A federal judge appointed by former President Barack Obama handed the Trump Justice Department a major victory over New York Democrats this week that is probably a preview of yet another victory when Boulder County, Colorado, faces producers in the Supreme Court this fall.
New York engineered this fight in December 2024, when Democratic Gov. Kathy Hochul signed the Climate Change Superfund Act. This ordered fossil-fuel producers and refiners to pay $75 billion into a state fund over 25 years, with each company’s bill based on the global greenhouse-gas emissions attributed to its products.
The revenue was to finance infrastructure projects that New York claimed were necessary to adapt to climate change. But calling the assessments “compensatory payments” did not change the fact that they were really a massive retroactive tax punishing companies for producing legal products used around the world. The cost of paying this punitive tax would be passed on to consumers. It was a blue-state revenue grab from red-state residents.
West Virginia and 21 other states sued in February 2025, joined by energy groups. After President Donald Trump issued Executive Order 14260, “Protecting American Energy from State Overreach,” directing the attorney general to challenge state laws that illegally burden energy production, the DOJ filed a statement of interest supporting the challengers and presented oral argument.
Chief Judge Brenda Sannes of the U.S. District Court for the Northern District of New York ruled for Trump, the red states, and the energy companies, that federal law preempted New York’s. The state may not impose a liability regime on greenhouse-gas emissions occurring across the country and around the world because interstate air pollution is a federal matter governed by federal law.
Sannes properly relied on City of New York v. Chevron Corp., a 2021 2nd Circuit decision rejecting New York City’s attempt to use state nuisance law to collect climate damages from oil companies. Sannes found “very little daylight” between that lawsuit and Albany’s statute. Both sought to impose liability for alleged (and dubious) harms caused by global greenhouse gas emissions, no matter where they occurred.
That brings us to Suncor Energy v. Boulder County, which the Supreme Court will hear in October. Boulder is suing Suncor and Exxon Mobil under Colorado tort law for alleged local harms from global climate change. Its theory is dressed up as based on nuisance, trespass, and supposed deception, but the causal chain is the same: energy companies produced fossil fuels; people everywhere burned them; emissions allegedly changed the climate; and Boulder says the companies must pay for local floods, fires, and other damages.
Set aside the law for a moment; Boulder’s factual premise is shaky as well. The best long-term evidence does not show a steady increase in climate disasters implied by the lawsuit. A major Science study using satellite observations found that the global area burned by fire fell 24.3% between 1998 and 2015. A Bulletin of the American Meteorological Society study cowritten by Roger Pielke Jr. found no statistically significant increase in either the frequency or intensity of hurricanes making landfall in the United States since 1900. A 2023 study of more than 3,000 monitoring stations over 100 years found that, while heavy precipitation has increased, flood trends are far weaker, less consistent, and highly dependent on region. Even the United Nations Intergovernmental Panel on Climate Change says there is “low confidence” in any global trend in peak river flows.
Going back to the law, there is no functional legal difference between New York City’s state tort claims against energy companies and Boulder County’s. But Colorado’s leftist Supreme Court reached the opposite conclusion, holding that Boulder’s claims may proceed.
That reasoning should fare badly before the U.S. Supreme Court. States cannot regulate conduct in other states merely by calling the regulation a damages lawsuit. If Boulder is allowed to impose its climate policy on producers in Texas, every state and locality may devise its own liability rules for the same global emissions. The result would be a patchwork of climate policies imposed through litigation.
EDITORIAL: THE BLUE STATE CORPORATE EXODUS
Energy users, which means everyone, would pay the price. Suncor’s Supreme Court brief makes the point explicitly: Climate lawsuits reaching international emissions could force fossil-fuel producers to raise prices.
The Supreme Court should shut that door. Climate policy affecting interstate and international emissions belongs to the federal government, not ambitious environmental activists and local trial lawyers. A decisive Boulder defeat would protect that constitutional principle and protect consumers from paying a nationwide climate tax imposed one lawsuit at a time.