The U.S. Supreme Court opens its new term Monday, Oct. 5, with a case asking whether Boulder can sue ExxonMobil and Suncor over local climate-change costs. Dozens of similar suits remain pending around the country. Billions of dollars could be at stake.
The justices must decide whether state and local governments can sue energy companies for allegedly deceiving the public about fossil fuels. Justice Samuel Alito has recused himself, raising the possibility of a 4-4 split that would let Boulder’s suit continue.
The Case Against the Companies
Boulder and Boulder County argue taxpayers shouldn’t have to absorb millions of dollars in added local-government costs from wildfires, severe storms, extreme heat and flooding. They say oil companies misled the public for decades about fossil fuels’ role in worsening those effects. As evidence, they cite an internal 1979 Exxon memo that listed the effects of rising carbon dioxide levels, including hotter, drier southwestern states and a diminished Colorado River. They also point to a 2000 New York Times advertisement titled “Unsettled Science,” in which ExxonMobil said “fundamental gaps in knowledge leave scientists unable to make reliable predictions about future changes.”
“This case is about the big oil companies’ deception,” said Corey Riday-White, legal director of the Center for Climate Integrity. Maddison “Maddi” Schink, a Marshall Fire survivor and now a 26-year-old graduate student at the University of Denver, joined a friend-of-the-court brief backing the suit. The Dec. 30, 2021, fire, Colorado’s most destructive, burned more than 1,100 homes and a hotel and killed two people. “It’s here. It’s here to stay, and we need to do something about it,” she said.
The Companies’ Defense
Exxon and Suncor tell the court they recognize that greenhouse gas emissions contribute to climate change. They say the right policy approach is “balancing risk reduction with affordable energy.” Their argument is that a Colorado jury shouldn’t regulate the global atmosphere. The Trump administration backs their appeal.
Todd Zywicki, a professor at George Mason University Antonin Scalia Law School who filed a brief supporting the companies, put it bluntly. “This is about whether a bunch of rich hippies in Boulder County are allowed to dictate environment and energy policy to the entire rest of the world,” he said. He also rejected Boulder’s comparison to tobacco suits over “light” cigarettes. People might have quit smoking had they known the risks, he said, but people won’t stop using fossil fuels. “It’s absurd,” he said.
The legal ground remains contested. Bridget Fahey of the University of Chicago Law School called the companies’ federal-preemption argument “striking and very novel.” She said they point to no specific language in federal law or the Constitution. “I think it’s more of a vibes case than a law case,” she said. Fordham’s Adam Orford noted that letting the suit proceed wouldn’t guarantee damages. A court could find residents’ own driving and other activities contributed so much that no one is responsible.
The precedent favors the companies, too. In 2011, the court unanimously held that cities and states couldn’t force major electric utilities to cut greenhouse gas emissions because that decision belonged to the federal government. Local governments then shifted to consumer-protection and public-nuisance claims modeled on tobacco and opioid cases. NPR said most court observers view the case as an uphill battle for environmentalists.
The Rest of the Docket
The term also includes a religious-liberty fight. St. Mary Catholic Parish in Littleton, Colorado, wants state funding under the state’s universal pre-kindergarten law but won’t admit LGBTQ students or students with gay or trans parents. The parish says the requirement violates its free-exercise rights. The state says funding the school would violate its anti-discrimination law. Justice Amy Coney Barrett, who recused herself last term in a 4-4 charter-school deadlock, is participating.
In December, the justices will hear whether state and local bans on semi-automatic weapons such as the AR-15 violate the Second Amendment. Lawyer Erin Murphy said the “single most important question” is who gets to decide what guns people have. On immigration, the court will consider whether the Department of Homeland Security may deport migrants to third countries and whether the administration may detain undocumented immigrants without bond hearings. Possible cases include Ten Commandments displays in classrooms and whether states can regulate Kalshi, a $40 billion prediction market.
Georgetown’s Stephen Vladeck said emergency applications now produce twice as many full-court rulings as the merits docket, “a very new phenomenon.” Those rulings come with little briefing, no oral argument and often little explanation.
Why This Matters:
The Boulder case reaches beyond one city’s grievances. It asks who sets energy policy: elected lawmakers in Congress, or juries and local governments applying state tort and consumer-protection law. Dozens of similar suits remain pending, with billions potentially at stake, and the outcome could shape costs for energy producers and, eventually, consumers who rely on affordable fuel. The 2011 ruling left emissions policy to federal authorities. A reversal would invite a patchwork of local litigation against a national industry. A win for Boulder wouldn’t mean automatic payouts, as Orford noted. Still, uncertainty and legal expense alone would weigh on investment. For those who favor limited, accountable government, the central question is whether policy this broad should be made by legislatures answerable to voters, not by courtroom verdicts.