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

purposes.Counsel, you would, uh, would concede that there are some situations in which an individual who engages in conduct in state B causes harm to somebody in state A can be sued, uh, under the law of state A, right?

Mr.

Chief Justice, we would concede that.

And so the principle of no extraterritorial regulation that I articulated in my opening does admit of exceptions.

There are cases in which the Court has permitted that, where a defendant can be said to be constructively present in the state by virtue of their conduct.

This case-

Well, well, constructively present in the state, presumably that is because of whatever injury they've inflicted upon, uh, the person in state A, right?

Yes, and in the mine run of-

Well, you can throw a rock over the border and hit him, that person can be-

Correct, and we have no truck with those cases.

Our point is that this goes further than any of those cases, and I would submit that that's really for three reasons.

First, none of the conduct that is at issue here can really be said to have been directed at Colorado.

Second, the harm at issue here is a harm that is diffused nationwide, and indeed worldwide.

And third, any causal nexus here is severely attenuated.

Well, just before you-

Now, just-

If you don't mind, because I'll lose track of the three of them, uh, otherwise.

Uh, wasn't directed at state A.

But if you're in B, and you're aiming at C, but you hit somebody in A, that doesn't make a difference, does it?

W- well, it, it, it cer- it certainly is true that if you are, um, say, across a state border, and you direct your conduct across the state border, many of the cases on which my friend relies fall into that paradigm.

I think what makes this case different is that in this case, not only do you not have any sort of direction of the conduct towards Colorado, but again, the causal chain here is severely attenuated.

And there is no case on which my friend relies where, in the face of such an attenuated chain of causation, this Court has said that the exception to the venerable pr- prohibition against extraterritorial regulation applies.

And I would submit that if you accept respondent's theory, the exception would swallow the rule.

Now, just to be clear, as I indicated at the outset, we are relying on two strands of, of federalist principle here.

The second is extraterritoriality.