Boulder filed its brief with the U.S. Supreme Court Monday night, eight years after filing a climate lawsuit against energy companies. The filing recycles arguments that courts across the country have rejected — and devotes a remarkable share of its pages to arguing the justices shouldn’t reach those arguments at all.

One day later, the federal government made clear that it wants a seat at the table.

On Tuesday, the United States asked the Supreme Court for permission to participate in oral argument alongside the energy companies. In its motion, the government reiterated its position that Boulder’s position runs afoul of “the Constitution’s territorial limits on state authority and the federal government’s exclusive role over foreign affairs.”

Yet long before Boulder’s case reached the Supreme Court, supporters of the climate litigation campaign acknowledged that these lawsuits were legally aggressive — and that litigation itself could advance their objectives even if the cases faced long odds in court.

The Campaign Never Expected to Win in Court

When Boulder’s lawsuit was filed in 2018, The New York Times reported that Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, believed the communities’ chances at the Supreme Court would be “slim.”

But winning was not the only potential payoff Burger identified. He suggested the pressure created by litigation could change how companies operate or prompt settlements involving a carbon-tax framework.

Burger was blunt about the legal theory itself:

“The lawsuits are, without question, pushing the envelope of nuisance law and tort law.”

He made those comments before joining Sher Edling — the Rockefeller-backed firm representing plaintiffs in climate lawsuits across the country — as Of Counsel, a role he holds while continuing to run the Sabin Center.

Eight years later, Boulder is before the Supreme Court. The same questions Burger identified at the outset are now squarely before the Justices.

They Said the Quiet Part Out Loud

Boulder argues in its brief that this case involves conventional state-law claims and local injuries, and seeks damages to finance climate resilience projects and not an attempt to dictate national climate policy.

The people involved in the lawsuit have been considerably more candid outside the courtroom.

A 2021 memo prepared for a Boulder City Council study session called the lawsuit one of several “levers cities can take hold of to drive more fundamental systems change.”

An EarthRights International attorney representing Boulder told a reporter in 2020 that the goal is to “raise the price of the products” created by energy companies so they become too expensive to use.

And during a Federalist Society panel last year, David Bookbinder, who served for years as part of the legal team representing Boulder and San Miguel, called the lawsuits “an indirect carbon tax.” He explained that liability imposed on energy companies would be passed through to people purchasing their products, calling litigation a “convoluted way to achieve the goals of a carbon tax.”

The entire goal is to raise energy prices and force Americans to reduce fossil fuel consumption and Bookbinder is not alone in that effort.

Boulder Doesn’t Decide National Energy Policy

That helps explain the extraordinary opposition Boulder’s lawsuit has attracted.

Nearly 40 friend-of-the-court briefs were filed in support of energy companies, many made one thing clear: Boulder can’t use this lawsuit to regulate the energy industry in other states or countries.

The United States argued that these climate lawsuits “severely interfere with the federal government’s constitutional and statutory responsibilities.”

Twenty-six states, led by Alabama, put it in no uncertain terms:

“Whether Congress or federal courts supply the controlling law, our Constitution does not allow two small localities like these to set national energy policy.”

Even statewide Democrats and environmental groups in Colorado have expressed skepticism around Boulder’s claims. And other counties in Colorado opposed Boulder’s efforts as well:

“The potential impacts of this litigation on these Counties are staggering…Respondents seek to impose their energy policy preferences not only across the nation and the globe, but also upon sister counties in the State of Colorado.”

Bottom Line: Boulder’s latest filing follows the same playbook the climate litigation campaign has used from the beginning: present sweeping efforts to reshape energy policy as ordinary state-law lawsuits while advocates and attorneys outside the courtroom openly discuss systems change, higher energy prices and an indirect carbon tax.

The Rockefeller-funded climate litigation campaign is yet another attempt to regulate U.S. and international energy policy through the courts instead of through Congress.