A Supreme Court shield for Big Oil would come at your expense

When we talk about someone wanting to both eat their cake and still have it, we’re using a logical impossibility to highlight the cake-haver’s delusional mental state. When it comes to the fossil-fuel industry’s cake and its treatment by President Donald Trump’s administration and possibly the Supreme Court, almost anything is literally possible, logic be damned.

Earlier this week, at the urging of Trump’s Justice Department, the Supreme Court agreed to consider an appeal by Exxon Mobil Corp. and Suncor Energy Inc. to throw out a lawsuit brought by the city and county of Boulder, Colorado, that seeks to recoup climate-change damage from the oil giants. It’s not clear whether the high court will ultimately take the case because it also asked the two sides to present arguments on whether the case is truly ready to be heard. Those are expected in the fall.

But the mere fact that the Supreme Court, which has passed on many similar cases before, has finally turned its gaze in Boulder’s direction is not reassuring to Boulder nor to the many other local and state governments taking legal action to help pay for the environmental chaos caused by global heating. The Supreme Court’s attention creates the very real possibility that conservative justices will find a way to give fossil-fuel companies a legal defense against all such actions.

Complicating matters is the fact that Trump’s Environmental Protection Agency has also declared that, contrary to its previous stance (not to mention earlier Supreme Court rulings and congressional declarations), it no longer considers greenhouse gases a dangerous pollutant needing regulation under the Clean Air Act of 1963.

The initial "endangerment finding" and the federal oversight it allowed has long been a useful legal shield for fossil-fuel companies against state and local lawsuits and rules. "You can’t bother us," they say. "That’s the EPA’s job." The EPA’s reversal of the endangerment finding would logically seem to destroy that shield — although the Trump administration has contorted itself to keep arguing the shield still exists. It’s Schrödinger’s Endangerment Cake: both eaten and not eaten.

Environmentalists have sued the EPA over its reversal, another argument sure to reach the Supreme Court. With six conservative justices, you’d think at least five would be inclined to find a way to ditch the precedent set in the court’s own 2007 ruling that laid the groundwork for the endangerment finding in the first place. (It was a 5-4 decision in which Chief Justice John G. Roberts dissented.)

So we could very well end up in a world where the Supreme Court rules EPA regulation of greenhouse gases is no longer valid, partially based on Roberts’ argument in 2007 that it didn’t make sense for a U.S. regulator to try to manage a global problem. That same court could then also turn around and use similar logic to say state and local governments can’t sue or regulate fossil-fuel companies, either. Or maybe the court will buy the industry’s argument that consumers of oil, gas and coal over the decades have been willing contributors to their own ultimate harm. However you slice this cake, it’s force majeure through and through.

Meanwhile, just to be on the safe side, the Trump administration is suing states that aren’t sufficiently friendly to Big Oil, and Republicans in Congress are cooking up a law shielding the industry forever. The trouble is that all of these actions are like hastily welding makeshift patches to a large boiler in which the pressure and temperature are rising to dangerous levels.

The U.S. has spent more than $7 trillion in extreme-weather damage in just the past 12 years, according to Bloomberg Intelligence. Even as it tries to outlaw fossil-fuel lawsuits that would help defray those costs, the Trump administration is also getting stingier with disaster relief to state and local governments. And it’s undermining programs to mitigate future damages. All of this is financially straining municipal borrowers.

If you want to know who will ultimately pay in this scenario, just look in the mirror. Even as your home-insurance rates rise, so will your taxes. All of this will drive down property values, especially in the places most at-risk from climate disasters. And that will hurt muni finances even more.

So the pressure to claw back money from an industry that lied for decades about the impact of its products will only keep growing and finding new outlets. The United Nations is considering a proposal to tax fossil-fuel companies, as some countries already do. Most importantly, the urge to transition to cleaner energy sources should only grow stronger. We can care less about the Supreme Court’s potentially flawed logic if we just apply our own.

This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. Mark Gongloff is a Bloomberg Opinion editor and columnist covering climate change. He previously worked for Fortune.com, the Huffington Post and The Wall Street Journal.