Under Chief Justice John Roberts, the U.S. Supreme Court has become infamous for its pro-business bias, as the conservative members have routinely authored opinions, such as Citizens United v. FEC, Burwell v. Hobby Lobby, and Loper Bright Enterprises v. Raimondo, that advance the interests of big business at the expense of the general welfare. But of all the industries that this court seems to have a soft spot for, the oil industry stands out. The recent disclosure of the so-called shadow docket papers—internal memos revealing how some of the justices maneuvered to halt an Obama-era rule to limit greenhouse gas emissions from power plants—reveal a deep antipathy to environmental and climate regulation even among some of the court’s supposedly more moderate conservatives.

The next opportunity for the court to deliver a landmark win to the oil industry is Suncor v. Boulder County, in which Boulder County sued oil majors in state court for the local damages caused by their climate-changing business. Such suits for damages are a bedrock of the rule of law and a in times of deregulation, but the oil and gas industry is hoping to close this pathway entirely by extracting their biggest favor yet from the court’s conservatives: nearly blanket immunity from liability for damages from their activities.

The defendants have pursued various strategies to have the case dismissed before reaching trial, including arguing that federal law preempts the legal claims raised in the lawsuit. When the Colorado Supreme Court ultimately rejected this argument, the companies appealed the decision to the U.S. Supreme Court.

The stakes of the case are high and extend well beyond the Boulder County lawsuit. The bill for climate damages is racking up quickly: Even Donald Trump’s federal government acknowledges that the pace of $100 billion climate disasters is increasing, and climate analysts estimate that unchecked warming could lead to large decreases in economic productivity.

Boulder County does not stand alone in sharing some of the costs of the oil companies’ conduct—there are thousands of similarly situated communities facing uncompensated damages. Normally, the law requires that the polluter, not the communities affected by tortious conduct, pay. When the government fails to protect these communities from damages in advance, as it has in the case of climate change, the court system serves as an essential guarantee that the communities will not be harmed twice—first in the damages themselves, and second in having to pay to fix the industry’s mess.

In the past, courts have supplied this important backstop in other widespread policy challenges, such as the public health threats of tobacco use and the opioid epidemic, that lacked adequate legislative or regulatory responses. Tobacco and opioid manufacturers have been brought to heel as much by private litigation as they have by public regulation. Closing the courthouse doors on climate-related lawsuits, as is being requested in Suncor, is naturally a holy grail for the oil industry.

Given the court’s demonstrated pro-fossil-fuel bias, the oil and gas companies undoubtedly expect to find a sympathetic audience for their federal preemption claims among the conservatives. But actually delivering that result will not be easy for the court. Doing so would require the justices to make heroic leaps of judicial activism and repudiate some long-standing legal principles about the limits of preemption and judicial power, many of which code conservative. In this regard, it is noteworthy that the court on its own asked the parties to the case to brief the question of standing, suggesting that some of the justices may be eager to give themselves a plausible exit strategy if giving the oil companies their blanket federal preemption turns out to be too hot to handle.

The conservative justices have good reason to be looking for an off-ramp. Federal preemption of lawsuits like Boulder County’s only works if there is some federal statute in place that does the preempting. Most recently, the court found that state failure-to-warn suits against Monsanto were by a federal law, but in that case, there was an express preemption clause barring such suits and a direct conflict between the duty to warn and the Environmental Protection Agency’s own label requirements. Because nothing like that even arguably exists here, the oil and gas companies are reduced to inviting the Supreme Court to invent new federal legal principles that will serve this function and be imposed by fiat by the court.

To convince the justices to take this leap, the companies invoke vague notions of the “structure” of the Constitution since they can point to no constitutional text or tradition that forecloses climate deception lawsuits. Specifically, they argue that climate change is a uniquely interstate issue, making it practically impossible for any single state’s courts to take meaningful policy action in response without unduly interfering in the affairs of other states. This argument would essentially function as a variation on the so-called dormant commerce clause by inferring implied constitutional constraints on states’ sovereign powers.

Read more This Weekend’s Storm Was a Preview of What’s to Come

Notably, justices from across the political spectrum have taken a dim view of these types of arguments in recent cases. In a 2023 case called National Pork Producers Council v. Ross, Justice Neil Gorsuch wrote the lead opinion rejecting an expansive reading of the dormant commerce clause, upholding California regulations governing industrial poultry operations. While the end result was the validation of ordinarily frowned-upon state regulation, the conservative principles animating Gorsuch’s opinion are clear—a skepticism of non-textual, judge-made constitutional law and the protection of state power—and cut against the oil industry’s arguments in Suncor.

Still, Big Oil is counting on the court’s conservatives to walk away from these conservative principles, even if they were unwilling to do so for Big Ag, setting up a test of the court’s loyalty to the industry.

One might think, then, that most of the focus of the court will be on the oil industry’s stretch arguments that the Clean Air Act implicitly, rather than expressly, preempts these lawsuits by establishing a comprehensive regulatory scheme for greenhouse gas emissions. But even here the justices face an uphill battle to block Boulder County’s lawsuit.

The Trump administration recently knocked the legs out of the implied preemption argument by disclaiming any authority under the Clean Air Act to regulate greenhouse gas emissions. Even setting that aside, the conservative justices might still not be persuaded. The implied preemption argument requires the justices to expansively read the federal government’s regulatory authority to address climate change. But this cuts against several of the Supreme Court’s recent statutory interpretation innovations, such as the major questions doctrine, all of which demand miserly readings of regulatory statutes like the Clean Air Act and which have been specifically invoked to trim the federal government’s authority to regulate climate change.

In addition, the conservative members have been reluctant to accept arguments of implied federal preemption in similar contexts. Writing again for the court in a plurality opinion joined by Justices Clarence Thomas and Brett Kavanaugh, Gorsuch rejected this argument in the 2018 case Virginia Uranium v. Warren. There, they concluded that the existence of a federal law establishing a comprehensive regulatory framework for the processing, use, and disposal of uranium did not provide a sufficient basis for inferring preemption of something like Virginia’s ban on uranium mining.

At this point, the signals are mixed as to whether the pull of the conservative justices’ pro-oil bias will be enough to propel them over these obstacles. Justice Samuel Alito’s fierce refusal to recuse himself from the case despite his obvious financial conflicts of interest suggest he is willing to do what it takes to write the industry’s federal preemption arguments into law. But the added jurisdiction question noted above suggests that other conservative justices are on the fence.

What is clear, though, is that the oral arguments in Suncor will be especially important to watch. The lines of questioning pursued by Roberts, Gorsuch, Thomas, Amy Coney Barrett, and Kavanaugh might offer clues on whether they are leaning against a determination of federal preemption—or whether they are keen to avoid a ruling on the merits at all by finding a lack of jurisdiction. In this regard, it will be particularly instructive to see if any of them press the oil and gas company attorneys or the Trump administration’s solicitor—which the court granted some oral argument time—on how they might distinguish this case from Ross or Virginia Uranium.

Given the high stakes involved, Suncor’s oral arguments will be one of the most closely watched in the new term. The results could shape responses to climate change for decades to come.

Read more So You’re Saying There’s a Chance