On Oct. 5, the Supreme Court will hear Suncor Energy v. County Commissioners of Boulder County. Boulder, Colorado, wants money from Suncor and Exxon Mobil because the companies produce the fuels that power modern life and, Boulder claims, contribute to a warmer climate that raises local costs for wildfire risk, flooding, and infrastructure. The county is not asking a federal agency to set emissions limits. It is asking Colorado juries to impose national climate policy through state tort law. That is the real issue before the court.
I’ve spent three decades in rooms where capital is allocated and risk is priced. Energy is the foundation of every portfolio I’ve ever managed. When local governments try to rewrite national energy policy through creative tort theories, the costs don’t stay local. They show up in higher fuel prices, delayed investment, and less reliable power for the same families that those governments claim to protect. The Constitution already assigned this job to Congress and the federal government. Boulder is trying to reassign it to a state court jury.
The legal question is straightforward. Greenhouse gas emissions are interstate and international by nature. One molecule of CO2 emitted in Texas or Alberta does not stay in Colorado. The Clean Air Act and decades of federal common-law principles governing interstate pollution were designed precisely for problems that cross state lines. Allowing every county that experiences a flood or a dry summer to sue energy producers under its own tort theories would produce a patchwork of conflicting verdicts. State juries would become de facto national climate regulators without the expertise, the democratic mandate, or the constitutional authority to set national policy.
Boulder insists it is only seeking compensation for local harm under ordinary Colorado law. That framing is clever and incomplete. The alleged harm is to the global climate system. The remedy Boulder seeks would necessarily regulate the nationwide production and sale of energy products. If Boulder can extract damages for the climate effects of lawful fuel sales, so can Honolulu, Baltimore, New York, and every other jurisdiction with a creative plaintiff’s bar. More than two dozen such suits are already pending. A ruling that lets them proceed would invite a race to the courthouse rather than a coherent national energy strategy.
Energy policy is hard. It requires balancing reliability, cost, national security, and environmental goals. Congress has the tools: the Clean Air Act, tax credits, permitting reform, and research funding. Those tools are imperfect and often slow. But they are democratic. A Colorado jury deciding that a Canadian energy company owes Boulder millions for emissions that occurred everywhere is not democratic. It is litigation as legislation. The same impulse that produced endless climate lawsuits against energy producers is the impulse that treats every complex national problem as a failure of private enterprise rather than a question for elected representatives.
To be sure, companies that engage in actual fraud or conceal known product defects can and should face liability under traditional tort principles. Tobacco litigation succeeded because cigarettes caused direct, localized harm, and the industry’s deception was specific and documented. Climate litigation is different. The product is energy itself. The alleged injury is the collective result of global emissions from every source on the planet over decades. Pinning measurable local flood damage on the specific production decisions of two companies requires attribution science that is still contested and far removed from ordinary causation doctrines. Turning that science into jury instructions is a recipe for inconsistency, not justice.
The court added a jurisdictional question of its own: whether it even has authority to hear the case now, given that the Colorado Supreme Court’s ruling was interlocutory rather than a final judgment. That is a legitimate procedural concern. But the preemption question is the one that matters for the country. A clean ruling that federal law displaces these global-emissions tort claims would restore the proper allocation of authority. It would tell local governments that if they want national climate policy, they must persuade Congress or the relevant federal agencies, not recruit a local jury.
KAGAN’S CLIMATE CONFLICT IS OBVIOUS — RECUSAL SHOULDN’T BE OPTIONAL
My son took an oath to the Constitution at West Point. That document assigns the hard problems of interstate commerce and national regulation to the national government. It does not assign them to county attorneys with novel theories and sympathetic local juries. Reliable energy is not a luxury. It is the precondition for everything else we claim to value: economic mobility, national defense, public health, and the ability of ordinary families to heat their homes and drive to work. Turning energy policy into a tort lottery does not protect the climate. It simply shifts costs onto the people least able to absorb them while the real policy work remains undone.
The court has a chance to say so clearly. It should take it.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard University. He writes about issues in finance, constitutional law, national security, human nature, and public policy.