SCOTUS Can Stop Blue Cities From Forcing Energy Diktats On The Rest Of The Country

This week, the U.S. Supreme Court should consider a basic constitutional reality: county officials from Boulder, Colorado, cannot force their preferred climate policies on the rest of the nation. Obvious as it seems, that is what’s at stake in Suncor Energy Inc. v. Boulder County, a climate change case the court will weigh for review on Dec. 12.

Like the other thirty-odd copycat climate lawsuits filed by states and localities from Honolulu to my hometown of Charleston, Boulder’s suit weaponizes tort law to try to transform state courts into vehicles for deploying sweeping climate mandates. If Boulder gets its way, the casualties won’t be confined to the energy companies it endeavors to bankrupt; American consumers and the U.S. economy writ large will be caught in the crossfire.

Boulder’s lawsuit follows the now-familiar script crafted by climate trial lawyers: sue a handful of oil and gas companies for the worldwide effects of greenhouse-gas emissions generated over decades by billions of people and entities, then demand billions of dollars to “abate” alleged local climate-related costs. The plaintiffs inventively spin a narrative of the companies’ alleged contributions to global climate change and how those contributions purportedly create a “public nuisance” in their local jurisdictions. 

But nothing about the suit is local — not the causes it identifies, not the harms it alleges, not the remedies it seeks, and not the implications of the Colorado Supreme Court’s decision allowing it to advance. Like the interstate carbon emissions central to its complaint, Boulder’s case is inherently national in scope. And the consequence of a judgment in its favor will be felt far beyond the borders of Boulder, Colorado.

The Founders warned of the peril in allowing one state to impose its policies on another and thus created constitutional safeguards to prevent such encroachments on state sovereignty. In Federalist No. 80, Alexander Hamilton explained that issues of concern to the nation belong in federal court, not parceled out to local tribunals with potentially competing interests. And the Founders entrusted Congress with the authority to make policy decisions of national consequence. Courtrooms, particularly state courts, are simply not equipped to address a complex, global phenomenon like climate change. 

That is exactly why the Supreme Court should grant review: so that one locality’s attempt to subvert the democratic process does not metastasize into a nationwide regulatory free-for-all driven by ideologically motivated state and local governments. Should the court decline to intervene, the now-dozens of climate lawsuits could multiply into hundreds, each with overlapping and conflicting rulings resulting in tens of billions of dollars siphoned from America’s energy economy and ultimately its consumers.

Fortunately, some state courts have recognized this crisis. In South Carolina, Judge Roger M. Young warned in his dismissal of the City of Charleston’s suit that “[t]hese lawsuits promise to create a chaotic web of conflicting legal obligations for [the energy companies] as each state and municipality imposes its own de facto regulations” on fossil fuels. Judge Young rightly concluded that any answer to global climate change “must rest with the federal political branches that are legally and substantively equipped to address them.”

It is the duty of Congress, not local judges, to contend with subjects that affect the entire nation. Lawmakers in our nation’s capital have reasonably declined to adopt the kinds of extreme policies that climate plaintiffs like Boulder seek to usher in through litigation. That is because bankrupting the energy industry, as one of Boulder’s attorneys has confessed is the endgame, is not in the best interest of the American public or the overall economic security of the United States.

Should Boulder and its climate allies prevail, it will be the American people that pay the price. Recognizing the threat of this lawsuit and so many others to the Constitution’s design, the Supreme Court should grant review in Suncor Energy and restore common sense by putting an end to this runaway climate lawfare scheme.