Will the Court Stop Climate Lawsuits From Becoming a National Carbon Tax?

On Monday, the Supreme Court heard oral arguments in a case with significant implications for federalism, corporate liability, and environmental regulation in our country. Given the potential ramifications, it is unsurprising that the case has drawn significant attention in recent weeks.

In Suncor v. Boulder, the justices considered whether federal law prohibits state-law claims seeking damages from energy companies for alleged climate-related harms.

If their questions were a guide, the justices appeared wary of Boulder’s theory, and this skepticism was not confined to one side of the bench. A Washington Post editorial said as much, describing a Court reluctant to open the door to novel climate lawsuits such as the one being pursued by Boulder County officials. At National Review, Michael Fragoso argued that Justice Barrett “gets it.” Boulder cannot regulate out-of-state activity through its police power, and what it cannot do through regulation, it surely cannot do through litigation. Barrett’s own questions fit that reading. She told the companies’ counsel she agreed that state law could not have simply sprung into effect when Congress displaced federal common law and passed the Clean Air Act.

Outside the Supreme Court Monday, Alabama Attorney General Steve Marshall and Utah Attorney General Derek Brown warned of the extraterritorial effect Boulder’s suit would have on their states. Speaking with Fox News, Attorney General Marshall warned that the intent of Boulder’s suit is “to basically create a carbon tax on both producers and emitters across the country, which would include, by the way, my cattlemen in Alabama producing beef for our country, those that are creating concrete to be able to build structures and be able to grow our economy,” adding, “[t]hey ultimately want to bankrupt that industry to have their preferred climate change policies be in play.” Attorney General Brown said “[t]hey want to regulate not just what happens in Colorado, but what happens in my state of Utah.... That’s not the way the system works. So, really, this case comes down to one main issue, and that is who gets to decide things like energy policy. And ultimately, under our system, it should be Congress.”