Experts say liberal justices hunted for a jurisdictional off-ramp as the Supreme Court heard a climate damages case attorneys general warn could impose a nationwide carbon tax.
The Supreme Court opened its new term by taking up Fox News Digital reported oral arguments in Suncor v. Boulder, a fight over whether local governments can use state tort law to extract climate damages from oil companies.
At the center of the case is a simple constitutional question with national stakes: who sets energy policy in America, Congress, or trial lawyers and city halls.
Conservative legal observers watching the bench say Justices Ketanji Brown Jackson and Sonia Sotomayor spent much of the argument searching for a way not to decide that question at all.
Jackson repeatedly framed the dispute as too early for the high court. She called it “premature from the standpoint of this court exercising its jurisdiction.”
She told Principal Deputy Solicitor General Sarah Harris, who argued in support of Suncor, that the justices do not “have the whole set of facts” and do not “really know enough to be confident” the theories before them apply.
"It feels to me like the defendants... are bringing it back to federal court before the state courts have really had a chance to sort out who is the source, what is their allegation with respect to how this causation is happening"
Sotomayor pressed a similar line with Suncor attorney Kannon Shanmugam and floated sending the matter back to Colorado rather than resolving it in Washington.
"If we're unsure of your characterization, because there's certainly a number of amici brief who disagree with that characterization, shouldn't we be certifying this question to the Colorado court instead of us deciding it? We have to be sure of our jurisdiction before we take it"
Carrie Severino, president of the conservative judicial group JCN, read those exchanges as a signal of weakness on the merits, not careful procedure.
"The fact that they kept going back to trying to create a jurisdictional problem tells me they don't feel confident that they have the votes in this space"
Severino put it more bluntly still: “Jackson and Sotomayor were looking for an escape hatch.”
Hans von Spakovsky, senior legal fellow with Advancing American Freedom, made the same point to Fox News Digital. He said the liberal justices’ premature-ruling talk was an “off-ramp” because they fear losing on the core issue, whether federal law such as the Clean Air Act overrides, or preempts, state claims like Boulder’s. Preemption is the rule that a federal statute can block conflicting state lawsuits.
Alabama Attorney General Steve Marshall saw the same pattern in the questioning.
"Well, I think you saw both Justice Jackson and Justice Sotomayor try to find an out for this court, basically saying the court doesn't have jurisdiction at this stage of the case to be able to make a final ruling. I think that you saw the advocates on behalf of Suncor be able to distinguish that."
The case arrives in an unusual posture. It is still before the Colorado Supreme Court. That court already allowed Boulder’s state-law claims to move forward. If the U.S. Supreme Court steps away on jurisdiction and never reaches the federalism question, that Colorado ruling stays in place and the broader national fight remains unresolved.
Boulder alleges ExxonMobil and Suncor knew for decades about climate risks tied to fossil fuels and misled the public. Communities behind the suit estimate taxpayers could face more than $100 million in costs to adapt to wildfires, drought, and damage to roads and other infrastructure. An amended complaint points to a 1977 internal ExxonMobil memo that circulated among top managers and stated that “current scientific opinion overwhelmingly favors” the view that fossil fuels contribute to rising CO2.
Those are allegations in litigation, not findings the Supreme Court has endorsed. What the justices must decide is whether a Colorado courtroom is the right place to litigate global energy policy.
The New York Post reported that ExxonMobil and Suncor appealed after Colorado’s high court green-lit the state-law damages suit, and that the Trump administration backed the companies. The administration’s position is that interstate air pollution is a federal field and that the Clean Air Act leaves no room for this kind of state claim. A decision is expected by the end of June.
Shanmugam told the Court the suit is “an unprecedented effort to use state law to regulate global conduct.” Harris, for the Justice Department, said interstate air pollution “is an inherently federal area.”
Chief Justice John Roberts pressed Boulder attorney Kevin Russell on whether a win for the city could trigger copycat suits nationwide. Russell said legal limits exist. He also acknowledged to Justice Clarence Thomas that Boulder’s theory could open the door to suits against other fossil-fuel businesses.
At the close of argument, Shanmugam underscored the scale. Von Spakovsky noted the Suncor lawyer’s warning that some 90,000 political jurisdictions could sue, and that individuals could sue too, claiming damages from global warming. That is the kind of open-ended liability the Court’s conservative majority has long resisted when a case lacks clear limiting principles.
Von Spakovsky also flagged another point the majority dislikes: Boulder is trying to settle a major policy fight in the courts instead of in the legislative branch.
Marshall did not hold back about the real-world aim.
"It's 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"
He added that activists “ultimately want to bankrupt that industry to have their preferred climate change policies be in play.”
Utah Attorney General Derek Brown said the claims do not stop at Colorado’s border. “They’re literally addressing behavior that takes place all over the world,” he said. In his view, Boulder wants to regulate conduct in Utah, and even in Saudi Arabia. “That’s not the way the system works.”
Brown boiled the case down to one issue: who decides energy policy. “Under our system, it should be Congress.”
Former Washington Gov. Jay Inslee, a longtime advocate of aggressive climate policy, argued the opposite side outside the legal weeds. He said communities that lost homes and watched towns burn deserve “a day in court,” claimed industry scientists knew the product was dangerous as far back as 1967, and said the companies “lied about it.” “Now it’s an American right to be in court,” Inslee said. “Nobody should bar an American from their day in court.”
The right to sue is not the same as the right to conscript state tort law into a national energy regime. That is the line the oil companies, the administration, and the red-state attorneys general are asking the Court to hold.
One week before arguments, Breitbart reported that Justice Samuel Alito recused himself from Suncor Energy Inc. v. County Commissioners of Boulder County. A letter from Supreme Court Clerk Scott Harris said Alito “will not continue to participate.” No reason was given.
The Court’s code of conduct says a justice should step aside when a reasonable person familiar with the circumstances might question impartiality. Critics had previously raised Alito’s oil and gas holdings and urged Senate scrutiny. The recusal leaves the case without him on the bench for the decision.
Climate activists gathered outside the Court as arguments began. Inside, the live fight was less about slogans and more about federal structure: whether Colorado can use its own laws to chase damages for emissions and conduct far beyond its borders, or whether that project belongs to Congress under statutes like the Clean Air Act.
If Jackson and Sotomayor persuade enough colleagues to duck on jurisdiction, Boulder’s state-law theory survives another day and the carbon-tax-by-lawsuit model keeps spreading. If the Court reaches the merits and sides with the companies, it draws a boundary that dozens of similar local actions have been testing for years.
Energy prices, manufacturing, farming, and basic infrastructure all sit downstream of that choice. So does the principle that major national policy is written by elected lawmakers, not invented in county court.
Voters already have a place to settle climate policy. It is called Congress, not a Colorado complaint designed to tax the whole country through the back door.
