The Supreme Court kicks off a new term Monday with a case the fossil fuel industry wants framed as a narrow procedural fight, but whose stakes are the largest in years. The real issue in Suncor Energy v. Boulder County is whether fossil fuel companies can be held accountable in American courts for the documented consequences of their products — or whether they enjoy a special immunity no other industry has, whether a handful of corporations can hide forever behind a preemption doctrine the Constitution does not require.
Boulder and more than 30 other state and local governments have sued oil and gas producers to recover the costs of documented damage: wildfires intensified by a warming climate, the costs of mitigating pest infestations, reduced farm output, lower employee productivity — the bill for an industry that concealed for decades what its own scientists knew, and that now hopes never to pay.
The industry cites AEP v. Connecticut (2011), where the Court unanimously held that the Clean Air Act preempts similar state nuisance claims tied to CO2 emissions. But Boulder is not making a federal nuisance claim. Boulder is making a state-law claim about the production and marketing of fossil fuels — the bread and butter of state tort law, a common-law claim that predates the Clean Air Act by nearly a century. AEP addressed emissions. Boulder sues for the damages tied to the production and sale of a dangerous product. The Colorado Supreme Court correctly recognized that production and marketing are a distinct course of conduct from emissions, and that state common-law claims about that conduct are not preempted. This is a meaningful legal distinction, not a dodge. Under the Colorado court’s ruling, liability tracks the harm the producers caused. The producers don’t want to pay.
If the Court overturns the Colorado ruling, it would effectively immunize fossil fuel producers from any accountability for the foreseeable consequences of their products — no matter how foreseeable, no matter how thoroughly documented, no matter how devastating the harm. It would also shut the doors on similar suits in New York and Vermont, where state and local governments are seeking the same redress for the same documented harm.
The stakes are much larger than a simple matter of federal preemption. Letting these companies escape accountability in every forum would gut the historic role of state common law in protecting health, safety, and property from corporate misconduct. The framers wrote the Constitution to restrain concentrations of power, including the power of large industries to operate without accountability. Under the Articles of Confederation, the founders watched powerful interests run roughshod over their neighbors, and they wrote the Constitution in part to empower states to protect their citizens from exactly this kind of cross-border harm. The Tenth Amendment reserves to the states all powers not delegated to the federal government — including the police power to protect their residents from foreseeable harm. The Supreme Court has repeatedly held that states retain authority to address injuries within their borders, even when the conduct causing those injuries has interstate aspects.
This is what Boulder and its fellow litigants are doing. They are holding oil and gas companies accountable for production and marketing decisions made in states like Texas and Alaska that target the sale of fossil fuels to consumers across state lines — damage that does not respect state lines. Far from undermining the sovereign prerogatives of producing states, these suits vindicate the constitutional promise that no producer is above the states whose citizens it harms. This is not climate lawfare. It is the routine work of state courts in a federal system — the lawful pursuit of justice by the very state and local governments the Constitution empowers to act when Washington will not. “No single State” can impose “a policy for the entire Nation” or “even impose its own policy choice on neighboring States,” the Court said in BMW v. Gore (1996). Holding a company liable for harms inflicted on a state’s own citizens is not imposing a national policy. It is enforcing state law against a tortfeasor.
The Clean Air Act gives the federal government authority to regulate emissions, including a scheme by which the Environmental Protection Agency can address pollution emitted in one state that harms downwind states. But the Act does not — and was never intended to — insulate fossil fuel producers from state tort liability for the foreseeable harms of their products. The industry would have the Court read that authority as a license to immunize producers from every other form of state accountability. If Colorado wants to hold companies accountable for the in-state consequences of their products, it can, as it has done with countless other industries for two centuries — as California has done with its cap-and-trade policies. Boulder is right to seek redress for harms the federal government has refused to address.
Climate change is a global issue, and Boulder’s suit will do nothing to limit CO2 emissions from coal plants in China and India — but neither will any ruling from this Court. The industry’s argument that a Chinese coal plant somehow cancels out Boulder’s right to recover wildfire costs is a confession that the producers have no defense on the merits. The Boulder County Commissioners did not negotiate the Paris climate accord, but they are exercising the authority the Constitution reserves to them: the authority to protect their residents from foreseeable harm. They do not need a seat at Paris to enforce Colorado tort law against an industry that has harmed Coloradans. The U.S. is currently fighting a war with Iran to guarantee the flow of oil that will affect gasoline prices — a federal policy choice, but one that does not strip states of their traditional authority to address the consequences of fossil fuel production for their own people. The Constitution does not subordinate Colorado’s police powers to the foreign policy of the federal government, and the industry’s argument that wartime gasoline prices somehow defeat Boulder’s claims is one the founders explicitly refused to write into the document.
Individual states have sovereign police powers over crime, tort, public nuisance, and the health and safety of their citizens — and those powers extend to running their own court systems and applying their own tort law to corporate misconduct. If the justices rule for the industry, they will not be protecting federalism. They will be inventing a new federal immunity for an industry whose harms were concealed for half a century. That is bad energy policy and a betrayal of the structural Constitution the founders actually wrote.
