With 28 days until the midterms, polling suggests that Democrats have an excellent chance of taking back the House in November. Flipping the Senate, once considered a long shot, is starting to look realistic. Come November, the party may have majorities in both chambers that will give it far more leverage than in the first half of this Donald Trump presidency. 

If voters entrust them with power, though, how will Democrats use it? Their legislative options will be limited, with Trump still in the White House, but party leadership has gestured at a platform focusing on affordability, healthcare, and investigations into the Trump administration. 

Still, many of the particulars are missing — which Puck News congressional correspondent Marianna Sotomayor says is by design. As Sotomayor explains, House Minority Leader Hakeem Jeffries of New York, the likely next speaker of the House, will want to present a unified front ahead of the election, which means no infighting over the messy details of policy. The real work can start after they take the House.

To break it all down, Today, Explained co-host Sean Rameswaram spoke with Sotomayor about how Democrats are feeling ahead of the midterms, the prospect of a Speaker Jeffries, and the Democratic to-do list.

Below is an excerpt of their conversation, edited for length and clarity. There’s much more in the full podcast, so listen to Today, Explained wherever you get your podcasts, including Apple Podcasts, Pandora, and Spotify.

What are the vibes in the House around these midterms?

The vibes, if you ask Democrats, are incredibly strong. If anything, it’s mostly Democrats trying to tell each other, “Don’t oversell how amazing of a night we’re going to have.” Genuinely, in the number of conversations that I’ve been having with strategists, lawmakers, those seeking office themselves, the question isn’t, “Will Democrats flip the House majority?” anymore. It’s “Democrats will flip the House majority. How big is that majority going to be?”

They want to play in deep Trump districts, and they’ve been doing that in Trump +5, Trump +10 districts that he won in ’24. Now they’re like, “What about Trump +21 districts?” And some people are like, “Whoa, whoa, whoa, guys, let’s not get too overly excited” because everybody kind of has some PTSD from the ’22 midterms — that’s when Republicans ended up taking up the House. 

[In 2022], Republicans were in the same place around this time where they were like, “Oh my gosh, we’re going to flip 30-plus seats.” And then they only gained a five-seat majority. And we saw how difficult that [majority] was for Republicans, and frankly, it continues to be.

You would think that the Democrats would be trying to sell themselves based on, “Here’s what we’re going to do if we flip the House and the Senate.” But I don’t hear a ton of that. What are this party’s priorities if they take back the House?

You’re totally spot-on. It’s more or less vague. I’m sure Democrats would argue, no, we’re being really specific. And sure, we do know that if they take the majority, there’s three planks, and this is what Jeffries outlined even a year ago, and [Senate Minority Leader Chuck] Schumer, to some extent, has also adopted these planks. They want to tackle affordability, healthcare, and corruption.

Affordability means a number of different things. And the way that Jeffries is looking at it is you have your first 100 hours, your 100 days, and then your first year. And we don’t really know what is going to come up in those 100 days and in the first year, but within those 100 hours, he’s starting to give us some hints. 

There are some issues where they could easily, probably very quickly, pass. Those Medicaid tax credits that are going to expire just in the next couple of months because of the one Big Beautiful Bill, [for example].

You also have the corruption part of this where a number of committee Democrats have been taking notes. It’s like, oh, the Trump admin did that? Okay, going to write that down so I can remember to circle back when we have the majority. 

I’ve been told to expect subpoenas to start being sent out to administration officials, to Cabinet officials, to potential corporations that have cozied up too close to the Trump administration, pretty much after the House majority is declared.

Is it all but certain that Hakeem Jeffries will be Speaker if the Democrats win?

From inside of the Capitol, all that I’ve heard is that he is going to be speaker.

That being said, a number of progressives like Alexandria Ocasio-Cortez, Delia Ramirez, a number of those members are already talking to a number of the progressives who are coming in, who are kind of being a little coy with whether they’re going to vote for Jeffries. 

Their message has been, look, Democrats need to stay united. We have differences of opinions on a number of fronts, but we need to be united, we need to govern, and we can’t get to any of that until we elect a speaker.

I remember Nancy Pelosi didn’t really want to spend the years of Trump’s first term investigating and impeaching, but the nature of Trump forced her to ultimately do that. Do you think Jeffries has learned anything from how his predecessor approached the president? 

To your question about impeachment, it is fascinating to see where House Democrats are right now versus where they were back then. I do not hear “let’s impeach Trump” that much from the 200 and something Democrats that are currently in office. And the reason why is because, one, there is the thinking that, okay, the Constitution says he can only be a two-term president, and probably the Supreme Court’s going to rule that he can’t run again [if he tries]. So let’s not get into that. 

But because Democrats are already thinking, planning, strategizing all of their investigations, I think we should expect possible impeachments against Cabinet officials. [Defense Secretary] Pete Hegseth is a name I keep hearing a lot, because there’s a number of Republicans who are incredibly upset with him. 

Democrats are thinking a little bit more strategically in terms of if we are going to impeach, or if we’re really going to try to subpoena or hold people in contempt of Congress, will we have Republicans backing us up in those certain cases? 

These three planks — affordability, healthcare, and holding the crooks accountable — those could have been the planks in month one or month two of the second Trump term. 

I wonder how much motivation there is in the caucus to take on some of the issues that have come up in the last year or so. ICE comes to mind, Iran, spending billions of dollars on vanity projects around DC, making billions of dollars off of his own name and brand while in office. How much are Democrats pushing for the issues that maybe have struck a chord more recently?

Behind the scenes, actually, they’ve been pushing those things a lot. But my understanding is that Jeffries doesn’t necessarily want to broadcast anything that could show any divisions among Democrats right now. He really just wants to project that Democrats are united on these three issues. 

Everybody else is like, okay, but there’s so many more things that we have to prove, and we should get done and we should show contrast with Republicans moving forward. And my understanding is his idea of it is we will get to those issues after the election. They’re not even worth debating pre-election because first we have to win.

No one is trying to sugarcoat how hard it is going to be to tackle a number of these issues where Democrats aren’t united. And there’s conversations about how the size of the majority affects that, right? Because if you have a bigger majority, that means Democrats flip seats in districts that Trump won by a whole lot. So you’re going to get a lot more centrist Democrats in the caucus. If it’s a smaller majority, that’s really going to help a number of those Democratic socialist candidates coming in have a much stronger voice. 

All of those dynamics are going to be on full display and it all, again, is determinative on what happens in November.

This story appeared in Today, Explained, a daily newsletter that helps you understand the most compelling news and stories of the day. Subscribe here.

The Trumpy tech billionaire Larry Ellison has wrapped his tentacles around the US branch of TikTok, an entire Hawaiian island — and now, officially, a very large share of the world’s news and entertainment production. 

On Tuesday, the media behemoth Paramount — which is headed by Ellison’s son — completed its $110 billion mega-merger with Warner Bros. Discovery, in a controversial and hard-fought deal backed by the elder Ellison. 

The merger combines a sprawling collection of brands, including HBO, CBS, and Paramount Pictures under one rebranded umbrella. It also concentrates much of the US film and television business in the hands of just five companies. Unions, theater owners, media watchdogs, and several state attorneys general were accordingly concerned: Combining two major competitors in any industry inherently concentrates power over what gets made, what consumers pay, and what workers earn. 

Critics of this deal argued that, in the media industry, the fallout could be particularly intense. In addition to layoffs, opponents warned the new company could produce fewer, more boring movies, raise subscription prices for its combined streaming services, and inject political bias into news programs on CBS and CNN. (We’ll review the evidence for some of these claims in a minute.) 

The new company agreed to address some of these concerns in a September 21 settlement agreement with 12 state attorneys general, which let the merger proceed. A group of consumers also launched a last-minute bid to block the deal, but the Supreme Court declined their emergency request on Monday.

Go a little deeper

One of the conditions of that September AG settlement was a minimum film guarantee: The merged company agreed to release at least 30 films a year for the first two years after the merger, then 32 films a year for three years after that. The requirement was designed to address one of the major fears around the deal: namely, that mergers can result in fewer films. 

Recent history, and the basic economics of acquisitions, help explain the concern. Debt-financed acquisitions, like this one, can leave companies under pressure to cut costs. There are a few ways to do that, such as producing fewer new films or cancelling unreleased films that they don’t want to promote. According to Cinema United, a theater industry group, Disney and 21st Century Fox put out about half as many theatrical releases after their 2019 merger as they did before it, excluding 2020 and 2021.

But that doesn’t mean the new Paramount/Warner Brothers (formally rebranded Skydance) would do the same thing. Disney, for instance, makes a lot of its money from properties and products that aren’t movies. When the European Commission took up the question of whether this new merger would reduce output earlier this year, it concluded that Paramount and Warner were comparatively more dependent on film revenue. In other words, cutting back the number of movies they make post-merger “would not make economic sense” the way it did for Disney after its acquisition. 

Still, consolidation could certainly change which movies get produced. Critics argue that fewer studios mean fewer opportunities for Hollywood creatives and less pressure on the remaining players to take creative risks.

In a report released over the summer, academics with the Media and Consolidation Research Organization at UC San Diego warned this particular deal would likely result in less diverse and more formulaic films. I, for one, won’t be holding my breath for a Larry Ellison biopic.

One link for later

➨ Resist the temptation of the Prime Day “deal.” Today marks the start of Amazon’s twice-yearly discount days, which have spilled over to many other retailers. But before you load up your cart, double-check that the sale is actually a good one…and that you truly want or need the item in question. The psychological rush of scoring a deal is so strong that it can lead you to buy things you never planned to purchase.

Before you go…

• Did you know…that Hollywood (and communism) brought the Reagans together? The pair met when Ronald was the president of the Screen Actors Guild and Nancy was a young actress trying to prove she wasn’t a communist sympathizer. 
• Today’s trivia: What is the 24th and final letter of the Greek alphabet? (You can find this and other brain puzzles in Vox’s daily crossword. Look for the answer in tomorrow’s edition.)
• Yesterday’s trivia: Yesterday we asked you for the name of the Indian Ocean island where the UK displaced inhabitants roughly 55 years ago. That would be Diego Garcia, which was forcibly cleared to make way for a joint US-UK naval base. 

Jim Bakker, famed PTL preacher who fell from grace, dies

A grove of coast redwood trees is a forest of forests. Individual trees can live for thousands of years, and as they grow, their canopies develop mats of soils and ferns, creating something like a second forest floor hundreds of feet above the ground.

These elevated ecosystems are home to creatures like the wandering salamander, which can spend its entire life cycle on top of a single tree, and the marbled murrelet, a seabird whose nesting habits were a mystery until one day in 1974, when a tree-trimmer stumbled upon a nest 150 feet above the ground. Sometimes a stray seed — a sitka spruce or oak or even another redwood — finds its way up a massive redwood and grows into another tree entirely, nestled among the branches of a giant. 

For millennia, redwoods have been the anchors of this incredibly stable ecosystem; they can even survive wildfires that devastate other tree species. They’ve also been the source of plenty of human inspiration and drive millions of dollars to California’s tourist economy. But like other living things, they aren’t immune to warming temperatures, and it turns out these trees have a particular weak spot. 

A new study from researchers at University of California Davis, using measurements taken twice a month for two years, found that coast redwood leaves essentially dial down their photosynthesis during periods of extreme heat. This means trees are slowing their “breathing” and “eating” because they can’t cool down fast enough when temperatures rise. It’s a problem that’s only going to get worse as climate change continues to drive global temperatures up, and it raises urgent questions about the future of these iconic trees and the layers of life that live on and around their shadow-dappled lengths. 

How a redwood fasts

To understand what’s happening to the redwoods — and what that may mean for the species that rely on them — first we need to take a quick foray into tree anatomy. Trees use the pores in their leaves, stomata, to do two things: take carbon dioxide in, and let water out. Open stomata mean the tree is “breathing” in carbon dioxide and photosynthesizing, but probably also letting water out. Closed stomata mean the tree is conserving water but also slowing down its photosynthesis, since it isn’t taking in any carbon dioxide. 

“Because leaves are a physical, light-absorbing object, they heat up just like asphalt would in the sun,” said Lily Klinek, a PhD student at UC Davis who was the lead author on the study. 

“They’re heating up faster than the air around them,” she said. “And one way that they can cope with this is by opening their stomata and allowing water to transpire out of the leaf, which is kind of like the way that humans sweat. When water evaporates off our skin, it cools us down, and it’s the same for leaves. But they can only really do that if they have enough water to lose.”

Klinek and her colleagues studied coast redwoods in Mendocino County, near the southern part of their range, where the researchers used specialized instruments to measure whether or not individual leaves were photosynthesizing. During heat waves, they found, coast redwoods hit a point where they can’t cool down fast enough, and they just keep their stomata closed. While that saves water, it also means the tree isn’t taking in more carbon — which means it’s not “eating” or building up energy stores it can use to keep growing. 

This may sound like a technicality of tree physiology. But it could have a big impact on these forests, creating a vicious cycle where trees don’t have enough carbon stored to replenish their leaves in the future, which means they won’t be able to photosynthesize as efficiently, which will starve them even further, repeating until trees eventually die. And while this sort of behavior has been observed in tropical trees, it’s the first time anyone has studied how coast redwoods respond to the same heat stress. 

“The term people use is carbon starvation,” said Chris Still, a forest ecologist at Oregon State University who didn’t participate in the study. “Leaves can be expensive to build for a plant.” 

Most of the redwoods in California and the Pacific Northwest nowadays are new-growth forests planted in the last couple of centuries. That means the trees are relatively hungry, like growing adolescents, compared to their old-growth cousins, so they need to suck in lots of carbon dioxide to grow taller. 

Redwoods are also incredibly good at storing carbon. Thanks to their bulk and long lives, they store more carbon dioxide per acre than any other forest in the world. “Not only is it negative feedback on the climate system itself, with less carbon sequestration from these trees and forests, but the trees themselves are going to obviously not grow as big,” said Anthony Ambrose, a plant physiological ecologist and co-founder of the Ancient Forest Society. So even if the trees survive, they might not have as much space for fern and soil mats, which means less habitat for the creatures that live in them, and they may not grow as tall as they once used to, which could hurt them in another way. 

The fog of old forests

A central threat to these trees, Klinek explained, is that in addition to the heat stress, they may also lose a crucial source of hydration and protection: Coast redwoods have an intricate relationship with the fogs of their native Northern California and the Pacific Northwest. The trees are so tall that their canopies reach high into fog layers, where they can sip water directly from the sky. The fog also shades the trees from the sun and helps coast redwoods create their own microclimate, which is why these forests are noticeably cooler than the areas adjacent to them. But warmer oceans and drier air are making fog more sporadic, which means the trees are missing a crucial source of relief from heat that is only getting more intense. 

“It’s kind of a double whammy,” said Todd Dawson, a plant ecophysiologist at the University of California Berkeley, who also didn’t participate in the study. “They’re running out of water and also getting this heat stress,” he said. “They’re used to living in a very narrow temperature range of 8 to 27 degrees Celsius (about 46 to 80 degrees Fahrenheit). California, like everywhere, has been getting long periods of much warmer days than we’ve ever experienced, and now the fog, which is normally kind of like an air conditioner, has also declined between 30 and 40 percent.” 

These temperature swings also impact the organisms living high up in the trees. “If they experience really excessive heat throughout the summer,” Ambrose said, “then the soil mats and ferns will probably dry out much faster. And then those salamanders and birds might not be able to live there. So we’ll see cascading effects through the whole ecosystem at that point.”

Klinek said, the trees seem to be doing okay after the heat passes; while the leaves she and her team looked at over their two-year study didn’t acclimate to the heat, they also didn’t lose their capacity to photosynthesize after the heat passed. While that’s a bit of hopeful news, it doesn’t reduce the urgency of the need to better understand the impact of climate change on these trees, and to reduce the warming itself. 

“Right now the temperatures are coming back to normal in the fall and winter and letting the trees recover,” Klinek said. “But in five or 10 years, if temperatures are even hotter and heat waves are even more frequent, we don’t really know if there would be a recovery.”

For now, the salamanders and seabirds still have their homes high atop the coast redwoods. But we’re a part of the redwoods’ larger ecosystem too, even if we don’t live near them — they, like all trees, are key to keeping our planet hospitable. The trees Klinek studied have the potential to live for more than a thousand years. The question is if we’ll let them. 

Labor leaders argue that the billionaires tax includes a loophole that would allow state lawmakers to tax the savings and retirement accounts and home equity of all Californians.

A Saudi-led coalition has launched what it called a major campaign against Iran-backed Houthi rebels in Yemen.

This story appeared in The Logoff, a daily newsletter that helps you stay informed about the Trump administration without letting political news take over your life. Subscribe here.

Welcome to The Logoff: Donald Trump is trying to bribe his way out of a midterm disaster. 

What’s happening? Over the weekend, Trump announced a plan to send $90 payments to more than 20 million Americans 65 years and older, drawing from a pool of money called the Medicare Improvement Fund. 

Trump, in a post, described the payments as part of a strategy to “substantially LOWER costs for our Seniors” — but the money, a single nonrecurring payment set to go out this month, was reportedly already earmarked for other programs before Trump decided to redirect it. 

Why now? Trump, facing a potentially catastrophic midterms for his party, has been looking for any way to turn out (Republican) voters — up to and including offering them cash, either implicitly or explicitly, in return for their support. 

In the implicit category: these $90 payments and a smaller number of $500 Affordable Care Act refunds (fewer than 1 million) that began going out last week. 

Much more explicitly, however, he’s also promising Americans $5,000 if they reelect Republicans in the midterms.

Trump has directly linked Medicare payments with the promised checks: “Because I delivered on this very important issue for the American People,” he wrote in a post, “they can also rest assured the highly popular $5,000 Trump Dividend will be distributed to every U.S. Citizen if, and when, the Republicans win the Midterm Elections!”

Will it work? It’s hard to say for sure, but it feels unlikely: The Medicare payments are relatively small, while the ACA payments are going out to relatively few voters. Polling suggests that voters are not fans of the promised $5,000 checks, and even fewer believe that they’re going to happen (they’re almost certainly correct). 

What else should I know? Direct payments to Americans — real or promised — are not the only way Trump is trying to sway the midterms in his favor. He’s also continuing to spend taxpayer dollars on a propagandistic ad campaign, which he personally directed.

And with that, it’s time to log off…

Vox’s Unexplainable podcast team is back with a deeply controversial new question: What color are tennis balls? Personally, I think yellow, but whatever your opinion, it’s a fascinating conversation. You can listen here, or read a partial transcript here.

Thanks for reading, have a great evening, and we’ll see you tomorrow!

This story appeared in Today, Explained, a daily newsletter that helps you understand the most compelling news and stories of the day. Subscribe here.

The death of a 28-year-old lab tech halfway around the world is not typically the sort of thing the White House monitors. 

But when that tech dies of severe pneumonia…while working at a Siberian plague research lab…foreign governments (and pretty much everyone in my timeline) tend to pay more attention.  

The World Health Organization says that there’s little cause for concern, to be clear. Testing has turned up no connection between the woman’s work and her cause of death. 

And even if she did contract pneumonic plague, that’s hardly a doomsday scenario. The plague comes in three flavors — bubonic, septicemic, and pneumonic — and they all crop up from time to time, particularly in places like Central Asia and Africa. If caught early, pneumonic plague is typically curable with common antibiotics. A man in Arizona caught the disease from his cat in 2025, for instance, but didn’t spread it to anyone else. 

Of course, the real fear (and the reason so many people are talking about this today, I suspect) is that Russia has, at various times in its history, worked to develop more deadly and contagious forms of plague for use as a biological weapon. 

There’s no evidence linking that program to this lab or this death in Siberia. Still, the general threat of biological warfare is so ominous and urgent that now seems like a worthwhile time to understand it a bit better.

Go a little deeper

In her very recent and slightly spooky book, Biological War: A Scenario, journalist Annie Jacobsen lays out how world governments and health authorities are poised to respond to the hypothetical leak of a weaponized pneumonic plague from a Russian lab. At the risk of being euphemistic here, let me say that she concludes things would not go well. 

But wait! There’s even more doom and gloom where that thought experiment came from. AI chatbots have made it hypothetically possible for more-or-less ordinary people to grasp the research and techniques they’d need to hack together their own biological weapons. 

Just last month, the AI giant Anthropic disclosed five cases where scientists had tried to use its software on research that could have been used in weapons development. And while the company apparently shut those attempts down, their mere existence is fairly frightening.

Can anything be done about these risks, now that they’re here? My colleague Noel King asked Jacobsen that very question in early September. Jacobsen essentially said that the public needs to demand policies aimed at avoiding the “nightmare scenario,” whether that’s an inadvertent lab leak or terrorist attack. Such policies might include things like independent testing of AI models or stricter licensing requirements for high-risk labs. 

But it’s unclear what authority could rein in bad state-level actors. And it’s hard to imagine a public upswell for such niche scientific regulations, particularly at a moment when we don’t lack for other doomsday threats. For now, I suppose, I’ll take (partial, provisional) solace in the fact that this Russian situation doesn’t look like one of them. 

One link for later

➨ Curtail your catastrophizing. Catastrophizing is a common thought pattern where you assume the worst possible scenario. (For instance, perhaps you read about a quarantine in Russia and began to fear for the end of the world!) Catastrophic thinking can help prepare us for difficult or frightening situations, but it can also be a major source of stress. Try interrogating your doomsday thoughts and noting when the worst case doesn’t come to pass. 

Before you go…

• Did you know…that, according to some physicists, glass defies categorization as a simple liquid, solid, or gas? It looks like a solid, but its molecular structure is more like a liquid. 
• Today’s trivia: Between 1968 and 1973, the British government forcibly removed the native inhabitants from which Indian Ocean island? (You can find this and other brain puzzles in Vox’s daily crossword. Look for the answer in tomorrow’s edition.)
• Yesterday’s trivia: Last week we asked you what musical note is equivalent to a G sharp. That would be A flat. 

Inside Chief Justice John Roberts are two wolves.

The first wolf is a staunch conservative who spent much of his career litigating on behalf of corporate interests. This wolf looks at a series of climate change lawsuits that could potentially cost the oil industry billions of dollars or more, and recoils in horror.

The second wolf is a judge tasked with following the law wherever it leads. And that wolf seemed baffled by the oil industry’s arguments in Suncor Energy v. County Commissioners of Boulder County, a Supreme Court case where two oil companies are asking the justices to shut down dozens of climate change lawsuits.

The Court’s decision in Suncor is likely to shape the future of climate litigation in the United States. If the oil industry prevails, that will probably shut down climate change-related suits in state courts — and it may shut them down entirely because it is unclear whether federal law allows these suits to proceed in federal court. If the oil industry loses, by contrast, it could face dozens of suits in state courts across the country seeking billions of dollars or more.

And the outcome in Suncor is likely to turn on which wolf shows up to the justices’ conference on how to decide the case. Roberts, who asked the most ambiguous questions at Monday’s oral argument in Suncor, clearly wants these lawsuits to disappear. But he also appeared doubtful that the oil companies’ weak legal arguments will allow him to make that disappearing act happen.

Notably, Justice Samuel Alito, who owns stock in oil and gas companies, is recused from hearing the case. So, in the likely event that all three of the Court’s Democrats hold together against the oil companies, Roberts would split the Court 4-4 if he decides to join them. That would leave the Court unable to render a decision, and a lower court opinion, which rejected the oil companies’ bid for lawsuit immunity, would remain in effect.

That said, at least two other justices asked questions suggesting that their votes may potentially be in play. Justice Clarence Thomas, who otherwise appeared sympathetic to the oil companies, repeatedly asked whether his Court has jurisdiction to hear Suncor in the first place. Meanwhile, while most of Democratic Justice Elena Kagan’s questions seemed to favor allowing the climate change lawsuits to proceed, she did ask some questions at the end that indicated that she may be looking for a narrow reason to hand the oil companies a win.

The bottom line is that it is difficult to predict how this case will turn out, as more than one justice asked questions that suggest that their vote is, at least, in play. But the outcome is likely to hinge upon the tension within Roberts — who both signaled that he wants the oil companies to win, but who also expressed deep skepticism of their primary legal argument.

So what is Suncor actually about?

Suncor is one of many lawsuits brought by state or local governments (in this case, the plaintiff is Boulder, Colorado) who’ve sued oil companies claiming that those companies should be liable for the harms caused by climate change within those governments’ jurisdictions. In this particular case, the defendants are Exxon Mobil and Suncor, a company that operates two oil refineries in Colorado. 

The lawyer for these two companies, Kannon Shanmugam, told the justices that there are about 60 similar cases brought by municipal governments throughout the country. And, in one of his more pro-oil moments during Monday’s oral argument, Roberts predicted that if Boulder wins in the Supreme Court, there will be numerous other copycat lawsuits filed by other municipalities.

The question in Suncor is whether state courts, including Colorado’s own courts, are forbidden from hearing these sorts of climate change lawsuits.

As Roberts pointed out in one of his less pro-oil moments during Monday’s argument, “there are a lot of familiar situations where conduct outside of a state has broad effects on other states…and yet we allow the state courts in a particular state to bring litigation.” He pointed to “mass tort” suits and “complaints about operations of the internet” as two examples where state courts hear lawsuits involving harms that arise across state borders.

The oil companies’ primary argument is that suits involving air and water pollution are special. But their evidence supporting this argument is confusing and difficult to parse. 

Briefly, the oil companies point to several cases, many of which were decided more than a century ago. These cases held that, before Congress enacted the Clean Air Act in 1963, states could sometimes sue other states for cross-border pollution, even though no federal law forbade such pollution. The Supreme Court created “federal common law” permitting these suits, and the oil companies claim that this federal common law preempted any state lawsuits that covered a similar subject matter.

This federal common law, they now argue, has itself been displaced by the Clear Air Act and its partner statute, the Clean Water Act, but the principle that state suits involving air and water pollution are preempted is somehow still in effect. Although there is no provision in the text of the Constitution that supports this argument by the oil companies, those companies claim that their argument is implicit in the “structure of the Constitution.”

The oil companies’ primary legal argument is difficult to understand

If you are confused by all the arcane history and logical leaps contained in the oil companies’ argument, don’t worry. So were most of the justices. Only Justice Brett Kavanaugh, who repeatedly claimed that his Court’s precedents bar Boulder’s lawsuit, seemed to buy what the oil companies are saying without reservation. Most of the other justices expressed at least some reservations.

Justice Amy Coney Barrett, for example, argued that even under the older “federal common law” regime, states still retained some authority over environmental lawsuits, although she noted that the Court’s previous decisions do not really define the scope of that authority. Kagan pointed out that the many suits challenging climate change are similar to past litigation against tobacco and opioid manufacturers. But those suits were heard by state courts.

It seems unlikely, in other words, that there are five votes for the oil companies’ convoluted claim that the “structure of the Constitution” somehow bars state courts from hearing climate change lawsuits. But several of the justices did appear troubled by what could happen if dozens of state courts reach conflicting judgments on who is responsible for climate change and who should receive compensation because of it. And some of these justices floated alternative theories for how to hand the oil companies a win. 

At one point, for example, Barrett floated the possibility that, if the plaintiffs lose in Suncor, they might file a new suit under the now-defunct federal common law that existed prior to the Clean Air Act. Kagan, meanwhile, suggested that perhaps the Clean Air Act could be read to preempt these suits like Suncor. According to Kagan, that law “sets up an extremely complicated scheme about how regulations of emissions should operate,” and allowing states to hear lawsuits like Suncor would “get in the way of how Congress decided to regulate greenhouse gases.”

And Roberts didn’t so much offer a legal argument in favor of the oil companies’ position as express incredulity of what would happen if those companies lose. “Presumably if you prevail,” before the Supreme Court, Roberts told Kevin Russell, the lawyer for Boulder, “the next day a municipality in every single state will file a lawsuit, copy your pleadings, and then there will be at least 50…how do you think that will work out on the ground?”

All of which is a long way of saying that the outcome in Suncor is uncertain. The oil companies led with a weak legal argument, and only Kavanaugh seemed to fully embrace that argument. Many of the justices appear bothered that these lawsuits exist, but the most skeptical justices couldn’t agree on a legal theory they could use to shut them down.

For what it is worth, the oil companies actually do make a strong policy argument that it is a bad idea to allow state courts to do so. As they argue, climate change is a global problem caused by many polluters (and companies like Exxon that supply the oil burned by polluters) throughout the world. It could be impossible to determine which specific companies caused the specific problems caused by climate change in Boulder, Colorado. And even if this obstacle can be overcome, there are many thorny questions about which state’s law should apply when pollution from one state crosses over into another, not to mention the difficult diplomatic issues that could arise if a state court orders a foreign company to pay a large sum of money.

But under our Constitution, the proper solution if the oil companies want federal law to preempt state court suits like Suncor is that they can lobby Congress, and Congress could then draft a statute that balances these companies’ interest in avoiding many conflicting legal decisions with the interests of plaintiffs like Boulder who say they are experiencing real harms from climate change. Congress has the power, for example, to combine all of these state lawsuits into one grand federal lawsuit, where a single proceeding could determine how to portion out the costs of climate change to various energy companies, and how to divide whatever these companies are ordered to pay among the various plaintiffs.

But that solution would undoubtedly require compromises that companies like Exxon will not like. So, instead, they’ve asked the Supreme Court to give them the legal regime that they want, despite the fact that they could not articulate a persuasive legal argument for that outcome. It remains to be seen whether this Court will give the oil companies a win anyway.