The U.S. Supreme Court has agreed to hear Boulder’s climate lawsuit – a case that could determine whether activist cities and states can use state courts to wage a backdoor war on American energy policy.
“Climate lawfare,” as legal experts have dubbed it, refers to the growing wave of municipal lawsuits seeking to hold energy companies liable for global climate change – not through Congress or federal regulators, but through state-court litigation designed to extract billions from energy companies and force policy outcomes.
With oral arguments approaching this fall, legal professionals, academics, and other experts are unified on one point: the stakes for American consumers and the rule of law could not be higher.
Real Consequences for Consumers
Whatever Boulder’s attorneys argue in court, the real-world impact of these lawsuits is straightforward: higher costs for American families.
University of Colorado Boulder Assistant Professor Bill Wright cut to the heart of the matter in a recent op-ed in the Boulder Daily Camera, challenging the moral logic underlying the case:
“If fossil fuels were banned, the world would quickly descend into a hellscape that would make the Walking Dead look like Disneyland. What about the moral conundrum here? Exxon does not put CO2 into the atmosphere. We do. We buy these products (oil, gasoline, natural gas) and we burn them. We put the CO2 into the atmosphere.”
Christopher Mills, founder of Spero Law and former law clerk to U.S. Supreme Court Justice Clarence Thomas, warned that allowing these cases to multiply would directly threaten energy production and national security:
“Letting these copycat lawsuits fester in state courts across the country is a recipe for uncertainty, undermining American energy production and harming consumers … The right place to decide contested climate change issues is in Congress, not via state-law nuisance claims.” (emphasis added)
Michael Allen, the District Attorney for Colorado’s Fourth Judicial District and a current candidate for Colorado Attorney General, made the consumer cost argument plainly:
“These lawsuits won’t change the climate – but they will raise costs. When cities sue energy producers for billions, those costs don’t disappear; they are passed on to Colorado families in the form of higher energy prices and everyday expenses.” (emphasis added)
This is Policymaking, Not Litigation
Boulder’s attorneys have been unusually candid about their true objectives. David Bookbinder, a longtime attorney supporting Boulder’s case, has openly called climate litigation “an indirect carbon tax.” Boulder City Council officials have described the case as part of a “systems-level change.”
Despite arguments in court that the case is strictly about recouping costs of climate damages, it couldn’t be clearer that Boulder’s is vying for a policy outcome: the phasing out of fossil fuels.
O.H. Skinner, Executive Director of the Alliance for Consumers, explained why that distinction matters:
“[…] people involved in the litigation writ large have identified that the ultimate goal is not $12 billion for this town or $5 billion for this or some new air conditioners for that building. It’s either to get a carbon tax pressed through Congress, a backdoor carbon tax through litigation, or force the energy companies into bankruptcy, so that the localities can take them over and use them as they see fit.
If global climate change is the problem that these localities have identified, they’re not going to be happy with a settlement and resolution for $4 billion or $2 billion there. This is not traditional commercial litigation in that respect. This is ‘I’m trying to accomplish my policy goals through litigation.’” (emphasis added)
Phil Goldberg, special counsel for the Manufacturers’ Accountability Project, explained that the plaintiffs’ opportunistic tendency to repackage claims when they are dismissed shows that they are trying to game an outcome, not bring thoughtful litigation:
“This is throwing a bunch of legal spaghetti up on the wall and seeing what sticks. All these different kinds of the combinations and permutations undermine the idea that there is any kind of legal theory or finding behind these allegations that they may have.”
The Law is on SCOTUS’ Side – and Even Climate Advocates Know It
Lower courts have already dismissed similar cases in jurisdictions across the country, signaling deep skepticism about their legal foundation. Now, with SCOTUS weighing in, even prominent supporters of climate litigation are bracing for a loss.
Michael Gerrard, founder of Columbia University’s Sabin Center for Climate Change Law and one of the country’s most prominent academic supporters for climate plaintiffs, acknowledged the writing on the wall:
“We know that when the Supreme Court agrees to review a decision, about 70% of the time they reverse it…If there are five justices who want to take on the merits, and I think just statistically, there’s a decent chance that on the merits, they’ll reverse the Boulder decision.”
Bottom Line: SCOTUS agreeing to hear arguments in Boulder’s climate case presents an opportunity for the nation’s highest court to finally weigh in on the nationally-coordinated climate litigation campaign. The Court can send a clear answer to the states: utilizing unfounded climate litigation claims for backdoor policymaking harms American consumers and undermines federal jurisdiction.
