The Supreme Court will hear oral arguments in Suncor Energy v. Boulder on October 5, in a case that could determine whether local governments can use state courts to impose sweeping liability on energy producers for alleged harms tied to global greenhouse gas emissions.
Boulder County and the City of Boulder sued Suncor and ExxonMobil in 2018, seeking damages for alleged climate-related harms tied to the production, promotion and sale of energy products. The case is presented as a local dispute under Colorado law, but the theory behind it reaches far beyond Colorado.
At its core, Boulder is asking a state court to impose liability on energy producers for conduct and emissions occurring across the United States and around the world. In a series of recent public events previewing the oral arguments, several notable legal scholars and energy experts weighed in here – watch our new view showing highlights of these comments:
Among the highlights:
· University of Virginia law professor Saikrishna Prakash has called that theory “odd and implausible,” warning that the same logic could allow cities from New York to Anchorage to “regulate the entire United States because of the effects that are felt within their jurisdictions.”
That is the central problem with the case. Climate change is inherently interstate and international. Energy is produced, transported and consumed across borders, and emissions come from countless sources worldwide. Allowing individual jurisdictions to impose their own liability standards risks creating a patchwork of state-by-state rules governing national energy production.
· Former U.S. Attorney General Bill Barr has also warned that climate litigation is being used as a tool to impose costs on energy producers outside the legislative process. Barr pointed to activists who, he said, have openly discussed raising the cost of traditional energy and using damages to place companies under severe financial pressure.
· Kevin Book, Managing Director of Research at ClearView Energy Partners, has described the broader strategy as increasingly aggressive. Recalling an environmental advocate who said after the 2016 election, “We’re going local and subnational,” Book said the latest phase of that approach is “more muscular” and “going for the big money.”
The legal stakes are significant. If Boulder’s theory survives, other cities and states could bring similar claims under their own laws, exposing energy producers to conflicting liability standards for the same lawful activity.
· Jennifer Hernandez, a Breakthrough Institute board member and partner at Holland & Knight, put the issue bluntly: “If ever there was a major federal question, if ever there was a major questions doctrine issue, this is it.”
Boulder argues that its case is simply a state-law damages action. But when liability depends on worldwide emissions and nationwide energy markets, the consequences do not stop at city or state lines.
That is why Suncor v. Boulder matters far beyond Colorado.
The Supreme Court now has an opportunity to decide whether questions involving interstate emissions and national energy policy should be resolved through federal law or through a growing patchwork of local climate lawsuits targeting energy producers.