The Supreme Court should take its constitutional responsibility seriously by banning Boulder’s climate lawsuit in a way that applies to other cities’ lawsuits”
SCHAUMBURG, IL (October 5, 2026) — The U.S. Supreme Court today heard oral arguments in Suncor Energy v. County Commissioners of Boulder County, October 5, 2026, a case that could decide whether state and local governments can use state tort law to hold energy producers liable for the effects of global climate change.
In 2018, the City of Boulder and Boulder County, Colorado, sued ExxonMobil and Suncor Energy in state court. They seek compensation for local costs they attribute to climate change, including wildfires, heat, and other impacts. They allege the companies created a public nuisance and engaged in a civil conspiracy by selling fossil fuels without warning the public about their climate effects. Boulder is one of more than 30 states and local governments that have filed similar suits.
The following statements from experts at The Heartland Institute may be used for attribution. To speak with our experts on this topic, please reply to this email or contact VP & Director of Communications Jim Lakely at media@heartland.org or call/text 312-731-9364.
“This case is ripe for a definitive and final ruling by the U.S. Supreme Court. Rather than a very narrow decision concerning whether there is room for state torts against oil producers, the Supreme Court should take its constitutional responsibility seriously by banning Boulder’s climate lawsuit in a way that applies to other cities’ lawsuits. The justices should make clear that states and localities are precluded from regulating national and international energy policy through local lawsuits.
“Interstate commerce, which energy production and use clearly is, is solely the responsibility and authority of Congress. International energy policy also falls solely with the authority of the federal government. Any lawsuit or sets of local lawsuits that impose tremendous costs and restrictions of liberty are major questions which also require acts of Congress. The court should make clear that localities and states may not make national policy directly or indirectly through the courts.”
H. Sterling Burnett, Ph.D.
Director, Arthur B. Robinson Center on Climate & Environmental Policy
The Heartland Institute
“The case before the court was nonsense from the beginning: it is insane to try to sue particular energy companies in an attempt to, basically, hold them accountable for bad weather. It’s modern-day superstition, akin to making sacrifices to make it rain, and it’s neither scientific nor constitutionally sound. Boulder cannot prove that Suncor caused any actual harm. Activists are attempting to ‘make the process the punishment’ and cost energy companies enough money battling lawfare that they are driven into bankruptcy, and it’s a precedent the Supreme Court cannot allow.”
Linnea Lueken Senior Fellow
Arthur B. Robinson Center on Climate and Environmental Policy
The Heartland Institute
“Boulder’s lawsuit is an attempt to use a local courtroom to impose climate and energy policy far beyond Colorado’s borders. Fossil fuels are produced, transported, sold, and consumed through national and international markets, and the emissions Boulder complains of come from billions of individual and institutional decisions around the world. Allowing municipalities to assign responsibility for alleged climate damage to a handful of selected companies invites a patchwork of judicially created energy policies that neither Congress nor the Constitution authorized. The Supreme Court has an opportunity in the Suncor case to draw a clear line: national energy and climate policy belongs at the federal level, not in a collection of state and local tort suits designed to accomplish through litigation what activists have been unable to achieve through legislation.”
Senior Fellow
Arthur B. Robinson Center on Climate and Environmental Policy
The Heartland Institute
The Heartland Institute is a national nonprofit organization founded in 1984 and headquartered in Schaumburg, Illinois. Its mission is to discover, develop, and promote free-market solutions to social and economic problems. For more information, visit our website
While I agree with the Heartland comment sentiment, I do not think the legal outcome is as simple or clear as suggested. There are several grounds.
Alito recused because owns oil and gas stocks. Probably smart given the politics. But puts three libs versus a clear Kavanaugh, with four unclear (Roberts, Gorsuch, Barrett, Thomas).
Justice Thomas questioned whether SCOTUS has ‘ripeness’ jurisdiction—enabling a punt.
Boulder has shaky claimed monetary damage grounds. Their suit was filed in 2018, their claimed major ‘damage’ was a 2021 wildfire. Prospective damages might enable injunctive relief, but not prospective monetary damages as claimed.
Most of today’s SCOTUS arguments had nothing to do with ‘climate change’ per se, rather the legal issues surrounding this ‘local public nuisance’ doctrine suit by Boulder. All past such attempts have failed in lower courts on the simple grounds that climate change isn’t local—but this is Colorado, which has ignored previous SCOTUS rulings concerning bakers refusing gay wedding cakes. That fact may subliminally weigh against Boulder at SCOTUS here.
Doesn’t sound like it went all that well:
https://www.scotusblog.com/2026/10/court-sends-mixed-signals-on-whether-it-will-allow-state-tort-suits-seeking-to-hold-energy-compa/
Maybe I’m just a pessimist when it comes to our delightful Federal judiciary, but I clearly remember thinking at the time that there was no way the Constitution could ever be interpreted so as to allow the Feds to mandate the purchase of an insurance policy.
Tend to agree.
But the 4 part Roberts opinion allowing Obamacare is a masterclass in ‘constitutional law’. As is Alito’s reversal of Roe v Wade via Dobbs. As is the newer reversal of Chevron deference via Loper Bright. As is the newish ‘major questions’ doctrine established by WVA v EPA.
To paraphrase a bit, con law is the process of asking what the ‘founders’ would have thought, about a subject about which they could not have thought at all. Birthright tourism is a contemporary air travel enabled example pertaining to the 1867 14th Amendment clause 1.
Watching conlaw evolve is personally fascinating, as was my favorite subject at HLS. Got an A for the full year 2L course taught by then newish Larry Tribe by strongly disputing the underlying premise of one of his final exam questions, rather than just answering the question per settled conlaw. The old Prof. Harold Hill ‘Music Man’ con technique for the boys band to whom he had sold their parents instruments and uniforms, but not music lessons—“Think, boys. Think.”
‘Birthright tourism is a contemporary air travel enabled example pertaining to the 1867 14th Amendment clause 1.’
This is exactly the problem with ‘con law’. The development of contemporary air travel should have had absolutely no bearing on figuring out who the authors of the 14th Amendment were clearly referring to with respect to ensuring their status as US citizens.
Similarly, I’ll bet dollars to donuts that the ‘10th Amendment’ is / was never the correct answer to any exam question in US legal education.
If your not purchasing an insurance policy resulted in others having to spend their money to fix your problem, it makes sense to me.
If we really want a ‘single payer’ healthcare system like Canada’s, we should be honest and legislate it into existence. They tend to cost a lot, though, so we might have to back off the whole ‘empire’ thing unless we want to financially implode sooner rather than later.
Though single payer always seems to fail, or at least not be as successful as hoped for, it’s not impossible. You just have to severely punish the crooks- and do a better job of promoting healthy life styles. A vast amount of money is siphoned off by insurance companies- whose executives make millions. Too much testing- too much dependency on drugs rather than exercise and better food.
‘Though single payer always seems to fail, or at least not be as successful as hoped for, it’s not impossible.’
Everything you say is true, which is why it’s a bad idea.
‘You just have to severely punish the crooks- and do a better job of promoting healthy lifestyles.’
Also true, which, again, is why it’s a bad idea.
‘A vast amount of money is siphoned off by insurance companies- whose executives make millions.’
If true, there would appear to be highly profitable opportunities for firms willing to siphon off less money and to pay their executives less. Any idea who / what might be standing in the way of such firms entering the market?
The current system obviously isn’t perfect, but many of its flaws probably stem from decades of government intervention, which would only get worse under a single payer system.
When this 77 year old was a kid, there were several doctors in my town of about 5K people. We’d just go their house where they had their office/clinic. First come first serve. There might be one or two people ahead of you. The doc would spend whatever time it took to care for each patient. No paper work as nobody had insurance. I recall going there- maybe get 20 minutes with the doctor and he’d charge $10. I also recall people living just as long as now and looking healthier.
My recollection, as well. I also recall a lot of ‘one and done’ heart attacks, etc. So part of the increase in health care cost is because it has improved over time. Unfortunately, costs have also been driven higher by government interventions that have had the effect of increasing demand while limiting supply.
I claim to know little about this issue. But, I do recall reading that much of the research cost for new pharmaceuticals is paid for my the federal government. If that’s true, how can the pharmaceutical companies get exclusive rights for so many years?
When I was a kid, there was no health insurance.
When I was a kid, doctors made house calls, too.
Oh, yes. Forgot about that. Amazing. I never had insurance until “Romney Care”, the predecessor to “Obama Care”. Good thing too because soon after that I got Lyme and spent 2 days in a hospital. I later got the bill for 11K but it was covered.
Punishing the crooks benefits private health care as well.
I don’t know any private health insurance company that isn’t trying to promote healthy lifestyles.
The only way to do more would be to mandate such policies with substantial penalties to those who fail to comply.
You have swallowed the Kool-aid when it comes to private insurance. First off it is a lie that the executives make millions. They do make a lot, but they are big companies. Executives of all big companies make a lot. Secondly, the profit margin for insurance companies is similar to the profit margin for other companies. Yes they earn a lot, but as a percentage of revenue, it’s not that much.
Maybe the insurance companies promote healthy lifestyles but too many don’t doctors don’t. I’m 77, never once has any doctor asked me about my diet. I know several people with diabetes- no doctor ever told them to lose weight- that doing so might help. No doctor ever told me that if I drank more water, I’d have less of a chronic sinus problem. Maybe those insurance companies brag about promoting healthy lifestyles, but the doctors don’t seem to get it. And I’m in Wokeachusetts, the state that claims to have the best educated public and the best medical care.
Every doctor that I have ever gone to has nagged me about my weight and eating habits.
Sounds like you haven’t been obeying them.
Who sets the drug prices?
What I have read, USA makes the drugs and they are much cheaper in countries to which they are exported than in the USA.
The market sets drug prices.
Drug prices are cheaper in other countries because they pass laws requiring drug companies to sell at the cost of production, leaving the US to pay for the cost of development.
Other countries also don’t have the out of control lawyers like we do in this country.
I could be wrong but I vaguely recall reading that much of the research to develop new drugs is paid for my the federal government. Perhaps the US should not allow drugs to be sold to other nations without covering some of that cost. Does anyone know the profitability of pharmaceutical companies? Rate of return on investment? Yes, I could ask AI, but I’d rather ask here.
MarkW,
I submit for consideration that the medical drug market is not a free market supply and demand operation.
Yes, recovery for the cost of development is included (USA).
No disagreement there.
Striking similarity.
Promote the fear (of dying) and then offer the solution.
Yes, and make money in the process, boatloads of money.
Joseph, with respect, the road to hell, as they say, is paved with good intentions. My only question is when does “promoting” healthy life styles become coercion, then a government mandate?
The best way to promote a health life style is by example. Just show healthy people and how they got that way. No need for coercion as that never works. President JFK promoted the idea of walking 50 miles. He couldn’t do it due to war injuries, but many people did at that time. Perhaps that suggestion even contributed to the rise of backpacking as a popular sport in America.
The only reason why one person not buying insurance causes costs for others, is because the government requires hospitals to cover everyone, whether they can pay or not.
It’s a case of government solving a problem that government created in the first place.
Seems to miss two points.
One, it does not ban “fossil fuel” in just the USA. It bans it globally.
Two, one or two companies are responsible for all the others which, by the way, are not named in the lawsuit.
rud, you seem to follow these legal events more than others. i have a question. in a case like this one, is there any science presented by either side to prove or disprove liability?
“Alito recused because owns oil and gas stocks.”
Doesn’t seem to me to be necessary. It was his choice, but there’s no rule that it was necessary, or is there?
To avoid accusations of being a shill of the oil industry.
If, repeat if, he had stocks in any of the corporations under this litigation, then yes, he needed to recuse himself due to the conflict of interest.
Well, in many cases, people should stop being so defensive once challenged as a shill for some industry- saying, “f*** no, and screw you too”. That’s what I’d say. 🙂 I’ve been reading a lot of Mark Twain lately. Turns out he was very blunt- makes Trump seem tame by comparison. I like bluntness, even if somebody is too sensitive to hear it. Too bad. They need to grow up. 🙂 I’m quite sure Mark Twain would have replied that way if he was in that situation.
Well said.
I’m now reading one of his books about his lengthy travels in Europe and the Middle East. He really knew how to rant about cultures and/or individuals he didn’t like- in a way that nobody would do today without being ostracized by the wokesters and even many non wokesters. He particularly didn’t care much for Arabs. His description of them- if anyone wrote that today, had better have a good place to hide. When he was a young man in Missouri, he was racist- which of course was the prevailing culture. But, he outgrew that- as well as could be in the late 19th century.
I like Twain, as well, particularly his essays, one of which compares the French unfavorably to the Comanches.
Of note, Twain was a prominent member of the American Anti-Imperialist League. His ‘War Prayer’, which was published posthumously, is worth reading:
https://ratical.org/ratville/CAH/WarPrayer.pdf
Wow, thanks for that. There is a new biography of Mark Twain by Ron Chernow. It’s on Amazon.
If I were judging I would ask:
IF the locality believes that it is being damaged by CO2-producing products, THEN…
What is it doing to stop current and future CO2-producing activity in its own locality?
ie – IF the locality can not unilaterally halt CO2 production yet compete with other localities, THEN…
How can the nation unilaterally halt CO2 production yet compete with other nations?
I can attest to the fact that Boulder minimizes its use of Suncor asphalt, especially when it comes to filling potholes. On the other hand, virtually all city and county vehicles are fossil fuel powered.
Boulder Valley School District experimented with EV school buses but the EVs failed miserably. Students didn’t like being cold and they and their parents didn’t like the propensity of the buses to slide off the roads.
A counter-suite should be for Boulder to pay for the billions of dollars it has saved in edible produce costs due to the fertilization value of emitted CO2. Or perhaps in the significantly reduced deaths from cold weather….
More evidence that the establishment of a nation under the rules and constitution of the states of the New World federating was a big mistake.
Fancy having an entire civilisation at the mercy of judges.
More evidence? Big mistake?
Wow.
They are trying to codify psychotic delusion through legal judgement. It will be an outrage if they aren’t shut down.
All fuel/energy suppliers should agree that if one of the companies is held liable, then all fuel/energy suppliers will stop supplying all products into that state (because, as responsible companies, they wouldn’t want to cause any harm or climate armageddon in that state) until the ruling is reversed.
I’m sorry, but you are trying to apply logical thinking to this situation. To me it is illogical to ask for courts to regulate actions outside the city, state and national borders of Boulder. If Boulder wants to forbid emissions of CO2 inside Boulder, then go for it. Outside, not so much.
The Supremes could totally ban the use of the oil produced by the companies named in the lawsuit. It would not make any difference to the climate! John Kerry famously said so over 5 years ago, as documented in this blog: John Kerry, Biden’s ‘climate czar’ admits U.S. carbon dioxide emission cuts are pointless – Watts Up With That?
If the suit is prosecuted to the end and won, then all products made from coal, oil, or natural gas should not be for sale in Colorado. You can’t claim ongoing damages without also agreeing that using them should be stopped immediately.
‘You can’t claim ongoing damages without also agreeing that using them should be stopped immediately.’
Cigarettes are still produced and used. The real power of these suits is that they are not just ‘money grabs’, but also a significant weapon in the Left’s arsenal to destroy the market economy.
Take your idea and add a bit to it. The suppliers should petition the courts to issue a stay such that they are legally inhibited from supplying those products. Otherwise, if they voluntarily stop they will be at risk of lawsuits due to causing harm and death. Having a court stay protects them from furious rounds of litigation for not supplying.
Nice twist !!
(:-))
The plaintiff claims harm. The defendants’ products are not even capable of causing or contributing to that claimed harm through the emission of CO2 from otherwise beneficial usage of those products. Honestly, that should be the end of it.
How so? Dynamic energy conversion within the general circulation massively overwhelms the static incremental “warming” tendency from rising CO2. The modelers know this! Why don’t the defendants present direct evidence against the mechanism through which the damaging effect is claimed to operate? The maximum influence in the direction of climate “harm” is vanishingly weak in any case. This is one way to show the de miminis nature of the plaintiff’s claimed mechanism of causation.
https://drive.google.com/drive/folders/1PDJP3F3rteoP99lR53YKp2fzuaza7Niz?usp=drive_link
Thank you for your patience as this point is often repeated.
Before any claims can be made in this manner due to wild fires it must be first established that ZERO arson was involved and the correct and proper forest management was conducted.
It the city was negligent in proper care of the forests and/or someone deliberately set the fire(s), then there is no responsibility for those fires falling on those companies.
Very interesting case study.
The Supreme Court is actually addressing the application of State versus Federal law in cases transcending State borders.
It will be interesting to see how they ravel this Gordian Knot.
I’m no lawyer or constitutional scholar (or any kind of scholar for that matter) but even if the states win this round don’t have to eventually actually demonstrate some kind of real injury or harm and not just some speculative possible future harms?
In a damages case like this, a civil claims case, it merely requires the preponderance of the evidence and the ability to emotionalize the claims. At issue is a wildfire and the damage wreaked by it.
“In 2018, the City of Boulder and Boulder County, Colorado, sued ExxonMobil and Suncor Energy in state court. They seek compensation for local costs they attribute to climate change, including wildfires, heat, and other impacts.”
First Question : What damages ?
And users suing dealers for supplying what the choose — need ?
Users suing dealers has happened. 🙂