The Supreme Court faces a fateful decision in Suncor Energy v. County Commissioners of Boulder County. If it declines to take up the case and fails to slam the door on Boulder County’s audacious climate change lawsuit, the climate litigation free-for-all that will follow could cripple American energy and critically undermine our federal system.
After law school, I was a clerk for a federal circuit judge. One day, as a lawyer droned on about some statute, one of the judges on the panel finally leaned forward and drawled, “Counsel, you do realize the biggest obstacle to you winning this case is the complete absurdity of your argument.” That moment sticks with me, because when a legal doctrine leads to absurd results and a more sensible result is readily available, courts grown-up enough to read the Constitution usually reject it.
Apply this test to Boulder’s suit. I spent a semester teaching at the University of Colorado. It’s that classic hippie town, packed with affluent utopians who imagine food materializes at Whole Foods and energy rains from the heavens. These are the folks whose politicians are suing Suncor and other energy firms for supposedly causing climate harm through nuisance and trespass doctrines invented centuries ago. Here, the plaintiffs are seeking billions in damages for things such as road maintenance necessitated by extra rain or frost. Climate alarmists call it an existential crisis. And yet, Boulder’s biggest gripe is pothole repair costs.
Recent events expose their magical thinking. Wildfires a few years back led to utility liability, so during a subzero cold snap with high winds and dry conditions, the power company shut off electricity across Boulder County for days. Residents shivered, unable to start their electric cars as batteries froze. Boulder had banned gas stoves and plants. This is the worldview that is suing to reengineer national energy policy.
Now Boulder County wants to make the rest of us shiver in the cold, too. But instead of using the democratic process, it has filed a lawsuit asking a state judge to impose those same policies on the entire country. If Boulder’s case survives, it will not remain isolated. If Boulder can sue to impose its political preferences on the rest of us, so can San Francisco; Portland, Oregon; Burlington, Vermont; and every other wealthy left-wing city across the country.
Climate trial lawyers are already testing more aggressive legal claims elsewhere. In Seattle, lawyers have floated “climate murder” — seeking to attribute individual deaths to heat events allegedly traceable to fossil fuel production. These novel claims underscore why federal preemption exists. Absent it, 50 state courts could devise 50 different standards of liability and 50 different remedies, leading to total regulatory incoherence.
History is instructive. Before petroleum, New York streets were drowned in horse manure; brownstones exist because the rich could elevate above the muck when it rained. New England forests? Mostly new growth, replacing farmland that grew hay for urban horses. Indoor cooking fires still kill about 3 million yearly worldwide, per the World Health Organization, mostly children inhaling dung and wood smoke because they lack cheap, reliable energy. That’s green energy poverty in action. Energy abundance, alongside the rule of law, has been one of the greatest forces for human well-being. Treating it as a public nuisance misunderstands both economics and history.
The cost of climate lawfare is real. Its advocates have even explained how these lawsuits act as a backdoor carbon tax. When energy prices go up, the elderly and the poor are hit the hardest. Federalism crumbles when a single state court exports regressive costs everywhere. For good reason, federal courts long ago recognized that these sorts of energy and environmental law policies should be decided on a national level and developed federal common law precisely to prevent parochial courts from imposing their policy preferences on the rest of the nation.
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Let these suits fester, and it becomes a feeding frenzy: plaintiffs’ lawyers file countless claims in states across the country. Dozens of lawsuits soon become hundreds. While the energy defendants must prevail in every case, their opponents need just one sympathetic judge. If one claim succeeds, every successive case is forum-shopped into that jurisdiction. Meanwhile, billionaires fund the frenzy as consumers pay through higher energy bills, slower economic growth, and stifled innovation. The process itself becomes the punishment — endless discovery, expert battles, and millions in defense costs.
The Supreme Court should grant review in Suncor and end this experiment in policymaking by litigation. The Constitution does not permit random cities to create national energy and environmental policy through tort law, nor does it allow state courts to substitute themselves for our elected representatives in Congress. The court should recognize that this climate lawfare feeding frenzy is not only unconstitutional but also unsustainable. If Boulder and its trial lawyers succeed, it’s everyday Americans who will ultimately suffer.
Todd Zywicki is a law professor at George Mason University’s Antonin Scalia Law School.