The new Supreme Court term kicks off Monday with arguments over corporate accountability for climate change.

The justices won’t resolve whether oil and gas companies are, in fact, responsible for global warming and its resulting damage. Rather, the appeal in Suncor v. Boulder asks whether litigation that seeks to hold them liable can even proceed.

Typically, the full nine-member bench would answer that question. But Justice Samuel Alito surprisingly recused himself last week, following calls to step aside due to his financial interests in the energy industry.

The GOP appointee’s absence raises the possibility that the court won’t answer the question at all but will instead deadlock 4-4. A tie would effectively uphold the Colorado Supreme Court’s ruling that the companies want the justices to overturn, leaving the nationwide fate of corporate liability undecided.

Monday’s hearing, slated for 10 a.m. ET, should give a sense of whether that is a realistic possibility or which way the court is leaning otherwise. (The justices don’t televise their arguments but they do stream the audio.)

A ruling is expected by July in this case and in the others that will be argued this term, with hearings running from October through April.

‘Extraordinary importance’

The case stems from a lawsuit brought by Boulder county and city officials against Exxon Mobil and Suncor Energy. Boulder sought damages for the companies’ role in producing, promoting, refining, marketing and selling fossil fuels that allegedly exacerbated climate change and harmed the area’s property and residents.

Siding with Boulder at a preliminary stage of the litigation, the state’s Supreme Court said that the case raises “substantial issues of global import” but that the legal question at this point is “narrow”: whether the state trial court properly found the claims can proceed under state law. The Colorado court said it can, rejecting the corporate argument that federal law bars the suit.

The state court emphasized that it wasn’t deciding whether Boulder’s claims would ultimately succeed, only that the case could proceed.

The companies appealed to the U.S. Supreme Court, urging review of what they called a matter of “extraordinary importance to the energy industry,” which they said faces “dozens of lawsuits seeking billions of dollars in damages for the alleged effects of global climate change.”

They said suits like Boulder’s can’t move forward due to the interstate and international nature of greenhouse gas emissions. “State tort law is not the solution to global climate change,” the companies said in a brief ahead of the hearing, warning that opening the courthouse doors in this case could destroy corporations around the country.

“Giving even a single jury the power to impose ruinous liability on selected members of the energy industry is a recipe for chaos. Unleashing juries nationwide is a recipe for disaster,” their brief said. The Trump administration and the Chamber of Commerce are among the outside supporters echoing those business fears.

4-4 split?

The court granted the companies’ request to review the matter over Boulder’s multiple objections, including that it would be premature for the justices to step in at this stage of the litigation.

It takes four justices to grant review. It’s unclear whether Alito was one of them because that vote tally isn’t public. The hearing could signal whether there are five or more justices on the eight-member tribunal who appear poised to side with the companies. There are still five Republican-appointed justices hearing the case, even without Alito. But the legal issue of federal vs. state power here doesn’t necessarily lend itself to a party-line ruling.

On that note, a law professor who has criticized other climate litigation submitted a brief backing Boulder’s legal position without endorsing whether or not the companies should ultimately be held liable.

“Nothing in federal law, let alone the Constitution, preempts state-law claims seeking relief from injuries allegedly caused or exacerbated by” the companies’ conduct, the professor, Jonathan Adler, said in an amicus brief. He said the Supreme Court “has long understood” that suits like Boulder’s can proceed “even if they are viewed as efforts to seek redress for interstate pollution subject to federal regulation.”

Whether the drastic consequences the companies warn of will help them smooth over any legal weakness in their position is something to watch for during Monday’s oral argument.

‘Transparently alarmist’

When the court agreed to review the appeal, it said that on top of the preemption issue, it also wants to hear the parties’ positions on whether the justices have jurisdiction to consider the case at all. Boulder said no, citing the early procedural stage of the litigation at which Colorado’s Supreme Court ruled. The state court ruling wasn’t a final decision and is therefore inappropriate for U.S. Supreme Court review, Boulder argued, adding that the companies can always appeal later if they are found liable.

On the merits of the issue, the Colorado authorities said their suit is hardly the unprecedented danger that the companies make it out to be. They said in their brief ahead of the hearing that “countless” civil suits cross state lines, including interstate environmental cases that have been around since the nation’s founding.

Also among Boulder’s outside backers are national municipal government groups, who called the companies’ stance “transparently alarmist without real basis,” as well as members of Congress, led by Sen. Sheldon Whitehouse, D-R.I., and Rep. Pramila Jayapal, D-Wash., who told the justices that states have a powerful role to play in this area and that the companies are trying to “subvert bedrock constitutional principles of federalism that preserve state power.”

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