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Amicus Brief in Suncor Energy on the Foreign Commerce Clause and Climate Change Lawsuits

Eugene Volokh | 5.28.2026 8:33 AM

As I noted in a separate post, 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 the Court will hear this Fall. You can read the PDF, but here is the Foreign Commerce Clause analysis (the First Amendment analysis is excerpted here):

Besides the serious First Amendment concerns favoring a broad preemption ruling that would avoid such constitutional problems, the state-law suits in this case and others around the country seek to regulate national and international commerce in violation of the Commerce Clause and related structural constraints on extraterritorial regulation.

Boulder attempts to penalize multinational companies not merely for the local and immediate consequences of any local operations, but for the multi-causal long-term consequences of their sales and speech around the country and around the globe. And it is seeking to impose liability on Suncor for the joint consequences of millions of decisions by actors beyond its borders, operating in interstate and international trade. Whatever reticence this Court might have in preempting largely ordinary State regulation that incidentally affects interstate commerce, that reticence would be misplaced when it comes to such a major encroachment on international commerce and an attempt to impose Boulder's views of nuisance and appropriate speech on actors not just in other States but also in foreign countries.

For good reasons, this Court has understood Congress's delegated power over foreign commerce as exclusive of State powers. That understanding is consistent with the original public meaning of both the delegation of power to Congress in Article I, and the catch-all reservation of powers to the states and the people in the Tenth Amendment.

Regardless whether the Constitution supports the somewhat variable dormant interstate Commerce Clause as it had evolved over the years, a more textually grounded reading of the clause supports exclusive federal authority here. Boulder's attempt to impose Colorado law on interstate and foreign commerce conflicts with the Commerce Clause, Article I's delegation of powers, and the Tenth Amendment. And it more broadly conflicts with the Constitution's structure, which organizes horizontal relations among States on principles of (partial) state autonomy, equality, territoriality, non-aggression, and mutual recognition.

The power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" U.S. Const. art. I, § 8, cl. 3, is one of the "legislative Powers" that the Constitution "grant[s]," and promises will be "vested in[,] a Congress of the United States," U.S. Const. art. I, § 1.

As a textual matter Article I's grant of authority is exclusive. Taking the "words * * * in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged," Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816), any "legislative power" granted "is * * * absolutely vested," id. at 329. And by vesting powers in Congress, the Constitution divested those same powers from the States. As Justice Story explained in Hunter's Lessee, "the sovereign powers vested in the state........

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