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Free Speech

Amicus Brief in Suncor Energy on the First Amendment and Climate Change Lawsuits

Eugene Volokh | 5.28.2026 8:01 AM

The legal advocacy group Neutral Principles engaged Erik Jaffe and me to draft an amicus brief for them in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, which will be heard by the Supreme Court in the Fall; I much enjoyed working on it with Erik, and thought I'd pass it along. You can read the PDF, but here are some excerpts from the First Amendment analysis; I'll blog separately about the Foreign Commerce Clause analysis.

SUMMARY OF ARGUMENT

Trying to avoid federal preemption, plaintiffs in this and other climate-change cases have shifted from claims targeting emissions to claims alleging supposed "deception." These "deception"-based claims are still preempted, because they still target emissions by seeking relief for injuries allegedly caused by emissions. But that shift also threatens numerous First Amendment violations and the possibility of conflicting regulations of national speech, association, and petitioning that further support preemption of such local efforts. Climate-change plaintiffs seek to punish energy companies not just for the asserted consequences of emissions, which result from the decisions and actions of millions of other actors and governments, but for the companies' speech about climate change that plaintiffs claim led to such emissions.

This case is an example of this pattern, but it is not an outlier: There are many like it across the country. And there likely will be many more in the field of climate change, with some potentially taking diametrically opposed views of what scientific speech is true or false. This Court should keep the serious First Amendment issues underlying this litigation campaign in mind in deciding this case. The danger to First Amendment rights is another reason favoring uniform national regulation of these issues as opposed to opportunistic state and local overreach that seeks to punish and suppress speech and debate on this controversial topic.

ARGUMENT

[I.] The First Amendment Protects Advocacy, Petitioning, and Expressive Association Related to Debates About Climate Change.

The speech that forms the basis for alleged liability in this case is core advocacy, petitioning, and expressive association that is protected by the First Amendment. Merely characterizing it as "marketing" does nothing to change its essential nature and its constitutional protection….

[A.] Climate-Change Lawsuit Claims Rest in Part on Defendants' Constitutionally Protected Speech, Petitioning, and Association.

There is no genuine doubt that the recent climate-change lawsuits brought by governments turn on defendants' political advocacy. Notwithstanding the assertion by plaintiffs that they "do not seek to impose liability" based on defendants' "speech," "participa­t[ion] in public debates," or "lobbying or petitioning." J.A.139, ¶¶ 541-542, that is precisely what they are doing. Plaintiffs expressly "seek to impose liability on Defendants in connection with misrepresentations about the known dangers of their products, in connection with their marketing of those products and in connection with the sale of those products," J.A.139, ¶ 541. But they include all public speech directly or indirectly related to their products and climate change under the rubric of "marketing" and have a boundless conception of what speech is "in connection" with marketing and sales, making their disclaimer meaningless. Other parts of the Amended Complaint show that these supposed misrepresenta­tions do indeed include "participat[ion] in public de­bates" about climate change….

[B.] The First Amendment Protects Speech on Scientific Questions.

The speech over which climate change plaintiffs........

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