OPINION:
For years, state and local governments have brought lawsuits against energy companies, seeking damages for the alleged consequences of climate change.
Plaintiffs typically characterize these cases as traditional claims under state nuisance, trespass or consumer protection law, but the labels cannot obscure the substance. These cases ask state courts to impose liability for conduct that is interstate, international and inseparable from national energy policy.
That is why the Supreme Court’s review of Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County matters beyond Colorado. The case presents a fundamental question of federalism and institutional authority: Who has the power to establish climate and energy policy? The Constitution, the Clean Air Act and controlling precedent point to Congress and the executive branch, acting through federal law and national diplomacy.
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Climate change is a global issue. A Colorado court cannot negotiate with China, India, Russia or Brazil. It cannot establish a uniform emissions policy for the 50 states, much less for nations responsible for most future emissions.
Nor can a local jury fairly apportion responsibility for global atmospheric conditions among a select group of American energy producers.
Nevertheless, Boulder and other plaintiffs seek potentially massive damages from energy companies for harms allegedly caused by worldwide emissions. These claims do not merely seek compensation for a discrete local injury. The requested relief would pressure companies to alter how they produce, market and sell lawful energy products.
In both practical and legal effect, these lawsuits attempt to regulate the energy sector through tort liability.
Plaintiffs respond that they are not asking courts to regulate emissions, only to award damages under state law. That distinction is unpersuasive.
A damages award can regulate conduct as effectively as an injunction. Faced with potentially ruinous liability, a company would be forced to change its operations, raise prices, reduce investment or exit the market.
As one of Boulder’s attorneys acknowledged, tort liability can operate as an indirect carbon tax, with the cost ultimately passed to consumers.
Federal law already occupies this field. In American Electric Power Co. v. Connecticut, the Supreme Court held that the Clean Air Act displaces federal common-law claims seeking abatement of greenhouse gas emissions. The court recognized that emissions policy requires an expert federal agency to balance competing environmental, economic and national interests.
If federal common law cannot support these claims, state tort law cannot impose a patchwork of conflicting obligations on the same companies.
The plaintiffs’ litigation strategy reinforces that conclusion. Despite the cases’ national and international implications, the plaintiffs have sought to keep them in state court, disclaiming federal interests, naming local defendants to frustrate removal and, in some instances, dismissing cases after defendants have moved them to federal court.
California Attorney General Rob Bonta acknowledged that the state waited to sue until it was confident that the case could remain in state court. Why? Because federal court was “close to being outcome-determinative.” Forum selection is central to the litigation strategy.
Allowing these claims to proceed would also create serious constitutional problems. Climate policy directly implicates foreign affairs, requiring the federal government to speak with one voice when dealing with foreign nations.
If one state court may impose liability on American companies for emissions occurring around the world, then other state courts may impose competing standards and remedies. That is the interstate and international conflict that the Constitution’s allocation of federal authority was designed to prevent.
The practical consequences would be substantial. Energy companies could face duplicative lawsuits, inconsistent standards and ruinous judgments based on the same global conduct. The resulting uncertainty would deter domestic investment, increase costs and threaten electric grid reliability.
It could also undermine energy revenue that supports tribal governments and economic development on tribal lands.
These cases raise First Amendment concerns. Plaintiffs increasingly seek liability based on what companies said about climate science and energy policy. State tort law should not punish participation in a contested public debate when the underlying questions belong to the political branches.
None of this suggests that climate risks should be ignored. They should be addressed through lawful, transparent, nationally coordinated policymaking. Congress can establish requirements, the president can negotiate international commitments and federal agencies can revise regulations through public processes.
State court climate litigation provides none of those safeguards. It is an effort to obtain through damages what advocates could not secure through legislation. That approach may be politically expedient, but it risks higher prices, less investment, weaker energy security and years of legal uncertainty.
The Supreme Court should recognize these cases for what they are: attempts to use state law to regulate global conduct and evade the federal institutions responsible for national climate policy.
Climate policy belongs in Congress, not a jumble of jury verdicts. The country needs one national legal framework, one voice in foreign affairs and an energy policy shaped by democratic accountability, not litigation strategy.
• A.J. Ferate is an appellate lawyer in Oklahoma City focusing on energy and constitutional issues.
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