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Climate Change

Amicus Brief in Suncor Energy v. County Commissioners of Boulder County

In the upcoming climate change case the Supreme Court should reject the industry and Trump Administration arguments for preemption-by-penumbra.

Jonathan H. Adler | 8.3.2026 12:13 PM

This morning I filed an amicus brief in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County. In this case, likely to be argued in October, the Supreme Court will consider, among other things, whether the Clean Air Act or the Constitution preempt state-law claims seeking relief for injuries allegedly caused by climate change.

As my prior blogging on the subject has indicated, I find the preemption claims to be without merit. (I have no opinion on the procedural jurisdictional issue, but recommend the briefs by Profs. Derek Muller and Ben Johnson for an idea of the issues there.) Accordingly, my amicus brief focuses on the preemption claims. Here is the summary of my argument:

Global climate change presents many complex and intractable legal and policy questions. Assuming this Court has jurisdiction, the legal questions in this case are comparatively simple and straightforward. Nothing in federal law, let alone the Constitution, preempts state-law claims seeking relief from injuries allegedly caused or exacerbated by petitioners' conduct.

At issue in this case is whether allegedly aggrieved parties, including subnational governments, may seek re-dress under state law from defendants otherwise subject to state court jurisdiction for harms allegedly caused or contributed to by petitioners' conduct. In order to succeed, plaintiffs will ultimately need to show that the dam-ages they allege were caused by actions taken by defend-ants, that such actions are within the jurisdiction of state courts, and that such actions may be the subject of tort liability under state law. Allowing this case to proceed does not allow any State to impose a universal rule on all fossil fuel producers, let alone on all greenhouse gas emissions around the globe. The fact that emissions "can-not be unmixed and traced," Pet'rs' Br. 28, may complicate plaintiffs'........

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