Why the Supreme Court Should Shut Down Boulder’s Climate Case

T his coming Monday, the Supreme Court’s new term will begin with oral arguments in one of the biggest cases in recent memory. In Suncor v. Boulder, the Court will consider whether the City of Boulder — or any state or local government — can invoke state law to sue global energy companies for climate change.

The case is important not just because the city’s claims are so outlandish, but also because of the acute threat they pose to the Constitution. Since America’s founding, the Supreme Court has recognized the “elementary principle” that states have sovereign authority to regulate only within their own borders. When the states joined the union, they mutually agreed to limit the reach of their laws to respect the equal sovereignty of the other states that joined with them.

While the law of each state can operate robustly within its own sphere, it can’t reach out to regulate activity outside its own borders. Much less can the law of any one state regulate carbon emissions across the entire country and the world. If there is an interstate or international problem like climate change that truly demands governmental action, that is what the federal government is for — and Congress is amply equipped for the task. It is up to the people’s elected representatives to make that policy choice at a national level.

That structural principle has been so well understood for so long that the Supreme Court has rarely had to enforce it. Whenever the issue has come up, the Court has been steadfast. The Court has repeatedly made clear that disputes about interstate pollution, in particular, have to be governed by federal law due to the inherently federal nature of the problem. In a 2011 case brought by Connecticut and other states, Justice Ruth Bader Ginsburg wrote a unanimous opinion recognizing that it would be “inappropriate” to apply “the law of a particular state” to claims about global climate change. The basic structure of our constitutional system made that point obvious to all of the justices.

However, the longstanding consensus is under direct assault in the Boulder case. This lawsuit is part of a new wave of litigation launched against the energy industry by activist state and local governments. Unable to elect majorities in Congress to enact carbon taxes or other energy regulations, they are trying to use the courts to achieve the same goal. Indeed, as a member of Boulder’s legal team candidly admitted during a public event last year, the real aim of this nationwide lawfare campaign is to levy a massive “carbon tax” that could “bankrupt” the energy industry. The ultimate goal is a judicially mandated Green New Deal, imposed through the jury box instead of the ballot box.

A key part of the activists’ strategy has been to use the state courts to evade review in the federal courts — especially the U.S. Supreme Court. Thus, despite the obvious national and international implications of their claims, they have filed the vast majority of them in state courts and have aggressively battled to keep them there. The activists know that if they can stick to their own hand-picked, home-turf jurisdictions, then they can stretch the law in all kinds of novel ways, fend off early appellate review, and count on sympathetic juries to impose staggering verdicts awarding them billions of dollars and more.

In keeping with that strategy, Boulder has spent a considerable part of its briefing trying to convince the U.S. Supreme Court that it lacks jurisdiction to hear this appeal at all. But as the Court granting review of this case suggests, the activists’ luck may have finally run out. Based on longstanding precedent, the Supreme Court has clear authority to review federal issues that could dispose of the entire case in circumstances such as these, making further proceedings back in state court nothing more than a pointless burden. And that is exactly what the Court should do, to prevent the further abuse of the law in service of a political and ideological agenda that most Americans and their representatives reject.

In short, this is precisely the type of case that the Framers designed the Supreme Court to resolve. When political factions try to use the judicial system to circumvent the legislative process and strain the limits of the Constitution, the Court’s duty is to act as a pillar to uphold the constitutional structure. And if that structure means anything, it does not allow the law of any single state to impose worldwide liability on the energy industry for global climate change.