On Sept. 28, Justice Samuel Alito recused himself from one of the term’s most important cases: Suncor Energy Inc. v. County Commissioners of Boulder County. As I have previously discussed, the case involving the liability of energy companies for nuisance actions tied to climate change could have sweeping implications for the country. Justice Alito should be commended for avoiding even the appearance of a personal interest or a conflict in the case. However, the controversy should prompt the court to explore a longstanding problem for justices holding financial interests that can conflict with their duties. The solution is simple: Justices need to use blind trusts.
Supreme Court Clerk Scott Harris released a letter revealing that Alito decided he “will not continue to participate” in Suncor Energy Inc. v. County Commissioners of Boulder County.
Boulder, sued energy companies under “theories of public and private nuisance, trespass, unjust enrichment, and civil conspiracy, claiming that they knowingly contributed to while misleading the public about its impacts.” The Colorado Supreme Court ruled for the city and the county in finding that such lawsuits are not barred by federal preemption. If such lawsuits are allowed to go forward, it would expose companies to potentially thousands of climate change lawsuits. Oral argument is set for Oct. 5.
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The recusal is a blow for challengers who believe that the opinion could be close, and Alito was believed to be on the side of barring such actions. It is now down to eight justices, so a single loss of another conservative could result in a 4-4 tie â leaving the lower court decision unchanged.
While the letter did not give a reason, critics had called for Alito’s recusal due to his financial interest in energy companies which could benefit from the decision.
That included 30 organizations which jointly asked the Senate Judiciary Committee to investigate his involvement in the case. Notably, the court responded to media inquiries by declaring that Alito had no financial interest in any party to the case and that legal counsel had told him that there is no need to recuse himself.
Yet, the standard is whether a reasonable person could question his impartiality and, while he had no interest in the parties, he appears to have investments in other energy companies. Alito previously withdrew shortly before arguments in a separate oil industry case earlier this year.
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The Ethics in Government Act of 1978 (EIGA) established financial disclosure reporting requirements for many high-level government officials and employees, including the Justices of the Supreme Court. Supreme Court Justices file publicly available financial disclosure statements that report certain financial transactions. Howeve
