The Supreme Court on Monday agreed to take up a case that could determine whether cities and counties across the country can drag energy companies into state court and demand billions of dollars over climate change.
CBS News reported that ExxonMobil and Suncor Energy are asking the justices to shut down a lawsuit filed by the city of Boulder, Colorado, and Boulder County, which claims the companies owe massive damages for the global effects of producing and selling fossil fuels.
The Trump administration is backing the energy companies. And the stakes stretch far beyond Colorado.
Boulder and Boulder County brought their lawsuit in state court back in 2018, alleging that the energy companies' "unchecked production, promotion, refining, marketing and sale of fossil fuels" would "bring numerous catastrophic injuries to Colorado."
Their lawyers said the city and county want the energy companies to "share a portion of the financial burden their communities must bear in coping with an altered climate brought about in part by" their products.
Read that framing carefully. Boulder isn't alleging a specific spill, a specific plant malfunction, or a specific environmental violation.
It is alleging that the act of producing and selling energy, the same energy that heats Colorado homes and powers Colorado vehicles, constitutes a tort worthy of billions in damages.
The case wound through the Colorado courts. Last May, the Colorado Supreme Court affirmed a lower court's decision allowing the lawsuit to move forward. In 2023, the U.S. Supreme Court had declined to hear the dispute. This time, the justices said yes.
Lawyers for the energy companies laid out the constitutional problem plainly:
"In these cases, state and local governments are attempting to assert control over the Nation's energy policies by holding energy companies liable for worldwide conduct in ways that starkly conflict with our constitutional structure, as well as the policies and priorities of the federal government."
"That flouts the Court's precedents and basic principles of federalism."
The companies also argued that the Clean Air Act overrides the state-law claims Boulder is pressing. They warned that if suits like this are allowed to proceed, the industry could be forced to pay billions in awards, consuming "enormous resources" in the process.
Deputy Solicitor General Sarah Harris, writing on behalf of the Trump administration, echoed that concern.
She described the case as one of "vast nationwide significance" and warned that if Boulder's theory holds, every locality in the country could sue "essentially anyone in the world for contributing to global climate change." Harris wrote that Boulder's claims:
"Seek to hold petitioners responsible for all of their fossil-fuel activities, anywhere in the world — extending the reach of Colorado common law well beyond Colorado's territorial limits."
That is the core absurdity. A single Colorado county asserting jurisdiction over the worldwide operations of global energy companies, under state common law, for contributing to a phenomenon that is by definition planetary in scale.
If Colorado common law can reach every barrel of oil extracted in every country on earth, what can't it reach?
Boulder's case does not exist in isolation. Dozens of cities and counties have filed similar cases around the country.
Last year, the Supreme Court rejected an appeal from 15 energy companies seeking to quash lawsuits brought by Honolulu officials in Hawaii state court. The Court also turned away a bid by Republican-led states to block lawsuits brought by Democrat-led states against the energy industry.
The pattern is unmistakable. Progressive municipalities have identified state courts as the venue of choice for a legal campaign that federal courts would likely treat with far more skepticism. B
y keeping these cases in state court, plaintiffs avoid federal preemption arguments and get to press novel theories of liability in front of judges and juries more sympathetic to their cause.
This is not really about compensating Boulder for storm damage or drought costs. It is about using litigation to accomplish what legislation cannot. Congress has never passed a law declaring that energy production is tortious.
Voters have never endorsed the idea that filling your gas tank creates a cause of action. But a patchwork of state court lawsuits, each demanding billions, could impose that policy anyway, one verdict at a time.
The Court's decision to take the case signals that at least four justices believe the questions raised deserve answers. The fact that the Trump administration filed in support of the energy companies adds significant weight. Arguments will likely be heard when the Court's next term begins in October.
The practical implications are enormous. If the Court sides with the energy companies, it could close the courthouse door on an entire category of climate litigation that treats the existence of fossil fuels as a legal wrong.
If it doesn't, every energy producer in America faces the prospect of defending itself in every sympathetic jurisdiction that wants a piece of the pie.
Consider the incentive structure that creates. A city doesn't need to win these cases to extract value. The cost of defending against dozens of simultaneous lawsuits in state courts from coast to coast is itself a weapon. Even if the energy companies prevail in most of them, the legal fees alone run into the hundreds of millions. That is not justice. It is attrition.
What Boulder and its imitators are really suing over is modernity. Fossil fuels didn't sneak into the American economy through fraud. They built it. Every road, every hospital, every school in Boulder County exists because of the energy these companies produced.
The idea that the same municipalities that depend on affordable energy for their survival can turn around and sue the providers of that energy for having provided it is a legal theory that only makes sense if you've already decided the verdict before reading the complaint.
The Supreme Court now has the opportunity to draw a line. October can't come soon enough.
