With a new petition filed in Boulder’s climate case, the U.S. Supreme Court has a fresh opportunity to weigh in – and put a stop to – the climate litigation campaign.   

Energy producers are asking the Supreme Court to review the Colorado Supreme Court’s May decision allowing Boulder’s climate lawsuit to proceed, arguing that state courts have no business dictating the cost of energy for the rest of the country.  

The appeal from the defendants asks the Supreme Court to consider the same question Colorado justices considered: 

“Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.” 

While the majority of justices on the Colorado Supreme Court ruled in favor of letting the case move forward in state court, the decision was not unanimous. As Colorado Justice Carlos Samour wrote in his May dissent: 

“The City of Boulder has no right to file claims that will both effectively regulate interstate air pollution and have more than an incidental effect on foreign affairs.” 

Plaintiffs Say Boulder Lawsuit is About “Systems Change”  

The Boulder case has barely budged after being filed seven years ago, while the broader Rockefeller-backed movement to sue energy producers has now spanned a full decade with little to show.  

In the courtroom, the Boulder plaintiffs have argued for years their case only seeks to recoup alleged costs tied to climate change. This was sufficient to convince the majority of the Colorado justices in May, who rejected companies’ claim that Boulder’s case is “an attempt to regulate GHG emissions.”   

However, city officials publicly argued in 2021 the lawsuit is actually a means of advancing a “fundamental systems change,” not merely a way to receive compensation for alleged climate change damages in the county. A memo prepared for a Boulder City Council study session in 2021 makes the true goal clear:   

“Boulder has also been a national leader in exploring the use of the legal system in pushing for larger systems-level change. Both through its active participation in multi-jurisdiction efforts — like the Clean Power Plan Plaintiffs group — or its climate liability lawsuit with Boulder and San Miguel Counties against ExxonMobil and Suncor, Boulder has demonstrated that there are a range of different levers cities can take hold of to drive more fundamental systems change.” (emphasis added)

“Fundamental systems change” in this case is code for “increase the price of fossil fuels.” An Earthrights attorney representing the plaintiffs was even more explicit, telling a reporter in 2020 that a primary goal of the Boulder lawsuit is to raise the price of fossil fuel: 

“Whether that’s cutting back on the harmful activities, and/or to raise the price of the products that are causing those harmful effects so that if they are continuing to sell fossil fuels, that the cost of the harms of those fossil fuels would ultimately get priced into them.” (emphasis added) 

Unlike climate cases across the country, environmental activist group Earthrights International, as opposed to Sher Edling, represents the plaintiffs in Boulder.  

Constitutional Questions 

The energy companies appealing the Colorado decision to the U.S. Supreme Court argue that using litigation to dictate energy costs is precisely what the Constitution forbids, citing an amicus brief filed by the Trump administration before the Maryland Supreme Court: 

“Under our constitutional system, regulation of interstate pollution has always been primarily ‘a matter of federal, not state law.’”  

Regulation of GHG emissions is an inherently federal area necessarily governed by federal law, the petition goes on to argue. Congress has not permitted, and has actually preempted, state law on these matters, except for claims exclusively involving in-state emissions. 

The petition also notes the Trump administration’s recent executive order declaring its view that cases like Boulder’s are unconstitutional. In the April executive order, the President criticized these suits, arguing they “regulate energy beyond [the plaintiffs’] constitutional or statutory authorities and undermine[s] federalism by projecting the regulatory preferences of a few States into all States.” 

Courts Increasingly Tossing Out Climate Suits 

A lot has changed since the Supreme Court declined to consider a similar appeal in January from defendants in Honolulu’s climate case. Courts across the country, from New York to South Carolina, have dismissed complaints nearly identical to Boulder’s case.  

That makes the Colorado Supreme Court’s May decision an outlier. Over the last year: 

• A South Carolina judge recently dismissed Charleston’s climate case with prejudice, warning of the “boundless” liability it would create if every weather event could be tied to global emissions. 

• A Maryland judge dismissed Baltimore’s refiled claims last summer, writing that the city was trying to get “in the backdoor what it cannot get in the front door.” 

• Other similar climate lawsuits have been dismissed in New York, New Jersey, and Pennsylvania, with courts concluding that state law is the wrong tool for addressing global climate change. 

BOTTOM LINE: There is a growing judicial consensus that cities and states cannot make energy policy through public nuisance suits that really seek to dictate energy costs for consumers. 

The Colorado Supreme Court’s opposite interpretation widens the split between the body and other courts, a divergence the U.S. Supreme Court may no longer be able to ignore.