Can States Use Climate Lawsuits to Regulate Fossil Fuels? - American Enterprise Institute
With the first Monday in October approaching, all eyes will be on arguments and briefs presented to the Supreme Court, which this term will be confronted with a number of important cases, none more so than Suncor Energy (USA) Inc. v. County Commissioners of Boulder County.
This case addresses the lawsuit filed by Boulder County, Colorado and the City of Boulder against ExxonMobil Corporation and three Suncor Energy entities, alleging that:
“The companies’ decades-long production, promotion, refining, marketing, and sale of fossil fuels knowingly drove climate change and caused concrete harm to Boulder’s property and residents. Boulder further alleges that the defendants compounded this harm by intentionally misleading the public about fossil fuels’ role in accelerating climate change. The alleged injuries include flood damage, increased wildfire risk, drought, and physical damage to public buildings and infrastructure—costs Boulder claims it has absorbed and will continue to absorb.”
More below about those assertions versus the facts. Whatever one believes about the seriousness of the prospective problems created by greenhouse gas (GHG) emissions, those problems are global in nature, the upshot of which is that only federal policy, perhaps in coordination with other governments, can address them. Efforts by localities or states to use litigation against fossil energy producers are an obvious attempt to circumvent the power of Congress to enact, or not to enact, such policies. The Boulder localities obviously are unhappy that Congress has not delivered their preferred policies, but that is a straightforward manifestation of the democratic process: We cannot always get what we want.
Moreover, the Supreme Court already has ruled in American Electric Power v. Connecticut—in a unanimous opinion by Justice Ruth Bader Ginsburg (Justice Sonia Sotomayor did not participate)—that the Clean Air Act (CAA) and Environmental Protection Agency actions authorized by the CAA override any federal common-law right to seek abatement of carbon dioxide emissions from fossil-fuel-fired power plants. This suggests strongly that the CAA overrides claims made under state common law as well.
The Boulder localities have attempted to circumvent that legal reality by claiming that their litigation “is not about regulating emissions or stopping fossil fuel production, but about seeking accountability for climate-related damages.” That is balderdash. Such “accountability” imposes an explicit tax on the production of fossil energy that subsequently would be consumed; that the tax largely or wholly would be shifted onto consumers under competitive market conditions is a given, with reductions in consumption and US GHG emissions the obvious outcome. Boulder’s original plaintiff attorney, David Bookbinder, admitted this reality explicitly at a 2025 Federalist Society event: “Tort liability is an indirect carbon tax” and “The people who buy those products are now going to be paying for the cost imposed by those products.” Should tax policy be determined through the courts or through democratic processes reflected in Congressional policymaking?
Read more at The National Interest.