The U.S. Supreme Court heard oral argument on Monday in Suncor Energy Inc. v. County Commissioners of Boulder County, a case involving an effort by the city and county of Boulder, Colorado, to hold fossil-fuel companies accountable for the damage caused by years of public deception about their products’ contribution to climate change.

This case is just one of dozens of similar suits, none of which has yet proceeded to trial due to venue disputes and other procedural wrangling.  As SLS Professor Matthew Sanders explained in a recent ABA Trends article, these suits allege an array of state common-law claims like public and private nuisance, trespass, product liability, negligence, failure to warn, and deceptive marketing. “Common to many of them,” Sanders writes, “is the allegation of deception: that fossil-fuel companies have long known that their products—oil and its many derivatives—are a primary driver of climate change, and yet the companies continued to sell them anyway.”

Boulder and other climate litigation proponents liken these cases to the 1990s lawsuits on the harmful effects of tobacco and the more recent opioid litigation. Those efforts, based in part on an argument that the tobacco and opioid companies deceived consumers, led to massive settlements. At least one liberal Justice appeared to sympathize with these deception arguments: “I’m waiting to see the distinction,” Justice Kagan told the lawyer for the energy companies during oral argument. “This is the same kind of lawsuit, against the same kind of actor for the same kind of harm.”

Justice Kagan did, however, seem to engage with fossil-fuel petitioners’ arguments that the EPA’s Clean Air Act authority to regulate greenhouse gas pollution at the federal level preempts Boulder’s state-law claims for damages. This suggests that while she may be open to deception claims generally, she may have some skepticism about deception claims based on emissions in particular. (An interesting wrinkle here, of course, is that the EPA has recently disclaimed the power to regulate greenhouse gases, leading Justice Gorsuch to ask whether “nobody can sue at all?” – the question we’ve all been wondering as the Trump administration continues to ignore climate realities and courts continue to beat back state and local attempts to take up the mantle.)

Other justices, namely Justice Kavanaugh, latched onto ExxonMobil and Suncor’s constitutional structural argument that the regulation of carbon emissions is inherently a federal issue, since pollution can waft across state and international borders.

It’s possible, however, that the Court will not have to grapple with any of these substantive arguments: Both Thomas and Jackson suggested in their questioning that the case, which is still in the early stages, is not yet ripe for Supreme Court review. This would offer a procedural escape valve for the Court.

There is also potential for a 4-4 deadlock because Justice Samuel Alito recused himself from the case due to his energy stock holdings. This would leave Colorado Supreme Court’s ruling – denying the fossil-fuel companies’ motion to dismiss on preemption grounds – untouched.

The stakes here are high: If the Supreme Court does not let Boulder’s case proceed to trial, either on preemption grounds or on some other, albeit less likely, constitutional theory, many of the other climate lawsuits making their way through the courts would be derailed. And the court’s reasoning could have other far-reaching consequences for other industries, shielding Big Tech and others from being held accountable if they deceive the public about the risks of their products.

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Molly Loughney Melius is the Executive Director of the Environmental and Natural Resources Law & Policy Program and Lecturer in Law at Stanford Law School.

This blog post represents the views of the individual author(s) and does not necessarily reflect the views of the Environmental and Natural Resources Law & Policy Program or Stanford Law School or University.