The Supreme Court has its first argument of its new term on October 5. That first argument asks whether a county in Colorado can put the global energy economy on trial before a local jury. And intriguingly, despite gas prices becoming a major focus of the midterm elections, only one side’s State Attorneys General are supporting a win for American energy dominance and lower gas prices.
The case is Suncor Energy v. County Commissioners of Boulder County. In 2018, Boulder sued Suncor and ExxonMobil under Colorado law. It alleged a whole slew of claims: public nuisance, trespass, unjust enrichment, and consumer fraud; and it asked for money to cover its past and future costs of adapting to climate change. Boulder’s theory is that the two companies produced and sold fossil fuels, those fuels were burned all over the world, and the resulting emissions changed Boulder’s weather. The Colorado Supreme Court let the suit proceed by a 5-2 vote.
While Boulder is the only plaintiff in this case, this type of case has spread across the country. More than two dozen similar suits are pending in state courts around the country. They share a single explicit goal: take the emissions from every car, combine, furnace, and factory on earth, attribute them to a few energy producers, and have one state’s jury send the bill. But the subtext is more nefarious: end American energy dominance as we have grown to know it.
Iowans are paying attention. Our farmers run diesel through their tractors and grain dryers and spread fertilizer made from natural gas. Our families heat their homes with natural gas in the winter. Billions of dollars in damages in a Colorado courtroom does not stay in Colorado. Those damages get priced into every gallon and every therm, in every state. That is why Iowa joined a 26-state coalition led by Alabama urging the Court to take this case.
The coalition warned that Boulder’s approach would allow “dozens of States, localities, and even private parties” to impose “ruinous liability” on the energy industry. The United States, through President Donald Trump and Attorney General Todd Blanche’s Department of Justice, agrees that federal law bars these suits.
The constitutional principle at stake is older than the Constitution. No State can legislate for another. Each State’s lawmaking power ends at its borders, and when pollution crosses those borders, the dispute belongs to federal law. The Supreme Court has said this for more than a century, from Missouri v. Illinois in 1906 through Milwaukee I in 1972, which held that interstate air and water pollution is governed by federal common law. In International Paper v. Ouellette (1987), the Court held that the only state law a plaintiff may use against out-of-state pollution is the law of the State where the pollution originates. And in American Electric Power v. Connecticut (2011), the Court held that the Clean Air Act displaced any federal common-law claim over carbon dioxide emissions.
Boulder tries to get around all those cases with a clever move. It argues that, because Congress displaced the federal claim, Colorado law now comes back to fill the space. But nothing was there to come back. Colorado state law never reached emissions in Texas, Alberta, or Qatar in the first place.
Ryan Walsh and Michael Fragoso make this point well in a new analysis for the Notre Dame Journal of Law, Ethics & Public Policy. They treat the territorial limit on state power as a “constitutional backdrop,” a preexisting rule the Constitution left in place. Some scholars have called the case “a conservative intuition in search of a constitutional clause.” Walsh and Fragoso answer that “the search should be called off.” The rule doesn’t need a clause, because it was already the law before the Founding. They also describe exactly why Boulder’s injury is different in kind from a factory dumping waste into a neighboring river: “What Colorado experiences is its share of a global condition to which every emission in every jurisdiction would contribute identically.”
And that is not the only viable approach to resolve this issue. Important treatises known to the founder like The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nation and Sovereigns, can help inform an Originalist understanding of what principles limited State authority at the Founding.
Boulder answers that pollution has always been a matter for the states’ to regulate, and that its real complaint is deception. Not so. The harm Boulder alleges is climate change. The remedy it seeks is money for every dollar climate change costs the county. The Supreme Court recognized long ago that “regulation can be as effectively exerted through an award of damages as through some form of preventive relief.” A verdict that sets the price of worldwide emissions is emissions regulation, whatever the complaint calls it.
None of that leaves anyone without a forum. Walsh and Fragoso note that Congress could authorize claims like Boulder’s if it chose to. It hasn’t. Setting national energy policy is a job for the elected branches, which answer to voters in Iowa as well as Colorado. It is not a job for twelve jurors in a county of about 330,000 people.
The Court also added a question on its own: whether it has jurisdiction to hear an interlocutory appeal from a state court. It should decide that it does and resolve the merits. Every year these suits remain pending, they impose costs on the defendants and pressure them to settle.
The term that follows is packed. Later in October the Court will hear cases on immigration detention and digital privacy. But no case this term raises a more basic structural constitutional question. And answering this question could be the next major step towards keeping California in California. The justices should hold that Boulder’s regulatory reach ends at the county line.
Eric Wessan is the Solicitor General of Iowa.
