The Supreme Court should not turn fossil-fuel companies into defendants who can never face a jury. John Yoo’s Fox News op-ed, “Supreme Court can restore sanity and stop the left’s radical climate agenda”, asks the justices to shut down Suncor v. Boulder and similar state-court suits before a Colorado jury hears a single witness. He calls the cases a “lawfare campaign” that could bankrupt American energy, weaken federal control over foreign policy and national security, undermine the military, and hand China a free ride. The argument only works if you skip past the alleged cover-up and treat it as the cost of doing business.
Boulder is not suing over the existence of emissions. Boulder is suing over what the companies allegedly knew, what they said, and what they did to hide it. The complaint alleges that Exxon, Suncor, and other fossil-fuel companies knew their products were driving climate change and then helped fund a campaign to discredit the findings of their own scientists. Exxon’s internal climate researchers were studying the problem by the late 1970s. The public denial campaign continued for decades.
Yoo calls these lawsuits frivolous. He never explains how a half-century of internal industry research confirming the science, followed by a half-century of public denial, fails even to state a claim. That is the question the lawsuit turns on. Yoo walks past it.
The legal distinction matters. The Clean Air Act’s preemption argument is real, and it is narrow. The Act gives the Environmental Protection Agency authority to regulate greenhouse-gas emissions. It does not say that a company selling a product may lie about what that product does. Tobacco companies could comply with every Food and Drug Administration rule on tar and nicotine and still face claims that they concealed the fact that cigarettes caused cancer. Federal emissions rules are not a get-out-of-jail-free card for fraud.
Yoo’s broader argument depends on a one-way ratchet: federal authority blocks state accountability, while federal inaction imposes no consequence on anyone. He is right that the Clean Air Act gives the EPA power. But the federal government, under administrations of both parties, has spent decades choosing not to use that power to regulate carbon with anything like the force the statute permits. That leaves a regulatory void.
Federal preemption is a trade. States and private plaintiffs give up the back seat because the federal government is supposed to drive. You cannot demand federal supremacy and federal abdication at the same time.
When the federal government refuses to regulate, state courts do not become radical because they hear state-law claims. They become what courts are for: places where citizens and communities can seek redress under the law that governs them. State courts exist to hear state claims against corporations. Yoo wants the Supreme Court to silence them, not because Congress clearly preempted the field, but because he prefers the outcome. Preemption has to come from Congress. Yoo is asking the Court to manufacture it.
He dresses that request in the language of the Commerce Clause, the Framers, foreign policy, and military readiness. Notice what none of those invocations answers: why should federal power operate only as a shield for defendants? Why should the national government’s failure to act erase every state remedy? Constitutional structure is not a ceremonial cloth to drape over an industry’s liability problem.
The China argument is louder than it is responsive. China emits close to a third of global carbon. The United States is a minority of the total. Beijing, Moscow, and New Delhi matter to any serious climate policy. Yoo’s strongest point deserves an honest hearing: America cannot solve climate change by pretending the rest of the world does not exist, and an effective policy must reckon with Chinese emissions and the conduct of other major emitters.
That still does not answer whether American companies may be held accountable for allegedly concealing the harms of their own products. If a Chinese firm sold defective steel for an American bridge and concealed the defects, the amount of steel China sold elsewhere would not bar the suit. Yoo’s theory would close the courtroom before discovery reached the internal memos.
His national-security argument fails in the same place. A judgment against an American oil company is not a surrender to Beijing. There is no national-security doctrine requiring the United States to make its own corporations judgment-proof in their own courts. The British East India Company was a national-security asset, too. That did not put it above the law.
And the energy industry does not need immunity to function. What these lawsuits threaten is not American civilization. They threaten the industry’s ability to externalize the costs of climate change onto everyone else.
A state-court judgment would not be merely a verdict. It would be a settlement machine. If a Boulder jury found that Exxon or Suncor knew what its product was doing to the climate and helped fund a denial campaign to hide it, insurers would reprice the policies of fossil-fuel companies across the country. Share prices would fall. Boards would panic. Defense lawyers would settle the next hundred cases before they reached a courtroom. That docket exposure is the threat. The legal merits are almost beside the point to an industry asking the Supreme Court to close the file before anyone can read it.
When a Boulder jury hears evidence that Exxon’s own scientists were studying climate change in the late 1970s while the company funded public denial for decades afterward, somebody has to put a number on the damage. Yoo’s lawsuit-crackdown campaign is designed to make sure no jury ever does.
The remedy is not to insulate defendants from discovery. Let the cases proceed under ordinary state tort law. Let the evidence come out. Let a jury decide whether what the companies said for fifty years matches what their own scientists were saying the entire time.
Congress should also build a federal climate-accountability framework that works: mandatory disclosure of historical emissions and climate-related risk, a federal adaptation fund paid for by companies that profited from the alleged cover-up, and real EPA regulation of carbon under the Clean Air Act. Preemption should come with regulatory teeth, not merely a liability shield for defendants.
That is federal leadership. Yoo’s version is a courtroom escape hatch for an industry that spent fifty years ducking the bill. American energy will survive a jury. It will be sturdier after it pays its way out from under the concealment instead of asking the Supreme Court to keep the file closed.