Earlier this week, Boulder County Commissioners filed their response to energy producers’ petition urging the U.S. Supreme Court to review Boulder’s climate case. In doing so, they asked the high Court to deny review while contradicting arguments that their own attorneys have made for years.

Boulder claims the case involves only local harms—despite their own legal team, including David Bookbinder, long making it clear that the goals of the lawsuit extend far outside of Colorado. By submitting their response, ironically, Boulder inadvertently showcased why this case is the perfect opportunity for SCOTUS to finally weigh in climate litigation.

Their brief offers little new information, rephrasing the same weak arguments in other climate cases – many of which have been rejected by courts across the country.

Notably, Boulder had to be forced by the Court to respond at all, raising the question: if their arguments are so compelling, why did SCOTUS need to order them to file a reply?

Ulterior Motives Exposed

Like other climate cases, Boulder’s case is sold under the guise of corporate accountability, when in reality, climate cases are about using states’ legal systems to achieve wider policy goals that have failed at the ballot box or with the legislatures.

Even the plaintiffs’ own lawyers cannot conceal the true motives. During a recent Federalist Society panel, David Bookbinder, who served for years as part of the legal team representing Boulder and San Miguel, acknowledged that climate litigation is not really about accountability at all, calling it “an indirect carbon tax.”

The admission followed remarks from another of Boulder’s outside attorneys, Marco Simons, of EarthRights International, who said a key goal of the litigation is to “raise the price of the products” created by energy companies so they become too expensive to use.

Similarly, in 2021, a Boulder County official characterized the ongoing lawsuit as a means to advancing “systems-level change.”

A Clear Need for National Involvement

One of Boulder’s arguments is that, because SCOTUS declined to hear Honolulu’s climate case earlier this year, “there is no reason for a different result now.”

But the landscape has shifted significantly since that denial – something Boulder itself inadvertently concedes by noting that the federal government has changed its position:

“…the United States’ present brief backtracks on other positions the Government took in Honolulu.”

And the courts have shifted, too. Since Honolulu’s case was allowed to proceed in state court, courts in South Carolina, Pennsylvania, New York, New Jersey, and Puerto Rico have all dismissed the similar claims, reinforcing the constitutional limits on using state law to regulate global emissions.

The U.S. Department of Justice recently made clear that the U.S. Supreme Court should step in, proactively filed an amicus brief before the Court. The brief followed DOJ’s lawsuits against Michigan and Hawaii for future climate lawsuits, as well as an executive order in April highlighting the dangers of coordinated climate lawfare.

DOJ’s filing was reinforced by a broad coalition – 26 state attorneys general, more than 100 members of Congress, think tanks, legal scholars, and more – each urging the Court to intervene. Among them, Professors Richard Epstein (NYU) and John Yoo (UC Berkeley) explained why these claims should not be brought under state law:

“Neither Boulder, Colorado, nor other state and local actors applying state and local common law and statutes can decide climate and energy policy for the entire Nation.”

Taken together, the amicus briefs show overwhelming national interest and a clear consensus that this case warrants review by the Supreme Court.

And notably, while federal voices opposing Boulder’s lawsuit are many, support within Colorado itself its scarce.

Even the Colorado Supreme Court decision allowing the case to proceed in state court was accompanied by a strong dissenting opinion. And key state leaders – including former-Governor John Hickenlooper and current Governor Jared Polis – have not backed the lawsuit. The Denver Post editorial board and former Colorado Attorney General Gale Norton criticized the effort.

Bottom line: SCOTUS has an opportunity to provide needed guidance and put an end to the litigation campaign’s attempts to shove concealed policymaking through the legal system. The time is right to put an end to this frivolous climate lawfare.