel producers sought to overturn an interlocutory decision by the Hawaii Supreme Court that would allow the City and County of Honolulu to continue pursuing its claims in state court. Plaintiffs claimed that the defendants had deceptively marketed their fossil fuel products despite knowledge that use of their products would contribute to climate-related dangers.[2]

The defendant fossil fuel producers argued that these state law claims were preempted by either federal common law governing interstate pollution or by the Clean Air Act because the claims indirectly regulate their emissions.[3] The plaintiffs, meanwhile, stressed that their claims focused on the marketing practices of the defendant fossil fuel companies, not their production practices.[4]

The Court’s decision to punt on this question for now leaves state courts open to continue hearing climate-focused deceptive marketing lawsuits brought in tort against fossil fuel companies. This development is a boon for climate litigants, who have increasingly sought relief or redress for climate-related harms in state court under the umbrella of tortious marketing practices.[5] This strategy aims to both avoid the headwinds of federal standing and political question doctrines and to leverage the relatively well-developed (and varied) bodies of state tort law to overcome federal courts’ reluctance to intervene in climate cases.[6]

Most imminently, the court’s decision means the Hawaii cases and other state court cases that survive motions to dismiss can proceed to the discovery stage. This could open fossil fuel companies up to legal obligations to turn over new evidence of what and when they knew about their products’ causal links to man-made climate change.[7]

However, the Supreme Court’s denial of cert in the above cases does not bind the Court from taking up the same question of federal preemption in future petitions. Fossil fuel defendants are unlikely to halt their efforts to remove or quash state tort claims altogether on federal preemption grounds.[8] And given the potential scope of liability—which could span more than fifty jurisdictions, decades of marketing practices by some of the richest companies on earth, and billions of dollars of climate-related damage suffered annually—it is almost certain that these companies will continue to seek relief from the Justices.[9]

Despite the Court’s lack of formal explanation for its denial of the companies’ petition, a few dynamics in the underlying cases suggest that the question of whether federal law preempts climate tort litigation in state courts may well return to the Court in the coming years.

First, the appeals in Sunoco and Shell came to the Court from an interlocutory decision by the Hawaii Supreme Court. In effect, all the Hawaii Supreme Court did was allow the plaintiffs’ claims to move forward at the state trial court level. Without a final, binding decision by the highest court in the state, the Supreme Court may have concluded it simply lacked jurisdiction to decide the case at this time.[10]

Second, in the months following the fossil fuel companies’ filing for certiorari last February, the Court asked the Solicitor General (SG) to share her view on whether cert should be granted.[11] The Court only asks the SG to provide her view in cases to which the United States is not a party when four of the justices are sufficiently interested.[12] Though it’s hard to know what motivated the court to issue a call for the views of the solicitor general (CVSG) in this particular set of cases, their interest likely stems either in the underlying legal issue or in understanding whether the specific case before them is an appropriate vehicle for deciding that issue.[13]

In November, the Biden Administration’s Solicitor General, Elizabeth Prelogar, filed a response to the justices’ request.[14] In addition to arguing that the Hawaii decisions were not final and thus not within the Supreme Court’s jurisdiction to be heard,[15] the SG also suggested that the Hawaii Supreme Court had correctly rejected the defendant companies’ preemption arguments and that the court should wait for a more on-point conflict with another appellate court to develop before granting cert.[16]

Though it’s unclear which of these lines of argument the justices followed in their decision to deny cert, it’s unsurprising that the end result tracks with the SG’s recommendation. One study found the Court follows an SG’s clear recommendation to grant, deny, or remand nearly 80% of the time.[17]

But when cases do reach the merits stage, the Court’s tendency to follow the SG’s legal assessment is less closely correlated.[18] And, despite the denial here, the very issuance of a CVSG still suggests strong interest among at least four of the justices to take on a certain legal question.[19] Given the unique interlocutory posture of the Sunoco and Shell cases— not to mention the continued urgency on fossil fuel companies’ part to limit their potential liability in climate tort lawsuits—it seems likely that the justice’s initial interest in this question of federal preemption of climate torts in state court could eventually make its way back to the Supreme Court.

Indeed, another case pending on writ of certiorari before the court, Alabama v. California, is similarly asking the justices to weigh in on the permissibility of climate lawsuits filed in state courts by state and local governments, on grounds that these suits unlawfully seek to effectively regulate activity beyond the defendant states’ borders.[20] There, too, the Court issued a CVSG to the then-Solicitor General, who responded with a brief opposing grant of certiorari in December.[21] The Court has yet to decide whether to take up the case.

As climate cases continue to wind their way through the state court systems, the justices’ underlying interest in the question of whether state climate lawsuits against fossil fuel emitters are preempted by federal environmental laws may find a more fitting vehicle for argument and decision. Given how little traction climate plaintiffs have gained in the federal courts, how the justices ultimately come out on that question will drastically alter the scope of possible relief available to climate litigants, or the scope of potential liability defendants face, in the coming decades.

[1] City and County of Honolulu v. Sunoco LP, 537 P.3d 1173 (Haw. 2023), cert denied, Sunoco LP v. Honolulu, 2025 WL 76706 (U.S. Jan. 13, 2025) and cert denied, Shell PLC v. Honolulu, 2025 WL 76704 (U.S. Jan. 13, 2025).

[2] See Petition for Writ of Certiorari, Sunoco LP v. City and County of Honolulu, 2024 WL 916111 (Feb. 28, 2024).

[3] See id. at *23-24.

[4] Brief for Respondents at 16, Sunoco LP v. City and County of Honolulu, 2024 WL 1995228 (May 1, 2024) (Nos. 23-947, 23-952).

[5] See Karen Sokol, Seeking (Some) Climate Justice in State Tort Law, 95 Wash. L. Rev. 1383, 1414 (2020).

[6] See id. at 1414-15 (“State courts have their own standing and political question doctrines that differ from their federal counterparts in ways that could make them less likely to pose an obstacle to climate tort claims.”).

[7] See id. at 1413-14.

[8] See id. at 1406.

[9] See, e.g., Donald Kochan, Supreme Court Should Prevent Flood of State Climate Change Torts, Bloomberg Law (May 20, 2024, 4:31 AM ET) (arguing that denial of cert would effectively declare open season for tort suits against fossil fuel companies in city and county courtrooms across the U.S.).

[10] See 28 U.S.C. § 1257(a) (rendering final judgments by a state’s highest court reviewable by the U.S. Supreme Court) (emphasis added).

[11] Melissa Quinn, Supreme Court seeks Biden administration’s views in major climate change lawsuits, CBS News (June 10, 2024, 10:11 AM).

[12] David C. Thompson and Melanie F. Wachtell, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call For Response and the Call For the Views of the Solicitor General, 16 Geo. Mason. L. Rev. 239, 274.

[13] Id. at 281.

[14] Brief for the United States as Amicus Curiae, Sunoco LP v. Honolulu and Shell LP v. Honolulu, 2024 WL 5095299 (2024) (Nos. 23-947, 23-592).

[15] Id. at 7.

[16] Id. at 14, 19.

[17] Thompson and Wachtell, supra note 11, at 245.

[18] Id.

[19] See id. (noting that a case in which the Court issues a CVSG is, on average, 37 times more likely to be granted cert).

[20] Brief of the United States as Amicus Curiae at 2, Alabama v. California, 2024 WL 4426505 (2024) (No. 158, Original) (describing the underlying cause of appeal).

[21] Id.