As the U.S. Supreme Court prepares to hear arguments in Boulder’s climate lawsuit, more than three dozen amicus briefs made the same essential point: Boulder’s climate lawsuit is an unconstitutional attempt to use state courts to dictate national energy and climate policy, and the Court should put a stop to it.
The briefs represent one of the broadest coalitions to weigh in on climate litigation in years, spanning the U.S. Department of Justice, more than 75 members of congress, 27 state attorneys general, energy-producing Colorado counties, former senior national security officials and major business, legal and policy organizations.
Ahead of oral arguments this fall, here’s what they are saying:
Boulder’s Claims Are Preempted by Federal Law
The U.S. Department of Justice led with a no-nonsense warning about the danger of allowing local governments to use state law to regulate a global issue:
“This case presents a basic question: Can one city wield one State’s law to dictate how the rest of the world must address a global problem with global effects? The Constitution supplies the answer: Absolutely not […]
“Our federal system would disintegrate if each State could tackle inherently national or international problems by forcing its regulatory prescriptions on the other 49. That free-for-all would generate a scrum of competing regulatory approaches and republic-threatening tension.”
That argument has already won in courts across the country. But the Colorado Supreme Court bucked that trend by letting Boulder’s case proceed in state court – a decision Senators Ted Cruz (R-TX), Chuck Grassley (R-IA), Mike Lee (R-UT), and Ted Budd (R-NC) directly challenged in their brief:
“The Colorado Supreme Court is mistaken. The Constitution—as evidenced by its structure and our Nation’s Founding-era history—prohibits the application of Colorado law to activities taken outside of Colorado and having no connection to the state.”
Outside of government officials, other associations have similarly advocated for the need to respect federal preemption in these cases. The National Association of Manufacturers explains in their brief:
“This case, as well as the broader climate litigation, is an unapologetic attempt to circumvent the Court’s ruling in AEP. […] The inescapable fact, though, is that regardless of how the claims are repackaged, the people, products and activities contributing to global climate change cannot be subjected to any one state’s liability law.”
Regulation Through Legal Claims
Several amicus briefs also made clear that Boulder’s lawsuit is not ordinary tort litigation. It is an attempt to regulate global greenhouse gas emissions through state courts while bypassing Congress, federal regulators, and the democratic process.
As 74 members of the U.S. House of Representatives, led by Majority Leader Steve Scalise (R-LA), explained:
“The claims here necessarily regulate greenhouse-gas emissions because they would assign liability based on the alleged effects of those emissions. Respondents thus seek to impose their own damages-backed rules on when and to what extent greenhouse-gas emissions are appropriate, regardless of whether those emissions result from conduct that Congress has permitted.”
The U.S. Chamber of Commerce emphasized the same point, noting that global climate policy cannot be set by individual states or local juries:
“Respondents’ lawsuit is fundamentally about global climate change—a cross-border, multinational problem. A phenomenon of this nature, which affects (and is affected by) not just every State but every nation in the world, requires uniform regulation that the laws of individual States simply cannot provide.”
Cases like Boulder’s don’t just undermine the policymaking process – they also threaten the country’s ability to negotiate energy and climate policy with a unified voice. Former senior foreign policy and national security leaders Mike Pompeo, James A. Baker III, Nikki Haley, and H.R. McMaster describe in their brief how this type of regulation can undermine diplomacy:
“Permitting individual states to frame their own regimes for regulating global emissions and local juries to allocate the proportionate responsibility of American companies undercuts the President’s ability to engage in ‘effective diplomacy’ by ‘compromis[ing] the very capacity of the President to speak for the Nation with one voice in dealing with other governments.”
A Threat to Colorado Communities and American Consumers
Boulder’s lawsuit also carries serious consequences for Colorado communities far outside Boulder County.
In their brief, Archuleta County, Delta County, Grand County, Garfield County, Mesa County, Montezuma County, Montrose County, and Rio Blanco County warned that Boulder’s litigation would directly threaten energy producing communities across the state:
“The potential impacts of this litigation on these Counties are staggering, particularly compared to Respondents Boulder County and the City of Boulder, which are located half a state away on Colorado’s Front Range. Respondents’ litigation tactics discourage continued domestic energy production and investment, threatening these Counties’ rural economies and their ability to fund roads, schools, emergency services, and other critical public functions.”
The economic risks extend well beyond Colorado. University of Virginia School of Law Professor Jason Johnston explained that imposing retroactive liability on American energy companies for decades of lawful conduct would ripple across every sector of the U.S. economy – from agriculture and transportation to manufacturing and consumer goods.
If Boulder’s lawsuit is allowed to proceed, there’s no reason plaintiffs’ lawyers would not repackage similar claims against other industries. Attorneys and activists have already tested the waters with PR campaigns and failed lawsuits against the automotive and utility sectors, respectively. Boulder’s case presents a wider threat of endless liability, as 26 states, led by Alabama, explain in their brief:
“The theory used against energy producers here can be expanded to target any extraterritorial activity that purportedly ‘exacerbate[s] climate change.’ And really, the same theory could be extended to justify action against any activity that produces nationwide impacts.” (Emphasis added)
Bottom line: Nearly 40 amicus briefs have delivered a unified message to the Supreme Court: climate policy belongs with Congress and federal regulators, not with local juries in state courtrooms. The Supreme Court now has an clear opportunity to draw that line and deliver a major blow to the climate litigation campaign.
