Dozens of state and local governments have filed state-law tort suits in state courts around the United States collectively seeking billions of dollars in damages and other relief from major oil and natural gas producers for the alleged local effects of global warming and climate change. The potentially mind-boggling ramifications of allowing these proliferating climate-change tort suits to proceed are crucial not only for the defendant fossil fuel energy companies, but also for the nation’s economy, critical infrastructure, and homeland security.
Case Background
In Suncor Energy (U.S.A.) Inc., et al. v. County Commissioners of Boulder County, et al., No. 25-170, Suncor Energy (U.S.A.) and Exxon Mobil Corporation have filed a petition for writ of certiorari urging the Supreme Court to decide whether federal law precludes state-law tort suits for the alleged local effects of global warming and climate change. They are defendants in a suit brought by Boulder, Colorado seeking damages and other relief for those companies’ alleged role in “causing” or “exacerbating” global warming due to greenhouse gas emissions and supposed resultant “alteration” of the earth’s climate. Over a strong dissent, the Colorado Supreme Court held that federal law does not preclude the suit from proceeding.
On behalf of the Atlantic Legal Foundation, Washington Legal Foundation, and Federation of Defense & Corporate Counsel, I have authored and filed an amicus brief urging the Supreme Court to grant certiorari and hold that state-law, climate-change tort suits are constitutionally precluded because they necessarily involve a subject of exclusively federal interest.
Amicus Brief
The amicus brief argues that if the County and City of Boulder, Colorado can proceed with their suit seeking to hold the defendants liable for alleged local harm attributable to global warming and climate change, so can Colorado’s other 61 counties and 271 municipal governments, and indeed, tens of thousands of other local governments throughout the United States. If such suits are successful, businesses and individuals claiming to have been harmed by global climate change then could join state and local governments in their efforts to cash-in on the “climate crisis” by suing the nation’s major fossil fuel energy companies.
Boulder’s and every other climate-change tort suit also has a transparent political, as well as pecuniary, purpose: destroying the highly regulated oil and gas industry, or at least severely curtailing the entirely legal production, sale, and use of fossil fuels in the United States and abroad.
Climate-change tort suits that attempt to splinter fossil fuel producers’ alleged liability into countless state or local pieces cannot be reconciled with at least two indisputable scientific facts: First, global warming due to greenhouse gas emissions and resultant climate change are whole-earth phenomena that have no geographic or political boundaries. Second, there are a multitude of sources of carbon dioxide and other greenhouse gas emissions (including non-fossil fuel sources) both in the United States and abroad.
he Supreme Court long has recognized that interstate pollution is a subject of uniquely federal interest, and thus cannot be addressed by 50 different state-court and state-tort systems. The amicus brief argues that at the very least, there would be an enormous potential for conflicting or inconsistent findings of fact, conclusions of law, judgments, imposition of astronomical and overlapping damages awards, and additional remedies. Instead, a nationally uniform rule of decision is needed: a Supreme Court opinion holding that climate-change tort suits are precluded by federal law.