Boulder’s Climate Lawsuit Distorts Law And Usurps Policy-Making

Boulder is blaming two major energy enterprises, Exxon and Suncor, for climate change—and trying to make them pay money for local environmental harms with an incredibly dubious lawsuit. Now, it’s heading to the Supreme Court.

In a few weeks, the Supreme Court will hear oral arguments on whether Boulder County and the City of Boulder’s aggressive lawsuit against Suncor and Exxon may proceed. Boulder is seeking monetary damages under state common law. Ultimately, Boulder hopes to hold two major energy producers financially responsible for global climate change. Because they produced and promoted fossil fuels while allegedly misleading the public about their climate effects, Boulder argues, they should bear part of the resulting costs.

This lawsuit is incredibly far-fetched. It twists established law and tries to supplant typical policy-making avenues by setting national energy policy through a lawsuit in state court. For now, however, the Supreme Court will not decide the merits of Boulder’s claims against Exxon and Suncor; instead, it will consider whether it has jurisdiction over the energy company’s current appeal of the denial of their motion to dismiss the case and, if so, whether federal law preempts Boulder’s claims altogether.

The Supreme Court could plausibly conclude that Exxon and Suncor lack an injury sufficient to support Supreme Court review of the state-court ruling that upheld the denial of defendants’ motion to dismiss the suit. If the Supreme Court decides it lacks jurisdiction over Exxon and Suncor’s current appeal, it would not decide the preemption question at this time.

That said, whether the Supreme Court decides now or after a potential appeal following a trial, the best understanding of the case is that Boulder’s state common-law claims are preempted by federal law. 

Like New York City in its 2021 case, City of New York v. Chevron Corp., Boulder seeks compensation for harms allegedly caused by global climate change, which it traces in part to Suncor’s and Exxon’s worldwide production, promotion, refining, marketing, and sale of fossil fuels. In City of New York, the Second Circuit correctly recognized that imposing damages based on such worldwide conduct is “simply beyond the limits of state law.” 

The best understanding of this matter, adopted by the Second Circuit in the 2021 case, is that localities’ state-law claims surrounding global greenhouse gas emissions are displaced by federal law. Interstate pollution was historically governed by federal common law precisely because no single state’s law could control such interstate disputes. Later, the Clean Air Act displaced the federal common law for domestic greenhouse-gas emissions and assigned EPA the central federal regulatory role.

Surely, states and localities retain a substantial role over pollution sources within their own borders. But Congress’s displacement of federal common law did not suddenly empower a non-source municipality to impose its own tort law on emissions emanating from around the globe. As the Second Circuit recognized, ”state law does not suddenly become presumptively competent to address issues that demand a unified federal standard simply because Congress saw fit to displace a [federal common law] standard with a legislative one.”

Even if the Supreme Court lets the case move forward, Boulder’s tort claims face serious problems. Take causation, for example. To recover, Boulder ultimately must show that these defendants’ conduct was a legally sufficient cause of the particular climate-related harms for which it seeks compensation.

Yet the causal chain stretches from fossil fuels, produced and marketed by these enterprises, through combustion by innumerable third parties across the globe, to an incremental contribution to worldwide greenhouse-gas concentrations, to changes in the global climate, and finally to particular harms suffered in Boulder.

Greenhouse gases emitted anywhere mix throughout the entire global atmosphere. Countless companies, governments, and individuals have contributed to worldwide emissions. Imposing liability for particular local injuries on two energy enterprises through such an extraordinarily attenuated causal chain stretches traditional tort principles.

Beyond its weak legal merits, Boulder’s lawsuit is also a plain attempt to shape questions of global climate, economics, and even national security through state tort litigation. The production and control of energy resources have long affected all these major policy areas. Yet Boulder seeks to influence energy producers’ behavior through potentially massive tort liability, circumventing the traditional policymaking process.

A substantial damages award would alter producers’ behavior—incentivizing some to raise prices to reflect litigation risk and pushing others to potentially exit the fossil-fuel business altogether. This would effectively allow a single state-court lawsuit to interfere with policy choices ordinarily made by Congress, federal regulators, state legislatures, and foreign governments as they balance economic, environmental, and security interests.

Legislatures are politically accountable to the public and are better equipped to weigh competing questions of climate, energy, economics, and foreign policy. Such highly debated policy considerations are better left to legislatures and the regulatory agencies they empower—not to a Boulder County jury applying Colorado state common law.

Benjamin Ayanian is a student at the University of Minnesota Law School, a widely published commentator, and the author of “Beyond Intention: How Progressive Economic Initiatives Would Harm Society’s Most Vulnerable.” Follow him on X/Twitter @BenjaminAyanian.