Boulder wants to regulate activity in other states through its police power. It can’t do that. What it can’t do through regulation, it surely can’t do through ...
My third observation is that Justice Barrett gets it. After asking a series of incisive questions in the wake of Justices Gorsuch and Kavanaugh, she put the point to Boulder with a stiletto. She asked, “Everybody agrees that state tort law is a form of regulation. But what if Colorado passed a law purporting to cap emissions in the other 49 states? Is there any principle that would prevent that?”
Boulder responded that a state cannot do that, but that is “different than a state providing a tort remedy for conduct that took place elsewhere.”
Justice Barrett went on: “So even if Colorado says, whereas these emissions are harming the residents of Colorado, whereas these emissions are causing climate change that are creating all of the exact same harms that your suit alleges, that would not be okay?” Boulder responded, “I don’t think so.”
And then the key point from Justice Barrett: “So the same thing can happen through a tort suit, though?”
This the crux of the case. Boulder wants to regulate activity in other states through its police power. It can’t do that. What it can’t do through regulation, it surely can’t do through litigation. As I have explained, the proponents of these suits recognize that they can’t actually regulate fossil fuels through the political process, so instead they go to friendly state courts. If they were to succeed, that judicial collectivization would be a stunning arrogation of political power to the judiciary in service of — as Justice Barrett pointed out — a fundamentally illegitimate regulatory goal in our federal system.
Justice Kavanaugh followed up on this line of questioning, asking, “So why is the state tort suit different than the state law?” Boulder’s response? “It’s a matter of tradition.”
If that argument sounds familiar, it’s probably because you’ve seen Animal House. (“The Delta House has a long tradition of existence.”)
A state tort suit is not different from Justice Barrett’s hypothetical statute. Any first-year law student can tell you that — in the states in particular — legislation and litigation are two sides of the same regulatory coin. It’s unsurprising that Justice Barrett saw right through that with her Socratic style.
Keep this in mind next time internet troglodytes insist that Justice Barrett is “not conservative” just because she didn’t do the president’s bidding on the issue of the moment.