Once again, Colorado progressives’ penchant for pushing constitutional boundaries has drawn attention from the nation’s highest court.
The U.S. Supreme Court on Monday agreed to review the case Suncor Energy Inc. v. County Commissioners of Boulder County. The case concerns an attempt by local officials in Boulder to use state tort law to regulate global greenhouse gas emissions and financially penalize American energy producers. The suit claims that the companies should be held liable for the alleged harms Boulder claims to have experienced as a result of climate change, such as wildfires and floods, solely because they have the temerity to continue producing fuels relied on by human beings worldwide.
Last May, the Colorado Supreme Court ruled that Boulder County’s lawsuit may proceed in state court despite the companies’ argument that their claims are preempted by federal law. In doing so, it became just the second state Supreme Court, after Hawaii’s, to greenlight such a case despite a broader wave of failed attempts brought by states and localities across the country over the last decade.
Independence Institute has been writing about Boulder’s suit, and the broader trend of climate lawfare it represents, since it was first filed in 2018. We have called attention to both the impropriety of environmental activists attempting to set U.S. climate policy from the courtroom rather than through the democratic process, as well as the practical risks for consumer energy costs should the gambit succeed.
We’ve also been active in urging the Supreme Court to put an end to the scheme once and for all. After the energy companies appealed the Colorado Supreme Court’s decision last fall, the Independence Institute joined an amicus brief urging the justices to step in.
Working alongside our partners at the Manhattan Institute, Frontier Institute, and the Pelican Institute, we argued that the Colorado Supreme Court erred in its decision by failing to consider the principles of “horizontal federalism.”
“To allow the long-arm application of state torts in a manner that effectively prohibits not only legal activity occurring in other American states, but legal activity throughout the world, violates horizontal federalism’s chief tenet regarding overreaching: One state may not, via its own law, penalize conduct that is legal in another state and occurs within that state’s boundaries,” the brief reads.
Suncor Energy, owner of Colorado’s only major oil refinery, and Exxon Mobil are the two named defendants in the case, but the lawsuit’s implications extend far beyond those two companies. If successful, it could open up Pandora’s Box by encouraging progressive local governments across the country to attempt to bankrupt the fossil fuel industry on the taxpayers’ dime.
The justices are likely to hear oral arguments in the fall, with a decision to follow sometime in 2026.
For more background on the case and the broader strategy of climate lawfare being pursued by the environmental left, be sure to revisit this episode of our show PowerGab, featuring special guest Gale Norton, former Colorado Attorney General and US Secretary of the Interior.
