A Supreme Court climate case meets a changing scientific consensus

The views expressed by contributors are their own and not the view of The Hill

Americans are worried about energy costs, grid reliability and falling behind China. The Supreme Court is about to weigh in on something that touches all three.

The case, Suncor Energy v. Boulder County, is one of the numerous climate litigation cases seeking to hold energy producers financially responsible for the purported consequences of climate change. Supporters view such lawsuits as an accountability tool; however, a more appropriate view is that these cases are a means of legislating through litigation.

In this case, Boulder, Colo., seeks to supplant established federal law with Colorado tort law. Federal law, under the Clean Air Act, Clean Water Act, and other federal statutes and regulations, has long established the environmental standards that must be met by industrial and other operations that affect the environment. As they should be, these laws have been properly debated and passed by duly elected federal lawmakers. Colorado now seeks to start a patchwork state approach by subjecting businesses to local standards.

Regardless of where one stands, every American should agree that lawsuits seeking billions of dollars should rest on solid, established law, as well as sound and current evidence.

But a recent shift in climate science puts some of those foundational assumptions in question.

For years, one of the most influential climate scenarios in public policy debates was known as RCP8.5. RCP 8.5 projected a future characterized by dramatically rising coal consumption and rapidly increasing greenhouse gas emissions. Some of the most severe warming projections ever modeled resulted therefrom. The scenario became a foundation for thousands of papers and was often cited in discussions of climate damages.

However, in late May, an international group of scientists tasked with creating the scenario framework for the next Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) — the United Nations body responsible for assessing the science related to climate change — excluded the RCP8.5-like pathway from the framework scenarios. It did so due to the emerging consensus among the climatologists that such a scenario is no longer realistic, if indeed it ever was.

The RCP8.5 scenario relied heavily on the assumption that global coal use would grow significantly over the coming century. The present situation demonstrates that the potential for this outcome is not realistic anymore as technological development, demographic shifts, market conditions, and growth of renewable energy sources make it highly unlikely.

This is not necessarily a challenge to the basic science of climate change nor to the reality that emissions carry consequences. Serious people can acknowledge — and agree to disagree with the severity of — both realities while also recognizing that the assumptions used to estimate future damages matter.

The Boulder lawsuit, like many similar cases filed around the country, seeks to impose potentially massive financial liability on energy producers based on projections of future climate-related harms. But those projections depend on assumptions about future emissions, future temperatures and future economic impacts. Naturally, if a new scientific “consensus” is emerging about the assumptions, it makes sense to reassess the damages, too. Factoring in accurate assumptions and using reliable modeling methods are both crucial if we are to make reliable climate predictions.

That is how every other area of law works. Medical experts, engineers and economists are expected to update their analyses when new evidence emerges and old assumptions no longer hold. Climate litigation should be no different.

In a broader context, it is not just a specific court case we are talking about. Similar lawsuits have been filed in other states by municipalities seeking billions in retroactive damages from companies producing energy in this legal, highly regulated, and economically vital industry.

Electricity demand is climbing fast, driven by AI infrastructure, advanced manufacturing, data centers, and general economic growth, while the country is simultaneously trying to compete with China and rebuild its industrial base.

Those challenges require serious policy debates. They should be resolved through the democratic process, where elected officials weigh competing priorities and voters can hold them accountable. They should not be made in the courtrooms based on scientific assumptions that are increasingly changing.

Science evolves, models improve and assumptions are refined. That is a strength of science, not a weakness. The legal system should be willing to do the same.

Before courts entertain sweeping climate liability claims that could reshape America’s energy future, they should ask whether the science underlying those claims reflects what researchers actually know today.

Bud Albright served as an assistant U.S. attorney and under secretary of Energy.