Suncor Energy (U.S.A.) Inc. v. Commissioners of Boulder County

This case involves an unprecedented effort to use state law to regulate global conduct.

Boulder is suing petitioners under Colorado law on the theory that their global conduct increased the global use of fossil fuels, which led to an increase in global greenhouse gas emissions, which contributed to global climate change, which resulted in global harms.

Our constitutional system does not permit state law to be used in that manner.

The Constitution bars the application of state law to certain inherently federal areas.

When the states entered the union, the plan of the convention required them to surrender certain preexisting powers in order to ensure each state's equal sovereignty.

Because of the ambient nature of air and water, and the conflicting rights of states, this court has held for over a century that federal law governs interstate pollution claims.

That principle applies with even greater force to claims involving global climate change.

In addition, the Constitution's prohibition on extraterritorial regulation precludes a state from extending its law beyond its borders to regulate global conduct with global effects.

A state does not have the power to regulate out-of-state conduct based solely on attenuated effects on the state.

What is more, the use of state law to regulate global climate change would substantially interfere with the nation's foreign policy.

And far from authorizing the application of state law, the Clean Air Act independently preempts any effort by one state to impose its law on emissions originating in others.

If Boulder's claims are allowed to go forward, some ninety thousand municipalities across the country will have the ability to make national and international energy policy by asking juries to impose catastrophic damages on selected fossil fuel producers.

Put simply, that is not the constitutional scheme that the founders adopted.

The Colorado Supreme Court's judgment should accordingly be reversed.

I welcome the court's questions.